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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 25792 OF 2023 (Arising from the Judgement and Decree of the Resident Magistrate Court of Dar es Salaam at Kisutu dated 17th October 2023 in Civil Case No. 57 of 2021 (Hon. Y.R. Ruboroga, PRM) ________________________ FIRST NATIONAL BANK TANZANIA LIMITED…….……….APPELLANT VERSUS ELIZABETH PETER MRIO……..………………….….…......RESPONDENT JUDGEMENT Date of last order: 25th September 2024 Date of Judgement: 10th October 2024 MTEMBWA, J.: The Appellant herein commenced proceedings against the Respondent in the Resident Magistrate’s Court of Dar es Salaam at Kisutu for the payment of the outstanding balance of Tanzanian Shillings 114,135,726.87/= being the principal sum plus interest as of 30th January 2021. The Appellant also claimed for an order of payment of interest rate of 15% per annum on the principal sum from 30th January 2021 to the date of full recovery; general damages as 1 may be assessed by the trial Court for loss of income to invest in the banking business; an order of sale of Plot No. 145 Block “16” located at Bunju in Kinondoni Municipality, Dar es Salaam; and costs of the suit. Briefly, sometime in 2015, the Appellant, who later changed her name to FNB TANZANIA LIMITED, having considered the Application, advanced the sum of Tanzanian Shillings 94,000,000/= as a home loan facility to the Respondent. The loan was secured by a landed property in the Respondent’s name, registered as Plot No. 145 Block “16”, located at Bunju in Kinondoni Municipality, Dar es Salaam, with a certificate of title No. 75087. According to the contract, the monthly installment payable by the Respondent was Tanzanian Shillings 1,250,000/= payable within 240 months. In view of Exhibit P2, in 2018, it could appear the original contract was restructured. After restructuring, the outstanding balance became Tanzanian Shillings 96,237,048.19/=, payable within 240 months from the day of restructuring. The interest rate was also reduced from 22% to 15%, payable annually. The security remained the same. 2 According to the pleadings, although there was restructuring, the Respondent never adhered to the terms of the agreement. Consequently, a notice of default and a statutory demand to repay within sixty days from the day of receipt was served to the Respondent. In view of paragraph 16 of the Amended Plaint, the willful neglect to pay the outstanding sum resulted into loss and damages enough to be remedied. During hearing, the following issues were framed: one, what is the actual outstanding/unpaid loan amount owed by the Defendant to the Plaintiff, and two, what reliefs the parties are entitled to. The Appellant brought one witness and tendered four exhibits while the Respondent relied on her sworn testimonies and tendered no documentary evidence. Having evaluated the evidence, on the basis that the Respondent paid the sum of Tanzanian shillings 55,373,507.16, the trial Court was satisfied that the outstanding balance was Tanzanian Shillings 39,644,895/=. Aggrieved, the Appellant has fronted the following grounds of appeal and I quote in verbatim; 3 1. That the Honourable Magistrate erred both in law and in fact to order the Respondent to pay the sum of Tanzania shillings 39,644,895/=to the Appellant without considering the actual outstanding balance as prayed and proved by the Appellant on the standard required. 2. That the Honourable Magistrate erred both in law and in fact for not granting costs of the matter and far not including the payments of interests of the outstanding amount as prayed and proved by the Appellant on the standard required. 3. That the Honourable trial magistrate erred both in law and in fact for waiving the interest payable by the Respondent to the Appellant without considering the evidence adduced. 4. The Honourable Magistrate erred both in law end in fact by not granting the prayers as prayed by the Appellant and which was proved at the required standard. When this matter came for orders on 12th June 2024, the Appellant was represented by Mr. Augutino Ndomba, the learned counsel, while the Respondent was represented by Ms. Diana Mussa, holding briefs for Mr. Armando Swenya, the learned counsel. When prompted, parties agreed to argue this appeal by way of written submissions. However, for obvious reasons and in the interest of justice, on 29th August 2024, I vacated my scheduling order in the presence of Mr. Augutino Ndomba and Ms. Magreth 4 Kisoka, holding briefs for Mr. Armando Swenya, both learned counsels. I am, therefore, constrained to examine the submissions by the parties. Staging the floor, Mr. Ndomba compiled all grounds of appeal and argued them altogether. In that, he argued that the Appellant managed to prove the claim to the required standards by tendering the bank statement regarding the Respondent’s loan accounts, which was admitted as an exhibit. The Respondent did not challenge the contents of the Bank Statement and loan agreements. As such, the trial Court was supposed to infer that the same were genuine and consider the claim to have been proved on the balance of convenience. The learned counsel also faulted the trial