20170926 TZHC Dar es Salaam

- IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISRTY) AT DAR ES SALAAM CIVIL CASE NO. 83 OF 2015 VICTORIA BENJAMIN fj1ANDARI t/a AUTHENTIC ATTORNEYS"', ................................................. PLAINTIFF {b) An order that the defenda(Jt pay the plaintiff the sum of US$ 83, 300 being the amount expected to be earned by the plaintiff should the defendant honored the Retainer Civil Ct1se No. 83 of 2015 1 --=-c-_;:-_-_-_ _ =:=.=====~=--=--=--=-'=----~---_:.:.__"' ---_-_ -_--· ------ --·--- ----- - - _- ~--- -=------_-___ --~ -:c ...-_- - -~-~--~ .. -·· ....,., -- . - -- - ---- - -- -- ~ ,-, \"f ..... \ . ,, Agreement dated_2d'1 March 2014 but also as payments for services already rendered within the agreement to date; - {c} An order that the defendant pay the plaintiff the sum of US$ 50,400 being fees and time spent in respect of legal services rendered to the defendant from June 2013 to March 2015 as pointed out in paragraphs 4 and 18 of the Plaint; ,_ { d} An order for payment of general damages in tune-of-f:15$ 50,000 for constructive termination of Retainer Agreement and Oral Service Agreement collectively; {e} An order that the defendant pay the plaintiff's costs of this suit; {f} Any other rellef{s} that this Honourable Coutt n1ay deem fit andjust to grant 9n the other hand, the defendant filed Written Statement of Defence and is vehemently disputing the claims by the plaintiff. Civil Case No. 83 of 2015 Sgd R.K Sameji,J 2 ... ---------- , -· ~ __ -- - - - - - -- ~:-::;::-:= ----- ---- ---·-- ,. - --- - -- - ~-~ -- - - - A brief background of the suit as obtained on the record of the case . ·- is that, the defendant is a liability company registered and incorporated in Tanzania whose business is on the real estate. Sometimes in 2012 the defendant purchase a piece of land from Tanganyika Motors under Certificate of Title er No. 16354, L. 0 . No.22504 located on Plot No. 8 Msasani Beach area, Kinondoni Municipality in Dar es Salaam. In 2012 the defendant purchased the said plot for the purposes of starting a project known as DONGSING HUAFU ("the project'') with the main purpose of providing high quality and standard apartments to the general public in Tanzania. The said project started officially in 2013, where the defendant th intended to construct 98 houses/apartments. On 20 March 2014, the defendant signed a one year Retainer Agreement with the plaintiff on the said project, whereby the plaintiff was to provide legal services on the project and the payment for that services were to be paid 50% of the fees upon signing of the sale agreement between the purchaser and the defendant and the remaining 50% to be paid after completion of the entire transaction and issuance of sub-title to C/-.,il Case No. 83 of 2015 Sgd R.K Sameji,J 3 - - _....,____ - _-~ -. ....... : -':'le..... -• --,._ -· ~ . the purchaser. The said Agreement was to come into force on 1st r April 2014 with a provision of being renewable. \ However, the plaintiff claimed that prior to the signing of the said Agreement specifically from June 2013 she was given several legal assignments for purposes of providing legal opinion and advice to the defendant's company. She said those assignments covered issues of labour laws and corporate tax payable to the government and how foreigners could sell the envisaged 98 apartments/houses. She said that she gave both oral and written advice to the defendant. On 30th March 2015 the plaintiff submitted Demand Notice to the defendants claiming for payments of US$ 133,300 on the services she had provided. The defendant admitted to have a Retainer Service Agreement with the plaintiff and disputed other activities claimed to have been performed by the plaintiff outside the said Agreement. The defendant argued that, the plaintiff is yet to provide any legal services as the project, as the same was yet to take off and have not even sold any house/apartment. The plaintiff is claiming to have entered two different agreements with the defendant, oral and Civil Case No. 83 of 2015 Sgd R.K Sameji,J 4 ~~. - -• ·. : - --- ----:----. .::· ::.: -....:-::=. - -- --=---- -- - - ~ . - --~~-=--- - ·-·-- - ···:e. " .. , - .