19990914 TZHC Tabora

., . ;;,~ - ~ ~un ~ l \ : t ,_-;:- rriA.N7,ll.NIA Nl' TABORA .·/'. ' , .r • ·.. , .. (He) CIVIL CASE NO<! 1. -~ J.~, ENTERPRISES LIMITED •• •• •• •• •• l?.I.Ai1~..:"£1: ?I~-·- ~-~ 4- ... __ V ER $ u s ffNZAN'IA EIECTRIC SUPPLY co. LTD. •• .... •• - DEFENDANT JUDG M!:NT. MASANCHE 1 J •: This case has lu!td a chequered history. Jt, w~s opoo~d in this registry of the High COIU't Tabora, on the 9th of Feb~ary 1993, some six years ago. I do not however, think that it ~ill serve any Useful purpose i:t I narrate the chequered history the case went t.hr01.1.':"h before it because fully adjudicated upon in Court. The facts of the case, as far as I can gather, are rather simple. They are these: The plaintiffs are a limited company and they go by th~ name of Timber Enterprises Company Limited Tabora. The main concern of the Company is to make furniture from timber here in Tabora. There is no doubt, it is a properly registered company~ The proprietor of the eeft!.pany has been Mt-. Mustafa Rajabu Isik~ P.W.l. ·f~;:;Jf'·· 1 .1' · .• .' On 8/7/88, the plaintiffs vide Exhibit Af applied to be ·supplied with electricity at -di.eir timber factory along Kilolen~ Industrial area in Tabora. But before that nappened one Ismaii' Thomas . n.w.1, the then Assistant Manager of Tanesco Tabora,visited th~ premises of the pleintiffs timber factory to see how the r...~,:.~s had been done. The date is given as February 1987. It is sai~ that r,•••~. : I Mr. Ismail Thomas·-gisited the premises in Company of another Tahesco · official one Charles Wa!!!°e.l;lli, now rJecA~sed. These two persons had gone to the factory where with Mr. Isike P.W.l, Mr. Vedastus Fundi P.W.2 t ' . . and Mr. Hamisi Ramadhani P.W.31 inspected the factory and found out ~hat the installatioffli3 were done in accordance with the Taneseo regulations. Mr. Ismail Thomae D.W.l is said to have been a good ftiend of Mr. Isike who was, in fact, in the initial stages of the electricity installition i,t::was "assisting'' in making sure that Mr. Isike had succeeded in getting electricity for the timber factory. 2 So, Mr. Ieike went to collect the installation eard from Taneeoo and handed~it over to his wiring contractor Pazi and Partners, for that I 'eontractor to fill in. Indeed Mr. Pazi, P.W.4, of Pazi an~ Partners fille~ this form Exhibit C9 and all seemed well. That was, according to evidence, in 1988. T~:- I~allation ___Qard - ··~ --- (Exhibit C) does not •· ···~-. - show the date, Nov, the insbllation of the ac_tual electricity of the prenrieee of the factory was never done i until a year later in 1989. Why was this so? Immediately after Mr, Ismail Thomas and the late Wambali went back to the office, Tanesco seemed to have changed mind, The change ofb mind, however, seemed not to have been communicated to Mr, Isike. Bc,wever, on 12/11/89 Mr. Ieike got supplied with electricity. No explanation wae given why there was such a· delay. The impression that the Court was given for the delay was that perhaps Tanesco official, were looking for a bribe £t,arn Mr, .Isike or, perhaps Mr. Isike had angered Tanesco, because he,.Mr. Ieike1 had dealt with the wrong man, Mr. Ismail Th~s D.w.1. For, inde.ed on the following day1 13/ll/~, just after electricity had been installed the previous day (1.2/11/89), a pereon called c. H. Simtanda, the Acting Regional Manager wote a letter to Pazi and Partne~s Electric Works admonishing them for wiring the factory of Mr:-, Isike. That letter dated 13/11/89 (Exhibit Pl ~eade ae follows:- / "'?AB/RM/CONS/go• 13/11/1989 • '1/S Pazi & Partners Electric Works, s.L.P. 4o9, TABORA. Yah: UFUNGAJI MASHINE ZA KIWANDA CHA MBAO (TIMBER E. COMPANY) KASSAVA ROAD INDUSTR:fAL AREA l<ILOLENI PLOT NA 1 2, 3 . Hueiana na somo hilo l'lapo juu. Tunrusikitika kuona kvamba taratibu za kazi ulizopangiva na 'bodi ya Leseni h.uzifuati. Nasema hivyo kwa kuwa wew• unaf'ahamu kwamba Leseni yako ·ni ya kufunga umeme majumbani tu (Restricted to Domestic), easa inakuaje kwako wewe kufunga Kiwanda cha Mbaoll cha Timber E. Company wakati leseni yako b.airuhusiwi? Suala hili nimekwisha kufah~misha mare nyingi kwa mdomo pia hata kw& barua. · Tafadhali zingatia upasavyo kuyatekeleza kama. lesseni yako inPvyojieleza la sivyo hstua ~a Kinidhamu itabidi zichukuliwe ikiwa ni pamoja na kuieieza Bodi ya Lisense. Naomba tushirikiane kwa usanifu zaidi badala ye. kuwasumbua wateja. Wako adilifu, k.n.y. SHIRIKA LA UMEME TANZANIA, C.H. SIMTANDA. KAIMU MENEJA WA MKOA, TABORA. Nakala:- Maine Supervisor,.Taneeco, Tabor~• ,, " Installation Inspector, Tanesco, Tabera. 