20190207 TZHC Dar es Salaam

.. IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRCIT REGISTRY AT DAR ES SALAAM. CIVIL CASE NO. 183 OF 2015 KISHEN MUKESH KANABAR (administrator of estate of the late MEETA MUKESH K,4N·ABAR) .................................................... PLAINTIFF. VERSUS NBC LIMITED ..•.••..•.••.....•.....•••...........••.....•..•..•••....••• DEFENDANT. Date of last Order: 23/10/2018. Date of Judgement: 07/02/2019. JUDGEMENT. MAGOIGA, J. The plaintiff, KISHEN MUKESH KANABAR instituted this suit in this court praying for the judgement and decree against the defendant in the following orders:- (a) Specific damages to the tune of USO 400,000/- being the value of the belongings stolen/lost from the safe locker maintained by the defendant as a banker on account of negligence and breach of . contract. (b) General damages being compensation for torture, mental, agony disturbance, loss of reputation, increase value and loss of profit which 1 the plaintiff and family could have made or suffered on account of negligence and breach of contract by the defendant. (c) Court's interest of 12% on the decretal sum from the date of loss of valuable to the date of judgement. (d) Court's interest of 12% on the above from the date of judgement till final payment. ( e) Costs of this suit (f) Any other relief this honourable court deems just to grant. The facts of this suit are that for a long time one, Mrs. Meeta Mukesh Kanabar (now deceased) entered into contract with the defendant's Samora branch in Dar es Salaam as customer for maintaining a safe locker in a view of storing valuable belongings. The facts go further that the said locker was No. 231 and she kept her family jewelries which she had accumulated for years as per Indian customs and family dealings. Keeping safe locker was one of the services provided by the defendant as bank under banker-custom relationship. Further the facts go that she used to visit the locker often and records kept by the defendant could clearly show the visits and the deposit. On 27 th day of May 2005 Mrs. Meeta Mukesh Kanabar died and subsequently the plaintiff was dully appointed legal personal representative of her estate and 2 was as such vested with powers to deal with the deceased estate and immediately started following the belongings from the defendant whose valued was estimated to be USO 400,000/-. The plaintiff alleged to visited the defendant branch and opened the safe locker in 2008 to verify the valuables and was able to open the locker using the two keys which were the sole opening keys to the safe locker and are to date maintained by the plaintiff. The last time the plaintiff visited the defendant's Samora branch to verify the safe locker was on September 2014 but to his surprise was told his safe locker was transferred to the Head Quarters of the defendant's office and was opened in his absence and it was empty. The litigants hereinabove started legal wrangler which culminated into this court, after the defendant failed to heed to the prayers of the plaintiff, hence this judgement. The plaintiff throughout out these proceedings was enjoying the legal services of Mr. Simon Mrutu, learned advocate, from a Dar es Salaam based legal clinic of ROMAN ATTORNEYS. On the other hand, the defendant was throughout enjoying the legal services of Ms. Caroline Kivuyo, learned advocate, from Dar es Salaam based legal clinic of IMMMA advocates. 3 Before the hearing started the following issues were framed and agreed between the court and the litigants, as guidelines for determination of this suit. These are: 1. Whether there was an agreement between the parties for the defendant to. maintain a safe locker for keeping the plaintiff's valuables. 2. If the answer to the first issue is in the affirmative, what were the terms of the contract. 3. Whether there was a breach of the contract by the defendant by breaking the safe locker unilaterally. 4. Whether there were valuables in the safe locker in question. 5. To what reliefs are the parties entitled to. The plaintiff called two witnesses to prove his case. The first plaintiff witness was KISH EN MUKESH KANADAR -christened as PWl. Under Oath, PWl led by Mr. Mrutu, learned advocate, told the court that he is a business man and residence of Upanga in Dar es Salaam. It was the testimony of PWl that he knows the defendant since his child hood as his family had a banking relationship with the defendant whereby his late mother had safe locker no 231 kept within the Samora branch of the defendant. And that in 2003, he personally opened a personal account with the defendant. It was the 4 testimony of PWl that her late mother passed away in 2005 and tendered a death certificate which was admitted in evidence without objection and marked as exhibit Pl. PWl as well tendered certified letters of administration dully appointing him the administrator of estate of her later mother which was admitted in evidence and marked