Rose Mshabaha Tarimo @ Rosemary Michael Tarimo @ Rose Michael Tarimo vs FCN Construction Company Limited and Another (Civil Case No. 000003497 of 2026) [2026] TZHC 3052 (9 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CIVIL CASE NO. 000003497 OF 2026 CASE REFERENCE NO. 202602121000003497 ROSE MSHABAHA TARIMO @ ROSEMARY MICHAEL TARIMO @ ROSE MICHAEL TARIMO ........……………………...................……… PLAINTIFF VERSUS FCN CONSTRUCTION COMPANY LIMITED..........................1 ST RESPONDENT FRANCIS CHRISPIN NGULUCHUMA ……………..……………. 2 ND RESPONDENT EX - PARTE JUDGMENT MWENEMPAZI, J. The Plaintiff instituted this suit aga inst the Defendants jointly and severally, seeking declarations and remedies arising from breach of a construction contract. The Plaintiff avers that, on 14th January 2025, she entered into a construction contract with the Defendants for the erection of a storey building on the Plaintiff ’ s land at Ilembo, Mpanda Municipality, Katavi Region, at a consideration of Tshs. 169,000,000/=, payable in three installments. That, she duly performed her obligations by paying two installments amounting to Tshs. 135,200, 000/=, while the Defendants were obliged to complete and hand over the building by 20th May 2025.

2 Upon Defendants ’ failure to perform, the parties executed an Addendum Agreement on 3rd September 2025, extending the completion date to 18th October 2025 and requiring the Plaintiff to pay the final installment of Tshs. 33,800,000/=, which she duly paid. Despite full payment, the Defendants failed and/or neglected to complete and hand over the building as agreed. Relying on Defendants ’ assurances, the Plaintiff had entered into a four - year lease agreement with one Johnson Mikanoli Maloda, commencing 19th October 2025, for a total rent of Tshs. 72,000,000/=. Due to non - completion of the building, the lessee declined to pay rent, resulting in a loss of rental inco me (mesne profits) of Tshs. 72,000,000/=. The Plaintiff further avers that the Defendants, without justifiable cause, refused to pay the agreed refund of Tshs. 269,000,000/= as set forth in the Addendum, together with mesne profits of Tshs. 72,000,000/=, d espite repeated demands and attempts to resolve the matter amicably. Consequently, the Plaintiff prays for judgment and decree against the Defendants jointly and severally for:

3 i. A declaration that the Defendants breached the construction contract. ii. Payment of Tshs. 341,000,000/= as special damages (comprising Tshs. 269,000,000/= refund and Tshs. 72,000,000/= mesne profits). iii. Payment of punitive damages of Tshs. 100,000,000/=. iv. Payment of general damages. v. Interest at 15% commercial rate on the above sums from the date of decree until payment in full. vi. Costs of the suit and any other relief deemed fit by the Court. This matter came before this Court for hearing ex - parte after the defendants, despite having been duly notified of the hearing date, failed to appear before the court and did not file any defence to controvert the plaintiff ’ s claim. The plaintiff was represented by Mr. Kulwa Hezron Ngunga, Advocate. At the commencement of hearing, learned counsel for the plaintiff proposed the following issues for deter mination: - i. Whether there existed a construction contract between the plaintiff and the defendants.

4 ii. Whether the defendants breached the said contract. iii. To what reliefs are the parties entitled. The plaintiff called two witnesses, namely PW1 Rose Michael Tar imo and PW2 Laurence John, Advocate. PW1, Rose Michael Tarimo, testified on oath that on 14/01/2025 she entered into a construction contract with the defendants through one Francis Nguluchuma, who introduced himself as the Director of the 1st defendant com pany. According to PW1, the agreement concerned construction of a one storey building situated at Mapinduzi Area, Mpanda. She stated that the contract was executed at the office of Advocate Laurence John. PW1 further testified that under the agreement the defendants undertook to complete and hand over the building by May, 2025. She paid the first installment and subsequently paid all the remaining installments as agreed. However, when the agreed completion date approached, the defendants requested extension of time for completion up to October, 2025. PW1 accepted the variation believing that the project would eventually be completed.

5 PW1 testified further that despite full payment of the agreed contractual consideration, the defendants failed to hand over th e building within the extended period. She stated that on 02/10/2025 she had already secured prospective tenants and intended to lease out the building but she was unable to proceed because construction had not been completed. She informed the court that t he building remained unfinished at the finishing stage and that she suffered loss and inconvenience as a result of the defendants ’ conduct. PW2, Laurence John, an Advocate practising at Mpanda, testified that he personally prepared and witnessed the constr uction agreement between the plaintiff and the defendants on 14/01/2025. He stated that both parties appeared before him voluntarily and agreed on the terms of the construction contract including the mode of payment and time for completion of the building. He testified that the contract document was reduced into writing and signed by the parties in his presence. PW2 identified the certified copy of the original construction contract which was admitted in evidence as Exhibit P1. He explained that the origina l remained misplaced in his office but the certified copy was a true copy of the original document executed by the parties.

