CIVIL CASE 199 OF 2022 AISHA VS AKIBA Final

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 199 OF 2022 AISHA ABUKAR HASSAN……......……….……………………………. PLAINTIFF VERSUS AKIBA COMMERCIAL BANK PLC …………….……………………….DEFENDANT JUDGMENT 09th August & 07th November, 2024 BWEGOGE, J.: The plaintiff herein above named commenced civil proceedings against the defendant (Akiba Commercial Bank) claiming damages/compensation to the tune of TZS 355,000,000/= for negligence and, or detinue. In particular, the plaintiff claims for payment of TZS. 250,000,000/= being compensation arising out of loss of business opportunity founded on the defendant’s failure to timely release of Certificate of Title No. 85753, Plot No. 2136, Block H, Tegeta, Kinondoni Municipality, Dar es Salaam to 1 enable the plaintiff sell the said property and payment of TZS. 100,000,000/ = being compensation for loss of anticipated income from the cosmetics business that the plaintiff runs and intended to expand to maximize profit, among others. Before delving into the substance of the dispute between the parties hereto, I find it pertinent to highlight the factual matrix of this case based on the pleadings filed herein and evidence adduced by the parties hereto as follows: The plaintiff herein is a businesswoman engaged in the importation and sale of cosmetic products. The same owns the landed property with a certificate of title No. 85753, on Plot No. 2136, Block H, Tegeta, Kinondoni Municipality, in Dar es Salaam. In a bid to improve her business, she sought and obtained a loan from the defendant on 4th November, 2021 to the tune of TZS 30,000,000/. To secure the loan, the plaintiff mortgaged her landed property, among other collaterals; and duly surrendered the certificate of title mentioned above to the defendant. The loan was to be repaid within 18 months. Before the expiry of the payment schedule, the plaintiff changed her mind and sought to expand her capital by other means. Hence, she sought and obtained a loan from another financial institution and repaid the defendant’s loan on 9th September 2022, the 10th month of the scheduled 2 payment period. On 22nd September, 2022 the plaintiff demanded an immediate release of her title deed from the defendant. Allegedly, the plaintiff didn’t heed her demand. Then the plaintiff engaged her lawyer who issued a formal demand notice to the defendant on 7th October 2022 for immediate release of the respective document held as collateral by the same. The defendant responded on 26th October, 2022 admitting misplacement of the plaintiff’s certificate of title. It is the plaintiff’s case that she had discharged her contractual obligation to repay the loan intending to sell her landed property for TZS 250,000,000/= and expand her business, expecting super profit. In such anticipation, the plaintiff paid TZS 12,000,000/= to secure business premises in Kariakoo. However, the failure of the defendant to release her title deed prevented the intended sale todate; hence her intended business planning was never materialised. Likewise, it is the plaintiff’s case that she anticipated earning a profit of TZS 100,000,000/ = from the envisaged cosmetics business; however, her expectation ended in futile on account of the defendant’s failure to release her title deed. 3 In the same vein, the plaintiff charged that the defendant acted with gross negligence in handling her title deed; hence, exposing her to untold financial detriment, both specific and general damages. Hence, this suit. Contrarywise, it is the defendant’s case that the certificate of title was not unjustifiably withheld as alleged by the plaintiff. That before the final release of the document, the defendant had to follow several procedures; hence, the release is not immediate as the process usually takes several weeks to have the document released from the Head Office. However, the defendant admitted that the plaintiff’s certificate of title was misplaced during the existence of the loan. And the defendant had made diligent and strenuous efforts to trace the document but the effort ended in vain. Hence, the defendant had sought and obtained a police loss report to begin the procedure for applying for a duplicate certificate from the Registrar of Land Department. Otherwise, the defendant refuted the allegation of negligence and purported damages suffered by the plaintiff and called upon the plaintiff to cooperate with the defendant in seeking the duplicate certificate of title deed from the Land Département. Hence, the defendant prayed for the 4 dismissal of this suit in its entirety. The plaintiff herein was represented by Mr Omary Msemo, learned advocate; and the defendant had the services of Ms. Catherine Tibasana, learned advocate. At the commencement of this case, the following issues were proposed by the parties hereto and certified by this court: 1. Whether the defendant lost/misplaced the certificate of title No. 85753, Plot No. 2136, Block H, Tegeta, Kinondoni Municipality, Dar es Salaam. 2. (If the above is in affirmative then) Whether the plaintiff suffered loss for misplacement of the title deed above mentioned; and to what extent. 