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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOROGORO AT MOROGORO CIVIL APPEAL NO 16 OF 2023 (Appeal from the decision of the Resident Magistrate Court of Morogoro at Morogoro in Civil Case No 1 of 2022 before I. G. Lyatuu Esquire Senior Resident Magistrate dated 14. 4. 2023) BETWEEN SPEAR AMANI KOMANYA APPELLANT VERSUS FUJO 3UMA KALUSUSU........ ..1®^ RESPONDENT FARIDA KALUSUSU 2^" RESPONDENT JUDGMENT MRUMA, J The Appellant Spear Amani Komanya was the Plaintiff in Civil Case No 1 of 2022 before the Resident Magistrate Court of Morogoro at Morogoro. The present Respondents Fujo Juma Kulususu and Farida Kulususu were Defendants in that case. In that case the Appellant herein was claiming against the Respondents jointly~B7Td~siv|ra+ly~^for payment of Tanzania 1/^ shillings 123, 000,000/=being the outster^dlng loan amount advanced to them by the Appellant pursuant to a written agreement entered between the parties. After hearing the evidence of both sides the trial court dismissed the Appellant's claims with costs on the ground that he had failed to prove his case to the required standard. Aggrieved with the findings and decision of the trial court the Appellant has lodged this appeal on the following grounds: 1. That the learned trial magistrate erred in law and in fact in holding that there was no valid agreement between the parties while in their pleadings the Respondent never dispute the existence of the same; 2. That the learned trial Magistrate erred in law and in fact in grounding its decision on extraneous matters not borne by evidence on record; 3. That the learned trial magistrate erred in law and in fact in not holding that the Respondents breached the loan agreement and' 4. That the learned trial magistrate erred in iaw and in fact for failure to properly evaluate the^vid€C!ce^m=ecord thereby reaching at an erroneous conclusion in not tlTaTthe Defendant breached the loan agreement. Initially this appeal was assigned to his Lordship Malata 3, who handled all preliminary stages. Upon his transfer to another working station, the appeal was re-assigned to me for hearing and composing judgment. At the hearing parties were represented. The Appellant was represented by Ms Alpha Alex Siklaumba while the Respondent was represented by Mr Ignasi Seti Punge both learned advocates. Briefly, the material facts of the case as can be discerned from the pleadings of the parties and trial court's records may be recapitulated as follows; that parties in this appeal are long-timer business friends and they used to support each other. Due to their long-time friendship in the year 2018 the Appellant advanced to the Respondents a loan of one Hundred and Twenty-Three Thousand Million (123,000,000) only which was to be paid within a period of six months. According to the Appellant the purpose of the loan was for construction of the Respondent's building known as Samaki Samaki which was owned by the Respondents and in which they were conducting a bar business. According to the Appellant despite involving their friends and sending demand notices through and advocate the Respondent did fail to hond^^/uiie t^hm^ of the agreement and hence the matter at hand. During the trial, apart from himself the Appellant called one witness namely Damari William Nyange(PW2)an advocate of the High Court who told the court that she prepared and witnessed the signing of the loan agreement between the parties (Exhibit PI). In his defence the Respondent (the Defendant therein), Fujo Juma Karurusu testified himself and called one witness his wife Petronila Vincent (DW2). He denied to have entered into a loan agreement(Exhibit PI) with the Appellant. She told the trial court that the Appellant advanced to them Shillings 40,000,000/= which was deposited in his bank account with Azania Bank which he had re-paid since then. He tendered in evidence a Current Customer's Account Statement of one Fine And Fabulous Boutique (Exhibit Dl) which indicated that the Appellant did on 17^^ August 2019 did make an Internal Transfer of Shillings 40,000,000/=to that account. It was further testimony of the Respondent's that, that was the only amount they received from the Appellant as a loan. His story was supported by that of his wife Petronila Vincent(DW2) who told the court that on 17*^^ August 2019 her husband informed her that the Appellant Spear Amani Komanya had deposited Shillings 40,000,000/= into their business current