Azania Bank v CopyCat

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 71 OF 2023 AZANIA BANK LIMITED …………………………………………. 1ST PLAINTIFF THE ATTORNEY GENERAL………………………………………. 2ND PLAINTIFF VERSUS THE COPY CAT (T) LIMITED…………………………………….. 1ST DEFENDANT THE COPY CAT LIMITED……………………….…………………. 2ND DEFENDANT VISHAL PATEL……………………………………………………….. 3RD DEFENDANT KIRUBAJARAN RAMAKRISHNAN………………..……………… 4TH DEFENDANT NAZIR NOORDINN TAYABALI………………………..…………. 5TH DEFENDANT KETUL PATEL…………………………..………...…...…………….. 6TH DEFENDANT NATHWANI DEEN RASHMIKANI……….…….…………………. 7TH DEFENDANT NADEEM NAZIR NOORDIN AND………….…………............... 8TH DEFENDANT RAMILA RAJINDER KUMAR PATEL…………….………………. 9TH DEFENDANT JUDGMENT May 3rd, 2024 & June 28th, 2024 Morris, J This judgment is for the suit arising from bank loan facilities (the facilities) between the parties above. The plaintiffs sued the defendants alleging that the latter breached the facilities. The major relief sought by the plaintiffs herein was the Court’s order compelling the defendants to pay the 1st plaintiff the alleged outstanding loan amount totalling Tshs 2 7,155,765,237.72 and USD 11,495,050.25 as at May 2023. Other auxiliary remedies are disclosed and analysed later in this judgment. However, the defendants denied all the plaintiffs’ allegations. They disputed being liable for the claimed reliefs in this suit howsoever. I will now state the history of this case in brief. Formerly, the 1st defendant traded as Business Machines Tanzania Ltd (BMTL) until December 15th, 2014 when his name changed to The Copy Cat Tanzania Ltd. (Copy Cat). Through his former name, and later in the new identity, the 1st defendant signed consecutive Term Loan (TL) and Overdraft Loan (ODL) facilities with Bank M (Tanzania) Ltd (Bank M). Successively, such facilities were mutually renewed and/or enhanced by the parties. By 2016 such loan facilities had reached ten (10) in total. The rest of the defendants were guarantors of the 1st defendant in diverse capacities. As security, the defendants deposited various property and credentials with the 1st plaintiff including mortgages, debentures and fixed deposits. At every renewal or enhancement of the facilities (as the case may be), identical securities were deposited. However, the parties maintain a remarkable dispute over the loan transaction of the 2016-2017 tenor. 3 Effective January 2018, the defendants allegedly defaulted in repayment of the loan amount despite several reminders to them from the 1st plaintiff. Incidentally, due to unsustainable performance, Bank M was placed under the supervision of the central bank: the Bank of Tanzania (BoT). Subsequently, on January 15th, 2019 BoT assigned Bank M’s business affairs to the Azania Bank Ltd (Azania). As part of the loan- recovery measures, the 1st plaintiff claimed that he disposed off part of the defendants’ securities thereby. Allegedly, that exercise fetched Tshs 1,599,500,000/- leaving the outstanding debt at about Tshs 7.2bn/- and USD 11.5m/- respectively. The present suit is hinged on such supposed debt. The defendants’ general denials notwithstanding, they alleged in defence that they are not in breach of any loan facility. Actually, to them none existed. They also deny being indebted howsoever. Likewise, they challenge legitimacy of the disposition of their securities. Eventually, they pray for dismissal of the suit with costs. The parties’ rivalry herein gave rise to five (5) issues for the Court’s determination. That is; i) Whether there was a contractual relationship between the parties. 4 ii) If the issue in (i) is answered in the affirmative, whether there was any breach of contract(s) between parties. iii) If the issue in (ii) is in the affirmative, whether the 1st Plaintiff suffered loss. iv) If the issue in (iii) is in the affirmative, whether the 1st plaintiff contributed to such loss. v) To what reliefs are parties entitled. Both sides were represented by a respective team of lawyers. For the plaintiffs, Mr. Erigh Rumisha and Ms. Pendo Mmbaga, learned State Attorneys, had the floor. However, Messrs. Audax Vedasto Kahendaguza, Philemon Mutakyamirwa and Joseph Rugambwa appeared as defence advocates. In purview of rules 49 and 50 of the High Court (Commercial Division) Procedure Rules, 2012; two witnesses filed and relied on their statements for each side of the case. These were Messrs. Bishota Raphael (PW1), Isaac Lwimiko Nguku (PW2), Vishal Patel (DW1) and Nathwani Deen Rashmikant (DW2) respectively. The witnesses’ statements were adopted by the Court as evidence in chief for each respective witness. Moreover, all witnesses appeared for cross and re- examination sessions according to the law. 5 Furthermore, the plaintiffs tendered eighteen (18) exhibits. These are, BoT’s Notice to Public (P1); Deed of Variation, Lien