lilian onael kileo vs fauzia jamal mohamed 2016 tzhccomd 2025 18 february 2016

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 135 OF 2013 LILLIAN ONAEL KILEO .......................................................... PLAINTIFF VERSUS FAUZIA JAMAL MOHAMED............................................. DEFENDANTS 7th December, 2015 & 18th February, 2016 JUDGMENT MWAMBEGELE, J.: The plaintiff Lillian Onael Kileo filed this suit on 23.09.2013 seeking for the following reliefs against the defendant Fauzia Jamal Mohamed: i. A declaration that the defendant has breached the contract; ii. Payment of Tshs. 160,0000,000/=) being balance due on contract; 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 from 01.07.2013 at commercial rate of 22% to the date of judgement; vi. Payment of interest on the decreed amount from the date of judgment until payment in full; vii. Costs ; and 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 on 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. The plaintiff avers that out of the loaned amount, the defendant paid only Tshs. 155,000,000/=) and worse more, the amount was paid after the six months contrary to what was stipulated in the agreement. On the other hand, the defendant avers that she does not owe the plaintiff anything as the loan amount has been satisfied in full. On 27.05.2014, the following issues were framed by the court in the presence of Edward Chuwa and Crecensia Mwita who, respectively, represented the plaintiff and defendant on that date: 1. Whether there was breach of the loan contract by either party; and 2. To what reliefs, if any, are the parties entitled. 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 informed 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 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 writing as a loan agreement for the 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 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 insisted that USD 50,000.00 was not part of 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 he was told by the plaintiff that there was an oral agreement to buy a government 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 20.000.00 and USD 30,000.00, the rest of the transactions are receipted. She testifies that the payment of USD 50,000.00 (receipted) and USD 20,000.00 and USD 30,000.00 (both not receipted) as well as payment of Tshs. 155.000.000/= make a total of Tshs. 315,000,000/=; the loan amount. The defendant thus avers that she does now owe the plaintiff as she has paid the loan amount in full. So far for the plaintiff's and defendant's story. The learned counsel for the defendant, in the final submissions, states that the plaintiff has not proved its case. He submits that as per Exh. PI 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 and that a party cannot bring new matters at the hearing thus since Tshs. 411,500,000/= did not feature in pleadings, it could not be brought at the stage of hearing. Ja m e s Fu n ke G w a n g ilo Vs A tto rn e y G e n e ra l [2004] 160 to buttress this point and Order VI rule 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 inconsequential. Thus the amount involved in the transaction is as appearing in Exh. PI and not otherwise. On special damages of Tshs. 20,000,000/= the defendant's counsel submits that the plaintiff has not specifically proved the same. It is trite law, he submits, that special damages must be specifically pleaded and proved as was held in Z u b e ri A u g u stin o Vs A n ic e t M ugabe ] 1992] TLR 137. On the other hand, the learned counsel for the plaintiff, having analysed the evidence a great deal, submits that the plaintiff has proved that USD 50,000.00 was paid but not as part of Exh. PI. The learned counsel quotes the Law of Contract, 7th Edition, by G. C Cheshire and C. H. C Fifoot at page 103: "If the contract is wholly in witting, the discovery of what was written normally presents no difficulty, and its interpretation is a matter exclusively within the jurisdiction of the judge. But on this hypothesis the courts have long insisted that the parties are to be confined within the four corners of the document in which they have chosen to enshrine their agreement. Neither of them may adduce evidence to show that his intention has been mis-stated in the document or that some essential feature of the transaction has been omitted." ".... It is firmly established as a rule of law that parole evidence cannot be admitted to add to, vary or contradict a deed or other written instrument. Accordingly it has been held t h a t .... 6 1 parole evidence will not be admitted to prove and some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties (Jacobs v. Batavia and General Plantations Trust T19241 lCh.287. Thus, where a covenant in a lease under seal provided for payment of rent in advance, the lease was not allowed to prove 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 manifestly incompatible, and to prefer the later and formal expression of intention was common sense" On other payments, the learned counsel states that that USD 30,000.00 and USD 20,000.00 alleged by the respondent to have been paid in the presence of the plaintiff's daughter one Lulu and Pastor Bahati Mtiesa and at the counter of the respondent's bankers; Barclays 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 should take adverse inference against the respondent as was the case in H em ed S a id Vs M oh am ed M b ilu [1984] TLR 113. The learned counsel also cites a passage in John Woodroffe's the Law of Evidence (17th Edition Vol. Ill) to buttress this point. 