--.~ - c - - - - - - - ~ - ~ : : . : . . . . . . . . . ; _ _ . . : _ ... --- ~ '1 ·, r_ written, but the defendant is only recognizing and acknowledged the th written Agreement signed by the parties on 20 March 2014. ) At the hearing of the matter the plaintiff herein is under the services of Mr. Charles R.B. Rwechungura, the learned Counsel, while the · defendant is represented by Mr. Denice Tumaini, the learned Counsel. On the <;:ompletion of all the Pre-Trial Preliminaries, the Final -Pre Trial Conference was conducted and the following issues were framed and adopted by the Court:- {aJ Whether parties were in agreement for provision of legal services; {b} If the first issue is settled in the affirmative, then whether the plaintiff rendered services to the defendant in accordance-- with the said agreement; { c} Whether the defendant breached the terms of the service · agreement; (d) Whether the plaintiff suffered any damages out of the breach of the said service agreement, and Sgd R.K Sameji,J Ci-vii Case No. 83 of 2015 5 :.. ( e) What reliefs are the parties entitled?. To prove the above issues the plaintiff's side summoned only one witness, Victoria Benjamin Mandari, who testified as PW1 and the defendant side also summoned only one witness Alexander Gerson . I Bange, DW1. PWl tendered seven (7) documentary Exhibits, to wit Pl-Copy of email communication between PWl and Mr. Liu Yu Peng; P2-Copy of the Press Release by Mr. Liu Yu Peng dated 22 nd April 2014; P3- The Retainer Agreement between the parties; P4- Payment Bills made by the Defendant to Tanzania Investment Centre, (TIC); PS- Copy of the draft Letter of Offer; P6- Demand Notice (Letter) from the PWl to the defendant; P7-Defendant Letter response to the PWl's Demand Notice. In addition and by consent of the parties, 04th September 2017 they filed their final written submissions and I am grateful to all Counsel for the parties for the energy and industrious research involved in canvassing issues herein. It is imperative at the outset to point out that, this case was handled by two Judges. Hon. Feleshi, J who handled all the preliminary stages Civ-il Case No. 83 of 2015 Sgd R.K Sameji,J 6 ·~--- - • . ~ ; • •.:. . •:--- :-.~s-:,:.:.._ i-...::;:::_ -~ _ .•., ••- ~-----~ .. .:;.. -- - ~ ----- -------~--·----· - ~ - and heard the. testimony of PW1. Thereafter he was assigned other :, ) official duties and the case was then assigned to me. I thus heard the testimony of DW1 and crafted this Judgement. I thank my brother Hon. Feleshi, J for keeping the record of the case well and on track. It is now my duty to evaluate the evidence adduced by the witnesses with a view to determine and decide on the aforementioned issues. In the course of determining this case I will be guided by the canon of civil ju.stice which suggests that, one "the person whose evidence is heavier than that of the other is the one who must win" - Hemedi Said Vs. Mohamedi Mbilu (1984) TLR 113. two, "where doubts are created in evidence., the same should be resolved in favour of the opposite party' - Jeremiah Shemweta Vs. Republic (1985) TLR 228 and three, 'he who alleges must prove the a/legation~ To start with the first issue, there is no dispute that the plaintiff was . approached by the defendant in June 2013 in respect of the project and on 20th March 2014, they signed one year Servi.~e R~tainer Agreement which was to come into force on 1st April 2014. The said Agreement had a compulsory renewable provision on such terms and Cil'il Case No. 83 of 2015 Sgd.R.K Sameji,J 7 -- - - - - - - - - _,_ conditions upon mutual agreement by the parties. Under this ( , Agreement a consideration of US$ 850 fee was payable to PW1 in the following manner, 50 % upon signing a sale agreement between the client and purchaser and the remaining 50% upon completion of the deal and issuance of the Sub-Title Deed to the purchaser. All these facts are not disputed by all parties the only disputed part is the claim by the PWl that there was another oral agreement which started to run from