NBC v Mongateko

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 39 OF 2023 NATIONAL BANK OF COMMERCE LIMITED……………………………. PLAINTIFF VERSUS MONGATEKO MAKONGORO MONGATEKO ……………………………. DEFENDANT JUDGMENT June 18th, 2024 & August 2nd, 2024 Morris, J This judgement is for the parties’ dispute over a Loan Facility Agreement between them (the Facility). The plaintiff sued the defendant for breach of the Facility. He alleged that the defendant’s outstanding loan stood at Tshs 223,687,419.63 by March 20th, 2023. The defendant denied all allegations regarding the breach, the outstanding debt and other liabilities. In addition, he raised a setoff claim of Tshs 633,542,416.14 against the plaintiff. The parties’ rivalry was accordingly crocheted. 2 On record, the plaintiff and defendant were once employer and employee respectively. While this relationship subsisted, the defendant borrowed Tshs 200m/- from the plaintiff on November 18th, 2015 (the loan). The loan was a buy-back mortgage from Azania Bank Limited (Azania Bank) in favour of the defendant. The parties signed Facility on the stated date (exhibit P1). The money was paid directly to Azania Bank. The loan was secured by the mortgage over the defendant’s Plot No. 1073 Block “C” – Mtoni Kijichi, Dar es Salaam (the mortgaged property). The mortgage deed was accordingly executed on November 26th, 2015 (exhibit P1). Allegedly, the defendant defaulted to repay the loan amount as contracted. The plaintiff claims that the outstanding loan amount by March 2023 was about Tshs 223.7m/- per the Bank Statement for account no. 01146000094 (exhibit P2) and Default Notices and related correspondence (exhibit P3). The defendant’s contention against the above assertions is that the plaintiff not only exaggerated the debt but also, he contributed to the plight herein by terminating the former’s employment on April 21st, 2021 (exhibit D2). He alleged further that repayment of the loan was through deductions from his salary (exhibit D1). By way of setoff therefore, the defendant 3 pleaded in his written statement of defence (WSD) that he was entitled to Tshs 633.5m/- from the plaintiff due to unfair termination of his employment (exhibits D3 and D4). The rival allegations and reliefs as presented by the parties culminated into four (4) issues being framed. They are listed below. i) Whether the defendant breached the mortgage loan facility dated 18th November 2015 by defaulting to pay. ii) If issue No. (i) is answered in the affirmative, whether non- payment of the mortgage loan facility was caused by the plaintiff. iii) If issue No. (ii) is answered in the negative, whether the plaintiff is entitled to Tshs. 223,687,419.63; 17% interest per annum; and 12.5% interest per annum. iv) To what reliefs are parties entitled. Both parties enjoyed the legal representation each. Messrs. Yohana Konda and Victor Kikwasi, both learned advocates, acted for the plaintiff and defendant respectively. Each side brought one (1) witness for testimonies. Respectively, Mr. Chuwa Sekwao appeared and testified as PW1 while Mongateko Makongoro Mongateko staged the defence as DW1. Their statements were filed and adopted by the Court as evidence in chief correspondingly in purview of rules 48, 49 and 50 of the High Court 4 (Commercial Division) Procedure Rules, 2012. Moreover, the witnesses went through the cross and re-examination sessions. Through PW1, the plaintiff tendered three (3) exhibits. The defendant had four (4) exhibits admitted in evidence. They were accordingly labelled as exhibits P1-P3 and D1-D4. Principally, the witnesses recapitulated favourable contents of the pleadings. They reiterated that own side of the suit was to be merited. PW1 (plaintiff’s Collections and Recoveries Officer), steadily testified, inter alia, that; the defendant borrowed Tshs 200m/- from the plaintiff but defaulted repayment. He stated further that, up to the time of filing this case the outstanding debt was Tshs 223,687,419.63 though the bank statement (P2), employment termination letter (D2) and notice of default together with related correspondence (P3) bore the lower amounts. He attributed the differences in figures to continuous interest chargeable on the outstanding loan amount. Furthermore, PW1 averred that the defendant intentionally defaulted to repay the debt and should, thus, be condemned accordingly. The foregoing testimony did not go through without contention. The defendant (DW1) opposed breaching the Facility or being liable to the extent 5 stated by the plaintiff. He, nevertheless, acknowledged obtaining the loan from the plaintiff and mortgaging his property as security thereof. Further, he hastily asserted that the credit was given to him on the basis of his employment with the plaintiff. And that the repayment was agreed to be through deductions of Tshs 1,856,128 