KETAN KUMAR VINUBHAI PATEL VS STELIOS TSICHLAS COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 77 OF 2023 KETAN KUMAR VINUBHAI PATEL................................................. PLAINTIFF

VERSUS STELIOS TSICHLAS....................................................................... DEFENDANT

JUDGMENT Date of Last Order: 01/03/2024 Date of Ruling: 26/07/2024 GONZI, J. By way of a Plaint, the Plaintiff sued the Defendant praying for Judgment and decree that: a) Payment of USD 295,000 being the sum outstanding amount of USD 250,000 and interest of 9°/o per annum which accumulated to Forty-Five Thousand United States Dollars (USD 45,000). b) Payment of interest on the outstanding amount computed at the rate of 18% per annum accruing from 11th May2021 to the date ofJudgment. i c) Payment of USD 5000 being the cost incurred during follow up of the debt. d) Payment of Court interest of 7% on the decretal sum from the date of Judgment to the date of full payment. e) Punitive and exemplary damages as shall be assessed by this Honourable Court. f) Payment of General damages as per Court discretion, g) Costs of this suit, h) Any other reliefs this Honourable Court may deem fit andjust to grant. The basis of the Plaintiff's claim as deduced from the Plaint is that the Defendant, being a businessman and investor, borrowed money from the Plaintiff a sum of USD 350,000 (Three hundred Fifty Thousand United States Dollars only) so as to carry out business activities of casino, gaming and related activities in Tanzania. It was agreed between the Plaintiff and the Defendant that the loan would be repaid after a certain agreed time but after the lapse of the agreed time, the Defendant

repaid only USD 100,000.00 in cash to the Plaintiff and failed to repay the remaining USD 250,000.00. It 2 was stated by the Plaintiff that on 11th may 2021, the Plaintiff and the Defendant entered into a Debt Settlement Agreement by which the Defendant agreed to repay the outstanding balance in installments. The Debt Settlement Agreement was tendered in Court as Exhibit Pl. In terms of Clause 1.3 of the Debt Settlement Agreement, the Defendant committed himself to settle the outstanding balance and the accruing interest of 9% per annum within 9 months from the date of signing the debt settlement agreement. From that date to the date of institution of the suit the debt had accrued interest of USD 45,000.00 hence making the total outstanding balance of USD 295,000. Upon default by the Defendant to repay the amounts due, the Plaintiff sent to the Defendant a Demanding letter on 25th May 2023 through his lawyers A&D Law Attorneys demanding for immediate payment of the outstanding sum and interest within 7days of the letter. The Demand letter was tendered in Court as Exhibit P2. Upon Defendant's failure to repay the loaned amount after the demand letter, the Plaintiff instituted the present suit against the defendant. In his Written Statement of Defence, the Defendant stated that there was no explicit or mutually agreed upon time line for the Defendant to repay the borrowed funds

and therefore the terms of the loan were flexible and 3 subject to changing circumstances. The Defendant stated further that the delay to repay the loan was due to unforeseeable circumstances which affected the business of the defendant which significantly affected the Defendant's financial performance and thereby occasioning losses to the Defendant. He stated further that he has not neglected the duty to pay the outstanding amount but he is still committed to resolving the outstanding amount and he is ready to take the necessary steps to achieve that solution. He admitted failure to meet his obligations as per the Debt Settlement Agreement. On 14th December 2023, the following two issues were framed by the Court, after engaging counsel for both sides, for determination: 1. Whether there is a breach of Debt Settlement Agreement by the Defendant?

2. To what reliefs are parties entitled? The Plaintiff, presented one witness Mr. Ketan Kumar Vinubhai Patel who filed his witness statement and showed up for cross examination during the trial. The Defendant's side also presented one Witness namely Mr. Stelios Tsichlas who filed a witness statement and attended the Court virtually from South Africa, for cross examination by the other side. The Plaintiff tendered 4 two exhibits namely th£ Debt Settlement Agreement of 11th May, 2021 and the Demand Letter of 25th May, 2023. They were respectively admitted as Exhibits Pl and P2. The Defendant did not tender any exhibit. Essentially, the Plaintiff's witness testified via his witness statement and oral testimony during cross examination in line with what was stated in the Plaint, on how the Defendant had borrowed from him USD 350,000 so as to finance the defendant's casino business known as Sea Cliff Cassino which is situated at Sea Cliff Hotel having rented in the hotel premises owned by the Plaintiff. He testified on the failure by the Defendant to repay the loan hence prompting the Plaintiff to make him sign the Debt Settlement Agreement in the presence of an Advocate who witnessed the Defendant and Plaintiff execute the Debt Settlement Agreement by which the Defendant promised and undertook to repay the loan with agreed interest in 9 months. He testified that by 25th May 2023,

