Tanzania: High Court Rules in Favour of Bank

By Faustine Kapama

THE High Court has dismissed the suit lodged by four individuals against Ecobank Tanzania on

claims of breach of a contract for payments of 3.0 million US dollars (about 6bn/-).

Judge Joaquine De-Mello ruled against Pristine Properties Limited, Muslim Shivji Karim, Gulam Mohamedali Punjani and Sabri Ally Saaad, the plaintiffs, for failure to prove the existence of the contract in question.

According to her, the loan agreement of October 13, 2015 referred by the plaintiffs and which she found to be central and the root cause to the dispute with the Bank, the defendant, is nowhere to be found as it was even not tendered, for admission, as evidence.

"It is the principle of law in civil matters that, the onus of proof is one who alleges must prove. Since the Plaintiffs relied on the Loan Agreement and one claiming that the defendant has breached, it was its duty to prove (its) existence, detailing the terms and which had allegedly been violated," she said.

Such duty to the plaintiffs, the judge said, is imposed by section 110 (1) of the Law of Evidence Act, which states that: "Whoever desires any Court to give Judgment as any legal right or liability dependent on the existence of facts which he asserts must prove that fact exists."

Judge De-Mello was of the views that in the absence of the said loan agreement, the Court finds nothing to that end, not even breach by the defendant as alleged by the plaintiff.

As to whether the plaintiffs are entitled to general damages, she found no legal duty on the defendant's part to disburse the Credit Letter facility of June 30, 2015 in US dollars to the extent of agreeing with the plaintiff's as alleged.

"No suffering, loss or otherwise has, however, been occasioned by the defendant and if at all, then it is on the plaintiffs own fault. With that note, I find this suit has no merit and, is dismissed in its entirety," the judge declared.

In the suit, the plaintiff sought for Specific Performance compelling the defendant to abide by its contractual obligations under the loan agreement dated October 13, 2015, let alone other commitment subsequently.

They include converting the loan into US dollars and the drawdown made between the December 2015 and December 2016, to enable Pristine Properties Limited pay the loan.

The plaintiffs also pressed for general damages. Briefly, the cause of action arose out of a loan agreement amounting to 3.0 million US dollars (some 6.6bn/-) entered between the company through Muslim Shivji Karim and Gulam Mohamedali Punjani, in which the defendant had agreed to offer loan in US dollars.

However, when it came to the performance of the terms of the contract, the defendant refuted to release the said loan in US dollars, leading the plaintiff to pay the drawdown at high interest rate.

Similarly, was with the remaining balance loan despite the compliance by the plaintiffs to all conditions preferred by the defendant as to security towards the loan.

Following failure to file the Written Statement of Defence out of time by the defendant bank, the same was expunged from the record and, hence the matter proceeded ex parte- without the presence of the other party.