yusufu shabani matibwa vs abdul rajab njaiti 2012 tzhccomd 45 17 august 2012

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO.77 OF 2011 YUSUFU SHABANI MATIMBWA.........................................PLAINTIFF VERSUS ABDUL RAJAB NJAITI......................................................DEFENDANT Date of hearing: 18/04/2012 Date of last order: 18/04/2012 Date of Ex parte Judgment: 17/08/2012 EXPARTE JUDGMENT MAKARAMBA, J.: The Plaintiff, YUSUFU SHABANI MATIMBWA filed this suit in this Court on the 22nd day of September, 2011 against the Defendant, ABDUL RAJABU NJAITI for the following reliefs, namely:- 1) A declaratory order that the Defendant is in breach o f the terms and conditions o f the contract; 2) Payment o f USD 20,000/= being actual value o f the Loan Facility; 3) Payment o f 7% interest per month as per clause 3 o f the loan facility from the date o f default to the date o f judgment; Page 1 of 8 4) Payment o f 7% interest per month from the date o f Judgment to the final payment; 5) Payment o f general damages as this Court deems fit to grant;and 6) Costs o f the suit and any other reiief(s) this Honorable Court just and fit to grant. The facts as they emerge from the pleadings are that the Defendant was in dire need for money. On 2nd of February 2009, the Defendant approached the Plaintiff and requested for a loan from the Plaintiff. The Plaintiff agreed to advance a loan to the Defendant as requested. The Plaintiff and the Defendant entered into a loan 'agreement for USD 20,000/= (Say Twenty Thousands US Dollars). In the agreement, they agreed that this sum was to be repaid in one month's time, that is, on the 4th of March 2009. They also agreed that if the Defendant defaults to repay the loan on time, that sum would attract interest of 7% per month. As security for the loan, the Defendant put his purported landed property, Plot No.742 Block J, Mbezi, Kinondoni, Dar es Salaam. On a follow up on the existence of that security, however, the Plaintiff came to learn that actually that property did not exist at all. The Defendant has remained with the Plaintiff's money for two years. This, the Plaintiff claims, has caused him great embarrassment and intolerable inconvenience as he has not been able to make use of his money. Page 2 of 8 Efforts of the Plaintiff to serve the Defendant did not bear any fruits. The Plaintiff therefore sought leave to serve the Defendant by way of substituted service, which prayer this Court duly granted. The Plaintiff effected service on the Defendant by publishing it in the Nipashe Newspaper of Thursday of 20th day of October 2011, which has wide circulation in Tanzania. It seems that the Defendant since dully receiving service since on 24th November, 2011, the Defendant has paid TZS 25,000,000/= (Say Tanzanian Shillings Twenty Five Million) of the total amount due, and promised to pay a further sum of TZS 9,500,000/= come 31st of December 2011. This information was conveyed to this Court on the 25th November 2011 by the learned Counsel for the Plaintiff, Mr. NDIBALEMA. On that very day, Mr. Ndibalema filed a Deed of Settlement containing the terms of the settlement. However, rather unfortunate, the Defendant did not pay the outstanding balance as promised. ! In this suit, the Defendant has been duly served by substituted service by way of publication in the Nipashe Neswpaper of 20th day of October 2011. The Defendant did not appear to defend its case and 1 despite being served, the Defendant has not filed a Written Statement of Defence. Accordingly, this Court granted the prayer by the Plaintiff for leave to proceed by way of exparte proof, and hence this exparte judgment. In this suit, which proceeded on one part only for the reasons I have explained above, this Court is being called upon to determine whether there is breach o f the terms and conditions o f the loan agreement by the Page 3 of 8 Defendant and what reiief(s) is the Plaintiff entitled to. In order to make its case, the Plaintiff called only one witness, Mr. YUSUF SH A BA N M A TIM BW A , the Plaintiff in this case, who testified as PW1. PW1, told this Court that he is a businessman and that on the 2nd day of February 2009, Mr. A bdul Rajale Njaiti, the Defendant in this suit, approached him (the Plaintiff in this case - PW1) and requested for a loan of USD 20,000/= (Say US D ollars Tw en ty Thousand). PW1 told this Court further that he (Plaintiff) agreed and advanced to the Defendant the loan amount as requested by the Defendant. PW1 told this Court further that they (Plaintiff and Defendant) entered into a written agreement for the loan, which was witnessed by an advocate in which they agreed that the loan would have to be repaid in one month's time. PW1 told this Court further that the Defendant did not repay the loan asjagreed and therefore PW1 instructed his advocate to write to the Defendant a Demand Notice for the repayment of the outstanding loan, which PW1 tendered in evidence the Demand Notice dated 4th May 2011 and was admitted and marked as Exhibit P l . PW1 further told this Court that due to delay by the Defendant to repay the loan, the wife of the Defendant, (whose name the Plaintiff did not disclosed to this Court), called