20151002 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR DISPUTE NO. 10 OF 2012 BETWEEN MU FIN DI PAPER MILLS LTD .......................... •·· :tf(~d~,4;A~N}'-NT VERSUS -,~:~~,. '.\\::.-:#?' ,:'.!,. .;- ·::;;;~~>\~-. ::;~.: . PROSPER JOHN EUGENE & 3 OTHERS ... ~ •....• :l~1f~~ ...... RESPONDENTS . ::Jt;····•J,t~:\::,, :~- RU LI N G . {:.. . -:t~.. ·•::::~:::::: -~ ''lo~t-...... <~:~;<>? ............-.-=-=-a.---= . '.::;;~--. -~~. ~~ ::::::.0;~0/2015 . (' The applicant's Learned. Couh~.~I rvlp} Ngasa asked this Court to allow ::t~ #~~:~::~;::::::~~:;:~' . him to file the document,2 '\iij,hotocop'fes) which were taken by the police . <~~~> ~.~~:.;. and the applicant com~!.afii~:gf~as refused even to make photocopies ~Y .·.. ,'~-'~ . .-~~~;~:,:>, ~~~;~:. . the police. Mr. ~g~"Slib; is:>,ft!9W viva voce (by live voice) applying .the :❖~ ~li-. ~~1~~- .-~ · _ photocopies~;;J~~~f::i@JJQ~~gJ!3y the Court so that they may use them in the ~-1:::!t. ~-~:,,, .~.~-:❖ ...'· · -; present fi!~~;t_cCYl:fl.Pl~tnt. Mr. Ngasa has argued that at last the police· who if=-' -~-:~;};:~~ -:<;~:;~~/3:~~~:• ha-ehJhe bri.gtffiM ... documents have allowed them to make photocopies for "<:~:-.,. >:!~'<.· .1~·· the p'J:f.RQSe.;:;9r::Lsing the documents in this case. ~ ~: ~%2t:t.'· , However Mr. Safari Learned Counsel for the first and second Respondent objected to the prayer and argued that the applicant was· supposed to disclose the documents and since he did not disclose, then 1 <I · they cannot do it without the leave of the Court as per Rule 14 of the.,· <J Labour Court Rules 1 • (For easy of reference Rule 14 of the Rules reads):-:. · .. .A document which has not been disclosed during the pre-trial conference may not except with the leave of the Court be granted on whatever terms the Court deems fit, be used for ·any purpose at the heq,t;ing4f)¾, r'~:i:2~:>c ~j "< ~*•~ the person who was obliged to disclose it :(ff/ce!f?l thaf1~. A:'.' '<:;:;, -~,-,_••.,.•. the document or tape recording may ._be usei.'f:Jt~-- a ~=~:;::,· ·t,'>·. ❖-- .......~ ~~:~~::1~~;,: ~::~:,~ was:.,. person other than the person. who -:::;:;.. obliged to '-:.::%· 2 disclose it... · '"'""'' ~ "\¼,J Mr. Safari further argued that stwfi~:::Jff~:::. 9Qtbments have been filed . . . . ~-~;~;~~~~~:;, ~!~ . -~~~:. ~~'.:;~:i~:~;;· . already that is a contraventiqn . q!' Rule .':l 1~l~~~~~-~=: ,~~~ _ ani: hence he asked this Court to _; f:~~- : ex-punge the documents so filed~f:@r the'iifave been filed without the leave .· . ¾,~:, .·. . . . ,;.~;:... "•)·~:>~~,.,.~,._=;~~--~· . of the Court. ,:~::f ·-,':•: : .):" Mr. Ngasa Leg_(;QJ=ck;(;ou~"s$:!1 for the Applicant complainant replied that 1t«y>~~:-,:_~t~ ~~~~f:,;~;:~i? ' . it was not., true th~t. thel dfel not disclose the documents when filing the ·~!;~:~,. :~;~~:~~~;,:,, :;;{!;~> _$) complaint. ,::Rtf*;,s2i1t;!Jt,tfl'af the list of the documents is annexture '2'. On ~.::{~~i}{\\. ?~ '•!;~:;::._. - .. cor1trave@t1~_tJie.f'tq;¢:::Rule the learned counsel argued that the rule does not ·:~~;i;~.-- ;:~;;: '--~~~\~. . prorH~J! the•:ql~#Y to file any document. The Rule prohibit the party to use . ' A . the sam~:t;MJhich ~.~-- was not disclosed (i.e. prohibit the use of documents not di sci osed). They have brought the documents now and in that they are asking the Court to grant then leave to continue using the photocopies. 