KAHAMA OIL Judgment 29

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 78 OF 2023 KAHAMA OIL MILLS LIMITED……...…………….…….……………......FIRST PLAINTIFF KAHAMA IMPORT & EXPORT COMMERCIAL AGENCY LIMITED……………………………………………………….…………...SECOND PLAINTIFF KOM GROUP OF COMPANIES LIMITED.……….……...…….………...THIRD PLAINTIFF SHINYANGA ROYAL PHARMACY (2015) LIMITED…...…………...FOURTH PLAINTIFF ROYAL SUPERMARKET (2008) LIMITED…………………..…………...FIFTH PLAINTIFF MHOJA NKWABI KABALO…………………………………..................….SIXTH PLAINTIFF Versus EQUITY BANK TANZANIA LIMITED…....…….…..…..........................FIRST DEFENDANT EQUITY BANK KENYA LIMITED…………………………………...SECOND DEFENDANT JUDGMENT Date of last order: 21/08/2024 Date of judgment: 29/11/2024 AGATHO, J.: The Plaintiffs and the Defendants had a lender and borrower relationship. It is alleged that the defendants extended several credit facilities to the 1st and 2nd plaintiffs in which the 3rd – 6th defendants were guarantors. According to the records the defendants issued default notices to the plaintiffs that triggered them to file the present suit against the defendants. As grasped from the plaint, the plaintiffs’ case is that the parties executed credit facilities agreements admitted as exhibit P1(a). These facilities were as follows: facility I; facility II; facility III; facility IV and facility V. It is the plaintiffs’ argument that the 1st defendant executed the credit facility agreement and disbursed the funds to the plaintiffs. 1 Regarding the 2nd defendant, she executed the credit facilities agreement, but she did not disburse any funds to the 1st and 2nd plaintiffs. The latter further claim that the funds were disbursed by KOM Group of Companies Limited of Nairobi Kenya. In addition to that the plaintiffs claim that they had credit facility agreement with KOM Group of Companies Limited of Nairobi Kenya. Further to that they allege that they repaid the loans. They thus prayed for judgment and decree against the defendants jointly and severally for the following orders: (a) A declaration that the banking facilities dated 28th May 2018 and 19th June 2020 between the 1st and 2nd plaintiffs on one hand and the defendants on the other as well as the subsequent variation dated 22nd December 2022 between the 1st and 2nd plaintiffs and the defendants never took place as between the 1st and 2nd plaintiffs and the 2nd defendant. (b) A declaration that the 1st defendant breached the banking facilities dated 28th May 2018 and 19th June 2020 between the 1st and 2nd plaintiffs on one hand and the defendant on the other hand as well as the subsequent variation dated 22 nd December 2022 between the 1st and 2nd plaintiffs on one hand and the defendants on the other hand. (c) An order for the 1st defendant to refund the 1st plaintiff USD 1, 300,000 which the 1st defendant paid to NISK Capital Limited against the contract and invoice addressed to Kahama Group of Companies Limited in breach of the banking contractual relation between the 1st plaintiff and the 1st defendant. (d) A declaration that there is no outstanding loan amount from either of the plaintiffs due and payable to either of the defendants. (e) A declaration that the mortgage deeds and deeds of variation registered in favour of the 1st defendant and the 2nd defendant are unlawful and a nullity. (f) An order to the defendants to discharge all mortgages and release title deeds of the 1st and 2nd plaintiffs. (g) An order to the defendants to discharge debentures registered in favour of the 1 st and 2nd defendants. 2 (h) An order to discharge personal guarantee and indemnity executed by the directors of the plaintiffs. (i) An order for the defendants to pay commercial interest on the decretal sum from the date of filing of the suit to the date of judgment. (j) An order for the defendants to pay court interest on the decretal sum from the date of judgment to the date of payment decretal sum. (k) General damages to be assessed by the court. (l) Costs of the suit and (m) Any other reliefs the court deem fit to grant. The defendants on their side, upon being served with copy of plaint denied the plaintiffs’ claims via their joint Written Statement of Defence and raised a counterclaim against the plaintiffs. They thus sought reliefs as follows: (a) a dismissal of the plaintiffs’ suit in its entirety; (b) a declaratory order that the Borrowers are in breach of the terms and conditions of the facilities the subject of the syndicated loan agreement dated 28 th May 2018 as restructured; (c) a declaratory order that following Borrowers’ default, the Guarantors and the mortgagor are fully liable to the defendants; (d) an order for the Borrowers, the Guarantor and the mortgagor jointly and severally to pay the outstanding debt (USD 47,228,592.53); (e) an order for interest on the outstanding debt (USD 47,228,592.53) at the agreed contractual rates from the date of filing the counterclaim to the date of judgment; (f) an order for interest at court’s rate on the decretal sum from the date of judgment to the date of full satisfaction; (g) an order for costs and incidental to the suits and counterclaim; (h) an order for interest on costs at the rate of 7% per annum; (i) any other reliefs the court may deem fit and just to grant. 3 After failure of mediation, the matter went to final pre-trial conference. It was at this stage where the Court with assistance of the parties framed nine issues for determination as indicated below: 1. What are the agreed terms of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022). 2. Whether the 2nd defendant disbursed the funds the subject of the facility agreement dated 28th May 2018, (as varied/restructured on 19th January 2019, 19th June, 2020, February 2022 and December 2022) as agreed. 3. Whether the alleged KOM Group of Companies Limited of Nairobi Kenya is a legal entity. 4. Whether the 1st plaintiff issued irrevocable instructions to the 1st defendant to pay Nisk Capital Limited the sum of USD 1,300, 000. 5. Whether the defendants breached any terms of the facility agreement dated 28 th May 2018 (as varied/restructured on 19th January 2019, 19th June, 2020, February, 2022 and December 2022). 6. Whether the 1st and the 2nd plaintiffs are in breach of the terms of the facility agreement dated 28th May, 2018 (as varied/restructured on 19th January, 2019, 19th June, 2020, February, 2022 and December 2022). 7. Whether the alleged KOM Group of Companies Limited of Nairobi Kenya advanced any loan facility to the 1st plaintiff. 8. Whether there has been any loan repayment from either plaintiff to the 2nd defendant? 9. What reliefs that the parties are entitled to. In a bid to prove their case, the plaintiffs paraded two witnesses. These are Mhoja Nkwabi Kabalo and Emmanuel Frederick Mlaponi. The 1st witness was Mhoja Nkwabi Kabalo, who shall be referred as PW1. PW1 under oath and through his witness statement which was received by this court and adopted as his testimony in chief told the court that 4 he is the sixth plaintiff and a director of the 1st 2nd 3rd 4th and 5th plaintiffs hence, conversant with the case. PW1 testimony was that on 28th May 2018 1st and 2nd plaintiffs jointly entered into syndicated loan agreement with the defendants to wit Import loan to the tune of USD 7,000,000 and Pre-shipment Finance under Export Orders USD 7,000,000 with the purpose of processing cotton and pre-shipping expenses. Subsequently, the 1st plaintiff company in the main suit requested a term loan of USD 14,200,000.00 for the purpose of taking over term loan held at CRDB Bank Plc. Testifying further PW1 told the court that, at the request of the 1 st and the 2 plaintiffs the defendant availed USD 7,000,000.00 as a Term Loan offered jointly for the purposes of taking over the overdraft facility held at CRDB Bank Plc. Again, a term loan to the tune of USD 880,000 was granted for the purpose of taking over the borrower’s overdraft to CRDB. Subsequently, a term loan to the tune of USD 9,800,000 was granted to take over an overdraft held at CRDB in the name of KIMPEX. PW1 tendered in evidence credit facility agreement dated 28/05/2018 which was received and marked as exhibit P1(a) and the original copy of facility agreement dated 19/06/2020 which received and marked as exhibit P1(b). Testifying further PW1 stated the defendants breached the said facility because the requested amount was not disbursed to 1st and 2nd plaintiff, instead the Second Defendant disbursed USD 32,000,000 to KOM Group of Companies Limited of Nairobi Kenya and on the 1st October 2018 the 1st defendant did withdrawal USD 2,200,000 from the 1st plaintiff account contrary to the facility letter. Testifying further PW1 admitted that on 19th June 2020 defendants extended the term loan of USD 38,000,000 to 1 st and 2nd plaintiffs and out of which USD 32,000,000 was from the Second Defendant while USD 6,000,000 was from the First Defendant. 5 Expounding on the said loan PW1 had it that the USD 32,000,000 was disbursed to Kom Group of Companies Limited of Nairobi Kenya. According to PW1 the second Defendant never disbursed any funds to the First and Second Plaintiffs because there is no movement of any funds from the Second Defendant to the First and Second Plaintiffs. PW1 tendered in evidence the bank account statement of KOM Group of Companies Limited of P.O.BOX 75104 Nairobi, Kenya bank account No. 2220579904139 maintained at Equity Bank Kenya received and admitted as exhibit P2(a). The email printout of 2nd October 2020 was received and admitted as exhibit P2(b) and PW1’s affidavit sworn on 3rd October 2023 was admitted as exhibit P2(c). PW1 testified that the 1st and 2nd plaintiff notified the defendants that the said amount were not received. He contended that Kom Group of Companies Limited of Nairobi is the one who received that amount while the 1 st and 2nd plaintiffs were issued loan account statements of Kom Group of Companies Limited of Nairobi Kenya which are 2220577525065, 2220577525030, 2220577525000, 2220579427486, 2220579427486 and 0810277520975. PW1 tendered in evidence The account statement for Bank account number 2220577525065 in the name of KOM Group of Companies Limited admitted as exhibit P3(a), account statement for Bank account number 2220577525030 in the name of KOM Group of Companies Limited admitted as exhibit P3(b), account statement for Bank account No. 2220577525000 in the name of KOM Group of Companies Limited admitted as exhibit P3(c). The account statement for Bank account No. 2220579427486 of KOM Group of Companies Limited of P.O. BOX 75104 Nairobi admitted as exhibit P3(d), account statement for Bank account No. 0810277520975 of KOM Group of Company Limited P.O. BOX 75104 Nairobi admitted as exhibit P3(e), account statement for Bank account No. 3005211479827 USD account of 6 KAHAMA OIL MILLS LIMITED of P.O. BOX 253 Kahama, Tanzania maintained at Equity Bank Tanzania admitted as exhibit P3(f), account statement for Bank account No. 3005211479823 of KAHAMA OIL MILLS LIMITED of P.O. BOX 253 Kahama, Tanzania maintained at Equity Bank Tanzania admitted as exhibit P3(g) and the email print out dated 1st October 2020 from 2nd defendant to plaintiff as exhibit P3 (h). It suffices to state here that the Court observed that oral testimony and PW1’s witness statement varies. In PW1’s witness statement the accounts are stated to be that of KOM Group of Companies Limited of Nairobi Kenya. Contrary to that in his oral testimony the accounts are mixed some are referred to as KOM Group of Companies Limited of Nairobi Kenya (these are exhibits P3(a) to P3(e)) while others belong to Kahama Oil Mills Limited. These are exhibits P3(f) and P3(g) maintained at Equity Bank Tanzania Limited, 1st defendant. PW1 further admitted that on 10th August 2018, vide 1st plaintiff account NO. 3005211479827 the 1st plaintiff received (i) USD 4,120,000 and USD 880,000 from the 1st defendant while USD 26,592,232.00 and USD 4,200,000 was received from Kom Group of Companies Limited of Nairobi Kenya. According to PW1 total amount the 1 st plaintiff received from the 1st defendant is USD 5,000,000 and from KOM Group Companies Limited is USD 30,792,232.00. PW1 testified that until 11th October, 2018 the 1st plaintiff had paid USD 4,092,044.13 to KOM Group of Companies Limited of Nairobi Kenya and USD 5,744,085.93 to 1st defendant. Explaining on repayment, PW1 stated that on 1st October 2018, the 1st Defendant deducted USD 2,200,000 and the outstanding debt was USD 2,800,000. He also told the court that the 1st defendant paid NISK Capital Limited not a party to this case a total of USD 1,300,000 from the 1st plaintiff relying on the contract between NISK Capital and Kahama Group of Companies Limited (not a party to this case), and using invoices addressed to Kahama Group of Companies Limited. PW1 tendered in evidence a copy of contract between NISK Capital Limited and Kahama Group of Company Limited which was admitted as exhibit P4(a) and a copy of invoice from NISK Company Limited to Kahama Group of Company Limited which was admitted as exhibit P4(b). Despite the 7 payments of the debt, the plaintiffs on 19th June 2023 received demand notices from Equity Bank Tanzania Limited which were admitted as exhibit P5(a) to (f). PW1 testified that, upon receiving the demand notices, the boards of the 1st to 5th plaintiffs issued resolution authorizing them to institute the case. PW1 tendered in evidence board resolutions which was admitted as exhibit 5(a) - (h). During cross examination by Advocate Sinare, PW1 admitted that the 1st and 2nd plaintiff executed exhibit P1(a) which contained the agreed terms. When asked further PW1 admitted that among the terms of the contract was that under the facility Equity Bank Kenya Limited, 2nd defendant was the one to disburse the funds and the purpose was to take over the liability of 1st plaintiff towards CRDB. Pressed more with question, the witness admitted that 2nd defendant disbursed USD 32 million, and it was used to repay the CRDB Loan. However, he was quick to point out that after getting advice from the consultants they noted that the 2nd defendant did not disburse any money to the 1st and 2nd plaintiffs. PW1 when shown a letter dated 1st August 2018 admitted to have authored it, and gave the 1st defendant irrevocable instruction to pay NISK Capital Ltd, sum of USD 1,300,000 as Fees Related to capital raising. Under re-examination by learned counsel Mwalongo, PW1 stated that he was not aware if the loan from the 2nd defendant was availed because the documents were fabricated or manipulated so he could believe that 2nd defendant disbursed the funds while actually they were given to KOM Group of Companies of Nairobi. PW1 further claimed that he was introduced to KOM Group of Companies of Nairobi who was the one disbursing the funds. Thus, the 2nd defendant had never disbursed any funds 1st and 2nd plaintiffs. On this, PW1 told the court that the evidence he has is that the 1st plaintiff was given loans from KOM Group of Companies of Nairobi. That is the accounts statements for the account ending with 3005211479827, which is exhibit P3(f). The witness testified that there are several transactions indicating transfer of funds from KOM Group of Companies of Nairobi to 1st plaintiff. 8 It was testimony of PW1 that indeed the 1st defendant availed the 1st and 2nd plaintiff USD 5,000,000 however he was quick to point that the first Plaintiff has paid a total of USD 4,092,044.13 to Kom Group of Companies Limited of Nairobi Kenya in the following entries: on 11th October 2018 paid 326,131.00, on 12th November 2018 paid 326,131.00, on 10th December 2018 paid USD 326,131.00 on 11th January 2019 paid 326,131.00, on 13th February 2019 paid 326,131.00, on 14th March 2019 paid 326,131.00, on 22nd March 2019 paid 200,000 USD, on 18th April 2019 paid 126,131.00, on 10th May 2019 paid 74,465.00, on 4th July 2019 paid 270,100, on 9th July 2019 paid 382,900, on 16th November 2019 paid USD 330,696.00 on 5th December 2019 paid USD 98,704.13, on10th January 2020 paid USD 326,131.00 and on the 2nd March 2020 paid USD 326,131.00. PW1 tendered in evidence account statements for account No. 3005211479827 in USD and 3005211479823 in TZS and the email printouts sending the statement to the Plaintiffs as Exhibits P3(f), P3(g) and P3(h) respectively. According to PW1 the total loan repayment to date is USD 5,744,085.93 but the outstanding loan has not gone down and it has remained the same for some times and later on or gone up and up. On 1 st October 2018, the First Defendant recovered USD 2,200,000 from the First Plaintiff in total breach of the banking facility of 28th May 2018 and the balance remained USD 2,800,000. The next witness to testify for the plaintiffs was Emmanuel Frederick Mlaponi (hereinafter referred to as “PW2”). PW2 under oath and through his witness statement which was received by this court and adopted as his testimony in chief told the court that, he is the Finance Manager and acting director of the First, Second, Third, and Fourth plaintiffs, overseeing all the operations of the Plaintiff .The testimony of PW2 was replica to PW1 however he added that the second Defendant never disbursed any funds to the 9 First and Second Plaintiffs because there is no movement of any funds from the Second Defendant to the First and Second Plaintiffs. However, PW2 pointed that it is on his knowledge that the 2nd defendant disbursed 32,000,000 USD (United States Dollars thirty- two million) to Kom Group of Companies Limited of Nairobi Kenya whom the defendants expected to advance the said amount to 1st plaintiff. PW2 tendered in evidence. Further testimony was that on 10th August 2018, the First Plaintiff vide current account No. 3005211479827 received USD 4,120,000 USD 880,000 from First Defendant, and USD 26,592,232.00 USD and USD 4,200,000 from Kom Group of Companies Limited of Nairobi Kenya. According to PW1 the total funds that the First Plaintiff received from Kom Group of Companies Limited of Nairobi Kenya is USD 30,792,232.00 while the amount received from the First Defendant is USD 5,000,000. PW1 pointed that the 1 st Plaintiffs he had never received any funds from the Second Defendant.PW1 further that the 2 nd defendant could not have advanced the loan to 1st and 2nd plaintiff without making compliance to foreign exchange.PW1 faulted the facility agreement dated 28th May,2018 that there was no compliance of the conditions stipulated under the Foreign Exchange Circular No. 6000/DEM/EX.REG/58 of 24th September 1998 which require submission of foreign loan agreement, evidence of disbursement and debt servicing schedule to the Bank of Tanzania within 14 days from the date of approval of the loan agreement. According to PW1 failure to comply with those conditions it was good as there was no facility dated 28 th May,2018 together with their variations. PW2 tendered the foreign exchange circular No. 6000/DEM/EX.REG/58 of 24th September 1998 which was admitted as exhibit P7(a) and the PW2’s affidavit of authenticity of foreign exchange circular was admitted as exhibit P7(b). 