June 2013 - March 2014. PWl is alleging that, in June 2013 she was orally approached by Mr. LIU YUPENG, the then Project Manager, to render legal seivices to the defendant's project. She said under that oral agreement, she was given several legal assignments, which covered issues of labour laws and corporate tax payable to the government and on how the defendant as a foreigner could sell the 98 apartments/houses. She .. further said that, on 1!fh April 2014 she sent emails to LIU YUPENG on the fees payable to her per each Sub-Title Deed or sold . . apartment/house,(See Exhibit Pl}. PWl testified further that, she made follow-up in the Ministry of Lands and Tanzania Investment Centre, (ICT) and submitted some documents thereto. She said, the Sgd R.K Sameji,J Cf-vii Case No. 83 of 2015 8 - =-- --- ·-- . --- - - - - , - - - _ _ ....:__ -· - _....::=:::._- . _ . ---- - - - - - - - - - - - - defendant gave her a bundle of documents and asked her to take the ( same to the Ministry of Lands with a view to negotiate reduction of some amount in premium, the task which she did, but unsuccessful. To cement on this point, in his final submission Mr. Rwechungura submitted that, there were two agreements between the parties, the first was the oral agreement relating to the services rendered by the PW1 to the defendant between June 2013 - March 2014 and the st second written agreement, . which started to run from 1 April, 2014 - March, 2015. To justify the existence of the said oral Agreement Mr. Rwchungura referred to paragraph 4 of the Plaint where it was indicated that:- "Sometimes in June 2013 the defendant instructed the plaintiff to offer legal services on the defendant's new project known as Dongxing Huafu Locqted at Msasani area as and when needed, the instruction which were made orally and proven later by specific performance whereby the plaintiff was assured of payments on legal services rendered by the defendant and also for continued issuance of legal Sgd R.K Sameji,J Civil Case No. 83 of 2015 9 =---- ' -- -- & - ~ --- ------- -. --- - .-,--~------:___------~--- services until the project comes to an end'~ [Emphasis added]. To verify this point from the defendant side, I have perused paragraph 3 of the defendant's Written Statement of Defence, where the defendant referred to the said oral discussion/instruction as part of the pre discussion and negotiations which culminated into the signing of the written Retainer Agreement on 20th March 2014. Furthermore, DWl when testifying on the existence of the oral agreement between PWl and the Defendant he disputed and said that, between 2013 -2014 there was no any legal services rendered by PWl to the defendant. DW1 insisted that, the only recognized Agreement between the parties is the Retainer Agreement signed on 20th March 2014. However, during cross examination by Mr. Rwechungura DWl stated that, during the period of June 2013 - March 2014 he was not the one issuing instructions to PWl, but he as well said that, if those instructions were issued by the Manager, the same could have been in writing and DWl could have< came across them in the course of business. DWl testified further that, he has never come across any of those instructions claimed by the PWl. Cl.,il Case No. 83 of 2015 Sgd R.K Sameji,J 10 In his final submission, Mr. Rwechungura noted that, since DW1 the , ) only witness of defendant was not the one supervising and giving instructions on the said oral agreement, the defendant has failed totally to dispute the claim by PW1 that there was an oral agreement. Rwechungura cited Section 9 of the Law of Contract Cap. 345 [R. E.2002] and argued that, since oral agreement is recognized by · the law, this Court should find that there was unwritten or verbal contract between the parties. To buttress his position he cited the case of Ruku and Magori Vs Magori (1971) HCD 161. This point was spiritedly contested by Mr. Tumaini, as he submitted in his final submission that, PW1 has totally filed to prove the existence of the said oral agreement, as required by Section 110 of the Evidence Act, Cap. 6 [R.E.2002]. Mr. Tumaini said the law is very clear that, the burden of proof lies on the person, who alleges the existence of the facts and it was therefore the view of Mr. Tumaini that in her testimony PW1 has failed completely to perform that duty of proving on the existence of the said oral agreement. Sgd R.K Sameji,J Civil Case No. 83 of 2015 11 -- __ .. "'.:::-:=::~ ~=> --- --·:=-;::::::;::::-...:......1=:-. ~--. - - ====- :·---- _, --.