the Plaintiff and requested him (the Plaintiff) to meet with her (the Defendant's wife) at the offices of Mr. Mutakyamirwa, the learned Advocate who had witnessed the Loan Agreement between the Plaintiff and the Defendant. PW1 told this Court that the purpose of the meeting was to calculate the outstanding loan her husband owes the Plaintiff. PW1 told this Court that after the calculations Page 4 of 8 were done, the total loan granted to the Defendant was the equivalent of TZS 34,500,000/=. PW1 told this Court further that the Defendant has paid only TZS 25,000,000/= (Say Tanzanian Shillings Twenty Five Million Shillings and the outstanding balance is therefore TZS 9,500,000/=. PW1 told this Court that the Defendant had promised the Plaintiff to pay this amount on the 25th November 2011 and another amount of TZS 4, 500,000/= on the 31st December 2011. PW1 also told this Court that up and until the filing of this suit the Defendant has not made any other payments to settle the debt other than the TZS j 25,000,000/= PW1 prayed to this Court that the Defendant be ordered to repay the outstanding amount of the loan and costs of this suit. The first issue this Court is being asked to determine is whether the Defendant breached the terms and conditions o f the loan agreement. PW1 told this Court the Plaintiff and the Defendant entered into a written Loan Facility Agreement according to which the Plaintiff agreed and advanced to the Defendant a loan of USD 20,000 (Say United States Dollars Twenty Thousand). This loan was to be repaid in a one month's time, failure to repay it within the agreed time for its repayment would attract interest at 7% per month. The crux of the matter is that the Plaintiff claims that the Defendant has defaulted to repay the loan as per their Loan Facility Agreement. Clearly in this suit the claim of the Plaintiff against the Defendant is rooted mainly and solely in the said written Loan Facility Agreement. The Plaintiff has not produced or tendered in evidence that Loan Facility Agreement, which the Plaintiff (PW1) claims that it was concluded between Page 5 of 8 the Plaintiff and the Defendant in writing. In civil litigation it is trite principle of law that the burden of the Plaintiff is to establish its case on a balance of probability. In the present suit the Plaintiff was required to discharge this burden by establishing that the Defendant has failed to fulfill part of the bargain in the Loan Facility Agreement. In the present suit, the Plaintiff has failed to tender in evidence the purported Loan Facility Agreement. This Agreement was critical piece of evidence in the Plaintiff's case against the Defendant for establishing the existence of the terms and conditions for the said loan and for enabling this Court know whether the defendant indeed is in breach of those terms and conditions as the Plaintiff claims. The fine and established principle of law that|the one who brings a civil claim (the claimant) against another person has to prove it to the required standard in civil matters which is on a balance of probability, has times and again been restated by this Court. Suffice to cite the most recent decision by my learned sister Judge, Hon. Bukuku, J. in Commercial Case No.17 of 2011 between HANA CO. LIMITED V. TRANS TRADING & SHIPPING CO. LTD, where she stated as follows: "The burden rest upon the party who would fail if no evidence at all or no more evidence, as the case may be, were adduced by either side..." It is also a trite principle of law as restated in Commercial Case No.116 of 2011 between NBC LIMITED V. EDWARD MASSANJA NG'WHANI that even where a party is called upon to prove his or her Page 6 of 8 case exparte, he or she must strike the required standard of proof in civil cases, which is on the balance o f probability. In the present suit, the Plaintiff has not tendered in evidence the Loan Facility Agreement. This has therefore denied this Court the opportunity to determine the existence of the said Agreement and its terms and conditions and whether they were breached as the Plaintiff claims. The Plaintiff bore the burden of establishing the existence of the Loan Facility Agreement. The Plaintiff has failed to discharge this burden by failing to produce and tender in evidence the Loan Facility Agreement. This was a critical piece of evidence in the Plaintiff's case. This failure has made the Plaintiff fail to discharge the burden required in civil suit of establishing his claim against the Defendant on a balance of probability. This Court therefore does not have basis for determining the first issue either way. Accordingly it must fail. 1 In the Plaint, the Plaintiff has sought about six reliefs against the Defendant. However, this Court having determined the first issue in the negative, the second issue on the reliefs sought by the Plaintiff against the Defendant must also fail. In the whole and for the foregoing reasons the suit fails. It is hereby dismissed. Order accordingly. JUDGE 17/08/2012 Page 7 of 8 Exparte judgment delivered this 17th day of August, 2012 in the presence of Mr. Shirima, Advocate holding brief for Mr. Ndibalema, Advocate for the Plaintiff. R.V. MAKARAMBA JUDGE 17/08/2012 Words 1,749 Page 8 of 8