10 That marked the end of plaintiffs’ case. Having the plaintiffs closed their case, the defendants opened their case. In defence, the defendants were defended by three witnesses. The first to testify was on Mr. Michael John Kessy (to be referred in these proceedings as “DW1”). DW1 under oath and through his witness statement which was received and adopted as his testimony in chief, he told the court that he is employed by Equity Bank Tanzania Limited the 1st Defendant in the suit in a position of Manager, Business Rehabilitation, in his capacity as a principal officer he is testifying for and behalf of the Defendants who are sister companies. DW1 told the court that, the 1st Plaintiff and the 2nd Plaintiff (hereinafter “the Borrowers”) and the 1st Defendant and the 2nd Defendant on the other hand, on 28th May, 2018, successfully executed a Syndicated Loan Agreement (hereinafter “the Loan Agreement”) which was tendered as Exhibit P1 by the Plaintiffs, where under clause 1 of the said Exhibit P1 contains five facilities ascribed Facility I: USD 14,000.00: a Structured trade Commodity Financing Limit offered by the Second Defendant divided into two components namely: (a) Loan against Import; and (b) Pre-shipment Finance under Export Orders, Facility II: USD. 14,200,000.00: a Term Loan offered by the Second Defendant to take over the Borrowers’ Term Loan with CRDB Bank Plc, Facility III: USD 7,000,000.00: a Term Loan offered jointly by the First Defendant and the Second Defendant to take over the Borrowers’ overdraft facility with CRDB Bank Plc, Facility IV: USD. 880,000.00: a Term Loan offered by the First Defendant to take over the Borrowers’ overdraft facility with CRDB Bank Plc, and Facility V: USD. 9,800,000.00: a Term Loan offered by the 2 nd Defendant to take over the Borrowers’ overdraft facility with CRDB Bank Plc. 11 Expounding about the aforementioned Loan Agreement, he said that the Loan Agreement was varied through the variation of facility terms which was received and marked as Exhibit D1. DW1 tendered other documents with regard to the variations and/or restructuring of the facilities including; a letter from Kahama Oil Mills to Equity Bank Tanzania Limited dated 30/03/2020 heading restructuring of credit facilities which was admitted as Exhibit D2, Restructuring of credit facility for Kahama Oil Mills Limited dated 8th May 2020 admitted as Exhibit D3 (a), Kahama Oil Mills Limited board resolution extract dated 8th May 2020 admitted as Exhibit D3 (b), Restructuring of credit facility for Kahama Import and Export Commercial Agency Limited dated 8th May 2020 admitted as Exhibit D3 (c), Board resolution of Kahama Import and Export Commercial Agency Limited dated 8th May 2020 as Exhibit D3 (d), Restructuring of credit facility for KOM Group of Companies Limited dated 8th May 2020 admitted as Exhibit D3 (e), Board resolution of KOM Group of Companies Limited dated 8th May 2020 admitted as Exhibit D3 (f), restructuring of credit facility for Shinyanga Royal Pharmacy (2015) Limited dated 8th May 2020 admitted as Exhibit D3 (g) Board resolution of Shinyanga Royal Pharmacy (2015) Limited dated 8th May 2020 admitted as Exhibit D3 (h), restructuring of credit facility for Royal Supermarket (2008) Limited dated 8th May 2020 admitted as Exhibit D3 (i) and a Board resolution of Royal Supermarket (2008) Limited dated 8th May 2020 admitted as Exhibit D3 (j). With regard to variation of the loan facility DW1 further tendered, a letter from Kahama Oils Mills Limited to Equity Bank Tanzania Limited request for draw down USD 1 million dated 17th April 2019 admitted as Exhibit D4(a), a letter titled working capital facilities – Kahama Oil Mills Limited (KOM) and Kahama Import and Export Limited 12 (KIMPEX) admitted as Exhibit D4(b), a letter from Kahama Oil Mills’ titled request for post import loan facility for all my outstanding LC obligations dated 22 nd June 2019 admitted as Exhibit D4(c) , a letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency Limited titled condition of LOO on utilization of facility – structure trade and commodity finance limit dated 25th June 2019 admitted as Exhibit D4(d), a letter from Equity Bank Tanzania Limited to Kahama Oil Mills limited - application for restructure of credit facilities dated 11th October 2019 admitted as Exhibit D4(e), a letter from KOM Group of Companies to Equity Bank Tanzania Limited titled restructuring of credit facilities dated 30th March 2020 admitted as Exhibit D4(f), a letter from Equity Bank Tanzania Limited and Equity Bank Kenya Limited titled Banking Facility dated 11th May 2021 admitted as Exhibit D4(g), a letter from Equity Bank Tanzania to Kahama Oil Mills Limited titled business review dated 16th December 2021 admitted as Exhibit D4(h), a letter from Equity Bank Tanzania to Kahama Group of Companies business review and compliance to the loan covenants dated 4th March 2022 admitted as Exhibit D4(i), a letter from Equity Tanzania to Kahama Group of Companies Limited submission of documents dated 3rd June 2022 admitted as exhibit D4(j), a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited restructuring of the existing facilities dated 11th July 2022 is admitted as exhibit D4(k), a letter from Kahama Oil Mills Limited to Equity Bank Tanzania restructuring of the existing facilities dated 27th July 2022 admitted as Exhibit D4(l), a letter from Equity Bank Tanzania to Kahama Oil Mills submission of current insurance policy in respect of assets mortgaged to the bank dated 15th August 2022 admitted as Exhibit D4(m), a deed of guarantee and indemnity from KOM Group of Companies limited and Equity Bank Tanzania Limited (as 13 security agent of Equity Bank Kenya Limited, lender) dated 21 st September 2018 admitted as Exhibit D5(a), a deed of guarantee and indemnity Shinyanga Royal Pharmacy (2015) limited and Equity Bank Tanzania Limited (as security agent of Equity Bank Kenya Limited, lender) dated 21st September 2018 admitted as exhibit D5(b), a deed of guarantee and indemnity from Royal Supermarket (2008) limited and Equity Bank Tanzania Limited (as security agent of Equity Bank Kenya Limited, lender) dated 21st September 2018 admitted as Exhibit D5(c), a mortgage deed of right of occupancy from Mhoja Nkwabi (mortgagor in favour of Equity Bank Tanzania Limited (as security agent of Equity Bank Kenya Limited (mortgagee) dated 25th June 2018 admitted as Exhibit D5(d), a certificate of registration of charge from Kahama Oil Mills in favour of Equity Bank Tanzania Limited dated 17th September 2018 admitted as Exhibit D5(e), certificate of registration of a charge from Kahama Import and Export Commercial Agency Limited in favour of Equity Bank Tanzania Limited dated 17th September 2018 admitted as Exhibit D5(f), a certificate of registration of a charge from KOM Group of Companies Limited in favour of Equity Bank Tanzania Limited and Equity Bank Kenya Limited dated 27th September 2018 admitted as Exhibit D5(g), a certificate of registration of a charge from Shinyanga Royal Pharmacy (2015) Limited in favour of Equity Bank Tanzania Limited and Equity Bank Kenya Limited dated 27th September 2018 admitted as Exhibit D5(h), a certificate of registration of a charge from Royal Supermarket (2008) Limited in favour of Equity Bank Tanzania Limited and Equity Bank Kenya Limited dated 27th September 2018 admitted as Exhibit D5(i), a deed of mortgage of a right of occupancy from Emmanuel Nkwabi (as mortgagor) in favour of Equity Bank Tanzania Limited (as security agent of Equity Bank Kenya Limited (mortgagee) dated 25th June 2018 admitted as Exhibit D5(j). 14 DW1 continued to state that, as required by the law, the Borrowers requested the Defendants to register the foreign portion of the loan (USD. 32,000,000.00) with the Bank of Tanzania (BoT), request was duly carried out by the Defendants resulting into a decision by BoT registering the said foreign loan and assigned it with Debt Registration Number (DRN) 2020092. Regarding the registration of the foreign portion of the loan referred to herein he tendered a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited registration of debt dated 29th October 2019 admitted as Exhibit D7(a) and a letter from the Bank of Tanzania to Equity Bank Tanzania Limited registration of foreign loan for assigning debt registration number (DRN) dated 8th July 2021 admitted as Exhibit D7(b). he further stated that, the Defendants duly fulfilled their contractual obligation which was to disburse the funds in respect of the facilities as instructed by the Borrowers. Regarding Facility II, Facility-III, Facility-IV and Facility-V, on 01st August, 2018, the Borrowers issued specific instructions to the Defendants to disburse the same for the Borrowers to settle their outstanding facilities with the CRDB Bank Plc as agreed. Based on this instruction from the Borrowers and a confirmation of the Borrowers’ negotiated outstanding facilities with the said CRDB Bank Plc where on 10th August, 2018, the 1st Defendant disbursed its portion of Facility-III (USD. 4,120,000.00) to the Borrowers from the Borrowers’ Loan Account No. 3005511133385 (created by the 1st Defendant exclusively, for purposes of its portion of Facility-III) to the Borrowers Current/Operational Account No. 3005211479827, again on the same date the 1st Defendant disbursed Facility-IV (USD. 880,000.00) to the Borrowers from the Borrowers’ Loan Account No. 3005511133386 (created by the First Defendant exclusively for purposes of Facility-IV) to the Borrowers Current/Operational Account No. 3005211479827. 15 He further testified that; on the same date the 2nd Defendant transferred a total sum of USD. 26,592,232.00 from its Escrow Account No. 0810277520975 with the name Kahama Oil Mills Limited-Escrow Account bearing the 2nd Defendant’s address P.O. Box 75104, Nairobi, KE, 00200) to the 1s Defendant where the 1st Defendant transferred the said sum of USD. 26,592,232.00 to the Borrowers Current/Operational Account No. 3005211479827 completing the disbursement of Facility-II, Facility-III, and Facility-V by the 2nd Defendant based on the Borrowers’ confirmed negotiated outstanding facilities with the CRDB Bank Plc. following the disbursement of Facility-II, Facility-III, Facility-IV and Facility-V by the Defendants to the Borrowers, on 10th August, 2018, the Borrowers instructed the First Defendant to transfer a sum of USD. 25,065,750.00 from the Borrowers’ USD Current/Operational Account No. 3005211479827 to the Borrowers’ TZS Current/Operational Account No. 3005211479823 and through duly completed Fund Transfer Application Forms, the Borrowers further instructed the First Defendant to transfer a sum of TZS. 57,200,000,000.00 from the Borrowers’ TZS Current/Operational Account No. 3005211479823 to an Account No. 9922181021 at the Bank of Tanzania in the Name of CRDB Bank Plc and USD. 6,000,000.00 from the Borrowers’ USD Current/Operational Account No. 3005211479827 to an Account No. 36072436 at CitiBank in the name of CRDB Bank Plc completing the takeover by the Defendants of the Borrowers’ outstanding loan liabilities with CRDB Bank Plc as agreed, he tendered an application form for funds transfer dated 10th August 18. The amount to be transferred TZS 57, 200,000,000. Applicant is Kahama Oil Mills Limited to Equity Bank Tanzania Limited. The beneficiary is CRDB Bank Limited admitted as exhibit D8(a), an application 16 form for funds transfers dated 10th August 18. The amount is USD 6 million by Kahama Oil Mills Limited, to Equity Bank Tanzania Limited, beneficiary name is CRDB Bank Limited, and beneficiary Bank: Citibank is admitted as D8(b), A swift message copy fund transfer. Sender – Equity Bank Tanzania Limited, receiver: CRDB Bank Limited. Ordering customer name: Kahama Oil Mills Limited. Date:10th August 2018; the amount: TZS 57, 200,000,000 admitted as D8 (c), and A swift message copy of funds transfers. Sender: Equity Bank Tanzania Limited. Receiver: Citibank; Ordering customer: Kahama Oil Mills Limited; Beneficiary customer: CRDB Bank Limited. Amount: USD 6 million. Date: 10 th August 2018 admitted as D8(d). Regarding Facility I the Borrowers requested for a drawdown of USD. 4,200,000.00 to support cotton purchase and aggregation and payment of fees for the facility. Consequently the 1st Defendant, granted the sum of USD. 4,200,000.00 which deposited to the borrower on 10th August, 2018 and the Borrowers expressly confirmed receipt of the same, having received the said sum of USD. 4,200,000.00, the Borrowers issued irrevocable instructions to the 1st Defendant to pay a sum of USD. 1,300,000.00 to one Nisk Capital Limited being Arrangement Fees where the amount was paid to the company on 11th August, 2018. To substantiate his testimony tendered invoice from NISK Capital limited to Kahama Group of Companies Limited. Total amount: USD 1, 300,000 which is similar to Exhibit P4(b), a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited, application for restructuring credit facilities date 16th November 2019 admitted as exhibit D9(a). a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited, instruction pay NISK Capital Limited sum of USD 1, 300,000 as fees related to capital raising and structuring dated 1st August 2019 admitted as exhibit D9(b). 17 He testified further that on 17th April 2019 and 29th April, 2019, the Borrowers expressly requested for a drawdown of USD. 1,000,000.00 from Facility-I to finance the Borrowers’ costs related to taxes and other port charges on imported material also through letters dated 1st August 2018 and 29th April 2019 requested for a drawdown of USD. 7,000,000.00 from Facility-I to finance purchase of cotton for the year 2019/2020 the same was granted, to substantiate these words DW1 tendered a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited, request for consideration on loan repayment and restructure of our facilities, dated 26th September 2019 admitted as exhibit D9(c), a letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited, application for restructure of credit facilities admitted as exhibit D9(d) and account statement of Kahama Import and Export Commercial Agency Limited. Account number 3005211505190 admitted as exhibit D9(e). It is DW1’s testimony that on 28th January, 2019, through a Documentary Application Form, applied for USD 1,338,600.00 [Letter of Credit Ref. No. OLCF0000029] and the Borrowers utilized the said amount to settle Commercial Invoice No. CZM19J356 dated March, 2019 for USD 496,955.68, Commercial Invoice No. CZM19J357A dated 16th March, 2019 for USD. 414,777.49 and Commercial Invoice CZM19J35B dated 26th March, 2019 for USD 412,440.80. he further stated that on the same date, through a Documentary Credit Application Form, applied for USD 668,000.00 [Letter of Credit Ref. No. OLCF000003019] issued on 30th January, 2019] and the Borrowers utilized the same to settle Commercial Invoice No. CZM19J355 dated 07th March, 2019 for USD 330,006.48, Commercial Invoice No. CZM19J356A dated 15th March, 2019 for USD 332,295.56 also on 18th February, 2019 through a Documentary Credit Application Form, applied for USD 18 142,500.00 [Letter of Credit No. OLCF000006119 issued on 04th March, 2019] and the Borrowers utilized the same to settle Proforma Invoice No. 100035408200003 dated 13 th February, 2019 for USD. 113,772.00 and again on 28 th February, 2019, through a Documentary Credit Application Form, applied for USD 396,657.00 [Letter of Credit No. OLCF000006419 issued on 11th March 2019] through Documentary Credit Application Form dated 28th February, 2019] and the Borrowers utilized the same to settle Commercial Invoice No. CZM19J562 dated 27th March, 2019 for USD 95,642.00, Commercial Invoice No. CZM19J562A dated 25th March, 2019 for USD 47,890.00, Commercial Invoice No. CZM19J562B dated 27th April, 2019 for USD. 167,003.40 and Commercial Invoice No. CZM19J562C dated 08th May, 2019 for USD 86,121.60, Documentary credit application; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; amount: USD 668,000; date: 28th January 2019 admitted as exhibit D13(a), Documentary letter of credit; sender: Equity Bank Kenya Limited; receiver: Bank of China; applicant: Kahama Oil Mills Limited; applicant bank: Equity Bank Tanzania Limited; beneficiary name: Changzhou Machinery and Equipment; amount: USD 668,000. Date: 30th January 19 admitted as exhibit D13(b), Commercial invoice from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; total amount: USD 330, 006.48; dated 7th March 2019 admitted as exhibit D13(c), Packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; dated 7th March 2019 admitted as exhibit D13(d), Bill of lading from Evergreen Line; shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Oil Mills Limited; date: 9th March 2019 admitted as exhibit D13(e), Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Oil Mills 19 Limited; dated 26th March 2019 admitted as exhibit D13(f), Documentary remittance from Bank of China to Equity Bank Kenya Limited; amount: USD 330,006.48; dated 9th March 2019 admitted as exhibit D13(g), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; dated 2nd April 2019 admitted as exhibit D13(h). DW1 substantiated the his words by tendering a Documentary credit application, applicant is Kahama Oil Mills Limited, to Equity Bank Tanzania Limited, beneficiary is Changzhou Machinery and Equipment dated 28th January 2019; amount: USD 1,338,600 admitted as exhibit D10(a), A letter of credit (documentary letter of credit), sender bank: Equity Bank Kenya Limited, receiver bank: Bank of China, applicant name: Kahama Oil Mills Limited, applicant’s bank name: Equity Bank Tanzania Limited; Beneficiary name: Changzhou Machinery and Equipment; amount: USD 1,338,600. Issuing date: 30th January 19 admitted as exhibit D10(b), Commercial invoice from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; total amount: USD 496,955.68. Date: 07th March 2019 admitted as exhibit D10(c), A packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited dated 7th March 2019 admitted as exhibit D10(d), Bill lading in the name of Pacific International Lines (PTE Limited) from Changzhou Machinery and Equipment to Equity Bank Tanzania Limited and Kahama Oil Mills Limited issued dated 13th March 2019 admitted as exhibit D10(e), a certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Oil Mills Limited; date: 28th March 2019 admitted as exhibit D10(f), Documentary remittance from Bank of China to Equity Bank Kenya Limited; amount: USD 496, 955. 68; dated: 27th March 2019 admitted as exhibit D10(g) and Presentation memo/import letters of credit; applicant: Kahama Oil 20 Mills Limited; beneficiary: Changzhou Machinery and Equipment; amount: USD 496,955.68; date: 2nd April 2019 admitted as exhibit D10(h) he also tendered, Commercial invoice from Changzhou Machinery and Equipment Company Limited to Kahama Oil Mills Limited; amount: USD 414,777.49, dated 16th March 2019 admitted as exhibit D11 (a), Packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited dated 16th March 2019 admitted as exhibit D11(b), Bill lading from Cosco Shipping Line Company Limited, shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying: Kahama Oil Mills Limited; dated: 18th March 2019 admitted as exhibit D11(c), Certificate of origin; export: Changzhou Machinery and Equipment; consignee: Kahama Oil Mills Limited, dated 4th April 2019 admitted as exhibit D11(d), Documentary remittance from Bank of China to Equity Bank Tanzania Limited; amount USD 414, 777.49 dated 18th March 2019 admitted as exhibit D11(e), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment dated 8th April 2019 admitted as exhibit D11(f) Commercial invoice from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; amount: USD 412, 404. 80 dated 26th March 2019 admitted as exhibit D12(a), Packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited date: 26th March 2019 admitted as exhibit D12(b), Bill of lading from Pacific Internation Line (PTE Limited) ; shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited, notifying party: Kahama oil Mills Limited date: 28th March 2019 admitted as exhibit D12(c), Documentary remittance from Bank of China to Equity Bank Tanzania Limited: amount: USD 412, 404. 80 dated 28th March 2019 admitted as exhibit D12(d), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; 21 beneficiary: Changzhou Machinery and Equipment; date: 25th April 2019 admitted as exhibit D12(f), Documentary credit application; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; amount: USD 668,000; date: 28th January 2019 admitted as exhibit D13(a), Documentary letter of credit; sender: Equity Bank Kenya Limited; receiver: Bank of China; applicant: Kahama Oil Mills Limited; applicant bank: Equity Bank Tanzania Limited; beneficiary name: Changzhou Machinery and Equipment; amount: USD 668,000. Date: 30th January 19 admitted as exhibit D13(b), Commercial invoice from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; total amount: USD 330, 006.48; dated 7th March 2019 admitted as exhibit D13(c), Packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; dated 7th March 2019 admitted as exhibit D13(d), Bill of lading from Evergreen Line; shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Oil Mills Limited; date: 9th March 2019 admitted as exhibit D13(e), Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Oil Mills Limited; dated 26th March 2019 admitted as exhibit D13(f), Documentary remittance from Bank of China to Equity Bank Kenya Limited; amount: USD 330,006.48; dated 9th March 2019 admitted as exhibit D13(g), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; dated 2nd April 2019 admitted as exhibit D13(h). 