Eurafrican Bank Tanzania Ltd vs Tina Company Ltd 2 Others Commercial Case No 80 of 2006 2009 TZHC 290 24 April 2009

IN THE HIGH COURT OF TANZANIA [Comm ercial Division] AT DAR ES SALAAM COMMERCIAL CASE NO. 80 OF 2006 EURAFRICAN BANK (Tanzania) LTD.............................PLAINTIFF Versus TINA & COMPANY LTD............................................ 1 DEFENDANT W OLFGANG A. SPENGLER......................................2"<* DEFENDANT MRS CHRISTINE S. SPENGLER..............................3rd DEFENDANT JUDGMENT W erem a, J. Facts of the case There are two notable transactions which are a subject of this suit and a counter claim by the d efendant. The two transactions b etw een the Plaintiff and the 1st D efendant and its Directors w hich are the subject of the suit and the counterclaim relate to a d v a n c e s by the Plaintiff of overdraft facilities amounting to Shs 45,799,888.39 plus US $7,101.91 to the 1* D efendant. The 1* Defendant is alleg ed to have defaulted on rep aym ent and this suit is an attem p t by the Plaintiff to recover the sum. The debt is claim ed together with other collateral claim s asso ciated with ii such as interest. There is a counterclaim by the D efendants on the second transaction. The second transaction relates to the Debt M an ag em en t an d Collection Services A greem ent in w hich the D efendant w as appointed by the Plaintiff as its agent for collecting o verd ue and outstanding debts from its customers, otherwise referred to as debtors. This Agreem ent w as signed on the 6,h April, 2004 and is the basis of the counter claim lodged by the 1st d e fe n d a n t. The 2nd and 3rd Defendants are the Directors of the 1st D e fen d an t C o m p an y. The two Directors w ere required to execu te personal guarantees for unlimited am ount as security for the facilities a d v a n c e d to the 1st Defendant by the Plaintiff’s Bank. The co u n terclaim is on the am ount of Shs 110,175,000 which the l s1 D e fe n d an t claim s on the basis of a commission of 15% on the c o lle c te d debts under the Debt Collection A g reem ent. The 1st D efendants wish to set-off this am ount against the Plaintiff’s Claim . The Claim , set-off and counter claim The Plaintiff is a licensed Bank under the Banking and Financial Institutions A ct [CAP 342 R.E 2002]. The 1st D efend ant is a C o m p an y registered and operating under the C om p anies Act, [CAP 212 R.E 2002]. The second and third defendants are directors of the l st‘ d e fe n d a n t co m p an y. In the plaint, the Plaintiff claims to have a v a ile d in June 2005 an overdraft facilities of the sum of Shs 10,000,000 an d United States $ 5,000 to the 1st D efendant. Further, additional facilities of Shs 35,000,000 and a sum of United States $ 5,000 w ere a d v a n c e d to the 1st Plaintiff on 6th O ctober, 2005. The expiry d ate of the first facility was to be 30th June 2006. For the second facility the expiry date w as set on 31st March 2006 but later revised to 30th June 2006. The 2nd and 3rd Defendants executed personal guarantees as security for the facilities in favour of the Plaintiff. It is alleged that the D efen d ant has defaulted and this case is an attem pt by the Plaintiff to reco ve r from the defendants. The Prayers in the Plaint are that: (a) Judgm ent for the sum of Shs 45,799,888.39 and US$7,101.91 as an outstanding am ount due to the Plaintiff; (b) Interest at the rate of 22% per annum from 22nd Septem ber, 2006 until judgment or sooner paym ent; (c) Costs of the suit and any other relief(s) at the discretion of the Court. The 1st D efendant filed a written Statem ent of d efence resisting the Plaintiff's claim . He also raised a counter claim against the Plaintiff over the outstanding am ount of Shs 110,175,000 alleged to be a Commission p ayab le to him under the Debt M anagem ent and Collection Services Agreement betw een the Plaintiff and 1st Defendant. Further, the 1st defendant claims for paym ent of interest on this, sum at the rate of 25% per annum from the date of expiry of the Agreem ent to the date of judgm ent; an d also interest on the decretal sum at the rate of 31% from the d a te of judgment until full paym ent; general dam ages; costs of the suit; any other relief that the court m ay grant; and finally dismissal of the Plaintiff’s case. Settlement of Issues Attem pts to settle the dispute through a Court an n exed m ediation tailed an d the m atter w as set for a First Pre-trial C o n feren ce on 19th June 2007. The Parties settled on and the Court re co rd e d the two categories of issues as follows: ON THE SUIT: (1) W hat w ere the terms of the facility availe d by the Plaintiff to the Defendant; (2) W hat, if any, is the 2nd