Guarantee/indemnity Bonds (P2); Board Resolution of July 2010 (P3); Board Resolution of Nov.2010 (P4); Board Resolution of July 2011 (P5); Letter of Offer, Mortgage Deeds, Certificates of Titles and Guarantees (P6); Facility Letter, Jan 2013 & Security Documents (P7); Facility Letter, March 2013 & Security Documents (P8); Facility Letter, May 2014 & Security Documents (P9); Facility Letter, June 2014 & Security Documents (P10); Facility Letter, July 2016 & Security Documents (P11); Bank Statement (P12); Notice of Default (P13); Settlement Deeds (P14); Final Demand Letters (P15); Letter of 08.07.2020 (P16);Certificates of Sales (P17); and Letter ref. No. MARK/ABL/HQ/2020/012 (P18). The defence, however, did not tender any exhibit. The testimonies of the plaintiffs’ witnesses are easy to summarise. They primarily reiterated the large portion of the pleadings. PW1 stated that BoT took over Bank M and placed its affairs under the 1st plaintiff including the defendants’ liabilities (exhibit P1). He added that the defendants’ default started in 2018 for facilities which began in 2009 but were being renewed and/or enhanced from time to time. Further, he 6 averred that by December 2019 when the defendants were put on default notice; the outstanding amount was Tshs 4,294,841,982.93 and USD 8,215,854.2 (P13). He also testified that, on August 12th, 2019 the 1st defendant committed himself to pay Tshs 15b/- (P14). However, later (20.11.2019) he confirmed to repay the debt by instalments (P14). It was also testified that on the latter date, the defendants voluntarily signed off some of the securities for sale and recovery of the debt. PW1 concluded by stating that, the defendants did not honour such commitments; and that sale of the mortgaged property fetched Tshs 1,599,500,000/- only. As for PW2, his testimony was about the selling of the defendants’ landed securities upon being appointed by the 1st plaintiff. Apparently, he avowed that he sold a total of five (5) landed property located at Msasani (1), Upanga (1), Samora (1) and Kigamboni (2). The defence had DW1 and DW2 acknowledging the lengthy banking relationship between the 1st plaintiff and the 1st defendant. It was asserted that each loan taken by the 1st defendant from the 1st plaintiff was being fully paid before a successive credit-disbursement could be made. The duo also maintained that the sale of the mortgaged property by the 1st plaintiff 7 was illegal both in justification and procedure. Amongst other denials, they testified that the 1st plaintiff did not serve the guarantors and/or mortgagors with the default notices. Upon conclusion of the hearing, parties were allowed to present their respective closing speeches in a written form. Only the defence filed its final submissions. I will consider the main gist of such submissions while deliberating on the framed issues. The first issue is whether there existed a contractual relationship between the 1st plaintiff and the defendants. While the plaintiffs were assertive that the parties herein were bound by the loan contracts, the defendants communally denied existence of such relationship. One of the undisputed facts, however, is that the banking relationship between the parties began around 2009. Back then, the 1st defendant traded as BMTL and the banker thereof was Bank M. Another undeniable position is that the 1st defendant and Bank M concluded a total of ten (10) loan facilities. However, out of such facilities, the dispute is in relation to the last one. That is, the one covering the tenor between 01.07.2016 and 01.06.2017 (P11). 8 The defendants unanimously contended that there was no valid contract howsoever. They advanced a number of grounds to support such contention. One, repayment was to be done up to 01.06.2017. Thus, beyond such time there was no existing contract between parties. Two, the facilities which are alleged to be breached by the defendants were an Overdraft (OD) and a Letter of Credit/Bank Guarantee (LC/BG) but the plaintiffs pleaded that the contract in dispute is a Term Loan (TL). Three, the plaintiffs’ pleadings do not state a clear cause of action. That is, paragraph 26 of the plaint simply states that the defendants defaulted repayment of the loan. Hence to them, the breached contract, if any, is not pleaded. In line with Chand Kaur v Partap, (1888) 16 Calcutta 98; Stanbic v Giuseppe (2002) TLR 217; Euphacie Mathew Romisho t/a Emari Provision Store v Team Ent. Ltd, Civ. Appeal No. 270 of 2018; Registered Trustees of Roman Catholic Archdioceses of Dar v Sophia Kamani, Civ. Appeal No. 158 of 2015; Yara (T) Ltd v Ikuwo Gen. Ent. Ltd,, Civ. Appeal No. 309 of 2019; Mohammed Woodworks Ltd v Honest Logistics Ltd, Misc. Comm. Appl. No. 159 of 2023; and Masaka Mussa v Rodgers Lumenyeka, Civ. Appeal No. 497 of 2021 (all 