20171017 TZHC Dar es Salaam

I . ·~, 'i . ,;, i IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO 187 OF 2015 VERSUS AGNES FREDRICK MGONGO ...................................... DEFENDANT JUDGMENT Date of Last Order: 19 /9/201 7 Date of Judgment: 17/10/2017 I 1 Munisi,J ' On 10th day of December, 2015 the plaintiff, a limited liability company incorporated in Tanz·onia filed the present suit against the defendant a natural person who was formerly its employee seeking the following reliefs: Page 1 of 12 I, a) A declaration that the defendant breached the credit facilities agreements by his failure to discharge his duties and obligations in accordance with the agreements. b) That the defendant be ordered to immediately pay to the plaintiff the outstanding amount of TZS 35,416,801.25 say -fa-nzcfr1-iaff-sni-Uings-fh-ir-t-y--five--mlllion._touL_hL.J_ndred sixteen -- - - - - - - -- ---- - thousands eight hundred and one cents twenty five only accrued from the credit facilities agreement. c) Payment of the default rate of interest charged from the date of the breach of the terms and conditions of the credit facilities agreements to the dote of full payment of the outstanding amount. d) Payment of general damages to cover the loss the plaintiff suffered for the defendant failure to discharge his duties and obligations under the credit agreement as assessed by the court. Page 2 of 12 e) Payment of interest on the decretal amount from the due to the date of full payment thereof at the prevailing commercial rate. f) The defendant pays the plaintiffs costs of this suit. g) The defendant be condemned to pay the plaintiff costs of and any incidental detriments to the suit.-- h) Any other relief this court deem fit to grant. Attempts to serve the defendant with the plaint through the normal mode failed thus plaintiff prayed to serve her through substituted service. Accordingly, service was effected through Mwananch Newspaper issue of 16/7/2016. Despite the said service, defendant neglected to file her written statement of defence or enter any appearance. For that reason, plaintiff prayed and was granted leave to prove its case ex-parte on 29 th day of October, 2016. Before the hearing began the following issues were drawn and agreed upon for the determination of this suit; Page 3 of 12 f'I Ji (i) Whether the plaintiff extended a credit facility to the defendant (ii) Whether the defendant 1s 1n breach to the credit facility agreement (iii) To what reliefs are the parties entitled 'to. - - -- - - - - - - - - - -- - - - ----------------- ------- The plaintiff sufnmoffed-thre-e-witAesses-to-prov_e_ lts_ 9g_se. ___ -PW 1 was-- ------ Hilorims Mayomo a remedial officer in the plaintiff's bank. His testimony was to the effect that, his duties included collecting debts from un-paying clients on behalf of the plaintiff. In that capacity he pursued the defendant who was one of the debtors. He testified that defendant was one of the Bank's clients who opened an account and thereafter obtained a loan. He went on that at the time of filing this suit, the amount due was Tshs 35,416,801.25, being principal sum plus interest, adding that there are also other consequential claims. He testified further that the loan agreement was executed on 22/8/2011 and it combined two loans i.e. the 1st one plaintiff took over from Barclays Bank of Tshs. 10.5 Million which defendant had taken while under the latter's employment and the 2nd one of 16.5 Page 4 of 12 Million taken from the plaintiff as car loan. PWl said both loans were payable within three years from January 2012 to October 2016 at a rate of Tshs. 325,308/= per month. According to PW 1, defendant serviced the two loans for only four months at the rate of 7% interest rate before she abandoned the job -ano-aisappeared-withet.1t--r:iot-ie-e-to-the__pJaJnJjft._f_'t{_l __t~i:1_der~9 fo_~r loan account statements from January 2012 up to October, 2016, two current account statements and two current account statements which were admitted collectively as exhibit P1. PW 1 concluded his testimony by remarkingstating that despite the disappearance of the defendant, the two loans still accrues interest on the unpaid amount, adding that out of the scheduled 60 installments, she paid only 4 installments. PW2 was Zainab Issa Mushi, the plaintiff's Head of Human Resource Unit since February, 2010. Her evidence was to the effect that; she knows the defendant as a person employed by the plaintiff {Commercial Bank of Africa) in the capacity of Customer Service Manager on 15/7/2011. She went on that the defendant worked Page 5 of 12 only for six month before tendering her resignation letter in January 2012. She said that by that time, defendant had two un-serviced loans; the 1st one of over 10 Million which she got employed with and plaintiff took it over from Barclays bank and the 2nd one of over 16 Million which she ontained from the plaintiff after securing ·----------em-131Gyment.J?W2Je1tLfied further that the loan was to be serviced in -------- equal installments- of ab6ut-TSns· 300~0001= per montt-"l.-PW2 tendered_ an offer letter for the 1st loan taken over from Barclays Bank dated 22/8/2011 and the 2nd offer letter dated 21/9/2011 which were admitted as exhibits P2 and P3 respectively. PW2 said for the two loans, defendant obtained a total of TShs 27,029,000/= both of which were to be repaid through installments of a total of Tshs 643,000/= monthly. She testified further that through her salary of TShs 2,000,000/=, defendant was capable of servicing both loans without difficulty; she however paid only for four installments and stopped. As for the security, PW2 explained that the 2nd loan which was for purchasing a car defendant secured it with the car registration card and the same is still in the bank custody to date otherwise the 1st Page 6 of 12 loan had no security. PW2 went on that despite efforts to trace defendant and make her service the loan, she completely vanished after her resignation and had never turned up for any