1. Commercial invoice from Changzhou Machinery and Equipment to Kahama oil Mills Limited; total amount: USD 332,295.56; dated 15th March 2019 admitted as exhibit D14(a), Packing list from Changzhou Machinery and Equipment to Kahama Oil Mills Limited; Dated: 15th March 2019 admitted as exhibit D14(b), Bill of lading from Evergreen Line; shipper: Changzhou 22 Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Oil Mills Limited; dated 16th March 2019 admitted as exhibit D14(c),Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Oil Mills Limited; dated 28th March 2019 admitted as exhibit D14(d), Documentary remittance from Bank of China to Equity Bank Kenya Limited; amount: USD 332, 295.56; dated 16th March 2019 admitted as exhibit D14(e), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; dated 2nd April 2019 admitted as exhibit D14(f), Documentary credit application; applicant: Kahama Oil Mills Limited to Equity Bank Tanzania Limited; beneficiary: Paklite FZC; amount: USD 142,500; date 18th February 2019 admitted as exhibit D15(a), Documentary letter of credit; sender: Equity Bank Kenya Limited; receiver: Standard Chartered Bank; applicant: Kahama Oil Mills Limited: applicant bank: Equity Bank Tanzania Limited; beneficiary Paklite FZC; amount USD 142,500; dated 4th March 19 admitted as exhibit D15(b), Proforma invoice from Paklite FZC to Kahama Oil Mills Limited; amount: USD 142, 500 admitted as exhibit D15(c) Documentary credit application; applicant: Kahama Import and Export Commercial Agency; beneficiary: Changzhou Machinery and Equipment; amount: USD 396,657 dated 28th February 2019 admitted as exhibit D16(a), Documentary letter of credit; sender: Equity Bank Kenya limited; receiver: Bank of China; applicant: Kahama Import and Export Commercial Agency Limited; beneficiary: Changzhou Machinery and Equipment; amount: USD 396, 657 dated 11th March 19 admitted as exhibit D16(b), Commercial invoice from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited; amount: USD 95, 692 dated 27th March 2019 admitted as exhibit D16(c), Commercial invoice from Changzhou Machinery and Equipment 23 to Kahama Import and Export Commercial Agency Limited; total amount: USD 47,890 dated 5th March 2019 admitted as exhibit D17(a), Packing list from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited, dated 25th March 2019 admitted as exhibit D17(b), Bill of lading from Pacific International Lines (PTE Limited); shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Oil Mills Limited; dated 26th March 2019 admitted as exhibit D17(c), Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Import and Export Commercial Agency Limited; dated 16th April 2019 admitted as exhibit D17(d)., Documentary remittance from Bank of China to Equity Bank Tanzania Limited; amount: USD 47,890 dated 26th March 2019 admitted as exhibit D17(e), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; dated 30th April 2019 admitted as exhibit D17(f), Bill of lading from Pacific International Lines (PTE Limited); shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Oil Mills Limited; dated 29th March 2019 admitted as exhibit D16(d), Certificate of conformity from Tanzania Bureau of Standards, importer: Kahama Import and Export Commercial Agency Limited; exporter: Changzhou Machinery and Equipment; dated 22nd March 2019 admitted as exhibit D16(e), Certificate of origin, exporter: Changzhou Machinery and Equipment; consignee: Kahama Import and Export Commercial Agency Limited dated 15th April 2019 admitted as exhibit D16(f), Documentary remittance from Bank of China to Equity Bank Tanzania Limited, amount is USD 95, 642; dated 29th March 2019 admitted as exhibit D16(g), Presentation memo/import letters of credit; applicant: Kahama Oil Mills Limited; beneficiary: Changzhou Machinery and Equipment; 24 dated 30th April 2019 admitted as exhibit D16(h). 1. Commercial invoice from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited; amount: USD 167,003.40; dated 27th April 2019 admitted as exhibit D18(a), Packing list from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited dated 27th April 2019 admitted as exhibit D18(b), Bill of lading from Pacific International Lines (PTE Limited); shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Import and Export Commercial Agency Limited dated 30th April 2019 admitted as exhibit D18(c), Certificate of conformity from Tanzania Bureau of Standard importer: Kahama Import and Export Commercial Agency Limited; exporter: Changzhou Machinery and Equipment dated 7th May 2019 admitted as exhibit D18(d), Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Import and Export Commercial Agency Limited dated 14th May 2019 admitted as exhibit D18(e), Documentary remittance from Bank of China to Equity Bank Tanzania Limited; amount: USD 167,003.40 dated 15th May 2019 admitted as exhibit D18(f), Presentation memo/import letters of credit; applicant: Kahama Import and Export Commercial Agency Limited; beneficiary: Changzhou Machinery and Equipment; dated 20th May 2019 admitted as exhibit D18(g). 1. Commercial invoice from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency; amount: USD 86,121.60 dated 8th May 2019 admitted as exhibit D19(a), Packing list from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited, dated 8th May 2019 admitted as exhibit D19(b), Bill of lading from Pacific International Lines (PTE Limited); shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notifying party: Kahama Import and Export 25 Commercial Agency Limited dated 10th May 2019 admitted as exhibit D19(c), Certificate of origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Import and Export Commercial Agency Limited dated 17th May 2019 admitted as exhibit D19(d), Documentary remittance from Bank of China to Equity Bank Tanzania Limited; amount: USD 86, 121.60 dated 22nd May 2019 admitted as exhibit D19(e), Presentation memo/import letter of credit; applicant: Kahama Import and Export Commercial Agency Limited; beneficiary: Changzhou Machinery and Equipment dated 27th May 2019 admitted as exhibit D19(f). DW1 went on and stated that 09th January, 2019, borrowers applied for USD 336,905.00 [Letter of Credit No. OLCF00000619 issued on 09 th January, 2019] and the Borrowers utilized the same to settle Proforma Invoice No. 163048 dated 18 th December, 2018 issued by Macsteel International Trading B.V and on 16 th November, 2018, applied for USD 283,476.00 [Letter of Credit No. OLC0000027118 issued on 16th November, 2018] and they utilized to settle Proforma Invoice No. RHS/CVN dated 19th October, 2018 issued by Macsteel International trading B.V. I and on 11th March, 2019, applied for USD. 198,065.38 [Letter of Credit No. OLCF000006519 issued on 11 th March, 2019] and the Borrowers utilized the same to settle Commercial Invoice No. CZM19J563 dated 25th June, 2019 for USD 98,010.59 and he tendered Documentary letter of credit from Equity Bank Kenya Limited; receiver: Nedbank Limited; applicant: Kahama Oil Mills Limited; beneficiary name: Mac Steel International Trading; amount: USD 336,095; dated 9th January 19 admitted as exhibit D20(a), Documentary letter of credit sender: Equity Bank Kenya Limited; receiver: Nedbank Limited; applicant: Kahama Oil Mills Limited; beneficiary: Mac Steel International Trading; amount: USD 283, 476; date 16th November 18 admitted as 26 exhibit D20(b), Documentary letter of credit; sender: Equity Bank Kenya Limited; receiver: Bank of China; applicant: Kahama Import and Export Commercial Agency Limited; beneficiary: Changzhou Machinery and Equipment; amount: USD 198, 065.38 dated 11th March 18 admitted as exhibit D21(a), Commercial invoice from Changzhou Machinery and Equipment to Kahama Import and Export Commercial Agency Limited; amount: USD 98,010.59 dated 25th June 2019 admitted as exhibit D21(b), Bill of lading from COSCO shipping line company limited; shipper: Changzhou Machinery and Equipment; consignee: Equity Bank Tanzania Limited; notify party: Kahama Import and Export Commercial Agency Limited; dated 11th July 2019 admitted as exhibit D21(c), Certificate of conformity from Tanzania Bureau of Standards; importer: Kahama Import and Export Commercial Agency Limited; exporter: Changzhou Machinery and Equipment dated 23rd July 19 admitted as exhibit D21(d), Certificate origin; exporter: Changzhou Machinery and Equipment; consignee: Kahama Import and Export Commercial Agency Limited dated 23rd July 2019 admitted as exhibit D21(e), Documentary remittance from Bank of China to Equity Bank Tanzania Limited; amount: USD 98,010.59 dated 11th July 2019 admitted as exhibit D21(f), Presentation memo/import letters of credit; applicant: Kahama Import and Export Commercial Agency Limited; beneficiary: Changzhou Machinery and Equipment dated 1st August 2019 admitted as exhibit D21(g), Bank statement from Equity Bank Tanzania Limited account number 3005211547713 in the name of Kahama Import and Export Commercial Agency Limited admitted as exhibit D21(h), Bank statement from Equity Bank Tanzania Limited for account number 3005211505191 in the name of Kahama Import and Export Commercial Agency Limited admitted as exhibit D21(i). 27 It is the testimony of DW1 that, the Defendants herein duly fulfilled their main contractual obligations under the Loan Agreement [that is to disburse the loan amounts of the facilities for the agreed purposes]. However, the Borrowers failed to conduct their loan accounts with the Defendants in a satisfactory manner to meet their agreed contractual obligations which in terms of Clause 5.1.1 of the Loan Agreement constitute default. The Defendants accommodated the Borrowers’ several times by restructuring the facilities based on promises by the Borrowers that they will improve servicing of the loans resulting into the structuring through letter date 19th June, 2020 whereby all existing outstanding facilities of the Borrowers as of 30th June, 2020, were consolidated into a Term Loan amounting to USD 32,000,000 for the 2nd defendant and USD 6,000,000 for 1st defendant forming the total of USD 38,000,000.00 payable within a period of 144 months inclusive three (3) months moratorium period on principal and interest from May, 2020 to August, 2020. DW1 testified that following the restructuring of the loan on 19 th June, 2020, the 1st Defendant disbursed USD 6,000,000,000.00 on 30 th June, 2020 into the Borrower’s USD Current/Operational Account No. 3005211479827 which amount was applied to settle all existing loan liabilities of the Borrowers as of 30th June, 2020 including but not limited to the outstanding loans into the Borrowers’ Loan Account No. 3005511133386 which had an outstanding amount of USD 754,636.00, Loan Account No. 3005511133385 which had an outstanding amount of USD 3,769,828. as of 30th June, 2020 and he tendered Account statement from Equity Bank Tanzania Limited, account number 3005511133385 in the name of Kahama Oil Mills Limited is admitted as exhibit D22(a) and Account statement 28 from Equity Bank Tanzania Limited account number 3005511133386 in the name of Kahama Oil Mills Limited is admitted as exhibit D22(b). DW1 stated that, despite of restructuring the Loan facility in June, 2020 the Borrowers failed to service the restructured loan with the Defendants and through a letter dated 11th July, 2022, the Borrowers requested for another restructuring, the request was accepted by the Defendants resulting into execution of a variation of the Loan Agreement whereby the Borrowers’ outstanding loan liabilities with the Defendants were consolidated and converted into a Development Loan comprising two facilities. Facility-I USD 37,830,358.00 plus accruals by the Second Defendant with Loan Account number 2220583701775 on 30th December 2022 and Facility-II USD 6,084,050.31 plus accruals by the 1st defendant on 30th December 2022 where the same was created with Loan Account number 3005511299649 on 08th March 2023, despite all the efforts by the Defendants to accommodate the requests from the Borrowers, the Borrowers failed to fulfil their promises which amount to a total breach of the terms of Loan Agreement leaving the Defendants with no option other than to issue notices of default and demands calling for payment of the outstanding Loans and the Defendants indicated an intention to enforce the securities, he tendered a letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited and Khama Import and Export Commercial Agency Limited (KIMPEX) subject – notification of default and demand to pay dated 19th June 2023 which is same as exhibit P5(e), a letter from Equity Bank Tanzania Limited to Kahama Import and Export Commercial Agency Limited (KIMPEX Limited) and a letter from Equity Bank Tanzania Limited to Shinyanga Royal Pharmacy (2005) Limited which is the same as exhibit P5(d), a letter from Equity Bank Tanzania Limited to KOM Group of companies Limited which is the same as the 29 exhibit P5(c), a letter from Equity Bank Tanzania Limited Royal Supermarket (2008) Limited which is the same as P5(a), 1. A letter from Equity Bank Tanzania Limited to Sylvester Nkwabi subject – notice of the borrower’s default and legal demand to the mortgagors and the guarantors to pay is dated 19th June 2023 admitted as exhibit D23(a), A letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency Limited, subject – notification of default and demand to pay, dated 15th September 2022 admitted as exhibit D23(b), a letter from Equity Bank Tanzania Limited to Mhoja Nkwabi Kabalo and Sylvester Mhoja Nkwabi, subject – notification of the borrowers’ default and legal demand to the guarantors to pay, dated 27th September 2022 is admitted as exhibit D23(c), A letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited, subject – demand for payment of overdue balance, dated 10th October 2022 is admitted as exhibit D23(d), A letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited subject – notice of the borrowers’ default and legal demand to the mortgagors to pay, dated 17th October 2022 is admitted as exhibit D23(e), A letter from Equity Bank Tanzania Limited to KOM Group of Companies Limited, subject notice of the borrowers’ default and legal demand to the guarantors and the assignor to pay dated 17th October 2022 is admitted as exhibit D23(f), A letter from Equity Bank Tanzania Limited to Shinyanga Royal Pharmacy (2005) Limited, subject – notice of the borrowers’ default and legal demand to the guarantors to pay, dated 17th October 2022 is admitted as exhibit D23(g), A letter from Equity Bank Tanzania Limited to Royal Supermarket (2008) Limited, subject – notice of the borrowers’ default and legal demand to the guarantors to pay, dated 17th October 2022 is admitted as exhibit D23(h), A letter from Equity Bank Tanzania Limited to Mhoja Nkwabi, subject – notice of the borrowers’ 30 default and legal demand to the mortgagors to pay dated 17th October 2022 is admitted as exhibit D23(i), A letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited – demand notice(s), dated 15th November 2022 is admitted as exhibit D23(j), A letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency (KIMPEX), subject – notification of default and demand to pay, dated 19th June 2023 is admitted as exhibit D23(k), and a letter from Equity Bank Tanzania Limited to Mhoja Nkwabi Kabalo, subject – notice of the borrowers’ default and legal demand to the mortgagors and the guarantors to pay, dated 19th June 2023 is admitted as exhibit D23(l). It is further testimony of DW1 that, the total outstanding amount in respect of the said facilities as of 26th July, 2023 when the Defendants filed their WSD and Counter-Claim was USD 47,228,592.53 which, continued to attract interests at the agreed contractual rates until the facilities are fully paid. As of 15 th September, 2023, the Borrowers’ outstanding loan liability with the 1st Defendant is USD. 6,773,533.61 as reflected in the Borrowers Loan Account No. 3005511299649, to substantiate his word DW1 tendered, Account statement from Equity Bank Tanzania Limited account number 3005511299649 covering from 8th March 2023 to 26th July 2023 in the name of Kahama Oil Mills Limited is admitted as exhibit D24(a) and Account statements from Equity Bank Tanzania Limited, account number 3005511299649 covering from 1st January 2023 to 4th October 2023 in the name of Kahama Oil Mills Limited is admitted as exhibit D24(b). The second defence witness (DW2) was Timothy Njeru Mwatha. He took oath and told the court that he is an employee of Equity Bank Kenya Limited, 2nd defendant as a 31 General Manager, Corporate Credit Origination, Corporate Banking Department stationed at its main branch located at Upper Hill, Nairobi, Kenya. DW2 tendered his witness statement which was received and recorded as his evidence in chief. The witness testified that the First Plaintiff and the Second Plaintiff on one hand (hereinafter “the Borrowers”) and the First Defendant and the Second Defendant on the other, successfully negotiated and on 28th May, 2018, executed a Syndicated Loan Agreement (herein “the Loan Agreement”). He referred to annexure EB-1 to the Defendants’ Joint WSD and Counter-Claim, loan agreement (banking facility letter dated 28th May 2018), admitted as exhibit P1(a). It was DW2 testimony that as agreed, the Defendants duly fulfilled their contractual obligation which was to disburse the funds in respect of the facilities as instructed by the Borrowers. Regarding Facility-II, Facility-III, Facility-IV and Facility-V, on 01st August, 2018, the Borrowers issued specific instructions to the Defendants to disburse the same for the Borrowers to settle their outstanding facilities with the CRDB Bank Plc as agreed. Based on this instruction from the Borrowers and a confirmation of the Borrowers’ negotiated outstanding facilities with the said CRDB Bank Plc, the Second Defendant did the following: On 10th August, 2018, transferred a total sum of USD. 26,592,232.00 from its Escrow Account No. 0810277520975 with the name Kahama Oil Mills Limited-Escrow Account (bearing the Second Defendant’s address P.O. Box 75104, Nairobi, KE, 00200) to the First Defendant and on the same 10th August, 2018, the First Defendant transferred the said sum of USD. 26,592,232.00 to the Borrowers Current/Operational Account No. 3005211479827 completing the disbursement of Facility-II, Facility-III, and Facility-V by the Second Defendant based on the Borrowers’ confirmed negotiated outstanding facilities 32 with the CRDB Bank Plc. He tendered Annexure EB-25, admitted as exhibit D26, account statement (period 01/02/2017 – 26/07/2023) for an internal account (account number 0810277520975) held in Equity Bank Kenya Limited titled Kahama Oil Mills Limited – escrow account admitted as exhibit D26 DW2 testified that the 2nd defendant created an Internal Loan Account No. 2220577525000 using the name “KOM Group of Companies Limited” using the Second Defendant’s address “P.O. Box 75104, Nairobi, KE, 00200” for use by the Borrowers to service Facility-II (USD.14,200,000.00). He referred to Annexure EB-22 admitted as exhibit P3(c), the account statement for Bank account No. 2220577525000 of KOM Group of Companies Limited. The witness testified that the 2nd defendant created an Internal Loan Account No. 2220577525030 using the name “KOM Group of Companies Limited” using the Second Defendant’s address “P.O. Box 75104, Nairobi, KE, 00200” for use by the Borrowers to service Facility-III (USD. 2,880,000.00). DW2 referred the court to annexure EB-23 to the WSD and Counter-Claim admitted as exhibit P3(b); the 2nd defendant further created an Internal Loan Account No. 2220577525065 using the name “Kom Group of Companies Limited” using the Second Defendant’s address “P.O. Box 75104, Nairobi, KE, 00200” for use by the Borrowers to service Facility-V (USD. 9,800,000.00). The sought leave of the Court to tender Annexure EB-24 to the WSD and Counter-Claim admitted as exhibit P3(a). As part of Facility-I, on 10th August, 2018, the Second Defendant deposited a sum of USD. 4,200,000.00 into the Borrowers’ USD Current/Operative Account No. 33 3005211479827 with the First Defendant. DW2 sought to refer to Annexure EB-26 to the WSD and Counter-Claim which is exhibit P3(f); As another part of Facility-I, on 23rd May, 2019, transferred TZS. 2,297,000,000.00 which was then equivalent to USD. 1,000,000.00 into the Borrowers’ TZS Current/Operative Account No.3005211505190 with the First Defendant. The witness referred to Annexure EB-117 to the Defendants’ List of Additional Documents, which is exhibit D28, an account statement for an internal account (account No. 2220578887346) period 01/01/2016 – 26/06/2023 in the name KOM Group of Companies Limited in Equity Bank Kenya Limited. This account was for loan disbursement and future repayment of that loan. Yet another part of Facility-I, on 19th July, 2019, disbursed USD. 7,000,000.00 to the Borrowers and the Borrowers expressly confirmed receipt of the same. Forming also part of Facility-I were all Letters of Credit applied for and presented by the Borrowers as shown in DW2’s testimony in chief. The witness tendered