9 unreported), the defendant argued that the plaintiffs are bound by what they pleaded; no more no less. Thus, they cannot rely on the purported contract without pleading it. Four, the defence also asserted that, if the disputed contract (of 2016 - 2017) existed it was between the 1st plaintiff and the 1st defendant only. That is, the exhibits tendered by the plaintiffs (P2-P11) covered facilities from 2009 to 2017. Hence, as they were not involved in the last (2016-2017) facilities, the 2nd - 9th defendants were total strangers to the same. Accordingly, pursuant to section 120 of the Land Act, Cap 113; and Christopher Paul Chale v Commercial Bank of Africa (CBA) (T) Ltd., Civ. Appeal No. 452 of 2020, the mortgagors who are not involved in variations or extensions of the loans, cannot be considered as having sanctioned the subsequent credits. Thus, the 2nd - 9th defendant have no contractual relationship with the plaintiff howsoever. I have taken the liberty to study the facility agreements which are central to the dispute herein (P11). As correctly presented by both parties to this suit, the tenor thereof ran from July 2016 to 1st June 2017. Critical to this specific period is the question whether the same extended beyond the said expiry date. Factors knitting into this enquiry include; (1) did the 10 expiry date amount to exonerate the borrowers of obligations even where no full repayment was done? (2) did the 1st defendant pay the whole loan before the end of tenor? (3) was there any continuity of contract beyond such date? (4) if the contract existed, were all the defendants privy to it? I will address the sub-enquiries one at a time. To begin with, one has to appreciate the operation of the OD facility in the banking sector. It is apparent that, although it resembles the normal loan facilities in many other forms, the OD is a banking product which allows the holder of a bank account to continue with transactions or withdrawals even where there is not sufficient money in his account. Provided he does not surpass the set maximum limits and the transactions are within the facility tenor of the OD facility offer; the account holder enjoys a credit extension from his bank. He can withdraw the money while his account reads zero balance. Consequently, the money accessed by him through such kind of transaction is gained as loan. Thus, it attracts interests, fees and penalties like any other kind of financial credit instruments. Working with an appreciation of the foregoing modus operandi, the amount of money taken from the bank is a liability on the part of the 11 borrower-account holder. Ordinarily, by the end of the tenor his account should not bear unsettled debt. Hence, unless repaid in full, the borrower remains indebted, expiry of the tenor notwithstanding. In other words, the end of the tenor does not automatically discharge the borrower of his obligation to pay any outstanding debt. If anything, the expiry of the tenor is more to the borrower’s exhaustion of the availability of the credit services than the bank’s right to recover any outstanding loan. Technically put, unless renewed, extended or agreed otherwise by the parties to the OD facility; the borrower who has not paid the debt amount within the tenor, is considered a defaulter. On the same basis, Clause 4 of P11 partly provides that, “The full facility together with interest shall be repaid in full by the end of the tenor”. Further, Clause 11(i) thereof is to the effect that failure by the borrower to pay any due amount under the facility constitutes “an Event of Default”. In addition to the above discussion, according to the evidence available on record, the parties to the OD facility above covenanted that the borrower’s discharge under the same contract was subject to full payment of the loan. Clause 9 reads as follows; 12 “9. Discharge Upon full repayment of the facility extended to the Borrower under this Letter of Offer together with interest commissions and other bank charges and all other costs and expenses, the borrower shall at any time thereafter stand discharged and released from its obligations under this Letter of Offer. The Bank shall convey such discharge by a specific Letter of Discharge which will be received and acknowledged by the Borrower” (bolding rendered for emphasis). From the excerpt above, unless the 1st defendant paid the credit in full; and was given the Letter of Discharge by the 1st plaintiff, his obligations under the facility agreement (P11) remained intact. Further, during cross examination, DW2 confirmed that the defendants had no Letter of Discharge for any of the credit facilities. Further, regarding the difference in terms used in this matter, namely, Overdraft (OD); Letter of Credit/Bank Guarantee (LC/BG); and Term Loan (TL) in relation to