and 3rd Defendants liability to the Plaintiff in relation to the 1st Defendant's debts? ON THE COUNTER CLAIM: (3) W hat w ere the terms and conditions of the Debt C ollection Agreem ent betw een the Plaintiff and the 1st D efendant; - (4) W hether the 1st Defendant performed its obligations on the part of the Debt Collection Agreem ent; and (5) To w h at relief are the parties entitled to. These are the issues upon which evid en ce of witnesses was called upon to address and on which a decision of this Court is sought. The Plaintiff called one Bruce Ebenezer Massawe to testify for it. He w as the only witness ca lle d for the Plaintiff. The Witness w as in the em ploym ent of the Plaintiff's Bank as a Business Support M a n ag e r. His task w as to monitor and control b ad debts. The D e fe n c e had Mr Wolfgang Spengler and Mrs Christine Spengler testify as DW1 and DW2 respectfully. Review of evidence on the issues I d e e m it fit to deal with the first issue which is on the terms of the facility an d the second issue regarding any liability of the 2nd and 3rd D efendant on the facility availed to the 1st Defendant, together. There is no dispute that the 1st Defendant received several facilities from the Plaintiff's Bank. Both DW1 and DW2 are co n ced in g to this fact. The Agreem ent in respect of the facilities are e v id e n c e d by Exh PI tendered by PW1 and Exh 07 tendered by the d e fe n c e . I will refer to the two as Facility Letters. The purposes of the facilities were identified in the Facility Letters to be financing the C o m p a n y ' s working capital requirements. In one of the facility d a te d 29th January 2003, the purposes were for the purchasing of a Range Rover 4.6 HSE autom atic from CM C Land Rover (T) LTD and financing the Com pany's working capital requirements. There w e re stipulations for a ch arg e of interest on the dollar d e n o m in a te d overdraft facility at the rate of 9% per annum and a rate of 22% for shilling denom inated overdraft facility. The other relevant conditions relate to securities. There w ere four substantive terms of the facility of 6th d ay of O ctober, 2005: (a) that the 1st Defendant issue a bank guarantee favouring the Plaintiff's bank from Belgolaise Bank, Brussels for the amount of €20,000 which w as to expire on 31st of March 2006; (b) Retention by the Plaintiff’s Bank of the registration card No.T723 ADU of one motor vehicle referred in the ag reem en t which was in the joint names of the 2nd and 3rd defendants; (c) Retention of insurance cover note of the motor vehicle with registration card no. TZH 229 in the joint names of the 2nd and 3rd defendants; and (d) The 2nd and the 3rd defendants' execution of personal guarantees for unlimited amount duly registered by Registrar of Documents. The 2nd an d 3rd Defendants issued personal guarantees referred to in the terms. They are evid en ced by Exhibits P2 and P3 w hich w e re te n d ered in evid en ce by the Plaintiff. The terms of the facility letter includes the terms that are in the guarantees and includes a traditional rule in all guarantees, in Clause 2.1 it was a condition that: “The Guarantor hereby unconditionally guarantees to discharg e the debtor's obligation to the Bank on demand in writing by the Bank to the Guarantor without deduction, set off or counterclaim together with guarantee interest thereon from the date of such dem and."fUnderline mine). The guarantors undertook to discharge their obligations to the Bank on dem and. This was to be once that a demand is m ade in writing. Such payments were to be together with the guarantee interest thereon from the date of such demand provided that amount recoverable shall not exceed the total of unlimited sum as provided for under Clause 2.3. Under the G u aran tee as provided in Clause 9.2, the Plaintiff’s Bank, before or after d em an d , to set off liability of the Guarantor to the bank under the gu aran tee against any credit b alance on any account Euroafrican Bonk (T) Ltd V Tina & Co & 2 others of the 2no a n d 3'° Defendants with Plaintiff's Bank, with or without notice. The A greem ent provides for unlimited liability for the 2na and 3,cj d e fe n d a n t. I have, as a Successor Judge to the Presidina li/dqe carefully re a d the record in the transcripts and the pleadings by the Parties. The relationship of Parties here is governed by the Exhibit PI a n d Exhibit P2 and P3. It appears to me that if there is any dispute on this, it must be resolved by these three documents. The slightest hiccups that I have noticed in the evidence of DW1 are not negating this fact at all but it is a matter of interpretation of liabilities of the Parties under these instruments and