eco bank tanzania limited v zeds logistics limited 2022 tzhccomd 104 29 april 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 85 OF 2019 ECOBANK TANZANIA LIMITED.................................. PLAINTIFF

VERSUS ZEDS LOGISTIC LIMITED......................................................... 1stDEFENDANT ZULFIKAR HUSSEIN DEWJI................................ 2nd DEFENDANT ABBAS ZULFIKAR DEWJI.......................................................... 3rdDEFENDANT Date of Last order: 05/04/2022 Date of Judgement: 29/0/2022

JUDGEMENT MAGOIGA, J. The plaintiff, ECOBANK TANZANIA LIMITED by a plaint instituted the instant suit against the above-named defendants jointly and severally praying for judgement and decree in the following orders: - i. A declaration that, the defendant has breached the terms of the respective credit facility letter as well as the joint and several personal guarantee and indemnity; ii. An order against the defendants for the payment of an outstanding balance of Tanzania Shillings Seven Hundred and 1 Five Million Ninety-One Thousand Seven Hundred Forty-Seven (TZS. 705,091,747/=); iii. Payment of Commercial interest as 21% on the principal sum from the date of commencement of this suit to the date of judgement; iv. Payment of interest on decretal sum at the rate of 12%; v. Costs of this suit; and vi. Any other relief(s) as the court may deem fit and just to grant. Upon being served with the plaint, the defendants filed joint written statement of defence admitting the outstanding amount of TZS.370,940, 338/= on rider that same was not settled because the whole arrangement was frustrated by the plaintiff after seizing and confiscating the trucks that were the sole source of the business of defendants and refusal to restructure the loan. Simultaneously, the defendants raised a counter claim against the plaintiff praying for judgement and decree in the following orders, namely: a.

A finding that the defendants did maliciously and unlawfully confiscating and seizing the plaintiff motor vehicles; b. An order for payments of USD.2,500,000/= say (United States Dollars Two Million Five Hundred Thousand only) being specific 2 damages for the loss of business following the unlawful confiscation and seizing of plaintiffs' in the counter claim motor vehicles; c. An order for payments of general damages at an amount to be assessed by this honorable court; d. An order for payment of an interest on the above payments at the commercial rate of 16% from the date of cause of action to the date of judgement; e. An order for payments of interest on decretal sum at court's rate of 12% from the date of judgement to the date of full satisfactions of the decree; f. Costs of this suit be paid by the defendant; g. Any other relief (s) this Honorable court may deem just and equitable to grant. The facts pertaining to this suit which are not disputed are that on 27th June, 2014, the plaintiff made available to the 1st defendant, a credit facility for asset financing to the tune TZS.811,000,000/ for purposes of financing acquisition of ten units of trucks and trailers from Asset Wall Limited. The said facility, among others, was to attract an interest rate of 19% per annum and was to be paid within a period of thirty-six (36) months. Facts go that as security for such facility,

1st defendant issued a specific debenture in favors of plaintiff over the 1st defendant's fixed and floating assets, joint and several personal guarantees of the 2nd and, 3rddefendants. Further facts were that, defendants defaulted in repayment of the principal sum plus interest, which act constituted an event of default under clause (16) of the Credit facility letters and clause 10(1) of the debenture. Efforts by the plaintiff through his lawyers to have the money repaid were in vain, hence, this suit claiming for payments of an outstanding of TZS.705,097,747/= as per 1st August, 2018 and other consequential prayers as contained in the plaint. On the other hand, the facts as to the counter claim were that in the course of business, the terms of the facility letters were frustrated by the plaintiff without a good cause as such breached the lease financing agreement by illegal confiscating and sale of plaintiffs in the counter claim vehicles which was a core business of the plaintiff. The plaintiff as result suffered heavy damages. Further facts were that, the defendant in the counter claim refusal to reschedule the loan, affected plaintiffs ability to repay back the loan. Further facts were that, upon illegal confiscation of plaintiff's motors vehicles the third parties he had contracted with terminated the contract. These, according to the plaintiff 4 in the counter claim,

caused her to suffer serious trading losses, hence, this counter claim claiming the prayers as contained in the amended written statement of defence. The plaintiff at all material has been enjoying the legal services of Mr. Joseph Mbogela, learned advocate. On the other adversary part, the 1st and 2nddefendants at all material time were enjoying the legal service Mr. Respicus Didace, learned advocate. Before hearing started the following issues were framed and agreed between parties for the determination of this suit, namely: 1. Whether there was breach of the facility agreements between the parties if so, by who?