the Defendant had failed to repay the loan and therefore the Plaintiff hired lawyers to demand the outstanding sum, but in vain, hence the suit. The Defendant in his witness statement and testimony during cross examination, testified that he owns a company known as Sea Cliff Casino 5 Limited that has been renting at the premises of the Plaintiff's Company for several years and that the Casino business was making good profits. The defendant testified that the Plaintiff became greedy upon seeing the soaring profits of the Defendant's business and therefore started to demand more money at the threat of ending up the lease agreement which could have occasioned huge losses to the business of the Defendant and his company. The Defendant testified that the Plaintiff forced him to pay extra money which is un-accounted for in the books of accounts or risk termination of the lease. The Defendant testified that in the event the lease was cancelled and they moved to another location, the Defendant's business would incur losses and expenses 15 times the amounts being asked by the Plaintiff. Therefore, to save his casino business from collapsing, the Defendant acquiesced to the demands by the Plaintiff and agreed to pay him the amounts demanded. He stated that with respect to the Debt Settlement Agreement, he signed it under threats and at a surprise without opportunity to consult anybody.

The defendant testified that he signed the Debt settlement Agreement under coercion and duress and that is why the agreement does not show the underlying transaction leading to the Defendant's agreement to pay the Plaintiff the agreed amount of USD 350,000.00. He testified that the 6 agreement does not show the time of the accrual of the money nor the source of the so called long overdue outstanding sum from non-operation of the business of Kilimanjaro Casino Limited. Upon closure of hearing, counsel for both sides made their closing or final submissions in writing. The Plaintiff enjoyed the services of Mr. Dickson Paulo Sanga, learned Advocate. The defendant enjoyed the services of Mr. Denice Tumaini, learned Advocate. Mr. Dickson Sanga, learned Advocate, submitted that it is not disputed from the pleadings that parties entered into a Debt Settlement Agreement as per Exhibit Pl. He argued that it is a cardinal rule that parties are bound by their pleadings and therefore a party is not allowed to adduce evidence that is not pleaded in his pleadings. He submitted that in case a witness provides evidence contrary to his pleadings, the copurt should ignore or expunge that inconsistent evidence. He relied on the case of Charles ML Mbusiro versus John Bunini, Land Appeal No.6 of 2021 decided by the High Court of Tanzania for the rule that under the principle that parties are bound

by their pleadings, the Court is enjoined to ignore any evidence which does not support the pleaded fact or inconsistent with pleaded facts. Mr. Sanga, learned counsel submitted that the allegations of coercion and duress made by the defendant during testimony 7 in Court, are not borne Out in his written statement of defence which means that the Debt settlement agreement is valid and binding to both parties. He relied on section 37 of the Law of Contract Act CAP 345 for the rule that parties to a contract must perform their respective promises. Mr. Sanga, learned Advocate submitted that in Civil Appeal No.74 of 2019 between Philipo Joseph Lukonde and Faraji Ally Saidi, as well as in Misc. Civil Application No.79/2019 between Mawalla Advocates and Fosunwood Tanzania Limited, this Court insisted that once parties have duly entered into a contract, they should honour their obligations under the contract and they should act within the signed agreement. Mr. Sanga, learned Advocate submitted that the Plaintiff has pleaded and specifically proved the specific damages. He relied on Exhibit Pl, the Debt Settlement Agreement for the argument that the Plaintiff has substantiated the claim of USD 295,000—being the outstanding sum as well as 9% interest per annum agreed therein on the outstanding sum. He submitted that the 18% commercial interest is justifiable given the fact that the sum

involved is huge and it has taken long time without being repaid. 8 He submitted that the 7% Court rate of interest is also justifiable from the date of Judgment and Decree to the date of full and final satisfaction thereof. On damages, Mr. Sanga submitted that general damages are awarded at the discretion of the Court but that the Court should give reasons in awarding the same. He cited the case of Alfred Fundi versus Geled mango and 2 others, Civil Appeal No.49 of 2017 decided by the Court of Appeal of Tanzania, to buttress his point. He argued that the same principle applies for the exemplary or punitive damages as exemplary and punitive damages fall within the purview of general damages. He concluded by praying for costs as costs should follow the event. He cited the case of Mohamed Salmini versus Jumanne Omary Mapesa, Civil Application No.4 of 2014 for the rule that costs follow the event unless there are reasonable grounds for depriving a successful party his costs. Mr. Denice Tumaini, learned Advocate made reply submissions for the Defendant. He argued that the Plaintiff failed to prove during the cross examination that the parties had agreed any time limit within which the debt should have been paid. He argued that the Plaintiff just stated that the agreement was for the Defendant to repay the debt "after a certain period of time". He submitted that the Plaintiff did

