20191122 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL CASE NO. 219 OF 2017 NMB BANK PLC ••••••••••••••••••••••.••••••.••••.••••••.••.•••.••••.•••••.•• PLAINTIFF

VERSUS HURUMA GIDEON NYAUPUMBWE .............................. DEFENDANT EX-PARTE JUDGEMENT Date of Last Order: 17/09/2019 Date of Judgment: 22/11/2019 MLYAMBINA, J. There are three fascinating legal issues in this civil case, namely; 1. Whether there is a loan contract between the plaintiff and the defendant herein at the tune of TZs 48,200,000/= 2. Whether the defendant breached the loan contract 3. To what reliefs are the parties entitled to The matter had to be proved ex-parte following non availability of the defendant. Affidavit of service to Huruma Gideon Nyaupumbwe '· dated 12th October, 2018 and the Mwananchi newspaper dated 20 th March, 2019 ~re in record to justify proper service. It was alleged by the plaintiff that, while the parties herein were in an employment relationship, the defendant on his own will opted to apply and entered into a commercial arrangement with the plaintiff. Vide standard staff loan application form with reference 1 No. CR-HR-2012, the defendant applied to be availed with the plan facility in the sum of TZs. 48,200,000/= The plaintiff pleaded that the main purpose of the aforesaid loan was for the defendant to complete house construction. The plaintiff went on to plead that among other terms of the agreement entered between the parties were that: i. Plaintiff approved the defendant's request for un-secured staff general loan and the sum of

TZs 48,200,000/= principal sum shall be availed to the defendant. ii. The purpose of the loan was for the defendant to buy used Japanese car for his personal use. iii. Charging interest was 9% per annum and the entire principle and interest shall be paid in 72 months from drawdown date. iv. In the event the defendant opts to terminate or is terminated from employment relationship with the plaintiff, in whatsoever way, then the defendant shall continue to service the loan granted, meanwhile the plaintiff shall be at liberty to charge commercial interest on the outstanding loan. v. All costs and expenses of recovering the outstanding loan shall be on the account of the defendant. 2 Following the above arrangement, it has been pleaded by the plaintiff, that on 24th July, 2014 the sum of TZs 48,200,000/= was disbursed in the defendant's account number 101CL2014 which 1680003 maintained by the plaintiff on further condition that an installment in the sum of TZs 1,070,486. 50/= shall be remitted each month until the whole principle and interest are repaid completely. The plaintiff has further alleged that, on 23 rd December, 2014 the relationship between the parties herein were terminated under the plaintiff laid down procedure and laws. The defendant has been requested to give plausible means as to how he was going to settle the outstanding financial liabilities with the plaintiff

herein but in vain. Despite of being aware of the conditions given by the plaintiff for his resignation to be accepted by the plaintiff, the defendant opted to go ahead and leave his employment with the plaintiff without giving a viable way as to how he was going to settle his dues with the plaintiff. Despite of the plaintiff's efforts to contract the defendant to settle his dues, the defendant neglected and ignored to settle his overdue credit facility with the defendant to date. 3 ,. \ Following noncompliance with the commercial arrangement entered, the plaintiff opted to call for the entire outstanding loan to be paid by the defendant but the later did not respond to the plaintiff's call which necessitated the plaintiff to institute this case. Whereof, the plaintiff prayed for judgement and decree against the defendant as follow: 1. Payment of TZs 58, 781,551.76 being principle balance and interest of the loan granted to the defendant.

2. Payment of commercial interest at 23% per annum of the above sum from the date of filling this suit to the date of judgement.

