mkombozi commercial bank plc vs cosmas alien msigwa ta nyajigala trading center 2022 tzhccomd 324 29 september 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 45 OF 2021 MKOMBOZI COMMERCIAL BANK PLC…………………………..PLAINTIFF. VERSUS COSMAS ALIEN MSIGWA T/A NYAJIGALA TRADING CENTER……………..…........................................DEFENDANT. JUDGMENT. Date of Last Order: 3/08/2022 Date of Judgment : 29/9/2022. MARUMA J. The Plaintiff is a limited liability company incorporated in Tanzania under the Company Act, No.12 of 2002 carrying out the business of banking and lending under the Bank and Financial Institutions Act No.5 of 2006. The Plaintiff instituted a case against the Defendant, Cosmas Aisen Msigwa T/A Nyasigala Trading Centre. for the repayment of outstanding amount of TZS. 2,185,535,636.26/= resulting from three credit facilities, including a credit facility letter dated 20th April, 2016 of TZS. 1,300,000,000/=, 1 credit facility letter dated 10th April 2017 of TZS. 500,000,000/= and loan agreement dated 6th May, 2016 of TZS. 459,000,000/=. The Plaintiff is also requesting that the Defendant hand over the certificate of title for property located on Plot No. 5, Block P., with a titled deed No. 11267 MBYLR. Makorongoni Area, within Iringa Municipality, as well as duly executed mortgage deeds for the perfection of a legal mortgage in favour of the Plaintiff. From the above claims, the Plaintiff before this Court is for prays for the following reliefs:- 1. An order for payment by the Defendant of an outstanding amount of TZS. 2,185,535,636.26/= together with defaulting interest, penalties and charges thereon as it continues to accrue on daily basis being repayment of the term Loan Facility as of 23rd March, 2021. 2. An order for payment of interest on the total outstanding amount at the rate of 13% per annum for Credit Facility, computed and accruing from 23rd March, 2021 to the date of judgment. 2 3. An order for payment of interest on the decretal amount mentioned under paragraphs (1) and (2) hereinabove at the rate of 12% per annum computed the date of judgment to the date of payment in full. 4. An order for specific performance ordering the Defendant to submit original certificate of title located on Plot No. 5 Block P, Makorongoni, CT No. 11267 MBYLR, Iringa Municipality together with duly executed mortgage deeds for perfection purposes; and, an order to include the above-mentioned property liable for sale in default of servicing the said loan facility. 5. Upon failure to pay the amounts under paragraphs (1) and (2) hereinabove, an order for sale of the landed property identified as landed property located on Plot No. 152 Block Q, with Title deed No. 2484 and landed property loeated on Plot No. 5 Block P, with title deed No. 11267 MBYLR, Makorongoni Area Iringa Municipality to recover the outstanding amounts. 6. Costs. 3 The Defendant disputed the Plaintiff’s claims save for the loan of TZS. 1,300,000,000/=, TZS. 500,000/= and TZS. 459,000/= which make a total of TZS. 2,259,000,000/= secured by two landed properties known as Plot No. 152 Block "Q’ Title No. 2484 DLR and Plot No. 298 Block "O’ Title No. 16076 MBYLR and later on a second fraudulent agreement, together with FDRs totaling TZS. 2,269,282,591.59/= termed as “secondary collateral”. In addition, the Defendant raised a counterclaim in which she claimed TZS. 500,000,000/= and prayed for the following reliefs:- 1. A declaration that the loan was over secured against the law. 2. A declaration that the consolidated investment loan agreement of 4/4/2019 has come to end and an order termination. 3. That the Defendant be ordered to offset the loan and its interest against the FDRs and interest and the amount deposited by the Defendant. 4. A declaration that as of 30th July, 2021 the Defendant owes the Plaintiff TZS. 229,802,745.91/= which is excess money 4 generated by interest as well as money deposited by the Defendant after offsetting. 5. The Defendant be ordered to pay interest after 30/7/2021 at 18% of TZS. 229,802,745.91 the money it holds unlawfully till the date of judgment and decree. 6. The Defendant be ordered to pay general damages to be assessed by the court. 7. The Defendant be ordered to pay interest on the decretal sum at Court's rate of 12% from the date of judgment and decree. 8. Costs. To determine the above claims both in the plaint and counter claim, the Court framed four issues to wit; 1. Whether there are legal loan agreements between the Plaintiff and Defendant? 