20160218 TZHC Dar es Salaam 1

IN THE HIGH COURTl~E-TANZANIA {COMMERCIAL DI'7J:SION)

AT DAR ES SALAAM 1--·-· COMMERCIAL CASE NO.-73 OF 2013 1--- ! I I KCB BANK TANZANIA LIMITED .......... i•••,.:.:••••••••••••••••••• l. .... PLAINTIFF

I I

VERSUS

SUNLON GENERAL BUILDING CONSTRUCTORS LTD 1 _ - ~ _ - . • - -- _ GIMONGE ISRAEL ISAAC NYAIMAGA ........................... DEFENDANT~ 1 - · -· ENOCK NYAMAIGA WAITARA ' - I -- - - 16th October 2015 & 18th February, 2016 - 1---· '1

I

JUDGMENT MWAMBEGELE; J.: ' - The Plaintiff is a body corporate registered under the laws of Tanzania dealing with banking business. The 1st Defendant is also a body corporate whereby - I nd rd the 2 and 3 defendants. are natural persons holding shares in the first defendant and its directors. The Plaintiff's claim against the defendants jointly and severally emanates from a t:'"~ loan facility in t~e tune of Tshs. 'I . - 1:rn,000,000/= advanced to the 1st defe11dant for purpose: of purchasing a ; truck and trailer. It is stated that the facility ·was secured by chattel mortgage, deed debenture as well as Dir~ctors' personal guarantees of the I • nd rd 2 and 3 ~efendants. It is alleged furtter that the said loan facility was offered on the 17.02.2011 and was repaylble in_ 24 monthly installments of . 1 . I .. ·.·--= Tshs. 6,703,783/=. As stated in the plaint, the said term loan was secured by t,r. a chattel mortgage over Scania tractor Doll Trailer No. T 413 BTA and T 226 -~ BSY whereby the plaintiff was registered as the o~ner. The Plaintiff then~~ states that up to 30.03.2013 the 1st defendant's account had an outstanding,- debt of Tshs. 147,258,941/89 the reason whereof she prayed against the'.~ defendants jointly and several'ly, as bor_rower and guarantors respectively for: · (a) Payment of the sum ofTshs: 147,258,941/89 being outstanding debt in the account of the 1st

Derendant and which was secured by the 2nd and ~- 3rd defendants, as at -3ot~ March, 2013; (b)Payment of agreed interest rate of 230/ci p.a from 30th March, 2013 until the· date of full payment; - ( c) Payment of-interests at court's rate of 12%- from the date of delivery of~- judgment and decree uiti~ the date of full satisfaction; (d)In the event _the defendants fail to pay the claimed sums under (a), (b) - and ( c) above, the plair-l~ be .allowed to realize. all securities pledged in:_ secure of the debt due; •-- · (e) Payment of the costs ofM,e suit;· and (f) Any other relief the court will deem just and fit to grant. Through their joint written statement of defence, the defendants deny the claim in the main. It is stated·fhat they had requested for a loan facility in order to acquire construction equipment namely a truck and a low b_ed semi- · trailer from Superdol-1 Trailer ~anufacturer Ltd .(hereinafter referred to as:.. simply "Superdoll'') and .Scania · Tanzania Limited (hereinafter• referred to as r· · simply "Scania'') fpr USO 56,640.00 and GBP 33,759.80 respectively. It is stated further that it was agreed that the Plaintiff would finance 80% whereas 2 .,i

I I I the 1st Defendant was required to pay 20°;J and that the eqwipment were to~ I . : be registered in joint ~ames of the .Plaintiff Jnd 1::-t defendant 1s owners. it:· . . ,. I . It is also stated . by the defendants that the-·80% was -~coked · to Tshs. ~ 128,000,000/= which was directly payable to the suppliers \but instead was · '. I ·- st offered to the 1 Defendant by way of afaiJIJty letter dated \7.02.