Court for not awarding costs. He added that the Appellant incurred costs in prosecuting the matter by hiring advocates and paying the necessary Court fees. On the other hand, it was argued that the sum of Tanzania shillings 39,644,895/= was unjustifiably awarded to the Appellant, and it is disturbing to think how the same was arrived at. He insisted that as of 5 30th January 2021, the outstanding sum was Tanzanian Shillings 114,135,726.87, which the Respondent did not dispute in her testimony. He also beseeched this Court to find out that waiving the interest rate was unjustifiable considering the evidence available on record. Based on the foregoing arguments, Mr. Ndomba implored this Court to allow the Appeal with costs. In response to the first ground of appeal, Mr. Swenya submitted that it is a settled principle of the law that he, who alleges, has the burden to proof. He cited sections 110 (1), (2) and 111 of the Law of Evidence Act, Cap 6, R.E 2019. The Appellant had a duty to prove that the loan issued to the Respondent was not a staff loan and was thus subject to interest. He submitted further that it was apposite the Appellant exhibits the initial loan agreement with the Respondent. He added further that the interest became chargeable after restructuring, leading to unjustifiable exorbitant figures. Arguing on the second, third, and fourth grounds of appeal, Mr. Swenya observed that the Respondent was the former Appellant’s 6 staff, who had been advanced with a staff loan, repayable through monthly salaries. But then, the Appellant opted to terminate the Respondent's employment, thereby incapacitating her from paying the loan. The Appellant knew or had reason to know that the only source of income was monthly salaries, and as such, a termination pressed a burden on the Respondent. He referred this Court to pages 5 and 6 of the impugned Judgement. Mr. Swenya observed further that the Appellant had reason to know that the contract would be frustrated by terminating the Respondent from employment. He cited the case of the Registered Trustees of Cornelius Christian Aid to Churches and the Needy Foundation vs. Equity Bank (Tanzania) Limited, Land Case 185 of 2022 [2022] TZHCLD 12649 (30 November 2022). Regarding the trial Court's failure to award costs to the Appellant, Mr Swenya considered the arguments misconceived. He refuted the argument that costs are awarded when the Litigant has won the case and added that the Appellant failed to prove the matter to the required standards. He reiterated that the loan agreement 7 emanated from employment, where the monthly salaries were pledged as security. The Appellant was required to state such an arrangement at the hearing by bringing the initial or original agreement into the record. On the other hand, the learned counsel submitted that an award of costs is purely discretional to the successful litigant. He cited the case of Godfrey Sayi vs Anna Siame (Civil Appeal No. 114 of 2012) [2017] TZCA 213 (21 February 2017), where it was observed that costs are awarded at the discretion of the court and a successful party usually is entitled to costs. He considered the trial Court to have exercised its discretionary powers. Regarding the failure to award interest to the Appellant, Mr. Swenya joined hands with the trial court. He submitted that the trial court was correct in waiving the interest, considering that it was a staff loan rather than a commercial loan. He faulted the Appellant for not establishing the reason to the satisfaction of the Court for an award of interest. He considered the argument worthless. 8 Mr. Swenya also faulted the Appellant’s counsel for failing to construct what the term “proof” entails properly. He cited the case of Anthony M. Masanga vs Penina (mama Mgcsi) and Another (Civil Appeal No. 118 of 2014) [2015] TZCA 556 (18 March 2015). He also submitted that the Appellant had failed to prove that there was an agreement to service the loan using sources other than monthly salaries or whether it was commercial, of which interest rate is applicable. He considered the argument lacking in merit. The Appellant never rejoined. Based on the foregoing, Mr. Swenya implored this Court to dismiss the Appeal with costs. Having dispassionately considered the rival arguments by the parties, the question is whether the appeal is worthy considering the evidence available on records. In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive 9 at a decision that may coincide with the trial Court or may be different altogether. While guided by the above principle, it is also a trite law that whoever alleges the existence of any fact bears the duty to prove the same. This principle is gathered from sections 110, 112, and 115 of the Evidence Act (supra) and judicial precedents, including Manager NBC Tarime vs. Enock M. Chacha (1993) TLR 228. Gathering from the facts, sometime in 2015, the Appellant, who later changed her name to FNB TANZANIA LIMITED, advanced the sum of Tanzanian Shillings 94,000,000/= as a home loan facility to the Respondent. The loan was secured by the Respondent’s landed property registered as Plot No. 145 Block “16”, located at Bunju in Kinondoni Municipality, Dar es