liabilities arising out of or from the Debt Management and Collection Services Agreement. I will com e to them later. I do therefore hold that the terms and conditions of the facilities are specified not only in Exhibit PI but also in the G u arantee and Indemnity, Exhibits P2 and P3 on which the 2™ and 3rd defendants are bound. Do these take precedent over liability of the Plaintiff under the second transactions relating to the Debt M anagem ent and Collection Agreement? That is the question. It must be answered here. Euroafrican Bank (T) Ltd V Tina & Co & 2 others Lei m e turn now to terms of the Debt M a n a g e m e n t and C ollection S e rvices A g reem en t. The terms of this A g re e m e n t as it w ere for the previous agreem ents must be g o ve rn e d by the best e v id e n ce rule. The rule is to the effect that the prim ary m aterial a va ila b le is the d o cu m en t to be interpreted. In the a b s e n c e of fraud or m istake the parties are bound by the terms of a written docum en t w h ich they h ave signed or w hich has b e e n signed on their b eh alf. The best e v id e n ce rule as far as the Debt M a n ag e m e n t a n d Collection Services A greem ent is c o n ce rn e d is Exhibit PI 6 itself. Some of the terms I h ave identified in this Agreem ent a n d w hich are not in dispute are providing that: (a) The agreem ent w as signed by the Parties on 6th April, 2004 and w as to expire a y e a r thereafter; (b) That the 1st D efendant w as c o n tra c te d to collect overdue acco u n ts and outstanding debts from debtors of the Plaintiff’s Bank; (c) That either of the Party could h a v e term inated the ag reem en t prior to expiry d a te upon giving notice of 30 days; Id I That the termination of the ag reem en t, either by a Party's termination or by expiration, shall not prejudice the rights of either Partv a c c r u e d to the d a te of such termination;(My underlining) (e) The Plaintiff's Bank was to pay the 1st Defendant's Com pany a fee rate of 15% of e a c h debt assigned to the I s* D efendant’s for collection; (f) That the fee of 15% was payable immediately after the recovered amount or any amount agreed uoon, including any partial payments, was received by and credited to the Plaintiff's Bank accounts or paid by cash or cheque at the offices of the Plaintiff's bank (my own underlining) (gj The 1st Defendant was to be deem ed an independent contractor; (h) No guarantee was given by the com pany that it will succeed in the debt collection work with regards to the amount recovered or any recovery of all; (i) Legal fees and other costs of litigation for recovery of the debts w ere to be on a cco u n t of the Plaintiff's Bank e xce p t that if recovery of the debt is done as a co n se q u e n ce of the suit after expiry of the Agreem ent, the I s1 D efendant was entitled to the paym ent of a fee under Clause 6 of the Agreement. This Agreem ent was signed also by the 2nd Defendant who signed as a Managing Director of the 1st Defendant; and the 2nd Defendant who signed as a Director of the 1st Defendant's Com pany. I have not seen a resolution of the Board of Directors authorizing them to commit the 1st Defendant and none was produced in evidence. Nevertheless, I think it is safer to presume that all of them, being the only Directors of the 1st Defendant, acted regularly and bona fide for the Company. This therefore should not be a substantive issue. It is one of the principles of common law, cherished and applied by Devlin J, in the case of McCUTCHEON VS MACBRAYNF(David) LTD (19641 1W.L.R 125 at page 134 that: “...w hen a party assents to a docum ent forming the whole or part of his contract, he is bound by the terms of the docum ent, read or unread, signed or unsigned, simply b e c a u s e they are in the Contract.” Mr. Kugesha, Learned A dvocate for the all Defendants has not raised an y issue with the Terms of the Agreem ent (Exh P I6) I will agree with Mr. Kesaria, Learned A dvo cate for the Plaintiff that Exh P I 6 speaks for itself and I will, in spite of the fact that neither counsel has relied on any precedent on this point, presume that the "speaking" document is within the ambit of the decision of Devlin J, in the case I have stated above. The terms of the Agreement are summarised as above. Parties were required to address the 4th issue. It was whether or not the l s1 Com p a ny performed its part on the Debt Collection Agreement. I agree with Counsel for the Plaintiff when he states that there is no suggestion that the 1st Defendant did not perform under the Debt Collection Agreement (Exh P I6). In others words, simple and clear, the 1st defendant performed its obligations under the terms of the Agreement. I