3. Reliefs to which parties hereto are entitled to. Now, I shall delve into the aforementioned issues sequentially commencing with the 1st issue; whether the defendant lost/misplaced the title deed in question. This issue need not detain me. The defence filed herein and the testimony of one John Temu (DW1) speaks volumes in that the document in question has been misplaced and efforts to locate the same proved futile. The reply to the demand notice dated 26th October, 2022 (exhibit D3); loss report dated 15th November, 2022 (exhibit D4) and notice of loss of respective title deed in Government 5 Gazette (exhibit D5) of 17th November, 2022 likewise, speaks volumes of the fact that the document in question has been lost/missing. As the plaint herein alleges negligence on the part of the defendant for misplacing the title deed in question and the plaintiff (PW1) in so many words alleged negligence on the part of the defendant, of which the defendant refutes, the plaintiff was obliged not only to establish the alleged loss/misplacement of the document but also the alleged negligence. Hence, the plaintiff has a burden to prove (on the balance of probability) that the defendant herein owed her a duty of care; the same breached such duty; and the alleged breach caused her to suffer injury/damages [Winfred Mkumbwa vs. SBC Tanzania Ltd (Civil Appeal No. 150 of 2018) [2019] TZCA 685; and Hussein Ally Kandoro vs KISMA Transport Company Limited (Civil Appeal No. 223 of 2020) [2024] TZCA 505]. In this respect, I find it pertinent to revisit the testimony of DW1 herein in verbatim as under: “I would agree that the bank officer who handled the document might have failed to discharge his duty diligently leading to the misplacement. We owe a duty of care to our clients who pledge their title deeds as security to the bank. I cannot say that the bank officer who misplaced the document in question acted professionally.“ [Emphasis supplied]. 6 DW1 didn’t enlighten this court on the circumstances upon which the respective document was lost/misplaced. Suffice it to mention that DW1 opined that whoever handled the document didn’t act diligently and, or professionally. This assertion supports the plaintiff’s allegation that the defendant herein acted negligently in handling her respective document. Thus, given the foregoing, I would answer the 1st issue in the affirmative. Now, I proceed to tackle the 2nd and pertinent issue in this case; whether the plaintiff suffered loss for misplacement of the title deed above mentioned and to what extent. In determining this question, I would revert to the testimony of the plaintiff (PW1) herein in extenso. In substance, PW1 deponed thus: She is the businesswoman with a taxpayer identification certificate and business licence (exhibit P1 collectively). She resolved to expand her business; hence, on 4th November 2021 she applied and duly granted a loan Facility of TZS 30, 000, 000/= from the defendant payable within a period of 18 months whereas her title deed aforementioned was pledged as collateral to secure the loan. The letter of offer dated 4th November, 2021, and bank account statement were tendered and admitted in evidence as exhibit P2 collectively. 7 Before the expiration of the payment schedule, the defendant resolved to expand her business. To acquire the capital, she sought to dispose of her landed property whose certificate of title was pledged as security to secure the loan. The buyer namely, Hemedi Sifuni Mashombo showed interest in purchasing the property for agreed purchase price of TZS 250,000,000/. Consequently, the sale agreement, as well as requisite Land Forms No. 29, 30 and 35, were prepared in advance awaiting execution upon completion of discharge of the loan and eventual release of the certificate of title by the defendant. To effect the sale agreement, PW1 faithfully repaid the loan owed by the defendant. Consequently, the loan closure letter dated 7th October, 2022 (exhibit P3) was issued to the PW1. In a bid to ascertain the payment, PW1 tendered the Bank Statement which was admitted in evidence as exhibit P3. PW1 enlightened this court that to fully repay the loan prior to the scheduled period, she sought and obtained a loan of TZS. 10, 000, 000/= from the financial institution namely, Enterprise Finance Limited. Unfortunately, the loan agreement and transfer of fund documents in respect of the loan advanced to PW1 were not admitted in evidence on technical ground. In the same vein, PW1 told this court that she had utilised the later loan 8 and her savings from her business earnings and paid TZS 19, 000, 000/= to the defendant herein to clear the outstanding loan for the release of her certificate of title. Further PW1 enlightened this court that she anticipated injecting TZS 200, 000, 000/= from the proceeds of sale of her property to further her cosmetics business, targeting the holiday season (November-December- January 2022) when sales spike to realize profit. And to pave a conducive environment for her envisaged business, on 8th September, 2022 PW1 executed a contract with one Hubert Edwin Maleko, a landlord at Kariakoo, Dar es Salaam, for an annual lease of the commercial premises for a contract price of TZS 12, 000, 