Salaam. According to the records, the monthly installment payable by the Respondent was Tanzanian Shillings 1,250,000/= payable within 240 months. In view of Exhibit P2, in 2018, the original contract was restructured. This time, the outstanding balance became Tanzanian Shillings 96,237,048.19/=, payable within 240 months from the day of restructuring. Other terms 10 remained constant only: the interest rate was reduced from 22% to 15%, payable annually. The Appellant brought one witness, Sibogo Maduhu (PW1), who tendered four exhibits: A General Power of Attorney (Exhibit P1), a Home Restructuring Agreement dated 13th July 2018 (Exhibit P2), a Bank Statement and an Affidavit or Certificate of Authenticity (Exhibit P3 collectively) and a Statutory Notice dated 30th June 2020 (Exhibit P4). Before I delve into the nitty-gritty of the Appeal, I shall first examine the evidence brought into records by the Appellant at the trial Court. PW1 introduced himself as an assistant manager, special assets management employed by Exim Bank (Tanzania) Limited. He added that in July 2022, FNB Tanzania Limited gave Exim Bank (Tanzania) Limited power of attorney to deal with non-performing loans and prosecute cases to recover the claimed sum. He testified further that the Appellant and the Respondent herein executed two agreements in which the former was the lender while the latter was the borrower. He pointed out that after the restructuring of the loan, the 11 outstanding sum became Tanzanian Shillings 96,237,048.19/= repayable within 240 months from July 2018 to July 2028, where the monthly installment was Tanzanian Shillings 1,250,000/=. PW1 testified further that the Respondent failed to adhere to the agreed terms. As a result, she was served with the statutory notice to pay the claimed sum within sixty days. He relied on the Bank Statement (Exhibit P3 collectively), which he personally printed. He then concluded that the outstanding balance as of 30th January 2021 was Tanzanian Shillings 114,135,726.87/= inclusive of the principal sum of Tanzanian shillings 95,018,402.54/= and Tanzanian Shillings 9,018,402.54/= as accumulated interest. He admitted that the Respondent so far paid Tanzanian Shillings 21,320,002.55/= after restructuring. When I was preparing this judgment, I noted some legal issues that were of paramount consideration. To clear up the confusion, on 7th October 2024, I called the parties to address me on two important legal aspects: one, whether Exhibit P1 (General Power of Attorney) intended to allow Exim Bank (Tanzania) Limited to access the 12 confidential information of the Appellant Bank, and two, whether the Certificate of Authenticity and Bank Statement (Exhibit P3 collectively) and Statutory Notice were correctly tendered in Court. While Mr. Augustino Ndomba represented the Appellant, the Respondent was represented by Ms. Diana Mussa, holding briefs for Mr. Armando Swenya. By consent, the parties agreed to address me by way of written submissions. Having passed the records, I am satisfied that the Respondent’s counsel failed to file the submissions as ordered. In that stance, she is considered to have waived her right to be heard on the raised issues. Addressing me on the first issue, Mr. Mlyambelele Abedinego Levi Ng’weli referred this Court to the Power of Attorney (Exhibit P1), which authorizes the donee (Exim Bank (Tanzania) Limited) to submit any matters in dispute to arbitration or Courts and to sign, seal and execute the necessary acts for that purposes. He considered these powers to include powers to access any information in the Appellant’s domain. Mr. Ng’weli also argued that since the Power of Attorney was admitted without objection, this Court cannot raise it at this stage. He 13 cited the case of Malula Chemu @ Malula vs. Republic, Criminal Appeal No. 188 of 2019, Court of Appeal of Tanzania at Mwanza (Unreported). First, I disagree with Mr. Ng’weli that the Respondent did not object to the admission of Exhibit P1. Second, as the first appellate Court, it has a duty to reevaluate the entire evidence and reach its own conclusion. In doing so, this Court can call parties to address on the specific legal issues involved at the trial Court. This noble duty is founded on the legal principle that the first appeal is in the form of a re-hearing. I examined Exhibit P1 (General Power of Attorney) and noted that the Appellant (donor) nominated Exim Bank (Tanzania) Limited as the lawful attorney and agent with full power and authority on behalf to settle and adjust the written accounts, to submit matters to arbitration or Courts of law, to seal, sign and execute the necessary acts for that purpose. In case of default of payment, take all lawful ways or means to recover by attachment, ejectment, or otherwise. If necessary, in the donor’s name or otherwise, to commence, 14 prosecute, or defend any action (s), suit (s) at law or equity in the satisfaction of the account, or any debt or claim payable to the Appellant. The powers also included replacing the Appellant in ongoing suits or litigations. The Appellant affirmed that they would rectify and accept everything done by Exim Bank (Tanzania) Limited (the donee). The question