Rubama, J.: By Tender No. 116 of 1987 for the sale of Elephant Ivory appearing in I the Daily News dated 9th February,
1988, the Secretary of the Central Tender Board on behalf of the government of the A United Republic of Tanzania invited tenders from potential authorised buyers for the purchase of "Elephant Ivory of approximately 13 Tons".
The tenderers were told that the Ivory for sale was available for inspection in the Ivory B Room, Dar es Salaam. Details on whom to contact to gain access to the Ivory Room and the allowed time were provided. The tenderers were also "requested to quote prices per kilogram in US$ or any convertible foreign currency". The quotations had to be firm C and valid for acceptance by the government for at least 60 days from closing date of the tender, i.e. 11 March, 1988, at 0900 am. Further, the successful tenderer was going to be required to make full payment and collect the Ivory within 30 days from the date of award of the tender. Failure to accomplish this was going to have the effect of nullifying the award.
GBL & Associates Ltd on behalf of a Principal, M/S Tat Hing Ivory Wares Factory D submitted its tender on 10th March, 1988, a day or so before the closing date for the tender. Their tender was couched in the following terms:
We offer to buy the whole lot of Ivory at US$ 80 (eighty) per kilogram. E
PRINCIPAL CONDITION
Should our tender above become low, then we offer 10% above highest bidders' offer. F
On 13th May, 1988 the Director of Wildlife, Ministry of Lands Natural Resources and Tourism wrote to GBL & Associates Ltd referring to a conversation he (the Director of G Wildlife) had had that morning with Mr. Lugendo of the GBL & Associates Ltd he stated:
As pointed out to you, we are prepared to award your company the tender for the sale of nearly H 16.5 tons of ivory at a price of US$ 154/kg of mixed or ungraded ivory. This price is arrived at as follows:
i. The highest bid in the tender advertised on 19th and 11th March, 1988 was for US$ I 140 (US$ one hundred and forty).
ii. In your quotation for the same tender, you offered US$ 80 or 10% over and above the A highest bidder.
iii. Since your quotation for US$ 80 was far too low, we opted for your second quotation (i.e. 10% above the highest bid, i.e. US$ 140. And 10% of US$ 140 = 154). B
The purpose of this letter is to seek your official confirmation that if you are finally awarded the tender for the sale of nearly 16.5 tons of ivory you will be able to pay US$ 154 per kilo of mixed ivory. We need your confirmation within seven days upon receipt of this letter. C
GBL & Associates Ltd, wrote to the Director of Wildlife on the same day, i.e. 13th May, 1988, confirming that if finally awarded the tender for the sale of nearly 16.5 tons of ivory, they would pay US$ 154 per kilo of mixed ivory. No doubt following receipt of D the confirmation of sale price per kg. from GBL & Associates Ltd., on 19th May, 1988 the Director of Wildlife directly communicated with the plaintiff's Principal in Hong Kong copying the letter to the plaintiff. The Director of Wildlife stated: E
This is to confirm that Messrs GBL Associates Ltd. of P.O. Box 3154, Dar es Salaam, Tanzania, are the winners of the recent Government tender for the sale of nearly 16.5 tons of mixed ivory. F
We also confirm that the ivory will be accompanied by relevant CITES documents which will only be released after the ivory has been paid for in full.
No mention of within what time that payment for the ivory had to be effected. The G Acting Director of Wildlife did, however, address the Managing Director of GBL & Associates Ltd. on the time within which payment for ivory had to be made. In his letter dated 28th May, 1988, he stated: H
I have the pleasure to inform you that you have been awarded the said tender under the following conditions:
(a) That you will pay US$ 154.- per kg without subjecting the lot to any grading. I
(b) That you are ready to effect the total payment of the
16.538 tons of elephant tusks at once, into our Bank Account within a period of one A week from the date of this letter.