7 As for damages, the plaintiff's counsel submits that special damages have 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 as well because nothing out the loan amount was paid up to the expiry of six months and that Tshs. 155,000,000/= was paid after expiry of the grace period and because of the pressure from the police. Ja p h e t L Lem a Vs T an zania E le c tric S u p p ly Co. Ltd\ Commercial Case No. 3 of 2007 (unreported) is cited to reinforce this proposition. The learned counsel for the plaintiff calls upon this court not to trust the defendant as her testimony is full of contradictions. That she admitted to have made a statement to the Police admitting that USD 50,000.00 was paid before the signing of the loan agreement but that she forgot to inform her lawyer to deduct it from the agreement. The learned counsel urges the court to use the defendant's statement she made at the police to impeach her credit under the provisions of section 164 (1) (c) of the Evidence Act. 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 that the plaintiff and defendant executed a loan agreement - Exh. PI - on 30.01.2013 and hat one of the terms was that the loan amount would be paid in lump sum within six months reckoned from the date of execution. The defendant was however given flexibility to pay any amount before expiration provided that she notified the plaintiff of such payment. This clause is found 8 in Part IV of Exh. PEl(a) under the head "Anticipation of Repayment Date". For ease of reference, let me reproduce it hereunder: "The borrower shall be entitled to repay the loan facility, in one lump sum within six months from the date of signing this agreement; however the borrower is at liberty to repay the said at any time before expiration of agreed time save the borrower shall not the lender in advance." The defendant, except for the payment of USD 50,000.00 which she states was paid on the execution date (30.01.2013) but denied by the plaintiff that it was not part of the agreement and USD 30,000.00 allegedly paid on 26.01.2013 and USD 20,000.00 allegedly paid on 11.01.2013 but also denied by the plaintiff, does not deny that the rest of the amount paid was so paid after the expiry of the prescribed period. They were paid in the month of August, 2013 - Tshs. 70,000,000/= was paid on 01.08.2013, Tshs. 60,000,000/= was paid on 12.08.2013 and Tshs. 25,000,000/= was paid on 30.08.2013. These payments in Tshs. are not disputed by the plaintiff. Before deciding on whether the defendant breached the loan agreement, let me, at this juncture tackle on the disputed amount; USD 50,000.00 which the defendant states was paid on the execution date (30.01.2013) but denied by the plaintiff that it was not part of the agreement and USD 30,000.00 allegedly paid on 26.01.2013 and USD 20,000.00 allegedly paid on 11.01.2013. 9 I propose to start with the payment of USD 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 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 USD 50,000.00 was done under Exh. PEI (a) or that it was paid as part of the previous oral agreement. This question has tasked my mind. But for reasons that I will state shortly, I think the plaintiff has shown on a balance of probabilities that the same was not covered by the loan agreement. First, the loan agreement does not state anything about this payment. If it is true, as the defendant tries to impress upon the court, that was paid in execution of Exh. PI 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 sour. 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. PI but rather to show that the same was part and parcel of the previous relationship between the parties. 10 On this aspect, the learned counsel for the defendant that the plaintiff should be bound by her pleadings. And that a reply to WSD in which the plaintiff pleaded this is not 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 associate myself with the decision of the Supreme Court of Nigeria in M o je e d S u a ra Y u su f Vs M adam Id ia tu A d e g o ke SC. 15/2002 (sourced through http://www.niqeria- law.orq/Moieed%20Suara%20Yusuf%20v%20Madam%20Idiatu%20Adeqoke %20&%20Anr.htrr0 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 pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at 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 persuasive authority from Nigeria, I would add A d e to u n O la d e ji (N ig ) L td Vs N ig e ria B re w e rie s P ic (2007) LPELR-SC.91/2002 (sourced through http://niqeria- 11 law.orq/Adetoun%200ladeii%20%28Niq%29%20Ltd%20v%20Niqerian%20B reweries%2QPIc.htm); also cited as A d e to u n O la d e ji (N ig .) Ltd . Vs N .B. P /c ( 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 allowed to present a case contrary to its pleadings. This is the position of the law in Nigeria as well as in this jurisdiction - see P e te r K a ra n ti a n d 4 8 o th e rs Vs A tto rn e y G e n e ra l a n d 3 o th ers. Civil Appeal of No. 3 of 1988 (Arusha unreported) the decision of the court of appeal and M oh am ed R. S h o m a ri Vs P rin c ip a l S e cre ta ry , M in is try o f D efen ce A n d N a tio n a l S e rv ice & 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. PI. That was pleaded in the reply to the written statement of defence which the defendant's counsel claims that it does not fall within the realm of the term "pleadings". With unfeigned respect, I find 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 statement of defence filed by a third party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII." 12 And rule 13 of Order VIII respecting subsequent pleadings reads: "No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counterclaim shall be presented except by the leave of the court and upon such terms as the court thinks fit, but the court may at a pre­ trial conference require a written statement or additional written statement from any of the parties and fix a time for presenting the same: Provided that where a defendant has presented a written statement of defence in accordance with a summons to file a defence the plaintiff may, without obtaining leave of the court, present a reply to the written statement of defence within seven days after the written statement of defence or, where there are two or more defendants, the last of the written statements of