- "•" ~ ~-..-_.,,_~-~---' .~- - - .~ --- ~. - ..... &~ ~ .-,. . ... ~ ____ . .. .... ,....,._ --•'• -·· ... '-~~ ~ As I• have noted above that there is no dispute on the existence of I the Retainer Agreement signed on 20th March 2014, therefore the \ J only question which is still remaining under issue number one and that this Court is required to address is whether there was an oral Agreement between PWl and the defendant, which started to run in . . the period between June/ 2013 - March 2014? I do agree with Mr. Rwechungura's submission that, as per Section 9 of the Law of Contract Act, oral agreements are recognized in Tanzania. I however, wish to state further that, whether oral or written agreement, there are essential elements for any valid. agreement, which should be found in the agreement these elements include, existence of an offer and acceptance, mutual consent of partie5✓ intention to create legal obligation, lawful consideration, just to mention, but a few. (See Section 2 of the Law of Contract Act). To ascertain existence of the above essential element in the said oral agreement, I have scanned the evidence submitted by PWl, but none was found. PWl testified that she was orally engaged by the defendant through Mr. LIU YUPENG who was the then manager of CJ-.,il Case No. 83 of 2015 Sgd R.K Sameji,J 12 , . ---~-.;;;.- .;:_, __ . ~ -... -~- . -· ...... ~- --~- ..::..~---· _....._T - - ...... the defendant and she gave examples of activities she was instructed r to performed prior to the signing of the Retainer Agreement to include:- (aJ Giving legal advice to the defendant in relation to labour cases in the Labour Tribunal; . . (b} Reviewing documents and providing advice on corporate tax payable by the defendant and on the procedures for developing apartments for sale in Tanzanian law; (c} That, on 2.21d April 2014 she attended the press conference organized by the defendant, where she prepared the talking notes for Mr. Liu Yu Peng. PW1 talked to the media to market the defendant's project; and ( d} Making follow-up and attending meetings with officials from the Ministry of Lands and Tanzania Investment Centre {TIC} to chart out way forward on.. the defendant's project. Despite listing the above activities PWl has never produced any . .·- . tangible evidence to prove how she was instructed by the defendant to undertake the same, such as written instruction note(s}, Minutes of some of those meetings she attended, newspapers cuttings to Cl~il Case No. 83 of 2015 Sgd R.K Samej~J 13 --~~-- - - - =-=- - _._ - - -- -· .~-- ----- ----=--=- ~ ---- . ·•-· - -=-- - _ _ _-_ -~=====- _-...:-~~~~ -_- :~~-- -----·,r-- - ·- _ _ _ _ _ _ _ _~ _ __.;:::::;:;::::___;:_;:_:____ _ _-==:::.___ _.._ ..- ., .__......,. . . . - ~~ ' - ..... I j show how she attended and engaged with Media in the said Press Conference to brand the image of the defendant's project. There was no even any profoma invoice(s) raised by PW1 to claim payment for what she was instructed to do, if any. In her own words PW1 testified that she has never served the defendant with any profoma invoice (s). Even the Exhibit P2 press release which PW1 ·claimed to prepare for the defendant, does note indicate anywhere that it was prepared by PW1 or even bare any symbol or mark related with PW1 or her law firm. PW1 at some point also testified that, she had_ made several communications with Mr. LIU YUPENG through emails on the said activities. To prove this claim PW1 produced Exhibit Pl, emails communication between her and Mr. LIU YUPENG. I have since perused the said emails and there is nowhere one can see scintilla of evidence or even those essential elements for an agreement to indicate that there was an