BANK OF INDIA JUDGMENT

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 7003 OF 2024 BANK OF INDIA (TANZANIA) LIMITED ……PLAINTIFF VERSUS SETH FUEL (T) LIMITED......................1ST DEFENDANT PETER RODRICK NGOWO………………2ND DEFENDANT RATNAKAR DEORAM WAGH……………3RD DEFENDANT EXPERTE JUDGMENT Date of Judgment:10/12/2024 A.J. Mambi. J This is an Ex-parte judgment that emanates from a commercial case No.7003 filed by the plaintiff. The plaintiff [BANK OF INDIA (TANZANIA) LIMITED] in this case sued the defendants jointly for payment of Tshs three Billion ninety-two Million, Nine Hundred Thirteen Thousand Eight Page 1 of 29 Hundred and eighty (Tshs 3,09,913,885.00/=). The plaintiff alleges that, her claim resulted from the default (by the defendants) on various credit facilities as per Term Loan 1 and Term Loan 2. In her plaint, the plaintiff further stated that through the sanction letter for credit facilities with reference number BOITL/CR/AO/CR/40 dated 25th November 2020 the Plaintiff approved and extended to the 1st Defendant Term Loan 1 to the tune of TShs. 1,200,000,000.00/= and Term Loan 2 to the tune of TShs. 832,000,000.00/=. The plaintiff further stated that both the Term loans were registered and stamped to cover Tanzania Shillings Two Billion Five Hundred Forty Million Only (TShs. 2,540,000,000.00/=) being 125% of the total exposure plus interest and other charges thereon. Under the plaint, the plaintiff claims that the said credit facilities were secured by the 1st Defendant under several securities and guarantor ship (surety) of the 2nd and 3rd Defendants. It is also on the records as alleged by the plaintiff that the defendants also secured their loans through Legal mortgage on landed property on Plot No. 41, with Certificate of Title No. 59007 located at Kongowe, Kibaha Township, dated 18th February 2021 registered under the name of the 1st Defendant; Deeds of Personal Guarantee and Indemnity Bond from the 2nd and 3rd Defendant as shareholders and Directors of the 1st Defendant, dated 17th December 2020; Page 2 of 29 and Chattel Mortgage over 10 United of fleets (Truck and Trailers) to be purchased. The plaintiff also claims that despite of the loans secured, the first defendant only managed to purchase four Trucks and four trailers were purchased and registered in the Plaintiff’s name. Having realized that the defendants defaulted to repay credit facilities, the Plaintiff on the 7th December 2023, instituted a suit against the Defendants jointly and severally claiming for among other things: (i) A declaration that the Defendants breached terms and conditions of the Credit Loan Facility entered between Defendants and the Plaintiff by failure to pay outstanding amount; (ii) Order for the Defendants jointly and severally to immediate pay to the Plaintiff the total sum of Tanzania Shillings Three Billion Ninety-Two Million Nine Hundred Thirteen Thousand Eight Hundred and Eighty (TZS 3,092,913,885.00/=) as of 9th November 2023; (iii) An order that the Plaintiff be entitled to dispose the mortgage properties securing the credit facility for partial or full satisfaction of the outstanding balance and others as prayed in the Plaint It is also on the records that the 3rd Defendant did not file his Written Statement of defense in time as filed his documents Page 3 of 29 on 30th May 2024. The court thus ordered the matter to proceed Ex Parte against him. Apart from that the witness statement of the 2nd defendant was strike out for being defective thus this matter proceeded ex-parte against. In this suit, the Plaintiff called one witness namely RAHIM LEMA (PW1). In his testimony PW1 testified that the first defendant applied and secured the loan from the plaintiff as per Exhibit P1 and Exhibit P2. He stated that the 1st Defendant applied for a loan and executed two credit facilities agreement which were termed and categorized as term Loan 1 and Term Loan 2. He stated that The Term Loan 1 that is TShs. 1,200,000,000.00/= (One Billion and Two Hundred Million), was applied for the purchase of Petrol Station whereas the Term Loan 2 was for the purchase of Trucks and/Trailers and it was to a tune of TShs. 832,000,000.00/= (Eight Hundred and Thirty-Two Million). In his witness statement, PW1 also referred Exhibit P3, that is Credit facilities which were funded by the Plaintiff and secured by Mortgage of Right of Occupancy, Personal Guarantee and Indemnity Bond dated 17th December 2020, Chattel transfer instruments Mortgage over 10 fleets of Trucks Head and Trailers. In his evidence, PW1 stated that as per the terms and conditions under Exhibit P1 and Exhibit P2 that Term Loan 1 was to be repaid by the 1st Defendant to the Plaintiff in 60 Page 4 of 29 equal monthly installments of TShs. 29,181,669/= each commencing after expiration of six months moratorium period from the date of the first disbursement and for the tenor of