IN THE HIGH C0\4.R1t0;,€lF TANZANIA AT DAR ES $.&;~AAM , :~::. ~':' 'J;, "", .. ,', _,.d., .. --------~-r----r~--- Ii f ': !),'\>,,', , d, DIMON MOROGORO TOB~tC~ PROCESSORS LTD DEFENDANT ( ~ Date of Last order~ 5/8/2008 Date of Judgment 19/08/2008) ':4,~' A'u "Jtf.\~~"; "~ ., f' >. ': ~ ", 'J.. 1,(~,,,!,,:f.'~~,;:~~ ~ i ,,",, "'r i .. ::.~)ir;,f~~~:t~(:t} The Plaintiff RAMADH~~~\i;r~~jjv1ALENGO instituted a suit " ~ :,..,1:~~"i ~: '~': ,., against DIMON TANZANIA:. "LTD and its successor DIMON Defendants, respectively.
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IN THE HIGH C0\4.R1t0;,€lF TANZANIAAT DAR ES $.&;~AAM,
:~::.~':' 'J;,
"", ..,', _,.d., ..--------~-r----r~---Ii f ': !),'\>,,',
The Plaintiff RAMADH~~~\i;r~~jjv1ALENGO instituted a suit" ~ :,..,1:~~"i·~:·'~': ,.,
against DIMON TANZANIA:. "LTD and its successor DIMON
Defendants, respectively.
According to the last AMENDED PLAINT dated 10/4/2001,
the Plaintiffs claim is for; breacA'9~~~,'i~l?J;lcontract based on failure byLH Il'~ ';~:::~, g
1st Defendant to release the b~1~~ceof the loan (para 11); defamation
through a letter published by the 1st Defendant on 23/4/1997
concerning the plaintiff, (paras ;l4,15,J6 and 17); Loss of earning
~)arising out of the Defendant's actl()n publishing the said letter to
other companies (para 18) and fo~ c~~~ing the arrest of the Plaintiff
and questioning by the Pollee dn 30/4/1997 which was doneJ
"maliciously and without reasonable and probable cause". The Plaintiff has" ",'/;',r,
,I DCh", alOd.tprayed for judgment and decre,e'I~g~rostthe defendant jointly and
1 ,.', rj'(;I '"
severally for general and speCific damages, set out in the amended
plaint together with interest.
i . ;';~J.
The Defandants filed a joint Wntten Statement of Defence to".~/
'\"
the Amended Plaint in which they denied to Plaintiffs claim, except~.. . "1
paragraphs 14 and 15 thereof, which relate to the alleged defamation, '1" , ", 1,1C{,'1
letter, which the Defendants pleaded was truthful and justified.
, .{tJ'rl!;i:~lli\~;',,:The Plaintiff was repr~~entedby Mr. Rweyongeza learned
J Tl; t'l'Yadvocate while Dr. Nguluma'a'dvocate represented the Defendants.
asked PW1 to come back a£t~t;',tw.Q,.wgeksand when he went backTV" ,'ll'~j l''\.. -~ -of. ~_ 1,:,~',,,'~t:,~._~t.\:-,~,
~,._"- - ~ : - ~~}';~t,·;
MZIWANDA told him to go qg~inafter another two weeks but even,., (' "(".' j,(
then PW1 did not get the money. l?W1stated that he decided to sell
his cattle in order to bring more labourers from Kigoma.l •."r;~./. ~-
He said he sold the cattlei:because the disbursement of thel -j \ ;;.
money (from Defendant) had been delayed and he would be late to
do the cultivation. '1
PW1 further stated he~~,oiu§~ttlrorelabourers from Kigoma
and started cultivation. PW1 ~~!Hlh~'~~~Sable to cultivate 16 acres of:' r-I~""j~'·i":'~'_t'
tobacco, 5 acres of maize and 1,acre of groundnuts. He stated that all) /", r ( l~\i
the 27 employees were living at his home and he used to feed them
and they used to cost him about shs. 60,000/= per month for food) .. -,""j
, ' Li I\. 'f
and that he also paid for their medicaR,9n. PW1 further stated that he, ;'~i
" .had agreed with his employees)1t~tpe would pay them after the
tobacco season and each would be paid"shs. 120,000/= .