would be whether, by reason of power of attorney, PW1 had the mandate and authority to access confidential information like loan agreements, bank statements, and statutory notice, bearing in mind that he was not an officer of the Appellant. This will constitute the next episode. I shall come back to this in due course. According to Eugene E. Mniwasa in his paper titled “The Banking Confidentiality Law in Tanzania: An Appraisal”, the banker’s duty of confidentiality to its customers, which is founded on the contract between banks and their customers, is one of the pillars governing the banker-customer relationship in Tanzania. The banks have the obligation to keep information concerning their customers’ affairs confidential. The law permits the duty of confidentiality to be 15 lifted in certain specific situations, including where information related to customers’ transactions is required to prevent or control unlawful activities such as money laundering, terrorism, drug trafficking, and corruption or to facilitate the conduct of legal proceedings in Courts. According to section 48 (1) of the Banking and Financial Institutions Act, 2006, every bank or financial institution shall observe, except as otherwise required by law, the practices and usages customary among bankers and in particular, shall not divulge any information relating to its customers or their affairs except in circumstances in which, in accordance with the law or practices and usages customary among bankers, it is necessary or appropriate for the bank or financial institution to divulge such information ( see also Light and Hurry Enterprises vs. NMB Bank Public Limited Co., Commercial Case No. 157 of 2018 and Yasinta Kambona vs. NMB (Ndanda Branch), DC Civil Appeal No. 4 of 2021, High Court of Tanzania at Mtwara). According to Regulations 36 (a) and (b) of the Bank of Tanzania (Financial Consumer Protection) Regulations, 2019, 16 every financial service provider is required to put in place appropriate security and control measures to protect consumers’ financial and personal information; and not share consumers’ information with a third party except with consumer’s consent or as required by the law. Regulation 3 defines the word “consumer” as a person who uses, has used, or is, using any of the financial products or services provided by a financial service provider. In his celebrated Book titled “The Law and Practice of Banking Volume 1: Banker and Customer”, J. Milnes Holden has this to say at page 35; The Banker must not disclose to a third person, without the consent of the customer, express or implied, either the state of the customer’s account, or any of his transactions with the banker, or any information relating to the customer acquired through the keeping of his account, unless the banker is compelled to do so under the provisions of an Act of Parliament or by order of a court, or the circumstances give rise to a public duty of disclosure or the protection of the banker’s own interests requires it. From what I have tried to endeavor hereinabove, it is apposite that the banker has a contractual and statutory duty to the customer 17 to maintain confidentiality. Although the duty is not absolute, confidential information is only divulged at the expense of the law or Court order. It follows, therefore, that, in all other circumstances, the customer must give express or implied consent. The banker has no mandate, by reason of other arrangements, to divulge information kept by it confidentially without the consent of the customer or account holder. Such duty underpins the everlasting banking principle that bankers hold clients’ funds and associated information on trust. In this case, PW1 was employed by Exim Bank (Tanzania) Limited. By reason of power of attorney, he accessed the Bank Statement, Loan Agreements, and other documents related to the loan between the Appellant and the Respondent. In my considered opinion, both PW1 and Exim Bank (Tanzania) Limited were third parties. First, a power of attorney (Exhibit P1) did not extend in itself to access the confidential information of the non-performers. Second, the duty of confidentiality cannot be breached by reason of private arrangement through power of attorney between the two entities. Third, since it was not in relation to the Act of Parliament or Court 18 order, accessing such information by PW1, in the absence of any express or implied consent by the Respondent, was illegal. Fourth, although PW1 claims to have printed the Bank statement, the same is stamped with the FNB Tanzania Limited stamp. For this reason, I find myself questioning the authenticity and accuracy of Exhibits P2 (Home Restructuring Agreement), P3 (Bank Statement) and P4 (Statutory Notice). PW1 had no mandate to access said exhibits and tender them in Court as he was not an officer or partner of the Appellant. Equally, there is no evidence of how he was able to access and tender Exhibits P2 and P4, which are believed to have been kept in confidence by the Appellant. Since PW1 was not an office bearer of the Appellant, he had no authority to tender the said documents. There is more on this. As alluded to by PW1, he accessed and printed the Bank Statement for tendering in Court. He relied on the certificate of authenticity, which was tendered along with the Bank Statement. Since it is the Banker’s book, the question would be whether the same was properly tendered. 