from his salary each month (D1). It was his further avowal that when his employment was terminated on 28.04.2021 (D2), the outstanding debt was Tshs 182,274,711.63 for which liability he registered no refutation. He also stated that the subject termination was not only unfair (D3) but it also hindered his capacity to service the Facility. In addition, he negated being liable to pay 17% interest for want of legal basis. Finally, he stated that if he was to be found liable to pay the debt stated in the employment termination letter (D2); the same was subject of set-off from the amount awarded to him vide the employment/labour case totaling Tshs 633.5m/- (D3). After closure of the hearing session, counsel for parties prayed to and did file written final submissions. With conviction, each side submitted abridging his strengths and skeletoning the weaknesses of the opposite 6 theory. The major arguments therein are referred to by the Court in building its reasoning for or against the framed issues. By the first issue, the Court sets to determine whether the defendant breached the Facility. It interrogates if the defendant’s failure to repay the loan amounted to breach of the contract between him and the plaintiff. As shown above, the Facility was tendered as exhibit P1. Visibly, the parties acknowledged its validity and bindingness. In support of this issue, the plaintiff submitted that the defendant received the money but he neglected to repay his debt. In particular the notice of default was effective 10.11.2021. He further argued that the defendant had no reason for not paying the loan whatsoever. He swiftly dismissed the argument of the defence that termination of the defendant’s employment justified the non-payment. That is, the exhibits to do with his employment status or outcome of the labour dispute litigation did not have any bearing on the defendant’s obligation to settle his debt. To him, the Facility has no term which subjects repayment of the loan to the existence of the defendant’s employment. To this end, the plaintiff buttressed his point by the provisions of section 37(1) of the Law of Contract Act, Cap 345 R.E 2019; together with the cases of Private 7 Agricultural Sector Support Trust & JRT Agri-Service Ltd v Kilimanjaro Cooperative Bank Ltd., Consol. Civ. Appeals Nos.171 & 172 of 2019; and Simon Kichele Chacha v Aveline M. Kilawe, Civ. Appeal No. 160 of 2018 (both unreported). To conclude, it was the plaintiff’s further submissions that because the defendant admitted his debt being Tshs 187.8 as communicated to him through the notice of default; and that the defendant did not produce any proof that he paid any amount after he was served with the notice, this Court should find that he breached the Facility. However, in regard to the first issue the defendant submitted that, although he testified for the plaintiff and tendered exhibits P1- P3; PW1 (Chuwa Sekwao) did not prove the claim of Tshs 223,678,419.63 or 17% or 12.5% interest pleaded in the plaint. The defendant also consistently contended that when the plaintiff terminated his employment, the outstanding loan amount was Tshs 182,944,897.63 which is yet to be paid in full. Having dispassionately considered the parties’ pleadings, evidence and submissions; the Court is to determine if there was breach of the Facility by 8 the defendant. As noted from the discussion above, each party accuses the opposite person for the breach. To achieve an objective decision hereof the Court thus, bases on the strength of evidence on record in line with the principle of balance/preponderance of probability applicable in civil suits [Jasson Samson Rweikiza v Novatus Rwechungura Nkwama, Civ. Appeal No. 305 of 2020 (unreported)]. In so doing, the Court considers two limbs of the pertinent enquiry in this connection: aspects which rendered breach, if any; and if yes, the perpetrator of the same. I will thus, examine handful facets leading to the Court’s conclusions on the subject inquiry. Firstly, it is glaringly clear from the pleadings, evidence and submissions on record that, the loan advanced to the defendant by the plaintiff has not so far been repaid in full. The defendant borrowed Tshs 200m/- from the plaintiff and a substantial amount unsettled yet. Secondly, evident is also the fact that the tenor of the loan is yet to be exhausted. In terms of both the description text and Clause 15 of the Facility (P1), the loan was repayable in 240 monthly instalments. That is, within 20 years from 2015. Expiry thereof is thus 2035. 