He said after cultivation follow~d harvesting which started in
February, 1997. He said he cJllt~ya,~~tiP~ly16 acres of tobacco instead
of 20 acres, because by the, ti~~ ..h~t:~~1:(.thelabourers, it was already+ tr/~":I;f~,~_,-! 1
late. PW1 stated that whi1eth~¢Wtivation was going on, he was also~ ~A.~, I
making a follow up on the money ptomised by the company, but he
did not succeed to get the.rpor~X:i,,~;J;.l;~piteof numerous promises.'l~,,\\ ,,' }!)"t~,.J
PW1 further stated that ~~1~t,-1~#~~t~;,tiby an Agricultural Officer
JOHN RANKEN to writetl:f~~~minder to the company and he
produced the letter as Exh. ,PI dab~d:3/1/97. He said although the
balance was Shs. 650,000/= he asked for Tshs. 870,000/= because the
cost of food had gone up. PW1 sqid lte gave the letter to LOUIS the, :: ~ J,.J
Director but Louis told him that they were no longer giving money toL,ft. ,
, "dfarmers. PW1 said after the refusal he contacted another company
STAMCOM (T) Ltd whose director asked PW1 to write a letter. He
produced a copy of the said le~ter as Exh. P2 dated 10/1/97. PW1"! I !,
further stated that in the said, l.e;t~,r.,~~~skedto join STAMCOM (T), ~ ," '~~"~"'"
Ltd as DIMON (Defendan~)h~~J~~~:~t~?provide him with the loan., ."l~';;,'~:,~ '/,'~c~~, ••,:;_':
PW1 said he asked for1;~~\s:1;1000,050/ = and that he informed
STAMCOM (T) Ltd that he h~~rqh:eady obtained Tshs. 700,000/=
from DIMON and also farm in puts worth shs. 1,436,000/= so that
they would be aware he had tak~, ai.~pan. PW1 further stated that,:"? :~'> I
the money was for feeding the lab9~!~rS and also for use on the
farm. He aid he asked STAMCOJ~fit~~;~ettlehis debts with DIMON.• 1 ~~. )
PW1 further stated that his reg;ue~~/o,_~TAMCOMwas not successful
but he did not know why an4r)th~ydid not reply to his letter. PW1I \
said after failing to obtain the second_fa!ming loan from STAMCOM, ' ,\
,l'i',"'','] ,t
(T) Ltd his farming did no~ p;r~f.fft:"~~~(l~lannedbecause some of his
employees went away re~~~~~~f,s6me acres of tobacco being
damaged. He said he harvestt}i5'1~5kg of tobacco and if all the 16
\;:·8 ·,h"
1
acres had been well cUltiva1ie~',l~ewould have harvested 11,OOOkgof
tobacco.'" l,
'~(:'\'> f'l: t .";.(;i, !lilf,·,iil"'., ';;~<;" r;H.,~,~~};}.'1
He said he therefore sU~~~~dJ0sB,'of5,975kg of tobacco valued,{p "
at shs. 3555,000/= as a kilogram/of tobacco was selling at the average~,~/ .. , ,: "
of Tshs. 600 per kg. PW1 said the loss was due to his farm having not
been properly cared for and that h~ ~ailed to properly care for the:' 1 . ,J'.~,,~l. ' 'J,
farm, because some labourers left,and others went to work for other.)""\\'~
people. He said that he also failed, to buy fertilizers and otherir ,~, ,Y".