oral agreement between the parties on the • said prior activities. There is even no mention of the said activities in the said emails, but the communication indicated there is referring to the activities to be performed by PW1 under the signed Retainer Cil-'il Case No. 83 of 2015 Sgd R.K Sameji,J 14 ------- -- 1 I Agreement. For the sake of clarity I have endeavored to reproduce the said emails here below:- On 19/2/2014 PW1 wrote Dear Liu Yu Peng It was pleasure meeting you today in my office where we discussed about engaging us to render legal services to you in processing the sub-Titles. I am very glad and willing to working with you in the project that you are currently undertaking in Msasani. Under normal circumstance we charge at least$ 1,000 per title and give you a guarantee of obtaining all the title deeds within 10 days or Jess. After lengthy discussion and the way you managed to persuade me I have accepted to lower down the rate and sign a contract with you where I will only charge $800 VAT inclusive. This is the best rate ever and you will never regret with the kind of service that we will render for you. Once again I take this opportunity to thank you so much by considering us among others. Feel free to ask any question should you need some clarifications on anything regarding our services. Kind regards. Victoria Mandari Senior Legal Consultant Authentic Attorneys. Then on the same date 19/02/2014 Mr. Liu Yu Peng responded, Dear Victoria Th.anks for your email and can you give me the details {sic) list of the services? I can give the report to my office in China. Yours Liu Yupeng General Manager Dongxing International Real Estate Limited. Again, on the very same date 19/02/2014 PW1 provided the said list and wrote: Tbe details of the services to be rendered are as hereunder:- Cl-vii Case No. 83 of 2015 Sgd R.K Sameji,J 15 (i} Preparation of conveyance documents which shall include- {a) Letter of offer, {b} Sale agreement, {c) Land Forms, {d) Application documents for sub-titles, {e} Application for search - this is mandatory requirement to establish current status of the property, {f) Attestation /witnessing all documents on your behalf, {g) Submission of all documents to land registry and Kinondoni Municipality for necessary permits/consent, {h) Submission of the documents to the Registrar of Titles for issuance of sub-Titles; {i) Following up on the sub-Tittles until final stages and assisting you to pay the relevant charges thereof namely, the stamp duties, registration fees, consent fees, and any other statutory charges in connection of this process. To mention a fe~ this shall essentially be my responsibility and generally taking care ofyour interests in the whole process. Before the actual sale there will be other preliminary activities that will be done for you to be able to commence the actual transfer to the buyers. Fees on this work shall be assessed basing on time spent as we normally do. Kind regards Victoria. Finally UU YUPENG on the same date responded that:- Dear Victoria Thank you for your e-mail and I will be back to you once I get the information from China about payment. Yours UUYUPENG It is not difficult, by reading the above emails, for one to come to the conclusion that, the reference to those emails by PW1 was misconceived, as the above emails by all means do not relate to the said oral agreement The date of the said emails is 19h February 2014 and the subject matter of the discussion therein was on the Cl-vii Case No. 83 of 2015 Sgd R.K Sameji,J 16 Retainer Agreement signed on 20th March 2014 therefore, the said emails do not have any connection with the said oral agreement or even the listed activities claimed to be performed by PW1 between June 2013 - March 2014. It is therefore my considered view that, there is considerable merit in the testimony of DW1 who testified that, the prior discussion between the parties was on the negotiation of the Retainer Agreement that was finally signed by the parties on 20th March 2014. It is a principle of the law that, he who alleges must prove the. allegation~ Now since in this case the plaintiff