Tuesday, May 2, 2017

Local communication firm saves 20,000/-, loses 20bn/-
FAILURE to pay 20,000/- exhibit fee has
cost Betam Communications Tanzania Limited 20bn/- in law suit against two
Chinese companies in the national ICT project.
Judge Zainabu Mruke, who
was hearing the suit before the High Court in Dar es Salaam, ruled in favour of
China International Telecommunication Construction Corporation (CITCC) and
CITCC Tanzania Limited, holding that there was no agency agreement between the
parties in the project execution.
In the suit, Betam
demanded about 20bn/- for allegedly breach of agreement in the National
Information Communication Technology (ICT) Broadband Infrastructure Backbone
Networks project, famously referred to as ‘Mkongo
wa Taifa’ and tendered 11
documentary exhibits to prove the claims.
The plaintiff claimed
6,2255,000 US dollars (over 12bn/-) as agency commission, 10 per cent compound
interest per annum to the date of the suit, which is 2,216,926.97 US dollars
for the delayed period, 10 per cent interests on general and special damages, among
other claims.
But, in her verdict, the
trial judge, after perusing the court records, revealed that court fee was not
paid before tendering some exhibits, citing the letter from the Ministry of
Infrastructure Development and the Commission Agency Agreement for the project.
She said according to
Court Fees Rule, 2015, before tendering an exhibit in the High Court, 20,000/-
must be paid for each exhibit. Justice Mruke argued that the requirement had
been skipped, ruling that the tendered exhibits could therefore not be
considered.
“Having satisfied that
there is neither proof of commission agency agreement for project in Tanzania
nor proof of deed of assignment between Betam Communication Limited and Betam
Communications Tanzania Limited, the suit is dismissed with costs for want of
merits,” she ruled.
It was alleged that
through an agreement, “Commission Agency for
Project in Tanzania,” signed between Betam
Communications Limited and CITCC on April 14, 2006, the Chinese firm appointed
Betam its agent for the fibre optic cable network projects in the country at a
commission fee of 3.75 per cent of the contract price.
The plaintiff claimed
that it was an express term of the agreement for CITCC to pay appropriate
negotiated compensation to Betam as per agreement.
On April 24, 2007, CITCC
signed the 170 million US dollars (about 221bn/-) contract of National ICT
Broadband Infrastructure Backbone Networks in Tanzania with the government of
Tanzania through the Ministry of Infrastructure Development.
The court heard that the
contract was to be executed between February 1, 2009 and July 31, 2010.
Subsequently, CITCC incorporated CITCC Tanzania Limited as the subsidiary
company on May 18, 2012, registering it with the Contractors Registration Board
as the project executor.
According to the plaint
of the suit, it was all material time an implied term of the Commission Agency
for the project that the CITCC would do everything to perform the contract and
never do anything to avoid paying the agreed commission.
Alternatively, the
plaintiff was entitled to re-claim commission from CITCC Tanzania Limited in
quantum meruit being reasonable remuneration for international commission
agents in the construction industry as per mercantile practice.
According to the plaint
of the suit, it was the obligation of the CITCC to give due account of the
contracts entered into and pay Betam its agreed commission in two installments.
Subject to giving due
account, based on the estimated value of the first phase of the project of 170
million dollars, CITCC owes the plaintiff assignee the principal sum of
6,375,000 US dollars, being 3.75 per cent of the contract amount which was
financed by the Exim Bank of China loan.
The plaintiff claimed in
the suit to have acknowledging receipt of offer of 150,000 US dollars only from
CITCC, leaving the sum of 6,225,000 US dollars due and owing from the two
Chinese companies.
During the defence
hearing, Mr Li Jung, the Manager of International Affairs with the two Chinese
firms, testified to the contrary that the plaintiff was entitled to nothing.
The manager denied knowledge of the plaintiff with whom his companies had never
transacted.
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About Hassani Makero
Hassani Makero is a Wor'Out Media Country Manager located at Unguja-Zanzibar, Tanzania performing all technical issues concerning of Media Broadcasting activities, Satellites, and FM and Television equipments supplier.
Aside from that, Hassani Makero is also a Writer, Producer, Video-Photographer Journalist, and Video Editor experienced for 10 years now performing in News, Documentary, Advertisements and Television Programs.
Aside from all above he own and operate his Blog known as Wor’Out Media since 2014.
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