9 Thirdly, the foregoing span notwithstanding, the Facility contained events of default under Clause 11. One of such events includes failure “to pay any sum payable under the Agreement on its due date for payment” [Clause 11 (b)]. In other words, the borrower’s neglect, failure or refusal to settle the instalment when it falls due may be construed as breach. Fourthly, through his letter dated 12.10.2021 (P3), the plaintiff notified the defendant that the way his account was being run constituted a breach of the agreement between them. At that moment, the unsettled instalments amount - referred to as “behind schedule”, was recorded as Tshs 6,275,410. He was later put on the statutory notice in November 2021. Fifthly, the defendant appreciated that he failed to pay the instalments as contracted. That is, there is no evidence on record that the defendant ever refuted payments for the loan being in arrears. His concern was majorly on the exact outstanding amount of the loan and the reason for his inability to settle the due amount (see, paragraphs 3, 6 and 7 of WSD; and 6, 10-12 and 14 of the witness statement). I will detail such argument a little later. For now, this discussion therefore, settles my investigation at the finding that there existed breach of the Facility herein. 10 Regarding the other limb, the Court has to answer if the breach above was occasioned by the defendant. All over the record, the plaintiff claims that the defendant breached the Facility. The denial by the defendant is bonded in the argument that termination of his employment by the plaintiff was the reason for the alleged non-payment of the outstanding loan. Existence of the employer-employee relationship is not contested by either side of this case. It is also true that such relationship came to an end through termination on 24.04.2021. Further, it is manifest that the non-payment of the loan instalment by the defendant is observable at or around the time of termination of his employment. On such foregoing basis, the defendant argues that the plaintiff used to deduct the loan instalments from his monthly salary which opportunity came to a standstill with the stoppage of the employment. In other words, the defendant infers that it is the plaintiff who caused him to lack the means of repaying the loan. Hence, he should not be considered as having breached the contract. In his final submissions, the defence counsel escalated the said argument even further. To him, because the termination of employment was 11 adjudged by the CMA and High Court (Labour Division) to be unfair (D3), the employer-plaintiff cannot benefit from his own wrong. That is, by extrapolation, the plaintiff knew or ought to know that by terminating him, the defendant would retain no feasible means of generating income to repay the loan. With adequate respect, I hold that such deduction by both the defendant and his advocate is incorrect. For the two to solidify their assertions hereof, it was imperative for them to base such arguments on the legal foundation. I will explain this view in details. One, the present case is not a labour dispute. Hence, in my view, the tenets which go exclusively into that industrial dispute should be demarcated in its own squares. Two, I have gone through the terms of the Facility (P1) one after another. None of them expressly makes reference to employment between the parties in this case howsoever – not even parenthetically. After all, the security for the loan was the mortgaged property not the defendant’s salary. More relevant too, is Clause 15 of the Facility which provides the mode of repayment in the below instructive phraseology. 12 “The loan will be repaid over a period of 20 year (sic) in 240 months by equal monthly instalments payable on or before 18th day of every month.” From the excerpt above, it is evident that if parties wished to have the deductions based on the payment of salary to the defendant, such term would be conspicuously included in the agreement. Three, it was argued by the defence that the plaintiff is obliged to ascertain the ability of the borrower to repay the loan before disbursement of the same. I agree. However, if the banker fails in such undertaking, he cannot be forced to adopt the source which is convenient to the borrower. Thus, unless it is expressly covenanted by parties, the source of the defendant’s income remains to fall outside the contract. That is, even if the said source was discussed by parties prior to execution of the Facility, such discussion culminated into a binding contract which excluded the alleged gist. In law, the written terms in the contract cannot be modified or replaced by oral covenants. See, for example, Simon Kichele v Aveline M. Kilawe, Civ. App. No. 160 of 2018; and Joseph 13 Mbwiliza v Kobwa Mohamed Lyeseelo Msukuma & Others, Civ. App. No. 227 of 2019 (both unreported). All that is necessary, to me, is the obligation of the defendant to repay the debt in the contracted modus. In addition, the banker’s security contained in the Facility herein guarantees prima facie right of recovery. Four and be that as it may, if the defendant’s contractual