was the one alleging on the existence of an oral agreemen~ she was required to establish and prove the existence of the said agreement to the required standard and to the satisfaction of the Court. It is also on record that PWl has not managed to summon any witness to substantiate what she told this Court. Though, I am live with the content of Section 143 of the Evidence Act, Cap. 6 [R.E.2002] that it is not number of witnesses, but credibility of witness evidence, but it Is the finding of this Court that, the act of not summoning the person who negotiated with her the alleged oral agreement and or who gave her Civ-il Case No. 83 <if 2015 Sgd.R.K Sameji,J 17 -~--·'"" ~ - - ~ ~ ~-~~ ~- .-- - -- ~ - .< •I instructions to canyon those activities and even the media person she interacted with, the officials she hold meetings with, minutes of those meetings held, had since affected the plaintiff's case. There are plethora judicial pronouncements in support of this position. See for instance the case of Hemed Saidi v. Mohemed Mbilu, (supra) it was held that:- "Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they would have given evidence contrary to the party's interests." [Emphasis added]. Furthermore and as I have indicated above pursuant to section 9 of the Contract Act, there must be sufficient evidence to prove the existence of such an agreement and the intention of the parties to create a binding and enforceable agreement. If my appreciation of the law on this aspect of the case is correct, there is no tangible evidence on the part of the PW1 which can be implied to show that there was an oral agreement mutually agreed between the parties with an intention to create necessary efficacy and binding Cf-vil Case No. 83 of 2015 Sgd R.K SamejV 18 ,,. relationship prior to the signing of the Retainer Agreement. It is even not certain as to what was the consideration on the performance of the said prior activities then. There is nothing in the evidence, which one can point, showing a clear and unambiguous intention of the parties on the alleged oral agreement. Even in the very case cited by Mr. Rwechungura of Ruku and Magori Vs Magori, (supra), Hon. Kissanga J, as he then was stated clearly that:- "Once he (the Magistrate} found that there was an agreement, and indeed there was sufficient evidence to support that finding, then to my mind the fact that such agreement was not in writing would not affect the position. For what really matters was· the intention of the parties and since there was sufficient evidence to show that parties intended to and did create contractual relations.then the court- would enforce an agreemen_t _at least on grounds of equity'~ [Emphasis added]. . . . . So in this case to establish the existence of the oral agreem~nt PW! was required to submit sufficient evidence to show the intention of both parties to create such contractual relationship prior to the Sgd R.K Sameji,J Ci-.,il Ct1se No. 83 of 2015 · 19 -..::tt:.::. _.....,;.,·,.!_ .. . . - .. ___. _____ - . ,--:=--==---- ~----~~· -=-=-·•··~~~·~ - ~ .._- -_~_ -~_-_ - :_ =._-_..:,_,:__ __:__:;::;:;:___ ~ __:===:__ _ _ _ _ _ __ . • . t·:7,.,::=:-""),--;..,;:_._..-~._--;. ____ - _ .:.,_,;;._;..;....;..._.;.....__.:......_..___,......,. _...,.,.. .i. 't .. signing of the Retainer Agreement. See also the case of Travertine Limited and 2 Others V National Bank of Commerce Limited 2006 TLR 133. In the circumstance, it is my respectful view that in the state of affairs and the evidence adduced herein by the parties the only agreement which was existing between the parties is the Retainer Agreement signed by both parties on 20th March 2014. Therefore the first issue is partly allowed. ·· Coming to the second issue it has been indicated under paragraphs 12 and 13 of the Plaint that PWl was requested to prepare letters of offer and sale agreements for two clients. It is further indicated that she was instructed to hold several meetings with officials in the Ministry of Lands on the possibility of getting the Right of Occupancy instead of the derivative rights. In her testimony PWl stated that she had prepared