000/. She was likewise, obliged to pay TZS 5, 000, 000/= as a non-refundable advance rent payment which she duly paid, having borrowed the money from one Gabriel Exaud Mmari (PW2), for the commission of TZS 2,000,000/. The rental period was to officially commence on 9th September, 2022. Likewise, PW1 asserted that had her business plans gone as carefully planned, she would have realized a profit to the tune of TZS 100, 000, 000/. In concluding her testimony, PW1 alleged that, despite her efforts, all her business endeavours ended in futile, as her demand of immediate release of her title deed from the defendant was not heeded. It was not until she 9 engaged the lawyer that she was informed by the defendant that her title deed was misplaced/missing. The demand letter/notice dated 22nd September, 2022 and 7th of October, 2022 authored by Brick House Law Associates were tendered and admitted in evidence as exhibits P5 and P6 respectively. On the above accounts, PW1 alleged the defendant for gross negligence and prayed for pleaded damages. As aforementioned, though the defendant admits to misplacement of the document in question, vehemently refutes the purported damages suffered. Now, to answer the 1st limb of the 2nd issue; whether the plaintiff suffered any damages, I have the following observations: One, the plaintiff’s certificate of title of her landed property/title deed was pledged as security for loan sought and obtained from the defendant; hence, the plaintiff was entitled to regain the document from the defendant upon the same discharging her contractual obligation within a reasonable period. Two, it is an uncontroverted fact that the plaintiff had discharged her contractual obligation to repay the loan prior to the scheduled period for repayment. The plaintiff in so many words deponed that she intended to sell her house to implement her business endeavour; hence, she was 10 constrained to find alternative fund by way of taking loan from another financial institution to make early repayment of the loan in a bid to retain her title deed for effecting the sale of her property. This fact remains uncontroverted; and I have no cogent ground not to believe the plaintiff in this respect. Three, it is also undisputed fact that the plaintiff herein has not yet regained her title deed for more than two years now since she discharged her contractual obligation with the defendant herein, for which she laments that she has suffered financial loss on account of the defendant’s failure to release the title deed pledged to secure the loan. Based on the above observations, it is apparent that the plaintiff herein has suffered loss, both materially and mentally. I would answer the 1st limb of the 2nd issue in the affirmative. Pertaining to the 2nd limb of the 2nd issue as to what extent the plaintiff has suffered loss, I am of the settled view that though the plaintiff claimed to have suffered both actual and general damages, none of the actual damages pleaded under items (i), (ii), (iii) and (iv) of the reliefs section were specifically substantiated. Hence, the extent of the alleged financial harm suffered cannot be quantified. I now embark on determining the last and final issue, as to reliefs the parties hereto are entitled. As aforementioned, items (i), (ii), (iii) and (iv) 11 of the reliefs prayed for by the plaintiff are actual damages. For clarity, I find it pertinent to mention the actual damages prayed for by the plaintiff as hereunder rephrased: i. For payment of a total of TZS 250,000,000/= being compensation arising out of loss of business opportunity founded on the failure by the defendant to timely release the title deed to enable the same to sell the property to a 3rd party for the stated sum, thereby defeating the said sale. ii. For payment of compensation to the tune of TZS 5,000,000/= being loss of advance payments that the plaintiff irrevocably paid to a 3rd party (landlord) one Plubert Edwin Maleko, to secure business premises at Stall No. 55, Shop No. 29, Mchikichi and Congo Streets, Kariakoo, Dar es Salaam in anticipation of a timely release of title deed and consequential envisaged sale of the property. iii. For payment of compensation at the rate of TZS 1,000,000/= per month being the monthly commission of the loan to the tune of TZS 5,000,000/= sought and obtained by the plaintiff from one Gabriel Exaud Mmari for payment of rent in respect of commercial premises mentioned above. iv. For payment of compensation to the tune of TZS 100,000,000/= being the loss of anticipated income from the cosmetics business that the plaintiff intended to undertake at a large scale. The above-mentioned reliefs prayed by the plaintiff, being actual damages, were required to be specifically proved. See the cases: Antony Ngoo and Another vs. Kitinda Kimaro, Civil Appeal No. 25 of 2014 (unreported); Ami Tanzania Limited vs Prosper Joseph Msele (Civil Appeal No. 159 of 2020) [2021] TZCA 668 and Ibrahim 12 Twahili Kusundwa & Another vs CRDB Bank PLC & Others (Civil Appeal No. 194 of 2021) [2024] TZCA 7 in this respect. I would reiterate the observation made earlier that the plaintiff failed to prove the above specific claims to the standard