as exhibit P2. PWl testified that upon his appointment, he visited the Samora branch of the defendant where he met the branch manager and upon introducing to him with all relevant documents, consensuly agreed that he will be operating the safe locker by virtue of his appointment as administrator. According to PWl testimony the purpose of the safe locker was to safe guard the wealth of the family in jewelry form preserved from one generation to another to be given as reward during wedding as sign of prosperity and good luck. PWl further testified that in 2009 he and in accompany of his brother one AMIT MUKESH KANABAR visited the branch and managed to take stock of the contents of the locker and found forty sets of jewelries in the locker. PWl continue testifying that in order to open the locker two keys are needed, one from the bank and another key is the one kept by the customer. It was the testimony of PWl that there is a log book to be signed by the bank supervisor and the bank customer during each visit to the locker and from that entries in 5 the log book one can tell how much the customer has visited the bank. PW1 tendered one set of keys and same was admitted in evidence and marked exhibit P3. According to PW1 he visited the bank thrice after the death of his mother, first in July 2008, second in January 2009 and last July 2009 and everything was perfect and intact. And that, it was during the last time when he was told the locker has been transferred to Headquarters of the defendant. PW1 testified that in 2014 is when he started getting resistance from the defendant officials and tendered a letter dated 5/10/2014 which was admitted and marked exhibit P4 and a reply to that letter from the defendant was admitted and marked exhibit PS which was to the effect that the locker was empty. The matter according to the testimony of PW1 sailed through to court and tendered demand notice by his lawyers which was admitted and marked as exhibit P6. It was further testimony of PW1 that the total value of the jewelry was USD 400,000/= which was collection of over ten years. The relationship between the bank and the late mother of PW1 was amicable and close, testified PW1. PW1 further testified that there was a document which her mother signed in order to authorized to keep the safe locker and that the transfer of the locker was done without their knowledge. 6 Eventually PW1 stated that the loss of the jewelry has negative impact to their traditions and status of their traditions. He concluded by praying this court to grant his prayers as contained in the plaint. Under cross examination by Ms. Kivuyo, learned advocate, PW1 replied that he is the administrator of her mother's estate and sole beneficiary and that he did not tender any agreement between the defendant and the plaintiff and know nothing about the contents of the contract in question. PW1 further under cross examination stated that the safe locker contained 40 sets of jewelry but did not provide proof of the presence of 40 sets of jewelry in the safe locker. PW1 admitted that he himself has ever kept five jewelries in the safe locker apart from the 40 sets. Of the five jewelry were weighing 300-400 grams but with no document to prove of the said sets of jewelry. Further under cross examination PW1 after being shown exhibit P4 which was written by himself but admitted to have failed to prove ownership of the locker, save keys which were tendered in proof. Re-examined by the Mr. Mrutu, learned advocate, PW1 testified the facts that the locker was transferred in his name was told by the bank officials and that the intention of exhibit P4 was to inform the bank that he will be operating the 7 locker. As to why PWl failed to produce the log book it is because the same was maintained by the defendant and his efforts to have the copy or original produced in court were in vain. The second witness for plaintiff was AMEET MUKESH KANABAR- for purposes of this proceedings christened as PW2. Under oath, PW2 led by Mr. Mrutu, learned advocate told this court that he lives at Mazengo street in Upanga, Dar es Salaam and a businessman dealing with clothes. PW2 knows the plaintiff, who is a brother and he is claiming valuables kept in locker no 231 belonging to their late mother. The plaintiff is suing at the capacity of the administrator of estate of late Meeta Mukesh Kanabar. According to PW2 in 2014 the plaintiff accompanied with him wanted to access the locker at NBC but they could not as the officer were giving them empty promises until after months they were told the locker has been transferred to headquarters of the defendant. PW2 further testified that their efforts were lately advised to write a letter, which they did and was replied that the locker had been moved to the headquarters and had no contents in it. PW 2 was shown exhibits P4 and PS which he recognized as communication between the plaintiff and defendant concerning the issue. PW2 