sixty-six months. PW1 also testified that under Term Loan 2 the 1st defendant was obliged to repay thirty-six equal monthly installments at the tune of TShs. 29,250,152/= commencing after expiration of six months moratorium period from the date of the first disbursement and for a tenor of forty-two months. He further testified that both Term Loan facilities attracted interest of 16% per annum and upon default they attracted a penal interest at the rate of 3% per annum. PW1 further testified that, the Plaintiff disbursed the said facilities as agreed to the 1st Defendant and the latter enjoyed service of the facility without effecting any repayments to the serviced loan facilities, until 29th day of September 2021 as Evidenced by Exhibit P4 at the instance of the 2nd and 3rd defendants requested for restructure of the credit facilities to support their business growth. In his testimony PW1 testified that pursuant to the request made as evidenced by Exhibit P4, the Plaintiff agreed and extended moratorium period of six months and reviewed the interest rate from 16% per annum to 15% per annum, whereas, all other terms and conditions of the initial facility were retained. Page 5 of 29 He informed the court that despite the Plaintiff discharging her obligation under the terms of the Restructured loan facilities, the 1st Defendant failed to honor and perform the terms of the facility agreement and offer letters by failing to repay the outstanding amount as per the installment and within the time frame agreed. The plaintiff witness PW1 also stated that, following all that, and at the instance of the 2nd and 3rd Defendants, the 1st Defendant requested for further restructuring of the loan facilities and the plaintiff approved the same. PW1 referred Exhibit P5. He testified that despite having restructured the said loan facilities the Defendants yet again defaulted to honor the terms and conditions as a result the said debt accrued compounded normal and penal interest to a tune of TShs. 3,092,913,885.00/=, as at 9th November 2023 a fact which led the Plaintiff to issue Final demand notice and Statutory Notice as Evidenced by Exhibit P6. PW1 further testified that, despite issuance of Final Demand Notice and Statutory Notice as Evidenced by Exhibit P6, the Defendants defaulted to repay the disbursed Loan facilities whereas, the same continue to accrue compounded normal and penal interest to date. The plaintiff supported her evidence with written submission. In her submission the plaintiff through the learned Counsel Page 6 of 29 Mr Simon Barlow Lyimo briefly submitted that it is the Plaintiff prayer that the Defendants be held accountable for their breach of the Loan Agreement reached between the Plaintiff and the Defendants on 25th November 2020 and 17th December 2020 as per Exhibit P1 and Exhibit P2 respectively. He prayed this Court to order the defendants to pay a total amount of Tanzania Shillings Three Billion Ninety- Two Million, Nine Hundred Thirteen Thousand Eight Hundred and Eighty-Five (TShs. 3,092,913,885.00/=) at 09th November 2023 for breaching the terms and conditions of the Credit Loan facility Agreement entered between the Plaintiff and the Defendants. The learned Counsel for the plaintiff referred this court to the decision of the court in Francis Vicent @ Mahimbo versus The National Microfinance Bank PLC, Civil Appeal No. 120 of 2023, Court of Appeal of Tanzania at Tanga (Reported at Tanzlii) at page 14 In addressing whether the Plaintiff suffered loss, the plaintiff counsel briefly submitted that, since the first issue has been answered in affirmative that the Defendant breached the terms and conditions of the Credit Loan Facilities entered between them and the Plaintiff for failure to pay the outstanding amount, it is the Plaintiff who suffered loss. He averred that since there is no evidence to negate the said fact, it is the Plaintiff prayer that the Court finds that the Page 7 of 29 Plaintiff has suffered loss to a tune of Tanzania Shillings Three Billion Ninety-Two Million, Nine Hundred Thirteen Thousand Eight Hundred and Eighty-Five (TShs. 3,092,913,885.00/=) at 09th November 2023. With regard to the issue as to what relief(s) are parties entitled to, the learned Counsel for the plaintiff submitted that since the Plaintiff has managed to prove her case on the balance of probability, then the Plaintiff prays to be granted the Reliefs sought in her Plaint as well as the prayers made during the testimony in chief by PW1 (Mr. Rahim Lema). He prayed the Defendants be declared to have breached the terms and conditions of the Credit Loan Facility Agreement entered between the Plaintiff and the defendants for failure to pay the outstanding amount. He also prayed that the Defendants jointly and severally be ordered to immediately pay the Plaintiff the total sum of Tanzania Shillings Three Billion Ninety-two Million, Nine