2. What are the terms of the loan agreements? 3. Whether the Land known as Plot. No. P5 Makorongoni Iringa Municipality was part of the security to the loans. 5 4. Whether the Defendant is indebted to the plaintiff and to what amount and visa vesa? In the hearing of this case, the Plaintiff relied upon the evidence of two witnesses Benedicto Maziku (PW1) a recovery manager, and Raphael Sakita a senior recovery manager (PW2) while the Defendant had two witnesses Cosmas I. Msigwa, the Borrower (DW1) a standard IV leaver and a businessman and Ayubu S. Sanga (DW2), a businessman. Before determination of the issues framed. I have to point out the issue raised by the counsel for the Defendant in the closing submission, which is unusual practice. The counsel for the Defendant raised the point that the plaintiff’s witness statement was not served to the Defendant within the time prescribed by the High Court (Commercial Division) Procedure (Amendment) Rules GN. No. 107 made in 2019. I have to address this point guided by the position of case law as held in the case of Sunlon General Building Contractors Ltd & Two Others vs KCB Bank Tanzania Limited, Civil Appeal No. 253 of 2017, The Court of Appeal at page 23 held that; 6 “… Secondly, it is trite position that final submissions are not evidence. As correctly observed by the High Court in the case of Southern Tanganyika Game Safaris and another v. Ministry of Natural Resources and Tourism and Others [2004] 2 E.A 271, final submissions are only intended to provide a guide to the court in resolving the framed issues...” Given the foregoing, this Court cannot consider the issue raised by the defendant's counsel because it was not one of the issues framed to resolve the dispute. Moreover, as per the proceedings of 5th July 2022, Mr. Amin counsel for the Defendant did make a prayer in respect of the preliminary objection he raised in respect of this issue after being guided by the Court. Then he tried to bring it back through the door of closing submission. This is not expected by the officer of the court, who is obligated to assist the court in determining substantive justice. Therefore, for the reasons and guidance above, this issue should not bar this Court from proceeding with issues which will determine the substantive justice as the weight of closing submission 7 is laid down in the case of Morandi Rutakyamirwa v. Petro Joseph [1990] TLR. 49. The Court held that; “…filing of closing submissions is not a mandatory requirement, meaning that; a decision in a case can be effectively rendered without the parties' final submissions…” Starting with the first issue, whether there are legal loan agreements between the Plaintiff and the Defendant. At paragraphs 5 - 13 of his witness statement, Raphael Sakita, the Senior Recovery Manager (PW2) testified that the claimed outstanding amount was derived from loan facilities, including a credit facility letter dated 20th April, 2016 of TZS. 1,300,000,000/= (exhibit P2), a loan agreement dated 6th May, 2016 of TZS. 459,000,000/= (exhibit P6), a credit facility of TZS. 500,000,000/= and letter offer issued to the Defendant consolidates the loan facilities to the tune of TZS.1,753,152,825/= (exhibit P9). This evidence was supported by the evidence of Benedicto Maziku (PW1) that the Plaintiff is claiming against the Defendant for the repayment of outstanding TZS. 2,185,535,636.26/= with defaulting interest, penalties, and charges 8 accrued as of 23rd March, 2021 from the loan facilities extended to the Defendant by the Plaintiff vide the Credit Facility letters dated 20th April 2016, 10th April 2017, 29th August 2017 and Loan Agreements dated 06th May 2016 and 29th August 2017. He added that the defendant is also contractually duty bound to hand over the Certificate of Title for property comprised on Plot No. 5, Block P with a titled deed No. 11267 MBYLR Makorongoni Area, within Iringa Municipality, together with duly executed mortgage deeds for the perfection of a legal mortgage thereon in favour of the Plaintiff, as stated under page 2 of the offer letter dated 20th April, 2016. The Defendant (DW1) did not dispute the loan facility of TZS. 1,300,000,000/= with an interest rate of 13% per annum as indicated in exhibit D1 and paragraph 6 of the written statement of defence supported by