1 Government Notice No. 106 of 2007. The Labour Court Rules GN. 106 OF 2007 2 ibid Rule 14. 2 I have carefully gone through the documents filed in the record and in view of ·what the parties have submitted I had to read the record from cover to cover in order to satisfy ·-myself that there was a disclosure of the documents now sought to be used by the complainant applicant in this complaint. It is clear that Rule 14 of the Labour Court Rules 3 requires that 1 a document should be disclosed during the pre-trial .-.~SnfE!;rJ ~f=e. _Jf the . . _;.};~:;.~~\;;~ :~;_;, ~:;:;• party does not disclose the documents to be used irr ti{~,:Jrial ·:\h~:f.t he or ~"·<~:,. ~~!;::... . she cannot be allowed to use the documents in tb~:~case, urll~_ss the leave ~ ...l;;:::::~~. . of the Court is sought and granted.. -:-Jf' '.·::¾~::-. . . . •❖ ~,~~:~\\\tt, ':i\:~;f~' A cursory glance on the various af.}n·@~ture·$~Jil@d by the applicant in i .<:~~~i.;:s:'.~~~:•. ~,:::~~<'.' _, .. »~:~:- Court suggest that the documemts ri'.ot fil~g ·,;o\F then were disclosed as . & ' I . . rightly pointed out by Mr. Ng~ja, Leaft:lecr Counsel and pinpointed as ~...~~::,.,. ·:;~. f annexture - MPM2 respectiv~Jy. AH0.:J_IJ~t process·was at the initial stages . ·=t*~~ of the complaint and all pa,r:tf&s..:must have seen the schedule of documents disclosed .•, r~:~~J::'~ . .' Ther~{~¥1fePp~gbf::~:;2Jitounsel that the police had in fact denied to give the appli~9:r;llt_J=~:ij:,:.9~'.~uments even for the purpose of making photocopies ,.❖ :·!:? ~i~_;*;.>. ~-~i.~r~~:>-· . as···:ttJ~Y wet~ ltbe documents) and still are in ·the custody of the police . . ~;~~~;~"~ :~t~;;:X~~; - . .· What frn~~ p@ITce have did is to allow the applicant complainant to make -~~;:;~:~:I~5~~~ .- . . photocopies only and which he has done and now seeks leave of the Court to be allowed to use them in the hearing_ of the complaint. 3 ibid GN. 106 of 2007 The Rule Sis clear that any document (s) not disclosed at the pre-trial hearing may not be used at the hearing for any purpose save by the leave of the Court 3 . . . .· . . . . J In my ·view and for the interest of social justice and the objection of · '3 . the labour legislation esp·ecially the principal objects of the Employment and Labour Relations Act which are interalia:- .· a) ... To promote economic development Jhrough economic efficiency productivity and social Justice. b) To provide the legal framework for effectiv1{Jnd:/il7'4_ ,:.· . •••;::,::.:.. ~❖ ~:~: ·· employment . relations.· and minimum Jts'!:a.q_f!ards\\ .i;,:; •:.: S::·:::.~ ··•,•:~~.. ·•:❖.-:;:•!•' .-;:.~~!•' regarding condltions of work. ·::_~%:- . -:•f f) .. . g) .... : ... I.S. Mipawa . JUDGE. ·· 02/10/2015. . . 4 .. V Appearance: 1. Applicant: F.M. Kwilukilwa, Advocate - Present ·_ 2. Respondent: Emmanuel Safari for 1st and 2nd Respondent - Present · Court: Ruling has been read over and_ explained to the parties as above shown in the appearance. I.S. Mipawa JUDGE 02/10/2015 Date: 02/10/2015 Coram: Hon. LS. Mipayva, Judge Complainant: :-::ffJ?::-. I · ··~\\ ·-:-: : : : :• For Complainant: Mr. KwilukilwaJt~dvocate,:::;t>: - . . it \it~;~ . i* . . Present ··~![<::... ~!:. 1 Respondent: Emrnanuel S~fari fcf,\:l'f~lhd 2 nd Respondent st nd 2 Respondent: -:~\~::,·:_::.'.lt~:~.:~.- . ❖-~"... " 3rd Respondent: ' >\;._ •,:%:, ~,:;} •i~:;~~%:;:~ ~~!~;:,: ~.-. !}(~::• 4th Respondent: Prisent\io·•::p~f-son •;,~l~j~tkt:;::;~~:~;~~l\:;;kjf;: Mr. Safari::::;-;y\/e::;:,pr~~ to be served the documents and let the Court fixed ~!