not make it clear in his testimony 9 whether the amount was payable by the Defendant as repayment of the loan borrowed by the defendant from the plaintiff or as compensation for the long overdue outstanding from the non-operation of the casino. He argued that the Plaintiff did not bring any evidence in Court to prove that the Defendant had requested the alleged loan or that the plaintiff was indeed paid by the Defendant the alleged USD 100,000.00 in cash. The learned counsel submitted that the Plaintiff failed to prove the time, place and means of defendant's borrowing the funds as he stated that the funds were paid by a third party in Dubai and then contradicted himself by saying that the funds had been paid by himself to the Defendant. Mr. Tumaini, learned Advocate submitted that the Plaintiff confessed to be the owner of Sea Cliff Hotel Limited who are the Landlords of Sea Cliff Casino Limited owned by the Defendant. He argued that this means that the Defendant was indeed coerced into signing the Debt Settlement Agreement with the Plaintiff at the risk of his casino company losing a place to trade. Mr. Denice Tumaini, learned Advocate attacked the validity of the Debt Settlement Agreement in that the agreement was void because it was obtained by force and coercion and was signed with a view to legalizing 10 receipt of funds which had never been received and it was made with

an intent to evade taxes and other government charges. He cited section 110 of the Evidence Act, CAP 6 of the Laws of Tanzania for the rule that he who alleges must prove. He submitted that the Plaintiff has a duty to prove existence of a valid contract under the eyes of the law. He argued that there is proof that the Defendant borrowed the money in question and that the borrowed money was indeed disbursed to the Defendant and that the Defendant had made partial payment of USD 100,000. He argued that whereas the Plaintiff testified that the borrower of the funds was the defendant, Exhibit Pl the Debt Settlement Agreement shows that the money was "long overdue outstanding incurred by the non-operational business of Kilimanjaro Casino Limited". Mr. Denice Tumaini, learned Advocate, submitted that it is not clear as to who borrowed the money between the Defendant and the stated Kilimanjaro Casino Limited. Mr. Tumaini, learned Advocate, prayed for dismissal of the suit with costs. The issues for determination in the present case were proposed by both counsel and framed by the Court. They are very short and elaborate and should have been determined earlier if it were not for technical challenges in generating the online proceedings. The two issues are: li 1. Whether there is a breach of Debt Settlement Agreement by the Defendant?

2. To what reliefs are parties entitled? The duty of the Court in composing the Judgment upon conclusion of the trial is to determine the issues framed in the case. With reference to Order XIV (1) of the Civil procedure Code CAP 33 of the Laws of Tanzania, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. It is very important to frame proper issues. Issues draw the attention of the judge and the parties to the precise matters which are in dispute, instead of allowing the case to proceed in a vague or confused state. In framing issues, the Court has to look at the pleadings. In other words, issues arise from the pleadings. The Court is not justified to determine any matters not forming part of the issues in the case. The issues of fact are the points of disagreement in the pleadings. The issues of law, on the other hand, emanate from the legal provisions in contest in the given case, some issues can be of mixed nature, law and facts. I reproduce Order XIV Rule 1 of the Civil Procedure Code which provides that: 12 l.-(l) Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. (2) Material propositions are those propositions of law or fact which plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each

materia! proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds- (a) issues of fact; and (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what materia! proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. 13 In Sheikh Ahmed Said v The Registered Trustees of Manyema Masjid [2005] TLR 61 it was held that:- "It is an elementary principle of pleadings that each issue should be definitely resolved one way or the other. It is necessary for a trial Court to make a finding on each and every issue framed in a case, even where some of the issues cover the same aspect". In RAZA SOMJI v AMINA SALUM (1993) TLR 208 (CA), the District Court had framed two issues for determination of the case. These were: "l.Whether or not there was an ora! agreement between the parties for exchange ofservices.