2011. The. defence is also to the effect that the defen~ants complied wjth all conditions: · · thereof but th~ loan was not issued to them! as alleged. · 1 · · · By way of a counter claim, the Defendanj further to their 1efence put that . I . . ,! ·. . . . ·. the 1st defendant had complied with all the terms of the .lfacility including paying the 20% of the purchase price !tip the supplier, \negotiation· ffnd; ' applicat.io~ fees of Tshs. ~,280,000/= an~ 1 shs; 2;560,000/ ;_·respectiv~l y~ tot·· 1 the plaintiff as well as insurance prem1u, of Tshs,.. ·'4~-20i7;000/= for-'' the~: ~ equipment. " :•. 1 i :. / : ,:. •.• · . ···:· I . It is further stated that despite compliance; the plaintiff'<faileq to pay the 80%>' I . st of the purchase price per the agreement whereby the 1 defendant failed to~~ take delivery bf the equipment and incurreJ a sum of Tshs: ~13,200,000/; as~·· · · · costs for hiring alternative. equiprnent ~sJwell as loss o:f rtvenue expected : _·. '. •. from letting such equipment at the then p railing rate of Tths .. 9,960;000/; ·. per month effective from July, 2011. l: . . ; · · From the above background the 1st def. ndant prayed fq,r · judgment and ,__ ·. 11 decree on the counter-claim against the pla'intiffJor: ' I, I ! I' ' ~ 3 I ,. .. (a)GBP 6,751.96 (or its equivalent current rate in Tshs.) being 2p% of the ; purchase price for the truck paid to Scania

Tanzania Limited; :; (b)USD 11,328.00 (or"its equivalent at the .current rate in Tshs)being 20% - . of purchase of the trailer paid to Supperdoll Trailer Manufacture Co. Ltd·. I (c) Tshs 4,207,000/= Insurance premium for truck & trailer; (d)Tshs. 20,000,000/= being loan instalments requirement paid f to KCB; (e)Tshs 2,560,000 being negotiation fee paid to KCB; (f) Tshs 1,280,000 being application fee paid to KCB; and (g;Payment of interest. the plaintiff, by way of reply to· the written statement of defence basically . !. reiterates the· contents· of the plaint and further by Way of a defence to the· counter-claim denies the claim putting that the agreed 80% of pur·chase price was remitted to th:,)~pplier on 1'.9.09.2011: Fu~her statement: is to th~ effect that the said 20,000,000/= which was credited fn the defendants' account on 25.07.2011 was withdrawn on 10.08.2011. It _therefore prayed for dismissal of the counter~claim and reiterates the prayers in the p!aint. Mediation was attempted in two sessions but the efforts undertaken by the -_:::_ ·J .. __ ,._$,.• ~ ,· - '• mediator proved futile. The process wa·s terminated and ·marked failed on the 09.10.2013. - I note from the record of the proceedings of the 1st pre-trial conference that the plaintiff had indicated her intention to call a total" of three witnesses whereas the· defendant had indicated six; However, the

record further shows that the plaintiff fielded only two witnesses. Of the said two, Mr. Msuya, 4 . i learned counsel for the plaintiff had infor+dJhe court trati one Sanjay who had filed a witness statemen,t had travelleti tq India .. He t~us, ~n?pposedly applied to tender a witness .statement of ~nother witness iri lieu thereof but none is appearing on Tecord. There f re on recor~ Tly .tv,,o witness statements for one Paul· Mohamed PW1 and"-Lawrence Michael Nyalu. PW2 . . .I . I .· I,: ·· -· which were marked as PWS1 and ·pws2 respectively. 1 · -- - I: I On the other hand, the defendant instead, fielded a total of three witnesses. II · · I · · namely Gimonge Israel Isack DW1, Enock Waitara (DW2) _and Godwin Rwegasira DW3 whose witness statemen,b · were admi1e~ and. 111arked as DWS1, DWS2 and DWS3 respectively. Though their testimonies-in-chief I appear to be windy, I will refer to the same in .the cour$e of cq_mposing ,this ; judgment. fhe issues which were framed! and .recordedjfor/ d~t~r~inati;n.,.of. . • this matter by this court areas follows: - -~ : ,· I . .• . -·', ;-<<;:~,/t.-{id ,. . •;: ,~ (a)-Whether the plainti_ff _fulfilled its. obligation. .ofJ+riA~nciri_g. ., :· ··: . ' - the . first . . . . . defendant's acquisition ofthetruck and trailer. • -. , . -~ · · 11 .· • I.. · , st (b)Who between the plaintiff and 1 de~endantis in bre.a~h: of con,tra~t. (c) To what