a letter from Equity Bank Tanzania Limited and Equity Bank Kenya Limited to Kahama Oil Mills and Kahama Import & Export Commercial Agency Limited dated 22/12/2022 Variation of facility terms – additional of six months moratorium is admitted as exhibit D25. He also tendered, an account statement (period 01/02/2017 – 26/07/2023) for an internal account (account number 0810277520975) held in Equity Bank Kenya Limited titled Kahama Oil Mills Limited – escrow account admitted as exhibit D26. The two documents: memorandum issued by head office of credit administration department of Equity Bank Kenya Limited, titled Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency Limited – balance confirmation as at 26th July 2023 is admitted as exhibit D27(a); this document attached with screenshot of screenshot of 34 system – core banking system of the Equity Bank Kenya Limited indicating the balance as of 26th July 2023. The document is titled Loan General Details, admitted as exhibit D27(b). An account statement for an internal account (account No. 2220578887346) period 01/01/2016 – 26/06/2023 in the name KOM Group of Companies Limited in Equity Bank Kenya Limited. This account was for loan disbursement and future repayment of that loan, admitted as exhibit D28. An account statement for internal account (account No. 2220579904139) in the name of KOM Group of Companies Limited, maintained by Equity Bank Kenya Limited. Statement period is 01/06/2017 – 26/06/2023. This was for loan disbursement and loan repayment is admitted as exhibit D29. An account statement for internal account (account No. 2220583701775) period 01/12/2022 – 03/10/2023 in the name of KOM Group of Companies Limited and maintained by Equity Bank Kenya Limited. This account is for loan disbursement and future loan repayments admitted as exhibit D30. Another set of exhibits tendered by DW2 were: A SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 16th April 2019 on maturity date of 9th June 2019 you are authorized to honour claim of USD 496,955.68 from BKCHCNBJXXX is admitted as exhibit D31; A SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 16th April 2019 amount USD 414,777.49 is admitted as exhibit D32; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 24 th April 2019 for an amount USD 412, 440.80 is admitted as exhibit D33; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 15 th April 2019 for a sum of USD 330,006.48 is admitted as exhibit D34; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 15th April 2019 for an amount of USD 332, 295.56 is admitted as exhibit D35; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 1st April 2019 for an amount USD 113, 772 is admitted as exhibit D36; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 2nd May 2019 for an amount of USD 95,642.00 is admitted as exhibit D37; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 2nd May 2019 for an amount of USD 47,890.00 is admitted as exhibit D38; a SWIFT message from Equity Bank Kenya 35 Limited to CITI Bank New York dated 27th May 2019 for an amount USD 167,003.40 is admitted as exhibit D39; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 31st May 2019 for an amount of USD 86,121.60 is admitted as exhibit D40; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 15 th February 2019 for an amount USD 342,567.81 is admitted as exhibit D41; a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 2 nd January 2019 for an amount USD 284,354.93 is admitted as exhibit D42; and a SWIFT message from Equity Bank Kenya Limited to CITI Bank New York dated 30th July 2019 for an amount USD 98, 010.59 is admitted as exhibit D43. In his testimony in chief, DW2 also compared and referred to exhibits that were tendered by the plaintiffs’ witnesses. These are annexture EB-1 to WSD and counterclaim which is exhibit P1(a). It the same document. He also compared EB - 20 and exhibit P1(b) that is the same document. He testified that EB-24 and exhibit P3(a) are the same document. As for EB-22 against P3(c) that equally is same document. The witness also compared EB-118 and exhibit P3(d) they are the same. Lastly, he looked at EB 23 and exhibit P3(b) and concluded to be the same document. DW2 testified that the outstanding amount in respect of the Borrowers Loan Account (Account No. 2220583701775) with the Second Defendant as of 26th July 2023 was USD. 40,541,869.92 as reflected in the WSD and counterclaim and its Annexure EB-50 admitted exhibits D27(a) and (b), that amount has since increased to USD 41,085,530.15 as of 05th September 2023 due to applicable agreed interest. DW2 testified that Annexures EB-50 to the WSD and counterclaim is exhibits D27(a) and (b), and Annexure EB-121 to the Defendants’ List of Additional Documents is exhibit D30, an account statement for internal account (account No. 2220583701775) period 01/12/2022 – 03/10/2023 in the name of KOM Group of Companies Limited and maintained by Equity Bank Kenya Limited. This account is for loan disbursement and future loan repayments. During cross examination of DW2 by Mr Mwalongo, counsel for the plaintiffs, and on the issue No.9, relief sought, that the defendants did not plead, it is noted that DW2 admitted that by 26th July 2023 the claim of Equity Bank Kenya Limited stood at USD 40, 36 541, 869.92. According to him that is found in his witness statement at page too. But he conceded that figure USD 40, 541, 869.92 claimed by Equity Bank Kenya Limited is missing in the counterclaim, the figure seen there is different. What is seen on page 7 paragraph 15 of the counterclaim is USD 47, 228,592.53. DW2 clarified that the amount of USD 40, 541, 869.92 is not appearing in the counterclaim because that amount as stated in his witness statement is for one defendant Equity Bank Kenya Limited. In his view that amount of USD 40, 541, 869.92 is included in USD 47, 228, 592.53. Asked as to how the court will understand that USD 40, 541, 869.92.is included in USD 47,228, 592.53 DW2 reiterated what he stated in his testimony in chief as an officer of Equity Bank Kenya Limited that the amount due was USD 40, 541, 869.92. The counterclaim speaks of the amount due for all the defendants. By implication the amount due for both defendants as at 26th July 2023 was USD 47,228,592.53 that includes USD 40, 541, 869.92 which was due to Equity Bank Kenya Limited. DW2 went on adding that the court can understand the amount due to Equity Bank Kenya Limited not only by reading his witness statement, but rather by reading exhibit 27(a) and (b). Another way for the court to go through exhibit D30. A third way is to go the counter claim paragraph 17 at pages 7 and 8. There are details of account statements that show amount due to Equity Bank Kenya Limited. When cross examined about exhibit P3(a), a loan statement called KOM Group of Companies DW2 testified that, DW2 response was that it is an internal account/escrow account in Equity Bank Kenya Limited. He admitted that in that document the borrower is not KOM Group of Companies Limited. In fact, it does not indicate the name of the borrower. Truly, in the court’s view, this is sloppy and a folly practice of Equity Bank Kenya Limited to issue that loan statements without indicating the name of the borrower. DW2 conceded though that in exhibit P3(a) there is a customer name KOM Group of Companies Limited. He went on stating that this being the internal account of Equity Bank Kenya Limited, the role is to enable the bank identify transactions relating to the syndicated facilities with other banks. 37 The witness testified that it is not true that exhibits P3(b), (c), (d) and (e) are all loan statements with the same description of a customer name as in exhibit P3(a). He explained that exhibits P3(a), (b), (c) and (d) relate to loan accounts. The exhibit P3(e) does not relate to loan account. To contradict the testimony DW2, and more on allegation that there is a company called KOM Group of Companies, there is a letter written by the 2 nd defendant to the Bank of Tanzania, EB-91 dated 22nd January 2020 with heading “declaration that the company funds were not obtained illegally.” That letter was admitted during cross examination of DW2 as exhibit P9. As per that letter, the borrow identified by the 2 nd defendant, Equity Bank Kenya Limited and reported to the Bank of Tanzania is KOM Group of Companies. The table in the exhibit listed several facilities: USD 14 million; USD 14.2 million; USD 2.88million and USD 9.8 million. Unsure of what he was saying DW2 presumed that that is the loan amount registered at the Bank of Tanzania. But he was quick to state that if he sees the foreign loan registration, he will be certain. After being shown exhibit D7(b) – foreign loan registration, DW2 testified that it indicates the loan worth USD 32 million in favour of Kahama Oil Mills Limited of Tanzania from Equity Bank Keny Limited. He conceded that to that extent he is unable to confirm the content of EB 91, exhibit P9 and its linkage to exhibit D7(b). Asked about exhibit P3(c), DW2 admitted seeing an entry of USD 14.2 million and he saw similar amount in exhibit P9. He interestingly stated that he cannot confirm or deny if the figures are the same and the date is same. A similar response from DW2 was recorded on exhibit P3(b) that there is USD 2.88 million that is also seen in exhibit P9. But the witness could not confirm or deny whether it was the same transaction for the same date and same amount. The same reaction was noted on exhibit P3(a) and exhibit P9, DW2 admitted having seen similar entry of USD 9.8 million in both documents. But he declined to confirm or deny whether it is same transaction, but he conceded that they were on the same date and same amount. DW2 admitted of being aware that the letter exhibit P9 is from Equity Bank Kenya Limited. However, he could not link it with exhibits P3(a) –(c), loan accounts. It is on 38 record that the witness was reluctant to tender exhibit P9 in the first place until when pressed hard by the plaintiffs’ counsel. Referring to exhibit P9 and exhibits P3(a)-(c) to extent of amount and dates DW2 admitted that are similar. And based on the amount and dates he can link them. He thus confirmed that they are for the same transactions. DW2 Continued to testify that KOM Group of Companies Limited referred under exhibit P9 and exhibit D27(a) and (b) which is memorandum and loan general details (screenshot from system of Equity Bank Kenya Limited). He conceded that exhibit D27(b) refers KOM Group of Companies as seen on the face of it (exhibit D27(b)). He however admitted that KOM Group of Companies is not mentioned there as a borrower. Rather, it is indicated as account identity. He rejected a suggestion that account identity means account holder. DW2 clarified that in exhibit D27(b) KOM Group of Companies has been indicated as internal account referring to the borrower indicated in exhibit D27(a) Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency Limited. This court finds DW2’s recollection to be solid despite minor hiccups as above noted. The bottom line is that KOM Group of Companies was a name of an escrow account for 1st and 2nd plaintiffs. Another complication on KOM Group of Companies, DW2 conceded that exhibit P8 is a letter from Equity Bank Kenya Limited to KOM Group of Companies dated 17 th January 2023 requesting KOM Group of Companies to confirm the outstanding loan for audit purposes. The witness also admitted referring to exhibit P8 that the one asked therein to confirm was KOM Group of Companies. And the loan amount which Equity Bank Kenya Limited stated therein is the same she is claiming in the counterclaim. On issue No.2 whether the 2nd defendant disbursed any funds to the plaintiff, reference was made to exhibit P3(f), account statement in the name of Kahama Oil Mills Limited in Equity Bank Tanzania Limited, DW2 confirmed to know how USD 26,592,232 was disbursed to the 1st plaintiff. The witness testified that in exhibit P3(f) there is a narration written KOM Group of Companies Limited – escrow account relating to USD 26,592,232 dated 10th August 2018. He rejected the allegation that USD 26,592,232 came from KOM Group of Companies Limited. He requested to see the document (internal account statements of Equity Bank Kenya Limited in the KOM Group of Companies – 39 escrow account). He was shown exhibit D26 – internal account statement Equity Bank Kenya Limited account No. 0810277520975 in the name of Kahama Oil Mills Limited – escrow account. Thereafter, he confirmed that the amount USD 26,592,232 was debited from account No. 0810277520975 (escrow account) and it was transferred Equity Bank Tanzania Limited. Firmly, DW2 told the court that the same amount appearing in exhibit P3(f) – a customer account in the name of Kahama Oil Mills Limited (1 st plaintiff) held in the Equity Bank Tanzania Limited. DW2 proceeded to clarify that 2nd defendant, Equity Bank Kenya Limited does not maintain a current account for Kahama Oil Mills Limited, Kahama Import and Export Commercial Agency Limited, KOM Group of Companies Limited, etc. He stated that it was not possible to transfer the funds from Equity Bank Kenya Limited to plaintiffs because they had no current accounts in that bank. He was quick to admit that for Equity Bank Kenya Limited to transfer funds one does not necessarily need to have current account. According to DW2 Kahama Oil Mills Limited referred to in exhibit P3(f) was an existing account holder in Equity Bank Tanzania Limited. And it is duly incorporated in Tanzania and therefore could not hold an account in Equity Bank Kenya. Referring to the said amount of USD 26,592,232, the DW2 went on telling the Court that Equity Bank Kenya Limited was not disbursed directly to the plaintiffs, rather it was disbursed via Equity Bank Tanzania Limited. Asked on the letter of credits, DW2 testified that exhibits D31, D32, D33, D34, D35, D36, D37, D38, D39, D40 and D41, D42 and D43 are the letters of credit. He denied the claim that all of them appears in the outstanding facilities of Equity Bank Tanzania Limited. He told the court that what is outstanding is a loan whose proceeds were utilized to settle the LCs on maturity that is what is called Bills in the bank. DW2 when pressed with a question regarding syndicated loan, he clarified that in syndicated loan there is a lead bank called the arranger. He admitted that there are instances where there may be no lead or arranger. That is called a club lending. He testified that the facilities in dispute were not syndicated loan by lead bank, they were club lending. On this aspect, the court observed that DW2 contradicted DW1’s testimony. 40 Besides the offer letters, exhibit P1(a)), P1(b) and exhibit D25 were not expressly named club lending. DW3 was Thomas Mihayo Sipemba. After taking oath, he testified that he is one of the partners at East Africa Law Chambers in United Republic of Tanzania. He testified that sometimes in June, 2018, his firm received instructions from the defendants to undertake preparations and registration of various securities offered by the Plaintiffs herein to secure facilities detailed in the Loan Agreement between the First Plaintiff and the Second Plaintiff on one hand (hereinafter “the Borrowers”) and the First Defendant and the Second Defendant on the other dated 28th May, 2018, through which, the witness understood, amongst others, the Defendants agreed to take over the Borrowers’ outstanding loan liabilities with CRDB Bank Plc. It was his testimony that in carrying out the Defendants’ instructions, on 02nd August, 2018, my firm wrote a letter to CRDB Bank Plc, inquiring on a settlement proposal between the Borrowers and CRDB Bank Plc and in their response letter dated 06 th August, 2018, CRDB Bank Plc, gave an irrevocable commitment that TZS. 57,000,000,000.00 and USD. 6,000,000.00 constitute the full and final settlement of the Borrowers’ debt with CRDB Bank Plc and that upon receipt of payment of the said debt amount, they will release all securities pledged by the Borrowers to CRDB free from encumbrances from CRDB Bank Plc. He went on telling the court that on 23rd August, 2018, my firm received from CRDB Bank Plc, original title deeds plus discharge forms in respect of all the properties listed in the schedule to their letter dated 21st August, 2018. Consequently, my firm prepared all necessary documentation and proceeded to register the said properties in favour of the Defendants as instructed and agreed between the Borrowers and the Defendants in their Loan Agreement. On 17th December, 2018, we handed over originals of the certificate of titles and the mortgage deeds of all the properties referred to in my firm’s letter dated 17 th December, 2018 to the Defendants both showing the Defendants as securities holders therein. The witness testified that in addition, his firm prepared and registered debenture deeds offered by the First Plaintiff, the Second Plaintiff, the Third Plaintiff, the Fourth 41 Plaintiff and the Fifth Plaintiff to the Defendants as part of the securities agreed upon in their Loan Agreement and obtained respective certificates of registration from the Registrar of Companies on behalf of the Defendants. DW3 tendered the following exhibits: A letter dated 31st July 2018 from CRDB Bank to Kahama Oil Mills, on proposal for settling outstanding loans is admitted as exhibit D 44 (a); A letter dated 6th August 2018 from CRDB Bank to East African Law Chambers the subject was proposal for settling outstanding loans. In this letter CRDB is committing that the amount stated in the letter are full and final settlement is admitted as exhibit D 44 (b). He also tendered a letter dated 2nd August 2018 from East African Law Chambers to CRDB Bank on proposal to settle outstanding loans of Kahama Oil Mills and Kahama Import and Export Limited is admitted as exhibit D 44 (c). Another exhibit he tendered was a letter dated 3rd August 2018 from Equity Bank Tanzania Limited to East African Law Chambers, subject matter is Kahama Oil Mills and Kahama Import and Export Limited. The letter states that Equity Bank Tanzania Limited has reviewed and executed security documents and instructed the East African Law Chambers to proceed with their registration is admitted as exhibit D 44 (d). The witness also tendered a letter dated 21st August 2018 from CRDB Bank to East African Law Chambers, on discharge forms in favour of Kahama Oil Mills Limited and Kahama Import and Export Limited is admitted as exhibit D 44 (e); He further tendered a letter dated 24th August 2018 from East African Law Chambers to CRDB Bank, the subject was discharge forms in favour of Kahama Oil Mills Limited and Kahama Import and Export Limited is admitted as exhibit D 44 (f). His evidence also included a letter dated 17th December 2018 from East African Law Chambers to Equity Bank Tanzania Limited, the subject is hand over of original documents in respect of registration of mortgage deeds at Land Registry Simiyu by Kahama Oil Mills Limited and Mhoja Mkwabi in favour of Equity Bank Tanzania Limited is admitted as exhibit D 44 (g). It is on record that for DW3, the plaintiffs did not have any question to cross examine him and hence there was no re-examination done. After closure of defence case on 21st August 2024 the Court ordered the parties to file their final closing submissions. The court highly appreciates the impeccable and meticulous research and submissions 42 done by the learned counsel representing the parties in this suit. These submissions will surely be referred to in the judgment at hand but not reproduced verbatim. Having sketched the parties’ contractual relationship, we turn to the issues and evidence adduced. There were nine issues framed for determination of this suit: 1. What are the agreed terms of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022). 2. Whether the 2nd defendant disbursed the funds the subject of the facility agreement dated 28th May 2018, (as varied/restructured on 19th January 2019, 19th June, 2020, February 2022 and December 2022) as agreed. 3. Whether the alleged KOM Group of Companies Limited of Nairobi Kenya is a legal entity. 4. Whether the 1st plaintiff issued irrevocable instructions to the first defendant to pay one NISK Capital Limited the sum of USD 1,300, 000. 5. Whether the Defendants breached any terms of the facility agreement dated 28 th May 2018 (as varied/restructured on 19th January 2019, 19th June, 2020, February, 2022 and December 2022). 6. Whether the 1st plaintiff and the 2nd plaintiff are in breach of the terms of the facility agreement dated 28th May, 2018 (as varied/restructured on 19th January, 2019, 19th June, 2020, February, 2022 and December 2022). 