~-'. '~i:::.:.. ·,:,::(:::~ ►:~;:-,', for"2~~earing t?'~\~:• -·~: • '• lie'%,"' :;cs,f" Order: rfe'aring on 27 and 28 November by consent at 10:00 3rd Respondent to be served by complaint. LS. Mipawa JUDGE 02/10/2015 5 . • i.s..•_.;. ,,: ,I .............. ,· · !i. ~ -: · · (COMMERCIAL DIVISION) KCB BANK TANZANIA LIMITED ...... , ................... PLAINTIFF VERSUS ·- DOVE SAFARIS LIMITED ........................... 1 sT DEFENDANT JOHN ATHUMANI MWAKAJINGA .... :........... 2Nn DEFENDANT JUDGMENT Mansoor, J: Date of JUDGMENT- 11TH December 2015 The suit was filed by KCB Bank Tanzania Limited "the plaintiff Bank", against the two defendants, the 1 st defendant being the company incorpotated uncle~ the Companies Act, and the 2 nd defendant was said to be the director of the 1 st defendant- ·.r"·;,;.--t ·••- '"r_• C' V company. The suit wa~ filed for . a decree directing, ~,the ., ., .. defendants jointly and d severally . . to pay the plaintiff-Bank . the amount claimed, THz · 73,575,696.8-1 and Unit~d States Dollars 11,293.23 as at 31 st Q_ctober 2012 with further interest. •' ... at 26% per cent from the date: of the plaint till realisation, and for directing the defendants jointly and severally to pay the plaintiff-Bank the costs of the suit with interest thereon. The 1 st defendant was granted a loan of THz 56,047",150 on 13 th December 2010, for purchasing two motor vehicles. As security for the loan, ori 17th . December 2010, · the 2n~ defendant and one Joseph John Mwakajinga executed the Deed of Guarantees securing the loan. Mr Joseph John Mwakajinga is now the deceased. On the 17th De~ember 2010 the 1st defendant issued a Debenture creating a fixed charge in all the assets of the 1 st defendant to the plaintiff bank to secure the loan. The loan was also secured by a chattel mortgage of the two motor vehicles. The loan was repayable in 36 equal ... monthly instalments of THz 2,169,569.57 in each month. The defendants never paid the instalments as agreed. 2 . :·/,· ,. . - ............. -~· -·,· . ·-·· ___:.:._. _:_ ,, I ,hay~:, seen'· th:.e ·writtep:'· ·statem,~nf ·of defence fil~d;· by'- th~·· . defendants jointly. The defence stated the following: · Paragraph 3-. "that _What is stated in paragraphs:5,6,7,8 and 10 of the, plaint is disputed,.- after the defendants had executed the documents, the Managing Director passed away and no money was thereafter advanced;" Paragraph 4- "that the demands stated in paragraphs 11, 12, 13 and 17 of the plaint are of no use, as no money was advanced to the Defendant;" Paragraph 5: "that the Defendant has never been at any liability to pay the money alleged in the plaint." The written statement of Defence was verified by John Athumani Mwakajila, as the 2 nd defendant as well as the shareholder and the director of the 1st defendant. The issues framed at the Final pre Trial Conference are as follows: 3 J "'·... - :~ ~ ...._ . ...., .,: .. .,,, ~..I,\- ·: ·-.. .