extent is/are the breaching parties liable. I .! . , . · (d)To what relief(s)·are the parties entiiled. ·: ::_·1- .Before -I delve into . the issues, there are two I •impo~nt . ~a~ers.which . . I wish• .. to dealt with at the outset. The first on~ relates to the 0ritten concluding - . •. ·. . i ·.. · remarks ·filed by the learned counsel for the parties aft~r ~he closure of the 11 · · I • -.. , · hearing. The learned counsel were allow~d to fi:le their: c1dsing submissions. :,... II · : - · · They dutifully did so. Upon perusal o~ the defendant's counsel closing I . . ... submission, it .became apparent that it is pff-standards req~ired -in this court.· ,. - s I ., 1 '1 ·.: •. - :,t .. '. .i, The document contains a total of 39 pages .. This is in utter violation of rule 66 (2) read together with. rule 19 of the High· Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of .2012; In terms of rule 66 (2) any party required to file ~any document including written submissions must . ensure that such document conform to rule 19. The said rule, among other requirements makes it mandatory that such document should not exceed 10 pages and any contravention of the rule leads to rejection of such document. Since I held in Ernest· Nduta · Nyororo Versus NBC & Another, Commercial Case No.l of 2015 (unreported} that compliance with that rule is an imperative function to be

performed· by the pleader and rejection is an imperative course to be taken by the court following noncompliance, .and further that non inspection and rejection of such document at the registry cannot insulate the document itself from the- dire consequences provided by the rules, I will proceed to reject this written submission by the defendants' .counsel and proceed_ to order the same be expunged from the record. · The second matter relates tb the Contract in question whose breach and investigation thereof is at the. heart of controversy in the present case. From· the · pleadings, testimonies and evidence tendered, there are two sets of contracts. One is between· the plaintiff and the defendants. In this, the plaintiff through a Banking facility (Exhjbit P2) offered, and· the defendants accepted a Term Loan Facility of Tshs. 128,000,000/= for purpose of purchasing a Truck and-Trailer. Among the terms of the facility whose breach forms the first issue in this case relates- to the mode of financing or disbursement of the said facility amount. . Under Clause 1L9 therein, it is. provided that the customer (First Defendant) shall meet (contribute 20% of the total costs). This is not clear though as to which costs between the costs 6 i I ! i - for the Facility and the equipment to be purchased. Fromilthe pl~adings as · well as testimonies and evidence tendered!,

itappears.t.hatlcosts referred to - 11 . , I - · · 1 are those for the purchase of the equipme.· nt as the plaintiff! was supposed to· . l[ . . cover the rest 80% of the full purchase prite. · . I I · ,. -- · The second set of contracts o~ agreements~ include those :be~ween th~:_plaintiff _ I/ , S, and Superdoll, and th~ plaintiff and ~can11a who w~re. tte railer a~d truc~s' manufacturers respectively. ·· On this urnder?tandmg it ..appears: that the plaintiff was supposed to · make direct )ayment to both lsuppli_ers upon: a condition that the suppliers should confi,~m their recei;pt lof- the said 20% .. balance from the defendants a$ well as re~istration ofthJ t~rir- .~nd the truck in joint names of the· plaintiff and the.· first def~r]darit. : ,Hen~e, -~ the· investigation of breach of the terms an~ extent iher~of,J revolves aroun¢, those two sets of the ·Contracts in this easel.I.. · .,-: · .. I --- · , -• . - · l l1······· 1 .. Now back to the issues; t~e first issue i whether the ~l~i~ti; financed the. I acquisition of the 1'' defend1inttruck ,md trailer? In an~wef ·to this issue; ttJe · testimony of PWl is to the effect that, he knew. the d~fe~dantthrough the· documents at his disposal in the normal ,cburse of undertakj-r,g his duties .as a credit recovery officer of the plaintiff. Thrt vide. a boarm; resolution (Exh,_ Pl) the defendants had resolved to borr1w ·a term .

1JaQ I facility_ of ·Tshs, , . ·' .. 128,000,000/= from the plaintiff in order to finance the pur~hase of truck.and the trailer (herein also the. Equipments). It was his furtntr state.ments that the requested money was credited intd the 1st Defendant's . account No. . . I ' I 3300245044 on the 19 ..08.2011 and fJrther- that, iL was a term of the · · I I . agreement that the amouQt was supposef to be directly pJid to:the suppliers . .!- i . I ! • I t who are Scania and Superdoll whereby the_,defendant was to meet 20% dr the total purchase price. _ I!: E . He also told the court through his testimony-in-chief that a sum of Tshs~ 73,858,560/= which is 80% of the trailer purchase price was r:emitted to_ Superdoll by way of swift transfer and Tshs. 50,312,250/= as 80% of the purchase price for the truck was remitted to Scania also via swift transfer. T~i-- corroborate his statement he tendered an account statement for account 3300245044 as exhibit and was admitted and marked as Exh. P3 ar:,d told thi~ · court that the counter-claim therefore has no merit. The second witness PW2, stated in that respect that he is a sales executive at Super doll. His evidence was to the effect that he was approached by the · . defendants to be provided - with a proforma invoice as they had. wanted to purchase a trailer. ' He also stated that he learnt that the defendant had processed a bank