disclosure of cause of action, I find that the same does not significantly affect existence of the alleged relationship between the parties thereto. My reading of, for example, paragraphs 12 and 25 informs that the plaintiffs 13 are using the three terminologies interchangeably to refer to the same loan facilities between the 1st plaintiff and the 1st defendant. More so, during cross examination, Mr. Bishota Raphael (PW1) testified that the outstanding loan was converted into the Term Loan. All the same, as the pleadings do not contain allegations of conversion of such facilities; and the available exhibit (P11) refers to credits as “Facility 1: Overdraft”; “Facility 2: Overdraft”; and “Facility 3: Letter of Credit/Bank Guarantee”, the interchangeable use of the terminologies does not, in my view, amount to discharge or vitiate the contract between the parties therein. Regarding the privity of the 2nd – 9th defendants to the foregoing contract, I agree with the defence counsel’s argument that mortgagors must be involved in variations and extensions in the loan facility. Consequently, Christopher Paul Chale v CBA (supra) is relevant to such extent. However, looking at pages 5, 6, 7, 14, 15 and 16 of the facility agreement (P11) defendants appended their respective signatures thereto save for the 4th, 7th and 8th defendants. Nevertheless, of the three (3) whose signatures are not evident on P11, it is only Nathwani Deen Rashmikant (7th defendant) who mortgaged his property to secure the 1st 14 defendant’s loan. Consequently, the other two are not falling within the ambit of the cited section 120 of the Land Act (supra) and Christopher Paul Chale v CBA (supra). In the defence pleadings and throughout the trial, there were no allegations and/or proof that the appended signatures on exhibit P11 were forged. The said irresponsiveness on the part of the respective defendants, amounts to their acknowledgement of the truthfulness of what was exhibited in Court in such regard. Henceforth, pursuant to the record, 8 out of 9 defendants sanctioned the loan transaction between the 1st plaintiff and the 1st defendant. Other factors pointing to the existence of the contractual relationship between the parties herein include; lack of proof of full repayment of the facility amount by the 1st defendant and/or his guarantors; at page 1 of the facility agreement (P11) all the three (3) loan facilities are indicated as renewal or renewal and enhancement. That means, immediately before or at the commencement of the tenor in 2016, the 1st defendant (guaranteed by 2nd-9th defendants) had existing loan facilities to renew/enhance. Moreover, the determinant factors of the default are outlined in the contract. Thus, default was not dependent on the date that either party whimsically chose. Likewise, on record, there are no pleadings, 15 testimonies or proof that the securities herein have ever been discharged and/or redeemed (not even the attempt to do so was displayed). Factoring all discussed aspects in this regard, the court finds and I hereby so hold that there was a contractual relationship between the parties herein. Having concluded that there was a valid contract between the parties hereof, I now turn to the second issue. The same calls an interrogation of whether the same was breached. The evidence from the plaintiff was directed to the establishment of the liability of the defendants. But the latter contended that even if the Court is to find that there existed the valid contract, the defendant did not breach it. To them, the plaintiffs did not prove the alleged breach at all. For instance, upon expiry of the facility’s tenor in 2017, there was no contract to breach. Further, the bank statement (P12) which was tendered came from Azania not Bank M (though it was also filed untimely and did not indicate any default); no record from Bank M was tendered in Court; the record that BoT handed over the defendants’ loan to Azania was not brought in Court (and P1 was provisional); repayment of the alleged outstanding loan was not demanded by BoT or Azania until after 21/2 or eleven months respectively; figures claimed in the case are inconsistent with the ones in 16 the default notices (P13) and there is no reflection of the money obtained through sale of securities, thus guesswork; and the deed of settlement (P14) was not pleaded nor did it form part of the cause of action. To the defendant, thus, the weaknesses in their case should not be taken to the advantage of the plaintiffs. They relied on cases of Yara (T) Ltd v Ikowu (supra); Double Diamond Holdings Ltd v EA Spirits (T) Ltd., Comm. Case No. 8 of 2018; Agatha Mshote v Edson Emmanuel and Others, Civ. Appeal No. 121 of 2019; Paulina Teresia, Civ. Appeal No. 45 of 2017 (all unreported). In line with the findings in respect of the first issue above, I will not discuss the defendants’ argument that there was no contract to breach by them. Moreover, this Court takes it a fact that parties did not dispute Bank M being placed under BoT’s supervision and its assets and liabilities being transferred to Azania. However, the defendants submitted at length with the view to distance themselves from Azania. Nonetheless, there is evidence that there is sufficient plexus between the affairs of the 1st plaintiff and the financial transactions at Azania as reflected in the bank statement (P12). 