Alex Busengwa Ndalawa v

IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY

AT IJC MOROGORO CIVIL APPEAL NO.32 OF 2023 (Originating from Civil Case No 20 of 2022 before Honorable B.L Saningo, RM) ALEX BUSENG’WA NDALAWA…………...…………….……. APPELLANT

VERSUS CRDB BANK PLC …………………………............……. 1ST RESPONDENT

MEM AUCTIONEERS AND GENERAL COURT BROKERS LTD ……………………………….2ND RESPONDENT

JUDGEMENT 21st of May, 2024 MANSOOR, J On 08th July, 2015, the appellant herein entered into a credit facility agreement with the 1st respondent, herein after “the bank” wherein she was advanced a sum of TZS 40,000,000. Two years later, the appellant managed to secure restructuring and merging of term loans of Tshs 18,252,699.62 from the bank whereas as a security for the loan, the appellant mortgaged his house in Plot No. IFK/SQ/021 at Mkuya Street, Ifakara Ward within Morogoro Region hereinafter “the mortgaged property”. From what is gleaned from the 1st respondent’s pleadings at the District Court, the appellant failed to honour his contractual obligations, hence the bank exercised her rights under the loan facility and instructed the 2nd 1|Page respondent to process the sale of the mortgaged property. Upon being made aware of the respondents’ intended actions, the appellant rushed to the District Court of Kilombero and instituted a Civil Case No 32 of 2018 seeking for the following orders against the respondents; 1. A declaration against the respondent’s intention to dispose the appellant’s house; 2. A declaration that the 1st respondent has breached the terms of the loan facility agreement; 3. Costs of the suit; 4. Any other relief the court will deem fit and just to grant. After hearing both parties, on 24th August 2020, the District Court (Hon Khamsin-SRM) deliberated

that the respondents’ intentions to dispose of the mortgaged house were illegal, and further that the 1st respondent had breached the loan facility contract. In his plaint, the appellant averred that, upon the delivery of the judgment, he paid an amount of 12,006,000/= to the bank and thereafter wrote a letter dated 20th July 2022 requesting for the release of the mortgaged property. As it appears, the 1st respondent had not responded in respect of the said 2|Page request, the omission which prompted the appellant to once again initiate a suit registered as Civil case No 20 of 2022 against the respondents at the District Court of Kilombero where he claimed for an order for release of the original Resident License of the mortgaged property, general damages at the tune of Tshs 10,000,000/=, costs of the suit and any other reliefs the court would have deemed fit and just to grant. At the culmination of the trial, the District Court (Hon Saning’o, RM), made a finding that the 1st respondent’s withholding of the Residential Licence of the mortgaged house was justifiable and hence dismissed the appellant’s suit. Aggrieved, the appellant is now before this court seeking to assail the said decision based on the following grounds of Appeal; 1. That the Honourable Trial Court erred in law and in fact by failing to scrutinize the Appellant's personal account bank statements admitted as 'PE2' and the bank receipts admitted as PE3' adduced by the Appellant as evidence during the hearing of the matter which shows that the Appellant has already paid the loan which was secured by the Appellant thereto.

2. That the Honourable Trial Court erred in law and fact in blessing the hold of the original Residential License No. IFK/SO/021 of the 3|Page Appellant's house situated at Mkuya Street Ifakara within Kilombero District despite the evidence of the discharge of his obligation as to the loan secured by the Appellant from the Respondent thereto.

3. That the Honourable Trial Court erred in law and in fact by failing to evaluate the documentary evidence adduced by the Appellant and the Respondent on the discharge of the loan secured by the Appellant from the Respondent thereto.

4. That the Honourable Trial Court erred in law and in fact by failing to contemplate the legal position of the Power of Attorney issued to Mr. John Kabusimbe Mahona.

5. That the Honourable Trial Court erred in law in giving the orders to the 1st Respondent as if there was a counter claim made by the Respondent against the Appellant. During the hearing of the appeal which was conducted by way of written submissions, the Learned Advocate Augustine Kusalika appeared for the 4|Page appellant while Mr. Brian Odara, also Learned Advocate appeared for the 1st respondent. On her part, the 2nd respondent neither entered appearance nor filed the written submissions against the appeal, as such, the matter proceeded exparte against him. On the first ground of Appeal, Mr Kusalika contended that, the Appellant has discharged his obligation of the payment of the loan advanced to him by the 1st respondent as directed by the District Court in Civil Case No. 32 of 2018, and also as reflected in Exhibits PE2, and PE3 issued by the 1st Respondent to the Appellant. As to the District court’s findings blessing the withholding of the appellant’s Residential Licence of the mortgaged property, the learned counsel averred that, so long as it has been established clearly that the Appellant was no longer indebted by the 1st respondent and through Exhibit PEl, PE2 and PE3 then the court erred in its respective finding as regards to the matter. As such, he prayed for this ground of Appeal be allowed by ordering the 1st Respondent’s release of the said Residential