resolution of the debt. PW2 said the bank tried to locate her by different means including sending a letter through her registered personal address ---------btJt-s-he--HeV-er:--r:es.p_o_odect_ a letter dated 5.4.2013 addressed to . ----------------------- Agnes F. Mgongo was admitted as exhibit P4. PW2 also tendered the defendant's letter of employment which was admitted as exhibit P5 which showed that defendant was to be on probation for six months from 15/7/2011 when her employment took effect. PW2 wound up her testimony by urging the court to grant all the reliefs sought because the defendant absconded without satisfying her part of the loan. PW3 was Samwel Ernest Mangesho, the Legal Manager in the Legal and Recovery Department of the plaintiff. His evidence was to the effect that; he knows Agnes Fredrick Mgongo as she was an employee of the Commercial Bank of Africa Ltd before she resigned from employment. He explained that at the time of her resignation Page 7 of 12 defendant had two subsisting loans which she had accessed as part of the employment benefits i.e. personal loan and car loan. For the car loan the collateral was the car itself i.e. Toyota Premio, Reg. No. T206 BUC, in that regard, the Bank retained the Registration Card which he prayed to tender and the same was admitted as exhibit P6. PW3 also tendered a Valuation Report of the said car which was ------~-~-- ----- ----- ----- ---- admitted as exhibit P7, adding that the car was registered in two names i.e. the defendant's name and the plaintiff name. PW3 further told the court that initially, the loan had a staff rate of 7% but following the default the same was trar-isformed into a commercial loan with the rate of 23%. PW3 said efforts to tre:s.~ the defendant with a view of regulating ~er account failed as she was untraceable. He went on that they issued a demand notice to the defendant informing her that following the default, she had to pay the loan as a normal commercial client, he tendered the same which was admitted as exhibit P8. PW3 added that due to the defendant's failure to comply with the demand notice in September 2016, the plaintiff resolved to file the present case to claim for the Page 8 of 12 unpaid part of the loan. PW3 concluded his testimony by urging the court to grant all the reliefs sought in the plaint. With the above evidence, Miss Tokutoola, learned counsel prayed to close the plaintiff's case which was accordingly marked closed. As intimated earlier on, before the trial began; three issues were adduced by the plaintiff, I will answer them serially in the order they were framed. With regard to the 1st issue; whether the plaintiff extended a credit facility to the defendant, it apparently clear from the evidence adduced by the three witnesses and the exhibits tendered that a credit facility was extended to the defendant. Exhibits P2 and P3 are very explicit that a staff credit facility was extended to one Agness Fredrick Mgongo who is the defendant in this suit. Exhibit P2 states the purpose of the facility to be; taking over outstanding loan at Barclays Bank (ranzania) Limited ... " Exhibit P3 which relate to the 2nd loan, shows clearly that the credit facility was extended for the purpose of purchasing a car. Both agreements show that they were dully executed and signed on each page by Page 9 of 12 the representative of the plaintiff and the defendant. At page five of the said two agreements, the defendant made a declaration undertaking compliance with the terms and conditions of the Employment's credit facility offer letters dated 22/8/2011 and 21/9/2011 respectively. In that regard, there is ample evidence to ____________ p_r_ove_ih_at the defendant was an employee of the plaintiff for about ----------- --~--- six -months 6s - pe( -PW2's -evidenee -ond -exhibit_ F-'5 _before sh_e__ absconded and that she had obtained the two credit facilities which she only serviced for four months. The 1st issue is thus answered in the affirmative. With regard to the 2nd issue; whether the defendant is in breach to the credit facility agreements, having answered the 1st issue in the affirmative, I have no doubt the answer here is also in the affirmative. All the three witnesses were at one that the defendant absconded from her employment after servicing the loan for only four months. According to PW3 the defendant neglected to respond to the demand notice sent to her through her -registered address - exhibit PB, despite the said notice which indicate to have been received by Page 10 of 12 the defendant on 7/4/2017, there was no response, the reason why they resorted to filing the present suit. There is no doubt that there is ample evidence to substantiate the 2nd is_sue that indeed defendant breached the terms of the two loan agreements contained in exhibit P2 and P3. The 2nd issue has thus been adequately proved and it is ____ - - - -answered in the affirmative. --------- - - - - - - -- - - ~ - - - - - - - - -- - - - - - - - With regard to the 3rd issue, as to what reliefs· are rnEf pc:::rrties-entitl-ed-- -- -- --- - to, I am satisfied that from the evidence adduced by the plaintiff, the case against the defendant has been proved on the balance of probabilities as required by law. Consequently, I hereby grant prayer a}, b}, c}, e}, fl and g}. With regard to prayer d}, the evidence did not elaborate the nature of the general damage suffered, there was however evidence that plaintiff suffered inconvenience in tracing the defendant. Having given due consideration to this prayer I refrain from granting it in view of the fact that I have granted prayer g} which gives the plaintiff room to get costs incidental to the costs it incurred. Under the circumstances prayer d) is declined. Page 11 of 12 The suit thus succeeds to the extent explained herein above. ------- Judgmenfaelivereu-in-E·fl0ITT-Qer-s--in_tb_e_J~f§Jence of the Miss Asia Tokutoola, learned counsel for the Plaintiff and-i~-theabsence qflhe---------~-- Defendant, this 17/10/2017. i I Jud 17/1 Page 12 of 12 t,