20190628 TZHC Dar es Salaam 1

t . • ·" r IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 222 OF 2017 NM B BANK PLC ......................................................... .PLAINTIFF VERSUS KHATIBU WAZIRI MWINYI ..................................... DEFENDANT EX-PARTE JUDGMENT Last Order: 24/05/2019 Judgment Date: 28/06/2019 MLYAMBINA J. I '. . The parties herein were in an employme·ntrelationship. It is alleged that 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 No. :CR-HR 2012. The Defendant applied to be availed with loan facility, the sum of Tshs. 51,070,000/=. The main purpose of the aforesaid loan was the Defendant to pay school fees and finish his construction. Following the afore arrangement, on 31 st December, 2013 the sum of Tshs. 51,070,000/= was disbursed in the Defendant's account number 101CL20133650003 which was maintained by the Plaintiff on further condition that an installment in the sum of Tshs. 721,784,63/= shall be remitted on monthly basis until the whole principle and interest are re-paid completely. ., The Plaintiff has alleged further that, sometimes in the year 2014 it came to the knowledge of the bank that the Defendant had committed a serious misconduct in the course of his employment. Upon the Defendant being interrogated, he was found to have committed misconduct that necessitated the Plaintiff to terminate Defendant's employment on 27th March, 2014. Apart from being terminated from his employment, the Defendant was also notified that he had to settle all his outstanding liabilities with the bank or indicate that the outstanding liabilities shall be recovered. It was the Plaintiff's allegation that the Defendant had neglected to service his loan to date. Following that non compliance with the commercial arrangement entered, the Plaintiff opted to call for the entire outstanding loan to be paid by the Defendant but the Defendant did not respond to the Plaintiff's call which necessitated the Plaintiff to institute this case. Wherefore, the Plaintiff prayed for Judgment and decree against the Defendant as follows: 1. Payment of Tshs. 59,875,438.23/= 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 data of filing this suit to the date of Judgment. 3. Court interest at 12% per annum from the date of judgment until the granted amount will be paid in full. 4. General damages not less than Tshs. 50,000,000/= 5. Costs of this suit. 2 6. Any other relief (s) this hon. court deems fit to grant. The efforts of summoning the Defendant by both normal service and by publication through Mwananchi newspaper dated 22/04/2018 proved futile. Hence in terms of Order VIII Rule 14(2} {b} of the Civil Procedure Code Cap 33 {RE. 2002} the matter was proved ex-pa rte. At the hearing, the court framed three issues for determination. 1. Whether the parties entered into loan agreement. 2. Whether the Defendant breached the terms and conditions. If yes, to what extent? 3. To what relief (s) are the parties entitled. In respect of the first issue, PW1 Tony James Lusingu who is the Plaintiff's employee at Loan Centre Department testified and proved the existence of the loan agreement between the parties herein. PWl told the court inter alia that he knows Khatibu Waziri Mwinyi. He was the NMB Staff. PWl testified that, Khatibu Waziri borrowed TZS 51,070,000/= on December, 2013. It was a 72 months loan (6 years). The loan was to expire on November, 2019. The borrower (Defendant) repaid from January 2014 up to April, 2014. An approved standard staff loan application form CR-HR-2012 of Khatibu Waziri Mwinyi requesting credit amount of TZS. 51,070,000/= and Letter Offer of TZS 51,070, 000/= dated 12th December, 2013 with Ref. No. NMB/CRO/VOL.I -CR-JBR ...... 13 were admitted as exhibit PI Collectively. 3 . ' After I examined the pleading (plaint) the evidence of PWl and exhibit Pl collectively, I'm satisfied that the parties herein entred into a loan agreement. The approved standard staff loan application form and the Letter Offer of TZS. 51,070,000/= leaves no scintilla of doubts that the Defendant borrowed the sum of Tshs 51,070,000/= from the Plaintiff. On the second issue, as properly testified by PWl, Paragraph 4 of the loan agreement attracted interest of 9/%. After termination the interest become of commercial rate at 23%. Paragraph 24 of the Letter Offer required the borrower to start repaying immediately after the demand of the Bank.The loan statement which was admitted as exhibit P3 reveals that the Defendant repaid from January, 2014 up to April, 2014. The accrued interest is 6,018,390.95/= the principle balance is 48,771,929.14/= The above state of affairs indicates that the Defendant breached the loan agreement as from April, 2014 to date. Indeed, the disciplinary penalty termination from Bank service dated 27th March, 2014 which was admitted as -exhibit P2 proves that the Defendant ceased to be the employee of the Plaintiff from March, 2014. I therefore find the Plaintiff is entitled to the relief (s) prayed save for general damages, which in my view, I find it to be exaggerated the sum of TZS 2,000,000/= each year from 2019 would be just general damages to the Plaintiff. In the end, the suit is granted with the following orders: 4 -- t 1. The Defendant to pay the Plaintiff the principle balance and interest of the loan granted at the tune of TZS 59,875,438.23/= 2. The Defendant to pay the Plaintiff commercial interest at 23% per annum of the sum of TZS 59,875,438.23 from the date of filing the suit to the date of this judgment. 3. The Defendant to pay interest at 12% per annum from the date of Judgment until the granted amount will be paid in full. 4. The Defendant to pay the Plaintiff general damages at the tune of TZS 10,000,000/= 5. The Defendant to pay costs of the suit to the Plaintiff. It is so ordered. LYAMBINA JUDGE 28/06/2019 COURT: Ex-parte Judgment delivered this 28th June 2019 in the Presence of Alfred Rweyemamu Advocate for the Plaintiff and in the absence of the Defendant. 28/06/2019 5