agricultural inputs because he was not given the loan by STAMCOM
(T) Ltd. He further stat~d Jhat, h~ had no loan agreement withi ~'f/l\ V\
STAMCOM and that it was DIMON WHO DID NOT GIVE HIM"lei'"
mE LOAN .OF Shs.680,O?P~~I~~fttated that after seIling his
tobacco he paid DIMON T~hs't~~t~~~6~£ll=',,~t"'f"i'
f;(J\I'I']>:! ,"" ,i •
He said he sold his tobacco to DIMON and that is when he
repaid their loan. PW1 further stated after repaying the loan he was'i:
left with Tshs. 870,000/= which w1t;sriP't enough for him to do further- \~. ~
cultivation. He said the failure of DIMON to advance the whole loan'1,111 l,,,~\}i,
resulted in his failure to properlY~Clre!for his farm and also failure to
run his life. He said he w~~lNvi~ffi}ihgreat poverty. He said his
inability to continue with f~rining made him suffer a loss of,. -r I~f~
Tshs. 1,117,600/= because hec.anj ~~:110ngerget contracts to supply
tobacco to other companie~; J~j1~~~~r stated that the relationship, ,J~~{~,:: )\' -1}\.~
between him and DIMON d.eJ~n9rated because they suspected him: \ 1
1
of having stolen tobacco.'5~e 'i~ki~l. they wrote letters to other
companies like STAMCOMj t:tT.<::>. INTERBEX, RUBCO and to the\,
Regional Commissioner, the police and~igwa Refugee Centre .. II '\'. IV 'J
He said the letters sta..te4·\\,t.hljS..•.·~Wll·..•.'had diverted his tobacco and'.' ".' '~..fJ~.{.... 'j....T,\ ..t.'.~..•:.:.'1. <C...' ,. .lJ"J,·'t .,~.•\ rl. ~,),~ , ,ir\ ; ..1} l
sold it to T.L.T.C. instead o~.f~)~Jfrgth.~same to DIMON. PWl said
they said PWl was not a gooa~'p~r~onand they should be careful to
deal with him. PWl further stated he wrote a letter to TLTC
thorough the Primary Cooperative Society in the following season,:t' t·
but he did not get a reply. He 'went on to say that he saw the,
Manager of TLTLC Mr.NASSSORO"'who promised to consider his( . H
request but he did not get the IO'!,Il. rW1 said the members of the
public considered him to b~~~11!~i~lwhenthe police came to arrest". {.,
him on 25/4/97.' 1'I .\
J ~ .,
'....'"J .~,?i~~.\;....:, ~'X}I':l~i)dN~~,~·~q. .
He said he received a re.ij~r:tnat:,)<ishiki had come with polIce~Jf.'n~:
officers and the police left instrY-C#9nsthat PWl should report to the
Regional Crimes Officer of Tabora Region. PWl said he reported to
the RCO on 30/4/97 to the police. VY,hohad left the message one
MOSESMWAKYUSA.
Pwl stated that MOSES MWAKYUSA ordered him to squart." ,~~•.. ,~ J.
and take off his shoes ~nl~\:i~tn~p' 'took PWl to his office for'.;:;'1' ~::"" '
interrogation. He said he was'cisked i~.ihehad diverted his tobacco tos""'",
one HAMISI JAHAZI MAHUZI, wmahhe denied. He said he made" t. t \ ; . It),V '1'
'\"'" Of ',.Ii y .•.
a long statement to the pQ,1ice~:Q~fe~~~'lNhotold PWl to wait for the,~~!J~t~·:'tto" t;:j '~':'1~
(,CI.:,t{'f':~\~! '1 'tl"~"10
RCO who showed PW1 the letter frdrHDIMON alleging that he had
diverted tobacco. PW1 producedl:~'toty of the letter dated 23/04/97,I' '. '
as Exh. P3. He said he got the said letter from the police and that it
was copied to the companies Iit';h~a~mentioned earlier .•• >l<
, / ,t.,~. '\, I -'I ".(i',AI-:r ."
PW1 stated that he ~astF,~,}9~:j~fJMceStation from morning till1~',l:1'-t~ri/" i'~H\K{; ,
evening when the Police Off~9,~#;~~1lbWkdthe to leave telling him that
if he was needed he would ;~~"informed. PW1 stated that he had
remained at the Police Station involuntarily and he was not free to go
where he pleased. He stated further that his family got worried and
he became ill and was hospitaliZ;)%~jHe further started that the
information about his being called'~9_~~ePolice Station spread to his. .,,,;
village and to Tabora Town bec,\~\.~e,~~was a famous person as he
had vied for a parliamenta~~~~1ltf~n 1995. PW1 stated that he was
affected by being called a thiefny DI~ON. PW1 went on to say that
DIMON MOROGORO .T.9~'~5D~~·~)tPROCESSORS LTD was
registered after DIMON TAN;iiA,(~i~f\~%~IMITED(1st Defendant) had,~,Jj; ~'J;
established a processing pi~t~t!He said the assets of DIMONI "I"'" >-
TANZANIA LTD were transferred to DIMON MOROGORO
TOBACCO PROCESSORS LTD. PW1 stated that he was claiming, t,
Tshs.3,555,OOO/- from the de{enda,rtts,eeing the loss he suffered from<~11"
failing to attain his farming targff,-ts,i.n~theproduction of tobacco. He.J.. ~t,I ,~.~~'t,
, . ~"
further stated that DIMON breached' the loan agreement, by not~-, ' J.