2. Reliefs, ifany, to which the parties are entitled." The District Court, in the course of the Trial, however, found that the respondent in the course of her evidence had raised a new issue of undue influence, but the Honourable Trial Magistrate refused to consider it. On an appeal to the High Court, the Honourable Judge of the High Court criticized the Trial Magistrate for failing to consider the newly raised issue of undue influence. This is what the High Court said: 14 "As already said, the Trial Court did not touch on this issue i.e. undue influence. It concerned itself only with the issue of offer and acceptance. But the appellant otherwise in my view clearly raised this issue in her testimony in defence." The Honourable Judge of the High Court therefore quashed the decision of the District Court on that ground. On a further appeal to the Court of Appeal of Tanzania, the Court of Appeal held that: "The Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. In the context of the present case this means that the finding on the issue of undue influence is invalid and ought to be set aside. On the remaining ground Mr. Magongo submitted in effect that on the evidence no undue influence was disclosed. However, having held that the finding on that issue was

invalid, it would serve no practical purpose now to go further into the matter. And since the decision of the learned Judge 15 in this appeal was restedsolely on the issue of undue influence, the view we have taken on that issue also disposes of the appeal itself. In the result the appeal is allowed. The decision of the High Court is set aside and that of the District Court is restored." Taking cue from all the above rules on the need for the Court to base its decision on the issues framed and not otherwise, I will proceed with my decision based solely on the two issues which were framed by the Court in this case after engaging the learned counsel for both sides who proposed the two issues for determination by the Court. The Court endorsed the two issues and framed them as the issues of the case after going through the contents of the pleadings. The parties ought to have testified and made their final submissions in line with the framed issues so as to help the Court to answer the framed issues one way or the other. Focusing on the framed issues makes administration of justice predictable, smooth and streamlined. It would be unjust if a party was made to believe that the only issues were only so and so and thereby, he concentrated his evidence and arguments around the stated issues, only to discover later on that the case was actually determined on the basis of a different set

of issues not framed and to which 16 he did not focus on when bringing his evidence and making arguments in Court. That is the situation the Defendant wants to bring the Court into in the present case. The way the first issue was framed, presupposes that parties are not at issue as to the existence, validity and terms of the Debt Settlement Agreement between them which was admitted as Exhibit Pl. What the parties were disputing in their pleadings was only whether or not there is a breach of Debt Settlement Agreement by the Defendant. However, during the testimony of the Defendant's Witness (DW 1), and during the Final Submissions by the Defendant's learned Advocate, there was a conspicuous attempt to enlarge the issue and introduce new issues not contemplated by the pleadings. The Defendant testified on and his learned Counsel brought arguments pertaining to the validity of the Debt Settlement Agreement arguing that the agreement was void because it was obtained by force and coercion and was signed with a view to legalizing receipt of funds which had never been received and that it was made with an intent to evade taxes and other government charges. They called upon the Plaintiff to prove existence of a valid contract under the eyes of the law in terms of section 110 of the Evidence Act, CAP 6 of the Laws of Tanzania. The Defendant argued that there is no proof that the

Defendant borrowed the money in 17 question and that the alleged borrowed money was indeed disbursed to the Defendant and further that the Defendant had made partial repayment of USD 100,000 to the Plaintiff. Mr. Denice Tumaini, learned Advocate, submitted that it is not clear as to who borrowed the money between the Defendant and the Kilimanjaro Casino Limited. The pertinent question is which issue do all these arguments attempt to answer? None. The issue was whether there is a breach of Debt Settlement Agreement by the Defendant. This issue presupposes that there exists a valid Debt Settlement Agreement between the Plaintiff and the Defendant whose terms are not disputed and the obligations of the defendant in it are not disputed. The only issue is whether the Defendant has breached that agreement? Therefore, I find that the testimony by the Defendant's witness (DW 1) and the Final Submissions for the Defendant are misplaced and have no bearing to the matters at issue in the present case. In fact, reading through the Written Statement of Defence, the Defendant admitted categorically and throughout his Written Statement of Defence that he is indebted to the Plaintiff for the sums claimed in this case except that he was pleading for leniency in terms of time to repay the amounts due to the Plaintiff. This is the message the Court gets when it reads admissions made in the