facility from the plaintiff to purchase the said trailer and that· the plaintiff on 11.02.2011 communicated her undertaking to ~nance the purchas~ by payi_n~ 80% of the price. He went on to testify-that on the 19th August he confirmed that an amount of Tsh. 73,858,560/= amounting to part payment.of the 80% was credited into the Manufacturers' account as price for the purchase of the trailer. It was his averment that Superdoll manufactured the trailer, registered it ir joint names of the first defendant and the plaintiff and submitted th~ cards to the bank as agreed. -He stated that the borrower or· first defendant had not 8 -" ' j met his obligation of paying the 20% as hir part of t~e tlar.Qain and the trailer is still lying at the Manufacturer's yard.. I .] :; . , ·. ' . . I . As for the defence, Gimonge Israel Isaqc. Nyamaiga O>Wt who. introduced .• , . . i I i ' .; I I himself as the Managing Director of the first defendant, . I through .his . , testimony-in-chief (DWS1) testified. I 1 With respect to the first issue, his w re statements that sometimes in November 2009, the 1st defendant had applied for ·a lo~n fa_cility of Tshs. . . . . . ·. ' I ..· 130,000,000/= from the, plaintiff for pu fhasing water: sPraying trucks a.nd · vibrating Roller for its Road projects. re stated that Jt I took a long time . before the plaintiff could approve the sare that by thel ti]!! of

approvi;II the•· 1st defendant had secured the equipment.thr:pugh finance by _another bank:. , , • . •• , 1 ., • I · I· I . . ~ -~ He states also that, the first defendant wrote to the plaintir to ihfor111_her so: and ask her to finance her acquisition o_f FLow bed trai;ler from Superdoll for · i I I USD 56,640.00 and,a Truck from Scania f©r GBP at 33,759.80. . . . . . i· . . .• I I He further told this court that the plaintiff approved the application on the · · - I I basis that she would finance 80% of .the price for the tr~i,er and 'truck from each supplier. It was his further statenJent that, the condition was that the · - plaintiff could release the 80% upon confi~mation from 8otH suppliers that the · · · i · I I · · · first defendant had already paid the 20%),,palance to each of them. _ . .. . j i . st DW1 then told. this court that,: the 1 de ndant accord:nglly accepted a term If loan facility of Tshs. 128,000,000/= as tre ~0% for b~th ,the truck and the trailer but instead, the plaintiff paid only USD 45,312.00 as 80% of USD . I I . I 9 56,640.00 for the trailer to Super doll through its account at BOA bank (T) . Ltd. -It was his further statement that the plaintiff failed; neglected .or refused to discharge in full the purchase price of 80o/o to Scania Tanzania the GBP · --27,007.84 as a result of which the Scania refused to release the truck to the 1st defendant.

- .He went on to tell this court that de.spite demands by the 1st defendant for the bank to enhance the loan to cover up the gaps caused by· its miscalculations in conversion of the currencie~ to Tshs, the plaintiff adamantly refused claiming that it had released the full amount of loan. For DW2 his testimony in chief was a re.iteration of the statements by DWl. They are all. to the effec~ that the plaintiff had agreed to issue a loan facility by making direct payment to the suppliers but she failed to honor such obligation by failing to discharge the full amount to Scani.a. As for DW3; his were statements pointing to_ the same facts. He told this . court that, as Sales Manager of Scania, he received a letter (Exh. D5) from · the plaintiff expressing their redness to finance 80% of the inv<:>~ice for the - ., .;,= .. purchase of the truck by the first defendant from his employee. He said that among the conditions expressed by the plaintiff therein were that Scania was - supposed to manufact_ure the truck, have it registered in joint names of the first defendant and the plaintiff as well as ensuring that they had received 20% of the purchase price from the first defendant. It was his averments_ that accordingly, having fulfilled the said conditions, including - . receipt .. of the said funds from the first defendants he wrote a letter. (Exh. D6} to the plaintiff . .I . . to that