account^xShfbit^l). It is worth noting here that Petronila Vicent (DW2) denied to ljg|/the s^e^j^perSon as Farida Kulususu, the second Respondent herein who was the second Defendant in the original suit. Upon full trial the trial court found that on the evidence on record, the plaintiff had failed to prove the case to the required standard and it dismissed it with costs. This is the first appeal, the first appellate court has the duty and power to revisit and re-evaluate the entire evidence in an objective manner and come up with its own findings of facts (See Civil Appel No 219 of 2018 between Leonard Dominic Rubuye T/a Rubuye Agrochemical Supplies Versus Yara Tanzania Limited CAT Dar Es Salaam (unreported)). This court in its appellate jurisdiction reviews the evidence and the decision of the trial courts to make sure that the proceedings were fair and that proper law was applied correctly. The first complaint is that the trial magistrate erred in law in holding that there' was no valid contract while the Respondents never disputed it in their pleadings. I have carefully gone through the parties pleadings. The Appellant pleaded existence of the loan agreemerCijQd^paragra^S of his plaint and the Defendants denied it under paragraph^i^f their^^giot-^ritten statement of Defence which was signed by both Respondents. Rule 3 of Order VIII of the Civil Procedure provides as follows:- Itshall be notsufficientfor a defendantin his written statement to deny generally the grounds alleged by the Plaintiff, but the Defendant must deal specifically with each allegation offact of which he does not admit the truth except damages" Under Rule 4 of the same Order, the law says:- "Where the Defendant denies an allegation offact in the plaint, he must not do so evasively, but answer the point ofsubstance. Thus ifit is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but must deny that he received that sum or any part thereofor else setouthow much he received. And ifan allegation is made with diverse circumstances, it shaii not be sufficient to deny it along with those circumstances" As Indicated above In paragraph 3 of the Plaint, the Appellant alleged specifically that he advanced Tanzania Shillings One Hundred Twenty Three Million (I.e. TZS 123,000,000/=) to the Respondents. As can be discerned from paragraphs 2 and 3 of the pmMyr^ statement of defence, the Respondent on their part didn't dealUpeclflcatl^^'witF the point of substance the allegations, (that Is to say that they received Shillings 123,000,000/= from the Appellant or any part or deny) as required by Rules 3 and 4 of Order VIII of the Civil Procedure Code, Instead of denying splclcally, under paragraph 2 of their defence statement they made a general denial of the allegations and claimed that the Appellant's claims were unreasonably Inflated. I find this to be an evasive denial of the allegations of the facts. It Is an evasive denial because they did not directly deny a particular fact or allegation made by the plaintiff to wit receiving shillings 123,000,000 as a loan. Instead they made vague, ambiguous or evasive reply that the claims were unreasonable and vague. In law of pleadings a defendant should provide clear and specific response to every allegation put forward by the plaintiff. In the case of Fikirini Issa Kocho Versus Computer Logix and Others Civil Case No 151 of 2012, this Court (Twalb J, as he then was) held that:- "It is Insufficientfor the Defendant to simpiy put the Plaintiff to strictproofofseveral aiiegations in the Piaint" Thus, by putting the Plaintiff to strlcC^rooTorElTeldalms and vaguely suggesting that they were Inflated, the Respondents did not provide \ iXA- a clear and specific response to the claims. Moreover, under paragraph 3 the Respondents admit the allegations that they were close friends of the Appellant and that they had long business relationship with him. The Respondents further admitted that:- various occasions, the Piaintiffadvanced to the Defendants some amount ofmoney which attracted extraordinary interests" They didn't specifically on which 'Various occasions" they received some amount of money from the Appellant apart from August 2019 in which they admitted to have received Shillings 40,000,000/= from him. I take it that one of those "various occasions" was on 27^^ July 2018 in which they received Shillings One Hundred Twenty Three Million (TZS 123,000,000/=) and signed the Mkataba wa Kukopeshana Fedha (Exhibit PI), which was witnessed and attested