20160218 TZHC Dar es Salaam2 1

.I j' . ,:~ . i. ,,, IN THE HIGH COURT .OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 135 OF 2013 I LILLIAN ONAEL KILEO ...................... ~ ............................ PLAINTIFF VERSUS FAUZIA JAMAL MOHAMED ................ i. ......................... DEFENDANTS th ih December, 2015 & 18 February, 2016 JUDGMENT MWAMBEGELE, J.: I The plaintiff Lillian Onael Kileo filed this ,suit on 23.09.2013 seeking for the · following reliefs against the defendant Fauzia Jamal Mohamed: i i. A declaration that the defendant has breached the contract; ii. Payment of Tshs. 160,0000,000/=) .being balance due on contract; I iii. Payment of Tshs. 20,0000,000/=) being special damages for breach of contract; iv. Payment of general damages for breach of contract and deceit as may ! be assessed by the court; v. Interest on (i) and (iii) above fromI 01.07.2013 at commercial rate of 22% to the date of judgement; 1 I j t) I ~ .,. / !I vi. . Payment of interest on the decreed ~mount from the date of judgment I until payment in full; I vii. Costs ; and i viii. Any other relief as the Honourable court may deem just to grant. . ~ . . The suit is based on a Loan Agreement!' of Tshs. 315,000,000/= from the plaintiff to the defendant executed by the parties ori 30.01.2013. As per the terms of the agreements, the loan was to· be paid within six months from the date of execution. It was also agreed that the loan will not attract any interest. I The plaintiff avers that out of the loanef amount, the defendant paid only Tshs. 155,000,000/=) and worse more, 1the amount was paid after the six . i months contrary to what was stipulated in the agreement. On the other hand, the defendant avers that she does .pot owe the plaintiff anything as the loan amount has been satisfied in full. I On 27.05.2014, the following issues were /framed by the court in the presence of Edward Chuwa and Crecensia Mwita who, respectively, represented theJ plaintiff and defendant on that date: JI 1· II I 1. Whether there was breach of the 14an contract by either party; and . 2. To what reliefs, if any, are the part! es entitled. 1 . II I i ~ II I 2 lj · II i r""::7""'~ I .,, -~'"' t) ; l The plaintiff fielded two witnesses and the defendant fielded only one; herself. It is in the testimony of the plaintiff; Lillian Onael Kileo, who testified as PW1 that she is a business woman: dealing with real estate and that sometimes in the year 2012 she. was infprmed by a certain Dalgha that the defendant is an agent who could help her buy government houses which were sold to government employees and those government employees did not manage to pay for them. In December 2012 she met the defendant who told her that she (the plaintiff) was required to part with Tshs. 450,000,000/= as purchase price plus Tshs. 16,000,000/= as valuation fees. The defendant asked her to avail her Tax Identification !Number (TIN) and the Certificate of Incorporation for that purpose, which 'She did. In compliance with the transaction, she gave the defendant. first USD 50,000.00 and Tshs. 331,000,000/= making a total of Tshs. 411,500,000/=. One day while at the Barclays Bank with the defendant, a certain Mndolwa, after telling him why she was with the defendant there, hinted her that the defendant was a con- woman and that she should be very careful with the transaction. It was after i the. . hint that she decided to change her. mind ! and mute the transaction. . . . The plaintiff therefore demanded her money· back. The defendant told her that she only had USD 50,000.00 to refund and that the balance would be refunded in six months. The plaintiff agreed and the part refund of USD 50,000.00 was done on 30.01.2013 and the balance; that is, Tshs. 315,000,000/=, was reduced into writing to be refunded in six months. That the agreement was to be reduced into yvriting as a loan agreement for the I • remaining balance and was indeed executed on 30.01.2013. The plaintiff went on to testify that the defendant paid only Tshs. 155,000,000/= in three instalments; Tshs. 70,000,000, Tshs. 60,000,000 and 3 : ' \ Tshs. 25,000,000/=; after the pressure of a police case and after the expiry of the six months contrary to what was agreed in the contract. The plaintiff I insisted that USD 50,000.00 was not part bf the loan agreement executed and that the defendant still owes the plaintiff Tshs. 160,000,000/=. Peter Leonard Kahozya; the plaintiff's lawyer who testified as PW2 confirmed the plaintiff's story. He testified that he1 was told by the plaintiff that there was an oral agreement to buy· a gbvernment house