went on testifying that they went to headquarters but no fruitful answer was given 8 ,. eventually forcing them to involve their legal attorney for legal redress. It was further testimony of PW2 that they had a long business relationship with the defendant by operating various accounts. PW2 testified that he was aware of the valuables and it was the plaintiff who only had access to the locker as administrator and despite accompanying him to the bank, he personally never accesses the locker save that he was aware of the contents as 40 jewelries. According to PW2 the bank had a duty to keep the jewelries safe because of the trust we had with them. The loss of the jewelries according to PW2 testimony has caused a lot of shock and depression to the family members because the jewelries has been collected for many years and was intended to be used during ceremonies and failure to have is a shame and embarrassment as they will have nothing to give according to their customs. Under cross examination by Ms. Kivuyo, learned advocate, PW2 admitted that the knowledge that the locker had valuables was told by his late mother. The prove that the plaintiff had a locker is the keys to the locker, insisted PW2. PW2 admitted that he has never seen the valuables at the bank and that he has no proof that he accompanied his brother to the bank. In rejoinder, nothing was replied by PW2 to advance the plaintiff case. This marked the end of the case for plaintiff. 9 On the other hand, the defendant like the plaintiff had two witnesses. The first witness for defendant was Ms. JACQULINE SINDANO- for purposes of this proceedings christened as DW1. Under oath, DWl led by Ms. Kivuyo told this court that she is employed by NBC as Customer Lifestyle Management, in Retail banking section since 2009. DWl acknowledges that plaintiff is one of their customer and that they had a safe locker with their branch with no 231 kept at Samora branch. DWl further explained the process of safe deposit that a customer completes a form which constitute an agreement and pays for the services and a debit voucher is issued and copied to the customer. Upon completing this process, a customer is issued with a safe locker and there is a register which one must enter particulars of each visit done in the presence of the bank officials. The customer is issued with set of keys and another setoff keys are kept by the bank and that the box cannot be opened but by two set of keys, insisted DW1. According to DWl it is impossible to open the locker with one set of keys. DWl further testified that they no longer offer safety locker services since 2012, and before they stopped the services they informed their customer through newspapers to turn up within a month to collect their valuables. It was the testimony of DWl that the plaintiff is among the customers who did not turn up in this exercise. The boxes, according to DWl 10 were broken into before an independent lawyers known as Deogratius Mwarabu. DWl further told the court that when locker no 231 was opened in the exercise it was found with no valuables and was recorded "NIL". On the basis of their report box no 231 had no valuables in it. Under cross examination by Mr. Simon Mrutu, learned advocate, DWl admitted that during the whole exercise she was not at Samora branch and was not Customer Lifestyle Management officer. Customer Lifestyle Management is a new section established in 2015, DWl told the court. Pressed by cross examination DWl told the court that according to the record, safe box no 231 was owned by the lady and no record who last visited the locker. DWl told the court that the safe locker services were stopped by the instructions from Bank of Tanzania in 2012, and the defendant had to comply. DWl told the court that the contract placed the liability for any loss of valuables on the customer, who keeps the valuables at his own risks. In rejoinder, led by Ms. Kivuyo, learned advocate, DWl told the court that the general notice was through newspapers and most customers came and collected their valuables. 11 Next was OLECOMMOLO MOLLEL-christened for purposes of this proceedings as DW2. Under oath, led by Mr. Hezron Jason, learned advocate, DW2 told the court that he has been working with NBC for 38 years and now is at Kinondoni branch as Customer Services Manager. DW2 told the court that before going to Kinondoni he was working with Samora branch as customer services in- charge. According to DW2, his duties were to render services to customers who wanted to deposit or withdraw money. Also DW2 told the court that he was in-charge of customer lockers by supervising the access to the locker through register. DW2 told the court that the process of opening the locker involve the bank but what is kept or removed by the customer is the secret of the customer. DW2 recalls that in 2012 there was directive from headquarters requiring all branches to stop that service and they notified all customers to collect their valuables within 30 days through newpapers, failure of which all lockers will be sent to the headquarters. DW2 further testimony was that the whole exercise of opening the uncollected lockers was done in his presence and was witnessed by advocate Mwarabu, as independent witness and where there were some valuables were duly recorded for each locker that had contents. As to the locker in dispute it was the testimony of DW2 that the same was empty. 