20160913 TZHC Dar es Salaam

L---- -- -- -- IN TtlE HIGH COURT OF TANZANIA {DAR ES SALAAM REG~STRY) AT DAR ES SALAAM -,~- CIVIL CASE NO. 93 OF 2014 FADHILI BAKARI MKINDI ............... .............. PLAINTIFF VERSUS JUMA KHAMIS MANDARO .............................. DEFENDANT JUDGEMENT KIHIO, J. ' The plaintiff, Fadhili Bakari Mkindi sued the defendant, Juma Khamis Mandaro in a claim for:- (a) Payment of the loan amounting to Tshs. 225,380,000/= (b) Payment of 31 % Bank rate interest of a loan every month from date of filing this case till judgment and ( c) Payment of interest at court rate 12% per annum from ·the date of judgment till payment ( d) Costs of this suit ( e) Any other or further relief as the court deem fit and just. The basis of the plaintiff's claim is laid down in paragraph 3 of the plaint. The said paragraph 3 of the plaint reads:- that the plaintiff claims . against the defendant the sum of Tshs 1 225,380,000/= as the amount borrowed by the defendant as per the loan agreement annexed as annextures AI, A2, A3, A4, and AS to the plaint. The defendant denies the claims. Two issues were framed for determination bythis court. The framed issues are:- 1. Whether the defendant borrowed Tshs. 225,380,000/= from the plaintiff in deferent dates and the loans were under written agreement. 2. What relief(s) are the parties entitled to. One witness testified on the plaintiff's side and one witness testified on the defendant's side. Fadhili Bakari Mkindi (PWl) testified that on 1/12/2012 the . defendant, Juma Hamis Mandoro called him in his (defendant's) office at Intex Executive Company Limited and informed him that he (defendant) got a Tender to operate Shell Oil business at Kibaha and Mdaula and he ( defendant) gave him his (defendant's) Business Card. He further testified that the defendant informed him that he was required to have bank guarantee or cash Tshs. 216,000,000/= before he was given the said tender. He went on testifying that the defendant requested 2 him to give him (defendant) a loan of Tshs. 216,000,000/= for the said business and he ( defendant) would pay the money after he (defendant) received his (defendant's) Bank loan. He explained that he lent the defendant Tshs. 216,000,000/= on 5/12/2012 after they prepared loan agreement to that effect. He further explained that he and the defendant agreed that he (defendant) would pay Tshs. 110,000,000/= in the 1st installment and Tshs. 106,000,000/= in the 2nd installment but he (defendant) did not pay the Tshs 216,000,000/= as agreed in the loan agreement. He said that on 9/1/2013 the defendant requested him to lend him (defendant) Tshs. 4,900,000/= and agreed in writing (Exhibit "P2'') that he ( defendant would pay the said money on 9/2/2013 but he ( defendant) did not pay the money as agreed. He further said that on 20/1/2013 the defendant requested him to lend him ( defendant), Tshs. 2,800,000/= to be used in making a follow up on bank loan and he (PWl) lent him the said Tshs. 2,800,000/= under written agreement (Exhibit 'P3') agreeing that he ( defendant) would pay the said amount of money on 20/2/2013 but he ( defendant) did not pay as agreed. He told the court that on 16/5/2013 he lent the defendant Tshs. 980,000/= on agreement that he (defendant would pay the said Tshs. 980,000/= on 16/6/2013 as per the loan 3 agreement (Exhibit "PS'') but he ( defendant) did not pay the said amount as agreed. He further told the court that he made a follow-up on payment of the money lent to the defendant from June 2013 to August 2013 but the defendant did not pay the money. He went on telling the court that he consulted his advocate who prepared a Demand letter dated 3/9/2013 (Exhibit P6) and the demand letter was taken to the defendant but he (defendant) did not take any step. In cross-examination by Mr. Matumla, learned advocate for defendant he said that he (PW1) handed the money to the defendant and they prepared Loan agreement before an advocate. He went on saying that the loan was a