License. Submitting in support of the third ground, it was Mr Kusalika’s arguments that the Appellant and the 1st Respondent through Civil Case No. 32 of 2018 5|Page agreed for the appellant to pay the loan facility at the rate of Tsh. 678,366/= per month of which the Appellant through Exhibit PE2 and PE3 discharged the obligation having managed to pay the total of 12,0006,000/=. The counsel submitted further that although the 1st Respondent has issued two bank statements of the Appellant's personal account where Exhibits PE2 shows that the Appellant is not indebted by the 1st Respondent and whereas Exhibit DE2 from the same office of the 1st Respondent indicates that the Appellant is indebted by the 1st Respondent, in his view, the later has been issued as an afterthought. He, therefore, prayed that this ground of appeal be allowed, as there was failure by the Trial Court to evaluate the documentary evidence adduced by the 1st Respondent. The documentary evidence adduced by the 1st respondent shows that the appellant has discharged his obligations and has paid off all the loan amount. As regards to the appellant’s complaint on the fourth ground of Appeal, the Counsel for the appellant argues that, the Court erred in law and in fact by failing to contemplate the legal position of the Power of Attorney issued to Mr. John Kabusimbe Mahona. To fortify his arguments, he cited the

case of DAVID RAUBEN MWANGWALE (By virtue of special power of Attorney Versus KAPITAO MAGALLA, Land Revision No. 6 OF 2021 6|Page as quoted the case of Hassan Marare Magori & Juma Marae & 4 others (HCT) (1992) (unreported) where it was stated that; " where the person is party to a case is unable to pursue the case himself or herself for reasons of old age, sickness or where such party is dumb or deaf, or when the party to the proceedings is away in a foreign country and getting such party back would be tedious or expensive. His lordship added that the donor of the power of attorney must be sure the donee of the power of attorney would step into donor's shoes and that the donor of the power of attorney must accept all the consequences that may arise in the course of the litigation. Lastly his lord ship said that the grant of the power of attorney should not be made subject to remuneration " As regards to the fifth ground, the Counsel made a reference to the holding in the case of Palm Beach Hospitality Limited versus Naila Majid Jiddawi and 2 other, Civil Case No. 19 OF 2021, and told the court that according to the written statement of defence filed by the 1st respondent at the Trial Court, there was no counter claim made to the suit lodged by the Appellant in respect of the release of the Residential Licence No. IFK/SO/021. In his views therefore, it was wrong for the trial

court to issue orders as if there was a counter claim made by the 1st respondent against the Appellant particularly on holding of the afore stated Residential License. The 7|Page appellant’s advocate concluded his arguments by urging the Court to allow the appeal, with costs. In response to the first ground of Appeal, the 1st respondent’s Counsel averred that, exhibits PE1 and PE2 that were relied upon by the Appellant as proof of his payment of TZS 12,063,000 were Bank Statements of the Appellant’s Personal Account and not the Loan Account. The Statements of the Loan Account could have portrayed the balance of the outstanding debt which was still owed. He further submitted that, the Appellant failed to prove to the court that he discharged his outstanding debt with the 1st Respondent as according to him, the appellant only paid TZS 12.063.000 out of the amount of TZS 24,420.000 which is the principal loan amount of TZS 18.252,000 plus interest of TZS 6,167,390 for 36 months as per Exhibit DE1, the loan facility letter. Submitting against the second ground, the 1st respondent cited the cases of Brown Lwaga Mwasi vs NMB and Nsombo Co Ltd Land Appeal No 73, 2021 (Reported) and Liza Nathan Mwankusye vs CRDB Bank plc, Land Appeal No 202 of 2020 which emphasized that parties are bound by the terms of their loan contract and asserted that, the first 8|Page respondent has legal rights