obligation is to be associated with the status of his employment; the Facility (P1) considers his inability to pay caused by any reason (herein, loss of employment implied) as among the events of default. Consequently, Clause 11 (i) thereof runs as follows; “If your financial position has been worsened for whatever reason thereby jeopardizing the position of the Bank with regards (sic) to the outstanding balance of the loan (bolding rendered for Court’s emphasis).” Hence, if the opposite of circumstances stated above was the case; and so long as the defence pleaded setoff fusing therein the aspects of employment, the defendant was required to prove existence of such contractual term in the Facility. This onus on the defendant’s part is pursuant 14 to the law. He who alleges must prove existence of or otherwise such assertion. See, for instance, section 110 of the Evidence Act, Cap. 6 R.E. 2022; and the holding in Lupiana Michael Lupiana v Mkombozi Commercial Bank, Civ. App. No. 207 of 2023 (unreported). With the above analyses and conclusions, it is the Court’s finding that both limbs of the set interrogation have been covered in favour of the first issue of this case. That is, the subject issue is accordingly determined that the defendant breached the mortgage loan facility dated 18th November 2015 by default to pay. With the conclusion above, the Court now turns to the second issue. Through this issue, the Court surveys whether the non-payment of the loan herein was caused by the plaintiff. In addressing this issue, the plaintiff’s advocate submitted that the defendant is to be blamed wholly for the nonpayment of the loan. That is, the plaintiff had nothing to do with the defendant’s failure, neglect, inability or refusal to repay the loan. To him, the security for the loan is the mortgaged property and that, the plaintiff never contracted to have the proceeds of the defendant’s employment forming either the source of the repayment income or security for the loan. 15 On the foregoing basis, the counsel contended further that the evidence produced by the defence to the effect that termination of the defendant’s employment was illegal (D2 and D3) have no bearing on the present suit. Moreover, the assertion was made to the effect that the labour dispute involved the defendant and one Lucy Moshi against the plaintiff. Thus, the case at hand does not correspond with the former howsoever. The plaintiff stated further that, at any rate, the outcomes of the labour dispute litigation are still subject to challenge in the pending appeal at the Court of Appeal of Tanzania. On his part, the defendant submitted that he executed the Facility when he was employed by the Plaintiff; and using his salary as the only primary source of income with which he was meeting his repayment obligations (D1). Thus, after being terminated unfairly on 24.03.2021, his ability to service the loan halted forthwith (D2 and D3). To him, this event was beyond his control. He thus argued that, as both CMA and High Court (Labour Division) ruled in his favour that the termination of employment was unfair; the plaintiff was solely to blame. 16 It was submitted further that the decree amount from the labour case which is not challenged by the plaintiff anyhow is sufficient to settle his outstanding debt in full. Further, he asserted that the plaintiff’s reluctance to offset the loan using the said decreed amount is unreasonable, unjust and manifests the plaintiff’s mala fides. In conclusion, the defendant argued that he acted in good faith per the agreement and took necessary legal steps to rectify the situation but the plaintiff was unyielding. Hence, the non- repayment herein should be the found to be the plaintiff’s fault. In order for it to resolve the parties’ dispute under the second issue sufficiently, the Court makes one fundamental inquiry: what were the legal or contractual obligations of the plaintiff in facilitating the defendant’s repayment of the loan? For this enquiry, the obvious reference is the Mortgage Loan Facility Agreement (P1). I have taken the liberty to read all the terms therein: from the preambular text through to Clauses 1-25 and the execution/signing section. In principle, I did not spot any covenant through which the plaintiff was obliged to satisfy certain event or undertaking for the defendant to service the loan. 17 As alluded to earlier, the Facility does not refer to any employment factor between parties; or their employer-employee relationship. Further, having argued at lengths and depths regarding absence of the plexus between the defendant’s employment and his borrowing status; I am accordingly robbed of any contrary findings. That is, the defendant did not exhibit sufficient proof of how the termination of his employment by the plaintiff shifted the repayment obligation to the