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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CIVIL CASE NO. 8 OF 2023 LULU SACCOSS LTD..………......……………..…………..…PLAINTIFF

VERSUS AMOSI LUVANDA…..….……..………………….………….DEFENDANT

EXPARTE JUDGMENT Date: 3 May 2024 & 29 July 2024 SINDA, J.: This is a suit for breach of contract. The plaintiff alleges to have entered into a loan agreement of TZS 200,000,000 advanced to the defendant. The defendant defaulted the payment of the said loan and the plaintiff brought this claim for payment of TZS. 227,604,166/= being the principle sum plus interest. The plaintiff prayed for reliefs as follows: 1 (a) A declaratory order of the Court that the defendant has breached the loan agreement. (b) An order for payment of the amount of Tzs. 227,604,166/= as pleaded on paragraph 3 above. (c) An order for payment of interests at the prevailing commercial rate from the date of cause of action to the date of judgment. (d) An order for payment of the interest at court rates of 12% from the date of Judgment to the payment in full. (e) An order for payment of general damages as it may be assessed by the Court. (f) Costs of the suit be borne by the Defendant. (g) Any other reliefs the court deems fit to grant. The defendant in his Written Statement of Defense (the WSD) disputed most of the contents in the plaint and raised a Preliminary Objection (the P.O) that the suit is hopelessly time barred in terms of Section 3 and item 7 of Part I of the Schedule to the Law of Limitation Act, Cap 89, R.E 2019. The P.O was scheduled for hearing on 26 October 2023, however, the defendant did

not attend in court to prosecute his case. Numerous modes of service were taken by the plaintiff to ensure the respondent is informed 2 including a summons in the Mwananchi newspaper dated 16 March 2024 but in vain. The plaintiff prayed this court to withdraw the P.O., which was granted for failure of the defendant to prosecute his case. The parties didn’t go to mediation and the court was not successful to convene a final pre-trial conference and frame up issues for determination in a full hearing as the matter proceeded ex parte and the defendant did not appear at the first hearing. The plaintiff was represented by Ms. Brigita Shao, learned counsel holding brief for Ms. Mary Mgaya, learned counsel, with leave to proceed. The plaintiff brought two witnesses. The summary of evidence was as follows: THADEI H. NYASANGE (PW1), stated that he is a member of Lulu Saccoss. That, the defendant in 2015 secured a loan of 200,000,000/= to be paid in full within twenty-four (24) months. The defendant defaulted to pay the loan and interest to the tune of TZS 227,604,166/=. He further stated that the respondent had sureties and pledged two properties at Plot No. 1456 Block X Mwakibete and at Plot No. 508 Block X Mwakibete as security. A criminal case was instituted against the defendant 3 and he was sentenced. He promised to pay the loan when he finishes his sentence. The plaintiff prayed

to tender copies of the loan application form and the defendant’s letter assuring that he will pay the said loan after finishing his sentence. The documents were tendered under Section 67(1) (c) of the Evidence Act R.E 2022 as Exhibit 1 and Exhibit 2 forming part of the plaintiff’s evidence. VICTOR KIBASA (PW2), stated that he is a member of Lulu Saccoss and was a chairman from 2013 to 2015. That, the defendant secured a loan in 2015 of TZS 200,000,000/= to be paid within 24 months which he defaulted. Thus, the loan plus interest is TZS 227,604,166/=. He added that, initiatives were taken to recover the loan including instituting a criminal case against the respondent. That, the respondent prayed his sureties not to be disturbed and promised to pay the debt. However, to date the loan is still outstanding and the saccos is incurring loss. Now, the issue of determination is whether the plaintiff proved his case that the defendants breached the terms of the loan agreement. It is clear from the testimony of PW1 and PW2 that the loan agreement was breached. It is 4 clear that the plaintiff and the defendant entered into a loan agreement (Exhibit PE1) which is in accordance with section 10 of the Law of Contract Act, Cap 345 R.E 2019. According Exhibit PE2 the defendant paid only one instalment and the outstanding payment is TZS 227,604,166. Therefore, failure to pay the outstanding

amount constitute a breach of the agreement. It is the view of this court that the plaintiff and the defendant had a loan agreement and it was breached. Lastly, I will proceed to discuss the issue of relief as prayed by the plaintiff. The plaintiff has claimed several relief as stated in his prayers. Under item (b) the plaintiff claimed TZS 227,604,166/= which include the outstanding loan plus interest. It is my opinion that these claims are specific in nature and were specifically to be pleaded and proved. The amounts are pleaded in paragraph 3 of the plaint. From the evidence pf PW1 and PW2 and Exhibits PE1 and PE2, it is clear that the plaintiff suffered a financial loss of that amount. Section 110 of the Evidence Act, Cap 6, R.E 2019 states that he who alleges has a legal burden to prove before a court can decide in his favour. See: Zuberi Augustino vs. Vicent Mugabe [1992] TLR 137. 5 There are also claims of general damages which do not need proof as they are awarded at the discretion of the court. See: Peter Joseph Kilibika & Another vs. Patric Aloyce Mlingi, Civil Appeal No. 37 of 2009, (CAT at Tabora) (Tanzlii). In paragraph 10 (e) of the plaint, the plaintiff claimed for general damages caused by the defendant. In the evidence of PW1 and PW2 averred that they have suffered financial loss as a result of the breach of contract. I therefore order general damages of TZS 10,000,000 Million to mitigate the suffering. The suit is meritorious and accordingly order the following: 1. The defendant has breached the terms of the loan agreement.

2. The defendant to pay the plaintiff TZS 227,604,166/= 3. The defendant shall pay general damages of TZS 10,000,000/= 4. The defendant shall pay interest at the commercial rate of 25% per annum of the amount claimed from the date it was due to be paid to the date of judgement of this court.

5. The defendant shall pay interest on the amount decreed by this court at a court rate of 12% from the date of judgment and decree to the date of full payment and; 6. Costs for this suit be borne by the defendant. 6 Right of appeal explained. DATED at MBEYA on this 29th day of July 2024. A. A. SINDA

JUDGE 7