A contract named as Consultancy Engagement Agreement, was
entered into on 30th September, 1996 between the second Respondent
and Appellant. In that contract Appellant procured the services of the second
Respondent requiring him to carry out Design and supervision of
Architectural, civil, structural, mechanical and electrical works and Quantity
Surveying Services’. These services were meant for a proposed Appellant’s
Office Building to be erected at the corner of Nyerere Road and Chang’ombe
Road, in Dar es Salaam. On its part, Appellant was to pay for the consultancy
services according to percentages stipulated under the contract. There is,
apparently, no dispute that the services were rendered by the second Respondent
jointly with two others, who were the first and third Respondents, but payments
were not “fully” made to them by Appellant. After several written demands for
payment which were responded to by making small part payments, the second
Respondent decided to sue.
When the suit was
instituted, initially in August 2001 and subsequently by an Amended Plaint in
December 2013, a lot of water had gone under the bridge, so that TFTU had
ceased to exist and was not in the picture. Instead it was the Appellant that
was sued in the Amended Plaint.
In the Amended Written Statement of Defence, the defendant
raised two points of Preliminary Objection regarding the capacity of the
defendant and the competence of the suit.
The High Court entered judgment for the second Respondent,
taking the view that there was a binding contract between him and TFTU and that
the Appellant was the successor of OTTU which, in turn was the successor of
TFTU. This issue regarding the Appellant’s succession of TFTU is still the
prominent ground of appeal. The Appellant is challenging that finding, so it
has raised an issue that it has no legal personality, therefore it is not
capable of being sued.