6 PW2 further testified that after the defendants failed to complete the building within the initially agreed period, the parties conv ened another meeting in his office whereby the defendants requested additional time for completion of the construction works. According to PW2, the parties agreed to extend the completion date up to October, 2025 and the plaintiff agreed to pay the remaini ng installment. This subsequent agreement was reduced into writing and admitted in evidence as Exhibit P2. The witness further testified that after assurance by the defendants that the building would be completed in October, 2025, the plaintiff secured a p rospective tenant known as Johnson Mikanoti Maroda. PW2 prepared a tenancy agreement between the plaintiff and the intended tenant, in which the agreement was also admitted in evidence as Exhibit P3. PW2 further stated that on the agreed date for handing o ver the building, the plaintiff attended his office expecting the defendants to complete their part of agreement. However, efforts to contact the 2nd defendant proved unsuccessful as he could not answer telephone calls. Thereafter, PW2 and the plaintiff vi sited the construction site only to find that the building had not been completed and the result thereof, no handing over was effected. I have carefully considered the evidence of PW1 and PW2 together with Exhibits P1, P2 and P3. Since the matter proceeded ex - parte and no

7 defence was offered by the defendants, the evidence tendered by the plaintiff remained unchallenged and unrebutted. The first issue for determination is whether there existed a construction contract between the parties. The evidence of PW1 and PW2, coupled with Exhibits P1 and P2, clearly establishes existence of a contractual relationship between the plaintiff and the defendants. Exhibit P1 evidences the original construction agreement while Exhibit P2 evidences subsequent variation extend ing time for performance. The evidence demonstrates consensus between the parties regarding construction of the building, payment arrangements and timelines for completion. The law is settled that a contract is enforceable where parties voluntarily agree u pon terms creating reciprocal obligations. In the instant case, the plaintiff discharged her burden of proving existence of the contract on a balance of probabilities. The second issue is whether the defendants breached the contract. The evidence on record demonstrates that the plaintiff fulfilled her obligations under the contract by paying all agreed installments. PW2 categorically testified that the plaintiff completed payment before

8 execution of the extended agreement under Exhibit P2. The defendants, h owever, failed to complete and hand over the building even after being granted extension of time. It is trite law that parties are bound by the terms of their contract and failure to perform contractual obligations without lawful justification amounts to b reach of contract as per Sections 37, 39 and 55 of the Law of Contract Act, Cap 345 R.E. 2023. In the present case, the defendants neither completed the construction works nor appeared before court to explain or justify their failure. This Court in Tanzani a Local Government Workers Union (TALGWU) v s Gykash Establishment Ltd (Land Appeal No. 8779 of 2026, High Court Land Division) was of the view that, Non - payment of rent after an addendum agreement was deemed breach, justifying eviction. The conduct of the defendants therefore constituted a fundamental breach of the contractual obligations owed to the plaintiff. The final issue concerns the reliefs to which the parties are entitled. Having found that the defendants breached the construction contract, the plaintiff is entitled to relief as per Section 73 (1) and 74 (1)of the Law of

9 Contract Act. The evidence demonstrates that she suffered inconvenience and loss after fully performing h er part of the contract while the defendants failed to perform theirs. The intended leasing arrangements evidenced by Exhibit P3 were frustrated due to the defendants ’ failure to complete the building. Accordingly, this Court enters judgment in favour of t he plaintiff against the defendants jointly and severally. Consequently, it is hereby ordered: - a. That the defendants are in breach of the construction contract entered into with the plaintiff. b. That judgment is entered in favour of the plaintiff against the defendants jointly and severally. c. That the plaintiff is entitled to Payment of Tshs. 341,000,000/= as special damages (comprising Tshs. 269,000,000/= refund and Tshs. 72,000,000/= mesne profits). d. The plaintiff is also entitled to the payment of punitive da mages of Tshs. 100,000,000/=. e. That the plaintiff is entitled to the payment of general damages , to the tun e of Tsh. 50,000,000/= .

10 f. She is also entitled to the payment of interest at 12 % decretal rate on the above sums from the date of decree until payment i n full. g. That the defendants shall bear the costs of this suit. I t is so ordered. Dated and delivered at Sumbawanga, this 09 th day of June, 2026 T.M. MWENEMPAZI JUDGE