crdb bank plc vs dickson casmiri shio 2022 tzhccomd 145 3 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO.119 OF 2021 CRDB BANK PLC.......................................................... PLAINTIFF. VERSUS DICKSON CASMIRI SHIO........................................... DEFENDANT. . Date Last order 30/03/2022. Date of Judgment 03/05/2022. DEFAULT JUDGMENT, Z.A MARUMA J. The plaintiff is a limited company incorporated and licensed under the laws of Tanzania. Before this Court the plaintiff is claiming against the defendant for judgment and a decree of immediate payment of TZS one hundred twenty-nine million one hundred thirty-six thousand seven hundred sixty one and sixty three cents (TZS. 129,136,761.63) being outstanding balance of the loan and accrued interest arising from the defendant's breach of the terms of credit facility agreement resulted from the following reliefs: 1. An order for payment of TZS one hundred twenty-nine million one hundred thirty-six thousand seven hundred sixty one and sixty three cents (TZS. 129,136,761.63) being outstanding balance of the loan and interest thereon. 2. An order for payment of commercial rate interest of 21% per annum from the date of instituting this suit to the date of judgment. 3. An order for payment of court interest rate of 7% per annum from the date of the judgment to the date of full payment of the decretal amount. 4. An order for payment of general damage as may be assessed by the honorable court. 5. Costs of the suit 6. Any other relief(s) which this honorable Court deems fit and just to grant. Upon the perusal of record, I have found that there were efforts made to trace the defendant and his whereabout which have been proved futile. Proceedings herein shows that since 11th November 2021 when the order of re-service to the defendant has been issued due to failure of servicing him through his last address, the plaintiff has failed to locate the whereabout of the defendant. This was followed by an order of substituted service which was granted on 2nd December 2021. The order was executed through publication in the newspaper and The Citizen and Mwananchi on 1st February 2022 unsuccessful as no any respond from the defendant hence this application for default judgment under rule 22 (1) of the Commercial Court Rules of 2014. For guidance I quote; " Where anyparty required to file written statement ofdefence fails to do so within the specified period or where such period has been extended in accordance with sub rule (2) of rule 19, within the period ofsuch extension, the Court shall upon proof of service and on application by the plaintiff in Form No.l set out in the Schedule to these Rules enterjudgment in favour of the plaintiff". Based on the sequential procedural steps above, the compliance of sine qua non for the grant of the default judgment have been met. However, I find it is prudent to go through the plaint and attached documents therein to prove the claim. Having going through the documents, I am certain that, the defendant entered into a loan agreement with the plaintiff on 25th March 2019 for a loan of TZS 100,000,000/= for the period of seventy-two months (Exhibit Pl) attached to the affidavit. The terms for payment include 17% interest paid monthly. The claim showed that the defendant had service the loan for 13 installments (exhibit P2) and entered a default from 31st August to 24th 2020 to September 2019 which make an outstanding amount of the claim. Procedures to under in case of default as per terms of the loan agreement have been mate (exhibit P3) with no fruit. However, I failed to find the basis for 21% for commercial interest. In the same manner on the prayer for the general damage, granting of it is a discretion of the Court which should be exercised judicially. Moreover, the general damages must be assessed as being the direct, natural or probable consequences of the wrongful act as stated in the case of Tanesco Versus Ibrahim Ford, Civil Appeal No. 99 of 1999 (Unreported). Assessing the pleadings and documents attached in the present case, I have seen no basis to warrant the prayer of general damages. In the event, based on the facts and the findings above, in terms of rule 22(2) 22 (1) of the Commercial Court Rules of 2014, read mutandis mutandis with Order VIII rule 14 (1) of the Civil Procedure Code, Cap. 33 R.E of 2019. I therefore, enter a judgment for the plaintiff in the following terms; 1. The defendant to pay the accrue outstanding loan balance and interest of 17% at a tune of TZS 129,136,761.63/= (One hundred twenty-nine million one hundred thirty-six thousand seven hundred sixty- one and sixty- three cents). 2. The defendant shall pay an interest on the decretal sum at court's rate of 7% per annum from the date of the judgment to the date of full and final payment. 3. The defendant shall pay to the plaintiff costs of this suit. I further direct that; the decree of this case should be executed in compliance with the terms under rule 22 (2) (a) and (b) of the Rules. It is so ordered. * Z. A. Maruma, J 03/05/2022