do not notice or read or insinuate from Mr. Kugesha, learned Advocate's statement any Euroafrican Bank (T) Ltd V Tina & Co & 2 others visible contrary position. I also agree, as e v id e n ce show, that the Agreem ent e v id e n c e d by Exh P I6 cam e at an end by effluxion of time on 5th April 2005. The Agreem ent was not ren ew ed after its expiry. These are fundam ental issues which I rely on, to hold that the i I s' D efendant performed its part under the Debt Collection Agreem ent. I would have settled at that but let me review other arguments raised by Parties in the submissions. I do not think that I am required to consider arguments as to why the Agreem ent (Exh P I6) was not renewed by the Parties. This is not, with due respect to the Parties, an issue to be considered. If the document is the guiding docum ent, it is clear that it does not provide for its renewal. This was an Agreement negotiated by the Parties here and it could only be renewed if, and only if, both had agreed to extend it. If the Plaintiff’s reluctance to renew the Agreement was based on the high fee charged as a commission or higher ad vo cate fees allowed by the Defendants, this cannot be a subject of inquiry or a thing requiring a final determination by this Court. I am satisfied that the rest of the arguments on that point are fit to be considered while Euroafrican Bank (T) Ltd V Tina & Co & 2 others answering the issue about reliefs that e a c h Party is entitled under the two A g reem en ts. This is an issue that requires us to draw a b a la n ce sheet or a com p arative analysis ot the rights of the Parties under the Facilities Agreem ent on one hand, and the Debt Collection A greem ent, on the other and determ ine which Agreem ent an d w hich rights takes p reced en ce over another. I will revert to this point while dealing with the last issue falling here im m ediately. . The last leg on this matter is to determine w hat reliefs Parties are entitled to in the respective claims and counter claims. I need not stagger or waffle but I should point out clearly and soundly at this earliest moment that as far as the defendants are concerned, there is no dispute that the l s1 Defendant was indebted to the Plaintiff's Bank at the time of filing of the plaint and on the dates which DW1 and DW2 were testifying in Court. It is not disputed that the amount of the debt is Shs 45,799,888.39 and US$ 7,101.91 only. These sums were owed and due at the time of institution of the suit. The sum of the debt was updated as shown in Exh.P4 but the working figure for the purpose of this case should be the sum prevailing at the time of filing the suit. I think it is n ecessary to look at the Letter of Facility (Exh PI and Exh D7) a n d analyse the effect of the wording on it to the overdraft facility. In the conditions and warranties, it was a warranty by Defendants that: “Notwithstanding any other arrangement, the overdraft facilities described herein remain repayable on dem and”. My understanding of this warranty, and I think any borrower dealing with such facilities should have the same understanding, is that it has the effect of accelerating payment over the overdraft facility by making it due or payable by this dem and by the Bank. The wording of the terms repayable on demand or without deduction, set off or counterclaim together with guarantee interest thereon from the date of such demand which appears in Clause 2.1 of the Agreement creates a reasonable and irrebutable presumption that the Facility Agreement takes precedence over any claim or set off or counter claim that the Defendants may have against the Plaintiff's Bank. Terms of overdraft must be implemented in order to give credibility to this mode of short term lending so as to be accessed by a larger number of borrowers in the market place. It has the effect of stimulating the economy. Every borrower must understand and a p p re c ia te that there are sound banking principles that governs Bank-customer relationship. O ne ot such principles requires a Custom er to repay the loan that has been extended to him. He must do so in a c c o rd a n c e with the terms of the Loan. If a term is to the effect that the lo a n is repayable on demand, that is w hat it should be. It must be paid on dem and without recourse to any other claim that such a customer may be having against the Bank. In this case, there being no resistance that money was due under an overdraft, and having held that it was payable on demand it is therefore, not out of the ordinary to adjudicate that the 1st Defendant was entitled to implement the mechanics of payment without much ado. I am further holding that the Letter Facility Agreement (Exh PI) excluded set off or counter claim. The amount of Shs 45,799,888.39 together US $7,101.91 which was due and payable on dem and is payable by the 1st Defendant and the guarantors thereof. Having said so, and I have no doubt that this is clear to the parties; let me turn to the collateral claim. There is a co llateral claim , if I m ay use that expression, involving a sum of Shs 15,000,000 which w as withdrawn by the 2r/J d efen d an t from the Plaintiff's Bank. A ccording to PW1, the money was w ithdraw n from the Provision interest a cco u n t which was opened for the non performing assets of the Plaintiff’s Bank held by the !