effect but until the_ day he was testfying the plaintiff had rl'ever mi:ld.e: such payments to Scania for the truck as ier the letter. · · · · , ·· · ·· Before me, are sharpty opposed statements· as well as pieces of evide.nce · tendered by j:he parties .. As I have inti,ated, both ar~ +king to establish their respective cases m so far as breac1 of the fac1111 lerer IS concerned. The plaintiff in, the main, claimsthe loan uepayment havrng,fulfilled tts part of the bargain by issuing the said t~rm loan facility to the defendants .. · GI) the. other hand, the defendants, by way of a cou nter-claim, Isef k to ·recoup costs 1 incurred for purpose of obtaining such facility, claiming iril th e main that it \f\!aS · 1 the plaintiff who failed to honour its partrrthe bargain,byjtailing to disburse · the monies in full amount to fac1l1tate · uhe purchase ~f the truck and the • trailer. In effect, it is claimed that ·only Jhe .·trailer was :-fin~ncedr ar:id not the truck hence failed to take delivery of the tl~I ailer as itcoul~ n[b_•.t operate without . the truck. . ., , •,'; .,, ._ This court is called upon to determine as. between the LJ, who is .in ·breach . of the facility letter as well as other set or agreements as between them.' Jo . . . I I . do so, I will first examine, as guided ·by the first issue~ wrether the plaintiff · discharged its· obligation to finance the first

defendant's i acquisition ;Of .the truck and trailer. i' I note from the pleadings and evidence, that the sup~liers of the· truck and trailer were -different and distinct comp~nies namely !sc1nia -and Superdolr · respectively. Despite their distinctivenesJ, they had all agreed to ,supply the j said e~uipment on t~e same conditions.: They were a11 ·sf pposed to ensure · that the equipment supplied is registere0 in joint names of the plaintiff and first defendant as well as being paid 20% of the total purchase price by th~ · first defendant. Accordingly, to unravel the question above posed, I chose t~ deal with facts pertaining to each supplier "Separately. This approach wiltt certainly ease my task. - ' -· At the outset though~ I wish to point out the fact that always in evidence, it i's not .the number of witnesses that · counts, 'but the weight and credencg thereof. Guided by this principle, I choose to· start with finance of the trailer from Superdoll. The sub-question I ·pose to myself here is whether the plaintiff discharged its obligation of financing the acquisition of the trailer. The plaintiff states that it had performed its obligation by Jirst crediting the first defendant's account with a total of Tslis. 128,000,000/= on 19.08.20lf·· being the term · Loan Facility for purchasing the said equipment. A bank statement to that effect was tendered as Exh. P3. Secondly and

particularly to this sub-question is the statement by the plaintiff showing that on the_ l 9.oe.2011 she credited a· total of Tshs. 73,858,560/= to the said trailer . -- manufacturer (Scania) through swift transfer bf the said amount from the fir~ defendant's account. This was corroborated ~by the testimonies of both PW!' . .. i I · ; I and PW2 who is a Sales executive of Superdoll as well as the said Exh. P3 i (which is the first defendant's bank statement for account . number 3300245044.) This is in consonance with the statements by both DWl and DW2 to the effect that the plaintiff had paid a total of USD '45,321.00 as the 80% of th~ trailer price to Superdoll through her bank account ~eld at BOA Bank. Despite the fact that the defendants did not lead evidence in calculation as to the 12 equivalence of USO 45,321.00 in Tanzania Shillings so as to establish .wheth4f I 1 it is the same amount of Tshs. 73,858,560/= claimed to have been .paid, b.V th_e plaintiff _to_ the said Supplier, it at le~st points to_ t~e ~act in agreemen_t · with the pla1nt1ff that the 80% of the purifhase of the tra1l~r was:.pa1d for by the plaintiff. .This therefore, answers thf first sub-issje iln the affirmativ~~- that the plaintiff financed the acquisition 1:of the trailer fron¾ Superdoll Trailer .. II I I Manufacturer Co. Ltd. · · · .· ~::- · ; I · -. '_ ;;: ' ' · -,, -__ i -1- ; · ·_ - - The next

sub-issue related .thereto, wo~ld be whether tFle first defendant discharged her obligation of contributing tre 20% purchase! price of the· trailer. to Super doll Manufacturers. This is a bertinent questio~ in so far as the 11 defendants' counter-claim is concerned. I · 1 • , • .- , ' ·. ·-·•r. - : .I It is alleged in the joirrt written statement)of defence·. ari?" i1 the counter-clair11_ that indeed the first defendant paid a total of USO 11,320.00.as· 20% of l:JS[J 56,640.00 for the acquisition of the trailbr as a dischargJ oLher obligation. . (see paragraph 15.2 of the counter-claim_~- To back .up this' statement; DW1 .... · · · ,· ', :.