his witness statement at paragraph 8 in his witness statement. This evidence was also clarified by the Defendant in his closing submission that the Defendant disputed the Plaintiff’s claims save for the loan of a credit facility letter dated 20th April, 2016 of TZS. 1,300,000,000/= (exhibit P2), loan agreement dated 6th May, 2016 of TZS. 459,000,000/= (exhibit P6), credit facility to the tune of 9 TZS. 500,000,000/= (exhibit P5) which make a total of TZS. 2,185,535,636.26/= secured by two landed properties known as Plot No. 152 Block “Q’ Title No. 2484 DLR and Plot No. 298 Block “O’ Title No. 16076 MBYLR and later on a second fraudulent agreement, together with FDRs totaling 2,269,282,591.59 termed as “secondary collateral”. However, DW1 disputed the existing different collaterals between the two loan agreements dated 6th May 2016 (exhibit P2) and (exhibit D1) to be illegal. DW1 submitted that, in the first place, the loan was to be secured by only two properties, one of which was the land where the hotel was to be constructed. However, the Plaintiff rejected the said plot as it was bare land with less value to mortgage the loan. So, he added Certificate of Occupancy Titles for landed properties in Plot No 298 Block “O” Title No.16076 MBYLR on top of Plot No. 152 Block ‘Q’ Title No. 2484 DLR, both in my name of COSMAS AISEN MSIGWA of which upon the satisfaction of the Bank the loan was released. DW1 also testified further that he had signed the agreement on 25/4/2016 (exhibit D1) which later on he was told orally that the loan ought to be secured by his FDRs of 10 TZS. 1,071,833,659/=. DW1 went further to testify that, he was shown to have signed another agreement on the same day on 25th April 2016 (exhibit P2) which it has not been initialed at each page and he came to see that copy in the plaint wherein at Clause 7 on security it contains a property with description as Plot No 298 Block “O” Title No.16076 MBYLR, which he had never ever owned. DW1 testified to agree and signed the agreement dated 25/4/2016 (exhibit D1) together with the properties namely Plot No 298 Block “O” Title No. 16076 MBYLR and Plot No. 152 Block ‘Q’ Title No. 2484 DLR, under his name which were physically visited and valuation for purpose of loan security was done by the Plaintiff herself. DW1 also testified that there was Miscellaneous Land Application No. 21 of 2020 wherein the principal officer of the Plaintiff one MARCUS MKINI at paragraph 5 of its counter affidavit stated that the loan facility of TZS. 1,300,000,000/= was secured by Plot No. 152 Block ‘Q’ Title No. 2484 DLR and Plot No 298 Block “O” Title No.16076 MBYLR both in his name of COSMAS AISEN MSIGWA. Also, in Land Case No. 3 of 2020 (exhibit D5) the Plaintiff’s WSD and Counterclaim at paragraphs 4, 6, 25 and 27 the same was repeated very clearly. 11 Further, at paragraph 17 of the counter affidavit the deponent officer stated that they were not aware of landed property situate on Plot No. 5 Makorongoni area in Iringa Municipality, (exhibit D4). Having perused the referred exhibits P2 and D1, it is the finding of this Court that the two agreements signed on the same date have differences in respect of security to secure the same loan. Looking at the Security Clause in Exhibit P2, it shows that the security for the loan includes, I quote, “… The business loan facility shall be secured by two landed properties located on plot No. 152, Block Q, with a title deed No. 2484, DLR Plot and Plot No. 11267-MBYL located at Iringa main bus stand, both situated in Iringa Municipality. Also, the Client pledged his FDR’s which value 1.07 billion as a secondary collateral for this loan...” While a copy of the loan agreement exhibit D1 contains different security under item 7 termed “Security”, I quote: “…The business loan facility shall be secured by two landed properties located on plot No. 152, Block Q, with a title deed 12 No. 2484, and Plot No.2287--MBYL located at Iringa main bus stand, both situated in Iringa Municipality…” Looking at the two copies of the loan agreements crafted by one source (the Plaintiff’s Bank) and the arguments raised by the Defendant, it raised a question on which one should prevail. The two versions have different security to secure the same loan of TZS. 1,300,000,000/= though they came from the same source and signed by the same parties on the same date. I have also gone through the other loan