CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL CASE NO. 24 OF 2023 CRDB BANK PLC........................................................................... PLAINTIFF VERSUS ANTONY NZALI MWITA t/a NZALIM STORE...............................DEFENDANT EX PARTE JUDGMENT 14/05/2024 & 27/06/2024 NDUMBARO, J On 4/5/2023, the plaintiff herein, a limited liability company duly incorporated in Tanzania dealing with banking, filed a suit against the defendant for the following orders; i. A declaration that the defendant has breached the loan facility agreement. ii. That the defendant pays the plaintiff the amount of Tshs. 111,125,193/= being the total outstanding loan, interest and penalties emanating from the loan facility. iii. That the defendant pays the above mentioned sum at the commercial rate of 20% per annum from the date of filing this suit to the date of judgment. iv. Court interest at 12% per annum from the date of the judgment to the date when the decree is fully satisfied. v. General damages to be assessed by this honorable court. vi. Costs of the suit and vii.Any further order or relief(s) that this honourable court deem fit. The plaintiff's version of the story giving rise to this suit is best captured in her plaint and it goes as follows; sometimes in 5th November 2021 the plaintiff and the defendant entered into a loan agreement of Tshs. 135, 680, 000/=. The loan was to be used by the defendant as capital for execution of contract No. 00380000P02200043 MMJ/557/- l(NTB)-33 for supply of scaffolding materials to the Ministry of Defence and National services. The plaintiff went on to state that, the loan was to be repaid in four months' period and thus by 9th March 2022 the defendant was supposed to have finished repaying back the loan and the interest thereat. Further to that, the plaintiff stated that, the defendant in a number of occasions has sought extension from the plaintiff to service the loan but still the defendant did not make any efforts to honor the terms of the loan facility as agreed. Despite the several reminders and notices to the defendant to settle the outstanding amount, the defendant has nevertheless failed to discharge his contractual obligation of repaying the loan. In that respect, the plaintiff as a financial institution has incurred loss following the non-payment of the loan by the defendant which is Tshs. 111,125,193/= and therefore, she has decided to file this suit praying for the above stipulated orders. Hearing of this suit proceeded ex parte as the defendant was unreachable for reasons that he had closed business. Having served the defendant by way of publication, hearing proceeded ex parte, in the absence of the defendant. Supporting his case, the plaintiff summoned one witness Mr. Mbelwa Henry Lukambinga, Bank Officer, who under the lead of Mr. Geofrey Saro testified as follows; that, the defendant was their customer and in the year 2020/2021 he was issued with a loan facility of Tshs. 135,680,000/= which was supposed to be repaid within four months. PW1 tendered the loan agreement which was admitted and marked as exhibit PI. PW1 added that the defendant managed to pay back some amount but despite extension of time to pay, several notices and reminders the defendant did not fulfill the terms of the loan agreement to repay the outstanding amount of Tshs. I l l , 125,193/=. PW1 also tendered the demand notice which was admitted in court as exhibit P2. PW1 thus prayed for the judgment and decree against the defendant. Having summarized the evidence of the plaintiff it is now time for determination of this suit, and I shall be guided by the following issues; 3 first, whether the defendant was issued with the total loan at the sum of Tshs. 135,680,000/=, second, whether the defendant defaulted to repay the loan and lastly, to what reliefs are the parties entitled to. As to the first issue, examining the evidence adduced by the plaintiff especially the documents so tendered and received by the court, there is direct evidence which can justify this court to certainly hold that the plaintiff issued a loan facility to the defendant. This is clearly evidenced through the loan agreement dated 5th November 2021 which shows that the defendant was issued with a loan facility to the tune of Tshs. 135,680,000/=. That said, the first issue is answered in affirmative. On the second issue, whether the defendant defaulted to repay the loan. PW1 while testifying stated that the defendant was issued with the loan to the tune of Tshs. 135,680,000/=. According to section 110 of the Evidence Act, Cap 6 Revised Edition, 2002 provides for an obligation on a party who alleges existence of certain facts to prove existence of such facts, for the sake of clarity the same is hereby quoted: "110 (1) Whoever desires any court to give judgement as any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist." It should also be noted that the standard of proof in civil cases is on the balance of probabilities, which simply means that the court will sustain such evidence which is more credible than that of the other on a particular fact to be proved. In the light of the above cited provision of the law, it is the plaintiff in this case who is supposed to prove the fact that the defendant is indebted Tshs. 111,125,193/= and not otherwise. A carefully examination of the evidence adduced by the plaintiff, the extent of default is not established by any documentary evidence to clearly show the non-payment of the debt as alleged by the plaintiff save for a demand notice and intention to pursue recovery remedies dated 2nd December 2022 (exhibit P2). Since the plaintiff stated that when the defendant was issued with the loan, the money was remitted into his account, therefore it is the expectation of this court that the plaintiff could have given the statement of accounts of the defendant on the basis that it is the bank statement which is more accurate and the one which will reveal the repayment of the loan plus the outstanding balance. In the matter at hand, it is only stated that the defendant herein was only able to pay some amount but it is not sufficiently established which amount was paid by the defendant save for the remaining amount which the plaintiff claims. At this point it is very questionable as to the status of the loan. In fact, the plaintiff is a financial institution, there is no doubt that she keeps very well the records of her clients and it is the very same records that would have helped this court to know when the defendant started to repay the loan and at what stage he defaulted to repay the said loan, moreover, through the same records this court would be able to know the amount that was repaid by the defendant together with the outstanding balance. This position was reiterated by this court in the case of KCB Bank Tanzania Limited vs Sunlon General Building Constructors Ltd & 2 others, Commercial Case No. 73 of 2013, where it was stated that; "As the law has it, proof o f a claim is none other than by documentary evidence through which the court will be able to assess the definite amount claimed." It is unfortunate that, despite the fact that the matter was heard ex parte, but yet, there is very scanty of evidence on the part of the plaintiff to enable this court to hold that the defendant defaulted to repay the outstanding balance of Tshs. I ll, 125,193/=. In the premises, I am afraid to hold this issue in affirmative following the shortage of enough evidence to prove the same, and therefore this issue is answered in negative. 6 The above said, I now turn to the last issue, to what reliefs are parties entitled to. As already explained above, the plaintiff failed to prove her case on the balance of probabilities. Consequently, the plaintiffs suit is hereby dismissed for want of merit. No order as to costs is issued. It is so ordered. 7