11 r,Vs. Timber.Enterprises Co. Ltd., s.L.P. ll.25, TABORA•" This letter surprised both Mr. Pazi and Mr. Ieike. Hov co•· that this man (c. H. Simtanda) was now questioning the-lice~~e of Mr. Pazi·wh~n Mr. Ismail Thomas Md given a go ahead? (See Exhibit D). This, therefore, prompted Mr. Pazi to write to the Headquarters of Tanesco in Dar asking to be told as to what ~,~,,, all this vas about. Tanesco Headquarter Dar ea Salaam wrote lat,ck to Mr. Pazi a letter dated 12/8/91 clarifying on the issue. That letter Exhibit Q readst ~BIT Q.: ••THE -·ll'N!TED REPtraL!C OF TARZA?f?A MINISTRY OF WATER ENERGEY AND MINERALS 4 Sokoine Brive/Mkwetu, P.O. B&x 2000• DAR F,S SALAAM. U/08/1991 MATUMIZI Jt7U YA LESENI YAKO ~ '.Rejea .barua ;,ako ya ta.rehe 08/4/1991 ihusu.~ ld..ehwa cha ma.neno hapo juu wewe unaru~s~~a kufuriga umeme wa fhl"ee Phase na Motor za umame haku.na kiwango, !Jnafanya kazi zote. Samahani kwe. kuchelewa ku.jibu barua yako. V. R. LUKOWO KATIBU "BODI YA LESENI ZA UMEME.!1 . !hat letter as one oan see apologized· for the delay. However, Mr. Ieike, after realising that Mr. Pazi was in t7euble with his licence wen~ to another electrical contrscto?",oa• Mapeku EJ.eeti:,i~l Wor-1<5 and had the .a.rd now filled by thie Mapeku Electrical Works. Finally, on 16/7/91 electricity was instelled at the timber factory. The drama had, indeed, to that stage,involved a lot other senior people who all seemed to have sympathised with Mr. Ieike. 'rhe Principal See~etary Mitrl.stry of Water Energy in,ttal!IL letter dated 1 18/?/91 had written to Taneseo Tabora, for example, asking to be told about the prob1em. The letter reads:- EXHIBIT n M1 : 1.tJAMHURI YA MUUNGANO WA TANZANIA WIZARA YA, MAJit NISHATI NA MA.DINI Sokoine Drive/Mkwepu, S.L.P. 2000, DAR. ES SALAAM. 18 Julai, 1991. - MeJ1eja ~ fdkoa, TANESoo., s.L.P. 8, TABOR A. Yah: TATIZO LA KUKOSA UMEME KIWA!fflA CHA MBAO t:HA TIMBER ENTERPRISES COMPANY LTD. Husika na baru.a ta Timber Enterprises Comp~ timited ,a tarehe 26 Juni, 1991 yenye Kumbukum'bu 'IE.CO/COMPS/6/J. Tungependa kupata maelezo kuhusu madai ~ kiwa.ad4 hieho cha Timber Entei;prises Company Limited na $ababu zilizo itanya TANESCO kuwanyima umeme; Aidha, twnsei>enda Jcupata nakala ya majibu kwa barua yao rejea. · Pia tutapenda kujua iwapo mmefikia ufumbuzi wowote wa kuld.patia kiwal>da hicbo utDetfle na Jcatjka .utarattlN a-ni+. V• T. GONDWE k..n.y.: KATIBU MKUU. Nekala: Mkurugenzi Mtendaji, TANESCO., . MJJ-;J! ~ALAAM. . ., . ,.. n Mkurugen~i wa ICaJlda., TANESCO., S.L.P •. 8, . TABORA. ..... . " Mkuru~nzi,. Timber Enterpreises Company Limited, s.L.P. -1125, TABORA•" The Regional Commissioner Tabora had also tn'itten a letter to TMesco Tabora - letter dated 11th Jan. 1991 (Exhibit J.) in which the R.c. said, among other things: "Mgogoro uliopo kati ya Ndugu Isike na Shirika ni ule mchezo wa Shirike. wa kuruka ruka na kumzunguusha mteja kumpa huduma anazostahili kadri ya mapatano yenu. Ndio sababu ulifika wakati fulani ndugu '.t:sike aliwapelekea madai ya 8hs.6,31?,510 gharama aliyopata tokl:t mfukoni mwe.ke kununulia vifaa ambavyo Shirika lilisenta halina~" 6 Th9~e were the sent4~ents of the Re~onal ~oll!Miseionffe so, on 16/7/91 eiect~•oity_w~ instal+ed, finally. '( Aftef a+l ~his drama, ~ ~ ~s~e went to see the fir~ qf the late Mun!Q'lka and asked the@ to make a~ assessment of loss·or income from the : ' : :· • • • :· ; 1 • • • ' . , dat,~ of 4/11/89, w~en ele~tricity ~ght have bee~ installed, to ~he date to of 16/7/91 . ~. when ele~t;r.iQ;ty . "!~8 '. . eventually ' . i~tatted. . . Mr •. Ml.\~nka i~ . ~b4t "N'' tper:~fo/e came Olft ~ith a lo~s figu.r.e of Sbs.22,68o,682/=, ./ ~ . . ' anci ; s~e -trui.t th:f.1:;1 _; ' ., . has been tlle sum olaj.med : . :f.