Hundred Thirteen Thousand Eight Hundred and Eighty-Five (TShs. 3,092,913,885.00/=) as at 09th November 2023. The plaintiff further prayed for an order that the Plaintiff be entitled to dispose of the mortgaged properties securing the credit facility for partial or full satisfaction of the outstanding balance among others as found in the Plaint. Having summarized the evidence of the plaintiff and submission, let me now at this juncture address the key Page 8 of 29 issues. Three legal issues that were agreed for determination by this court included; (i) Whether the Defendants breached the Loan Agreement reached between the Plaintiff and the Defendants on 25th November 2020 and 17th December 2020? (ii) If issue Number 1 is answered in affirmative, whether the Plaintiff suffered loss? (iii) To what relief(s) are parties entitled to? Before I make my final decision, I wish to start determining the key issues as raised. I will start addressing the first issue that, whether the Defendants breached the Loan Agreement reached between them and the Plaintiff on 25th November 2020 and 17th December 2020. I have carefully perused and considered the evidence including other records admitted as exhibits (e.g. Exhibits P1, P2, P3, P4, P5 and others) to this court during hearing. My findings show that the court needs to first address and determine the key issue that is whether there was a contract between the parties and if yes, whether there was a breach of contract and who was in a breach. Indeed, the parties in this suit agreed that one of the issues to be determined is whether there was a contract between the plaintiff and Page 9 of 29 defendants. The records and facts which are not in dispute show that the said credit facilities were secured by the 1st Defendant under several securities and guarantor ship (surety) of the 2nd and 3rd Defendants. The records also reveal that the defendants also secured their loans through Legal mortgage on landed property on Plot No. 41, with Certificate of Title No. 59007 located at Kongowe, Kibaha Township, dated 18th February 2021 registered under the name of the 1st Defendant; Deeds of Personal Guarantee and Indemnity Bond from the 2nd and 3rd Defendants as shareholders and Directors of the 1st Defendant, dated 17th December 2020; and Chattel Mortgage over 10 United of fleets (Truck and Trailers) to be purchased. Reference can also be made to the testimony of PW1 who testified that The Term Loan 1 that is TShs. 1,200,000,000.00/= (One Billion and Two Hundred Millions), was applied for the purchase of Petrol Station whereas the Term Loan 2 was for the purchase of Trucks and/Trailers and it was to a tune of TShs. 832,000,000.00/= (Eight Hundred and Thirty Two Millions). In his witness statement, PW1 also referred Exhibit P3, that is Credit facilities which were funded by the Plaintiff and secured by Mortgage of Right of Page 10 of 29 Occupancy, Personal Guarantee and Indemnity Bond dated 17th December 2020, Chattel transfer instruments Mortgage over 10 fleets of Trucks Head and Trailers. Indeed, parties are bound by the terms and conditions they agreed under the Credit Facility Agreement signed on the 17th December 2020. For instance, Article 1 section 1.01 of the said agreement provides that: “Pursuant to a Sanction Letter for Credit Facilities with reference number BOITL/CR/AO/CR/40 dated 25.11.2020 the Bank has agreed to extend to the Borrower a Term Loan-I (Petrol Station) of TZS. 1,200,000,000.00 (Tanzania Shillings One Billion Two Hundred Million Only) and a Term Loan -II (Trucks/Trailers) of TZS. 832,000,000,00(Tanzania Shillings Eight Hundred Thirty-Two Million Only) to be registered and stamped to cover TZS. 2,540,000,000.00 (Tanzania Shillings Two Billion Five Hundred Forty Million Only) being 125% of the total exposure plus interest and other charges thereon. Page 11 of 29 Reference can also be made to section Article IV section 4.03 (11) of the conditions and terms of the Credit Facility which provides that: “The Borrower by virtue of accepting the terms and condition irrevocably authorize the Lender as under: a) That in case of default in repayment of the sum of amount mentioned hereinabove plus accrued interest and charges, as the case may be, the Lender shall take the matter to the Commercial Court for settlement of the issue. b) To recover the Bank’s various charges to the debit of company’s current account or overdraft account. c) To recover professional fee paid to Collateral Manager if and when appointed”. The above provisions of the terms and conditions agreed by the parties under the Credit Facility Agreement are very clear that there was a binding contractual relationship between the parties. Additionally, the conditions and terms of the Credit Page 12 of 29 Facility that were agreed by the parties are very specific as to what act constitute default of loan payment. For instance, Article