AIZEK IBRAHIM ITEBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUB - REGISTRY OF SHINYANGA) AT SHINYANGA CIVIL CASE NO. 18 OF 2023 SHINYANGA MUNICIPAL COUNCIL ………………...1ST PLAINTIFF THE ATTORNEY GENERAL …………………….…….….2ND PLANTIFF VERSUS AIZEK IBRAHIM ITEBA………………………….…....1ST DEFENDANT MARIAM TAJIRI…………………………………………2ND DEFENDANT EMMANUEL P. KIRATI…………………………………3RD DEFENDANT KEMI S. DEOGRATIUS ………………………………...4TH DEFENDANT ANETH LAZARO………………………………………….5TH DEFENDANT ABDUL SEIF IBRAHIM…………………………………6TH DEFENDANT MARIAM M. SALUM………………………………….....7TH DEFENDANT FLORA THEOPHIL MPANDUJI………………….…....8TH DEFENDANT ZENA M. NDATU…………………...………………......9TH DEFENDANT LUCIA P. MANG’ANA………………………………….10TH DEFENDANT JUDGMENT ON ADMISSION 26th June & 12th July, 2024 MASSAM, J:. The plaintiffs therein instituted a suit by way of summary procedure under order XXXV Rule 1(e) of CPC (CAP 33 R.E 2019) against the defendants for the judgment and decree on the following orders:- 1 (1) That, the court declare the defendants breached the loan agreement. (2) That, the defendants to pay the plaintiffs the principal sum of Tshs. 18,840,000/= (3) That, the defendants to pay the plaintiffs general damages sum of Tshs. 8,000,000/= (4) Costs of this suit. (5) Any other relief (s) this Honourable court may deem fit and just to grant. Briefs facts of this matter was that all defendants are members of Mshikamano Group which is youth group entrepreneurs engaged in food and drinks services/business (Biashara ya kuuza chakula na vinywaji) which conducted its business at Buzuka street in Mjini Ward within Shinyanga Municipality with Registration No. SMC 2193. 1st Plaintiff and Defendants executed a loan agreement on 23/11/2020 for sum of Tshs. 20,000,000/= which was deposited to defendants CRDB Bank Account No. 01335252274800 for the purpose of carrying such business and they made an agreement that the said loan shall be paid in twelve months (one year) instalment from 04th March 2021, up to 04th February, 2024. Also, they agreed for each month of the first eleven 2 months the sum of Tshs. 1,667,000/= and for the last month the sum of Tshs. 1,663,000/= to be paid to the account of the 1st plaintiffs with CRDB Account No. 0150464089000 named Women Youth and People with Disability and later on payment agreed to be made via group Control No. 988950000511. The said agreement expired on 4/2/2022, defendants breached the loan agreement as they failed to pay the full amount of the loan as scheduled but also failed to pay the instalment in full which made a 1st plaintiff fail to promote the social welfare and economic well-being of the other persons within its area of jurisdiction. The 1st plaintiff loan facility committee took necessary steps trying to claim from defendants the said loan by issuing them some notices and demands without success, plaintiffs remained with no option than to institute this matter for redress. The plaintiffs served the defendants to appear and seek the leave to defend but only 1st Defendant appeared and seek leave which the same was granted and hence filed Written Statement of Defence with Counterclaim against 1st Plaintiff. In the hearing of this case plaintiffs were represented by Mr Musa Mpogole S/A while the 1st Defendant appeared in person, unrepresented. 3 Before the Plaintiff address the court in order to see if the pleading are complete, 1st defendant one Aizek Ibrahim Iteba prayed to this court to address the court where he admitted to be owed by the plaintiff amount of Tsh. 12, 550,000/= but also, he had a counter claim, alleging that he has paid some of amount which have been included by the plaintiff in his claim. So he prayed to this court to pay the said amount and returned his properties which were attached by the 1st plaintiff. On the side of the plaintiff, Mr. Mpogole replied that because the defendant has admitted to be owed by the plaintiff amount of Tsh. 12,550,000/= he thus prayed to this court to enter judgment on admission as per order XII rule 4 of CPC. He banked his argument by referring this Court to the decision of CRDB Bank PLC VS. Francis Esau Mwinuka, Commercial Case No. 92/2020 where the said position was upheld. In the cited case the court opined that the provision of order XII rule 4 of CPC are meant to serve time and costs in the determination of the fact in a suit which is not contested between the parties, in particular, when admitted in writing or otherwise and there is an application to that effect for the court to enter judgment or order as for such admission. Mr. Mpogole prayed the judgment on admission to 4 the amount which admitted but for the ones which disputed are subject to proof according to the procedure. On his rejoinder 1st defendant had nothing to add, he prayed for the prayers sort be granted. Having heard the parties, the issue for deliberation is whether the admission by the 1st defendant suffice for this court to enter judgment on admission. Notably, the provision of Order XII rule 4 which Mr. Mpogole had moved this court to enter judgment on admission provides the following: Order XII Rule 4 “Any party may at any stage of a suit, where admissions of fact have been made either on the pleading, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just” This court faced similar situation like this in different cases among them is the case of Nas Tyrese Services Limited vs. Anthony Seleman Kombe t/a Moshi Investment, Commercial Case No. 175 5 of 2018 (HCCD) DSM (unreported) had this to say in interpretation of Order XII rule 4 of the Civil Procedure Code, Cap 33 RE 2019. “the plain language of the above provision of Rule 4 demonstrates that in order for rule 4 of order XII to come into play, the admission must be in writing embodied in pleading or otherwise and must be an admission of truth as alleged in the plaint’’ (emphasis mine) Guided by the above position, and in relation to the case at hand, the 1st Defendant admitted to be owed by the plaintiff amount of Tshs. 12, 550,000/= which forms part of the Plaintiff’s claims and because the essence of the provision of order X1 Rule 4 of the CPC are meant to save the time and costs for the suit which is not contested, and by looking to the 1st plaintiff submission he did not contested the amount which defendant admitted to be owed, apparently there is no dispute that the defendant made an admission of some of claims. Equally important to note, the plaintiff has made oral application to this court to enter judgment on admission on the admitted amount. This court having gone through the proceedings and the law cited is in the firm position that, this case fit to grant judgment on admission 6 on the admitted amount of Tshs 12,550,000/= as prayed. And the 1st plaintiff to return the attached properties to the 1st defendants after the payment of the admitted amount. Other claims which are disputed shall be subject to proof in accordance to the laid down procedures. It is so ordered. Dated at Shinyanga this 12th day of July, 2024. R.B. Massam JUDGE 7