·. :. .,,,~t \ ' ~-· . ~.. ·-- . ,· A: whether t,~ere was a credit agreement. between the Plaintiff and the Defendant. This issue has never been disputed by the defendants. Actually the 2 nd witness for the defence Mr Emmanuel John Mwakajila stated that he was working with the 1st Defendant Company as the Operation Manager and that sometimes in the year 2010 the l~t Defendant had executed the Facility with the plaintiff Bank for the Loan amounting To THz 56,047,150. It has not been denied that the l st Defendant applied for a Term Loan in their letter dated 9 th November 2010 (Exh P2), it has not been denied that the Directors of the 1st Defendant signed a Board Resolution ~uthorising the 1 st defendant company to apply for the Loan and enter into a Term Loan Agreement with the plaintiff- Bank (Exh P3). It has not been denied by the defendants that the Term Loan Agreement was executed by the plaintiff and the Defendants (Exh P4). The defendants also "did not. deny having executed the Debenture in favour of the Bank over the landed property comprised in a 4 __.. .,. _ <' .~) ',.:- -..:: ~ .. .- .. __ ·:_~--~ - ~~---.:· ·_'.,_~~-;~-~~'~.:~~- ....-......--· ..... ------ ..--~--.....--·- _- , ,~ ~ > • ' • • • • .-, • , l , • ..., • •·. • ,, • • , , • •, .. . ·~ · ·i··GT·:No.·::lOOB.48'.~-.J>W>t Nb. 36tf;·38/l·:and··3~9/1\ ]316tlfF'·'Mabibo':-:--:-, ,, \l' ~·· ; Area, . D~ . es Salaam and a persohhl guarantee of the 2 nd ~ff ·" defend-ant and ·the Directors Personal Guarantee dated 17 th December..2010< (Exh PS). Thus issue no one is answered in the affirmative that there was a Credit Agreement between the Plaintiff Bank and the 1st Defendants. B: Issue No. 2 is whether there was breach of the Credit Facility Agreement, and if so, by whom? It · 1s the defence case that even though the Credit Facility Agreement was executed, and all security agreements were in place, the Plaintiff Bank never credited the money in the 1st Defendant's Account as the Managing Director., of the 1 st Defendant had passed away in a motor Accident before the money was disbursed to the defendants, and that according to DW2, the money was to be paid directly in the Account of the S:upplier, and that before his. death Mr John Joseph Mwakajila had not yet finalised th_e name ~d the Account of Supplier. The testimony of DW2 regarding the condition that the money ·· ..... · shoulc;I·hav:e 9_een-p~d .qirectly to t}:Ie -Supplier was not proved. · 0 It has been established in the Facility Letter· that the money.• wa·s to be advanced to the 1 st ·Defendant for the·pur~hase of two motor vehicles, and that an amount of THz 56, 047, 10.00 was to be paid to the 1 st defendant. There was no ri:1ention of the condition that the money is to be credited into the . . Suppliers Account. This is a word from the Bar not proved by evidence. It has been shown by the plaintiff that the money ~ was debited from Account No. MG 1101900006 belonging to Dove Safaris Limited on 19 th January 2011, and starting on 3 rd March 2011 some money was being paid as Prin.cipal Arrears Repayments, Penalty and interests. The last payment was made on 3 rd March 2011. It has been shown by the plaintiff that there is ~so Account No. 3300427762 belonging to Dove Safaris Limited and that it has been shown that the amount of THz 56, 047, 10 · was deposited/advanced/credited by the Plaintiff Bank into this Bank Account. The plaintiff Bank has never shown any proof as to why there were two accounts - operating for the sc!me loan, that the Loan Amount would be credited into Account No. 3300427762 and withdrawn from a ··, . . .... ··-~<-:~. ._(";~ ,/~/·> ·- .. -.:.-:, ;,<-:--: ") .. • :.'