The condition on payment schedule was objected to by Mr. Lugendo on the very day, B i.e. 28th May, 1988. He maintained that the Tender regulation under which they had been operating had provided that payment for the purchased ivory had to be effected within 30 and not 7 days. He called upon the Ag. Director of Wildlife to honour his own tender regulations. On the same day, Mr. Lugendo also communicated by phone with C the boss of the Acting Director of Wildlife, i.e. the Principal Secretary, Ministry of Lands, Natural Resources & Tourism. He confirmed this conversation in a letter addressed to the Principal Secretary. He stated:
Please refer to our telephone conversation of this morning with our Mr. Lugendo and we wish D to know your account number and where in Europe or anywhere and name of your Bankers so that our Principal in Paris and Hong Kong can send the money in respect of the purchase of the ivory which you have advised us we have won on behalf of our Principals. Without this E information, we cannot arrange for payment.
On 14th June, 1988, Mr. Lugendo in two letters addressed to the Director of Wildlife one of which was copied to the Principal Secretary of the Ministry of Lands, Natural F Resources and Tourism presses for the same information he had sought from the Principal Secretary on 28th May, 1988, i.e. where his Principal was to effect payment for the 16.538 tons of elephant tusks. The response to these letters was a letter dated 22nd June, 1988, addressed to Mr. Lugendo from the Director of Wildlife cancelling the G award of the tender number 116 for the purchase of 16.538 tons of elephant tusks. The second paragraph of that letter reads:
I wish to inform you that a decision has been taken by the Government to cancel the award of H the tender number 116 to your firm for the purchase of 16.538 tons of elephant tusks. Our letter No. GWC.5/73/315 dated 28th May, 1988, addressed to you in which you were awarded the tender is, therefore, withdrawn. I
Following this communication GBL & Associates Ltd filed a suit against the defendants A seeking the following orders.
(i) A Declaration that the government Tender award for 16.538 tons of ivory, the subject matter of this suit, is still valid and that the cancellation of the same by the 1st and 2nd defendant is null and void. B
(ii) An order that the 1st and 2nd defendants issue to the Plaintiff and/or its Principal, M/S Tat High Ivory Wares Factory Cites certificates and all necessary permits to enable the plaintiff and/or its principal to export the ivory from Tanzania. C
(iii) Costs of this suit.
(iv) Any other relief which the court will deem fit to grant.
I wish to first state that this suit was properly filed in that consent of the Attorney General D was duly obtained for purpose of suing the government. The 1st and 2nd defendants have been included herein since they were the officers that had been involved in this case.
Following completion of the pleadings, this case was fixed for hearing on 20th July, 1989 E before my brother judge (Kyando, J.). All the parties were aware of this hearing date. However, the defendants without assigning any reason absented themselves. The learned counsel for the plaintiff prayed for permission to prove his case ex parte by affidavit. This prayer was granted. An Affidavit was duly filed on 11th August, 1989 as ordered F by the Court (Kyando, J). The case eventually came for hearing on 15th September, 1989 when learned counsel for the plaintiff, Dr. Lamwai, prayed for judgment. Mr. Ihema, learned counsel for the Defendants, also appeared on this day. He did not on the G day have a right of audience as the case was coming up for an ex parte hearing.
In the affidavit sworn by the Managing Director of GBL & Associates Ltd. in compliance with this Court's order of 20th July, 1989 (Kyando, J.), the deponent submits that once the tender was made on the basis of the conditions stipulated in the H advertisement that had appeared on the Daily News on 9th February, 1988, namely, the period within which to pay to be 30 days, it was not open to the 1st defendant to modify and shorten the said period, especially subsequent to the 1st defendant declaring the plaintiff the winner on the 19th of May, 1988, and the 1st defendant's letter dated 28th I May, 1988 did not have any effect on the original terms of payment
as stipulated in the original agreement. Further noting that on the 22nd day of June, A 1988, the 1st defendant, vide his letter of even date, unilaterally cancelled the award of the tender, the deponent submits that this unilateral action by the 1st defendant was illegal and in breach of a contract which already existed.