X provides that: “The following shall constitute events of default and either cause cancellation/withdrawal of the facility of incur penalties as specified in the Credit Facility Agreement: - a) Invalidity or non-perfection or warranties. b) Breach of representation or warranties. c) Material changes in ownership or management. d) Failure to perform as provided for in related agreements e) Failure to pay indebtedness when due. f) Breach or non-compliance with any of the conditions stated above” The evidence of the plaintiff’s witness in line with the evidence on the documents (Exhibits P-1 up to exhibit P-8) that were admitted by this court clearly show without any doubt that there was a valid loan agreement between the parties. Having realized that there were valid contracts between the plaintiff and the defendants, the next issue is whether there Page 13 of 29 was a breach of contract or loan facility agreements and if yes, the court needs to answer as to who breached the terms of the contract agreed by both parties. It is on the records and evidence that there was an express term of the agreement that the 1st Defendant was required to pay to the plaintiff sum of loan agreed within a specific time. However, the defendant failed to honor the agreement by not making repayment of the loan as agreed. It is also on the records that having realized the defendants failed to comply with the terms and conditions of the loan agreement the plaintiff issued several Legal Demand Notices to the defendants. In its one of the legal demand notices dated 12th June 2023 the plaintiff stated as follows: “As per the terms of the Credit Facilities, the amount advanced to the Company by the Bank was due for repayment after expiration of Six Months and the Company was required to effect monthly payment as per the Sanctioned Credit Facilities. 1. That as per the terms condition of the Sanction Letter for Credit Facilities, the Company was duty bound to effect repayment of interest during the moratorium period of Six months (6) and equal monthly repayment of the loan Page 14 of 29 after the moratorium period of Tshs. 29,181,669.00 for the period of Sixty Months (60) for the Term Loan I and for Term Loan II equal month instalments of Tshs. 29,250,152.00 for the period of Thirty -Six months (36) after 6 months moratorium period. 2. That the letter dated 12th December 2022 referenced BOTL/CR/AQ/15/54 at the Company’s request, the Bank approved restructuring of Term Loan I and Term Loan II in which among other thing the banks restructured Term Loan I and Term Loan I with the following’s terms and conditions: - (a) Term Loan I was restricted and the same was sanctioned at Tshs 1,582,000.00 after capitalization of interest charged during moratorium period on the existing Term Loam II with inters rated at 16% per annum”. The evidence of PW1 in line with the exhibits tendered and admitted in this court clearly show that the defendants breached the terms and conditions of loan agreement as per exhibit P1 and exhibit P2 that is Term Loan 1 which was to be repaid by the 1st Defendant to the Plaintiff in 60 equal Page 15 of 29 monthly installments of TShs. 29,181,669/= each commencing after expiration of six months moratorium period from the date of the first disbursement and for the tenor of sixty-six months. PW1 in his evidence also proved that the defendants breached the terms and condition of the agreement as under Term Loan 2 where the 1st defendant was obliged to repay in thirty-six equal monthly installments at the tune of TShs. 29,250,152/= commencing after expiration of six months moratorium period from the date of the first disbursement and for a tenor of forty-two months. It is also on the records that as per the agreement both Term Loan facilities attracted interest of 16% per annum and upon default, they attracted a penal interest at the rate of 3% per annum. It is also on the records that The Bank, through a Sanction letter for Credit Facilities dated 25th November, 2020 with reference No. BOITL/CR/AO/CR/40 approved the two facilities for a tenor of Sixty (60) equal instalments from the date of first disbursement in respect of the Term Loan I and the Term Loan II was approved for a tenor of Thirty -Six (36) months equal instalments. Before I give my final verdicts, I find it apposite to reiterate what this Court once stated in the case of Agency Cargo Page 16 of 29 International vs. Eurafrican Bank (T) Ltd, Civil Case No.44 of 1998 (unreported), that: “The object of security is to provide a source of satisfaction of the debt covered by it. The Respondent to continue being in the banking business must have funds to lend and which has to be paid by its debtors. If a bank does not recover its loans, it will seriously be an obvious candidate of bankruptcy …It is only fair that banks and their customers should enforce their respective obligations