agreements dated 29th August 2017 of TZS. 459 million (exhibit P6) and that of 500 million dated 10th April 2017 (exhibit P5). I found the two copies were signed in the same manner as the loan agreement (exhibit D1) and the copy of the loan agreement exhibit P2 is not initialed on each page like the three ones. Moreover, as per the evidence of DW1 in his witness statement under paragraphs 12 & 13 supported by exhibit D4 & D5, the Plaintiff’s officers confirmed that the loan facility of TZS. 1,300,000,000/= was secured by land properties Plot No. 152 Block ‘Q’ Title No. 2484 DLR and Plot No 298 Block "O" Title No.16076 MBYLR both in the name of COSMAS AISEN MSIGWA. Further, at paragraph 17 of the counter affidavit (exhibit 13 D4) the deponent officer stated that they were not aware of any landed property situated on Plot No. 5 Makorongoni area in Iringa Municipality. All these testimonials established that the loan agreement signed by both parties on 6th May 2016 was the one having the two securities as reflected in exhibit D1 and not the ones reflected in exhibit P2. It is very unfortunate for the Plaintiff not to put the record clear, which has resulted in the confusion and allegations by the Defendant. However, the arguments raised by the Defendant in paragraphs 12 and 14 of his witness statement could have legal effect if the Defendant could not recognised any of the loan agreement. However, that is not a situation in the present case as long as the Defendant admitted to accepting and signing the loan agreement (exhibit D1). Moreover, there was a possibility of the two versions due to the fact established by the Defendant (DW1) in paragraphs 6, 7 and 8 of his witness statement that after being advised to write a letter, exhibit P1 requested a loan amount of TZS. 1,300,000,000/= to be secured by two properties, one of them to be the newly constructed hotel. 14 The Plaintiff did not accept the offer because the hotel land had no value as there were no improvements and no certainty of its existence, thus why it was required for other properties, as reflected in the letter dated 8th April 2016 attached to exhibit P1. This could be a reason that the two agreements were issued and, upon satisfaction of the bank, that was when the loan agreement (exhibit D1) came into existence and was signed by both parties. This also makes sense, as normally the loan should be secured by the property landed for recovery purposes in case of default. Also, the argument by the Plaintiff in his reply to the counterclaim that the Defendant had changed exhibit D2 and replaced it with another title of Plot No.2484 DLR is a mere allegation as discussed above. Also, if the loan agreement was the correct version, why was it not initialed or signed by the Defendant as it was done in other loan facilities of 29th August 2017 of TZS. 459 million (exhibit P6) and that of 500 million dated 10th April 2017 (exhibit P5). Besides, the loan agreement (exhibit D1) makes sense based on the conditions and financial regulations by the Bank of Tanzania that security for the loan should be perfected before the disbursement of the loan. Thus, why were properties Plot 152, 15 Block Q title No.2484 (exhibit D2) and Plot 298, Block O title No. 16076-MBLYR (exhibit D3) mortgaged to secure the loan facility of TZS. 1,300,000,000/=. On the above guide, since the Defendant admitted to signing the loan agreement (exhibit D1) and the fact that he did take the said loan for the purpose of construction, as indicated in exhibit P1, he is bound by section 34C (4) of the Evidence Act, Cap 6 RE 2019. Also, applying the evidence above under the law of contract, there is an agreement to be enforceable by the law as DW1 believed to be the true version as provided under section 2(e) of the Law of Contract Act, Cap 345 R.E of 2019 that; “… Every promise which form the consideration or part of the consideration for each other is an agreement…” It is a trite law that parties are bound by their promises as it was held in the case of Edwin Simon Mamuya vs Adam Jona Mbala [1983] T.L.R 410 at 414 whereas Lugakingira J relying on the decision in the case of Robertson & Minister of Pension (1949) 1 KB 227 emphasized that;- 16 “… If a man gives a promise or assurance which he intends to Be binding on· him and to be acted on by the persons to who it was given then, once it is acted on he is bound by it...” Therefore, since the