7. Whether the alleged KOM Group of Companies Limited of Nairobi Kenya advanced any loan facility to the 1st plaintiff. 8. Whether there has been any loan repayment from either plaintiffs to the 2 nd defendant? 9. What reliefs that the parties are entitled to. To begin with issue No. 1 what are the agreed terms of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022). The plaintiffs summarized the agreed terms, and explained the 43 repayments made and claimed the loan was cleared in full. Notably, the first issue for determination never required the parties to submit as to whether there was loan repayments effected or not. According to the plaintiffs, the agreed terms of the facility agreement dated 28 th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022 are not at issue between the parties. The plaintiffs’ view is that although the first issue was framed as an issue after hearing, the parties are not fighting on what was agreed between them. But the Court regards such view as obscuring the fact that disbursement of loan funds and repayment arrangements constitute the terms forming part and parcel of the credit facility agreements. After all, there is a dispute as to whether the 2nd defendant in the main suit did disburse funds to the 1st and 2nd plaintiffs. Without looking at the terms of the facilities it will be difficult to decide how much was to be disbursed and whether the funds were disbursed and if they were, how were they disbursed. Moreover, it will be hard to understand what was the repayment arrangement. With regards to the facilities, there is no dispute between the parties that in May, 2018, the parties entered into a Banking Facility Agreement [Exhibit P1(a)] the banking facilities in which were varied/restructured on 03rd January, 2019 [Exhibit D1), on 19th June, 2020 [Exhibit P1(b)] and on 22nd December, 2022 through [Exhibit D25]. The parties are at one that as per Exhibit P1(a) there are five facilities, which are: (i) Facility I offered by Second Defendant and has items (a) and (b) whose total Limit is USD 14,000,000, (ii) Facility II was offered by Second Defendant and is a term loan to the tune of USD 14,200,000, (iii) Facility III was offered by the First and Second Defendant and is a term loan to the tune of USD 7,000,000, (iv) Facility IV was offered by First Defendant and is a term loan to the tune of USD 880,000, and (v) Facility V was offered by Second Defendant and is a term loan to the tune of USD 9,800,000. Throughout the variations the facility of each Defendant has remained separate. Given the nature of this case, it is ideal to elaborate albeit briefly the parties’ banking facilities executed, in particular the contractual arrangement before delving into the issues. That will assist the court to appreciate facts of the case and evaluate the evidence in the light of relevant laws. 44 As pointed earlier, there were credit facility agreements with terms binding upon the parties. It is explicit that in May 2018, the plaintiffs and the defendants executed a banking facility agreement [Exhibit P1(a)]. A clause 1.2 of Exhibit P1(a) indicates that the 1st and the 2nd plaintiffs are the borrowers. The 3rd plaintiff, the 4th plaintiff and the 5th plaintiff executed Exhibit P1(a) as guarantors. The defendants who according to Clause 1.1 of Exhibit P1(a) are described as banks, are the lenders. Moreover, Exhibit P1(a) shows that the defendants offered to the borrowers the following facilities: Facility - I: Structured Trade and Commodity Financing Limited offered by the 2nd defendant for a sum of USD 14,000,000.00 divided into components as follows: (a) Inner Limit i: Loan Against Import (USD. 7,000,000.00); and (b) Inner Limit ii: Pre- shipment Finance under Export Orders (USD 7,000,000.00). With respect to Exhibit P1(a), the agreed tenor of facility - I was 12 months renewable annually (Principal +Interest maximum 30 days for each STL) and the purposes of the same were: (a) Purchase and handling of cotton seeds value chain-from purchase, processing, pre-shipment and sale being monitored by collateral manager; (b) to finance the purchase and storage of cotton seeds, stored at that time in storage facilities where Equity Bank has possession and control of the Goods through Collateral Management Agreement (CMA); and (c) Pre-Shipment Finance Under Export Orders to finance the period wherein pledged goods (seed cotton) are released to the Client to ready the goods for sale in respect of export. Agreed pricing was (a) Structured Trade Line - As per the Standard bank tariffs on trade line (b) at 6 Months USD LIBOR + 5.25% subject to a minimum rate of 8% per annum and agreed fees and commission for this facility was 1% of the facility amount. Uncontroversially, the plaintiffs as borrowers made specific requests expressed in Exhibit D6(b), a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited with Ref. No. KOM/EBT/2018/07 dated 24th September, 2018 on utilization of USD 14 million); and Exhibit D6(c) (a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited with Ref. No. KOM/EQUITY/2018)10/01 dated 02nd October, 2018). The defendants agreed to vary the terms of the facility resulting into the signing by the parties of Exhibit D1, a variation letter Ref. EBL/HQ/MWANZA/3005.1 dated 3rd January 2019. 45 Regarding facility II, that was a term loan USD 14,200,000.00. As read from Exhibit P1(a), this facility was offered by the 2nd defendant for a tenor of 120 months and the purpose for which, was to take over the 1st plaintiff term loan with CRDB Bank Plc. The agreed Pricing for this facility was at 6 Months USD LIBOR + 5.25% subject to a minimum rate of 8% per annum while the agreed fees and commission for this facility was 1% of the limit amount to be collected upfront. As for facility III, that was also a term loan of USD 7,000,000.00. Exhibit P1 (a), shows that this facility was offered by the 1st defendant and the 2nd defendant and the purpose of which was to take over the 1st plaintiff’s Overdraft Facility at CRDB Bank Plc. The agreed pricing for this facility was at 6 Months USD LIBOR + 5.25% subject to a minimum rate of 8% per annum while the agreed fees and commission for this facility was 1% of the limit amount to be collected upfront. Turning to facility IV, that too was a term loan amounting to USD 880,000. According to Exhibit P1(a) this facility was offered by the 1st defendant. The purpose of the facility was to take over the 1st plaintiff’s Overdraft Facility (TZS) at CRDB Bank Plc. The pricing agreed for this facility was at 16.5% per annum while the agreed fees and commission for this facility was 1% of the limit amount to be collected upfront. Lastly, facility V was term loan of USD 9,800,000. Exhibit P1(a) indicates that the facility was offered by the 2nd defendant for a tenor of 120 months and the purpose of which was to take over the 2nd Plaintiff’s Overdraft Facility at CRDB Bank Plc. The agreed Pricing for this facility was at 6 Months USD LIBOR + 5.25% subject to a minimum rate of 8% per annum while the agreed fees and commission for this facility was 1% of the limit amount to be collected upfront. As with regards to Exhibit P1(a), page 5, the parties agreed that the repayment of the facilities will be through direct debit/standing order to the borrowers’ current account to be opened upfront or any other accounts of the borrowers or guarantors with the Defendants. The borrowers gave irrevocable authority to the defendants to effect the direct debit/standing order, Furthermore, the borrowers undertook to hold sufficient funds in their current account to fulfil their agreed contractual obligations. The events constituting default are spelt out in Clause 5.0 at pages 11, 12, 13 and 14 of Exhibit 46 P1(a). It is clear in clause 5.1.1 of the same exhibit that failure on the part of the borrowers to pay on the due date any money or discharge any obligation or liability payable by the borrowers to the defendants shall constitutes a default. Another important aspect was restructuring of the facilities. In the case at hand, in June 2020 the facilities were restructured following borrowers’ failure to repay the facilities as agreed, and as per express requests from the borrowers for restructuring. The defendants accepted the requests and agreed to restructure the facilities detailed in Exhibit P1(a) to accommodate the borrowers’ requests. Reference is made to Exhibit D2, a letter Ref. No. KOM/EQ/01/2020/March/30 dated 30th March, 2020 from the plaintiffs to the defendants); and Exhibit D9(a), a letter Ref. KOM/EQ/01/2019/Nov/16 dated 16th November, 2019 from the plaintiffs to the defendants. It is clear in these two exhibits that the plaintiffs failed to fulfil their contractual obligations to repay the facilities as agreed citing COVID-19 pandemic as a main cause for their failures. As stated by the defendants, there is evidence of restructuring of facilities. The restructuring of credit facility for Kahama Oil Mills Limited dated 8 th May 2020 admitted as exhibit D3 (a); Kahama Oil Mills Limited board resolution extract dated 8 th May 2020 admitted as exhibit D3 (b); Restructuring of credit facility for Kahama Import and Export Commercial Agency Limited dated 8th May 2020 admitted as exhibit D3 (c); Board resolution of Kahama Import and Export Commercial Agency Limited dated 8 th May 2020 as exhibit D3 (d); Restructuring of credit facility for KOM Group of Companies Limited dated 8th May 2020 admitted as exhibit D3 (e); Board resolution of KOM Group of Companies Limited dated 8th May 2020 admitted as exhibit D3 (f); restructuring of credit facility for Shinyanga Royal Pharmacy (2015) Limited dated 8th May 2020 admitted as exhibit D3 (g); Board resolution of Shinyanga Royal Pharmacy (2015) Limited dated 8 th May 2020 admitted as exhibit D3 (h); restructuring of credit facility for Royal Supermarket (2008) Limited dated 8th May 2020 admitted as exhibit D3 (i); and Board resolution of Royal Supermarket (2008) Limited dated 8th May 2020 admitted as exhibit D3 (j). These requests and Board Resolutions of the 1st plaintiff, 2nd plaintiff, 3rd plaintiff, 4th plaintiff and the 5th plaintiff were all duly signed by the 6th plaintiff (PW1) as director. And that lead to 47 the signing of Exhibit P1(b), a Banking Facility Letter Ref. No. EBL/HQ/MWANZA/3005211479823 dated 19th June, 2020 signed by all the parties. As per exhibit P1(b) all five (5) facilities expressed in Exhibit P1(a) were restructured by consolidating all outstanding amounts in each of the facilities and converted into a Term Loan of USD 38,000,000.00 payable within a period of 144 months inclusive three (3) months moratorium period on principal and interest from May, 2020 to August, 2020. It is clear at page 4 of Exhibit P1(b) that at the time of this restructuring the 1st defendant restructured loan stood at USD 6,000,000.00 and the 2nd defendant loan stood at USD 32,000,000.00 making all restructured facilities to a cumulative sum of USD 38,000,000.00. After the restructuring, the borrowers herein the plaintiffs were required to repay the aforesaid restructured loans as per the repayment schedule stated at page 25 to 27 of Exhibit P1(b). Bearing this requirement in mind the question is whether the plaintiffs did honour their obligations as agreed? Further to that and through Exhibit D7(a), a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited with Ref. KOM/EBL/2019/27 dated 29th October, 2019 on registration of debt) prompted the defendants to submit to the Bank of Tanzania an application for registration of a foreign loan in respect of the sum of USD 32,000,000.00 offered by the 2nd defendant. Exhibit D7(b), a letter from the Bank of Tanzania to Equity Bank Tanzania Limited with Ref. GF.56/237/17/40 dated 08th July, 2021 from the Bank of Tanzania to the Defendants) on registration of foreign loan for assigning debt registration number (DRN). This confirms the registration of a loan worth USD 32,000,000.00 in favour of Kahama Oil Mills Limited (the 1st plaintiff) of Tanzania from Equity Bank Kenya Limited (the 2nd defendant) and that the debt was assigned DRN 2020092. As to a question whether the loan extended by the 2nd defendant to the 1st plaintiff was registered by the Bank of Tanzania, DW2 confirmed during cross-examination that the facility was registered in accordance with circular, admitted as exhibit P7(a). It may be noted that the plaintiffs wrote several letters to the defendants pointing to breach of contractual obligations. This is evident in Exhibit D4(k) (a letter from Kahama Oil Mills Limited to Equity Bank Tanzania Limited with Ref. No. KOM/EBL/2022/07/11 dated 11th July, 2022 on restructuring of the existing facilities; and 48 Exhibit D4(l) (a letter from Kahama Oil Mills Limited to Equity Bank Tanzania with Ref No. KOM/EBL/2022/07/27 dated 27th July, 2022 on restructuring of the existing facilities. In Exhibit D4(k), page 2, the plaintiffs expressly admitted having failed to fulfil their agreed contractual obligations in respect of the loan facilities as restructured in 19 th June, 2020 and requested the defendants to consider restructuring of the facilities. Reading through the plaintiffs letter requesting restructuring of the restructured loan in 19th June 2020 , it is apparent that the Loan Booked at Equity Bank Tanzania Limited (EBTL), the gist of request was that: (a) The Bank to consider restructuring of the outstanding loan facility (USD. 6,065,546.12) booked at EBTL such that the same is repaid in the period of Ten years with a grace period on both interest and principal of Six (6) months. (b) The Bank consider and allow the (Borrowers) to service the matured amount which is now in arrears on monthly basis during the grace period starting 31 st September, 2022. Besides the above, there was the Term Loan booked at Equity Bank Kenya Limited (EBKL): Its thrust was that the Bank to consider restructuring the outstanding loan facility (USD 39,196,132.86) booked at EBKL and that the same is repaid in the period of Ten years and extend a grace period on both interest and principal of Twelve (12) months. The plaintiffs’ failure to fulfil their agreed contractual obligations, prompted the defendants to issue a Notice of Default and Demand to Pay, Exhibit D23(b) (a letter Ref. No. EBTL/DEMAND/15/09/22 dated 15th September, 2022 from the Defendants to the Borrowers). In that letter the total Outstanding Debt was then USD 45,844,033.17. Similar notices were issued to the 6th plaintiff on 27th September, 2022 Exhibit D23(c) as the Mortgagor, the 1st plaintiff on 17th October, 2020 Exhibit D23(e) in its capacity as Mortgagor and Guarantor in respect of a Debenture Deed dated 17th September, 2018, The 3rd plaintiff on 17th October, 2022 Exhibit D23(f) in its capacity as a Guarantor, the 4th plaintiff on 17th October, 2022 Exhibit D23(g) in its capacity as the guarantor and the 5th plaintiff in its capacity as the guarantor too. Following the defendants issuing of default notice to the plaintiffs, the latter replied through Exhibit D23(j) (a letter from Kahama Oil Mills Limited to Equity Bank Tanzania 49 Limited with Ref. No. KOM/EBL/2022/11/22 dated 15th November, 2022 on demand notice(s)). It may be observed that while the plaintiffs acknowledged receipt of the Default Notice and Demand to Pay referred to above, they did not dispute the outstanding amount stated therein (USD 45,844,033.17). The plaintiffs at the last page of Exhibit D23(j) only pleaded with the defendants to hold issuance of further demand notices and to withdraw previous demand notices pending consultants’ report thereafter to work together to achieve a win-win situation for both to continue operation of the companies. Besides the June 2020 loan restructuring, there was yet another restructuring sought of December 2022: as a further gesture on the parties’ business relationship, the defendants’ determination to accommodate the plaintiffs’ requests following their admission of failure on their part to repay the facilities as restructured in June, 2020, the defendants accepted a further restructuring of the loan facilities. That is explicit in Exhibit D25 (a letter Ref. No. EBL/HQ/MWANZA/3005.1 dated 22nd December, 2022 with a title “Variation of Facility Terms Additional Six Months Moratorium”). Through Exhibit D25 at page 1, the plaintiffs’ facilities were restructured as follows: facility - I USD 37,830,358.00 inclusive of principal, accrued interest and penalties by the 2nd defendant and facility - II: USD 6,084,050.31 inclusive of principal, accrued interest and penalties by the 1st defendant both to be repaid for a period of 107 months with six (6) months moratorium from the date of restructuring. It was further agreed through Exhibit D25 that during the agreed Moratorium period of Six (6) months, the borrowers shall make repayment in the amount of USD 47,200.00 per month and thereafter, the outstanding balance will be paid by the borrowers directly from the current amount held with the Lender in One Hundred and Seven (107) monthly instalments comprising of both principal and interest, commencing one month after the expiry of the moratorium until the Facility is repaid in full. As for the facility - II, in Exhibit D25, it was agreed that during the agreed moratorium period of Six (6) months the plaintiffs shall make repayments in the amount of USD 7, 800.00 per month and thereafter, the outstanding balance will be paid by the plaintiffs directly from the current account held with the lender in One Hundred and Seven 50 (107) monthly instalments comprising of both principal and interest, commencing one month after the expiry of the moratorium until the facility is repaid in full. Despite the restructuring of the facilities of 22nd December, 2022, the plaintiffs failed to fulfil their agreed contractual obligations and that left the defendants with no other options other than to issue Notices of Default and Demand to Pay both to the Borrowers, the Guarantors and the Mortgagors respectively. These are inter alia Exhibit P5(a), Exhibit P(b), Exhibit P5(c), Exhibit P5(d), Exhibit P5(e), Exhibit P5(f), Exhibit D23(k), a letter from Equity Bank Tanzania Limited to Kahama Oil Mills Limited and Kahama Import and Export Commercial Agency (KIMPEX), with Ref. No. EBTL/DEMAND/01/06/023 dated 19th June 2023, subject – notification of default and demand to pay,; and Exhibit D23(i), a letter from Equity Bank Tanzania Limited to Mhoja Nkwabi, subject – notice of the borrowers’ default and legal demand to the mortgagors to pay dated 17th October 2022. As to what amount remains outstanding, Exhibit D23(k) shows that the total Outstanding Debt in respect of the facilities as last restructured in December, 2022 was USD 46,658,395.81. The exact amount stated in paragraph 16 of the plaintiffs’ plaint and according to paragraph 15 of the defendants’ Joint Written Statement of Defence and Counterclaim as of 26th July, 2023, the total Outstanding Debt was USD 47,228,592.53. I join hands with the defendants that the agreed terms in respect of Exhibit P1(a), Exhibit P1(b), Exhibit D1 and Exhibit D25 and based on the decision of the Court Appeal in the case of Unilever Tanzania Ltd v Benedict Mkase Trading as BEMA Enterprise, Civil Appeal no. 44 41 of 2009 CAT- DSM (Unreported) at page 16, the rights and obligations of the parties in the instant case are strictly limited to what is provided for in Exhibit P1(a), Exhibit P1(b), Exhibit D1 and Exhibit D25 and nothing more. Contrary to the defendants claim that the plaintiffs defaulted, and surprisingly and without explaining which particular facility of the 1st defendant extended to the 1st plaintiff, the plaintiffs’ argued that looking at the facility of the 1st defendant to the 1st Plaintiff, it was cleared in full in the following manner. That On 1st October 2018, the First Defendant recovered USD 2,200,000 from the First Plaintiff in total breach of the banking facility of 28th May 2018 and that amount was not deducted from the total facility of USD 5,000,000 51 which the First Defendant advanced to the First Plaintiff. Deducting the USD 2,2,00,000 from the facility of USD 5,000,000 the balance that remained was USD 2,800,000. The crediting of the said 2,200,000 is visibly seen in Exhibit P3(f). The total loan repayment that the first Plaintiff has effected to the first Defendant from 28th May 2018 to date is USD 5,744,085.93. The total loan repayment is visibly seen in Exhibit P3(f). This figure is seen at paragraph 15 of the Witness Statement of PW2 and was not challenged by the Defendants. Nevertheless, the plaintiffs ignored the fact that these were syndicated loan facilities. The two banks (EBKL and EBTL) extended the loans to plaintiffs. Under Facilities III and IV these are the ones in which the First Defendant extended to the plaintiff. The Facility III was offered by the First and Second Defendant to the Plaintiffs and it is a term loan to the tune of USD 7,000,000. Only Facility IV, that is the term loan to the tune of USD 880,000 that the First Defendant alone extended to the Plaintiffs. If we assume what the Plaintiffs submitted is true that they have repaid USD 5,744,085.93 to the 1st defendant and recalling that she extended USD 7, 000, 000 (for Facility III) and USD 880,000 (for Facility IV) the total amount disbursed by the First Defendant to the Plaintiffs is USD 7,880,000. If we subtract USD 5,744,085.93 from USD 7,880,000 the outstanding sum is USD 2, 135,914.07 excluding interest. If we add interest and penalty the amount due will certainly increase. From this, it is clear that the Plaintiffs still owe the First Defendant USD 2,135,914.07 plus interest and penalty. This amount remains due until today. But as evidence on record show there is more to it than that. Contrary to the evidence adduced, the plaintiffs claim that over and above, the 1st defendant illegally deducted USD 1,300,000 and paid to NISK Capital Limited contrary to the terms and conditions of the irrevocable instructions as covered under issue No. 4. It is the court’s stand that the allegations of illegal payment to NISK cannot be true because the plaintiffs through PW1 instructed the 1st defendant to pay NISK Capital via a letter admitted as See exhibit D9(b). It is conspicuous that during cross examiantion,PW1 when shown that letter he admitted to have authored it, and gave the 1st defendant irrevocable instruction to pay NISK Capital Ltd, sum of USD 1,300,000 as Fees Related to capital raising. 