17 For instance, under the 1st plaintiff’s USD Account Number 021010001968; on 23rd April 2019 the statement (P12) indicates the first entry as “Bank M Financial Migration Trn Code: CASA-021- Bank M Migration – 021010001968”. Further, the 1st defendant continued operating his migrated account (from Bank M) at Azania. The banking transactions in his Tshs Account No.0250004471 bear it an exhibit that even after Azania taking over Bank M’s affairs, there are several credits/deposits from the 1st defendant most of which were utilised to offset his outstanding loan amount. Moreover, when the 1st defendant was served with the default notice by Azania, he did not lodge any complaints or contentions to disown the alleged indebtedness or challenge his being privy to any loan agreement with Azania. Furthermore, the defence argued that the breach should not be considered against them because it took long time before the outstanding loan was claimed by the 1st plaintiff and/or BoT. I respectfully find no substantial value in this argument. According to the facility agreement, the 1st plaintiff (taking over equity of/from Bank M) was mandated under Clause 11 of P11 to consider any of the matters listed thereon as the event of default. 18 In addition, there is no term therein which set the time limit within which the lender to demand the outstanding loan amount. Hence, unless proved that the 1st defendant repaid the whole amount of loan, it is safe for the court to make the deduction that he did not discharge obligations. Furthermore, the plaintiffs tendered in evidence the bank statements for the 1st defendant indicating the outstanding loan amount therein. In purview of section 37 of the Law of Contract Act, Cap 345 R.E. 2019; Simba Motors Ltd v Joh Achelis & Sohne GMBH and Another, Civil Appeal No, 72 of 2020 (unreported); and Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 566 the law conjoins parties to honour own promises in contracts. The second issue, is therefore answered in the affirmation. That is, the loan facility agreement was breached by the defendants. I now turn to the third issue. It is apparent that the second issue has been resolved in favour of the 1st plaintiff. The Court is to determine whether the 1st plaintiff suffered loss. The plaintiffs pleaded both special and general damages. To support the specific damages, the plaintiffs’ witnesses averred that since 2018, the defendants defaulted payment of the loan. It was stated further that the outstanding debt stood at about 19 Tshs. 4.3b/- and USD 8.2m/- by December 2019. Further, it was stated by the plaintiffs that the recovery measures embarked on by the bank around mid-2020 yielded about Tshs. 1.6b/- only. As per PW1 (e.g. paragraph 17 of his statement) the outstanding loan balance after such dispositions was in the region of Tshs 7.2 billion and USD 11.5 million. According to the bank statement (P12) and Notices of Default (P 13); the plaintiffs exhibited that the said amount of money is due to them from the defendants. The defence contested such loss on the basis that they were not indebted howsoever. In the submissions, the defence counsel reiterated that the 1st plaintiff did not suffer any loss or if he did, he neither pleaded nor proved it. Consequently, the prayer from the defence is that this issue should be answered in disaffirmation. One of the prime covenants was for the 1st plaintiff to give the OD to the 1st defendant. The bank statement (P12) indicates the numerous entries and disbursements in the 1st defendant’s account. The Court is mindful of the contention that the statement bears the name of Azania instead of Bank M. But as deliberated in respect of the 2nd issue, the migration from Bank M to Azania and the subsequent transactions between the 1st defendant and the 1st plaintiff thereafter create the necessary link 20 between parties herein. Moreover, in my view, the effect of BoT placing the affairs of Bank M to the 1st plaintiff, was to put to an end the continued use of the former banker’s name. Hence, the evidence marshalled by the plaintiffs suffices to lead to a conclusion that the 1st plaintiff dutifully performed his part of the bargain. For instance, statements of PW1 (paras 18 and 19) are