12 Under cross examination by Mr. Mrutu, learned advocate, DW2 told the court that he does not know the plaintiff in this case and that before one is issued with a locker has to fill a form which constitute an agreement stipulating duties of parties to that contract. DW2 pressed under cross examination admitted that the plaintiff complied with the terms and conditions of the agreement. DW2 told the court they broke the locker because the plaintiff did not come up even after the notice and the plaintiff locker was empty. In rejoinder, DW2 led by Mr. Jason told the court that during the breaking exercise of the locker there were officers from NBC headquarters and the lawyer. This marked the end of the hearing of this suit. The task of this court now is to determine the merits or otherwise of this suit. On 23/10/2018 the learned counsel for parties prayed to file final written • submission which prayer was granted. I personally recommend both counsel for parties for their insightful submission on this suit. I have read them with a very serious legal mind and eyes, and will, in the course of this judgment at times expressly refers to them and where I will not same are with respect noted. Let me point out that for purpose of this suit and in order to do justice 13 to this suit, I have noted that there some salient facts not in dispute between the parties herein. One, there is no dispute that the late Meeta Mukesh Kana bar had a safety locker no.231 with the defendant for keeping her valuables to be controlled by both the plaintiff and the defendant as evidenced by exhibit P3. Two, there is no dispute that the plaintiff is the administrator of estate of late Meeta Mukesh Kanabar dully appointed by the court to administer the properties of the Meeta as evidenced by exhibit Pl and P2. Three, there is no disputed that the said safe locker no 231 was removed from Samora branch to NBC headquarters and later unilaterally opened in the absence of the plaintiff as admitted by DW1 and DW2 in their respective testimonies under oaths. Now with that notorious facts no in dispute, I find apposite now to test each issues framed and agreed against the evidence tendered. The first issues is whether the there was agreement between the parties for the defendant to maintain safe locker for keeping plaintiff's valuables. This issue need not detain this court much. The defendant in her written statement of defence disputed this fact but her two witnesses admitted that there was an agreement between the parties for the defendant to maintain safe locker for keeping plaintiff's valuables. Besides, both advocates for parties' final written submissions are at one that there was an agreement between the parties on such relationship. It 14 is on the totality of the above undisputed facts and evidence tendered, this court do hereby find that issue number one is answered in the affirmative that there was agreement between the parties for the defendant to maintain safe locker for keeping plaintiff's valuables. The second issue is, if issue no.1 is answered in the affirmative, what was the terms of the contract? The counsel for defendant has submitted that according to exhibit P3, the terms of the agreement was that the safe locker must have a dual control, by each party holding a set of keys and be opened in the presence of both parties during the tenure of the agreement. On the other hand, the counsel for plaintiff submitted that the standard contract was retained by the bank/defendant and that according to the testimony of PWl, PW2, DWl and DW2 the duty of the plaintiff was to fill the standard form while the defendant was under duty to honour the terms of taking care of the safety locker deposits in normal banking relationship. According to him, once the bank accepts to offer the services of safety deposit box there are implied terms of taking care of the box and avoid negligence, and concluded that this issue should be answered in the affirmative. I have carefully traversed the evidence on record and the re-read the final submission of the advocates for parties on this issue, but I find that for reasons 15 known to the parties and unknown to this court in this suit none of the parties tendered any documentary evidence to prove or disprove the exact terms of the alleged form one has to fill to constitute the exact terms of the agreement. Apart from few terms of keeping set of keys by both parties and opening of the safe locker by both, no other evidence was