~ . . tl>.e main suit, In short the pl~intiff claiinsf Shs!22;680,f582/= Q,ing ~oss of earnings; ''lr. 2, Shs;i6,000/== peing for 30 nietr,s of .. ! . . ~ . . . eleQtric wire of 16 '1lllfl 3! Shs,200/~ for~ papket of cli~s; 4T s1-µ3,5000/~ being tp.e money pai:d to hire another ~~l · · ' ?, Interest; 6,. Costs of the suit•'\-~- - I thl,*' t~ese are the facts of the cas,.· as. I = see theD!,. The d~f(:!ng,e caa(;l' ·to tp.il:! clat!D by ~. Ii:J~e. is also in1:ereljltjng1 0 Briefly this i~ the case on b~half of the 4efi,m<:e, Tanesco; : ' .: . .! In the first place Tanesco, deny that Mr. Ismail Thoma~ n.w.1 and the late Wambali visited the premises to see the wiring. Mr. Thomas D.W.l came to testify here in Court and denied ever visiting the site. I eav I Ml;'. Thomas in the dock! He told lies. For one thing nobody we were told 1 could give a go ahead to installation of electricity other tbn~. this officer. And, aa Mr. Kayaga learned advocate suggests in his submiseion 1 Mr. Ismail Thomas could not-be all that irresponsible to go toe site, all the way from his office,and then never enter the premises as he himself suggests. He said he went to the site but stood outside letting other officers go in. So Mr. Ismail Thomae visited the site and he was the one who gave the go ahead. Then Tenesoo say that they stalled the installation because of the unqualified or unregistered el~ctrical ~tlf;,1z,5 contractor, Mr. Pazi ' being engaged to do the job. Well, I do not want to go much into this, ·. because, even accepting that he was unqualified, and or unregistered, 7 person, eventually the right person, }VS Mapeku ContraetOZ's• were found, and ther did the job. That, therefore, cannot be a valid defeaoe at all. In any=case, as is suggested by Mr. Kayaga in his submission, it took . :.. ,~ plaintiffs a year, from 15/7/88 to 12/11/89 ·to infar~ tlie J): t=-r:f:';; that the person 1 :'. they had engaged do the wiring was unqualified. Tanesco then came out with another defence: Th.er said t~~t Mr. Isike was to blame.for initially applying for a higher volt~~e of electricity when in fact he needed much less. It was~• tB4t .. had asked.for 45 H.P., when his needs were for 15 H.P. onl.J. They therefore argued that they ~ould not give his·electricity because it meant installing a new transformer. Well, even then, Mr. Isike, fhe evidence shows, quite promply agreed to the change in the strength ·of Horse Powe» needed (see Exhibit D.2 de.ted 26th July 1989). If Tanesco was efficient and eager to give Mr •. Ieike electricity; electricity would have been installed earlier, to my mind. A fact has emerged that Tanesco, after Mt-. Isike had indicated or demonstrated . his decision to refer the matter . to Court, . did rule out not ~~ . t8 give Mr. Ieike electricity until he withdrew the case from the Courts. Well, that being the position, one fails to ~nderstand why anybo4y readin$ about that fe.c\ would _not conclude that Tanesco was a bull-dozing Company•' Without any sense of service - giving. That behaviour was, in fact, even ad.monisked by the R.c., Mr-. Gama, in the letter Exhibit J, quMed supra.- Witnesses were brought by the defendant, Mr. Mathew Mbwambo D.w.3, • and Mr. Sarnwel Maka.la D.w.2, to tell the Court that Pa.zi was not in the list of contractol'lj that could make wiring of electricity in a factory and that his duties could only be done in living buildings. Well, as I said before Pazi issue is a non-issue, becaus~ eventually Mr. Pazi gave way ' to another contractor. But as I say, it took long to communicate this to Mr. Isike. is That~ is I think,lthe e~se. Now, at the beginning of the trial, t_he following 1f;;.~1' w~re· :f'rameds 1. Whether the parties entered into A valid contract and if so when; 2. What were the obligations of the parties under the f contract? 8 3. Did the defendant (Tanesco) discharge his obligations. 