>' D efendant as debts. It was opened for the purpose of reversing interest on these debts. This m atter arose out of evidence. The Defendants did not deny the fact of withdrawal and also that the money did not, though the amount appeared to be in an acco u n t created by the Bank in the name of the I 5' Defendant, belong to either of the defendants. According to the Facility Letter (Exh PI), the sum is related to a bank Guarantee in favour of the Plaintiff’s Bank from Belgolaise Bank, Brussels for the amount of €20,000 which was to expire on 31st March 2006. The Defendants are not entitled to the monies or any pa^‘ thereof and I hold that these were erroneously withdrawn and such sum ought to be reversed to the Plaintiff's Bank. I have shown in this judgment that the Defendants are not disputing liability under the Facility Letter (Exh PI). They are counter claiming and have prayed that the amount be off set Euroafrican Bank (T) Ltd V Tina & Co & 2 others against the Plaintiff's Bank on the rights and obligations of the Parties w h ich arose from the Debt M anagem ent and Collection Services A greem ent (Exh PI 6). The counter claim , as I have a lre ad y shown, arises out of an agreed commission that was to be paid to the l s1 Defendant for each collected debt. The rate of commission w as 15%. The sum counter claim ed is Shs 110,175,000 being the outstanding commission that is due to the 1st Defendant and has not been paid by the Plaintiff's Bank. The fact of the matter is that upon expiry of the Agreement, the 1st Defendant was still following up payments in three cases in which through the protracted interplay of collection skills and efforts, settlement orders were issued through the court process. The debtors had started paying to the Plaintiff’s Bank but had not finished paying when the services of the 1st Defendant expired. The debtors were John Luaobola and Pius Goaadi, defendants in (HC^ Civil Case No.43 of 2002 for a sum of Shs 75m/=; Al-Noor Taidin Habib Nanii. a defendant in Commercial case No. 16 of 2004 for the sum of 190m/=and lastly Sonix Corporation Ltd, Abdul Nurmohamed Virii and Al Noor Tadiin Habib Nanii all defendants in Commercial case No. 15 of 2004 for the sum of Shs 545m/=. Exh D3 has the details of p a 9 e I 20 the D e e d s ol S ettlem e n t The sum p lead ed in the counter d a t a ,s Shs 810m/=. The t» Defendant is entitled to be paid 157, of this am ount w h ic h acco rd in g to his calculation gives him Shs 110,175,000/=. From the evid en ce, it is not alleged or insinuated that the 1st i Defendant did not work on the three debtors. It is not disputed, also that the 1st Defendant facilitated the making of the Deed of Settlement as shown in Exh D3. The issue is whether, under the Agreement evidenced by Exh P I 6, a commission on the amount agreed on the Deeds is due and payable on demand or as the Defendant argues it becam e due on the day the Agreement expired by effluxion of time. To answer this question one has to look in the Agreement itself. Clause 8 is relevant on this point. The Parties had contem plated at the inception of this Agreement that it could happen that the Agreement had expired while rights and obligations of either of them subsisted. This is a case in point that the sum of the three cases has not been collected. It has been argued, reasonably so in my view but not correct by any-stretch of imagination, that the sum of commission on the three cases Euroafrican Bank (T) Ltd V Tina &. Co & 2 others b e c a m e du e a n d p ayab le on the d ate that the Agreement expired. That argum ent is not consistent with the provisions of C lau se 8. That Clause should also be read conjunctively with Clause 6. A cco rd in g to the latter, paym ent of 15% of each debt assigned to the 1st Defendant for collection is payable im m ediately after the recovered amount or any amount agreed upon, including any partial payments, is received by the Plaintiff's Bank or is credited to the Plaintiff's Bank accounts. or_paidJn cash or by cheque o+ offices of the Plaintiff's Bank. So I think, the wording