defence, shall have been served upon him in accordance with the provisions of rule 2 of Order VI." [Emphasis added]. And Odgers on High Court Pleading and Practice (23rd Edition) by D. B Casson, London, Sweet and Maxwell, 1991 at p. 17 has this to say about pleadings: 13 "... the usual pleadings in an action are: (a)A statement of Claim in which the plaintiff sets out the facts relied on to support his cause of action with all necessary particulars as his injuries and losses . (b)A Defence, in which the defendant deals with every material fact alleged by the plaintiff i his statement of clam and also states any new facts on which he intends to reply. A defendant may also set up a cross­ claim known as a Counter-claim. (c)A Reply in which the plaintiff deals with fresh facts raised by the defendant in his defence. A reply is unusual except where the plaintiff sets up a counterclaim." [Emphasis supplied]. And Mogha's Law of Pleadings in India (18th Edition) by S. N. Dhingra and G. C. Mogha defines "pleadings" at the very first paragraph of this legal work as follows: "Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such 14 details as his opponent needs to know in order to prepare his case in answer." Also in Black's Law dictionary (Abridged 17th Edition) by Bryan A. Garner; 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 law-suit) sets forth or respondents to allegations, claims, denials or defences ..." Given the foregoing, I am not ready to agree 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 of defence and other statements in writing drawn up by a party to a suit stating what the contentions of a part will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in defence. For the avoidance of doubt, a reply to the written statement of defence falls within the ambit of the 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 to 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 Exh. PI was executed. Actually, as can be gleaned from the pleadings and evidence, Exh. PI was executed to safeguard the amount owed by the defendant to the plaintiff after the 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. 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. PI was executed. Let me now turn to tackle the question whether or not USD 30,000.00 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 plaintiff as she, before the signing of Exh. PI, she had given her a lot of money without any document. I have found myself very hesitant to believe 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. 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 was any document tendered showing that the USD 20,000.00 allegedly paid on 11.01.2013 was withdrawn on that date. And as if to clinch the matter, no reason has been given why no witness from the Barclays Bank Masaki Branch was not called to testify in support of this assertion. As rightly put by the learned counsel for the plaintiff, failure to call a material witness and no reasons why are disclosed, entitles the court to draw an adverse inference against a party who fails so to do. There is an abundance of authorities to support this proposition. In H e m e d i S a id i Vs M o h am e d i M b ilu [1984] TLR 113, a case cited to me by the learned counsel for the plaintiff, this court held (quoting from the third headnote): "where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they would have given evidence contrary to the party's interests." And to argue this point a little bit further I find myself convinced to borrow a leaf from a criminal case of A z iz A b d a lla h Vs R [1991] TLR 71 in which it was stated: "... the general and well known rules is that the prosecutor is under a prima 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 sufficient reason being shown, the court may draw an inference adverse to the prosecution". [See also: H assan E d w a rd D u lla I/s/?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 material witnesses who could reinforce the defendant's case. The defendant did not call Pastor Mtiesa. Nor did she call any person from the counter of Barclays Bank, Masaki Branch and no explanation has been given why. In the premises, she; the defendant is only herself to blame. This court is therefore entitled to draw an adverse inference that if she called them, they would have testified against her interests. 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 plaintiff. In view of the foregoing, I find and hold that after the agreement was signed, the plaintiff paid only - 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. All these were paid in the month of August, 2013 after the expiry of six months grace period prescribed by Exh. PI. This certainly means the defendant was in breach of the contract between her and the plaintiff. The first issue is therefore answered as follows: the defendant was in breach of Exh. PI; an 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 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 elsewhere in the Commonwealth) founded upon prudence that special damages, being exceptional in their character, must be pleaded specifically and strictly proved - see: Z u b e ri A u g u st/n o Vs A n ic e t M ugab e [992] TLR 137, M a ritim a n d A n o th e r Vs A n je re [1990- 1994] 1 EA 312 and S ta n b ic B a n k T an zan ia L im ite d Vs A b e rcro m b ie & K e n t (T ) Lim ite d , Civil Appeal No. 21 of 2001 (unreported), to mention but a few. I think it was Lord Macnaghten who laid down the principle in S tro m s B ru k s A k tie B o la g Vs Jo h n P e te r H u tch in so n [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 the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specifically and proved strictly." [Emphasis supplied] The above principle, which is often quoted in common law jurisdictions to which this court is part, was followed by the Court of Appeal as a correct statement of the law in the S ta n b ic B a n k case (supra) in which, reiterating 19