alliance finance corporation ltd vs hamidu juma mpambalyoto 2023 tzhccomd 214 10 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 97 OF 2022 ALLIANCE FINANCE CORPORATION LIMITED............ PLAINTIFF VERSUS HAMIDU JUMA MPAMBALYOTO................................ DEFENDANT DEFAULT JUDGEMENT A.A MBAGWA J. The plaintiff herein ALLIANCE FINANCE COPERATION LIMITED is a limited liability company duly incorporated under the laws of Tanzania whereas the defendant is a natural person. According to the plaint, the plaintiff is dealing with lending business. It is alleged that the duo entered into loan agreements through which the plaintiff disbursed money to the defendant but the latter failed to fulfil his contractual obligations (defaulted payment). As a result, after fruitless reminders and demand notice, the plaintiff instituted the instant suit against the defendant praying for judgement and decree in the following orders, namely: - (i) Declaration that the defendant has breached the contract. i (ii) An order for payment of Tanzanian shillings eighty-nine million, one hundred eighty-six thousand and twelve being principal and interest as at July 2022. (iii) An order for payment of general damages. (iv) An order for the costs of this suit; and (v) Any other relief the honorable court may deem fit to grant. Upon filing the plaint, the plaintiff was ordered to serve the plaint to the defendant. However, the service through normal means proved futile. As such, on 30th November, 2022 this Court ordered the plaintiff to effect service through substituted mode. Consequently, the plaintiff published a summons in Habari Leo Newspaper dated 22 -28 November, 2022. Despite publication of summons, the defendant neither filed a written statement of defence nor entered appearance to defend his case. As such, on 13th day of December, 2022, this Court, upon application by the plaintiff, granted an order for ex parte proof pursuant to rule 22 of the High Court (Commercial Division) Procedure Rules. In proving its claims, the plaintiff filed an application in Form No. I and an affidavit affirmed by Ally Danga along with documentary exhibits which were attached to the affidavit. The exhibits filed include loan application form dated 20/11/2019 (Annexure AFCL 1), loan agreement dated 2 14/02/2020 and two motor vehicle registration cards for No.T512 DSU and T915 DSD (Annexure AFCL 2), loan reschedule request letter dated 25/05/2021 (Annexure AFCL 3), restructuring loan agreement dated 25/05/2021, demand letters, EMS receipt and invoice, ledger account & loan statement (Annexure AFCL 4) and summons to file written statement of defence (Annexure AFCL 5). Briefly, the facts of this case as gathered from the plaint, affidavit and documentary exhibits are that, sometimes on 2nd December, 2019 the plaintiff and defendant entered into loan agreement through which the plaintiff granted a loan to the defendant amounting to TZS 72,100,000. It was the agreement terms that the loan attracted interest rate of 23% and was payable within twenty-four (24) months by equal monthly instalments of TZS 3, 776, 115. Thus, by 5th December, 2021 the defendant was duty bound to have repaid a total of Tanzanian shillings Ninety Million, Six Hundred Twenty-Six Thousand, Seven Hundred Sixty- Nine Only (TZS. 90,626,769) being the principal sum and interest. In addition, on 14th February 2020 the plaintiff and defendant entered into another loan agreement of TZS 70,000,000/= with interest of 23% payable in twenty-four (24) months by equal monthly instalments of TZS 3,666,131. The agreement stipulated that by 15th February, 2022 the 3 f defendant was obliged to have repaid TZS. 87,987,154 say Tanzanian shillings Eighty-Seven Million Nine Hundred Eighty-Seven Thousand One Hundred Fifty-Four only being the principal sum and interest. The purpose of two loans was to buy two motor vehicles make TATA LP 909/49 with registration numbers T.915 DSD Chassis No. MAT 382042J7R26989 and T.512 DSU Chassis No. MAT382042K7R16308 respectively. It was deponed that upon disbursement of the loan money, the defendant did not service the loans as per the agreement terms hence through a letter dated 25th May, 2021, the defendant requested for consolidation and restructuring of the two loans. Following the defendant's request, the duo entered into a restructuring agreement on 25th May, 2021. According to the restructuring agreement of 25/05/2021, the outstanding balance stood at TZS 83,917, 635/= payable within 24 months at the interest rate of 23%. It was further agreed that the defendant would be submitting equal monthly instalments of TZS 4, 395,044 thus making a total of TZS 105, 481, 056 being the principal sum and interest thereon. Despite the restructured terms, the defendant continued to default payment for as of July, 2022 the outstanding balance stood at TZS 89,186,012. To support its averment, the plaintiff produced the ledger account of Hamidu Juma Mpambalyoto -222. The plaintiff also produced 4 a demand notice dated 29th June, 2022 which was served to the defendant but to no avail. In the end, the plaintiff prayed the court to grant the reliefs sought in the plaint and affidavit. Having carefully assessed the evidence adduced by the plaintiff as analysed above, I am satisfied that the plaintiff has proved its case on balance of probabilities. In that regard, I am inclined, pursuant to rule 22(1) of the High Court (Commercial Division) Procedure Rules, to enter judgment and decree in favour of the plaintiff in the following orders; (i) It is hereby declared that the defendant has breached the contract. (ii) The defendant is hereby ordered to pay the plaintiff the sum of Tanzania shillings Eighty-Nine Million, One Hundred Eighty- Six Thousand and Twelve (TZS 89, 186, 012/=) being the principal and interest as of July 2022. (iii) The defendant shall pay general damages to the plaintiff of Tanzania shillings Five Million (TZS 5,000,000/=). (iv) The defendant shall pay the costs of this suit to the plaintiff. (v) The defendant shall pay interest at the court rate of 7% of the decretal amount from the date of this judgement to the date when the decree is fully satisfied; 5 In terms of Rule 22 (2) of the High Court (Commercial Division) Procedure Rules, the plaintiff is ordered to publish the decree at least in two newspapers of wide circulation in the country within ten (10) days from the date of this judgment. It is so ordered. Right of appeal is fully explained. A.A. Mbagwa JUDGE 10/07/2023 6