of the Agreement does not require any external aid to its interpretation. However, I cannot close my eyes to fears raised by the Defendant. There is a perceived danger from the Defendant’s view. It was alleged in evidence that the Plaintiff’s Bank has in some occasions re-negotiated the Deeds of Settlement on the three cases lowering down the principal debt or amount in the settlement order. This has the effect of reducing the commission obtainable by the 1st Defendant as the fruits of his labour that went into the task. I have to say that the Bank is not prohibited to do what it is alleged to have done. According to the Agreement it has su ch fre e d o m under Clause 6. I think, this freedom notw ithstanding, the Bank should alw ays a c t b o n a fide and at arm 's length with the three debtors. If the Bank negotiates with the debtors for p a ym e n t of any reasonable lesser sum or decides to write off the debts, bona fide, it will be entitled to do so unless it is proved, o n the b a la n ce of probability, that the Bank has actually acted m ala fide. I am inclined to a view that the Defendant will be entitled to recover, under the Agreement, his costs of collection where the debts are written off. I did not see any calculations other than those on the Commission of 15%, and no evidence was led by the defendants to show the quantum of costs incurred by him on collection of debts. Only activities were shown but these were not valued for compensation. It is for obvious reason. These costs are lumped in the Agreement as commission. So it is not possible to fix any such costs at the moment. This issue will not arise here because it has not happened. If it arises in future, the 1st Defendant will be entitled to claim for his costs. I am not in position to contem plate or hazard what other claims are open for the 1st Defendant but those cannot arise in the counter claim. I am only co n fin in g myself to the existing position. I think the claim is p rem atu re. This is so b ecau se the obligations under the Facility Letter a n d those under this Agreem ent are not related and are governed by different principles of law. I understand the Plaintiff's Bank position is that the sum has * not been recovered or collected into its accounts.anH that once the sum is collected: the 1st Defendant will duly be paid as provided for in the Agreement. I think, I must point out that good corporate governance requires that the Bank be transparent in the w av the three debtors and the Deed of Settlement are dealt with. The Defendants are entitled and the Plaintiff's Bank is obliged to provide feedback information to the 1st Defendant on what steps are taken or done to recover the decretal amount. Unfortunately, the Plaintiff's Bank has not regularly complied with this obligation. I do not find the Defendants apprehension- unreasonable.^ Since it is my holding that this counter claim is prematurely raised, I will not indulge in it any further only to restate that it cannot take precedence over the Facility Agreement. It cannot either be used to offset or raised to counter claim against the Euroafrican Bank (T) Ltd V Tina & Co & 2 others P (.! g 0 | 24 Facility lo a n . It m a y b e filed at the appropriate time. It is for that reaso n that I d o not think it is appropriate to dismiss it but struck it of. Costs on the counter claim shall lie w here they are on the ground that it w as filed due to the Plaintiff's failure to provide information to the Defendants. The suit on the Facility Agreement succeeds. The following prayers are granted: (a) Judgment is entered in favour of the Plaintiff's Bank. The Defendants held jointly liable for the sum of Shs 45,799,888.39/= and US $7,101.91; (b) Such principal sum in Shillings shall attract contract interest at the rate of 22% per annum from 22na September 2006 when it b ecam e due and repayable to this 24fh Day of April 2009; and shall thereafter attract interest at Court rate of 7% to the date of full payment (c) The dollar amount shall attract interest at the rate of 9% per annum from the date it becam e due and repayable to the date of this judgment, ond sholl " c g e | 25 th e re a fte r a ttra ct Court interest at the rate of 7% up to the d a te of full p aym ent of the sum. (d) Costs of the suit are granted but shall not include costs incurred towards the counter claim . It is so ordered. Sgd: F.M. W erema, JUDGE This Judgm ent is read on this 24th April, 2009 in the presence of the Court Clerk and A dvocates representing parties. ' . ’ . *» ^ A1/’•< y Certify °f l *Cf i l l i p ' * ' 4 Words: 4 , 6 8 8 ^ 0 ^ S | f rv J P _ J- — s * ) * ................ i ■ g i m *% Euroafrican Bank (T) Ltd V Tina & C o & 2 others