52 The testimony of DW1 was unable to challenge, the full payment of the loan of the First Plaintiff, that is why DW1 does not know how much is principal, how much is interest and how much is penalty. I do not think failure to state principal sum means there was full repayment of the loan. The outstanding amount is stated in exhibit D23(k). The plaintiffs argued further that looking at the loan repayment of the 1st plaintiff to the 1st defendant from 30th June 2020 where there seem to have been a restructuring and USD 6,000,000 was stated as the outstanding loan amount of the 1st plaintiff to the 1st defendant, still the 1st plaintiff’s loan is paid in full, in the following manner: On 1st October 2018, the First Defendant recovered USD 2,200,000 from the First Plaintiff in total breach of the banking facility of 28th May 2018, hence it has to be reduced from whatever figure. This alone reduces the loan to USD 4,800,000. It was the plaintiffs’ submission that DW1 confirmed that as per Exhibit P3(f) after 30th June 2020 to 5th June 2023 when the case was filed in court the total repayment of made by the First Plaintiff to the First Defendant is USD 1,229,864.62. If this amount is reduced from the remaining figure of USD 4,800,000, the balance is USD 3,570,135.38. The plaintiffs also allege that there is deposit of USD 1,263,035 as seen in Exhibit P 3(f) on 30th June 2020, which was made by the First Plaintiff to the First Defendant, but the First Defendant has treated that amount as cash payment from the Second Defendant. It is the position of the plaintiffs as proved by Exhibit P3(f) that that amount has to be reduced from whatever the First Defendant is claiming from the First Plaintiff. Once the said USD 1,263,035 is reduced from the balance of USD 3,570,135.38 the balance is USD 2,307,100.38. It is surprising that despite this admission the plaintiffs still prayed their suit to be upheld and the defendants counterclaim be dismissed. Over and above, the plaintiffs claimed that the 1st defendant illegally deducted USD 1,300,000 and paid to NISK Capital Limited contrary to the terms and conditions of the irrevocable instructions as covered under issue No. 4. If the USD 1,300,000 is deducted from USD 2,307,100.38 the balance is USD 1,007,100.38. Despite the incorrectness of the figure indicated as amount due, there is an admission that the plaintiffs still owe the First Defendant as there are some amounts of monies due. Besides that, and as above stated, 53 payment to NISK Capital was based on the instruction by the plaintiffs. Therefore, one cannot treat the amount paid to NISK as part of loan repayment. The plaintiffs went on arguing that factoring time value of money, premature deductions and interest there is no outstanding loan. In my view, this is a flimsy argument. There are no premature deductions proved. Consequently, the plaintiffs’ argument of having no outstanding loan cannot stand. It was the plaintiffs’ further submission that in both ways analysing the First Plaintiff’s loan at 28th May 2018 or looking at it from 30th June 2020, the First Plaintiff had paid in full all the outstanding loans to the first Defendant that is why DW1 does not know the principle outstanding, does not know interest or penalty outstanding of the First Plaintiff to the First Defendant. This argument is without merit. And as done herein, one has to consider the repayments made and terms of facilities to know how much is the outstanding loan. Besides the principal amount and interest and penalty are as per terms of facilities. The plaintiffs concluded on the first issue, that the agreed terms of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022) are found in Exhibits P1(a), P1(b), D1 and D25. The First and Second Plaintiffs as well as the Defendants are all in agreement that these were the facilities executed. The court has observed that issues 2, 3 and 7 are interconnected. Issue 2 is whether the 2nd defendant disbursed the funds the subject of the facility agreement dated 28th May 2018, (as varied/restructured on 19th January 2019, 19th June, 2020, February 2022 and December 2022) as agreed. Issue 3 is whether the alleged KOM Group of Companies Limited of Nairobi Kenya is a legal entity. And issue 7 whether the alleged KOM Group of Companies Limited of Nairobi Kenya advanced any loan facility to the 1st plaintiff. To begin with issue No. 2 whether the Second Defendant disbursed the funds the subject of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022) and issue No.7 Whether the alleged Kom Group of Companies Limited of Nairobi Kenya advanced any loan facility to the First Plaintiff. To answer these issues, one has to appreciate what syndicated 54 loan is (and whether in the dispute at hand there were syndicated loan facilities?), and what is escrow account, and whether in the 2nd defendant’s bank there was an escrow account by the name of KOM Group of Companies Limited of Nairobi Kenya. The two issues of syndicated loan and escrow account both emerged during cross examination of DW1 and DW2. That necessitates linking the 2nd , 3rd and 7th issues. The 3rd issue is on legal personality of KOM Group of Companies Limited of Nairobi Kenya and the 7 th issue is whether KOM Group of Companies of Nairobi Kenya advance any loan facility to the 1 st plaintiff. Justifiably, in their submission the plaintiffs combined issues No. 2 and 7 because these issues centres on who did the disbursement of funds. Whether the Second Defendant disbursed the funds is to be answered under this issue. Also, whether Kom Group of Companies Limited of Nairobi Kenya advanced any loan facility. Paragraph 10 of the Witness Statement of PW2 which is his examination in chief gives clear evidence of how the funds were received by the 1st plaintiff. PW1 states further that on 10th August 2018, the 1st plaintiff current account No. 3005211479827 received the following funds: (i) USD 4,120,000 particularized as disbursement credit from 1st defendant, (ii) USD 880,000 particularized as disbursement credit from 1st defendant, (iii) USD 26,592,232.00 particularized as from KOM Group of Companies Limited of Nairobi Kenya, not party in this suit, (iv) USD 4,200,000 particularized as from KOM Group of Companies Limited of Nairobi Kenya, not party in this suit. The total funds that the 1st plaintiff received from KOM Group of Companies Limited of Nairobi Kenya not party in this suit, is to the tune of USD 30,792,232.00 while the amount received from the 1st defendant is USD 5,000,000. Neither of the Plaintiffs received any funds from the Second Defendant. While it is clear that the plaintiffs received funds from the 1 st plaintiff, what remains disputed is whether there were any funds received from the 2nd defendant. But to answer that question one has to have answer as to what is KOM Group of Companies Limited of Nairobi Kenya? That is important because the plaintiffs claimed that no funds were disbursed by the 2nd defendant. Instead according to them the funds were received from KOM Group of Companies of Nairobi Kenya. Therefore, we must find out whether KOM Group of Companies Limited of Nairobi Kenya has legal personality. Thereafter, we ask 55 who disbursed the funds, is it KOM Group of Companies Limited of Nairobi Kenya or the 2nd defendant. To answer this question, it is also important to know what is current account, and escrow account? What is syndicated loan? Whether there was any syndicated loan that the 1st and 2nd defendants offered to the plaintiffs? The plaintiffs were of the view that both DW1 and DW2 admitted that the 1st plaintiff received funds from Kom Group of Companies Limited, escrow account and non- escrow account. DW1 specifically admitted that looking at Exhibit P3(f), it is clear that USD 26,592,232 was received by the First Plaintiff from Kom Group of Companies Limited escrow account and that USD 4,200,000 was received by the First Plaintiff from Kom Group of Companies Limited of Nairobi Kenya. This has been rejected by the defendants. DW2 testified during cross examination about exhibit P3(a), a loan statement called KOM Group of Companies, that it is an internal account/escrow account in Equity Bank Kenya Limited. He admitted that in that document the borrower is not KOM Group of Companies Limited. The said document does not indicate the name of the borrower. Equally, the record shows that during cross examination PW1 admitted that among the terms of the contract was that under the facility (exhibit P1(a)) Equity Bank Kenya Limited, 2nd defendant was the one to disburse the amount for purpose of taking over the liability of 1st plaintiff towards CRDB. He also admitted that 2nd defendant disbursed USD 32 million, and it was used to repay the CRDB Loan. PW1 and PW2 testified during cross examination that after getting advice from the consultants (Mr. Rajiv Kumar (A Finance Expert), the plaintiffs noted that the 2nd defendant did not disburse any money to the 1st and 2nd plaintiffs. In my view this is an afterthought and incredible. Worse still the purported consultant (Mr. Rajiv Kumar)was never called to testify in Court. Being a material witness the failure to bring him to testify invites the court to draw adverse inference. Truly, Section 110 of the Evidence Act, [Cap 6 R.E. 2019] dictates that he who alleges must prove. The Plaintiffs had a burden of proof regarding their allegation that the 2nd Defendant did not disburse the funds the subject of the facilities to the Borrowers (Exhibit P1(a), Exhibit P1(b), Exhibit D1 and Exhibit D25). See also the Court of 56 Appeal decision in the Registered Trustees of Joy in the Harvest v Hamza K. Sungura, Civil Appeal No.149 of 2017, CAT- Tabora (unreported) at pages 16, 18 and 19; and Paulina Samson Ndawavya v Theresia Thomasi Madaha, Civil Appel No. 45 of 2017, CAT-Mwanza (unreported) at pages 14, 15 and 16 dealing with the burden and the standard of proof in civil litigation based on Section 110 of the Evidence Act. Indeed a failure by the plaintiffs to call the said Mr. Rajiv Kumar to testify before the Court offends the provisions of Section 62(1) (d) of the Evidence Act which provides: “Oral evidence must, in all cases whatever, be direct, that is to say: If its refers to an opinion or to the grounds on which that opinion is held it must be the evidence of the person who holds that opinion or, as the case may be, who hold it on those grounds”. The Court of Appeal in the case of Jongo Mwikola v Geita Gold Mining Limited, Civil Appeal No.344 of 2020, CAT- Mwanza (Unreported) at page 26, had an occasion to consider the provisions of Section 62 of the Evidence Act and emphasized that hearsay evidence is inadmissible and even if admitted it is of no evidential value in proving the fact in issue. Yet another cardinal principle of the law which is applicable on this issue is that: “where, for undisclosed reasons, a party fails to call a material witness on his side, the Court is entitled to draw an inference that if the witness were called, they would have given evidence contrary to the party’s interests”. (See Hemedi Saidi v Mohamed Mbilu [1984] TLR. 113 at page 114, Kassim Arimu @Mbawala v Republic Criminal Appeal No. 607 of 2021, CAT-DSM (Unreported) at page 9 and 10, and City Coffee Limited v The Registered Trustees of Ilolo Coffee Group, Civil Appeal No.94 OF 2018, CAT- Mbeya (Unreported) at pages 13 and 14. Since Mr Rajvi Kumar was a material witness failure of the plaintiff to bring him forces the court to draw an adverse inference that had the Plaintiffs called hum to testify on their behalf, he would have given evidence contrary to their interests. I concur with the defendants’ submission on the decision of the Court of Appeal in the case of The Registered Trustees of Joy in the Harvest (supra) at page 18 and 19 which held that: 57 “Legally, if a plaintiff fails to prove his case to the required standard, the said case crumbles without having to call the defence to fight it. This position was clarified in Paulina Samson Ndawavya (supra) at page 15 where this Court clearly stated that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his, and that the burden of proof is not diluted on account of the weaknesses of the opposite party's case."]. It is true that the defendants have no evidential burden to prove that the 2nd defendant disbursed the funds the subject of the agreed facilities to the Borrowers. But the evidence on record proves conclusively that the 2nd Defendant disbursed the funds in the agreed facilities to the Borrowers. Importantly, the DW2 testified that since the plaintiffs (borrowers) had no current account with the 2nd defendant, the latter opened up an internal ESCROW ACCOUNT No. 0810277520975 named Kahama Oil Mills Limited- Escrow Account [Exhibit D26] with a sole purpose to facilitate transfer of the funds of the facilities to the Borrowers and management of the repayment by the Borrowers. The escrow account is an account in which funds are held in trust pending fulfilment of certain conditions. It is an account opened for the purpose of disbursing and receiving the repayments. In the present case, the testimony in-chief of DW2 (Timothy Njeru Mwatha at paragraph 5), on 01st August, 2018, the borrowers/plaintiffs issued specific instructions to the Defendants for the defendants to disburse the agreed sums in respect of facility II, USD 14, 200,000.00; facility III- USD 2, 800,000.00, facility IV, USD 9,800,000.00 and facility V, USD 9,800,000 in order for the borrowers to pay off their outstanding loan facilities with CRDB Bank Plc as agreed [See Exhibit D5(a) to Exhibit D5(j) and D6(a)]. During cross-examination, PW1, confirmed to have issued these instructions. DW2 further testified that based on the instructions from the plaintiffs s of 1st August, 2018 and confirmation by the plaintiffs of their negotiated outstanding facilities with CRDB Bank Plc. On 10th August, 2018, the 2nd defendant in performance of the Exhibit P1(a), transferred a total sum of USD 26,592,232.00 from the Escrow Account 58 No. 0810277520975 [Exhibit D26 (See the 1st, 2nd and 3rd entries (credit) both recorded on 9th August, 2018 plus the 4th entry (debit) recorded on 10th August, 2028)] to the 1st plaintiff’s Operational/Current Account No. 3005211479827 maintained by the 1st defendant [Exhibit P3(f) (See the 7th entry (Credit) recorded on 10th August, 2018 with particulars “KOM Group Companies - Escrow Account”)]. The 2nd defendant created internal accounts Exhibit P3(c), Exhibit P3(b) and Exhibit P3(a) in order to book loans that were granted to the 1st Plaintiff including recording and managing all transactions regarding disbursement and repayment of facility-II, facility-III and facility-V respectively by the plaintiffs. Regarding facility - I, the testimony of DW2 [paragraph 5.5 of DW2’s Witness Statement] tells that on 10th August, 2018, the 2nd defendant deposited a sum of USD 4,200,000.00 into the Borrowers USD Current/Operative Account No. 3005211479827- Exhibit P3(f) [See the 7th entry (credit) and 10th entry (debit) both recorded on 10th August, 2018]. Notably, during cross-examination PW1, while referring to Annexure EB- 90 later admitted as Exhibit D9(a), PW1 admitted that the 1st plaintiff received the said USD. 4,200,000.00. As for other portions of facility - I, on 23rd May, 2019 following a specific request from the plaintiffs [See Exhibit D4(a) and Exhibit D4(b)] the 2nd defendant deposited a sum of TZS 2,297,000.00 which was then equivalent to USD 1,000,000.00 into the plaintiff’s TZS Current/Operational Account No. 3005211505190- Exhibit D21(e) [See the 15th entry at page 16/36 recorded on 23rd May, 2019]. Through Exhibit D9(a) there is no doubts whatever that the plaintiffs expressly admitted having received USD 4,200,000.00, USD 1,000,000.00 and USD 7,000,000.00 respectively from none other than the Second Defendant. On the Letters of Credit (LCs) which are part of facility - I, the testimony of DW2 [See Paragraphs 5.8.1 to 5.8.7 of his Witness Statement], Exhibit D31, Exhibit D32, Exhibit D33, Exhibit D34, Exhibit D35, Exhibit D36, Exhibit D37, Exhibit D38, Exhibit D39, Exhibit D40, Exhibit D41, Exhibit D42 and Exhibit D42 clearly show that all the LCs were created and settled by the 2nd defendant following express requests from the plaintiffs [See Exhibit D4(c), Exhibit D10(a) to Exhibit D10(h), 59 Exhibit D11(a) to Exhibit D11(f), Exhibit D12(a) to Exhibit D12(e), Exhibit D13(a) to Exhibit D13(h), Exhibit D14(a) to Exhibit D14(f), Exhibit D15(a) to Exhibit D15(c), Exhibit D16(a) to Exhibit D16(h), Exhibit D17(a) to Exhibit D17(f), Exhibit D18(a) to Exhibit D18(h), Exhibit D19(a) to Exhibit D19(f), Exhibit D20(a) and Exhibit D20(b) and Exhibit D21(a) to Exhibit D21(g)]. In my view, PW2 and plaintiffs generally are creating unnecessary complication here. They failed to prove that there is a company in Nairobi Kenya by the name of KOM Group of Companies. Neither certificate of incorporation was tendered, nor any of the officer of KOM Group of Companies was brought by the plaintiffs to testify. In fact, they knew that the bank account in EBKL by the name of KOM Group of Companies was an escrow account created by the 2nd defendant, EBKL to disburse the funds to the 1st plaintiff. This came out clearly from the testimony of DW1. Kahama Oil Mills could not open a current account in Kenya. It has no business there. That is why the 2 nd defendant opened an escrow account through which the funds were disbursed to into the 1 st plaintiff’s current account maintained in the 1st defendant bank in Tanzania. That is the testimony of both DW1 and DW2. The plaintiffs claim that there was not any fund that has been received from the Second Defendant and instead there is very clear tracing that the funds have been received from Kom Group of Companies Limited not party to this suit. This argument is without credence. PW1 testimony confirms there was money from 2nd defendant through escrow account see exhibit p3 (f). There is no company in Kenya by the name of KOM Group of Companies. The account was in fact for the 1st plaintiff. The plaintiffs argued in vain on the second issue based on PW1 and PW2 testimonies that the 2nd defendant never disbursed funds to the Plaintiffs. This position is confirmed by DW1 and DW2, hence the Second defendant has never disbursed the funds the subject of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022). On the other hand, it was testified by PW1, PW2, DW1 and DW2 that account in the name of Kom Group of Companies Limited of Nairobi Kenya disbursed USD 26,592,232 and USD 4,200,000 to the first Plaintiff. The plaintiffs claim that that