Written Statement of Defence. For 18 example, under paragraph 6 of the Written Statement of Defence, the Defendant stated that: "The Defendant further states that he did not neglect to pay the outstanding amount but the failure was due to the fact that the Defendant's business underwent an unforeseen circumstance that occasioned loss and which significantly affected its financial performance. The downturn was not anticipated and the resulting financial challenges prevented the Defendant from fulfilling his repayment obligations as initially envisaged." Paragraph 7 of the Written Statement of Defence is to the effect that: "The Defendant further states he consistently made efforts to fulfil his obligations and have not defaulted on any payments as per the agreed installment plan." Paragraph 8 of the Written Statement of Defence states that: "The Defendant further maintains that he adhered to the terms and conditions outlined in the settlement agreement and at no point the Defendant failed to comply with any of the agreed upon terms." 19 With admissions so categorical like those, I cannot see where does the defendant get the audacity to suddenly make a U-turn and, while speaking under oath in the witness statement and during cross examination as well as in the final submissions on his behalf, tell the Court that actually there was no valid agreement on debt settlement between the

Plaintiff and the Defendant and as such he has not breached any of its terms. The Defendant and his counsel have made a great attempt to disown the Debt Settlement Agreement (Exhibit P-1) alleging that the same was signed under coercion and duress. However, they have not even attempted to explain out the admissions made by the Defendant in his Written Statement of Defence signed by the Defendant himself and his Advocate. Who was forcing the Defendant and his Advocate to draft, sign and verify and file in Court the Written Statement of Defence which is in line with the terms of the Debt Settlement Agreement? Suffice it to say that the Defendant while under oath has deliberately told lies before the Court. Where a witness tells lies on one crucial aspect of the case, his testimony should not be trusted in other aspects of the case. At any rate, his "testimony" does not address the issues framed for determination. The final submissions for the Defendant were also devoid of any relevance to the framed issues. As it was 20 held in the English case of Thorp vs. Holdsworth (1876), 3 Ch D. 637 where Jessel, MR had the following to say in page 639 : " The whole object ofpleadings is to bring the parties to an issue, and the meaning of the rules of this Order is prevent the issues being enlarged, which would prevent either party from knowing, when the cause came on for trial, what the

real point to be discussed and decided was." In the case GANDY vs. GASPAR AIR CHARTERS LTD (23 E.A.C.A.) 139 Sinclair, V.P. had the following to say at page 140:- "The object of pleadings is, of course, to secure that both parties shall know what are points in issue between them, so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. As a rule, relief not founded on the pleadings will not be given." In reaching to such a decision, the East African Court of Appeal relied on an English authority in the case of Blay vs. Poland and Morris, (1930) 21 l.K.B. 682 which set aside the decision of the lower Court on the ground that the trial judge raised an issue himself without having the pleadings amended. That position has been judicially recognized in various decisions in Tanzania. For example, in the case of THE NATIONAL INSURANCE CORPORATION vs. SEKULU CONSTRUCTION COMPANY (1986), TLR CA 157. The Court of Appeal was of the considered opinion that "parties to dispute are not, during hearing, allowed to depart from pleadings by adducing evidence which is extraneous to the pleadings." Therefore, it is not a misplacement to hold, as it was argued by Mr. Dickson Sanga, learned Advocate for the Plaintiff, that one of the cardinal principles of civil litigation is that parties are bound by their

pleadings. The Defendant in this case is therefore bound by what he had pleaded in his Written Statement of Defence. He could not plead one thing and then subsequently come to testify on another during the hearing of the same case. To allow such complete departure from the party's pleadings would take the other side by surprise in hearing of the case. Also, it would prevent the Court from being able to decide the dispute between the parties since the essence of the dispute would be elusive and slippery. I hold the statements by the Defendant in his Written Statement of Defence to be the 22 true position and his sincere response to the claims and prayers put forward by the Plaintiff in the Plaint. The written Statement of Defence contained nothing but unequivocal admission of liability by the Defendant to the Plaintiff for the sums owed pursuant to Exhibit Pl. In fact the admissions in the Written Statement of Defence were sufficient enough for the case to be determined by way of judgment on admission, had the Plaintiff made such an application. Back to the framed issue number one. The issue is whether there is a breach of Debt Settlement Agreement by the Defendant? To answer this issue, the Court had to consider firstly as to what was agreed upon between the parties in the Debt Settlement Agreement? Exhibit Pl shows that the Defendant borrowed money from the Plaintiff a sum of

