China International Telecommunication Construction Corporation vs Betam Communications Tanzania Limited & Others (Civil Appeal No. 1168 of 2024) [2025] TZCA 963 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: KOROSSO. J.A.. MAKUNGU, 3.A. And RUMANYIKA, J.A.) CIVIL APPEAL NO. 1168 OF 2024 CHINA INTERNATIONAL TELECOMMUNICATION CONSTRUCTION CORPORATION ...................................... ...... APPELLANT VERSUS BETAM COMMUNICATIONS TANZANIA LIMITED............1 st RESPONDENT CITCC TANZANIA LIMITED ..... ........................ .......... 2 nd RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dar es Salaam) f Nqunvale, 3.) dated the 17th day of July, 2024 in Civil Case No. 220 of 2012 JUDGMENT OF THE COURT 23rd July & 12th September, 2025 RUMANYIKA. 3.A.: On 31s t March, 1998 the appellant, China International Telecommunication Construction Corporation (the CITCC) on one side and Betam Communications Limited (the BCL), a company incorporated in British Virgin Island (not a party in this case) and Comcraft Kenya Limited (incorporated in Kenya) on the other side executed an Agency Agreement (Exhibit PI). It was for construction of a national information technology broadband fibre optic backbone network. After some time, Comcraft was 1

removed by amended Agency Agreement (Exhibit P3) which was executed on 19th August, 2003. Therefore, only the appellant and the BCL remained the parties to it. Moreover, on 13th September, 2012, by Deed of Assignment (Exhibit P10), the BCL assigned the 1s t respondent the management of the project as an agent. She had to identify the project, to develop it and to prepare the respective memorandum of understanding for and on behalf of the BCL among others. Terrefe Ras (PW1) who is director of the 1s t respondent stated that he worked with the appellant and the locally hosting Ministry responsible for communications and transport as focal and instrumental person. He added that, under the amended Commission Agency Agreement which was executed on 19th August, 2003 (Exhibit P9), the 1s t respondent deserved payment of 3.75% of the contract price of USD 170,000,000.00 for the work done in two instalments; 30% upon the provisional acceptance of the project and 70% upon the first withdrawal of the moneys from the financing institution. Further, PW1 stated that, despite the 1s t respondent's performance, the appellant did not pay the agreed commission which stood at USD 6,225,000.00. He added that, the breach of agreement culminated into a suit which is subject of the present appeal. 2

Andenet Terrefe Ras (PW2) testified that, he was a telecommunications engineer, son of PW1, co-director and co-shareholder to the 1s t respondent. However, PW2 stated that he was not sure when the 1s t respondent was incorporated in Tanzania. He also asserted that, locally, one Mr. Cyril Pesha owned a share. He added that the 1s t respondent did not present any documents to demonstrate her existence. Further, PW2 stated that, the appellant breached the agreement as she did not pay the agreed commission despite several promises to pay. On the adversary, the appellant had Li Xiong (DW1) and Liu Xing Hong (DW2), her project manager and lawyer respectively as witnesses. Both recognized the being of the said agency agreement (exhibit P3). They also stated that, the BCL is the one who breached the agreement for non performance and for that reason, the appellant withheld the commission. Eventually, the 1s t respondent won the battle as the trial court decided it against the appellant. Being dissatisfied, the appellant preferred the present appeal on eight grounds which are paraphrased as follows;

1. That the trial court erred in not holding that the 1st respondent had no iocus standi not being privy to the agreement;

2. That the trial court erred in not holding that the 1st respondent improperly sued the appellant in her own name; 3

3. That the trial court erred in not holding that the National ICT Broadband Infrastructure Backbone Network in Tanzania and the 1st respondent had no contractual relationship;