latter, fairness or otherwise of termination notwithstanding. In consequence, I side with the plaintiff’s submissions to the effect that the connection between the defendant’s employment status and his obligation to repay the loan are independent of each other. All the same, there is no proof from the defence that the plaintiff’s rights in the Facility were dependent upon existence of the defendant’s employment. This conclusion, therefore, discharges the second issue accordingly. The plaintiff did not cause the defendant’s failure to repay the loan. Now that the foregoing issue has been answered in the disaffirmation, the third issue is whether the plaintiff is entitled to Tshs 223,687,419.63; 17% and 12.5% annual interest. The plaintiff consistently pleaded, avowed 18 and submitted that the defendant defaulted repaying the loan deliberately; the contract between the parties expressly subjected the loan amount to interest charges; and that the defendant’s liability intensifies with the non- settlement of the debt. However, the defendant blatantly refuted the plaintiff’s assertions that the former was liable to pay the claimed amount together with the named interest. To him, the plaintiff did not prove how Tshs 223,687,419.63 was arrived at and the basis of applying the alleged interest rates. He thus, held it a conclusion that the claimed amount remains unproved. Nevertheless, the defendant acknowledges Tshs 182,274,711.63 as the accurate outstanding loan amount as formally communicated to him through the employment termination letter (exhibit D2). Strongly, he disagreed with being liable to pay 17% interest per annum. He claimed that the plaintiff lacked the legal justification for the same. From the rival pleadings and arguments above, it is evident that to resolve the contention between the parties; the Court needs to determine the proved outstanding loan and the justification thereof. While the plaintiff argues for the whole claimed amount and interest charges, the defence is in 19 total contention. With the examination of evidence on record, it is my unflustered evaluation and conviction that the plaintiff’s line of arguments hereof is more plausible than that of the defendant. Perchance, let me expound the justifications for this conclusion. Firstly, the plaintiff’s basis of claiming about Tshs 223.7m/- instead of Tshs 182.3m/- or 187.8m/- is that, at any given time, the outstanding amount attracted interest: both ordinary and punitive. Per PW1 (see also, paras 6 of both the plaint and witness statement) the interest rates in the Facility included 12.5% on the outstanding loan and 5% on outstanding balance in case of default. The above averment was not specifically disputed by the defendant in the WSD. However, vide his witness statement, the defendant-turn DW1 expressly denied charges of 17% interest on the loan amount (paras 3 of WSD and 12 of statement). In law, anything uncontested is taken to be accepted. Secondly, the application of interest on the loan amount as alleged in the plaintiff’s pleadings was not disputed. The defendant’s written statement of defence (WSD) purely stated that the contents of the plaint thereof were noted (see paragraph 4 of WSD). Without overemphasis, law makes it a 20 specific principle that parties are bound by own pleadings. Reference is made to Salim Said Mtomekela v Mohamed Abdallah Mohamed, CoA Civil Appeal No. 149 of 2019; Scan Tan Tour v The Catholic Diocese of Mbulu, CoA Civil Appeal No. 78 of 2012; Lawrance Surumbu Tara v The Hon. Attorney General and 2 Others, CoA Civil Appeal No. 56 of 2012; (all unreported); and James Funke Ngwagilo v Attorney General [2004] TLR 161. Thirdly, Clause 10 (a) and (e) of the Facility (P1) is categorical that the loan bears “the rate of interest of 12.5% p.a.” and “a penal interest of 5% on the outstanding balance”. Fourthly, the defendant was on constant notices and/or reminders from the plaintiff that the outstanding loan attracted interest. Identical warnings to the former are evident in the statutory default notice, the letter and emails (P3) together with the account statement (P2). Thus, it was upon the defendant to prove that he was exempt from paying the interest on the loan. Nevertheless, the 17% is forcefully and illegitimately introduced in the equation by the plaintiff. Admittedly, PW1 and the plaintiff’s counsel (in the final submissions) stated that this type of interest is not reflected in the Facility and that it was simply 21 pleaded by the plaintiff. More so, the plaintiff did not specifically prove it. It is my finding that the same just popped up in his mind as a wishful afterthought. It is illegit. I so hold. Fifthly, the defendant seemingly raised a very interesting argument in relation to increment of the outstanding loan amount. Through cross examination of PW1, the defendant’s counsel