2. Whether the confiscation of 1st defendant's Motor Vehicles was justified; 3. To what reliefs parties are entitled to? In proof of the suit, the plaintiff called one witness Ms. NAOMI OCTAVIA AMBWENE (to be referred herein in these proceedings as'PWr). PW1 under oath and through her witness statement adopted in these proceedings as his testimony in chief told the court that, she is the Recovery Officer of the plaintiff. PW1 went on testifying that, on 24th June, 2014, the 1st defendant through his directors the 2nd and 3rd 5 defendants requested and accessed the sum of TZS. 811,000,000/ for purpose of financing acquisition of ten units of 10 trucks and 10 trailers from Asset Wall Limited. PW1 went on to tell the court that, the terms of the facility agreements were that: The facilities were to be secured by a debenture over defendant's fixed and floating assets, joint and several personal guarantees of the 2nd, and 3rd defendants. It was further agreed that, the loan amount was to be repaid within thirty-six (36) months in monthly installments. PW1 went on with her testimony by telling the court that, in addition to the terms, on 12th August, 2014 defendant executed personal guarantees to guarantee the obligations and liabilities of 1st defendant and agreed to pay on demand all money, obligations and liabilities of the 1st defendant among others. According to PW1, the 1st

defendant failed to meet its obligations under the facility as such sometimes on 2016, the 1st defendant requested and the plaintiff agreed to reschedule the outstanding facility on the condition among others, that the 1st defendant to submit an audited financial statement to the plaintiff. Despite the request, the rescheduling was not completed because 1st defendant failed to honor the terms and conditions for rescheduling among other submission of audited financial statement to the plaintiff. PW1 went on to tell the court that, following defendant's failure to honor terms and conditions of the 6 credit facility and rescheduling, the plaintiff sold some tracks to recover the debt. However, most of the trucks were in bad conditions, some were not working and some had no engines which were removed by the 1st defendant with the intention not to pay debt. Further testimony of PW1 were that, plaintiff sold eight (8) Motor vehicles namely; -Vehicles Nos. T522DCK, T530 DCK, T532 DCK, T536DCK, T 524 DCK, T 526 DCK, T 527 DCK, T 534 DCK tractors head and Tractors respectively at the total value of TZS. 109,500,000/=. Testifying further PW1 told the court that, the power to sale 1st defendants assets was derived from credit facility following 1st defendant failure to heed to demand notice which was issued on 27th March,2019 informing the default and sought payment of the outstanding.

However, the 1st defendant failed and/or neglected to pay the outstanding amount due which as of 1st August, 2018 stood at TZS.705,091,747/=. On the basis of the above testimony, PW1 prayed that this court be pleased to enter judgement and decree against all defendants as prayed in the plaint. In proof of the above facts, PW1 tendered in evidence the following exhibits, namely: - 1. Credit facility dated 27/06/2014 as exhibit Pl; 7 2. Specific Debenture dated 12/10/2014 between plaintiff and 1st defendants as exhibit P2; 3. Personal Guarantee and indemnity of Zulfikar Hussein Dewji and Abbas Zulfikar Dewji dated 12/08/2014 as exhibit P3a-b; 4. Demand notice dated 21/3/2016 as exhibit P4; 5. Demand notice dated 27/3/2016 as exhibit P5; 6. Affidavit as to authentic of electronic evidence and Bank statement as exhibit P6; Under cross examination by Mr. Didace, PW1 told the court that, she is a graduate with Business Administration degree and she is a Recovery Officer of the plaintiff since 2019. PW1 told the court that before that position she was a Customer Service Officer. Pressed with questions, PW1 admitted to know the defendant since 2016 and that the reason for the loan was to enhance transportation business. Pressed with more questions, PW1 admitted that 800 Million was advanced to defendants for buying 20 lorries and the said lorries were bought and defendant started