Defendant (DW1) did admit to recognising the agreement (exhibit D1) and signing it, he is bound to the said agreement. Moreover, DW1 did not dispute the other loans which resulted in consolidation. The defendant is bound by the said agreements and the issue of illegality is baseless and has failed totally. Furthermore, the decisions cited by the Plaintiff to justify the legality of exhibit P2, such as those of the Court of Appeal in the case of Zanzibar Telecom Limited vs. Petrofuel Tanzania Limited, Civil Appeal No. 16 of 2014 and the English case of Reveille Independent LLC vs Anotech International (UK) Ltd, cannot be applied to the present case because the circumstances and facts differ. According to the aforementioned findings, the first issue is answered affirmatively in that there were legal agreements between the Plaintiff and the Defendant, as discussed above, in respect of the 17 three credit facilities totaling TZS. 1,753,152,825/=, as per the rescheduling letter, which maintained the terms and conditions of the 2016 agreement (exhibit D1). Moving to the issue of what are the terms of the loan agreements. As it is testified by PW1 and PW2, the loan facilities of 20th April, 2016 of TZS. 1,300,000,000/= (exhibit P2) requested in exhibit P1 was for the purpose of financing the construction of the hotel at Iringa on land comprised of Plot No. 5, Block P, with a titled deed No. 11267 MBYLR, Makorongoni Area, within Iringa Municipality. The terms and conditions of the said facility were that the loan term was 60 months with a grace period of 12 months. The interest rate was to be 13% per annum with a penal interest at 5%. The credit facility was to be secured by two landed properties Located on Plot No. 152, Block Q, Area with CT No. 2484 and Plot No. 11267-MBYLR as per exhibit P2 which was strongly objected by the Defendant that the property on Plot No. 298 was another property secured for the said loan as discussed and ruled above. Also, the Plaintiff had the right to set off from other accounts. Another was credit facility to the tune of TZS. 500,000,000/= for the purpose of 18 financing completion of the construction of the seven (07) storey building to be a hotel located on Plot No. 5, Block P, with a titled deed No. 11267 MBYLR, Makorongoni Area, within Iringa Municipality (exhibit P5). The terms for this loan were that the facility was for a period of five years' repayment with a grace period for the first six months. The rate of interest was 18% per annum with an additional penal interest of 5% per annum charged on the entire outstanding amount in the event of any overdue on any account. This facility was secured by five respective FDR receipts, including 000001291, 000001267, 000001266, 00001279 and 00001284 to the tune of TZS. 1,197,561,691.90/= Another facility was that of TZS. 459,000,000 issued by the Plaintiffs through the facility letter dated 29th August 2017 (exhibit P6) with the purpose of an additional construction loan for the completion of the then ongoing construction of the hotel at Plot No. 5 Block P. The terms were that the facility was for a period of five years' repayment with a grace period for the first six months. The rate of interest was 18% per annum with an additional penal interest of 5% per annum charged on the entire outstanding amount in the 19 event of any overdue on any account. The condition was that the loan was secured by five respective FDR receipts, including 000001291, 000001267, 000001266, 00001279 and 00001284 with a total of TZS. 1,199,282,591.59/=. The last was the consolidated loan at a tune of TZS. 1,753,152,825/= (exhibit P9) with a rate of 13% interest. The tenor of the loan was for a period of 40 months. The loan was scheduled to be paid in monthly instalments of TZS. 62,821,300 starting on March 30th, 2019.The other terms of conditions were those of the first loan facility (exhibit D1). Having the terms and conditions of the said loan agreements, let’s move to the next issue on whether the land known as Plot No. P5 in Makorongoni Iringa Municipality was part of the security for the loans. As discussed in issue No. 1 where the parties herein disputed over the two versions of the loan agreements (exhibit P2 and exhibit D1) in regard to securities for the loan of TZS. 1,300,000,000/=. As evidenced by DW1, the signed loan agreement (exhibit D1) was ruled out as the preponderating loan agreement on the