fostered the inference that lack of the plaintiff’s timely recovery action caused the outstanding amount to grow tremendously. Indirectly, he challenged the plaintiff for failure to, for example, exercise his rights under the mortgage in order to recover the amount as communicated in the termination letter (D2). On his part, PW1 testified that the plaintiff did not exercise his right to sell the mortgaged property on a number of reasons. He outlined the whys and wherefores to include, the fact that the defendant contacted the plaintiff proposing to him alternative means of settling the debt; selling of the security being the last resort to a banker; and availability of other/alternative means of loan recovery. I have read the thread of correspondence between the parties herein. It is obvious therefrom that the defendant, as early as May 2021, made necessary liaison with the 22 plaintiff regarding suitable ways of settling the debt. Indeed, he continued engaging the latter up to August 2022 (P3). Hence, it is logical for one to align himself with the plaintiff’s version of evidence and arguments that, if anything, the would-be hastened sale of the mortgage property was halted by the defendant’s efforts and willingness to find ways of servicing the outstanding loan. Further, I did not find in the mortgage deed (P1) any timeline/deadline set for the plaintiff to exercise his rights under the mortgage. Moreover, the subject line of argument by the defendant is not in his pleadings. Sixthly and lastly, the defendant raised a setoff claim in his pleadings. Nevertheless, having concluded that the gist of the industrial/labour dispute between the parties hereof does not affect the present suit altogether, I reiterate that the amount stated in the setoff section of the WSD cannot be construed as reducing the amount due to the plaintiff in the case at hand. Consequently, I find that the defendant’s posture in this connection is misplaced and unjustifiable in law. I proceed to entwine the Court’s determination of the third issue on the knot that the plaintiff is entitled to Tshs 233,687,419.63 and 12.5% only. 23 After determining the earlier issues above, the Court now turns to the fourth and last issue. That is, to what reliefs are parties entitled. Naturally, the reliefs sought by the parties herein are rival. The plaintiff prays for an order of payment of Tshs 233,687,419.63; 17% interest per annum from the day of default to judgement; 12.5% per annum as default interest from default date to full payment; court rate interest from judgment to full settlement; general damages; costs of the suit; and other discretionary remedies by the court. In alternative, he craved for the order of attachment and sale of the mortgaged property or any other defendant’s properties/assets. Nonetheless, the defendant sought the orders for: dismissal of the main suit; costs of the case; and order for payment of the setoff amount with costs. Visibly, the findings of the Court in regard to the above issues form the basis of the present but last issue. In support of his reliefs, the plaintiff argued that the defendant did not dispute the fact that the loan is still outstanding. To him, this admission is extractable from the testimony of DW1 and pleadings. Further, it was argued that the outstanding debt was subject 24 to payment of ordinary and penal interest. He finalised by contending that the plaintiff proved the case enough for the same to be allowed. To the contrary, the defendant argued that, at termination of his employment the outstanding loan was Tshs 182,274,711.63 as stated earlier. Nonetheless, since the plaintiff unfairly terminated the defendant’s employment, the reliefs sought in the suit are untenable. From the previous discussion and determination, the first and third issues were determined in favour of the plaintiff. However, the second issue was also resolved favourably to the plaintiff save for the disallowance of 17% interest. For obvious reason, I will commence by considering the reliefs sought by the defendant. As stated earlier, the defendant prayed for dismissal of the suit with costs. However, with the favourable issues to the plaintiff as presented above, the defendant’s prayer hereof is untenable. Further, the defendant prayed for the payment order of Tshs. 633.5m/- by way of setoff. For the reasons I gave while determining the nexus or otherwise of the defendant’s employment status to the case at hand, I merely reiterate that the setoff claim was not proved satisfactorily. I thus, dismiss the defendant’s setoff herein. 