;._;'\Lr4.
advancing the balance of1;'s~~t]~gei~pO/- for which he was claiming
Tshs.10,OOO,OOO/-. "
He further stated that for:tY\~"'d~~~mationhe was claiming to be,I, '~
paid shs.500,OOO,OOOj- and 'shs.50,POQ:'QOOj- (fifty million) for being, .,it. P(, \f.
detained at the Regional P6liJ~\~§taff6nTabora. PWI further stated he
was claiming Tshs.117,600,OOOj- as cdtnpensation for loss of business
as the result of being callep:c¥t.~\~f:~~d;hence failed to get contracts
from tobacco buying compani~~;i,~ffr~N~therclaimed the sum of Tshs.
3 million as salaries which he paid ,to his employees, interest at court
rate and the costs of the suit.
PWI was cross examined; atf:H~ngth by Dr. Nguluma, the',.,I
Defendants advocate. PWI st,ate~"~.M~~the season for cultivation of
tobacco was between August toef;l4 of,\April.He said he used to pay
his employees once a year. H:~,~t~a~cl~,i~was true that DIMON (T) Ltd
asked him to join them. By joining t~~ll1means to grow tobacco and
sell to DIMON. PWI said a~,.tir~,~1.ftt1~lefusedto join DIMON and
decided to continue withhis:\jE~~~CiliW\\ZooperativeSociety. He said
his Primary Cooperative Soci~.fVas working with TLTC (Tanzania
Leaf Tobacco Company). He stated that the Cooperative Society used
to benefit from TLCT by obtaining agricultural inputs from TLTC
and selling tobacco to TL1~. He :~~~dhe was member of theif',"
cooperative Society and used tOI.~~~~J~~/roQ1it by getting agricultural
inputs and selling his tobacco through the Cooperative Society. He';}r~t ;,~.
said he joined the Cooperatiy~~\e<8.~~$ehiSfinancial means were low.
He said this financial means dfca not ~ow. PWI stated that DIMONj •. I
t
approached him because they were satisfied with his farming. He
said he was asked to join DIMON"pn condition that they would give, \ ,,'\ .~~
him a loan and he would sell tobacC'o to DIMON. PWI said those,:.:~"'1,"1 ii!"~ ,,~-~, t', l
, "<ti ~ ,.Ii" t,:"";:oo.'
terms differed from those of th~ i,'rin¥~,ryCooperative Society as ther' ~I 1"I
Cooperative Society was not.gi~.i,,1,1g)ut loans., He said he joined
DIMON because of the 'l;~~'{(~oney) and he informed the40,)01>' ~: .
Cooperative Society that he was bec?iNfNg an individual farmer. PWI,', . t>~" l,~'''{:l' "
said it was not true that he wds;'fh~1t.jtf~·,\.vhowent to DIMON because'~:i.'i,f.",,::\,;~i.' " ~.'iYql':. '.:I:';~-':
he needed help but it was 'lJIMON .who came to him. He said
STAMCOM did not go to him:!/6'e~ausethey did not know him. PWI
said DIMON knew him because they already had farmers in his area
and when they were going to the1~'~'f,alp1ers they saw his farm. PWI, 1. ..,
claims contained in the platnt ~j~~1lt,)i~'9ingthrough the evidence. If\" ' ',I. ,I"
this was a prayer for jUdgmElI~\1f~(~eentered on admission, it fails., t."