tendered at least to prove the exact terms. PWl when cross examined by counsel for defendant had this to say:- "I do not know the contents of the contract that my late mother signed with the bank." This takes me to hold that there is a lot to be desired from this suit on the exact terms of the agreement. The standard form, if any, to my opinion was the exact and imperative document in this suit to prove the terms and conditions of the agreement. The counsel for plaintiff submission that once the bank accepts to offer the services of safe deposit box there is implied terms of taking care of the box and avoid negligence thereof is not enough because the testimonies of the plaintiff witnesses nowhere negligence was proved on the part of the defendant. This, in my considered opinion, remain a typical submission from the bar not supported by the evidence on record. This issue, therefore, in my considered opinion is to be answered in the negative that no 16 exact terms were proved apart from scanty terms not enough to say what were the real terms in the circumstances of taking out the valuables and bringing in new valuables. To this point I find it apposite to determine issue number 4 whose determination has a direct consequence to issue number 3. Issue number 4 is whether there were valuables in the safe locker in question. Let me point out that it is the determination of this issue which is the basis of claim of specific damages to the tune of USD 400,000.00 or its equivalent as claimed in the plaint. This being specific claims, it is a trite law even without citing a case law that same is to be specifically pleaded and strictly proved before a court can grant them. This issue is the main issue in this suit. I have gone through the pleadings of the parties, the evidence of witnesses and exhibits tendered and the written submissions of the advocates for parties on this issue and have gathered the following; one, the claim of valuables as pleaded in the plaint was not specifically pleaded in the real sense of the term. At paragraphs 9 and 10 of the plaint no specific details were provided for to justify claimed amount of USD 400,000.00. The plaintiff claim was based on estimation whose basis was not given to specify how he arrived at that specific figure. Worse enough even at paragraph 16 which was giving particulars of the damages and loss the 17 plaintiff utterly failed to specifically plead and justify the amount of valuables but what is seen in the plaint is this·... (a) loss of valuables estimated value ..... USD 400,000.00. This was not enough and it did not meet the standard of specific pleadings. The plaintiff was to go further and specify each valuable together with its price and value. Failure to specifically plead the valuable with their exact price is fatal to the case of the plaintiff. Second, the plaintiff in his testimony under oath failed to prove the specific amount of each jewelry of the 40 set of jewelries alleged to be in the box. What the plaintiff was able to testify was that there was one set of 2 earrings, one necklace, one bracelet and one ring. As to the value the plaintiff testified that,let me quote him verbatism: "the total value of the jewelry was to the tune of 400,000.00. This was a collection by my late mother for a period of ten years. Each set is not less than 3-4 hundred grams of precious stones. The value of jewelry set at that time was 5000 dollars per set." This was all about the evidence of the plaintiff in proof of the claimed USO 400,000.00 as claimed and the contents of the valuables in the locker. Let me say and point out that this piece of evidence is wanting and does not meet the 18 ' J. test of specific prove in the circumstances. PWl under cross examination by counsel for defendant had this to say, which I beg to quote him verbatim: " no, I did not provide proof of the presence of the 40 sets of jewelry in the safer box." This clear admission on the part of the plaintiff that he did not proof the contents of the valuables, tells it all that the proof of the valuables in the safe box was not done. Three, the plaintiff who himself testified to have visited the safe locker thrice but utterly failed to tell exactly what was in the box in the three visits. Going by the evidence of the plaintiff it is highly wanting in its proof of the contents and the exactly value of the jewelry, if any, in the circumstances. Four, either by design or accident the counsel for plaintiff in his final written submission did not address his mind on issue number 4 and assist the court in resolving the issue of the contents despite the allegations of unilaterally opening the safe locker. His final written submission was only limited to four issue and jumped this crucial issue for reasons, this court cannot speculate. On the other hand, the counsel for defendant strongly submitted that no prove of whatever standard was proved of the contents of the valuables as alleged. 