under the banking system.” Worth also referring the decision of the court in International Commercial Bank (T) Ltd vs. Yusuf Mulla and Another, Commercial Case No.108 of 2018 (unreported), where the court observed that: “a contract of guarantee is a contract to perform the promise or discharge the liability of a third person in the case of his default.” Likewise, the court in Exim Bank (Tanzania) Ltd vs. DASCAR Limited & Another, Civil Appeal No.92 of 2009, the Court of Appeal was of the view that: “Once a guaranteed debt is due and the principal debtor has failed to pay it, it is the duty of the surety to pay it together with all the attendant consequences arising from the breach…” From the evidence of both parties in line with the records such exhibits admitted in this court, it is clear that there was a breach of contracts (loan facility agreement, that is the Term Loan 1 and The Term Loan 2). The question to be answered is, who breached the contract between the plaintiff and the defendants? I have clearly gone through the records Page 17 of 29 in line with considering the evidence by the plaintiff and found that there is no dispute that the defendants breached the contract and the plaintiff was right in instituting this suit against them. Briefly the plaintiff proved on the balance of probabilities that the defendants breached the terms and conditions of the Loan Agreements reached between the Plaintiff and the Defendants on 25th November 2020 and 17th December 2020 as per Exhibit P1 and Exhibit P2 respectively. The existence of the contract is also evidenced by Exihibt P-2 that was the sanction letter for term loan facility (TL-1 valued at Tshs 1,200,000/= million and Term-II valued at Tsh.832,000,000/= million). The existence of the contract between the parties can also be reflected from the documents admitted in this court that Exhibits P1, P2 P-3, P- 4, P-5 and P-6, P-7. Indeed, all these documents were signed by both parties which means each party was duty bound by the terms and conditions of agreements. In this regard, the defendants did not discharge all their obligation arising under the contract of repaying the outstanding credit facilities advanced to them contrary to the law of contract. Indeed, the law of Contract CAP 345 [R.E 2019] under section 37 (1) provides that: “The parties to a contract must perform their respective promises, unless such performance is dispensed with Page 18 of 29 or excused under the provisions of this Act or of any other law”. In my considered view, since the parties entered the binding contract, all parties to a contract were duty bound to perform their respective promises, unless parties agreed such performance to be dispensed with or excused under the provisions of this Act or of any other law. In our case at hand, it is indisputable fact that the defendants were duty bound to perform their respective promises. Indeed, there is no evidence to show that the defendants’ promise or contractual obligation was dispensed with or excused of them were bound by the terms and conditions of the contract. I am aware of the position of the law that in civil cases including commercial cases, the burden of proof lies on the plaintiff and the standard of proof is on the balance of probabilities. This simply means that he who alleges must prove as per the provisions of the law that is section 111 and 112 of the Evidence Act, Cap 6 [R.E 2019]. More specifically, section 112 of the Law of Evidence Act, Cap 6 [R.E 2019], provides that:- “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall lie on any other person”. Likewise, section 111 of Cap 6 provides that: Page 19 of 29 “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”. The issue of the burden of proof in civil or commercial cases has also been addressed by the court in various decisions. For instance the court in NATIONAL BANK OF COMMERCE LTD Vs DESIREE & YVONNE TANZANIA & 4 OTHERS, Comm. CASE NO 59 OF 2003( ) HC DSM, observed that:- “The burden of proof in a suit proceeding lies on their person who would fail if no evidence at all were given on either side”. The importance and extent of proof in Civil Cases was well underscored by the court in MCLVER V. POWER [1998] PFIJ No 4, Prince Edward Island Supreme Court, Trial Division where Moc Donald C.J. TD started that: “In any Civil Case the plaintiff must prove their case on a balance of probabilities if they are to succeed. This means that the plaintiff must prove that his facts tip the scale in his favour even if it is only 51% probability that he is correct” [emphasis is mine]. Various authorities have clarified the meaning of balance of probability. A good example is the remarkable decision of the court (a persuasive decision) in RE H (MINORS) [1996] AC 563, where Lord Nichollas observed that: “The balance of probability standard means that the Court is satisfied an event occurred