which had not materialized and the defendant required time to refund the money. That she would refund USD 50,000.00 on that date; 30.01.2013 and the balance would be reduced into writing as a loan agreement. That the loan would be Tshs. 315,000,000/= and not 331,000,000/= as Tshs. 16,000,000/= had been paid to the valuer. PW2 also insisted that the USD 50,000.00 paid on 30.02.2013 was not part of the loan agreement executed. On the other hand, the defendant, luckily, does not deny the contents of the Loan Agreement. However, she testifies that the loan amount has been satisfied in full. She testifies that ,she was given as a .loan Tshs. 235,000,000/= plus USD 50,000.00 as a loan making a total of Tshs. 300,000,000/=. That immediately after that, she started receiving calls to have the money paid back and that on 26.01.2013 she paid her USD 30,000.00 in the presence of her (the plaintiff's) daughter; one Lulu and one Pastor Bahati Mtiesa. That she refunded USD 50,000.00 through Bank Transfer and that she also paid USD 20,000.00 at the counter of Barclays Bank Masaki Branch on 11.02.213. The defendant goes on to testify that she paid Tshs. 70,000,000/= on 01.08.2013, Tshs. 60,000,000/= on 12.08.2013 and Tshs. 25,000,000/= on 30.08.2013. Except for the payment of USD 4 \I t 20,000.00 and USD 30,000.00, the rest of the transactions are receipted. She I testifies that the payment of USD 50,000.00 (receipted) and USD 20,000.00 and USD 30,000.00 (both not receip~ed) as well as payment of Tshs. 1. . 155,000,000/= make a total of Tshs. 315,000,000/=; I the loan . amount. The defendant . thus . avers that she does now owe the plaintiff as she has paid the 1 loan amount in full. . Ir So far for the plaintiff's and defendant's story. The learned counsel for the defendant, lin the final submissions, states that the plaintiff has not proved its case. Hie submits that as per Exh. Pl the amount that has been disclosed to have !been loaned is Tshs. 315,000,000/= ' and that once an argument has been reduced into writing, no oral agreement cannot be brought to contradict it. The learned counsel cites the provisions of section 100 of the Evidence Act, Cap. 6 of the Revised Edition, 2002 to support this proposition. The learned counsel goes on to argue that parties are bound by their pleading I and that a party cannot bring new matters at the hearing thus since Tshs. 411,500,000/= did not feature in pleadi,ngs, it could not be brought at the stage of hearing. James Funke Gwahgilo Vs Attorney General [2004] . I . 160 to buttress this point and Order VI r~le 1 of the CPC to buttress the point that the reply to the written statement of defence is not a pleading in law. Thus whatever is said therein is inconse~uential. Thus the amount involved . . . I in the transaction is as appearing in Exh. Pl and not otherwise. 5 'I t :1 On special damages of Tshs. 20,000,000A= the defendant's counsel submits I that the plaintiff has not specifically prored the same. It is trite law, he submits, that special damages must be specifically pleaded and proved as was held in Zuberi Augustina Vs Anicet MJkabe ]1992JTLR 137. ,,'I On the other hand, the learned counsel fbr the plaintiff, having analysed the . . . I evidence a great deal, submits that the plaintiff has proved that USD I 50,000.00 was paid but not as part of Ex h. Pl. The learned counsel quotes 1 I the Law of Contract, ih Edition, by Gi. C Cheshire and C. H. C Fifoot at page 103: ji 'i "If the contract is wholly injl witting, the discovery of what was written n9rmally presents no difficulty, and its interpr~tation is a matter . . I . . exclusively within the jurisdi~tion of the judge. But on this hypothesis the couhs have long insisted i that the parties are to be c~nfined within the four I corners of the document II in which they have :1 chosen to enshrine their ~greement. Neither of I them may adduce evidente to show that his I! 1i intention has been mis-stated in the document or that some essential feature![of the transaction has been omitted." " .... It is firmly establishedll as a rule of law that parole evidence cannot be admitted to add to, vary or contradict a dJ~d or other written 1 instrument. Accordingly it lias been held that ..... i 'I 6 '< I parole evidence will not be ~dmitted to prove and I some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written i~strum~nt constituting a valid and operative contradt between the parties . I . (Jacobs v. Batavia and General Plantations Trust [1924] lCh.287. Thus, where a covenant in a lease under seal provided for payment of renJ in advance, the lease was not allowed