II I :i 1 I I at paragraph 9 (ii) of his testimony-in-chief states that th~ first defendant i~ · . fulfilling her part of the bargain paid suJh amount. after ~uperdoll informe6 _ the plaintiff of such compliance requirin~ .her to dischlarge her :-part of the . i I I promise. II - - I' I have noted that the plaintiff does no{dispute or o~herise question the • defendant's discharge of such obligation [(see paragraph ~7 of the plaintiff's written statement of defence to the counter-claim). That notwithstanding, It 1 is pertinent to lot>k into the veracity therep f, as it partly ~or~s the- basis ofthe . counter-claim against the pla·intiff. 1 1 131 j! .I I :i To corroborate this statement, the defendants' witnesses; that is, DWl, DW2 and DW3 testified to the effect that the first defendant had indeed discharged the said obligation. However, apart from such mere statements, there is not any tangible, let alone credible, evidence to back up the same. Thus, given thenature of the transaction in question, explanation and evidence as to the mode of payment whether cash, bank transfer or by cheque was, necessary. No statement in that regard was made, arid nothing like receipt or any form of acknowledgement of such payment from the first .defendant was· rendered by the said Superdoll.. DW-1 ·and DW2 put that through a letter, Sup·erdoll had informed the plaintiff that the 1st defendanthad

complied with the.conditions for approval of the payments by paying the 20% to her. DW-3 testified to that effect too. Unfortunately, this too remains largely a mere statement as no such letter was tendered in court to prove the same. It indeed does not augur weil in my mental faculties that the first defendant could rely on the said .letter as the .only document to prove such payment of monies without at least procuring tangible and specific documents such as bank statements_ of-either Superdoll or indicating receipt or the first defendant indicating transfer of the same. As the law has it, proof of a claim is none other than by documentary evidence through which the court will be able to assess the definite amount claimed - See Isaya Bukakiye Simon t/a Isaya · Agrovet Vs Dickson Msula and Grace James Msula, Commercial Case · no.10/2011(unreported). My perusal of the case reco_rd landed me on Annexture D6 to the joint written statement of defence and counter-claim which was also referred in the said 14 I defence but never made it to the list of ex ibit~ in the: co~rt ,docket. Assuming that it had, it could not have render~d an~ as$i$tance,eitherl becc:1use, faint as it appears, no single stat~me11t therein_ confirms or poirn~s · to receipt of moneys by Superdoll from the first defendant.. Instead, all. what can be 1 gathered therefrom is rather informatifn of Superdo11' s

completio~ of manufacturing the trailer and registration_ ©f the sam~ into jpint. names of the. plaintiff and the first defendant, as well bs reminder to the plaintiff of her obligation to discharge the 80%. f It is ow a trite pr/ncible in° the law of evidence that an adverse inference will bel drawn against a party who fails to tender a material document or procure a nnaterial witness within, his reach. . i I It is for the above holes in the defendants' case in this :respect I ~nsw,~r the ! second sub-issue in the negative. . .. I. The above said and done, I V'liU now tur j to _the obligatio~ of the parties in relation to acquisition of the truck from Scariia. The guiding sub-issu.es .are ., . the sa~e; one, whether the plaintiff dischf rged her oblig/lti~n of financing the. · • acquIsItIon of the truck- from Scarna., andl two, whether the firs.t- _defendant, . •· · . discharged her obligation towards acquisition of the truck:from Scania_. In respect of these two sub questions I have. yet two sets of sharply opposed statements. The plaintiff states to have disbursed a to tal of Tshs. 50,31/2,250/= to Scania. 1 being the 80% of the purchase price fo1 the. truck. PWli tendered a bank -statement (Exh. P3). This statement -dewicts ,a transaction debiting the first I . defendant's account through outward TT cof such amount. orlI 02.09.2011. 15 I I Notable from the defendants' joint

written statement of defence is the statement to the effect that such a bank statement was fictitious (see paragraph 8 thereof). Apart from such mere dispute of the statement, th~ defendants did not produce any other bank statement representing true and genuine transactions in their account. By not doing so, the· defendants failed to bring into play the principle of he who alleges must prove enshrined in section 110 of the Evidence Act, Cap. 6 of th·e Revised Edition, 2002. Instead, Godwin Rwegasira DW3 who introduced himself as .sales manager at . Scania, claims through his testimony in chief, that despite their informing the plaintiff of Scania's receipt of the 20% payment from th~ first defendant, and their i·nstruction vide Exh. D6 to the plaintiff to pay the balance; 80% of the purchase price, the plaintiff did not do so. This state of affairs has seriously strained -my mind in -determining which among the two versions of the story should be accorded weight and to what extent. As good luck would have it, a deeper scrutiny of their pleadings, testimonies as well as evidence they both tendered, led me to tie up the dots and make out a chronological account of their affairs and a logical conclusion on the questions above posed. I shall demonstrate. According to DW3, after receipt of the 20% from the· first defendant, Scania informed the plaintiff that the conditions had been