to recover the debt from the appellant, which stands at TZS 16,894,256. 40 as of 13rd January 2023.In fine, the respondent prayed the appeal to be dismissed with costs. Having objectively examined the trial courts’ records and parties’ submissions in relation to the grounds of Appeal, the crucial point for determination is whether the appeal is meritorious. In determination of the appeal, I will tackle the 1st, 2nd and the 3rd grounds of appeal jointly as all of them revolve on the appellant’s complaint as regards to the trial court’s failure to properly evaluate the documentary evidence. The issue which leads to evaluation of the two exhibits presented to court as evidence by the 1st respondent to see whether the appellant’s discharged his contractual obligation of payment of the loan amount advanced by the 1st respondent. Mindful of the cherished principle that the appellate court is duty bound to re-evaluate the evidence of the trial court and come up with its own independent findings. [See the case of Japan International Corporation 9|Page Agency (JICA) v. Khaki Complex Limited;Civil Appeal No. 107 of 2004 (unreported), and Standard Chartered Bank Tanzania Ltd v. National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 (unreported) to mention a few] . For instance in the later, the court of appeal observed thus; "The law is well settled that on first appeal the

Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand”. Having the above principle in mind, I have thoroughly examined all exhibits in relations to the appellant’s claims against the 1st respondent. It is undisputed, as rightly held by the trial court that, Exhibit DE1, the Loan Facility Letter issued by the bank on 15th December 2017 and signed by the appellant as proof of accepting the terms and conditions therein indicated that the appellant was given the amount of Tshs 18,252,699.62 in which under clause 1.2 of the letter, the credit facility was set to expire on December, wherein in the loan repayment chart depicted in the clause the appellant was supposed to repay the bank a total amount of Tshs 24,420,000 10 | P a g e after adding up the principal sum of Tshs 18,252,699.62/= and the interest of Tshs 6,167,390.00/= . For easy of reference, an extract of the letter reads; “this is to inform you that, the bank has agreed to grant restructuring and merging of term loans of and TZS 18,252,699 granted to you on terms and conditions provided hereunder. Approval of this term loan will lead into variation of existing loan agreement/facility letter dated 8th July 2015, whereby the bank advanced you term loans of Tshs 40,000,000 (Tanzania Shillings Forty Million

only)” On the repayment schedule, the letter, at clause 1.3 reads; “the loan inclusive of the interest thereon shall be repaid in equal monthly instalments as per the following repayment schedule.” emphasis added. On the other hand, Exhibit PE2 the personal account statements and Exhibit PE3, the payment slips relied on by the appellant could not at any rate in my view prove that he had fully paid the loan amount. For instance, what can 11 | P a g e be gathered from the statements is only proof that the bank was automatically collecting the debts at different times upon the appellant’s deposit of any amount in his bank account namely 01524911759700, ALEX BUSENG’HWA NDALAHWA. It was only the loan statement that could have provided a cogent proof that the appellant after the numerous payment automations depicted in his personal account had fully recovered the debt he stood owned by the bank. All the same, in his testimony in chief, the appellant admitted that the amount that he has already paid the bank is Tshs 12,063,000/= as gleaned at page 12 through to 13 of the typed trial court’s proceedings which reads; “the said pay slip(receipts) makes a total of Tshs. 4,263,000/= which i have deposited to the CRDB Bank. If you take an amount of Tshs. 4,263,000/= and Tshs 7,804,000/= it makes a total of Tsh. 12,063,000/= which i have deposited to CRDB Bank...up to now i

have paid/deposited the amount of Tshs 12,063,000/=. The loan advanced to me by the 1st defendant is Tshs. 11,019,541/= so up to now, i have 12 | P a g e already discharged my obligation of payment of loan advanced by the 1st defendant as directed by this court...” From the above piece of evidence, it was expected that the appellant could present evidence that he was truly granted Tshs 11,019,541/= as loan from the bank. Unfortunately, in his personal statement account, the aforesaid amount is not shown to have been deposited by the bank as a loan but rather the brought forward balance which in my view cannot stand as proof that the same was the exact amount the appellant was granted as loan, a brought forward balance is that balance that has been carried over from the previous accounting or statement period. I have also noted from the extract above that, the appellant claimed that the amount of Tshs 12,063,000 he deposited as a full loan recovery amount was directed by this court in Civil Case No 32 of 2018. I have gone through the judgment, and have found nowhere the court made such orders varying the contractual obligations of the parties, instead at page 10 of the judgment, the court directed the parties to make a clear loan repayment schedule to 13 | P a g e be agreed by both parties, and in the end at page 11 the court made the following orders; 1. The court declares the