to pro~e a previous oral agreement by the by the lessor that payment should be made by a bill of Exchange maturing in three months time. The two statements were 1 manifestly incompatible, an d to prefer the llater and formal expression of i~tention was common sense" On other payments, the learned counsel states that that USD 30,000.00 and I USD 20,000.00 alleged by the respondent to have been paid in the presence I of the plaintiff's daughter one Lulu and Pastor Bahati Mtiesa and at the . I .. counter of the respondent's bankers; Barf'ays Bank Masaki Branch, were not paid at all. The learned counsel challenges the respondent if that was the ' case, she should have called those persons to testify failure of which the court I I should take adverse inference against tre respondent as was the case in Hemed Said Vs Mohamed Mbilu [1984] TLR 113. The learned counsel I also cites a passage in John Woodroffe's the Law of Evidence (lih Edition Vol. III) to buttress this point. 7 ''' As for damages, the plaintiff's counsel .submits that special damages have I been specifically pleaded and proved in that the plaintiff proved that the loan amount has laid idle without investment. It is also submitted that the plaintiff is entitled to general damages Js well because nothing out the loan amount was paid up to the expiry of six months and that Tshs. I 155,000,000/= was paid after expiry of the grace period and because of the pressure from the police. Japhet L. Lema Vs Tanzania Electric Supply I Co. Ltd, Commercial Case No. 3 of 2007 (unreported) is cited to reinforce this proposition. The learned counsel for the plaintiff ca.lls upon this court not to trust the defendant. as ~er testimony is full of cqntradictions. That she admitted to have made a statement to the Police admitting that USD 50,000.00 was paid I before the signing of the loan agreeme9t but that she forgot to inform her I lawyer to deduct it from the agreement. The learned counsel urges the court to use the defendant's statement she rade at the police to impeach her credit under the provisions of section 164 (1) (c) of the Evidence Act. .1 The first issue as framed was whether there was breach of the loan contract by either party. The pleadings as well as evidence speak loudly and clearly I that the plaintiff and defendant executed a loan agreement - Exh. Pl - on 30.01.2013 and hat one of the terms was' that the loan amount would be paid in lump sum within. six months reckoneb fro~ the date of execution. The defendant was however given flexibility to pay any amount before expiration provided that she notified the plaintiff of luch payment. This clause is found 8 i in Part IV of Exh. PEl(a) under the heJd "Anticipation of Repayment Date". For ease of reference, let me reproduce i~ hereunder: if - . I -- . "The borrower shall be entitled to repay the loan facility, in one lump .sum lithin six months fro.m t·he date ·of signing this aJreement; however the borrower is at liberty to re~ay the said ·at any time before expiration of adreed time save the 11 borrower shall not the lender in advance." 11 i The defendant, except for the paymentll of USO 50,000.00 which she states i was paid on the execution date (30.01.2~13) but denied by the plaintiff that it was not part of the agreement and USO 30,000.00 allegedly paid on i[ 26.01.2013 and USO 20,000.00 alleged!~ paid on 11.01.2013 but also denied by the plaintiff, does not deny that the est of the amount paid was so paid 1 after the expiry of the prescribed perio~. They were paid in the month of August, 2013 - Tshs. 70,000,000/= i was paid on 01.08.2013, Tshs. 60,000,000/= was paid on 12.08.2013 9nd Tshs .. 25,000,000/= was paid on 30.08.2013. These payments in Tshs. arb not disputed by the plaintiff. I 11 Before deciding on whether the defendaht breached the loan agreement, let me, at this juncture tackle on the disput1d amount; USD 50,000.00 which the defendant sta_tes was paid on the execution date (30.01.2013) but denied by the plaintiff that it was not part of t!he agreement and USO 30,000.00 allegedly paid on 26.01.2013 and 4s0 20,000.00 allegedly paid on 11.01.2013. I propose to start with the payment of USO 50,000.00. The plaintiff does not deny that she received this amount but that the same was not part of the loan agreement; it was it was in fulfilment of part of the amount disbursed to I the defendant by the plaint on an oral agreement relating to purchase of a government house. The issue that arises here is whether the payment of USO 50,000.00 was :done under Exh. PEl (a) or that itwas paid as part of the previous oral agreement. This