fulfilled and therefore, was required to pay the 80% balance for the total purchase price. The letter (Exh. D6) clearly indicated through which bank account was the payment to be made as well as more details of such Bank. Let the relevant part of the said letter (Exh. D6) speak for itself: 16 ,, " ... Please make direcj: paJ~:nt to. our Stjnbic . I. . . I bank (T) Ltd. GBP a/c n~.03(400/050702/01 ;wift_ Code SBICTZTZ Industnal,:ffiranch -Dar es Sal aam . If 1 1- . .. . ' . I , Upon casting a glance 011 Exh. P3 ·I fpund that sorejamoun~ of Ts~~.: 50,312,350/= was debited by way of st ift transfer tHro gh the said swift code SBICTZTZ from the 1st Defendant's ··aq;ount held at Jhe pla_intiff's_, banl<_ through which the loan. amount of Tshs. 128,000,000/t hkd beeQ iss~ed to her. . . , . . . • , r' • ; ,.... -· As intimated earlier, the defendants hav~ failed to addjc~ bette'r evid~~ce t:e: I . . . .·. controvert that piece of evidence tenderetlI by the . plaintiff. . Thus,· documents . like the Scania's bank statement or firsL~efendant's ot~er ~an_k .statement 1 of the same account as at the same dates with that pro6ucbd by- ·th~ plaintiff were never .tendered, neithe~ did the defendant dJn;, maintaining s~ch I I account at the plaintiff bank. I • Further to the foregoing, DW3 testified ~hat Scani,:l receiy.ed a -l~tter .dated 11.02.2011 fr~m- the plaintiff containing. !~.he

conditions' to I be fulfilled by her ,before the plaintiff could release 80% of the purchase, pri~e of the truck. -It was his further averment that upon fuli111ing the same, ~hey informed tbe plaintiff through a letter dated 20.06.2011. Deductively,, the said swift transfer transaction via the said swift code made o~ d2.09.2011 by the plaintiff bank in favour of Scania appears to be a · ~esponse tq, such information from Scania. 17 I Thus, put in summary form, the 9Iaintiff expressed her conditions of payment of the 80% to the Scania vide a .letter·dated 11.02.2011. By a letter dated 20.06.2011, Scania expressed her compliance, whereafter by 02.09.2011 the plaintiff discharged her part of the bargain .. This clear picture, has been. . . painted by the facts as they unfold from the above episode and further solidified in my mental faculties by lack ot credible evidence- to make a contrary inference. At this juncture, I find no credence in the 1st defendant's claims as well as those by all 3 witnesses to the effect that the plaintiff failed and/or-neglected to discharge its obligations of paying the 80% purchase price. I have noted the question of insufficiency of the Tshs. 128,0001000/= issued by the plaintiff to the 1st Defendant as raised by DW1. through his witness statement. The argument seems to be that the plaintiff had based on wrong calculations of exchange rates of the

total price of the equipment which were all in foreign currencies. It is claimed that out of such wrong calculations, the plaintiff issued ·amount of money not -adequate to discharge the purchase price in full. When asked through cross-examination, PW1 stated that any difference that occurred were supposed to be covered by the defendants themselves despite 'their facility· letter being silent on that matter. In my considered opinion no matter what the argument is, I have failed to affirm this defendants' concern over insufficiency. of the funds. This is Glue to want of ~oncrete evidence to substantiate the same .. Thus, apart from m_ere statement to that effect, nothing cogent was offered to explain the alleged 18 I I variances or deficit; From a prudent perion's view, excha~ge rates of each foreign currency (_the GBP a_nd USO) o~t~ining by thfn ic~uld haye. be~n offered in court with calculation as to (=qu1valence, of the satd currencies in . . . II . - • I . Ta·nzania shillings and what exactly Wps fhe balance whic~ wps_ not paid to the suppliers. For all these_, this court wasj left clueless ·af d tenc~, factual and mathematical as they ·are, Jud1c1al hunch wIas an 1mposs1ble -exercise. - .. l .~.: : . . I. I 1 • I . The above undisputed chroriolbgy of everts as depicte~ br the episodes as well as the holes identified in the defencJI case, leaves butlI one single