19 According to him, both PW1 and PW2 none was able to tell the court what was in the box and as such to him this issue was to be answered in the negative. The counsel for defendant cited the cases ZUBER! AGOSTINO V. ANICET MUGABE [1992] TLR 139 and FUTURE CENTURY LIMITED V. TANESCO, CIVIL APPEAL NO. 5 OF 2009, (CAT) DSM (Unreported) both of which insisted and hold that specific damages must be specifically pleaded and strictly proved before same are granted. I fully subscribe to the holdings in these cases and on the same vein and guided by the same principle find that the instant suit no specific damages were specifically pleaded and strictly proved at all. By specific pleading means giving a detail particular of each shilling or United State Dollar claimed in the plaint and by strict prove means to prove every shilling claimed or USD dollar claimed to the satisfaction of the court and on the standard required in civil cases. In this suit this was not done at all. It is on the totality of the above reasons, am inclined in the circumstances of this case and the evidence tendered find and hold that what was in the safe locker is highly questionable and in the absence of cogent evidence am constrained to hold in the negative issue number 4. 20 • Next is third issue whether there was breach of the contract by defendant by breaking the safe locker unilaterally? As earlier noted there is no disputed that the defendant opened the safe locker no. 231 unilaterally as testified by DWl and DW2. The defence offered by the defendant is that in 2012 were directed by the Bank of Tanzania to stop the safe locker services and to comply with such directives they gave notice to newspapers to their clients to visit the bank to collect their valuables and some came and collected their valuables and some never showed up. One of the customers who never came was the customer with disputed locker no 231. It was further defence and testimonies of the defendant witnesses that the said locker was opened in the presence of independent witness, one, advocate Deogratius Mwarabu and same was found to be empty or with nothing in it. Unfortunately, on the party of defendant no documentary evidence was tendered to disprove the allegations of the of emptiness nor was Mr. Deogratius Mwarabu called to substantiate this unilaterally opening of the safe locker in the circumstances. Notwithstanding the above shortcomings on the defendant part, the plaintiff, however, was duty enjoined to prove on balance of probability that in the safe locker there were some valuables. Failure by the plaintiff to prove the contents of the valuables despite the defendant failure to produce evidence on good 21 faith in the transaction as submitted by counsel plaintiff under section 120 of Tanzania Evidence Act, [Cap 6 R.E. 2002]. The provision of section 120, to my opinion did not exonerate the plaintiff from the provisions of sections 110 and 111 of the Tanzania Evidence Act. I have read the comments and case notes on liability of lessors of safe deposit boxes in the case of TAKOMA PARK BANK V. ABBORT 19A. (2d) 169 (Md., 1941) and the position in India very careful and am of the considered opinion that the circumstances in that case and the instant suit do differ in that in our instant case the safe locker was not lost at all but was, yes, opened unilaterally but unfortunately found empty. Also, in our instant suit no negligence was proved on the part of the defendant save mistrust which was to be proved by proving the contents of the deposits. Had the plaintiff proved the deposits of the contents, this court would have hold otherwise that the defendant was not trustworthy in the transactions in question. In our instant case the plaintiff alleged to have valuables estimated to be USO 400,000.00 and on the other hand the bank testified that the safe locker was empty when unilaterally opened in compliance with the BOT directives. However much I would and any reasonable court would like to hold in favour of the plaintiff in the circumstances, but in the absence of any evidence as to 22 --,.,"-- --"'~. _...........i. the value of the deposits it will be equal to enriching the plaintiff in absence of · evidence as the plaintiff even failed to produce even receipts for purchase of the valuables before deposit. The mere having a safe locker alone is not enough to say there are some valuables. The plaintiff as noted above has that duty which he has failed to discharge. In the totality of the above discussions and reasons I hold issue number 3 in the negative. This takes me to issue number five that what reliefs parties are entitled to. This issue need not detain this court much. Much as the above issues are answered in the negative, this court is hereby bound to dismiss this suit with costs for want of merits. It is so ordered. Date in Dar es Salaam this 07th day of F ,,,..., ,......,_ - ·,, A JUDGE. ~ \ -~---~., 2'I 07/02/2019. ' ' -~ . , .. ..,_ - ~J --~/ 23