. ......, · .. \ ' • ... ~ • • M I •" , • ;;.;....,•:,, •• ~ . . •·. . . . different AcGount N6-. MG ·-1101900006:' The·•,pliiintiff ban.k ·his fa~led to show why would ·oi1e"'l6an _be given in-one account but -withdrawn from a different account. Further, the _defendant _r denies. :fo have· known, opened or· operated account rio. MGl 101900006. The plaintiff bank is duty bound to prove the existence of account No. MG 1101900006 and the relationship between the two accounts, and why would ·one loan be operated in two different accounts, and the bank should have brought evidence to prove that indeed Account No. MG 1101900006 belonged to Dove Safaris Limited and it was being op.erated by· Dove Safaris Limited, and that the money was withdrawn b:y a signatory authorised by Dove Safaris Limited to operate the Account. The loan being operated in two different accounts raises some doubt, and the doubt could only be cleared by the plaintiff adducing evidence establishing· that there was a need to operate two accounts for the same loan, and that the money in Account no. MG 1101900006 was being withdrawn by the officers of the 1 st defendant duly authorised to operate the account. I agree with the - submissions of the Counsel for the defendant that the Bank · had known ;,QC'..Was" made ·to· know about the_ death of the ,. •-~!,r ,, ,.. ' • -~ Managing Director of the 1 st Defendant who appeared to have ·· been condu<?ting the ·busin~s~ of the Company ~s the sole proprietor, and t~at the 2 nd defendant, aJthough he was shown to. be the Director and a Shareholder of the 1 st defendant Company, he never operated the company's accounts or he is . not even aware that the company had borrowed money from the plaintiff-Bank. I agree that the bank ought to have given ~ more ·proof that the money was actually withdrawn by either , the authorised officers of. the Company or its Directors or Shareholders, there was no such proof, and hence the plaintiff's case must fail. As for the claim of USD 11, 293.~3, this was not proved at all. The Term Loan Facility was for THz 56,047,150 (see Clause 2.2.1 of the Facility Letter dated 13th December 2010). There is no any other Facility Letter mentioned, pleaded or produced by the Plaintiff showing that the defendants were also granted with a loan of USD 11,293.23, advanced as. a loan to. the defendants. There is on record the statement for the Account '' ', / /,. ..... ·· >v.~"'";"f:,:'>~~,··--,.. ·• ~ ·:. . ,. . - ~··: . ' ·---.. -- --·'· --'---- ,.,, ___ --- . . . ··i·'• '. -No/'3300302498''ahd':'a:n: ,am·ourtt dflJ$D>r1 ,293.23 w~s shbwii '. ;t. ::.;. to be remained urip'aid as at 31 st October~ 2012, but therl'is nothing in· the· pleadings showing that the deferidants ·were gr.anted a facility. in USD at their• USO Account. I did not see ariy relevance of_ this Account and the 1:,oan Agreement, subject of this suit. In totality therefore the plaintiff case must fail for the plaintiff have failed to prove their case on the required balance of probabilities. C: As to what relief the parties are entitled, I would say that as held in· the case of Masot'ele General Agencies vs African Inland Church, Tanzania (1994) TLR 192, the plaintiff's claims are of specific nature, they are specific claims which required specific proof. This burden of proof has not been discharged and for that matter the plaintiff's claims stand dismissed. The suit is therefore dismissed with costs. MANSOOR 9 . ,. ~ -~ . -'.V",-. . ~ . »~,'.IS·.,• .- -.; ,• "II\·.·:. JUDGE·, ..,_ -~•' th 11 Dece~ber 2015 10