question h•as tasked my mind. But for reasons that I will state shortly, I think the pllaintiff has shown on a balance of probabilities that the same was not covered by the loan agreement. I First, the loan agreement does not state anything about this payment. If it is true,. as the defendant tries to impresr upon the court, that was paid in execution of Exh. Pl it would have been stated so in it. I say so because, the agreement, in a clause quoted above, gave the defendant flexibility to pay any amount but she was required to notify the plaintiff beforehand. It is not indicated anywhere whether the plaintiff was so notified. When the agreement was executed, the relationship and trust between the defendant and respondent had already become souF. This should have been an alarm to the defendant to be so careful in any payment she was making in execution of the agreement executed. Both counsel have submitted on the law being trite that an oral agreement cannot be used to override a written contract. I agree. However, I state that in the present instance, the oral evidence is not used to impeach Exh. Pl but rather to show that the same was part ar1d parcel of the previous relationship between the parties. 10 On this aspect, the learned counsel for the defendant that the plaintiff should 1 be bound by her pleadings. And that a reply to WSD in which the plaintiff I pleaded this is n9t part of pleading within the meaning of Order VI rule 1 of the CPC Let me start with the averment to the effect that the plaintiff is bound by her pleadings. I agree with this contention. It ·is trite law founded upon prudence that parties a bound by their pleadings. On this point, I find it irresistible to assodiate myself with the decision of the Supreme Court of Nigeria in Mojeed kuara Yusuf Vs Madam Idiatu Adegoke SC.15/2002 (sourced through http://www.nigeria- law.org/Mojeed%20Sua ra%20Yusuf0/o20vP/o20 Mada m%20 Idiatu%20Adegoke j 0 %20& /o20Anr.htm) in which, speaking through Pius Olayiwola Aderemi, JSC, it stated: " it is now a very trite principle of law that parties are bound by their i leadings and that any evidence led by any of the barties which does not support the averments in t~e pleadings, or put in another way, which is Jt variance with the averments of the pleadings! goes to no issue and must be disregarded by the !court". . If I may be required to add another prrsuasive authority from_ Nigeria, I would add Adetoun 0/adeji {Nig) Lt~ Vs Nigeria Breweries Pie (2007) LPELR-SC.91/2002 (sourced i through http://nigeria- 11 •' . law.org/Adetoun%20OIadeji%20%28Nig%29%20Ltd%20v%20Nigerian%20B I reweries%20Plc.htm); also cited as Adetoun Oladeji {Nig.J Ltd. Vs N.B. I Pie (2007) 5 NWLR (Pt.1027) 415] in which it was also plainly stated that it is settled law that parties are bound by their pleadings and that no party is I allowed to present a case contrary to its pleadings. This is the position of the law in Nigeria as w.ell as in this jurisdiction - see Peter Karanti and 48 others Vs Attorney General and 3 others, Civil .. . I . Appeal of No. 3 of 1988 (Arusha unreported) the decision of the court of appeal and Mohamed R. Shomari Vs Principal Secretary, Ministry of Defence And National Service & 2 Ors, Civil Case No 37 of 2009 (unreported); the decisions of this court. In the case at hand, the plaintiff did not plead in the plaint as to the existence of prior oral agreement which culminated into the written agreement Exh. Pl. That was pleaded in the reply to the written statement of defence which the defendant's counsel claims that it does ~ot fall within the realm of the term "pleadings". With unfeigned respect, I fird myself unable to agree with the learned counsel for the defendant. I shall explain. The term "pleading" is defined by order VI rule 1 to mean: " a plaint or a written statement of defence (including a written statem. nt of defence filed by I a . third party) and sudh .other subsequent pleadings as may be presen,ted in accordance with rule 13 of Order VIII." 12 And rule 13 of Order VIII respecting subsequent pleadings reads: "No pleading subsequent to lthe written statement of a defendant other than by way of defence to a . I set-off or counterclaim shall! be presented except by the leave of the court and upon such terms as I ' the court thinks fit, but the court may at a pre- I trial conference require a !written statement or additional written statement from any of the 1 parties and fix a time for pre senting the same: I Provided that where a defendant has presented a written statement . of defe~ce . .I , .in. accordance . _... ..