national bank of commerce ltd vs deogratius john ndejembi 2019 tzhccomd 167 13 september 2019

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE N0.100 OF 2018 NATIONAL BANK OF COMMERCE................................ PLAINTIFF VERSUS DEOGRATIUS JOHN NDEJEMBI....................... k... DEFENDANT DEFAULT JUDGEMENT! MAGOIGA. J. ^ _ The plaintiff, NATIONAL B A N I ft n T n by a plaint instituted the instant suitjro ffnst tnHsabo^fcgmed defendant praying for judgement and decrgB in !|g fb llg flg orSirs, namely: - a) A decla ^ ^ ^ th a ^ il^ j 3v t h d efendant to pay the plaintiff the whole olt^i ou fja n dirigifimount of the personal loan facility amounts JjftreitT|jQ f gfeyp p lfiin a l loan agreement dated 25th April, 2015. b) the dif|nd arii be ordered to immediately pay the plaintiff the o u tsia ig m jp mount of Tshs.89,732,945.00 (say Tanzania shilling Eight nine million, seven hundred thirty two thousand, nine hundred forty five shillings) being principal amount of the outstanding personal loan facility and interest as of 20th December 2016 arising out of group personal loan agreement dated 20th April 2015 between the plaintiff and the defendant. c) Payment of default interest 24% annum charged from 20th December, 2016 when the account was written off to the date of judgment. d) Payment of interest of 12% per annum d ilja e d e c ria l sum from the date of judgment to the date of fulMlgym eill^ e) Payment of general demerqeJ i j t o e r ifce loJBlhe plaintiff suffered for the for the defendant^%ilur#i®, d ilS M lfe ifs obligation under the agreement. j| f ^ f) The d e fe n d a n t's ^ ^ t iK o ^ ^ f tfll suit. g) Any ot^ jprelil^ thai^ ^ honouiible court may deem fit to grant. uP°n plaint, the defendant through Mr. Samwel P a sci||Magau,5l|^rrli||^advocate/ filed written statement of defence d isp u tin |i|j^ p lain jj,s claims and prayed that the instant suit be dismissed with costs. The facts of the instant suit as gathered from the plaint are that on 20th April 2015, the defendant applied for group personal loan which was approved by the plaintiff to the tune of Tshs.70/000,000/=. The facts go that it was agreed that the loan was to be paid by equal monthly installments of Tshs. 1,777,539.92 for sixty months. The facts further go that the defendant defaulted and failed to comply with payment schedule agreed in the group personal loan agreement, dated 29th April 2015. The plaintiff further alleged that failure by defendant to ^ ^ principal sum and interest as agreed in the loan agreement consi l i i e breaffltof the personal loan facility agreement, and as such cau damage to the plaintiff despite several demili§ * h e n c » th is 5jj[t claiming reliefs as contained in the plaint. _ w the same was fixed for 1st pre trial conferi|jg c ^ l2 ^ 2 /2 fM - K it on that date the learned insel for plaintiff prayed ie then was) under Rule 31 (1) (b) of the Rules|j) stru ck^ | th^||fence, which prayer was granted and the defence of the d ljgjd ant w n struck out from the record. Against this background, Mr. Charles S h p T le a rn e d advocate for plaintiff prayed to proceed with this matter under Rule 22 (1) of the Rules by filling an application for default judgment, which prayer was granted hence this default judgment. The learned counsel complied by filing form N o.l to the schedule and same was accompanied by affidavit in proof of the claim. The relevant Rule 22 (1) now is couched in the following language: - Rule 22 (1) Where any party required to file written statement of defence fails to do so within the specified period or where such period has been extended in accordance with Sub rule (2) of Rule 20, within the period of such extensioi i the Cdl^fr may, upon proof of service and on application€iy the plaintiff in Fnrm N o.l set out in the schedule to theselfcles a llim p ille d bv an affidavit in proof of the claim, e nter iiliq e ilR f c i n ' fa v o u r of the plaintiff.(emphasis m iifl) ^ The task of this cou|t now is to de^i-miWe whether the affidavit filed sufficiently i^ p s if^ d a T l^ g s by law. However, in determining this ISkframe some issues which will assist this court|l| d etern f||jtib l|jf the affidavit in proof in order to do justice to parties. These are, lam ely:- 1) W hethertfltre was a loan agreement between the parties and to what tuned. 2) If issue number 1 is answered in the affirmative, whether there was breach of the terms of the agreement. 4 3) What relief(s) parties are entitled to This Court, in its recent decision faced with similar prayer of default judgement following the amendment of Rule 22(1) of this Court's Rules, in the case of NITRO EXPLOSIVE LIMITED v. TANZANITE ONE MINING LIMITED, COMMERCIAL CASE NO 118 OF As, (HC) ARUSHA) (Unreported) observed that following the amdjjgtngnt oniae Rules of this Court by GN.107 of 2019, in particular, RUg 22 f t ) d g fU fc iu lT p n i- now is not an automatic prayer but sanfHinay o llv be g ran ted upon proof of the claim by affldavit^(^p%||§ rmlj^^1*8!!