disbursement was based on an arrangement 60 between the first Plaintiff and the said Kom Group of Companies Limited of Nairobi Kenya to which the defendants are not privy. Interestingly, the plaintiffs never tendered any evidence to prove existence of KOM Group of Companies of Nairobi Kenya. To the contrary PW1 testified on the issue escrow account named KOM Group Companies. Moreover, the plaintiff never had any facility agreement with a purported KOM Group of Companies of Nairobi Kenya. They never tendered any exhibit confirming existence of any facility agreement between the plaintiffs and KOM Group of Companies of Nairobi Kenya. It is the law under Section 110 of the Evidence Act [Cap 6 R.E. 2019] that he who alleges must prove. The plaintiffs have failed to prove the existence of KOM Group Companies of Nairobi Kenya. They also failed to prove that the 2nd defendant did not disburse any funds to the 1st and 2nd plaintiffs. The evidence recorded show that the 2nd defendant disbursed the funds to the 1st and 2nd plaintiffs. Connected with second issue is the 7th issue, whether the alleged KOM Group of Companies of Nairobi Kenya advanced any loan facility to the 1 st Plaintiff. The position of the law under Section 110 of the Evidence Act [Cap 6 R.E. 2019] the plaintiffs being the one alleging that KOM Group of Companies is a legal entity have a burden to prove this issue. Looking at the testimonies of PW1 and PW2, there is no any material evidence which proves that the alleged KOM Group of Companies Limited of Nairobi Kenya, advanced any loan facility to the First Plaintiff. The Plaintiffs have not brought any evidence to prove the existence of the alleged KOM Group of Companies Limited of Nairobi Kenya as a legal entity. Equally so, the testimonies of PW1 and PW2 during cross-examination clearly show that there has never been any loan facility agreement between the alleged KOM Group of Companies Limited of Nairobi Kenya and the borrowers/plaintiffs. PW1 testified in the court that the exhibits he has tendered do not show any contract between the 1st and 2nd plaintiffs and KOM Group of Companies Limited Nairobi Kenya because it was not part of the case. Again, during re- examination, PW1 testified that he has not brought the contract between KOM Group of Companies limited of Nairobi and 1st and 2nd Plaintiffs that is because KOM Group of Companies Limited of Nairobi Kenya is not a party to this suit. On his part, PW2 testified 61 that he has not seen a contract between KOM Group of Companies Limited of Nairobi Kenya with Kahama Oil Mills. It is incomprehensible as to why the plaintiffs did not bring any evidence to prove that they had a facility agreement with KOM Group of Companies Limited of Nairobi Kenya. It should be remembered that it was the plaintiffs that claimed the funds they received came from KOM Group of Companies Limited of Nairobi Kenya. The burden of proof lies on a party who claim the existence of particular fact. It is loud under Section 110 of the Evidence Act that he who alleges must prove. Here the plaintiffs have failed to prove their allegation. As further clarified in issue No. 3 below, the plaintiffs have failed to prove existence of any loan facility agreement between the alleged KOM Group of Companies Limited of Nairobi Kenya with the 1st plaintiff. One would wonder why the alleged loan facility agreement (if any) which was so important to prove the plaintiffs’ allegation was not brought to the court as evidence. The only lousy explanation given by the plaintiffs is that they did not produce the alleged loan facility agreement because the alleged KOM Group of Companies Limited of Nairobi Kenya is not a party to the suit. The 2nd issue is thus answered in the negative. There is no funds that was disbursed by KOM Group of Companies Limited of Nairobi Kenya. Turning to issue No. 3 whether the alleged Kom Group of Companies Limited of Nairobi Kenya is a legal entity? The plaintiffs submitted that Kom Group of Companies Limited of Nairobi Kenya is not a party to this suit though the issue is to find out whether Kom Group of Companies Limited of Nairobi Kenya is a legal entity. It is trite that a legal facade of KOM Group of Companies Limited of Nairobi Kenya should be unveiled because the plaintiffs have alleged that they have entered into credit facility agreement with KOM Group of Companies Limited of Nairobi Kenya and that it was this company that disbursed the funds and not the 2nd defendant. Although one may be left wondering the striking similarity of amounts claimed to be disbursed by KOM Group of Companies Limited of Nairobi Kenya and the amount found in facility agreements executed by the 2 nd defendant. The 2nd defendant through DW1 and DW2 have testified that KOM Group of Companies refers to the 1st plaintiff escrow account. If the plaintiffs wanted to solve the purported 62 mystery of KOM Group of Companies Limited of Nairobi Kenya they ought to prove that that company legally exist in Kenya or at least present a loan agreement between the plaintiffs and the purported KOM Group of Companies Limited of Nairobi Kenya. Short of that the legal entity does not exist. I have noted that the plaintiffs raised a concern that the issue of KOM Group of Companies of Nairobi Kenya being a legal entity was framed due to the plaint which make reference to KOM Group of Companies Limited of Nairobi Kenya as an entity as opposed to the defendants’ written statement of defence and the counter claim which do not make reference to KOM Group of Companies Limited of Nairobi Kenya as an entity. The plaintiffs were present when the issues were framed but also, they are the ones who claimed the funds were received from KOM Group of Companies Limited of Nairobi Kenya, and that they have credit facility agreement with her. This was disputed by the defendants who submitted that the Plaintiffs in paragraph 8 of their Reply to the defendants’ Joint Written Statement of Defence and Written Statement of Defence to the Counterclaim categorically pleaded that KOM Group of Companies Limited of Nairobi Kenya is a legal entity . This allegation was specifically denied by the defendants in paragraph 3.0 of the Defendants’ Joint Written Statement of Defence, and Counterclaim. That means, in terms of the provisions of Section 110 of the Evidence Act, the Plaintiffs have a duty to prove this allegation by cogent evidence. Unsurprisingly, the plaintiffs submitted that a certificate of registration of KOM Group of Companies Limited was not tendered by either party in which case the legal personality of KOM Group of Companies Limited can be implied from events and transactions. The defendants argued that that is legally untenable. The plaintiffs argued that there are key events implying that KOM Group of Companies Limited of Nairobi Kenya has been transacting as a legal person and is a legal entity: they relied first on exhibit D9, which was tendered by DW2. This exhibit is a document filed by the 1st and 2nd defendants in their additional list of documents but opted not to tender it. During cross examination, it is when DW2 was asked by the Plaintiffs’ advocate to tender it, initially refused but later decided to tender it. exhibit D9 is a letter from the 2nd defendant to the Bank of Tanzania informing the Bank of Tanzania that the source of fund is not illegal and 63 that the borrower is KOM Group of Companies. The plaintiffs’ counsel submitted that the KOM Group of Companies Limited of Nairobi Kenya is the one who got a loan from the 2nd defendant and advanced a loan facility to the 1st plaintiff as evidenced by disbursement of the loan and loan repayment. On this submission, it my view that legal personality of a company cannot be proved by circumstantial evidence. The Companies Act [Cap 212] is clear that a certificate of incorporation is prima facie evidence of the legal personality of a company. Such a personality cannot be inferred. One must present a certificate of incorporation. Apart from that, the letter to Bank of Tanzania does neither prove money movement from the 2nd defendant to the 1st plaintiff. Nor does it say that KOM Group of Companies of Nairobi Kenya is a legal entity. Moreover, and as above stated the plaintiffs ignored the issue of the escrow account. A second argument of the plaintiffs was that there are loan statements of Kom Group of Companies Limited of Nairobi Kenya indicating disbursement of funds from Second Defendant to Kom Group of Companies Limited of Nairobi Kenya and thereafter from Kom Group of Companies Limited of Nairobi Kenya to the First Plaintiff. This was issued by the First Defendant and supplied to the First Plaintiff, these are: Exhibit P2 (a), a loan statement of Kom Group of Companies Limited of Nairobi Kenya indicating the loan disbursement amounting to USD 32,000,000, issued by the Second Defendant and supplied to the First Plaintiff. However, PW1 admitted during cross examination to have approved the opening of the escrow account. The said escrow account is named KOM Group of Companies Limited of Nairobi Kenya because the 1st plaintiff has no current account with the 2nd defendant. That also matches DW1’s testimony. Besides the P.O. BOX number that was indicated as that of KOM Group of Companies is the address of the 2 nd defendant. The plaintiffs have not explained how the funds disbursed by KOM Group of Companies Limited tally with the amount stated in loan facility agreements from the 1st and 2nd defendants in their favour. The exhibit P3(a) is a loan statement of Kom Group of Companies Limited of Nairobi Kenya indicating the loan disbursement amounting to USD 9,800,000, issued by the Second Defendant and supplied to the First Plaintiff. Exhibit P3(b) is a loan statement of Kom Group of Companies Limited of Nairobi Kenya indicating the loan disbursement 64 amounting to USD 2,880,000, issued by the Second Defendant and supplied to the First Plaintiff. Exhibit P3(c) is a loan statement of Kom Group of Companies Limited of Nairobi Kenya indicating the outstanding loan and loan repayment, issued by the Second Defendant and supplied to the First Plaintiff. Exhibit P3(d) is a loan statement of Kom Group of Companies Limited of Nairobi Kenya indicating the loan disbursement amounting to USD 4,724,390, issued by the Second Defendant and supplied to the First Plaintiff. Exhibit P3(e) is a current account statement of Kom Group of Companies Limited of Nairobi Kenya, issued by the Second Defendant and supplied to the First Plaintiff. Exhibit P3(f) is a current statement of the First Plaintiff indicating receipt of funds from Kom Group of Companies Limited of Nairobi Kenya and loan repayment from First Plaintiff to Kom Group of Companies Limited of Nairobi Kenya. In my view since it is clear that the funds from the 2nd defendant was disbursed to the 1st plaintiff via KOM Group of Companies Limited escrow account, and there is no evidence that KOM Group of Companies Limited of Nairobi Kenya is a legal entity, then there is not dispute that the funds were disbursed by the 2nd defendant to the 1st plaintiff. Yet another feeble basis of Plaintiffs’ claiming existence of KOM Group of Companies of Nairobi Kenya emanates from the content of Exhibit P3(a), Exhibit P3(b), Exhibit P 3(c) and Exhibit P3(d). However, it is on record that DWI and DW2 testified that the said Exhibit P3(a), Exhibit P3(b), Exhibit P3(c) and Exhibit P3(d) as above disposed these were internal accounts created by the 2nd defendant using its own postal address P.O. Box75104, Nairobi Kenya (as described in Exhibit P1(a)) with a sole purpose to facilitate transfer of the funds of the facilities to the Borrowers and management of the repayment by the Borrowers. Consequently, the plaintiffs’ argument is without merit because we have observed herein above that KOM Group of Companies Limited of Nairobi Kenya was a name of the escrow account that was opened to disburse funds to the plaintiffs from the 2nd defendant. The plaintiffs have failed to prove legal personality of KOM Group of Companies of Nairobi Kenya. Third point of plaintiffs is that there is evidence of receipt of funds in the account of the 1st Plaintiff from Kom Group of Companies Limited of Nairobi Kenya. This has been rebutted by the defendants because the account was an escrow account opened by the 2 nd 65 defendant with approval of PW1for the purpose disbursing funds to the 1 st and 2nd plaintiffs. Fourth, there is a printout of Loan General Details appended to the Written Statement of Defence and Counter Claim as Annexure 50. The customer is Kom Group of Companies Limited. This yet does not prove that the funds were from KOM Group of Companies Limited of Nairobi Kenya because that company has no legal personality and DW1 and DW1 has testified that it was the escrow account opened to disburse funds from the 2nd defendant to the plaintiffs. Fifth, Exhibit P8, this is a letter from Second Defendant to Kom Group of Companies Limited requesting them to confirm their loan liability to the Second Defendant, which is the funds which Kom Group of Companies Limited advanced to the First Plaintiff. As stated herein above KOM Group of Companies Limited of Nairobi Kenya was a name given the escrow account. Considering exhibit P1 (a), the facilities were syndicated loans in which two lenders were involved. The funds disbursed by the 2nd defendant were received in the current account the plaintiffs maintained in the 1st defendant’s bank. The review of the PW1’s and PW2’s testimonies in chief, show that there is not any evidence proving the allegation that KOM Group of Companies Limited of Nairobi Kenya is a legal entity. In fact, during cross-examination, PW1 testified that he has never seen the Certificate of Incorporation of KOM Group of Companied of Nairobi Kenya. He was also of the view that to prove that KOM Group of Companies of Nairobi Kenya has been incorporated he was supposed to bring the Certificate of Incorporation. PW1 also admitted that it was the Plaintiffs that are saying that KOM Group of Companies Limited of Nairobi Kenya is a legal person. He conceded that the Plaintiffs were obliged to prove that Kom Group of Companies Limited of Nairobi Kenya is a legal person, He admitted further that in evidence he has given including the documents none of them proves that KOM Group of Companies Limited of Nairobi Kenya is a legal person. PW1’s testimony is credible. And from that testimony is clear that KOM Group of Companies Limited of Nairobi Kenya is not a legal entity. It is also noted that during his re-examination, PW1 testified that he was introduced to the alleged KOM Group of Companies Limited of Nairobi Kenya by one Moses Ndirangu, 66 one Benard and one Irene of NISK Capital Ltd. However, the Plaintiffs did not call either the alleged Moses Ndirangu, Benard or Irine to testify in court in support of this allegation by PW1. PW2 during cross-examination while referring to exhibit P2(a) on the box/postal address shown to be KOM Group of Companies and that P. O. Box address is the same as that in Exhibit P1(a). Even in exhibits P3(a), (b), (c) and (d) the address is the same as that in P1(a) which is the address of Equity Bank Kenya Limited He also admitted that to have called these documents as statements of KOM Group of Companies of Nairobi Kenya. But he clarified that the words “of Nairobi Kenya” is not in these documents. A conclusion drawn from the above analysis is that the Plaintiffs have failed to prove that KOM Group of Companies Limited of Nairobi Kenya is a legal entity. In Change Tanzania Limited v Registrar of Business Registration and Licensing Agency , Civil Appeal No. 03 of 2021, CAT-DSM (Unreported) at pages 10 and 11, the Court of Appeal dealt with an issue of a legal status of an Appellant who alleged to be a legal entity. The Court held that proof of legal status of a company is the certificate of incorporation. That said the 3rd issues is answered in the negative. The Issue No. 4 is whether the 1st Plaintiff issued irrevocable instructions to the first Defendant to pay one NISK Capital Limited the sum of USD 1,300,000. The 4th issue should not detain us much. It is on record that the 1st defendant paid to NISK Capital Limited not party to this suit, USD 1,300,000 from the account of the 1st plaintiff. While the plaintiffs claim that was against the contract between NISK Capital and Kahama Group of Companies Limited, not party to this case, and because the invoice was addressed to Kahama Group of Companies Limited, not party to this suit. PW1 for the plaintiffs admitted to have written the letter admitted as exhibit D9(b) instructing the 1st defendant to pay NISK Capital Ltd. The fourth paragraph of Exhibit D9(b) provides that the amount of USD 1,300,000 should be paid to NISK Capital Ltd from the drawn down of USD 7,000,000, which the plaintiffs claim has not been drawn to date as the facilities which were to come from the 2nd Defendant never materialized. The question of disbursement has been answered that the 2nd defendant disbursed the funds to the 1st plaintiff via the escrow in the name of KOM Group of Companies Limited. Therefore, it is my firm view that the issue 67 of the contract between NISK Capital and Kahama Group of Companies Limited does not arise. Adding to the above observation, the testimony in chief of DW1 remains unshaken. He testified that having received the sum of USD. 4,200,000.00 from the 2nd Defendant [which is part of facility - I in Exhibit P1(a)], the plaintiffs issued irrevocable instructions to the 1st defendant to pay a sum of USD. 1,300,000.00 to one NISK Capital Limited being Arrangement Fees. The instructions were duly carried out by the 1st defendant on 11th August, 2018. That was corroborated by the testimony PW1 who admitted during cross-examination that he is the author of Exhibit D9(b), a letter dated 1st August, 2018 from the 1st plaintiff to the 1st and 2nd defendants. PW1 admitted having signed it. That is also supported by Exhibit P4(b) in which the 1st plaintiff instructed the 1st defendant to pay NISK Capital Ltd. The 1st defendant executed the instruction given as it was her obligation. The law requires that contracts must be respected as held in Abualy Alibhai Azizi vs Bhatia Brothers Ltd [2000] TLR 288 and Simon Kichele Chacha v. Aveline M. Kilawe, Civil Appeal No. 160 of 2018 CAT at Mwanza. Moreover, PW1 admitted that he is the Author of exhibit D4(e) whereby the plaintiffs expressly admitted having received USD. 4,200,000.00 and that the said amount was partly used to settle the Arrangement Fees for NISK Capital (USD. 1.3 Million). The fourth issue is thus affirmatively answered. Due to their linkage, issues No. 5 and No. 6 are jointly disposed. The issue No. 5 is whether the Defendants breached any terms of the facility agreement dated 28 th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022) and issue No. 6 Whether the 1st Plaintiff and the 2nd Plaintiff are in breach of the facility agreement dated 28th May 2018 (as varied/restructured on 19th January 2019, 19th June 2020, February 2022 and December 2022). Due to their linkage, issues No. 5 and No. 6 are jointly disposed. The banking facility of 28th May 2018 admitted as Exhibit P1(a) and subsequent variations had distinct facilities to be provided by the 1st defendant and facilities to be provided by the 2nd defendant. The plaintiffs argued that the 1st defendant provided some facilities though later mismanaged the account. Additionally, they argued that the 2nd defendant did not disburse the funds at all. From the conclusion 68 drawn hereinabove, it is loud that the plaintiffs’ argument is without merit because both the 1st and 2nd defendants disbursed the loan funds to the 1st and 2nd plaintiffs. Second argument of plaintiffs is that facility – I, which is structured trade and commodity financing limit of USD 14,000,000 that was supposed to come from the 2nd defendant was not utilized. They went on arguing that the 2nd Defendant opted to disburse USD 32,000,000 to KOM Group of Companies Limited of Nairobi Kenya instead of transferring it to the 1st and 2nd plaintiffs. This submission too lacks substance as found earlier in testimonies of DW1 and DW2 that the 2nd defendant disbursed the funds to the plaintiffs via an escrow account named KOM Group of Companies Limited. In fact, the plaintiffs acknowledge receiving the said funds as per PW1’s testimony. And that the funds received tally with the amount in the credit facilities exhibit P1(a). The only obligation that the defendants had in terms of Exhibit P1(a) as varied/structured through Exhibit D1, Exhibit