logical . •i i conclusion that indeed the plaintiff dischlarged her obligation. of paying -the 80% of the purchase price to Scania Tanzania Limited. / . · I l The last sub-issue in the first issue is wh therthe first tJef~ndant di~~harged its obligation of discharging 20.% of the PJrchase -price fJr. t~e truck to Scania. - . I . I I ... _, . - t ; _.i _; . . , As I have- intimated earlier, the plaintiff•d~es not dispute: .nor acknowledge the same. Accordingly, no evidence was fo~hconiing fro~· t~e .Plaintiff in that respect. All the court has are statements by the first defehdant throl:lgh her pleadings as well as testimonies of alr-thi"~e witness cof bbrateP by the Exh. ·06. . 1 Despite there being no dispute or conJry evidence ffol the plaintiff, this piece of evidence as tendered and relied !n 'I by the first def~ndant · I leave much to be desired. First, as I have expressfd my view hfreiinabove, given the nature of the transaction, it was pertinjf nt :for -the defe7dants·_ to produce . details as to the said payments, .particu,larly the date of I payments, and/or date of receipt of the payment by the Sc~!nia, the mode 'of ~ayment as well as 1 I 1 , I I 19 i . i • I . j I bank statements of both first defendant and the recipient of the said monies. I strongly maintain the view that if indeed the payment was made,,:then these details must be available and in custody of either

or both of them. Once again, the absence of such details from the first defendant ts sufficient · to draw an adverse inference to· the effect that it did not discharge its ---obligation of paying the 20% to Scania. ·He'nceforth, much as ;there is a testimony by DW3 who is an employee of the said Scania as well ·as Exh. D6 which is a purported acknowledgement of receipt of the said amount, this court is far from being convinced to affir:m the same. Assuming from another angle for the sake of argument, that the said amount equivalent to . 20% of the purchase price was indeed· paid by the first defendant, the logical and immediate question flowing therefrom would be, . why then did she fail to take delivery of the. truck? An answer. to this question · .· is crucial, given my finding on the .basis of available evidence that the plaintiff had discharged her part of the bargain by paying the 80% amount to Scania. Accordingly, the defendants had the evidential· onus to give such answer, a . task they left unattended to on closure of their case. It is from the above analysis I find there to be nothing concrete from where to infer breach· on the part of the plaintiff. I therefore answer the first issue in the affirmative. The second issue is who between the plaintiff and the defendant is in breach· of the contract. As I pointed out at the outset, there are two sets of the. contracts.

The first one is between the plaintiff and the defendants, whereas 20 the second one is between the plaintiff and the two supplier~ of the 1 equipment. Gladly,. from the foreg~ne ai alysis, the anrw~r. to)his issye .is · crystal clear. By all purpose· and _intent~ the_ defenda ts ~ave Jointly and 1 severally breached the contract, by failure: to repay the loan amount plus the interests thereon as per the terms of the term_Loan Fa~ili~. ! · , That, in my considered" view, and in answir to the third irsuel' is the extent to . which the defendants are jointly and sever~lly l_iable. · 1 • • - · ._• · As fo~ the fourth issue, to what reliefs ~re the partie~ e~t;tled, the stance herein depicts a total. demise of the co~n.ter-claim claim las well as reliefs, in . the success. of j claimed therein. This 1s because; they entirely depended ' ' ·. the claim. · Eventually, the plaintiff's claim succeeds !and the fqllowin pr,Q~~uncements I carry the reliefs I deem fit and just to grc;rnt: 1. Judgment is hereby entered for the :plaintiff; · . t 2. Counter claim by the defendants is• ereb.y dismiss~d .in its. etirety; 3. The defendants shall Jointly ar.id sevfrally pay the plaintiff: i. a total of Tshs 147,258,941/89 being outst~ndlng principal sum being outstanding debt in the f ccount of th~ fiJst defendant and rd th which was secured by the 2nd anti 3 Defendan_ts, as-at 3,0

march, 11. 2013; li I l Interest on the principal sum a· ove at the agree~ commercial rate of 23% from the date of filing this suit to the d~te of this judgment; 21 i :: iii. Further interest on the decretal sum at court rate of 7% per annurf:i from the date of this judgment till final and full satisfactiori; and iv. Costs of this suit. Order accordingly. DATED at DAR ES SALAAM this 1st\day of February, 2019. J. C. M. MWAMBEGELE

JUDGE r.· ' i. , 22