if the Court considers that on the evidence the occurrence of the event was more likely than no” Page 20 of 29 From what I have observed from the evidence it is clear that the plaintiff proved its case on the balance of probabilities that the defendants breached the loan agreements. Looking at the evidence and records it is clear that the act of the 1st defendant to default payment of the outstanding balance for the agreed loan for a long time show that the defendant breached the terms of the sale agreements and plaintiff is right in instituting the suit and claiming its rights at this court. In my considered view, the fact that the defendants failed to pay the plaintiff within the agreed time that was the breach of loan facility Agreements and the plaintiff was entitled to claim the outstanding balance plus other charges as agreed she was entitled to terminate the contract. The court in JOSEPH MNINGA V. ABASS FADHILI & ANOTHER (2001) TLR at page 222, as cited by the plaintiff stated that, “the term fundamental breach is that breach which touches the purpose of the contract. From the foregoing, it follows that, since the principal debtor failed to pay the agreed loan facility means it failed to discharge its obligations, the plaintiff was entitled to demand payments from the first defendant and its guarantors. Page 21 of 29 The other issue is to what reliefs are the parties entitled. As I noted the plaintiff proved her claim on the balance of probabilities, this court has now the duty to determine the relief that the plaintiff is entitled. In this suit, it is the Plaintiff who has the duty to discharge his legal burden of proving the case to the requisite standards. As I did point out at the beginning, as well, that, the standard required in civil cases is generally expressed as proof on a balance of probabilities. Lord Denning J (as he then was) in Miller vs. Minister of Pensions [1947] All E.R. 372; 373, 374, held that: "If the evidence is such that the tribunal can say: We think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not." Similarly, the court in Joseph Constantine Steamship Line vs. Imperial Smelting Corporation Limited [1942] A.C. 154,174, observed that: “the burden of proof rests upon the party (the Plaintiff or the Defendant), who substantially asserts the affirmative of the issue and, that, such a burden remains fixed at the beginning of trial by the state of the pleadings and, it is settled as a question of law remaining unchanged throughout the trial exactly where the pleadings place it and never shifts in any circumstances whatever”. Generally, in any contractual relationship, each of the parties is expected to fully honor her or his contractual obligations. In other words, each party is entitled to perfect performance of the terms agreed which terms, as in this case, Page 22 of 29 include full repayment of all monies advanced and, once the loans are discharged, unconditional and prompt release of all collaterals or securities held by the lender to the borrower. In Simon Kichele Chacha vs. Aveline M. Kilawe, Civil Appeal No.160 of 2018 (unreported), the Court of Appeal of Tanzania was of an emphatic view that: “It is settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract. That is, there should be a sanctity of the contract ….” Under section 37(1) of the Law of Contract Act, Cap.345 R.E 2019, the law does require parties to a contract to perform their respective obligations/promises unless such were dispensed with or excused by the law. In this present suit, before one responds to the second issue, it is imperative to respond to the simple question: which obligations were there on the part of the Plaintiffs? As the facts of this case indicates and as the evidence got availed to this Court, which I have thoroughly discussed above, the gist of the matter is that, the first defendant had, secured a loan facility from the plaintiff relying on guarantorship from the 2nd and 3rd defendants. Now since the 1st, 2nd and 3rd defendants breached the terms and conditions under Exhibit P-1 and exhibit P-2, the question which follows is, what remedies was the plaintiff entitled?. It should be noted that the position of the law is clear that when one party (the defendants in our case) to the contract Page 23 of 29 breaches the contract, the other party or aggrieved party of the contract (the plaintiff in our case) may terminate or rescind the contract and will be entitled for monetary compensation when the contract is breached. In the final analysis, this court declares that Defendants have breached the terms and conditions under the contract agreements they signed. Basing on the analysis of evidence and other records, I hold the plaintiff is entitled to payment of the total sum of Tanzania Shillings Three Billion Ninety Two Million, Nine Hundred Thirteen Thousand Eight Hundred and Eighty Five (TShs. 