two letters of offer and sale agreements and send the same to the email of Mr. LIU YUPENG and Roben for them to translate the same in Chinese language for vetting and approval. It was also the testimony of DWl that he has seen the two letters of Cf-vil Cllse No. 83 of 2015 Sgd.R..K Sameji,J 20 offer,_ but before the same was approved, then PW1 submitted her ( Demand Notice, hence this suit. It is clear that PW1 performed that duty under the Retainer Agreement though the same was yet to be approved by the defendant. All the same, pursuant to paragraph 4 of the said Agreement PW1 legal services were to be paid 50% of the fees upon signing of the sale agreement between the purchaser and the defendant and the remaining 50% after completion of the entire transaction and issuance of sub-Title to the purchaser. OW1 has informed this Court that at the time when PW1 has submitted her claims no sale agreement has been signed. He further said even to- date there is no even single house/apartment that has ever been sold. It is also a fact that, before conditions set under the above paragraph were executed, PW1 submitted her claims. So it is the finding of this Court that PWl's claims were submitted prematurely contrary to the terms and conditions set in the Agreement signed by both parties. Civil Case No. 83 of 2015 Sgd R.K Samej4J 21 - - ' ., .. - -- .. - •. -.•.,,........_~., - ... -~-J-.,._ - --~,- --- .. ··-· . - . ·_ ?·..t'":._ ...____ . - ~ - -•------- . . . . - ---~--~,--, -=-=.,.-:: .:..:: - - - -- . • On the third issue, the plaintiff's allegation are indicated under paragraphs 14 and 15 of the Plaint where the plaintiff is claiming that despite the existence of the Retainer Agreement between the parties the defendant decided to engage the services of another Law Firm to carry out the same activities without first making payments to the PW1. In her testimony before the Court PW1 stated that, after the change of leadership from Mr. Liu yu Peng to Ms. Jane Lee her relationship with the defendant deteriorated. PW1 said, Ms. Jane Lee was no longer giving PW1 instructions, visiting her offices and avoided her phone calls. At the end of March 2015 PW1 said she decided to call Mr. LIU YUPENG, who told PW1 that the defendant had engaged services of other lawyers, but did not specify the names. Based on that information PW1 noted that the defendant had breached the Agreement and decided to send her Demand Notice. During cross examination by Mr. Tumaini PW1 .mentioned names of Mussa and Mawalla as the Advocates engaged by the defendant to provide the said services PW1 was required to provide. It is on record . that, though, PW1 submitted those allegations she has not availed Civil Case No. 83 of 2015 Sgd R.K Sameji,J 22 ·- -~~-~- . . . -.....-....-.,.--..-.._..-_-,-._- __- c - - - - . - ..--..--,......_-.--- ... ~----..:~-,~------~----·----:-:-~---·:-:·::----·-~-----.-,~ .. - (• any tangible evidence to substantiate oher statement, the same remained to be mere allegations. In his final submission on this matter Mr. Rwechungura submitted that, the defendant created an adverse environment without any excuse, which prevented the plaintiff from continuing discharging her duties under the Agreement. He argued further that, the defendant did so without any notice to the plaintiff. On the other side under paragraph 9 of the Written Statement of Defence the defendant had disputed that had never engaged services of any law firm to carry out the assignment given to PWl under the Retainer Agreement. In his testimony on this matter before the Court DW1 disputed the claim by PW1 and testified that, the defendant has never engaged another Advocate or even a Law Firm. DW1 said after receiving the Demand Notice the defendant was surprised because at that time the defendant was already thinking to engage the PW1 on the discussion for the renewal of the Agreement, as the signed Retainer Agreement was coming to an end. However, even after receiving the Demand Notice (Exhibit P6), the defendant responded Civi.l Case No. 83 of 2015 Sgd.R.K Sameji,J 23 ,·__:__:___:____:2:_ __ . _ . ·._ ... _--,----·..:.