·. with : a summons to file a defence the plaintiff may, I without obtaining leave of the court, present a I . . reply to the written statement of defence with.in seven days Jfter the written statement of def~nce or) where there are two or more defendants, the last of the written statements of defence, shall have been served I upon him in accordance with the provisions of rule 2 of Order VI." [Emphasis added]. rd And Odgers on High Court Pleading and Practice (23 . . I . . .Edition) by D. B Casson, London, Sweet and Maxwell, 1991 at p. 17, has this to say about pleadings: 13 " ... the usual pleadings in a~ action are: (a)A statement of Clai1I in which the plaintiff sets out the facts relied on to support his II cause of action !I with all necessary particulars as his inju~ies and losses . . i .. . . · (b)A Defence, in which1 the defendant deals ,I with every material fact alleged· by the 1 ! ' plaintiff i his statem~nt of clam and also I states any new facts pn which he intends to reply. A defendant m;ay also set up a cross- I claim known as a Couhter-claim. 'I ( c) A Reply in which: the plaintiff deals with fresh facts raised by the defendant in his defence. A reply is i unusual except where the plaintiff sets up a counterclaim." [Emphasis supplied]. And Mogha's Law of Pleadings in I~dia (18th Edition) by S. N. Dhingra I. . and G. C. Mogha defines "pleadings" at the very first paragraph of this legal work as follows: "Pleadings are statements i~I writing drawn up and I . filed by each party to a tase, stating what his contentions will be at the trial and giving aU such 14 details as his opponent needs to know in order to l prepare his case in answer." Also in Black's Law dictionary (Abridged lih Edition) by Bryan A. Garner; I Editor in Chief, at p. 941 to 942 the term 'pleading" is defined as: "A formal document in which a party to a legal proceeding. (esp. A civil l~w-suit) sets forth or respondents to allegationt claims, denials or defences ... " Given the foregoing, I am not ready to a ,ree with the learned counsel for the defendant that pleadings entail only the plaint and the written statement of defence. On authority of the foregoing, pleadings entail the plaint, the written statement o,f . defence and other Jtatements I . in writing drawn up by a party to a suit stating what the contenti¢ns of a part will be at the trial and giving all such details as his opponent ndeds to know in order to prepare his case in defence. For the avoidance of do~bt, a reply to the written statement of defence falls within the ambit of thJ term "pleadings"; it is a pleading properly so called. The above said, the plaintiff, in referring to the previous agreement between her and the defendant, cannot be said ti state something which was not in her pleadings. She stated in her reply to WSD, which I have held to a pleading,that USD 50,000.00 was paid by the defendant_ to the plaintiff basing on the previous arrangement before Exhj Pl was executed. Actually, as can be gleaned from the pleadings and evidence, Exh. Pl was executed to 15 safeguard the amount owed by the defendant to the plaintiff after the I previous oral agreement over purchase of government houses was frustrated after the plaintiff smelt a rat having been hinted by a certain Mndolwa that the defendant was a con woman. I The above said, I find and hold that; USD 50,000.00 was paid by the defendant to the plaintiff basing on the previous arrangement before Exh. Pl I was executed. ! Let me now turn to tackle the question whether or not USD 30,000.00 I allegedly paid on 26.01.2013 and USD 20,000.00 allegedly paid on 11.01.2013 was actually paid. The defendant testified that there are no document to prove that these payments were made. However, she testified that she made these payments without documenting as she trusted the l ' plaintiff as she, before the signing of Exh. Pl, she had given her a lot of money without any document. I have found myself very hesitant to believe 1 the defendant on this contention. For, if what the defendant says is the truth, and in the circumstance where the plaintiff denies such payments, why did she not call those who were present during the transaction? She stated that she gave the plaintiff USD 30,000.00 on 26.01.2013 in the present of a certain Pastor Mtiesa and one Lulu; the plaintiff's daughter. One can understand the predicament, if any, in calling the plaintiff's daughter to testify against the plaintiff, but what about Pastor Mtiesa? Nothing has been brought to the fore why Pastor Mtiesa was not called to testify. I Likewise the defendant testified that she paid the plaintiff