repaying the loan. PW1 when asked on restructuring of the loan admitted that 1st defendant requested for restructuring of the loan but she was quick to point that, the 1st defendant did not comply with the conditions. 8 PW1 when questioned on the evidence to prove non-compliance by the defendant PW1 told the court that, she does not have the evidence to prove failure to comply with conditions before this court. PW1 when pressed with questions on the sale of motor vehicles she made an admission that it is true plaintiff took 18 lorries of 1st defendant, however, she does not recall when were attached. Pressed with more questions, PW1 was able to tell the court that, before arrest and detention demand notice dated 21/3/2016 was issued. PW1 insisted that the motor vehicles were taken around 2017. Pressed with more questions, PW1 told the court that, there was no notice to sale trucks but valuation was done and established the amount, but PW1 pointed that, she can't recall exactly the amount the lorries were valued. PW1 went on to tell the court that, by the time plaintiff took trucks, the outstanding amount due was TZS.256,735,253.29 in reflected exhibit P6 as on 21/4/2017. And the outstanding amount of TZS. 300,198,718 was of 28/4/2017 inclusive of principals and arrears. PW1 when further cross examined told the court that, the motor vehicles were sold in November,2017 to July

2018.PW1 when asked on when did the sale took place told the court that she was not present when the trucks were seized neither when they were sold. Pressed with questions PW1 told the court that trucks were sold through public auction and private sale but she does not have evidence of prove private sale. When pressed with more questions told the court that, some of trucks were arrested with cargo. PW1 further cross examined told the court that, 1st defendant paid money for valuation of trucks. PW1 went to tell the court that, she can't tell which trucks were in bad conditions or not, but, some of trucks were not even moving but she admitted to have no report on the conditions of trucks . PW1 when asked on who sold the motor vehicle was quick to point out that it was Pastory Okundo and Mziku who were supervisors of the sale but unfortunately Okundo left Ecobank .PW1 insisted that even if all vehicles were to be sold, the 1st defendants still, would be indebted to the bank. Pressed with question on sale PW1 told the court that, the main reasons for sale 1st defendant's vehicles was default as stated in exhibit 2 under clause 9 and the power to sale was due to specific performance. PW1 told the court that ten motor vehicles are yet to be sold. PW1 asked to read clause 9 of the exhibit 2 read it and admitted that there is no default but was quick to point that, contents of exhibit

P2 was enough. PW1 when asked who were guarantors told the court that guarantors io were Zulfikar Dewji and Abbas Dewji but she does not recall if they were given notice of default. PW1 shown exhibit P3 and asked to read clause 17 read it and told the court that notice was imperative to be given and failure to give notice to guarantors, makes guarantors not liable. PW1 when further cross examined told the court that, the loan was to be repaid from transportation business. PW1 when asked further on notice insisted that, she doesn't know if the bank wrote the letter on failure to comply with rescheduling of the loan. Under re-examination by Mr. Mbogela, PW1 told the court that, the guarantors were given notices. PW1 shown exhibit P4 recognized and told the court that, it was written to Zulfikar Dewji and Abbas Dewji in which they received the same. PW1 when asked on sale told the court that, plaintiff exercised the right of sale after default under debenture as plaintiff and defendants agreed that in case of default, the plaintiff would exercise her right of sale by way of auction and the same were sold by Saint Auction Mart by way of public and private arrangements.PW1 pressed with question told the court that, most of vehicles were not in god condition. PW1 when asked on the proceeds of sale told the court that TZS. 109,50,000/= was credited into 1st -(fc. 11 defendant's