·_.,-,-"_,;.:....,... ... _. .....,,.,,._ ._. • • ~ ">+"" - ---- ·- -- .. -·,,,. ....,,, ··-. and requested PW1 to have a meeting with them to clear and solve the problem with a view to renew the Agreement, but PW1 insisted that the defendant has engaged the services of another lawyer/law firm. As such, the intended negotiation and discussion were not successful. In his final submission Mr. Tumaini argued that, though ._ . : .. the main reason for PW1 to claim that the defendant had breached the Agreement was the engagement of another law firm or a lawyer, but PW1 has not submitted any tangible evidence to prove that fact. He said the plaintiff claims based on trivial issues and suspicion which lacks merit before .the Court. It was his strong view that this Court cannot operate on mere statements and suspicions from anyone who approach it for redress. He thus prayed the Court to find that, up to the date of the Demand letter by PW1 the Retainer Agreement was still valid and there was no breach from either party. To verify plaintiff allegation on the breach of the Retainer Agreement I have revisited the said Agreement and specifically paragraph 7 .... which is providing for the steps to be followed in the case of termination; That, either parf:½ upon termination has to issue 30 days written notice to be served to the other party by dispatch. It is also a Clvcl Cose No. 83 of 2015 Sgd R.K Sameji,J 24 ----,..~~-~' .,a.·' . _. _- L,. ,_,_.,_ fact that, despite existence of this paragraph a party to an agreement may breach the same for non observance of the terms and conditions agreed therein. It was alleged by the PWl that, the main reason for her to note that the defendant is under the breach, is the adverse environment that was created and even the information from Mr. LIU YUPENG that the defendant has engaged another lawyer/law firm to provide the same services PWl was engaged to provide. However, and as clearly submitted by Mr. Tumaini, PWl's claim remained to be mere suspicions and statements. In the circumstance and taking into account the principles governing civil litigation and specifically the burden of proof on the side of a party who is alleging certain facts, it is my considered view that cogent, concrete and clear evidence have not been established by the plaintiff to prove that the defendant has breached terms and conditions of the Retainer Agreement signed by the parties on 20th March 2014. Therefore issue number three is answered in the negative. .I • · As for the fourth issue it goes without saying that since the third issue was not established to the required standard then the fourth issue is also answered in the negative. Civii Case No. 83 of 2015 Sgd R.K Sameji,J 25 --------- --·- ------ - - - - --- - - - -- -- - - - - ---- ----- ~ . _... ~ . _ ~ --. - -- ..... - ~ •--, - ~ .:.. ··~ ... In the final analysis and as I have painstakingly considered all issues /-..; .. t' and totality of the evidence on record and carefully analyzed the evidence of the parties in the scales of justice and principles of civil justice, It is my finding that the Plaint filed before this Court lacks merit following the fajlure by the plaintiff to provA,ase t the required standards, as demonstrated by a u t h ~ e ~ n this Judgement. Consequently, I decline ~ a n , ~ i - s prayed \:~, ~ herein. I hereby declare that, t~~~ei!Ydismissed in its entirety. I make no order as. ~&5, ~81!1 party to shoulder his or {' -•-'~'%~~' . .;;i•-;-•:,:f~\-~'S.;.,_. ' ~-·· . her own costs. It is so ·o{dered,.,-:::~,;,.~,❖~' .••,· · ❖y -:( \~ .. ~ , . .. .~, ~ /f DATED at DAR_ E,~ S~M . , /j1 day. offeptember 2017. ,~~~ - --- - ~ / ~" . ~,~~,.< 1. · :Jrt: '_:· ~---=~~ K. Sameji. · JU GE «~~~~--- ..,._~ f ,, ». ...•' 26/09/2017 & -~ ,~~· Rulin\peliver~· ir/ Court Chambers in the presence of Mr. Charles ,~ I R.B. Rw\ltnir:tgura, the learned Counsel for the plaintiff and Mr. Denice Tumaini, the learned Co sel for the defendant. C/'-,i/ C"se No. 83 "f 2015 26 ----- -.-·-·-· .. - . ----·•- . - .. . ,. ... . - . ·."!""' ..:._ ... - - - . ~ ,. .,,,.---, i \ ·'""'~ --.."9r ,~ ........,.;•~; '• ::_•,-· ''