set by law. Suffice it to say that though I believe the plaintiff in that she intended to dispose of her property, no convincing evidence for proof of the envisaged sale of the house for the price of TZS 250, 000, 000/= was brought to the attention of this court. Likewise, no tacit evidence was brought to the attention of this court to prove the claims that the plaintiff paid rent to the tune of TZS 12,00,000/= for commercial premises at Kariakoo for the envisaged business and purported envisaged profit to the tune of TZS 100,000,000/. In the same vein, the proof that the plaintiff borrowed money for her husband (PW2) to the tune of TZS 5,000,000/= for the commission of TZS 1,000,000/= per month is wanting. Thus, I decline to grant the specific reliefs prayed by the plaintiff under items (i), (ii), (iii) and (iv). Under item (iv), the plaintiff prayed for payment of interest in respect of the reliefs prayed for under items (i), (ii), (iii) and (iv) afore-mentioned at the rate of 21% per annum. As I declined to grant the respective reliefs, the prayer for payment of interest on the commercial rate is untenable. The prayer under item (v) is for an order of the immediate release of 13 Certificate of Title No. 85753, Plot No. 2136, Block H, Tegeta, Kinondoni Municipality, Dar es Salaam. This prayer I am obliged to grant in the interest of justice. The defendant is hereby ordered to immediately facilitate the issuance of a duplicate title deed respecting the landed property pledged as security for a loan which the plaintiff duly repaid, with immediate effect. With respect to prayer under item (vi), the plaintiff prayed for general damages as assessed by this Court for the detinue committed by the defendant in unlawfully withholding the title deed in question having the plaintiff fully discharged her contractual obligation. The purpose for payment of damages (so far as a monetary award can do it) is to put the claimant back into the same financial position as he would have been in but for the alleged wrongdoing. This principle is better explained in the case of Tanzania Saruji Corporation vs. African Marble Company Limited [2004] T.L.R 155. The court held thus: "General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of; the defendant's wrongdoing must; therefore, have 14 been cause, if not the sole or a particularly significant, cause of damage. It is the law of this land that general damages are awarded at the discretion of the court after taking into consideration the evidence adduced by the parties to the case; the circumstances of the case; and upon the plaintiff demonstrating that he/she suffered materially or mentally on account of the wrongful act of the wrongdoer. See the cases; Ibrahim Twahili Kusundwa & Another vs. CRDB Bank PLC & Others (Civil Appeal No. 194 of 2021); Jafari Hussein Sinai and Another vs. Silver General Distributors Limited, Civil Appeal No. 271 of 2017; and Alfred Fundi vs. Geled Mango and Two Others, Civil Appeal No. 49 of 2017. In this case, it has been found that the defendant had a corresponding contractual duty to release the title deed pledged by the plaintiff as security for a loan advanced by the same upon the plaintiff discharging her contractual duty. Likewise, it has been established that the defendant acted negligently in misplacing the respective title deed, to the detriment of the plaintiff. Thus, the plaintiff having failed to substantiate the specific 15 damages claimed herein, I find the prayer for payment of general damages with substance. Taking into consideration the following facts; first, the plaintiff hastily discharged her contractual obligation by repaying the loan sought and obtained from the defendant for implementing her business endeavour, of which she has failed to realize; secondly, the time expired (2 years now) since the plaintiff repaid the loan but failed to regain her title deed; and thirdly, psychological torture and aguish of mind she has undergone, I am of the considered opinion that the plaintiff is entitled to payment of general damages by the defendant. And, considering the circumstances of this case generally, I am of the settled view that general damages to the tune of TZS 35,000,000/= shall meet the justice of this case. The relief prayed for under item (vii) is for payment of interest at the court rate on the decretal amount from the date of judgment to the date of full and final payment. Legally, the plaintiff herein is entitled grant of the interest at the court rate on the decretal sum. This prayer is hereby granted. The court interest of 12% per annum is hereby imposed on the decretal amount from the date of judgment to the date of full satisfaction. 16 Lastly, the plaintiff prayed for the costs of this suit. The successful party in the case is entitled to payment of litigation costs in terms of the provision of section 30(2) of the CPC unless reasons to the contrary are provided. This prayer is likewise granted. In summary therefore, I find that the plaintiff has substantiated her case in part. I hereby enter judgment for the plaintiff to the extent mentioned above. So ordered. DATED at DAR ES SALAAM this 07th November, 2024 O. F. BWEGOGE JUDGE 17