P1(b) and Exhibit D25, was to disburse the funds the subject of the agreed facilities. They fulfilled this obligation by disbursing the funds to the plaintiffs as agreed and the purposes of all the facilities were realized. It is the disbursement of facility -II, facility-III, facility -IV and facility-V by the defendants to the plaintiffs which completed the discharged of the plaintiffs loan liabilities with CRDB Bank Plc. Reference is made to Exhibit D8(a), Exhibit D8(b), Exhibit D8(c), Exhibit D8(d), Exhibit D44(a), Exhibit D44(b), Exhibit D44(c), Exhibit D44(d), Exhibit D44(e), Exhibit D44(f) and Exhibit D44(g). Through Exhibit D23(j) the plaintiffs expressly admitted that it is needless to mention here that the term loan of USD 32 Million were fully utilized towards repayment of CRDB facility. PW1 during cross examination and while referring to paragraph 4 of his witness statement and Exhibit P1(a), PW1 he admitted that he was complaining about breach of contract exhibit P1(a). But he conceded that he did not see any term /clause in exhibit P1(a) that the defendants beached. Therefore, fifth issue is answered in the negative. The defendants did not breach the terms in ExhibitP1(a) as varied/restructured. In the case at hand because the monies disbursed by the 2nd defendant were received by the 1st and 2nd plaintiffs through the escrow account named KOM Group of Companies Limited. If there is any breach it is the plaintiffs who have breached the facility agreements for failure 69 to repay the loans triggered the defendants to issue default notices to the plaintiffs. Therefore the seventh issue is answered in the affirmative. The law requires that each party to a contract must perform their duties and obligations as mutually agreed in the agreement. The provision of Section 37(1) of the Law of Contract CAP 345 R: E 2019 puts the mandatory duties to the parties to perform their duties in respect of their agreement mutually contracted and the said provision provides to the effect that: “The parties to Contract must perform their respective promise, unless such performance is in dispensed with or excused under the provisions of this Act or of any other law”. It is my considered view that while the defendants did comply with the above provision of the law as they disbursed the funds to the plaintiffs, the latter breached the terms of credit facility agreement by defaulting to repay the loans. To cement further on the sixth issue whether the 1st Plaintiff and the 2nd Plaintiff are in breach of the terms of the facility agreement dated 28 th May, 2018 (as varied/structured on 03rd January, 2019, 19th June, 2020, February 2022 and December, 2022) a brief analysis is further given. According to clause 4.5 in Exhibit P1(a), Clause 4.0(f) in Exhibit P1(b) which clauses were retained throughout to the 22nd December 2022 restructuring [see Clause 4.0 in Exhibit D25], the plaintiffs have an obligation to ensure that there are adequate funds in their account to meet their loan repayments obligation as they fall due. Exhibit P5(a), Exhibit P5(b), Exhibit P5(c), Exhibit P5(d), Exhibit(e), Exhibit P5(f), Exhibit D23(b), Exhibit D23(d), Exhibit(e), Exhibit D23(f), Exhibit D23(g), Exhibit D23(h), Exhibit D23(i), Exhibit D23(j), Exhibit D23(k) and Exhibit D23(l) clearly show that the plaintiffs are in breach of the terms of the Banking Facilities as varied/restructured because as per Loan Statement No. 220583701775 [Exhibit D30] and No. 3005511299649, exhibit D24(b)the Borrowers have not settled their loan obligation which implies that they have no funds in their account As evident in Exhibit D23(k) [a letter Ref. No. EBTL/DEMAND/01/0/023 dated 19th June, 2023 from the defendants to the plaintiffs), the total Outstanding Debt was USD. 46,658,395.81 as of 19th June, 2023 and when the Defendants filed their Written 70 Statement of Defence and Counter-Claim (on 26th July, 2023), the total Outstanding Debt was USD 47,228,592.53 which continues to attract interest and penalties at the agreed rate. According to Exhibit D24(a), Exhibit D27(a) and Exhibit D27(b) which are annexed in paragraph 17 of the Defendants’ Written Statement of Defence and Counter- Claim (hence, part of the Defendants’ WSD and Counter-Claim based on the decision of this Court in the case of Jangid Global FZC vs. Jangid Plaza Limited, Commercial Case No. 146 OF 2021 HCCD (Unreported), pages 8 and 9, the plaintiffs’ total Outstanding Debt recorded by the first defendant was USD 6,686,722.61 [See page 2/2 of Exhibit D24(a)] while the plaintiffs’ total outstanding debt recorded by the 2nd defendant was USD 40,541,869.92 as reflected in Exhibit D27(a) and Exhibit D27(b) bringing the total to USD 47,228,592.53 for both defendants as pleaded in the WSD and Counter-Claim. As for issue No. 8, whether there has been any loan repayment from either plaintiff to the 2nd Defendant? There are several fallacies in the plaintiffs’ submission. The reference to paragraph 10 of the Witness Statement of PW2 stating how the funds were repaid ignored the fact that the funds from the 2nd defendant was disbursed to the plaintiffs. There is also evidence on record that the plaintiffs prior to seeking profession advise from Rajiv Kumar had written letters to the defendant pleaded with them after they have issued the default notice and demand to pay. Another fallacy is the argument by the plaintiffs that the 1st plaintiff has paid a total of USD 4,092,044.13 to Kom Group of Companies Limited of Nairobi Kenya as evidenced in account statements for account No. 3005211479827 in USD and 3005211479823 and the following are the particular payment entries: On 11th October 2018 paid USD 326,131.00; On 12th November 2018 paid USD 326,131.00; on 10th December 2018 paid USD 326,131.00; On 11th January 2019 paid USD 326,131.00; On 13th February 2019 paid USD 326,131.00; on 14th March 2019 paid 326,131.00; on 22nd March 2019 paid USD 200,000; On 18th April 2019 paid USD 126,131.00; On 10th May 2019 paid USD 74,465.00; On 4th July 2019 paid USD 270,100; On 9th July 2019 paid USD 382,900; On 16th November 2019 paid USD 330,696.00; on 5th December 2019 paid USD 98,704.13; on 10th January 2020 paid USD 326,131.00; and on 2nd March 2020 paid USD 326,131.00 71 The above transactions were in essence loan repayments that the plaintiffs were making to the 2nd defendant. The total loan repayments effected by the first Plaintiff to escrow account named Kom Group of Companies Limited of Nairobi Kenya to date is USD 4,092,044.13. The current account of the 1st Plaintiff admitted as Exhibit P3(f) which has also been adopted as one of the defence exhibits indicate the above loan repayments. Yet another fallacy is the submission that there is not a single loan repayment from either of the Plaintiffs to the 2nd defendant at any point in time. As stated, KOM Group of Companies of Nairobi Kenya escrow account was opened for disbursement of funds to the 1st and 2nd plaintiffs, and repayment of the loan to the 2nd defendant. Therefore, the plaintiffs were making repayment to the 2nd defendant via KOM Group of Companies escrow account. But then again, it worthwhile to note that the last repayment instalment was done on 2nd March 2020. Being a syndicated loan, and the 2nd being a foreign bank legally (see exhibit P7(b), the foreign exchange circular No. 6000/DEM/EX.REG/58 of 24th September 1998) was not allowed operate current account in Tanzania, that is why an escrow account was opened. And the plaintiffs maintained current accounts in the 1st defendant’s bank. The defendants correctly submitted that plaintiffs alleged that they have never repaid any loan amount to the 2nd defendant and that all along they have been paying the alleged Kom Group of Companies Limited of Nairobi Kenya. Unfortunately, the evidence on record does not in any way support this allegation. Exhibit D26, an account statement (period 01/02/2017 – 26/07/2023) for an internal account (account number 0810277520975) held in Equity Bank Kenya Limited titled Kahama Oil Mills Limited – escrow account. This Escrow Account created by the 2nd defendant for purposes of disbursement and management of repayment of the facilities by the plaintiffs contains all details of repayments of the facilities by the plaintiffs to the 2nd defendant. Likewise, the testimony of DW1 during cross-examination shows the transaction from Exhibit P3(f) to Exhibit D26 all of which are loan repayment transactions from the 1st plaintiff to the 2nd defendant. PW2 also when asked about the alleged repayments of loan to the alleged KOM Group of Companies Limited of Nairobi Kenya, PW2 stated that they normally pay Equity 72 Bank Tanzania who remits to KOM Group of Companies of Nairobi Kenya. He admitted that instructions to the customer are written. But he was quick to conceded that he has not tendered any document in this court containing instructions that the 1 st defendant to pay Kom Group of Companies of Nairobi Kenya. This supports the fact that the plaintiffs were making repayments of their loan obligations to the 2nd defendant through internal loan accounts she created in the name of KOM Group of Companies Limited. From the above evidence, it is crystal clear that the plaintiffs’ argument that there is not any evidence tendered to prove that any of the Plaintiffs has been making loan repayments to the 2nd defendant, hence there has been no any loan repayment from either plaintiff to the 2nd defendant is incredible and misleading. That point was probably raised to justify allegation that there no funds were received from the 2nd defendant and that the plaintiffs had facility agreement with KOM Group of Companies Limited of Nairobi Kenya. Such a stand has been found to be lacking evidence. It is surprising that the plaintiffs have completely avoided mentioning that the facilities were syndicated loans, Moreover, no mention of internal account, escrow account and how they works. That deliberate exclusion of relevant facts led the plaintiffs hiding themselves under the shelter of a claim that the 2nd defendant disbursed monies to KOM Group of Companies of Nairobi Kenya. And unfounded claims that there is funds disbursed by the 2nd defendant to the plaintiffs. However, the plaintiffs admitted that the 2nd defendant disbursed monies to KOM Group of Companies of Nairobi Kenya and the latter disbursed the said monies to the plaintiffs. They have not proved that KOM Group of Companies of Nairobi Kenya is a legal entity. For the foregoing reasons and evidence, the 8th issue is answered in the affirmative. Lastly, issue No. 9 is what reliefs are the parties entitled. In addressing this issue on reliefs, I am compelled to look at reliefs in both the Plaint and counter claims. The plaintiffs boasted that the reliefs sought in the plaint are clear, articulate, unequivocal, visible and tangible and alleged that reliefs in both counter claims are a bit vague as they do not specify what is the principal, interest, etc. I disagree with such view. It was clear from the defendants’ counterclaim that the amount claimed is total outstanding sum. The issue of principal sum, interest and penalties is drawn from the credit facilities agreement. The loan statements admitted as exhibits in this case also cements that. 73 Franky, much as I agree that reliefs have to be specifically pleaded, and I have no quarrels with the authorities cited by the plaintiffs that is Oder VII Rule (g) of the Civil Procedure Code Act R. E. 2019 requiring the Plaintiff to state the relief which she claims, the view which is supported by the Court of Appeal decisions in Zuberi Augustino v Anicet Mugabe (1992) TLR 137 at page 139; Stanbic Bank Tanzania Limited v Abercrombie & Kent (T) Limited (Civil Appeal 21 of 2001) [2006] TZCA 86 (3 August 2006); Tanzania Saruji Corporation v African Marble Co. Ltd [2004] TLR 155, at page 159; and NBC Holsing Corporation v. Hamson Erasto Mrecha [2002] TLR 71, I do not find any significant deficiency in the way reliefs have been pleaded by the defendants. That is because even exhibit D23(k) shows the outstanding amount. In the case at hand, I find no fault on the defendants’ side. They have specifically pleaded in their counterclaim reliefs sought. The issue as to how much each defendant claims and how much is principal sum, interest and penalties are found in the exhibits. For instance, interest and penalties are in the credit facilities agreements (exhibit P1(a)). Therefore, the allegation that the reliefs sought by the defendants was not specifically pleaded lacks substance. It suffices to state here that considering the analysis and the answers to the foregoing issues, the plaintiffs’ case has not been proved to the required standard, that is balance of probabilities. They are mere allegations without concrete evidence. For the Plaintiffs to be entitled to the reliefs sought in the plaint, they were required to prove the 2nd, 3rd , 5th , 7th and the 8th issues on the balance of probability. As demonstrated, they have failed to prove them, hence, the only remedy available is the dismissal of their suit. That said the plaintiffs’ suit is dismissed with costs. Now turning to the defence case which has been embedded with a counter claim, their evidence is solid and credible. I thus find merit in the counterclaim. What follows then is to determine the reliefs sought. It is a cardinal principle of law that special damages have to be proved specifically and strictly. The Relief (d) in the Joint Counter Claim of the Defendants against Plaintiffs to the Counter Claim reads: “an order for the borrowers, the guarantors and the mortgagor jointly and severally to pay the outstanding debt of USD 47,228,592.53”. The question asked to DW1 and DW2 was that out of the claimed USD 74 47,228,592.53. The plaintiff lamented that the defendants have lumped their claims. It is unclear how much is claimed by the Equity Bank Tanzania Limited (1st Defendant) and how much is claimed by Equity Bank Kenya Limited (2nd Defendant). Through DW1 they responded that if the court wants to know how much the bank claims the court must look at the loan statements. He went further to state that if the court wants to know how much Equity Bank Tanzania claims against the Plaintiffs it has to look at Exhibit D24(a) it shows the debt of the plaintiffs up to 26th July 2023 is USD 6,686,722.61. DW1 confessed that both the counter claim and his witness statement do not state how much the First Defendant claims from the Plaintiff in the counter claim, also they do not say what is principle, what is interest and what is penalty. The witness confirmed that the 1st defendant has not pleaded its claims in the counter claim. DW2 stated that paragraph 6 of his witness statement states that by 26 th July 2023, the claims of Equity Bank Kenya Ltd stood at USD 40,541,869.92. He confessed that the counter claim does not show that Equity Bank Kenya Ltd claims USD 40,541,869.92 against the Plaintiffs. DW1 testified that the USD 40,541,869.92 in in the USD 47,228,592.53 appearing in the counter claim. DW2 invited the court to peruse Exhibit 27(a) and (b) as well as Annexure EB-50, EB 121 and Exhibit 30. Despite that defence I ask myself, should a successful litigant whose evidence is credible and strong to the extent that she has proved her claim be denied reliefs because they were not properly articulated? The relief sought have been stated in the counterclaim. The defect is that there was no proper categorization as to what is the principal sum, interest and penalties claimed by each defendant. However the outstanding amount is clear in the exhibit D23 (k). I am also alive to the fact that these were syndicated loans. Moreover, the issue of principal and interest is clear in the loan documents particularly the facility agreements. Further, paragraphs 3.1, 3.2, 3.3, 3.4 and 3.5 of the Joint Written Statement of Defence which are reiterated by paragraph 14 of the Counter Claim as part of the counter claim, pleads that there were separate facilities of Equity Bank Tanzania Limited and also separate facilities of Equity Bank Kenya Limited. Yet they were syndicated loans as testified by DW1. 75 Truly, although both DW1 and DW2 do not know out of USD 47,228,592.53 how much is for 1st defendant and how much is for 2nd defendant, and similarity they do seem not know how much principal amount is, how much is interest and how much is penalties, that is non-issue because the annextures to the WSD and counterclaim that have admitted as exhibits they answer these questions. Apart from that, the plaintiffs’ total Outstanding Debt recorded by the first defendant was USD 6,686,722.61 as shown on page 2/2 of Exhibit D24(a) while the plaintiffs’ total outstanding debt recorded by the 2nd defendant was USD 40,541,869.92 as reflected in Exhibit D27(a) and Exhibit D27(b) bringing the total to USD 47,228,592.53 for both defendants as pleaded in the WSD and Counterclaim. The plaintiffs are forgetting that the facility agreement is exhibit P1(a) under which several facilities are included. And the arrangement shows clearly that the 1 st and 2nd defendants were joint lenders and that is why these were syndicated loans as testified by DW1 and DW2. It will be a serious miscarriage of justice to deny the defendants their reliefs simply because they did not categorize what is principal amount, interest and penalties. After all these have been well defined in exhibit P1(a). Since there were repayments done by the plaintiffs then the loan accounts statements show how much is outstanding. I do not need to explain them. These figures are in the exhibits (loan account statements). I am firm in view that the defendants have successfully proved the 1st issue, the 4th issue and the 6th issue on the balance of probability as required by the law in respect of their Counterclaim, consequently this Court upholds the defendants’ counterclaim, and proceed to grant all the reliefs detailed therein. To that end the Court of Appeal in the case of EXIM Bank Tanzania Limited v The M & Five B. Hotel & Tours Limited and Others, Civil Appeal No. 193 of 2023, CAT-DSM (unreported) held at page 46 that: “…non-payment of loans does not only amount to breach of contract between lenders and borrowers but it is against public policy that require loans to be paid timely.” And the above is relevant to the case at hand based on the conducts and actions of the plaintiffs from May, 2018 up to 30th June, 2023 (when they had not yet received the alleged advice from consultants), as evident in the court record. This court holds that the 76 plaintiffs are estopped by the principle of estoppel envisaged in Section 123 of the Evidence Act to allege that they did not receive any funds from the 2nd defendant. The principle of estoppel was also stated in Trade Union Congress of Tanzania (TUCTA) v Engineering Systems Consultants Limited & Two Others, Civil Appeal No. 51 OF 2016, CAT-DSM, (unreported), at pages 18, 19 & 20. Before penning off, I would reiterate the CAT position in Equity Bank Tanzania Ltd and Another v TSN and others, Civil Appeal No. of 2023, which I find to be just that loans must be repaid otherwise banks and other lending institutions will collapse. I find that while the plaintiffs in the main suit have failed to prove their claims and hence, their suit is dismissed, the defendants who are the plaintiffs in the counterclaim have proved their claims on the balance of probability as required by the law under Section 3(2)(b) of the Evidence Act. It is declared that the Borrowers are in breach of the terms and conditions of the facilities the subject of the syndicated loan agreement dated 28 th May 2018 as restructured. Further to that since the Borrowers have defaulted in servicing the loans, the Guarantors and the mortgagor are fully liable to the defendants. What is more is that, the defendants who are the Plaintiffs in the counterclaim are awarded specific damages to the tune of USD 47,228,592.53 which is the total amount due owed by the defendants in the counterclaim to the plaintiffs in the counterclaim. Furthetrmore, the plaintiffs in the counterclaim are awarded interest as per their contracts (credit facilities), and interest on decretal sum at court’s rate of 7% from the date of judgment to the date of full payment. Costs shall be borne by the plaintiffs in the main suit. Order accordingly. DATED at DAR ES SALAAM this 29th Day of November 2024. 77 U. J. AGATHO JUDGE 29/11/2024 Court: Judgment delivered today, this 29th November 2024 by Hon. Joyce Minde, Deputy Registrar in the presence of the parties. U. J. AGATHO JUDGE 29/11/2024 78