by Damari William Nyange (PW2) an advocate of the High court. It was important for the Defendant to provide a specific denial in their Written Statement of Defence as required by Rule 5 of Order VIII' of the Civil Procedure Code.Svi^re evasive denial^cannot be considered as sufficient denial and the alleqa^ns i^^de in the plaint may be treated as admitted. The second ground of complaint in this appeal is that the trial magistrate erred in law and in fact in grounding his decision on extraneous matters. In its judgment the trial magistrate stated at page 8 thus:- "In my view, after going through the entire contract, especiaiiy ciauses 1 and 2, I am satisfied that it is doubtfui if at aii the contract wassigned in the presence ofPW2 who according to his oath is an advocate. Iam saying so because the two paragraphs indicated that the money were paid upon signing the said contract... 1.Kwamba Mkopeshaji amewakopesha wakopaji fedha Taslim shilling Milioni Mia Na Ishirini na Tatu (123,000,000/=) tu kama ilivyoelezwa hapo juu leo tarehe 27 Julai 2018 kwa dhamana ya baa ya Wakopaji yenye maelezo vakejiapo juu. 2. Kwamba Mkopeshaji amekwishaw/al^bidhi wakopaji fedha i y hizo wakati wa kutiliana saini Mkataba m' It was the findings of the learned trial court's magistrate that nowhere did the agreement show that the money was given to the Respondents in car and he wondered how such huge amount of money could be given inside a car and why the money was not given in presence of PW2. This is a bit strange because there is no law that requires the contracting parties to state in the agreement the place or even mode of delivery of the money and/or property the subject of their agreement. What is important is safety of both the cash and the contracting parties. Secondly, according to PW2, an advocate of the High court what she witnessed was the signing of the loan agreement (Exhibit PI) between the lender and the borrower and not disbursements of the money loaned. Like any other loan facilities or agreement, the role of an advocate is to attest and see that parties have dully signed their agreement. Advocates do not witness disbursements of the funds to the borrowers. Lpoking at clause 2 of the Mkataba wa Kukopeshana Fedha (Exhibit PI), by the time of signing of the agreement the loaned money had already-^fee^handed over to the borrowers. The relevant part of that clause stateg^ Kiswaftili?- 10 "Kwamba Mkopeshaji amekweisha wakabidhi Wakopaji Fedha hizo Wakati Wa kutiUana Sain Mkataba Huu. In my translation of the above clause it means that by the time of signing of the agreement money had already been disbursed to the borrower and this is very common in business transactions and particularly so when the contracting parties are long- time friends like the parties in these proceedings. There is another undisputed evidence on record which suggests the existence and therefore validity of the agreement. Prior to instituting these proceedings the Appellant through his advocates Sikalumba Law Chambers wrote a demand letter (notice) to the Respondent with reference number SLC/DOC/08 dated 2/ll/2021(Exhibit P2). The Respondents through their advocate one Mshikilwa Peter of Petrus Consult Attorneys responded to the demand through their letter with reference number PCA/DL/Ol/SLC/MOR (Exhibits P3), dated 8/11/2021 in.which they stated thus: "Kwamba tunakiri wateja wetu kuingia kwenye Mkataba wa kukopeshaha na mteja Wako Bw. SpearAmaniKomanya wa Kiasi Cha fedha tash'mu TZS 123,000,000/= mnamo tarehe 27 Julai 2018" 11 The Respondent did not object to the tendering and admission of that letter (i.e. Exhibit P3) in evidence and the only question PWl was asked in cross-examination about that letter is whether it was signed by the Respondents or not. The answer to that question was and I think rightly so that it was not signed by the Respondents but by their advocate on their behalf. That was an obvious reply. An advocate being a person who puts a case on someone else's behalf is an agent of his client and is the one who signs letters and other documents on behalf of the client(s). There was no complaint from the Respondents that Petrus Consult Attorneys did not have instructions to reply to the Appellant's demand letter on their behalf. It is therefore my findings that there was clear admission of the Appellant's claims by the Respondents through their pleadings and on the evidence adduced. Thus, pleadings of the parties and the evidence on record are sufficient to answer all grounds of appeal in appellant's favour. The evidence of PWl, PWZand exhibit PI, P2 and PW3 sufficiently proved that there was a valid agreement between the parties in which the Appellant advanced Shillings 123,000,000/= as a loan to the Respondents. 