USD 350,000 (United States Dollars Three Hundred Fifty Thousand only). It shows that the Defendant had promised that the loan would be repaid after a certain agreed time. After the lapse of reasonable time, the Defendant had repaid only USD 100,000.00 in cash to the Plaintiff and had failed to repay the remaining USD 250,000.00. By the Debt Settlement Agreement on 11th May 2021, the Defendant agreed to repay the outstanding balance in installments. In terms of Clause 1.3 of the Debt Settlement Agreement, the Defendant committed 23 himself to settle the outstanding balance of USD 250,000 and the accruing interest thereon at the rate of 9% per annum, within 9 months from the date of signing the debt settlement agreement. The issue is whether or not the defendant has performed his obligations under the Debt Settlement Agreement? The answers in the Written Statement of Defence and the Witness Statement by the Defendant as well as his oral testimony during cross examination, inevitably prove that the Defendant has not repaid the borrowed money as agreed. The Defendant has therefore breached the Debt Settlement Agreement with the Plaintiff. The second issue was as to what reliefs are the parties entitled. Reading through the Plaint, the Plaintiff made an array of prayers. Mr. Dickson Sanga, learned counsel for the Plaintiff in his submissions summed up the prayers that the Plaintiff

has pleaded and specifically proved the specific damages. He relied on Exhibit Pl, the Debt Settlement Agreement for the argument that the Plaintiff has substantiated the claim of USD 295,000—being the outstanding sum as well as 9% interest per annum agreed therein on the outstanding sum. I am satisfied that the Plaintiff has through exhibit Pl and the admissions in the Defendant's Written Statement of Defence, proved the specific claim of USD 295,000.0 due to the Plaintiff 24 from the Defendant as of 25th May 2023. Also, the Plaintiff is entitled to the contractually fixed rate of interest of 9% per annum on the USD 295,000.00 from 25th May 2023 to the date of Judgment and Decree. I have found no basis for the Plaintiff to demand commercial rate of interest of 18% per annum while the agreement itself fixed 9% per annum as the chargeable rate of interest. The general damages are awarded at the discretion of the Court. Given the circumstances of this case that the Defendant admitted to have borrowed the money from the Plaintiff which by 25th May 2023 amounted to USD 295,000. This and which money the Defendant spent in his casino businesses then turned against the lender and attempted to avoid effecting repayment thereof and thereby preventing the Plaintiff from putting a commercial use thereof. In one year, he could have reaped at least USD. 45,000.00 as per Exhibit Pl and P2.

Defendant has caused embarrassment and great disturbance to the Plaintiff. The Defendant shall therefore pay the Plaintiff TZS. 50, 000,000/= as general damages. The Plaintiff has prayed for exemplary and punitive damages. I decline the prayer for punitive damages in a case founded on breach of contract. Punitive damages are awardable in intentional torts not in contract-based claims. With respect to punitive damages, the position of the law is as it was held by the Court of 25 appeal of Tanzania in the case of Evarist Peter Kimathi And Another Versus Protas Lawrence Mlay, Civil Appeal No. 3 of 2000, Court of Appeal of Tanzania at Arusha, where in a case for breach of contract of sale of land, the High Court had awarded punitive damages. In an appeal it was held as follows: "It is common knowledge that damages for breach of contract being pecuniary compensation which the law awards to a person for the injury or loss sustained through the act or default ofanother, may be either genera! or specific but not exemplary or punitive. AH in all, therefore, the award of punitive damages for Tshs. 500,000/= is set aside as such damages are in law confined only to actions based on the law of torts." The Plaintiff also prayed for interest at the Court rate of 7% per annum from the date of Judgment and Decree to the date of full and final satisfaction thereof. I have noted that the

Plaintiff prayed for the minimum interest awardable at the Court rate on the decretal sum. I find no reason not to grant it as such. It is the bare minimum. Lastly, costs follow the event. The Plaintiff shall have his costs in this matter. 26 In the upshot, the Court does hereby enter Judgment and Decree in favour of the Plaintiff against the Defendant as follows: a) Payment of USD 295,000 being the sum outstanding amount and interest of 9% per annum as of 25th May 2023. b) Payment of contractual interest on the outstanding amount in (a) above computed at the rate of 9% per annum accruing from 25th May 2023 to the date of Judgment and Decree. c) Payment of TZS 50,000,000/= (Tanzanian Shillings Fifty Million Only) being general damages. d) Payment of interest at the Court rate of 7% per annum on the decretal sum from the date of Judgment and Decree to the date of full and final satisfaction thereof. e) The Defendant shall bear the costs of this suit. It is so ordered. A. H. GOfizF

JUDGE 26/07/2024 27 Judgment is delivered in Court this 26th day of July, 2024 before Hon. Ag. Deputy Registrar K. Ndomba, in the presence of Mr. Timoth Mwamakimbula, Advocate for the Plaintiff and Mr. Denise Tumaini Advocate for the Defendant. K. NDOMBA AG. DEPUTY REGISTRAR 26/07/2024 28