genuine one. Juma Khamis Mandaro (DW1) testified that the plaintiff was his close friend and there is no truth that he (plaintiff) lent him Tshs. 216,000,000/= on 5/12/2012. He further testified that on 9/1/2013 he borrowed Tshs 4,900,000/= from the plaintiff. He told the court that on 20/1/2013 he borrowed Tshs. 2,800,000/= from the plaintiff. He further told the court that on 20/2/2013 he borrowed Tshs. 700,000/= from the plaintiff. He said that on 16/5/2013 he borrowed Tshs. 980,000/= from the plaintiff. In cross-examination by the plaintiff he stated that he signed on the loan agreement (Exhibit Pl) because he (plaintiff) had a pistol 4 when he (plaintiff) came in his (defendant's office. He explained that the other money were lent to him when he was in the advocate's office and he signed the loan agreements when he was in that office. He further explained that he (plaintiff) did not force him to sign the loan agreement (Exhibit "Pl"). He said that because he (plaintiff) did not threaten him with the said pistol he (plaintiff) did not take any step. In re-examination he said that he borrowed only Tshs. 9,380,000/=. ' Having laid down a narration of the evidence adduced in court I now proceed to determine the framed issues. Starting with the 1st issue, namely whether the defendant borrowed Tshs. 225,380,000/= from the plaintiff in different dates and the loans were under written agreement. The evidence of Fadhili Bakari Mkindi (PWl) is supported by the Loan agreements (Exhibits "Pl," "P2", "P3", "P4" and "PS'') that the defendant borrowed Tshs 216,000,000/= on 5/12/2012, Tshs 4,900,000/= on 9/1/2013, Tshs 2,800,000/= on 20/1/2013, Tshs 700,000/= on 22/2/2013 and Tshs 980,000/= on 16/5/2013. Both the plaintiff (PWl) and the defendant (DWl) signed on the said Loan agreements. According to DWl 's testimony he borrowed Tshs. 4,900,000/=, 2,800,000/=, 700,000/= and 980,000/= as shown in Exhibits "P2", "P3", and 5 "P4" but did not borrow Tshs 216,000,000/= on 5/12/2012 as shown in Exhibit "Pl". In cross examination by PWl he testified that he (DWl) signed the Loan agreement (Exhibit "Pl'') because he (PWl) had a pistol when he came in his (DW's) office whereas later on his evidence shows that he (PWl) did not force him (DWl) to sign the loan agreement (Exhibit ("Pl''). In my view, the evidence that DWl signed the loan agreement Exhibit "Pl'') because PWl had a pistol has no truth. In the light of PWl's evidence and the Loan agreements (Exhibits "Pl", "P2", "P3", "P4" and "PS''), the evidence of PWl is heavier than the evidence of DWl to the effect that the defendant borrowed Tshs. 225,380,000/= from .the plaintiff in different dates and the loans were under written agreements. According to the law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win (see the case of Hemedi Saidi V. Mohamed Mbilu (1984) T.L.R. 113). I therefore find that the defendant borrowed Tshs. 225,380,000/= from the plaintiff in different dates and the loans were under written agreements. Issue No. 1 is, therefore, answered in the affirmative. Proceeding to issue No. 2. I do not find the basis for a claim of payment of 31 % Bank rate interest of a loan every month from 6 . the date of filing this case till judgment. However, I find that the plaintiff is entitled to payment of interest at court rate of 12% from the date of judgment till payment in full. In the final analysis, I find that the plaintiff has proved his claim on balance of probabilities and I enter judgment in favour of the plaintiff as follows:- (a) The defendant should pay the plaintiff Tshs. 225,380,000/= ·_being the amount of the loan given to him. (b) The defendant should pay interest at the court rate of 12% per annum from the date of judgment till payment in full and c.) N~.~.JI.~eb;£dant bears the _costs of the suit. 'I;\~ 1'~f~, ,\\ --~ ~5!! 1(f//rftJjJf,\ \;,, s. s~s. Kihio J. ~firi, ~· 13/9/2016 1 l(i . tf}ff);.~.·~ .· JUDGE ~-~'1( ~~~~~~ ..,__ ~~ Court: '>Judgg1w1-ent delivered in the presence of the parties.