Let us revisit the advertisement by the Secretary of the Central Tender Board calling for B tenders from authorised buyers of Elephant Ivory. The tenderers were "requested to quote prices per kilogram in US$ or any convertible foreign currency" and further informed that: C
(a) Quotations be firm and valid for acceptance by the government for at least 60 days from closing date of the tender, i.e. 11th March, 1988, at 9.00 a.a. and that
(b) The successful tenderer would be required to make full payment and collect the Ivory D within 30 days from the date of award of the tender. Failure to comply with this requirement was going to nullify the award.
Were the Tender Regulations operative in respect of Tender No. 116 for the purchase E of 16.538 tons of Elephant Tusks those detailed by the Secretary to the Central Tender Board's advertisement appearing in the Daily News of 9th February, 1988? This court accepts the plaintiff's submission that the tender had stipulated in the advertisement that had appeared on the Daily News on 9th February, 1988. F
The plaintiff on behalf of M/S TAT Hing Ivory Wared Factory of the United Kingdom had quoted the price of the highest bidder plus 10% thereof as its tender price. This quotation was in a convertible currency, i.e. American Dollars. From the exchange of letters between the Director of Wildlife and the Managing director of GBL & Associates G Ltd (both dated 13/5/88) fully reproduced above, it is clear that the quotation by GBL & Associates Ltd had remained firm and valid for the acceptance of the United Republic of Tanzania for more than 60 days from the closing date of the tender, i.e. 11/3/1988 at H 9.00 am. The 1st defendant, vide his letter dated 19th May, 1988 addressed to the plaintiff accepted the plaintiff offer and required the payment of US$ 154.00 per kilogram.
What then was the legal status of the advertisement by the Secretary of the Central Tender Board that had appeared on the Daily News on 9th February, 1988, calling for I the purchase of "Elephant Ivory of approximately 13 tons"? Was it an "invitation
to Treat" or an "Offer"? Was the Central Tender Board obliged to accept the highest A bid? The call for tenders by the Secretary of the Central Tender Board on behalf of the Government of the United Republic of Tanzania was an "Invitation to Treat". These tenderers' bids were the "offers". Each of the tenderer offered to buy at his quoted price and it was upon the Government of the United Republic of Tanzania to accept an offer B or reject. The substance of the Director of Wildlife's letter dated 13th May, 1988 to GBL & Associates Ltd., seeking confirmation from GBL & Associates Ltd. on acceptability of the purchase price of US$ 154 per kilogram of ivory testifies to this very fact. In this letter, GBL & Associated Ltd were being asked if they still stood by their C tender to pay "10% above the highest bidder's offer." In this respect, the Central Tender Board was not obliged to accept the highest bid or any of the tenders for that matter. The highest bid need not necessarily be the best to accept. The Central Tender Board after opening tenders moves to evaluate them and it is the highest evaluated tender which D need not be the highest bid that is accepted. Going by the various communications between the Director of Wildlife and the Managing Director of GBL & Associates Ltd., the Director of Wildlife and the plaintiff's Principal and also between the Principal E Secretary, Ministry of Lands, Natural Resources and Tourism and the Managing Director of GBL & Associates Ltd., it is clear that the tender by the plaintiff was the highest evaluated tender and that it was the offer that the government had accepted vide its letter by the Director of Wildlife dated 19th May, 1988 to the plaintiff's Principal in F Hong Kong which was copied to the GBL & Associates Ltd. Dar es Salaam. The 1st defendant, ignoring the legal effect his letter to the plaintiff's Principal has had, again directly wrote to the plaintiff on 28th May, 1988, stating that the tender for the purchase of Elephant Tusks had been offered to the plaintiff. By the 1st defendant's letter dated G 19th May, 1988 to the plaintiff's principal in Hong Kong, the 1st defendant had created a legally binding contract between the government of the United Republic of Tanzania and the plaintiff's Principal. This legal status between the two parties was again affirmed by the 1st defendant's letter dated 28th May, 1988, addressed to the Managing H Director, GBL & Associates Ltd. In this situation, what is the effect of the United Republic of Tanzania's action "to cancel the award of the tender No. 116 to the plaintiff for the purchase of 16.538 tons of Elephant Tusks" communication to the plaintiff vide the 1st defendant's letter dated 22nd June, 1988? I
As the Tender Regulations operative in respect to Tender No.