19 Addressing the above issue, Mr. Ng’weli referred this Court to paragraph 4 of the Certificate of authenticity and argued further that, considering the circumstances, the same cannot be questioned at this stage. Even if such a situation occurs, the one who ought to have been offended by the said certificate should be FNB TANZANIA LIMITED and not otherwise. He added further that the sequential facts deponed in the said certificate also determine the extent of how genuine the said document was. To prove this attribute, the Respondent conceded to its admission, and thus, it carried authentic features. He reiterated his earlier submissions that since there was no deniability to its admissions, this issue cannot be determined at this stage. He recited the case of Malula Chemu @ Malula. (supra). Of course, the admission of any printout of the Bank Statements in any judicial proceedings is guided by the provisions of sections 78 (1), (2), 78A (1) (2) and 79(1) and (2) of the Tanzania Evidence Act (supra). For easy reference, the sections provide as follows: Section 78: Proof that the book is a banker's book: 20 1. A copy of an entry in a banker's book shall not be received in evidence under this Act unless it is first proved that the book was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. 2. Such proof under subsection (1) may be given by a partner or officer of the bank and may be given orally or by an affidavit sworn before any commissioner for oaths or a person authorized to take affidavits Section 78A: Electronic Evidence: (1) A printout of any entry in the books of a bank on micro- film computer, information system, magnetic tape, or any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such print out, and when such a print out is supported by a proof stipulated under sub-section 2 of section 78 that it was made in the usual and ordinary course of business and that the book is in the custody of the bank, it shall be received in evidence under this Act. (2) any entry in any bank's book shall be deemed to be primary evidence of such entry and any such banker's book shall be deemed to be a "document for purpose of subsection (1) of section 64. 21 Section 79: Verification of copy: (1) A copy of any entry in a banker's book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct (2) The proof under subsection (1) shall be given by person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner for oaths or a person authorized to take affidavits. Going by the literal wording of the provisions of section 78 (1), there are three imperative ingredients that the Court receiving the evidence should consider. There are: one, that the banker’s book was at the time of making the entry one of the ordinary books of the bank; two, that the entry was made in the usual and ordinary course of business; and three, that the book was in the custody or control of the bank. Further, sub-section (2) of section 78 provides how and when the above ingredients will be proved. This can be done by a partner or officer of the bank in two modes: oral or by an affidavit before the commissioner for oaths or any person authorized to take affidavits. 22 In view of section 78A (1) and (2), the three ingredients are imperative to be shown in the affidavit or by oral testimony of the person who intends to tender them. Once complied with, the bank statement must be admitted and treated as primary evidence. Section 79 (1) provides additional ingredients; the banker's book must have been examined and compared with the original and found to be correct. Section 79 (2) provides that the above ingredients should be given by the person who has examined the copy with the original entry and found it is correct to do so orally during tendering or by affidavit. Having so observed, the question would be whether PW1’s certificate of authenticity (Affidavit) complied with the law. I went through it and noted that PW1 deposed that on 18th August 2023, he printed the statement from the FNB Tanzania Limited system. He further deposed that the statement had been printed from an electronic/computerized system and that it was correct, true, and genuine. With respect, that was not an affidavit envisaged under the cited provisions of the law. I will give the reasons. 