3. Court interest at 12% per annum from the date of judgement until the granted amount will be paid in, full.

4. General damages not less than TZs 50,000,000/= 5. Cost of this suit 6. Any other relief (s) this hon. court deems fit to grant. The particulars of general damages prayed by the plaintiff are as follows: i. Loss of use of the entire outstanding amount due and owing by the defendant to the plaintiff under the terms of the loan application/agreement. 4 ii. Loss and damages occasioned by the defendant due to her failure to timely pay the outstanding amount and discharge her duties and liabilities in accordance with the terms and condition of the loan facility. iii. Loss and damages following the plaintiff's loss of investment opportunities with the money outstanding due and owed by the defendant to the plaintiff under the terms of the loan facility letter. -- At the hearing, the plaintiff --brought one witness namely Tony - James Lusingu (PW1). Under oath, PW1 told the court inter alia that he works with the plaintiff. In his testimony, PW1 stated that the plaintiff sued the defendant because he borrowed but never repaid the loan. The standard staff loan application form CR-HR-2012 Received on 12th June, 2014 by Human Resource (HR) heard office NMB Dar es Salaam from Huruma Gideon Nyaupumbwe for the loan of TZs 48,200,000/= and the letter of offer with ref. no. NMB/CRO/VOL. 1-CR-HGN/09/06 dated 09th June, 2014 approving the unsecured staff general loan of TZs 48,200,000/= were

admitted as exhibit Pl collectively. 5 . ·- PWl went on to testify that, it was a 72 Months loan. The borrower was supposed to repay TZs 868,831/= The defendant was terminated on December, 2014. He repaid for six instalments only (six months). The loan statement printed on 24th October, 2017 at 11:10:59 for the defendant's account was admitted as exhibit P2. According to PWl, up to 17TH September, 2019 the defendant owed the bank TZS 58, 781,551. PWl asserted that there are damages to the bank and other people /client cannot borrow. In the light of the afore going pleading, evidence and exhibit Pl and P2; and in the absence of any defence or denial, I find there was a loan contract between the parties herein. It was a loan at the tune of TZs 48,200,000/= for personal use. It is nowhere reflected in exhibit Pl if it was for construction purposes or buying a used Japanese car. At any rate, the Plaintiff did confuse herself in the Plaint as far as the purpose of the loan is concerned. The said loan agreement was effective as on 9th June, 2014. As such, the first issue is answered in the affirmative. To answer the second issue, there is nowhere in the ex-parte records to show that the defendant repaid the loan as per the agreement. Exhibit-P2 clearly shows that the defendant up to 10th October, 2017 had a principal balance of TZs 43, 663, 288.11 6 . ' unrepaid. That means, there

was a breach of the loan agreement by the defendant because the later, as per the loan agreement, had to repay 863, 831/= monthly. The loan agreement was to expire within 6 years (72) months. That was from June, 2014 to May 2020. Following the termination of the defendant on 23 rd December, 2014 there is nothing in record to exhibit that the defendant has further repaid the loan. So, there is a breach of the loan contract by the defendant. It is the findings of this court that where the borrower is unable to repay a loan, the bank has the right to recover the amount owing it by the borrower. In that regard, the whole principal balance unpaid to date has to be repaid as prayed. As regards general damages, the principal of law does not allow pleading to specify general damages. It is a bad pleading to specify general damages. This court in the case of Abdulahi Mohamed Isman (Father and Administrator of the Estate of the late Mariam Abdulahi Mohamed Isman v. Ki/em Engineering Co. Ltd and 3 Others made reference to the case of Edwin William Shetto v. Managing Director of Arusha International Conference Centre (1999) TLR 130 in which Mrosso J. (as he then was) held; 7 ft • ''It is wrong pleading to put specific amount in a claim for general damages. The quantum ofgeneral damage~ where awarded is assessed by the court" In this case general damages are to be based on the loss to

the plaintiff as far as her economic position is concerned. It is a financial loss. The money borrowed has not been in circulation to other clients from the year 2014 to 2019. That is five years' time. I therefore find it proper and I do grant general damages at the -. - - - - - tolar tune of Five ~till ion on-ly. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In the circumstances of the above, the suit is granted with costs as prayed save for general damages which has been granted at the sum of TZs 5,000,000/= only. Order accordingly.

MLYAMBINA

UDGE 22/ 019 Ex-parte Judgment pronounced and dated 22 nd November, 2019 in the presence of Rweyemamu Alfred advocate for the plaintiff and Radslaus Lwekaza, advocate for the defendant.

MLYAMBINA

UDGE 22/1 19 8 ----