4. That the trial court erred in iaw in condemning the appellant to pay agency commission withoutjustification;

5. That the award o f USD 6,225,000.00 for the 1st respondent was inconsistent with the evidence;

6. That the award o f general damages o f TZS. 10,000,000.00 to the 1st respondent was unjustified;

7. That the interest o f 12.5% per annum for the 1st respondent has no legal basis; and

8. That the impugnedjudgment was against the weight o f evidence. As such, the points of grievance above would boil down to three issues; one, whether the 1s t respondent had locus standi to sue the appellant for breach of the agency agreement, two, if the first issue is answered in the affirmative, whether the 1s t respondent fulfilled her contractual obligation and hence was entitled to get the claimed commission and three, whether the award of TZS. 10,000,000.00 general damages are justified. At the scheduled hearing of the appeal, Messrs. Juvenalis Ngowi and Lucas Elingaya, learned counsel represented the appellant, whereas the 1s t respondent was represented by Mr. Rugambwa Cyril Pesha and Ms.

Nafikahedi John, learned counsel. The 2n d respondent appeared through her Principal Officer, the Managing Director who readily supported the appeal. Mr. Elingaya adopted the appellant's written submission filed on the 3r d January, 2025 to form part of his arguments in support of the appeal. On the issue of locus standi which is raised in the 1s t and 2n d grounds of appeal, Mr. Elingaya contended that, from the outset, the suit was incompetent as the 1s t respondent had no locus standi. Referring us to the amended Agency and Commission Agency agreements found on pages 370 and 381 of the record of appeal, respectively, Mr. Elingaya contended that, the 1s t respondent was not privy to the two agreements, let alone proof of the case. The case ought to be dismissed. To bolster his proposition, Mr. Elingaya cited our decisions in Nyumba ya Sanaa and Culture Ltd. v. Upanga Joint Venture Company Ltd. & Another, Miscellaneous Civil Cause No. 752 of 2021 (unreported) and Simba Papers Converters Ltd. v. Packaging and Stationery Manufacturing Ltd. & Another, Civil Appeal No. 208 of 2017 (unreported). On another legal aspect of the matter, Mr. Elingaya asserted that, the 1s t respondent should have not sued for and on behalf of the BCL under the circumstances of the case. He argued that the institution of the suit

ought to have been preceded by a requisite resolution of the company Board of Directors which was not done. Further, he contended that, the said omission rendered the purported suit incompetent hence liable to be struck out. To reinforce his point, he cited the Court's decision in Leonard Msusa (Receiver K. 3. Motors Ltd) v. L. Dhanan & 2 Others, Commercial Case No. 62 of 2000 (unreported). In totality, Mr. Elingaya urged us to allow the appeal with costs. In reply, Mr. Pesha began by adopting the 1s t respondent's written submissions which was filed on 3r d January, 2025. He also adopted the list of authorities filed on 17th July 2025 contending that, the appeal is misconceived and liable to be dismissed. Elaborating, he argued that, in fact the 1s t respondent was privy to the amended Agency and Commission Agreements (Exhibits P3 and P9) having capacity to sue the appellant. Mr. Pesha distinguished the present case from Nyumba ya Sanaa and Culture Ltd. (supra) and Simba Papers Converters Ltd. (supra) cited by Mr. Elingaya. Further, he asserted that, as a matter of fact the 1s t respondent herein sued the appellant properly under the Deed of Assignment pursuant to section 12 of the Documents Registration Act, Cap 117. Referring us to exhibit P10, Mr. Pesha argued that, now that the 1s t respondent was privy to the two agreements and thus duly commissioned

to sue the appellant, joining the BCL as a party to the suit would be uncalled for. We have considered the rival learned counsel's written submissions, the authorities cited and oral arguments with respect to the said three issues. However, for the reasons that will come to light shortly, we shall only deliberate on the first two issues which we find to be decisive of the appeal. The first issue questions the 1s t respondent being privy to the amended Commission Agency Agreement entered on 19th August, 2003 (exhibit P9). Her locus standi is thus, queried. It is common ground that, a duly incorporated company as is the 1s t respondent cannot initiate any judicial proceedings as of right. It has to be backed up by resolution of the respective company's Board of Directors. However, the filing of the suit subject of this appeal did not meet the said legal requirement. We shall explain as follows: One, our reading of the evidence of PW1 particularly on page 291 of the record of appeal shows clearly that, in a bid to establish the 1s t respondent's locus standi, attempts were made to tender a copy of the respective power of attorney (annexure 4 to the amended plaint) which appears on page 106 of the record of appeal as an exhibit vainly. It was