23 One, none of the paragraphs in the affidavit stated that the Bank Statement was made in the bank's usual and ordinary course of business; two, the Affidavit did not state whether the entries were made in the usual and course of the business; three, PW1 did not state whether the banker’s book was under the custody of the Appellant; four, PW1 did not state whether he happened to compare the original document with copies intended to be tendered in evidence; five, PW1 is not an officer of the Appellant or the partner for the purposes of the law mandated and authorized to print and have the printout tendered in Court, and six, the Affidavit itself is contradictory; PW1 asserts that his employer and FNB Tanzania Limited instructed him to access the information (not First National Bank Tanzania Limited). Even if there was a change of name, a certificate of change of name was not tendered in evidence. In Delina General Enterprises Limited vs. KCB Bank & Another, Commebcual Case No. 16 of 2022, High Court of Tanzania at Dar es Salaam, the Court refused to admit the Bank 24 Statement on the grounds of failure to meet the above criteria. At page 11 of the Judgment, the Court noted that; On the totality of the above reasons, this court finds the affidavits in support of the bank statements are devoid of the requirements in sections 78, 78A and 79 and much as the opening statement in sections 78 and 79 not to admit, then, this court is constrained not to admit the affidavits together with the bank statements in dispute. It was important for the Appellant to make sure that proof of accuracy and authenticity of the data messages was given by a partner or officer of the bank either orally or by an affidavit sworn before any commissioner for oaths or a person authorized to take affidavits. In this case, the evidence related to the soundness of the computer system was not given either by an affidavit or orally during hearing. In such circumstances, the authenticity of the bank statement is questionable. In the case of Stanley Murithi Mwaura vs. Republic, Criminal Appeal 44 of 2019,, Court of Appeal of Tanzania at Dar es Salaam, the Court stated that; In the circumstances, we hold that tendering exhibits P 10, P 11 and P 16 was proper in terms of sections 64A (2) and 78A (2) of the Evidence Act read together with section 18(2) of 25 the ETA especially after the banking officials had testified on the soundness of their respective banking computer systems from which the documents were electronically stored and mechanically generated from by printing. Equally, I am constrained to hold that the Bank Statement and the affidavit were received in evidence contravention of the law. I also find that PW1 was incompetent to print and have the printouts tendered in Court. In the same premises, I find the Affidavit of verification devoid of ingredients as stated hereinabove. In the final analysis, I hereby expunge Exhibit P3 collectively. As said before, being the confidential document under the custody of the Appellant, PW1 had no mandate to access and tender Exhibits P2 and P4 on the pretext that there was a power of attorney. There is no evidence of how he got hold of such vital and confidential document for tendering, bearing in mind that he was not an employee of the Appellant. Such an explanation was necessary for the Court to assess its authenticity. In Melchiory Blasius Kamata & Another vs. The Republic (Criminal Appeal No 38789 of 2023) [2024] TZHC 270 (8 February 2024), I said and I repeat; 26 Moreso, PW3 testified that, after she had completed examination, she remitted the affidavit together with the report to PW5, one Assistant Inspector Michael. But then, she failed to account how the same got to her hands for the second time for tendering. Such explanation was necessary for the Court to assess its authenticity. It goes without saying therefore that, to avoid turning the Courts into a rubbish bin, Courts should avoid acting on the documentary evidence of which the source or origin has not been established. In the circumstances, for the above reasons, I hereby expunge Exhibit P2 from the records. Having done so, the next episode will be to determine whether the remaining evidence supports the claim. As alluded to above, PW1 was not an officer of the Appellant. He testified as per his employer's instruction, Exim Bank (Tanzania) Limited. He did not say how he got such information. Moreover, he did not even prove he was an employee of the said entity. Even if he was so instructed, since he was not the Appellant’s employee, the testimony was merely hearsay evidence that cannot be acted upon. Even for the sake of argument that the information given during the 27 hearing was supplied to him by the Appellant, it cannot be acted upon because the Appellant breached the statutory and contractual duty of confidence or secrecy. The Appellant had no mandate to divulge such information to the third party (Exim Bank (Tanzania) Limited) without express or implied consent of the Respondent. I need not recap what the law says about the duty not to divulge confidential information of the client, the Respondent. For the reasons stated hereinabove, I hereby disregard the oral testimony of PW1. In the premises, I am constrained to find out that the appellant's claim before the trial Court was not proven to the required standards in civil cases, that is, on the balance of probability. In that stance, I hereby quash and set aside the Judgement and Decree of the trial Court. Having done so, I see no reason to discuss the grounds of appeal raised by the Appellant because they were raised from the judgment and decree predicated on the failure to gather and evaluate the evidence properly by the trial Court. That said, I dismiss the Appeal with no order as costs. I order accordingly. 28 Right of appeal explained. DATED at DAR ES SALAAM this 10th October 2024. H.S. MTEMBWA JUDGE 29