account to reduce to the amount due as to date plaintiff still claiming for payments of 705 Million. PW1 when asked on restructuring told the court that the request to restructure was not accepted because 1st defendant did not comply with the conditions for rescheduling. This marked the end of hearing of plaintiff's case and same was marked closed. In defence, the defendants were defended by Mr. ZULFIKAR HUSSEIN DEWJI (to be referred in these proceedings as ’DW1'). DW1 under affirmation and through his witness statement adopted in these proceedings as his testimony in chief told the court that, he is the 2nd defendant and has been authorized to testify for all defendants. DW1 went on to tell the court that, it is true on 27th June,2014 they entered into credit facility agreements with the plaintiff and TZS.811,000,000 was granted in order to finance acquisition of trucks and trailers. DW1 went on further to tell the court that, the said loan constituted 80% of the total constitute costs of 10 used 40 feet trailer and 10 used ( 2008/2009) trucks from Asset Well Limited of United Kingdom. DW1 went on to testify that, the said loan was disbursed in the 1st defendant account No 0050025401502701 on 19th August, 2014 and it 12 was to be paid through debting the same bank account on monthly installments payable every 28th Day of every month starting on 28th September,2014. DW1 went on

to tell the court that the 1st defendant provided a specific debenture and the 2nd and 3rd defendants were guarantors for the said facilities. It was DW1 testimony that, at beginning business went on well and lstdefendant started to service the loan, however, later on the business of 1st defendant as a transporter was adversely affected following the restriction on transportation of copper from Zambia. DW1 went further telling the court that, subsequently on 20th December, 2016 1st defendant made a communication to the plaintiff to that effect and prayed for restructuring of the loan in order to rescue the company from failure to repay the loan. DW1 went on to tell the court that, by the time 1st defendant requested for restructure of the loan the outstanding principal amount plus interest was TZS.370,940,388/= as per 28th August, 2017. DW1 went to testify that in oral discussions, the officer of the plaintiff promised orally that, restructuring was possible because the defendant explained of the business environments that existed. However, plaintiff without notice to the defendants in April 2017 through its agent, one Saints Auction Mart Company Limited unilaterally impounded and confiscated ten (10) trucks and nine trailers and later on the said motor vehicles were sold contrary to specific debenture. DW1 went on to tell the court that, plaintiff engaged Marengo Estate

Developers Limited to make valuation report of the motor vehicles and on 28th December,2015 TZS. 4,729,000/= was debited into 1st defendant account in favor of the said Marengo Estate Developers Limited being valuation fees and the value of the motor vehicles was enough to settle the outstanding loan balance as per 1st June 2014 to 25th March,2019. DW1 went further telling the court, that at all material time the plaintiff proceeded with sale without informing the 1st defendant the mode of disposal and the value they fetched. Further testimony of DW1 was that, the act of plaintiff confiscating the 1st defendant trucks and trailers was a breach of contract entered between the plaintiff, the act which adversely affected 1st defendant business to the extent of leaving the lstdefendant with no means of generating income because even other clients who has contract with 1st defendant terminated contract. DW1 pointed out that the 1st defendant had other customer whom he used to transport their cargos for example Swift Motors had a contract with 1st defendant worth USD.3,000,000/= which same was terminated and the payments of TZS. 180,000,000/= was cancelled. 14 According to DW1, dilatory actions by the plaintiff caused serious damages to the 1st defendant's business as a such, 1st defendant through MA attorney issued a demand notice dated 7th September, 2018 to plaintiff claiming for