consistent that the 1st plaintiff was handed over the 1st defendant’s debt by BoT. Further, it is apparent that the defendants have two versions of defence theory. The first one is that the 1st plaintiff did not disburse the alleged amount to the 1st defendant (paras 4 and 8 of DW1 witness statement). The second line of defence is that they repaid the loan in full way before Azania took over Bank M’s business affairs (paras 9 and 10 of DW1 witness statement). However, throughout his pleadings, the 1st defendant is not alleging either of the two lines of defence. Apart from presenting the general and/or evasive denials in his written statement of defence, the 1st defendant merely puts the plaintiffs to strict proof of the allegations in the plaint. In addition, there are no exhibits produced in court to support the counter averments. Consequently, it is unclear his case theory right from 21 the pleading stage. The similar approach is evident in the joint statement of defence for the rest of the defendants. Without overemphasis, law makes it a specific principle that parties are bound by own pleadings. Reference is made to Salim Said Mtomekela v Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019; Scan Tan Tour v The Catholic Diocese of Mbulu, Civil Appeal No. 78 of 2012; Lawrance Surumbu Tara v The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; (all unreported); and James Funke Ngwagilo v Attorney General [2004] TLR 161. The above position notwithstanding, if the defence asseveration that the 1st defendant repaid the whole loan were the position to go by, then the onus of proving how and when such repayment was done lies with the 1st defendant. That duty is pursuant to section 110 of the Evidence Act, Cap 6 R.E. 2022; Barelia Karangirangi v Asteria Nyalwambwa, Civ. Appeal No 237 of 2017; AG and Others v Eligi Edward Massawe and Others, Civ. Appeal No. 86 of 2022; Ikizu Secondary School v Sarawe Village, Civ. Appeal No. 163 of 2016; and Anthony M. Masanga v Penina @Mama Ngesi and Another, Civ. Appeal No. 118 of 2014 (all unreported). 22 Indeed, the whole texts in the pleadings and witness statements of the defence are far from providing the necessary facts to disprove the plaintiffs’ claims that the defendants did not pay the outstanding loan amount. In addition, according to clause 11 of the facility agreement (P11), the events of default include the borrower’s failure to pay any sum due to the bank. The banks money is held in trust and should be repaid by the borrowing customers. This position has been reiterated in a number of cases including National Bank of Commerce Limited v Stephen Kyando t/a Asky Intertrade, Civil Appeal No. 162 of 2019 (unreported). Further, in Agency Cargo International v. Eurafrican Bank (T) Ltd, Civil Case No. 44 of 1998 (unreported); it was held that for the bank “to continue being in banking business must have funds to lend and which [h] as to be repaid by its debtors. If a bank does not recover its loans, it will seriously be an obvious candidate for bankruptcy”. Consequently, the third issue is answered positively. That is, the 1st plaintiff suffered loss due to the non-repayment of the loan amount by the 1st defendant. The fourth issue is whether the 1st plaintiff contributed to the loss established under the above (third) issue. The two opposing sides did not 23 plead this aspect in details. Nonetheless, while the plaintiffs placed the whole blame on the defendants, the latter argued that if there is any loss; it is the 1st plaintiff who significantly contributed to its occurrence. Paragraphs 6.3 to 6.6 of the joint written statement of defence for the 2nd - 9th defendants are to the allegations that the whole debt was paid out of proceeds of sale unless the properties were sold below the market price; or if the auction was illegally conducted or manned by an incompetent auctioneer. Further, both DW1 and DW2 reiterated the same allegations in their witness statements (paras 11 and 7 respectively). Thus, it is the common stand by the defence that the 1st plaintiff did not take necessary legit steps or mandatory recovery procedures for him to fetch the loan amount from the securities. However, the court’s dispassionate analysis of the contention hereof leads it to a couple of deductions. Firstly, the defendants’ allegations of the values of the properties are without an empirical basis. Apart from the general assertions, they did not exhibit the values (even indicative worthiness) of the mortgaged properties. To the contrary, the plaintiffs were consistent in their respective pleadings, witness statements and during examination of witnesses that they sold the said property 24 according to proper procedure (exhibits P15, P16 and P17 respectively); and using the qualified professional auctioneer (PW2). In the foregoing connection, PW2 stated during cross examination that he is not only qualified and licenced accordingly, but he also possesses 15 years’ experience in the auction processes. In addition, he testified that the prices he fetched from the sales were the most competitive at that given time and under the prevailing circumstances. For example, PW2 averred during cross examination that, even the indicative prices for some properties were not fetchable thereby making the 1st plaintiff approve the best available options. Hence, in the absence of the sufficient proof by the defence to discredit such evidence and/or his qualifications; the defendants’ pleadings and allegations that the auction was incompetently carried out, lack the requisite foundation. Secondly, the defence counsel strongly argued in his final submissions that the 1st plaintiff sold the securities (landed property) below their market values and/or without pre-valuation exercise. Without the corresponding evidence from the respective parties, such assertions suffer the risk of being likened to speculations. In law, submissions from the bar are never evidence. See, for instance, Bish International B.V. & Rudolf 25 Teurnis Van Winkelhof v Charles Yaw Sarkodie & Bish Tanzania Ltd, Land Case No. 9 of 2006; and Rosemary Stella Chambejairo v David Kitundu Jairo, Civ. Reference No. 6 of 2018 (both unreported). Thirdly, the defence also argued that the 1st plaintiff sold the mortgaged property without serving the mortgagors with mandatory 60- day default notice. In evidence, is exhibit P13. It comprises of six (6) Notices of Default for the corresponding number of mortgages. It is evident that, they were served on the 1st defendant and accordingly acknowledged by the Managing Director-cum- 7th defendant (Deen R. Nathwani) on December 6th, 2019. Further, the same person purportedly signed on behalf of the rest of the defendants. This fact is also testified to by PW1. However, there is no evidence that the subject recipient of the Notices was so authorised by such other defendants. The above position notwithstanding, the Court’s reading of paragraph 25 of the plaint; and testimonies from PW1 and PW2, informs that out of the five (5) sold properties three belonged to the 1st defendant (through his former name - BMTL) whose Notice of Default was duly served. These were Plot No. 399, apartment no. 007 Samora Avenue; Plot No. 30 Block F, Magogoni Beach – Kigamboni; and Plot No.29/2v Block F, Magogoni Beach 26 – Kigamboni. Nevertheless, it has not been clear the argument from the defence on how the service of Default Notice would constitute the 1st plaintiff contribution to the loss herein. The same view applies to presentation of valuation reports; auctioneers’ qualifications and appointment procedures; advertisement processes; and post-sale credentials and reports. To me, such arguments (over the appropriateness of the service of Notices, integrity of the recovery processes and reporting thereafter) are more suitable to the case to challenge sale of the properties, which is not subject of these proceedings. Furthermore, in the absence of the counter claim from the defence on that regard, this Court is loath to engage fully in determination of the envisaged dispute from the vacuum. I will accordingly rest that contention at this point. In view of the examination and reasoning rendered above, the Court holds that there is no sufficient evidence to prove that the plaintiffs contributed to the loss herein. With the determination of all the above issues in the affirmation, the Court now turns to the fifth and last issue. The Court is to determine the reliefs which parties are entitled to. Discernibly, the conclusions of the Court regarding the previous issues from the basis of this last one. The 27 plaintiffs claimed a total of six (6) reliefs. Vividly, the major one is for payment of the alleged outstanding loan amount of about Tshs 7.2 billion and USD 11.5 million. To support their remedies, the plaintiffs relied on the BoT Notice (P1); the facility agreement (P11); and the bank statement (P12). In opposition, the defendants prayed for dismissal of the suit with costs. To them, the plaintiffs do not maintain any justifiable claims against the defendants; and that the former have failed to prove existence of the valid contract; or loss suffered by them. It is evident from the previous analysis that all the above issues whereas the first and third issues were determined in favour of the plaintiffs. Herein, the plaintiffs claimed for repayment of the outstanding loan amount; interest at 24% per annum with effect from date of default to the date of judgment; general damages; court-rate interest on decretal sum from the date of judgment to full settlement thereof; costs of the suit; and