25 Regarding the reliefs sought by the plaintiff, I will not waste much of time hereof. The answers to the first, second and third issues above; are self-sufficient to substantiate the claimed amount together with the sanctioned interest by the Court. As correctly argued by the plaintiff’s advocate; the principal claimed amount is not contested by the defendant in total. Hence, the amount covered under the third issue is allowed wholly in favour of the plaintiff. The interest rates allowed under the third issue are also granted hereof. The basis thereof is that the defendant did not sufficiently prove that he was not liable to pay interest from the time he claims that his employment was unfairly terminated and/or when the notice of default was served upon him. In the absence of the evidence or law disentitling the plaintiff to charge interest on the outstanding loan, I find that the loan amount was still subjected to covenanted categories of interest in the Facility (P1). Moreover, I repeat that the claim for 17% interest is without justifiable cause. It stands overruled. In law, claims for interest must be pleaded, particularised and proved for them to pass. See, for instance, National Insurance Corporation (T) Limited v China Civil Engineering 26 Construction Corporation, Civil Appeal No. 119 of 2004; Zanzibar Telecom Ltd v. Petrofuel Tanzania Ltd, Civil Appeal No. 69 of 2014; Alfred Fundi v. Geled Mango and Two Others, Civil Appeal No. 49 of 2017; and Ami Tanzania Limited v Prosper Joseph Msele, Civ. App. No. 159 of 2020 (all unreported). Besides, in Yara Tanzania Limited v Ikuwo General Enterprises Limited, Civil Appeal No.309 of 2019; and Amani Safari Adventure Limited v Petrofuel (T) Limited, Civil Appeal No. 67 of 2023 (both unreported) it was held that, on the basis of mercantile practices, interest may be granted to the winning litigant even where he has not proved it specifically. I find value thereof. In addition, as I discussed above, the Facility contained ordinary and penal interest payable by the borrowing defendant. The former is pleaded and proved. However, the plaintiff did not specifically plead or prove the penal interest. Accordingly, it is not granted. Further, the plaintiff is hereby awarded 7% interest on the decretal sum from the date of this judgment to full payment. Intriguingly, the plaintiff presented a separate prayer in alternative. He states that, should the defendant fail to pay the decreed monetary reliefs; 27 the Court should order sale of the mortgaged property or other defendant’s assets for recovery of the decretal sum. With respect, I am chary not to grant this prayer. I will pen my reasons here. One, parties did not litigate on mortgage transaction and allied parties’ rights and obligations. That is, apart from admitting the mortgage deed in evidence (P1), the Court did not adjudicate on the scope of the mortgage. As an example, the parties did not prove existence or otherwise of other incumbrances to the mortgage property such as second or third mortgages. Two, the contractual obligations in the mortgage differ from those in the Facility. Three, the presented prayer is a technical infusion of the post- judgment/decree execution proceedings in this matter. The way the prayer is presented grips it all. The plaintiff would wish to engage the alternate relief only when/ after the would-be judgment debtor’s default to satisfy the decree. Obviously, such technique fits well in the ambits of the executing court. I now move to the claimed general damages. In principle, such damages are awardable judiciously. The Court considers aspects such as: the directness of the defendant’s wrong doing; if the damages are naturally 28 or probably resulting from the established wrong; whether or not, the defendant is the sole or particularly significant contributor to the established consequences; and the remarkableness of magnitude of the damages (see, Tanzania Saruji Corporation v African Marble Company Limited [2004] T.L.R 155). In the current matter, the defendant not only took the plaintiff’s notice of default seriously but also engaged the former so as they both resolve the matter as smoothly as possible. Further, in the pleadings and throughout the trial, he exhibited candid arguments and bases for his failure to pay herein, the lack of legal back up notwithstanding. Accordingly, the Court finds that there is weighty evidence to the effect that the defendant actively took necessary part in finding ways of mitigating the plaintiff’s further losses. On such basis, I will disallow the claim for general damages as I hereby do. On the similar reasoning and given circumstances of this case, each party to shoulder own costs. In fine and for avoidance of doubt, the plaintiff wins to the extent of being entitled to payment of Tshs 233,687,419.63; 12.5% interest per annum from the day of default to judgment; and 7% interest from judgment 29 to full settlement. Nonetheless, the defendant’s setoff is dismissed for want of merit. It is so ordered. The right of appeal is explained to parties. C.K.K. Morris Judge August 2nd, 2024