the loss of income, loss of business and damages to reputation to the tune of USD 2.500,000.00 but defendant did not heed to the demands. DW1 denied the claim of the outstanding amount of TZS.705,091,747/= and pointed out that, the outstanding loan plus interest is TZS.370,940,388/=. According to DW1, the market value of confiscated motor vehicles was more enough to settle the debt. On the foregoing reasons, DW1 prayed and urged this court to dismiss the instant suit and grant judgement and decree in favour of the plaintiff in the counter claim. In disproof of the Plaintiff claims DW1 prayed the following exhibits to form part of the defendant testimony, namely: Exhibit Pl, exhibit P2 and exhibit P6b. Under cross examination by Mr. Mbogela, DW1 told the court that, they admit they did not pay the loan as per exhibit Pl. DW1 pressed with question admitted that, interest was to be charged at 19% per month and installment was 24 Million per months. DW1 pressed with more questions told the court that, they requested restructuring of the loan 15 but before its materialized plaintiff went on to sale 1st defendant motor vehicles. DW1 when asked on the condition for restructure told the court that, plaintiff wanted audited financial statement but before its submission plaintiff took 1st defendant motor vehicles and went on selling them as a such they did not repay the loan because the

motor vehicle were taken and sold and business went down. DW1 when pressed with questions told the court that, they did not agree on the interest and penalties that's why they don't agree on the amount claimed. DW1 when further questioned told the court that they sued the plaintiff for payments of USD.5,000,000/=. DW1 when asked if he has evidence to prove that they sued plaintiff, DW1 told the court that he does not recall the case number and he does not have evidence before the court. DW1 pressed with more questions told the court that, they met with the bank on 2016 but no agreement was accepted. DW1 when asked on valuation report DW1 told the court that, Majembe did it and it was 1 Million but he has no evidence to prove because the valuation report is with the bank. Under re-examination by Didace, DW1 told the court that, the motor vehicles taken were 10+ 10 trailers and were sold without notice. DW1 16 when pressed with questions told the court that they failed to repay the loan because the business went down and motor vehicles were taken but if the bank would have not taken their vehicles, they could have paid all dues but plaintiff crippled them and their business collapsed. This marked the end of hearing of defence case and same was marked closed. The learned advocates for parties prayed to exercise their rights under Rule 66(1) of this Court's Rules to file final

closing submissions. I granted the prayer; I express my sincere gratitude to them for their industrious input on the matter. I will, in the course of answering issues, consider them but will not be able to produce them verbatim but it suffices to say the same were well taken in determining this suit. However, before going into issues from the pleadings and testimonies of the respective witnesses for parties' and exhibits tendered in this suit, there are some of the facts which are not in dispute. I find it imperative to state them because will help this court in answering issues framed in respect of this legal dispute. One, there is no dispute that, the defendant was availed with the loan to the tune of TZS.811,000,000/=. Two, there is no dispute that, the credit facility was secured by specific debenture on fixed floating charge by the lstdefendant, personal 17 guarantee by the 2nd to 3rd defendants. Three, there is no dispute as well that the lstdefendant defaulted in its obligations under the facilities. Four, it is not as well that the loan was to be paid within 36 months. That being in mind, is high time now to answer the issues framed. The first issue was couched that "whether there was breach of the credit facility agreement between the parties and if so by who?" The learned counsel for the defendants strongly submitted that plaintiff breached credit facility in the

following ways; one, plaintiff refusal to reschedule the loan; and, two, sale of 1st defendants vehicles without notice. On the other hand plaintiff's counsel disputed those allegations and submitted that 1st defendant breached credit facility for failure to repay the loan as agreed. I have carefully revisited and considered the pleadings, the testimonies PW1, DW1 together with exhibit Pl and exhibit P2 there is no doubt defendant breached the contract. I am entitled to hold so because the defendant herself made an admission on the witness statement under paragraph 13 and during cross examination that they have not repaid the loan as agreed. It is settled legal position that, a breach of contract occurs when one party in a binding agreement fails to perform according to the terms of the contract. Legally each party in a contract is expected to fulfill its obligation under that contract. The provisions of section 37 of the Law of Contract Act, [Cap 345 R.E 2019] underscore the point. For ease of reference, the section provides as follows: Section 37-The parties to the contract must perform their respective promises, unless such performance is dispensed with or excused under the provision of this act or by any other law. Guided by the above legal stance, the next question to be asked by this court is: was there any such failure on the party of the 1st defendant or plaintiff? In