116 for the purchase of 16.538 tons of Elephant Tusks those detailed by the Secretary A of the Central Tender Board's advertisement appearing in the Daily News of 9th February, 1988 a successful tenderer was going to be required to make full payment and collect the Ivory within 30 days from the date of award of the tender. Failure to B accomplish this was going to have the effect of nullifying the award. "Within 30 days" here does not apportion the time within which to make payment on award of the tender and the time within which to collect the elephant tusks. The successful tenderer could, if he so chose, make payment on the last day allocated, i.e. 30 days and collect the elephant tusks on the same day. C
It is clear that the 1st defendant had not acted under the above mentioned regulation. There is no reference to non-payment for the ivory or failure to collect the bought ivory within 30 days from the date of award of the tender. If the government had proceeded D under this regulation, the award of the tender would have been nullified. This is not the case in the instant case. Here we are told "that a decision has been taken by the government to cancel the award of the tender No. 116 ... for the purchase of 16.538 tons of elephant tusks". No reason is assigned. The plaintiff was left to speculate whether E that government reaction was out of the objection raised by the Managing Director, GBL & Associates Ltd. that the tender regulations under which they were operating required payment within 30 and not 7 days as demanded by the Director of Wildlife. For whatever reason the government had thus acted, this chief accepts the plaintiff's F submission that the tender had been awarded to the plaintiff on the basis of the tender conditions stipulated in the advertisement that had appeared on the Daily News on 9th February, 1988, namely, the period within which to pay to be 30 days. It was not open to the 1st defendant to modify and shorten the said period of 30 days subsequent to the G 1st defendant declaring the plaintiff the winner on the 19th day of May, 1988. As noted above, there was a binding contract between the defendants and the plaintiffs on the 19th of May, 1988 and the 1st defendant's letter dated 28th May, 1988 could not have any effect on the original terms of payment as stipulated in the original agreement. HThe 1st defendant's unilateral cancellation of the tender award vide his letter of 22nd June, 1988 to the plaintiff was illegal and in breach of a contract which already existed. On the materials before this court, I further find that in consequence of the cancellation referred above, the plaintiff and its Principal have suffered loss in that they had already I opened letters of credit in favour of the defendants and that payment had been
duly made and the contract thus firmly concluded. The defendants could not back out of A it at will.
In view of the above, I enter judgment for the plaintiff with costs as prayed: B
(i) It is hereby declared that the Government Tender award for 16.538 tons of ivory, the subject matter of this suit, is still valid and that the cancellation of the same by the 1st and 2nd defendants is null and void.
(ii) It is ordered that the 1st and 2nd defendants issue to the plaintiff and/or its Principal, C M/S TAT Hing Ivory Wares Factory Cites certificates and all necessary permits to enable the plaintiff and/or its principal to export the ivory from Tanzania.
(iii) Costs of this suit. D
Lastly, I find it necessary to state the obvious that the law involved in this case is extremely simple. Appreciating that, I must express utter astonishment on how so straight forward a matter could be left to get out of hand leading to the necessity of a government being taken to court. Worse still, the action of the principal actors on behalf of the E government have been contradictory and unilateral and in complete disregard to the adverse repercussions in its future dealings in international trade. Consistency, steadfastness and fairness are some of the many qualities and a democratically elected F government as the one being sued is must strive to have in its dealings. A government that chooses when to abide by a freely entered contract does so at extreme costs to its reputation or standing. This court decries this sorry development.
G Order accordingly.
A
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