^ , w The Court further pointejjjfout an^ hl^ Jha^ ^ ere are three ingredients that under the new^^e l||gp(IT) of^lje Wiles that one has to consider seriously whfjpllS|0 w ^ ^^^^^ B iely:- a- ^ to iila in f ^ iJ iW i g p r ilrv ic e to the defendant who has failed to |[e a defe^g o^ ^ efence was filed same has been struck out from thitecord, s<J§>asically no defence at all. b. The plaintSfTmust make an application by filing Form no.l in the First Schedule to the Rules. c. The said Form N o.l must be accompanied by affidavit in proof of the claim. Further the Court observed and held that several points must be considered and be given paramount in the affidavit in proof of the claim, to wit: One, affidavit being a substitute of oral evidence, is to prove every claim in the plaint regardless of the same not undergoing the rigour huddles of its admission and weight it carries. Tw c^ ^ e affidavit in proof must be self- explanatory, containing all d etailsiif the c l^ ^ n d where it is to be accompanied by exhibits, same must comply with tllfei law nt^viHpnrp in admissibility of documentary evidence. Authenticil/ of all documentary evidence cannot be co m p ro m |se d J^ p f% |ca liW ^ o o f by affidavit. Now back into the in s t# suit, th e '% in ti% affidavit stated to have entered into groupsi|ersS||Joan a p ^ a B n and agreement with the defendant to^p^ra^of^^s.71pHMPD0/=. The said amount is stated to have b ia iB £ g d it ^ | P ilte eperMnaI account of the defendant called CASA Account producSi05 ^^18205013342 according to the uncertified copy of the Groi% Person#£oan Application and Agreement form attached. The plaintiff annexSCf to the affidavit an unauthenticated and uncertified photocopy of the bank statement account No.018450010569 in the name of the defendant. The demand notice stated as NBC 2 in the affidavit in proof of the claim was not annexed at all in the affidavit. The above stated documentary evidence are the only evidence attached in support of proof of the claim by the affidavit. This court upon traversing through the entire affidavit together with the accompanied exhibits, I find the exhibit annexed are inadmissible in evidence: One, they are photocopies and even when the court orally prayei%g be given originals from the learned counsel for plaintiff, thell iie sunnlfel am scanned documents and copy of the downloaded % nk st^ m (^ ^ ||ic^ P lta m p e d but with no signature of the bank o ffc L w h ^ p w im a d e d or certification to authenticate its accuracy.^ Sec^ ^ lS^ to^ ^ ^ t n l Transactions Act, no. 13 of 2015 is speak v||imenougJy M jU o J llo w to deal with electronic data message. This vlte ndlipneR o tU lb a rif statement annexed. Two, the endant which is said to have been is different from the one which is in the grouf^ersonaH(||n Ipplication and agreement. These two accounts are accounf%gL01820jf§13342 in the group personal loan Application and agreement arrcflccount No.018450010569 in the statement of account sought to prove the disbursement. Further scrutiny revealed that there is another account No.018213008029 named salary account number. Nevertheless, there is no single paragraph in the affidavit which state any clarification of the three accounts, as to which one was the proper and genuine which was disbursed with the money. In normal practice one would expect the account number in the Group Personal Loan Application and Agreement to be the number that was disbursed with the amount in question. The variance between the bank statefcp t and the Group Personal Loan Application and Agreement wasf c t . msnlvBiyn the affidavit in proof of the claim. This created dou|ts asHa IM Fniaini-iff indeed, disbursed the money, and iif: it didfawhv fifo different account number from the one in the a^pl'i^fen i i d anW iflijBi-i ” Three, proof by affidavijpo not j x e ^ p lB p s to abide with Rules of evidence in the pr^ ^ ctio^ pf loculj|yntsrin secondary form. At least certified c o p j^ ^ ^ ^ n a l^ g n ^ H P ^ h o to c o p ie d documentary evidence t e n d e g g t o s ^ llt f W lf t xIes llid . So, on the totality of the reasons given abov^ the plcilj|j|f l^ r ly failed to proof whether there was a loan agreem^^etwee^Dlaintiff and defendant and to what tune. The plaintiff, being the cusTOTan of all loan agreements documents, utterly failed to state as to why she didn't want to produce the original documents in prove of her claim leave a lot to be desired. Therefore, issue number one is to be answered in the negative. The answering of issue number one in the negative automatically extinguishes issue number two in the circumstances. Not only issue 2 but also issue number 3 dies a natural death in the circumstances. Therefore, that said and done, the J §ge suit stands to fail and same is hereby dismissed with no order a It is so ordered. Dated in Dar es Salaam this 13th da 9