successfully objected for being incompetent because it was not registered locally as required under the laws of Tanzania after it was donated abroad in China and two, no resolution of the BCL Board of Directors for the institution of the suit was presented to show the 1s t respondent's locus standi. As such, for cases of this nature, the essence of the company's Board resolution cannot be overemphasised. It is so because a duly registered company is autonomous from an individual person. For instance, being confronted with a similar problem, in Simba Papers Converters Ltd. (supra) the Court held that; "...Since the claimant was a company, it was not proper to institute a suit on behalf o f the company without its formal authority...by way o f resolution o f the Board o f Directors to institute the case in the absence o f which, the suit in the name o f the company was defective and it ought to have been struck out ." Still on the essence of resolution of a company's Board of Directors, we have made it clearly such as in Nyumba ya Sanaa and Culture Ltd. (supra). In that case, we stressed that such a Board resolution shows that the company still exists legally among others. And that, the decision to sue or being sued as the case may be has been reached in accordance with the

company's articles of association and therefore, all the shareholders are bound by it all. Guided by the legal principle above, therefore, we agree with Mr. Elingaya's contention that, in absence of resolution of the Board of Directors of the BCL, the 1s t respondent had no locus standi to institute the suit, subject of this appeal in her own name. Moreover, we note that, in that regard when Article 3.1 of the corresponding Deed of Assignment on page 384 of the record of appeal are read together with the amended Agency Agreement (Exhibits P9 and P3 respectively), they speak louder and clear. As a matter of fact, it is not clear to us if, by that assignment, the BCL absolutely surrendered her rights and duties to the 1s t respondent as the sole claimant. It is so because the relevant part of the amended Agency Agreement reads: "BETAM COMMUNICAT70NS...is also empowered to represent CTTCC in Europe and other parts o f the world in addition to Africa" In other words, as an agent of the BCL, the 1s t respondent then the plaintiff should have sued the appellant only for and on behalf of the principal (the BCL) and not in her own name as she did. Therefore, the 13th September, 2012 Deed of Assignment (Exhibit 10) appearing on page 383 of the record of appeal (as supplemented) was for a purpose as observed

above. That said, it is stressed that, being an agent of the BCL, the 1s t respondent's suit was improperly and wrongly instituted. It fell short of the requisite resolution of the BCL's Board of Directors to establish the first respondent's existence among others, as observed above. Still on the issue of locus standi, we need not say it more that, under the Common Law-doctrine of privity of contract, only parties to the contract have to enforce it. See- for instance, Austack Alphonce Mushi v. Bank of Africa Tanzania Ltd. & Another (Civil Appeal No. 373 of 2020) [2021] TZCA 521 (27 September 2021; TanzLII). Therefore, the said omission rendered the suit defective and hence liable to be struck out. As such, in any judicial proceedings, the party's locus standi and or his cause of action are inseparable. Fundamentally, these two aspects have far- reaching effect as they need to be real because, if assumed, execution of the resultant decree becomes possibly next to impossible. This is to say that, the disguised suit was respectfully frivolous and untenable to say the least. The resultant decision is therefore inconsequential. Having so observed, the 1s t issue is answered in the affirmative. It follows, therefore, that the 1s t respondent's failure to establish her being privy to the said agreements disentitled her to get the claimed commission and or damages. In other words, the 1s t respondent's claims 10

were all superfluous from the beginning. Therefore, the 2n d issue is ~ answered in the negative. In the up short, now that, from the very start the 1s t respondent had no legal capacity to sue the appellant, we find the appeal to be merited and hereby allow it with costs. DATED at DODOMA this 10th day of September, 2025 W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 12th day of September, 2025 in the presence of Mr. Juvenalis Ngowi, learned counsel for the appellant and Mr. Rugambwa Cyril John Pesha, learned counsel for the respondents both through Teleconferencing and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original.