In his substantive submissIons Qn the first framed issue, the
plaintiffs advocate sUbmitte!J~'t~at(if) 'what "the defendants wanted
to have is a document reduced in,!/;ftting, supporting the loan ofi\ ,,'li' t~,,;• t;-" :;- 'f~l);\<~\ " ()'t: \. 1(:' ,
Tshs.l,390,OOO/=as claimeld(j~~;f~'lf/1{i:tintiff,. . . there is no legal,~HtFr
requirement, that a loan agreein~iltlnust be reduced in writing in order to
make it valid. It is enough that there is oral evidence which supported the
existence of a loan".
Referring to the Defendants submissions, the Plaintiffs
advocate argued that the defel1,~C\nts,contradicted themselves as canL.,\\ )}
• \;/;'1~ri: !..
be gathered from the advocate's ,~~~ission that there was an1 f'I.;~' ,:,:.':
assistance of Tshs.700,OOOI=:='g}$~~~,~('\~~plaintiff on loan basis. HeI I"" ,:1,l~.~,~if;(," ,,_,.1 t~"J d,,-,.~ ,,",.',lJ.1J~4
,,," . I'
argued further that, "whethe(fhl!ipdditional balance of 690,000/=has3ia f
relationship with the amount given'to the plaintiff on loan basis,
does not rule out that there existed a loan agreement". The Plaintiffs
Advocate submitted that "given the evidence on record, there was aI,ll "loan agreement". He contended tnat, lithe plaintiff managed through
witnesses to show that the~e~:~~tJt1~'lbanarrangements for farmers.
He has demonstrated how he was intro~Je~ to the defendant and how they" " ,t
, '-f ;'~,.'l;.~lAl.'\ l" '1ilil 8
attracted him to join them. He testljikd lhat having received a sum of Tshs
700,000/= still had a balance ofr~.~s.!$9,f}I==c".\' ~ji ,4-
The plaintiffs advocate pOintedf'~ttt that the Defendants admit,!"ti,> ,Y,' 'l'.y" i,,F', \':'\"':':~':'i>~,i~" ,'" ": ':,',',~",:.,~:,·_r
to have given the plaintiffsh.i6o;ooe0~~t:lwhichthey called assistance.l v"t'lt./):,,'.:~'i l' -' r:
He contended non of the (d~reri~ewitnesses) knew the discussion
which led to the grant of Tsh. 700,000/= and they did not produce
any documentary evidence to contradict the oral evidence by the
plaintiff. He argued that the ~~fef~nce. between the amount of. i' ''Ii
shs.870,000/ == requested by fh,eplq,intiffand Tsh.690,000/ == which he,I'.\,'~.' l' (:\,v;:~,t~~ .I ,'Jf"~'!t
of-Y·.,-
claims as a balance in the loa~>'the d~ference should not be used to;':> ..•.L,o'I'f; i
1 I{'~' ~ •. ~ tt':discredit in plaintiff but to sUPI?Ott,t~~i~xistence of a loan agreement.
'>1: ,'~ '.' ':,_, ',. ..)_' _ .. , " '!. '
',' " .. ':';,>~; ":;":;' ,"
, f:'()t;\~bh}~';:;t;<As for the different amount }'Y~~&:hthe plaintiff asked from the other
> ,;~ ,~. -, ~~,
• ," ,4"Jl',;1\" 't ... ;
company, the plaintiffs' advocate submitted that the plaintiff was at
liberty to seek an amount which in his opinion would meet his goal
')1 <~.:' '.and in communicating with another;~pp1pany he was not bound by
. (liC'lt'll'
the agreement between the plaintiff' ang. the defendant. He therefore
. . ,itL' 10prayed that the first issue be ,a~~we*d' in the positive.