USD 20,000.00 on 11.01.2013 at the counter of Barclays Bank, Masaki after withdrawing the 16 same. No witness from the bank was called to testify on that fact. Neither 1 was any document tendered showing tha t the USD 20,000.00 allegedly paid on 11.01.2013 was withdrawn on that dat~. And as if to clinch the matter, no reason has been given why no witness frdm I the Barclays Bank Masaki Branch was·not called to testify in support of this assertion . . I As rightly put by the learned counsel for Jhe plaintiff, failure to call a material witness and no reasons why are disclo!ed, entitles the court to draw an I - adverse inference against a party who fails so to do. There is an abundance of authorities to support this proposition. In Hemedi Saidi Vs Mohamedi Mbilu [1984] TLR 113, a case cited to me by the learned counsel for the plaintiff, this c:ourt held (quoting from the third headnote): I "where, for undisclosed reasons, a party fails to call a material witness on /his _sid~, the court is entitled to draw an inference that if the witnesses - I were called they would have given evidence contrary to the party's interJsts." And to argue this point a little bit further I find myself convinced to borrow a leaf from a criminal case of Aziz Abdallah Vs R [1991] TLR 71 in which it I was stated: " ... the general and well khown rules is that the prosecutor is under a pri~a facie duty to call those witnesses who from their connection with the transaction in question, are able to testify on 17 material facts. If such witnesses are within reach but are not called without sLfficient reason being shown, the court may drawl an inference adverse I to the prosecution". j [See also: Hassan Edward Dul/a Vs R Misc. Criminal Appeal No; 64 of 2010 (HC unreported)]. In the case at hand, those who were present when making payment of USD 30,000.00 and USD 20,000.00 were mattrial witnesses who could reinforce the defendant's case. The defendant did lnot call Pastor Mtiesa. Nor did she call any person from the counter of Ba~clays Bank, Masaki Branch and no explanation has been given why. In the Jremises, she; the defendant is only herself to blame. This court is therefore ehtitled to draw an adverse inference that if she called them, they would have testified against her interests. I I therefore find and hold that, in the light of evidence adduced, USD 30,000.00 and USD 20,000.00 were not paid to the J1aintiff. I I I In view of the foregoing, I find and hold that after the agreement was signed, I the plaintiff paid only - Tshs. 70,000,000/= on 01.08.2013, Tshs. I 60,000,000/= on 12.08.2013 and Tshs. 25,000,000/= on 30.08.2013. 1 All these were paid in the month of August, 2013 after the expiry of six months grace period prescribed by Exh. Pl. This certainly means the defendant was in breach of the contract between her ~nd the plaintiff. The first issue is therefore answered as follows: the defendant was in breach of Exh. Pl; an I agreement executed between them for the borrowing and payment of Tshs. 315,000,000/=. 18 ', The second issue is ancillary. It is about relief. As seen at the beginning of this ruling, the plaintiff prays for, inter alia, specific damages at the tune of I Tsh. 20,000,000/= as well as general damages to be assessed by the court. As for special damages, which the Plaintiff pegs at Tshs. 20,000,000/=, it is trite law in this jurisdiction (and elsewhJre in the Commonwealth) founded upon prudence that special damages, b~ing exceptional in their character, must be pleaded specifically and strictly p:~oved - see: Zuberi Augustino Vs Anicet Mugabe [992] TLR 137, MaritiJn and Another Vs Anjere [1990- 1 1994] 1 EA 312 and Stanbic Bank Tanzania Limited Vs Abercrombie & Kent {T) Limited, Civil Appeal No. 21 of' 2001 (unreported), to mention but a few. I think it was Lord Macnaghten w~o laid down the principle in Stroms Bruks Aktie Bolag Vs John Peter Hutbhinson [1905] AC 515 at page 525 in the following terms: "Special damages on the other hand are such as the law will not infer from jthe nature of the act. They do not follow in the ordinary course. They are exceptional in their chJracter and, therefore, I' they must be claimed specifically and proved strictly." [Emphasis supplied] The above principle, which is often quoted in common law jurisdictions to I which this court is part, was followed by the Court of Appeal as a correct ' statement of the law in the Stanbic Bank case (supra) in which, reiterating 19 '' ' its earlier position in the Augustina case (supra) in which it held that special damages must be specifically pleaded and proved, the Court