12 On the other hand the Respondents didn't lead any evidence to show that the money borrowed from the Appellant or any part thereof was repaid. At page 31 of the trial court's typed proceedings the 1^ Respondent Is quoted to have told the court thus: "It is not true that the Plaintiff gave me that huge amount of money. I did not sign the said contract in advocate Daman's office. I don't know where the office of the said advocate is located..:He teii iies.....that I signed the said document. It is true that we planned to take the moneyfrom the Plaintiff but it was not the amount stated (i.e. 123,000,000/=). He agreed to give mesome amountofmoney buthe oniy deposited Shillings 40,000,000/=" [Emphasize Is mine]. From the above excerpt from the testimony of the first Respondent, the first Respondent admits plan to borrow money from the Appellant and that at least they received Shillings 40,000, 000/= on 17^^ August 2019. Nowhere did he say anything concerning payments towards settling the amount which he admits to have borrowed from the Appellant. Similarly Patronlla Vincent (DW2), the first Respondent's wife but who denied to be the second Respondent In this proceedings ■■ ,13- . told the trial court that the Respondent Informed her about Shillings 40,000,000/= which was deposited In their business account by the Appellant. She did not say anything about returning that money or any other money to the Appellant. This means that nothing was paid to the Appellant as repayment of the money he lent to the Respondents. Thus, because there Is evidence that the Respondents borrowed Shillings 123,000,000/= and there was no evidence that the loan or any part thereof was re-pald, I find that the Appellant was entitled to be paid back the amount of Shillings 123,000,000/= as claimed In the plaint. Apart from the principal outstanding sum of Shillings 123,000,000/= the Appellant claimed Interest on the decretal sum at the rate of 21% per annum from 27^^ January, 2019 which was the due date for payment of the loan to the date of judgment and further Interest at the rate of 12% per annum from the date of judgment till payment In full. The term Interest simply means money paid regularly at a particular .rate for the use of money lent. It Is a profit of a financial nature (See Black's Law Dictionary Bryan A. Garner 10^^ Edition page 934). In the case at hand the Appellant lent money to the Respondents on the basis of love and affection. That Is the position 14 because there was no evidence to show that the Appellant was doing financial business. When money is lent on the basis of love and affection the lender cannot be entitled to charge interest on the money lent. I therefore hold that the Appellant is not entitled to any interest on the money lent to the Respondents. The Appellant also clairhed for payment of general damages for breach of a contract. In law of contract general damages refers to harm which arises directly and inevitably from the breach of the contract. From the evidence on record the money lent were business money. The Appellant lent money to the respondents to enable them to carry out construction of their bar business called Samaki Samaki. A business money is that money which is available for investment. Instead of investing his money, the Appellant gave it to the Respondents for their own investments. Their agreement stated clearly that the lent money would be payable within six months from the date of they were borrowed. The Respondents didn't comply with the terms of their agreement and I am of the firm view that the Appellant was entitled to compensation for non-use of his money from the date the debt was due to the date the same shall be paid back and bearing in mind the fact that parties' were long-time friends, I fix 15 the compensation payable under this head at the rate of 2% of the money borrowed per annum from the date the debt was due to the date the same is fully settled. That said the appeal with costs to the Appellant here and in the cooCMowr^ A.R. MRUMA, JUDGE 16. 5. 2024 Court: Judgment delivered in presence of the Respondent and his advocate but in absence of the Appellant and his advocate this 16^^ of May, 2024. OF O c A.R. MRUMA X UJ JUDGE. 15. 5. 2024. 16