1st defendant’s intention to dispose of the plaintiff’s house as illegal; 2. The 1st defendant is ordered to allow the plaintiff to repay the loan as per agreement of T.shs 678,366/= per monthly installments; 3. Payment of the loan to start from the date of this judgment; 4. Costs to be borne to the defendants. That said and done, I find the appellant’s claim that he was ordered by the court to deposit to the bank Tshs 12,063,000/= and thereafter discharged of his contractual obligation to the loan that was advanced, as unfounded and an afterthought. Further, having scanned the loan facility letter which stood as an agreement between the parties, the amount disbursed by the bank as loan was Tshs 18,252,699.62 in which the appellant was supposed to repay to the bank the total amount of Tshs 24,420,000/=, which is the principal amount and accrued interests. 14 | P a g e At page 15 of the typed proceedings, and this was during cross examination of the appellant’s testimony, the appellant alleged that the loan facility had no interest. However, having scrutinized the loan facility letter, it is clear that, one of its averment was that the loan will be paid with interest. [see clause 1.3 of the letter reproduced earlier above]. In my view, as the practice in determination of civil suit demands that he who alleges the existence of a fact to prove that the fact exists, the

plaintiff in the present appeal was duty bound to prove that the Bank had agreed to grant the loan free from any interests, or at any later stage, the bank had agreed to waive the interest, which is not the case. The Court of Appeal in the case of Anthony M. Masanga vs Penina (Mama Mgesi) and Another, Civil Appeal 118 of 2014 stated as follows as to the standard of proof in civil suits; “in civil cases, the burden of proof lies on the party who alleges anything in his favour. We are fortified in our view by the provisions of sections 110 and 111 of the Law of Evidence Act, Cap. 6 of the Revised Edition, 2002 which state inter alia; 15 | P a g e "110. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove those facts exist 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side." See also the case of Attorney General & Others v. Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002, CAT (unreported).” Having re-evaluated the evidence adduced at the trial court, I entirely agree with the trial magistrate, that the appellant failed to prove his claim at the trial court court as demonstrated above. On that basis, the 1st, 2nd, and 3rd grounds all fails. On the fourth ground, the appellant is attacking the trial court

for its failure to contemplate the legal position of the power of attorney issued to Mr John Kabusimbe Mahona. I have scanned the trial court’s proceedings in relation to the complaint by the appellant. However, I have found nowhere in the proceedings indicating that the said complaint was once raised by the appellant and dealt with by the trial court. Admittedly, the issue as to the 16 | P a g e power of attorney granted to the appellant was mentioned in the judgment of the trial court at page 13-14, wherein the same was touched as regards to the plaintiff’s failure to call the appellant as the material witness to testify on the loan facility letter. As such, it cannot be said that the legal position of the power of attorney was determined by the trial court. That said, I refrain from determining the ground as it was the position of the court of Appeal in the case of Nyerere Nyague vs Republic, Criminal Appeal Case 67 of 2010 (Unreported) where the appellant present a new issue in his petition of appeal that was not earlier canvassed by the trial High court. The court of Appeal held; “ Again, as a matter of general principle, an appellate court cannot allow matters not taken or pleaded and decided in the court (s) below to be raised on appeal (See KENNEDY OWINO ONYANGO AND OTHERS v R Criminal Appeal No. 48 of 2006 (unreported)” As to the complaint that the trial court issued

the orders to the 1st respondent as if there was a counter claim, at onset, I find the complaint to be baseless. Looking closely at the impugned orders, it is plain that the trial magistrate was making a deliberation of the prayer for relief sought by the appellant in 17 | P a g e its plaint where among the prayers, the appellant claimed for release of the original Residential License No.IFK/SO/021 of his house. The complained of extract of the judgment reads; “.....since the plaintiff has failed to prove that he has discharged the loan advanced to him by the 1st defendant, i am of the view that, the 1st defendant is justifiable to hold the resident licence IFK/SO/021 since the plaintiff has not yet discharge the loan in contrary the defendants should do recovery. If the plaintiff settle unpaid loan, he should be handled with the residence licence No.IFK/SO/021....in that regard, the plaintiff claims against the defendants were not proved, so claims which were pleaded by the plaintiff could not be granted. Consequently, the suit is dismissed for want of merits. In the circumstances of this case, each party shall take care of his own costs of the suit. It is so ordered accordingly” In light of the above extract, it is vividly clear as hinted earlier that there are no new orders issued by the trial court as reliefs to the 1st respondent herein. In that regard, I find the fifth

ground of Appeal to have lacked merits, I also dismiss the same. 18 | P a g e From the totality of the foregoing, I find that the trial court properly evaluated the evidence before it and thus find it unworthy to disturb the findings and the orders stemming therefrom. In the upshot, the appeal is devoid of merits. Consequently, the appeal is dismissed in its entirety, with costs. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 21ST DAY OF MAY 2024. L. MANSOOR

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