order to find out whether there was breach or failure to perform; one should take into consideration the terms of the contract and find out if at all, there was any failure to fulfill any of such terms without any justifiable or lawful excuse. Back to our suit, carefully examination of the testimony of both parties, and according to the plaintiff testimony, it is loud and clear that the 1st defendant breached the contract by failure to make good payments in installments as agreed. The contents of clause 3 of exhibit Pl is loud and clear that the loan was to be repaid within 36 months for equal installments and after careful scrutiny of exhibit P6b the unpaid outstanding amount as per 31 July, 2018 is TZS 705,091,747 that means the 1st defendant never repaid the loan on equal monthly installment as agreed. Moreover, exhibits P6b shows that 1st defendant defaulted in servicing the loan since first installments as on 21st August 2014 was able to deposit only TZS. 13,000,000/= instead of TZS. 24 Million agreed per month and worse enough 1st defendant defaulted to pay several installments while it was agreed that, on 28th day of every respective months. The defendant, as per the agreement, was to pay full amount agreed but no monthly installment was paid as agreed. This is clear breach of credit facility as rightly submitted by learned counsel for plaintiff and rightly so in my

opinion. More so, the allegation on refusal to restructure the loan cannot be a ground for breach of the contract, because it was not among terms of the credit facility entered between plaintiff and the 1st defendant. Therefore in the circumstances, the plaintiff cannot be said to have breached the term which was not stipulated or agreed at first instance in the credit facility agreement. If at all it was agreed that, in case of default there would be restructure of the loan, then, in that situation, 1st defendant would have a room to blame the plaintiff for breach of credit facility for refusal to restructure the loan. In the absence of such prior 20 agreement, it remains discretion of the bank to reschedule or not upon fulfillment of the condition imposed by the bank. Having that in mind and back to our instant case, the 1st defendant does not dispute that, restructure of the loan was not among the terms of contract neither he did not submit an audited financial statement as it was required by the plaintiff. In the circumstances, I associate myself with conclusion of Mr. Mbogela that, 1st defendant did not comply with the condition for rescheduling of the loan. In addition to that, the 1st defendant request to reschedule the loan so as to remedy the situation is other than admission of default. In the circumstances, it cannot justifiably be said that, the plaintiff frustrated

the exercise for refusal to reschedule the loan because it was not among the terms of the credit facility and therefore, the arguments that it is plaintiff who breached the credit facility for refusal to restructure the loan is devoid of any useful merits and is rejected. In addition to that, one of the reasons given by the defendant was that the plaintiff frustrated the exercise of other customer to continue transporting cargos but apart from mentioning the name of Swift Motors nothing was tendered to substantiate the allegations of termination of the contract of other customers as result of illegal confiscation and 21 seizure of 1st defendant motor vehicles. No witness from those customers came to testify nor produced any termination letter of any contract to support his allegations. In the absence of such evidence, there is no way it can be conclusively be concluded that, the plaintiff in any way frustrated any efforts of payment and affected the business of 1st defendant. In the totality of the above reasons, the first issue must be and is hereby answered in the affirmative that, there was a breach of credit facility by the 1st defendant. This takes this court to the 2nd issues which was couched that," whether the confiscation of the 1st defendant's motor vehicles by the plaintiff was justified?" The plaintiff learned advocate had this that the confiscation and sale of the

1st defendant motor vehicles by plaintiff was in accordance with the agreement making reference to clause 11 of exhibit P2 and section 39 of the Chattels Transfer Act [ Cap law 210 R; E 2019) and therefore 1st defendant is estopped from challenging the confiscation and sale of motor vehicles. On the other hand, the learned advocate for 1st defendant submitted that, the confiscation was illegal on the following folds; one, confiscation and sale was done without notice. Two, there was no any 22 event specified in clause 9 of exhibit Pl to warrant sale; three, the value of motor vehicle was highly deflated as a such they have suffered damages which must be paid. Having carefully considered both the pleadings, the testimonies of the respective parties' witnesses and documentary evidence tendered in their totality, I am inclined to answer this issue in the affirmative. My reasons are not far-fetched. One, the legal dispute between parties centred on clauses 9 and 11 of exhibit P2, clause 11 which is the area of controversy reads as fol low:- "The statutory power of sale under any applicable law shall be immediately exercisable by bank or its assigns without the need to give any notice to the company, upon the accordance of any of the events specified in clause 9 hereof." My literal reading of the above clause, tells all that, for plaintiff to exercise sale there should be breach of