3,092,913,885.00) as at 09th November 2023. In this regard, the first defendant including the 2nd and 3rd are jointly ordered to pay the plaintiff the total sum of TShs. 3,092,913,885.00. I also wish to address the plaintiff claim on general damages, the plaintiff claims Payment of general damages as can be assessed by the Court due to breach of contract, business frustration in following up overdue payments and other ancillary business inconveniences caused by the said breach by the Defendants. There is no doubt that it is a settled principle of law that in claim for general damages, particulars will not be needed of the quantum of damages claimed. See Page 24 of 29 London and Northern Bank Ltd. v George Newness Ltd. (1900) 16 T.L.R. 433, C.A. It is also clear from the case laws that general damages can be asked for by "a mere statement or prayer of a claim". See Perestrello Companhia Limitada v United Paint Co. Ltd., [1969] 1 W.L.R. 570. The Court in observed that: “If damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question”. The Court in LIVINGSTONE V RAW YARDS CAAL CO (1850) 5 Case 25 clearly explained “damages”, to mean:- “The sum of money which will put the party who has suffered in the same position as he would have been if he has not sustained the wrong for which he is now getting compensation or reparation”. The court Prehn V. Royal Bank of Liverpool, observed that: “General damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man…” It is a trite law that general damages need not be specifically pleaded, they may be asked for a mere statement or prayer of claim. As I observed earlier that while special damages may consist of “out-of-pocket expenses and loss of earnings Page 25 of 29 incurred down to the date of trial, and may be capable of substantially calculation”, general damage is implied by law and may include “compensation for pain and suffering and the like. The court in THE COOPER MOTOR CORPORATION LTD V. MOSHI ARUSHA OCCUPATIONAL HEALTH SERVICES [1990] TLR 96 held that: “general damages need not be specifically pleaded; they may be asked for by a mere statement or prayer of claim” In the present case, the plaintiff was highly affected by the conducts of the defendants and the position of the plaintiff could mostly be retrieved by way of reasonable and justifiable general damages and that is because the loss sustained by the defendants is hugely measured. It is well settled legal principle under our law of contract that where a contract is breached or broken, any party to that contract who suffers as a result of such breach has a right or is entitled to receive from the party who has breached the contract, compensation for any loss or damage caused to him thereby. Indeed, the law of Contract under section 73 is very clear which provides that; “When a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which the parties knew, Page 26 of 29 when they made the contract, to be the likely to result from the breach of it”. Having gone through the records and considered the loss suffered by the plaintiff as a result of the defendants’ failure to honor the contract (loan agreement). I find that the plaintiff suffered damages as a result of the defendants’ failure to honor the terms of the loan agreements and thus this court orders the defendant to pay the plaintiff Tshs.100, 000, 000/= as general damages. The plaintiff has also claimed interests at the contractual rate of 14.5% per month and courts interest on decretal sum of 7% per annum for the date of this judgment. However, I find the claim of interests are high for the defendants to pay. Basing on the analysis of evidence and the records, it follows that, the plaintiff has proved her claims on the balance of probabilities in their claim under the plaint. In this regard, I only order the defendants to pay the plaintiff the interest of contractual rate at 7% per month for the defaulted amount per month from the date of institution of this suit to the date of the judgment. This court also orders the defendants to plaintiff interest on the decretal sum at the rate of 3% per Anum from the date of judgment to the date of full payment of the loan due. This court further order as follows: Page 27 of 29 1. That, in terms of Rule 22 (2) (a) and (b) of the rules, I further order that the decree in this suit shall not be executed unless the decree holder has, within a period of ten (10) days from the date of the expert judgment, published a copy of the decree in at least two newspapers of wide circulation in the country and after the period of twenty one (21) from the date of expiry of the said ten (10) days has elapsed. No orders as to costs. It is so ordered. DATED at DAR-ES-SALAAM, THIS 10th DAY OF December 2024 ......................................... A .J. MAMBI JUDGE Page 28 of 29 Right of Appeal Explained A.J. Mambi Judge 10 of December 2024 th Page 29 of 29