held: "Although not as comprehensively expressed, this Court in one of its decisionJ - Zuberi Augustina I v Anicet Mugabe, (1992] rLR 137, at page 139 said:- It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved." I [See also Gift Eric Mbowe Vs Reuben Pazia Commercial Case No. 67 of 2005 (HC unreported)]. In the case at hand, the plaintiff pleaded special damages in the Plaint and attempted in evidence to justify the claim. However, unfortunately, the attempt, in my well considered view, fell short of strict proof of the same as required by the law. Despite the statement that she has suffered loss, she t has not brought specific proof of what she has suffered so as to entitle her to be granted the prayer for specific da~ages sought for. The prayer for specific damages is therefore refused for 1ant of specific proof. Now to general damages. The plaintiff has pleaded general damages at the rate to be assessed by the court. This iJ quite apposite as general damages are never quantified; they are paid at thJ discretion of the court and, on that I I score, it is the court which decides which! amount to award - see Tanzania - China Friendship Textile Co. Ltd. Vs Our Lady of the Usambara I Sisters [2006] TLR 70 and Admiralty Commissioners Vs Susqueh- Hanna (1926] AC 655. In Admiraltycase (supra) it was stated: 20 '' ' "If the damage be general, then it must be I averred that such damage has been suffered, but 1 ·1 I the quantification of such damage is a jury I question [in our jurisdiction the court]". [As quoted in Kibwana and Another Vs\Jumbe [1990-1994] 1 EA 223]. th According to Black's Law Dictionary [Abridged 7 Edition) by Bryan A. Garner; Editor in Chief, the term "damages" is defined at page 320 as: I' I I "Money claimed by, or ordered to be paid to. A person as compensation for joss or injury". 1: :I And the term "general damages" is defin~d by the same legal work at page , I 321 as: I "Damages that the law presumes follow from the I type of wrong complained pf. General damages i do not need to be specificall~ claimed or proved to have been sustained". This position is reiterated by the court i7 the case of the Kibwana (supra) where it was held: ' "The court, in granting damages will determine an amount which will give!i the injured party I! I reparation for the wrongf4I act and for all the 21 direct and unnatural consequences of the wrongful". In the case at hand, it is not disputed between the parties that the plaintiff is 1 a business person. It is not disputed eith er that she has not utilised the full I loan amount money for six months from the date of execution of Exh. Pl and I for the rest of the time from the month of August, 2013 to date. She f certainly must have suffered damages to ntitle her the prayer sought under this head. I therefore grant her Tshs. 10,000,000/= as general damages. As for interest at commercial rate claimed by the plaintiff and pegged at the rate of 22% per annum, I am afraid, the J1aintiff is not entitled to this type of interest. I state so because interest is a ~atter of substantive law and must I be specifically pleaded - see National Insurance Corporation {T} Ltd & I another Vs China Engineering Construction Corporation, civil appeal No. 119 of 2004 and Nestory Omar Diwani t/a Diwani Cargo and Motor Vehicles Delivery Services Vs Bollork Africa Logistics Tanzania Ltd, I Commercial Case No. 99 of 2014; unreported decisions to the Court of Appeal I and this court (Khamis, J.) respectively. I In the case at hand, the plaintiff pleaded but did not lead any evidence to ishow that she is entitled to interest prior to filing of the suit. In the premiJes, this kind of interest cannot be grantable. She is, however, entitled to interest on the decretal sum at court's rate from the date of judgment to the date the sami is satisfied in full. 22 With the above said and done, I proceed to pronounce judgment for the plaintiff and declare and decree as follows: i. The defendant has breached the loan agreement executed between her and the plaintiff on 30.01.2013; ii. The defendant should pay the plaintiff Tshs. 160,0000,000/=) being balance due on contract; iii. The defendant should pay the plaintiff Tshs. 10,000,000/= as general damages for breach of contract; iv. The defendant should pay the plaintiff interest at the rate of 7% per 1 annum on the decretal amount from the date of this judgment until the same is satisfied in full; and v. The defendant should pay the plaintiff costs of the suit for one advocate. Order accordingly. th DATED at DAR ES SALAAM this 8 day of February, 2016. J. C. M. MWAMBEGELE JUDGE 23