balance of probabilities. Being precisely, I quote, 20 “…The business loan facility shall be secured by two landed properties located on plot No. 152, Block Q, with a title deed No. 2484, and Plot No.2287--MBYL located at Iringa main bus stand, both situated in Iringa Municipality…” According to the above, the Land Plot No. P5 Makorongoni, Iringa Municipality was not used as collateral for the loans. This fact is also supported by the evidence of (exhibits D2 and D3) the mortgage properties landed for the loan taken. This also does make sense as a normal practice by any financial institution to secure the loan taken without any uncertainty of the recovery in case of default. The arguments made by the Plaintiff that the loan should be read together with the request from the Plaintiff (exhibit P1) or that the Defendant has changed the mortgagee property does not amount to overturning the Defendant’s testimony. Besides, reading the said request letter (exhibit P1) in respect of the property in dispute, it reads, I quote, “… YAH: MAOMBI YA MKOPO WA UJENZI WA JENGO WA KIASI CHA TSH.1,300,000,000/=……………Kwa sasa nina mahitaji ya kuanza ujenzi wa jengo la ghorofa saba (7) katika kiwanja kilichopo eneo la 21 stendi kuu ya Iringa Mjini………………….. Mkopo huu utadhaminiwa na nyumba zangu mbili zilizopo Iringa Mjini,ikiwa mojawapo kiwanja chake ndiyo kitatumika kujenga jengo hilo…” I was asking myself how the bank could take such a risk accepting the property based on the request letter, which merely mentioned the property without any details such as plot number or title number. In addition, the Defendant also argued that in the first place, the Plaintiff did object to the said plot as it was bare land with less value to secure the loan. Furthermore, the Plaintiff provided no survey or evaluation of such plot, BOQ, or arrangement to assess the proposed security. Also, normally the bank cannot disburse the loan before perfection has been done and received all collateral with respect to the loan being granted. Even if the Plaintiff relied on (exhibit P8) to argue that when the Defendant requested the consolidation in January 2019, the Plot No.5 block P Makongoroni was secured to secure three facilities. Then, the question was why the Plaintiff accepted the request and issued a letter offer without perfecting the plot, which was not in their possession by that time. In 22 the absence of all these, the Plaintiff has to be blamed for taking such a risk. Hence, the 3rd issue is therefore answered in the negative. Having the answer to the above issue, the final issue is whether the Defendant is indebted to the Plaintiff and to what amount and visa vesa. In answering this issue, I have to be guided by the documentary evidence before the Court. This is also answered together with the claim of TZS. 500,000,000/= claimed against the Plaintiff/Defendant in the counterclaim. With due respect, I really appreciate the calculations and arguments made by both parties in respect to the amount to be paid. However, in the existence of documentary evidence the law is very clear of its weight over the oral evidence as provided under Section 100 (1) of the evidence Act, Cap. 6 R.E.2019 as produce hereunder provides that: "…When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other 23 disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act…” This is also stated in the case of Umico Limited Versus Salu Limited, Civil Appeal No. 91 OF 2015 at page 15, The Court of Appeal directed very clear that; “…So long as the lease agreement was in writing there is no room for oral evidence to come in…” Based on the above guidance of the law, it is the Plaintiff’s claim that the outstanding amount as TZS. 2,185,535,636.26/= with defaulting interest, penalties, and charges accrued as of 23rd March 2021 from the loan facilities extended to the Defendant through the credit facility letters dated 20th April 2016 (exhibit D1), 10th April 2017 (exhibit P5) and 29th August 2017 (exhibit P6). However, it is also on record that the outstanding amount by the time the three facilities on 4th April 2019 was TZS. 1,753,152,825.77/= with an interest rate of 13% (exhibit P9). Therefore, any evidence that the Plaintiff did deduct the amount from 24 the DW1’s account and the evidence that the Defendant deposited some amount to clear the loan before the consolidation of the facilities I don’t think could be of help