4. If not, to what measure of damages is the plaintiff entitled to·; 5. To what reliefs are the parties entitled~ Before I answer those issues in the order they appear, I want to· briefly, I hope, say something about the law of contract, at least so that it becomes easy to asnwer the questions posed. Our law of contract (Capo 433) is a replacement of the Indian Contract Act 1872 which has been applicabl~ in Tanzania since 1920. The law to date. came into force on 3rd March 1961 9 and has had not - many amendments Although there are not many authorities on Contract law in East Africa, the law as appli~d in other jurisdictions, like India, with a somewhat similar pr~vision, is quite stable (see book Contracts. East Africa MC Neil). The law of contract (Cap. 433) in section 10 1 says: 11 All agr-eements are contrairts if they are made by the ~.... .commat of parties competent to contr~ct, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. 0 Now let me go to the·issues Most contracts are in written forms. Some are not. With Tanesco, they seem not to have a formal~ with a set of rules, to which a customer may sign. In the instant case o~e can legitinately say that the form (Exhibit A) that Mr. Isike signed that re6ds 11 Maombi ya Mwanzo ya Kupatiwa Umeme''· and the receipt given out by Tanesco, receipt no. 210954 dated 8/7/881 which is appended to the form. concluded the creation of a valid contract between the two. The form, was the offen and the receipt becomes the acceptanc_e for the law says that for a contract to be valid, there must be offer and acceptance. Issue No. 1 therefore which asks whether the parties had entered into a valid contract is answered in the affirmative. The date they entered the contract was 8/7/88. The obligations that each party had to·the contract, to Mb&Wer the aec~nd issue is that 1 Tanesco, on this date 1 promiaed to give electricity to Mr. !sike -at his Timber factory. The plaintiff paid the fee we see ..... - . 9 on the receipt, of Sha.3000/= (Exhibit A~ attached), to signify the willingness to accept the modalities of getting such electricity. This is cemented by the fact we have seen in the case of officials of the status of Mr. Ismail Thomas D.W. 2, and the late Mr. Wambali, visiting the site to see the wiring, which was approved, as we have held, The third issue is whether Tanesco, then, did discharge the obligatim1, to wi~, of supplying electricity. Tanesco, I answer, did not, hence the drama, which I have pointed out is suggestive of Tanesco wishing to ~eive graft, I am sorry to say so. ,. ~e fourth issue is what measure of damages is the plaintiff entitled to: Here the figure given is Shs.22,68o,682,0~ which suggeste to be special damages. I say special damages because evidence suggests . that a Consultant, Mr. Munanka worked on the loss. I am ia~·:"'difficult with this aspect of the case. Mr. Muna.nka, is, unfortunately-dead, and could therefore not give evidence in Court. Special damages, unfortunately, the law provides, must be strictly provedt apart from also being averred in the? pleadings. Salmon on the Law of Torts 7th edition at page 143 says Lor general and.special damageif: "General damagG is that kind of damage whioh the law presumes to follow from the·wrong complained of, and which, therefore, need not be expressly set out in the plaintiff's pleadings. Special damage on the other hand, is damage of such a·kind that it will not be presumed by the law, and must therefore be expressly alleged in those pleadings." I have read the report by the lat~ Mr. Munanka. (Exhibit 1tN' 1 ) . He has attempted to be detailed. Hm.re-•!~ri the report would assume . (I imagine) that business was all rosy for Mr. Isike, which I doubt, in these troubled days of the economy of our Country. I would, · therefore, not be prepared to allow the figure en mass. I would, however, in rrry reasonable judgment agree with Mr. Isike that he hae suffered some damages, but I would assess the damages at Shs.12. million (12,000r)OO/=). I will, in addition, allow for costs. ' . 10 In total .eum, therefor; judgment is ent:ered f~ the plaintiff·--- ---- in that sum only - the sum of· Sha.12, million with costs. • c. MASANCHE, ' -JUDGE. At Tabora: 14th September, 1999. Mt-. ~oaa for defendant Mr-. Kayaga for plaintif~.