20161206 TZHC Dar es Salaam

-- IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 241 OF 2013 UNITED BANK FOR AFRICA TANZANIA LTD .................. PLAINTIFF VERSUS KISSA PORTIFAL KYEJO T/ A PP MILLENIUM SERVICES ........................ DEFENDANT EX-PARTE JUDGMENT MKASIMONGWA, J The plaintiff, UNITED BANK FOR AFRICA LTD, claims against KISSA PORTIFAL KYEJO T/ A PP MILLENEUM SERVICES (Defendant) for a sum of Tshs. 39,481,91/51 being an outstanding loan, interest at the rate of 30% per annum as specified in the temporary overdraft facility agreement, interest at the court's rate of 7% from the date of judgment to the date of payment over and above the contractual interest referred to above, general damages to be assessed by the court and costs of and in incidental to the suit. The Defendant was served with a summons to file the Written Statement of Defence on 3/4/2014 but did neither file the defence nor appear in court. As the defendant did not file the defence, upon being requested by the plaintiff, the court ordered for ex-parte proof under Order 1 VIII Rules 1 (2) and 14 (2) (b) of the civil Procedure Code [Cap. 33 R.E 2002]. The plaintiff had only one witness to call. He is MASUDI ALLY MANYA the Head of Recovery working with the plaintiff Bank. He stated in evidence that the Defendant is the Plaintiff Bank's client. In 2012 October the Defendant requested for Tshs. 30,000,000/= temporary overdraft from the plaintiff. The request was granted and payment of the sum was effected through his Bank Account and the defendant was to recover the overdraft by the 30 th of November, 2012 with 30% interest per annum. The defendant put a personal guarantee of that KISSA POTIFAL KYEJO. PW.1 tendered in evidence a letter of Offer of a Temporary overdraft Facility dated 29/10/2012 along with the personal Guarantee which were admitted in evidence marked as Exhibit P.1. PW.1 also testified to the court that the Defendant did not repay the loan as agreed. He faulted payment a result of which the amount escalated. The Defendant was at first place telephoned and was the sent with a warning Notice. Although he received the notice he did not respond thereto and by that time the debt stood at Tshs. 34,000,000/=. Through the service of their legal counsel, the defendant was sent with a Demand Notice sometime in May, 2013. The notice was duly received by the defendant, who in June, 2013 wrote a letter to the plaintiff proposing for made of payment which proposal was denied by the plaintiff. PW.1 tendered in evidence the plaintiff's Demand Notice dated 17/5/2013 and the Defendant's letter proposing for a schedule of payment. These were admitted in evidence marked as Exhibit P.2 and P.3 respectively. The 2 letter of the plaintiff denying to the proposal by the Defendant on schedule of payment was again produced in evidence admitted and marked as Exhibit P.4. As the debt was not paid, the plaintiff instituted this suit. By the time the suit was being instituted the debt stood at Tshs 39,000,000/= as it is shown by the Bank Statement of Bank Account No. 56030160000830 which was produced and admitted in evidence marked as Exhibit P.5. As of today, PW.1 told the court that the debt stands at Tshs. 55,000,000/=. PW.1 prayed the court that it grants the reliefs that the Defendant pays Tshs. 55,000,000/= to the plaintiff, 7% interest court's rate, costs of the suit and any other relief may the court deem fit an just to grant. That is the whole evidence in this matter. Going by the evidence, I find it is proved that the Plaintiff Bank offered to the Defendant a temporary overdraft in the sum of Tshs. 30,000,000/= which offer was accepted by the Defendant who personally guaranteed that the facility shall be fully repaid on or before its due date. In his letter (Exhibit P.3) the Defendant acknowledges the debt and went on proposing for a payment schedule. There is no evidence so far to the effect that he paid for the loan. I find therefore that the claims against the Defendant have been proved by the plaintiff. As to reliefs to be granted the plaintiff claims for Shs. 55,000,000/= being the amount of the debt at the time he was testifying in court. This amount was not pleaded in the plaintiff's pleadings. As such it is not accepted for it is a cardinal rule that a party should be bound by its 3 . -.I pleadings. The plaintiff is awarded with a sum of Tshs. 39,481,901/51 pleaded. The claim for 30% of the sum is denied for this as it was specified in the agreement has been added into the sum claimed and that is why the amount escalated. There is no evidence led to the court for it to grant the 7% interest. Again the same in denied. The plaintiff should have costs in this matter Dated at Dar es Salaam this 6th day of December, 2016. d~ E. J. Mkasimonrwa JUDGE 6/12/2016 4 Date: 6/12/2016 Coram: Mkasi mongwa,J £or the Plaintiff: Present For the Defendant: Absent C.C. Mr. Mabugo Order: Judgment delivered in Chambers on this 6th of December, 2016 in the presence the Plaintiff E. J . ~ ~ w a JUDGE 6/12/2016 5