discretionary reliefs by the Court. In order to determine the foregoing remedies; the Court concludes that the defendants’ breach of the loan facility agreement between them and the lending-1st plaintiff is not without consequences. In addition to the findings of this Court that the defendants did not sufficiently exhibit 28 repayment of the loan amounts, the plaintiffs produced the 1st defendant’s bank statement (P12) bearing dense entries and transactions. Such details were not specifically denied in both pleadings and testimonies of the defence; save for the dispute as to the integrity of the account’s migration process from Bank M to Azania (particularly during cross examination). Trite is the law that, facts which are not specifically disputed by the party are generally considered as being acceptable to him. See, for example, Emmanuel Saguda @Sulukuka & Another v R, Crim. Appeal No. 422B of 2013; and Paulina Samson Ndawavya v Theresia Thomas Madaha, Civ. Appeal No. 45 of 2017 (both unreported). Consequently, the 1st plaintiff is entitled to the total outstanding loan amount hereof. Furthermore, because there is no sufficient proof on record that the defendants were not liable to pay interests before and/or after the default herein; the Court finds that the loan amount was still subjected to covenanted interest in the respective facility agreement (P11). According to Clause 2 at page 3 of the facility under the subheading “Pricing”, several categories of interests were covenanted by parties therein. The maximum rate thereof is 24%. Factoring the discount stated therein, I hold that the 29 claim for 24% interest is without a justifiable cause. I am inclined to adjust the rate downwards. Another basis for this allowance is that I have gone through the entire documents of this case and find that the defendants display no legitimate basis of not repaying the claimed debt. Moreover, the law prescribes that claims for interest must be pleaded, particularised and proved for them to pass. See, for instance, National Insurance Corporation (T) Limited v China Civil Engineering Construction Corporation, Civil Appeal No. 119 of 2004; Zanzibar Telecom Ltd v. Petrofuel Tanzania Ltd, Civil Appeal No. 69 of 2014; Alfred Fundi v. Geled Mango and Two Others, Civil Appeal No. 49 of 2017; and Ami Tanzania Limited v Prosper Joseph Msele, Civ. App. No. 159 of 2020 (all unreported). Likewise, I am cognisant of the principles laid down in cases like Yara Tanzania Limited v Ikuwo General Enterprises Limited, Civil Appeal No.309 of 2019; and Amani Safari Adventure Limited v Petrofuel (T) Limited, Civil Appeal No. 67 of 2023 (both unreported) that, on the basis of mercantile practices, interest may be granted to the winning litigant even where he has not proved it specifically. I find value 30 thereof. In addition, the loan facility herein contains ordinary and penal interest payable by the borrowing defendant. Accordingly, I hold that the 1st plaintiff is entitled to 18% interest from the default day to the date of this judgment. Similarly, the 1st plaintiff is entitled to 7% interest on the decretal sum from the date of this judgment to full payment. In respect of general damages, I am guided by the rule that such damages are to be awarded judiciously. Factors to consider before awarding such damages include: the directness of the defendant’s wrong doing in causing the damages to the opposite party; consequences to the latter being the natural or probable result of the wrong complained of; whether or not, the defendant is the sole or particularly significant contributor to the established consequences; and the remarkableness of magnitude of the damages (see, Tanzania Saruji Corporation v African Marble Company Limited [2004] T.L.R 155). In this matter, it is apparent that the 1st plaintiff cannot avoid being partly blamed for what befell him. Weighty evidence hereof points to the fact that there was tardiness in taking action in time to mitigate the losses herein. Accordingly, the 1st plaintiff is awarded Tshs 10 million general damages. Costs of this suit are also earned by him. 31 For avoidance of any doubt, the reliefs granted to the plaintiff are as follows: payment of Tshs 7,155,765,237.72 and USD 11,495,050.25; interest of 18% from the default day to the date of this judgment; interest at 7% from the day of judgment to full settlement of the decree; and costs of this suit. In the upshot, this case accordingly succeeds to the scope stated above. It is so ordered. The right of appeal is explained to parties. C.K.K. Morris Judge June 28th, 2024 32 Judgment delivered this 28th day of June 2024 in the presence of Mr. Francis Wisdom, learned State Attorney for the plaintiffs and Advocate Philemon Mutakyamirwa for the defendants. C.K.K. Morris Judge June 28th, 2024