to the determination of an outstanding amount since by the time of the consolidation it was very clear that the amount was TZS.1,753,152,825/=. Therefore, the calculation of amount should base from date of consolidation. It is also on record that the consolidated loan facilities were secured by the FDRs, which, as per the last loan agreement of 29th August 2017 the said FDRs No. 000001291, 000001267, 000001266, 00001279 and 00001284 were for a total of TZS. 1,199,282,591.59/= with an interest of 13% (exhibit P6). That means the amount of TZS. 1,199,282,591.59/= was not supposed to be disturbed save for recovery in case of default. In addition, there are instalments which were credited from Defendant’s current account 002102201643801 to clear the loan as seen in the testimony of PW1 evidenced by statement of account (exhibit P7). However, since the FDRs were part of the loan collateral. The said FDRs should be treated as agreed in line with the agreement of 4th April 2019. It means the utilisation is contingent upon the default by the Defendant and was supposed to 25 be once and not on a monthly basis. However, as per the terms of an agreement of 30th March 2019 executed on 4th April 2019 (exhibit P9) It was agreed the payment to be on monthly basis. Then if the Plaintiff claimed that the credited amount has a link with the FDRs, then calculations should be based on the amount which was already credited from the Defendant's current account 002102201643801 to clear the loan from 4th April, 2019 the date of consolidation on the three facilities and disbursement of TZS.1,753,152,825/= as per exhibit P7 to 30th March 2021. If there is still an outstanding amount, then it should be settled either by the Defendant depositing the outstanding amount or by the Plaintiff proceeding with the recovery measures in terms of security to the loan as discussed in the issue no. 2 as per exhibit 9 and exhibit D1. Therefore, the Defendant is obliged to clear the balance together with the interest of 13% per annum from 4th April 2019 to 30th March 2021. This is upon the calculation and reconciliation with the FDRs available at the bank and interest accrued since the consolidation of the loan facilities on 4th April 2019. 26 In regard to the relief of general damages, neither party has sufficiently proved the claim for general damages to be entitled to the relief sought as it has been guided in the case of National Bank of Commerce Ltd vs Lake OH Commercial Appeal No. 5 of 2014, HC of Tanzania Commercial Division, Mwambegele J. In that case it was held that: “…If damage be general, then it must be averred that such damages has been suffered…” On that basis, with mere statements from DW2 that he was about to rent the hotel without any proof of the existence of the said transaction. There is no damage which has been established to amount to the grant of general damage. In the event the judgment in terms of the plaint and the counter claim is entered as follows;- 1. The Defendant in the Plaint shall pay an outstanding amount of the three consolidated facilities through the offset of the loan against the FDRs and accrued interests therefrom. 27 2. The Defendant in the plaint shall pay the interest of an outstanding amount stipulated in (1) at the rate of 13% per annum for the consolidate credit facilities accrued from 23rd March, 2021 to the date of judgment. 3. The Defendant in the plaint shall pay an interest on the decretal amount mentioned under paragraphs (1) and (2) at the rate of 12% per annum from the date of judgment to the date of payment in full. 4. Upon the failure to pay an outstanding amount. The Plaintiff shall enforce recovery measures as agreed in the loan agreement of 6th May 2016 and 4th April 2019 within prescribed time indicated therein. 5. The Defendant in the counterclaim shall refund all the remaining amount of the FDRs and interest generated by the FDRs after the offsetting of loan amount and interests. 6. The Defendant in the counter claim shall be ordered to pay interest of the remaining amount at the rate of 18% from the of judgment to the date of fulfilling the decree. 28 7. The Defendant in the counter claim shall pay an interest on the decretal sum at Court's rate of 12% from the date of judgment and decree. 8. Defendant in the counter claim to incur costs to the suit. Dated at Dar es Salaam this 29th day of September, 2022. Z.A. MARUMA, JUDGE. 29