an event mentioned under clause 9 of exhibit P2. Clause 9(iv) reads as fol lows:- Maintain all times ,the aggregate value of its good book debts, cash in hand and L 23 marketable stock in trade ( taken at cost or market price whichever may be lower according to the best estimate that can be formed at a sum equal or more than the monies and liabilities from time to time owning incurred to the bank, and shall in every delivery to the bank, a certificate signed by managing Director of the company for time being showing the said aggregate values. Careful scrutiny of clause 9(iv) the wording of the said clause is loud and clear that, the company shall, maintain at all times the aggregate value of its good book debt, cash in hand and marketable stock following the answer in issue number one that 1st defendant was in breached of the credit because he defaulted to repay the loan as agreed it means that 1st defendant did not maintain the aggregate value of its book debts by failure to make payments as agreed. Coming to our case, it is obvious that parties executed the contracts with their free will clause 11 allows the bank to sale 1st defendant security in case of any event under clause 9.6 Therefore, it is my 24 humble conclusion that, given the unique nature of the bank - customer relation on asset financing agreement there was nothing wrong in what was done by plaintiff. It is a

common understating that, parties are bound by the terms of the agreement they freely entered into and this is the cardinal principal of the law of contract. With that in mind and back to this suit, and having gone through and considered both sides' pleadings, testimony of the PW1 and exhibits tendered, I am in considered view that, the allegations that plaintiff illegally confiscated motor vehicles of 1st defendant is devoid of merits because 1st defendant was aware of the nature of the contract that in case of default the bank would exercise the right of sale. Two, the allegation of sale without notice is mere statement without any iota of justification because going through the exhibit P2, it was undisputed that the plaintiff is allowed to sale the securities without any notice. Therefore, the assertion that, the motor vehicles were sold without notice to defendants is baseless and has no any factual and legal basis because the contract signed by both parties provided that the in case of default sale is automatic without any notice and the plaintiff was entitled as well to sale the motor vehicles to recover her money . On the above note, it brings us to a conclusion that, the 1st defendant allegations that, the plaintiff is the one who breached the contract because no notice of default and sale was given to the defendants and that wrongfully seized vehicles is a bare

allegation without any support because what the plaintiff did was exercising the term and condition of the agreement parties freely agreed that in case of default, the plaintiff shall exercise powers to sale of the vehicles in dispute. In the totality of the above reasons, the second issue must be and is hereby answered in the affirmative that, the confiscation of the 1st defendant's motor vehicles by the plaintiff was justified. The last and usual issue was'' to what reliefs parties are entitled." The defendants claimed several reliefs as contained in the counter claim against the plaintiff in the main suit. However, based on my findings in issues above, the counter claim must fail and is hereby dismissed. On the other hand, the plaintiff claimed several reliefs as contained in the plaint and upon finding that there is no dispute on the loan advanced, I find the plaintiff has proved her case to the standard required in civil cases entitling her judgement and decree in her favour as fol lows:- 1. I declare that the defendants breached the terms of respective credit facility letter as well as the joint and several personal guarantee and indemnity; 26 2. The defendant is ordered to pay the sum TZS. 705,091,747/= Tanzania Shillings Seven Hundred and Five Million and Ninety- One Thousand Seven Hundred Forty-Seven only; 3. Payments of commercial interest at the rate of 21% on principal sum from the date of commencement of this suit to the date of judgement; 4. Payments on decretal sum at the rate of 12% from the date of judgement till payment in full; 5. Costs of the suit be borne by the defendant. It is so ordered. 27