On the evidence adduced bywftwesses from both parties, it has(i .~.\·1':~}.{
been established that the plaintiff:~a~i~ tobacco farmer and asked to, ._,l.t 1 i. J.
join the 1st Defendant Compai\~f B~f-6ihingthe Defendant Company,
it is on undisputed evidence that it,:'m,e.ans the plaintiff would get.' ...• , • r
">:?'('. ·( .••H;,(~.;-;,certain benefits on credit froril,,,t~~~f')~.~\mefendanton conditions that,
I }1J,!\:i\ 'after harvesting his tobacco, th~,:Rlaintiffwould sell his tobacco to the
.. '"
1st Defendant and the 1st Defendant will recover from the proceeds of
the sale of the Plaintiffs tobacco, tpe monetary value of the benefits\. ft(~t
advanced to the plaintiff, on cre(jit,., Jt is conceded by both parties': •. ' .. ,! "'.
that the plaintiff having" joined" the 1st Defendant company, he wasd l ,II
hll ~,~.. j~1~.~~{,~~·;;,t,l\' '1'" i' ,; I'.i}"':. t ,'.i
given on credit, unspecified ~gticultural inputs. It is the plaintiffs, ;'1."
claim that, in addition to, or ap,art~tr6w~the agricultural inputs, the 1st; .. :,C.:, '!i~_ :," "~:',~:•..;\~: C"
" '\ ,t!i¢;:r/,st'l,j,Defendant also agreed to advagf:~ tash'~money to the plaintiff. In his
'(i""'\::;j
evidence in chief the plaintiff' (~w:tl)stated:
t •...-'I".l .. J..\
"They asked me to join thei",.~ompany and they\ If'~f'
r· ~ It., , .•.,'f
would give me money. ' I.,'agreed with them,"' . "':«:
because I would b(j\qbf~'Jo ,increase my tobacco;')~ ,~\': " i'":"}I 2~·nr' 1
acreage. Theyaske(t'me to prepare a budget and
submit it to the company. I prepared the budget!"
and sent it to the' 'compimyAoi13/10/96 . . .. In\,.1 !l- ~." .J. ,
,<.;., 'I '.the budget I asked ~1ie ::'company for Tshs.
1,390,000/=. I way\,ash~~,toga to the following;!;)-J~r!, J
day to collect the money. CP~,!/10/96 I went to,;)')' t
the company for tlie;tner!f,Jj;)tltI was given 1;1 of"l".~;T' ./' '(/;.,
the money by way cot a voucher. I signed a' .. .'.' '~' '.
voucher and then I was given the money ... "
According to the plaintiffs own evidence, as shown above, heIi,
':T l
was asked by the Defendant Compatlly'to submit a budget and the>.'J'l.i ", J
plaintiff submitted a budget of l[shs;<:'1,390,000/=. Assuming thei~':'~,_ ":1, ,!.\r~
Plaintiffs claim to be true, Up'\(tol't~t~'point, there had not been an, .:.-1':; r
"f { ~, (~,
agreement reached between the plaitififf and the defendant, for thet;}.\ ;
'I,';. ' '~, "'"
advanced by the Defendant f~r'f~~~e~i~thtiff,of any specific sum of, ".. i.:.' <! -',;"
money. The Plaintiff was ~~Yx'~~~kedto submit a budget which he
says he did submit on 4/10/96. The Plaintiff did not adduce any. ,I..
evidence to show that the whole tbuciget as submitted by him, wasI,! ,
fdffapproved or agreed to by the lst',~ef1ridant. The Plaintiff claims he
; i.: Ie i' ,~'" 'l,~.
I .
was given only 1/z of the amount shpwn in his budget. Simple:::" , --.-*
arithmetic will show that 1/2 of shs.l,390,0001= amounts to
shs.695,0001=· The plaintiff hO'Y!yVE;r:;~dmitsto have been paid by.t ,-\, " .
the Defendant the sum of shs.700,Op'cJZid'.~is is slightly more than 1/21.•~.•. " i 1
of the budget as submitted by 't6.ePl~intiff. The 1st Defendant has, .j, •
f,.'','_, -; .t("~ ,::
through the evidence adducetl'by OW 1, DW 2 and also, as admittedJJ
by the plaintiff, paid the plaintif( t~e:sum of shs.700,0001=. Ther ;,;"/':,:.";(,, l) t" ( ~J t;
Defendants deny that they agreet't6';~avance any other or a bigger
amount to the plaintiff. It i~'a'principle of evidence that he who
alleges must prove. This is the principle which the Defendants
advocate alluded to when in his :~tibtnissions; he referred to sectionI·
110 of the Evidence Act Cap. 6R,£'·2002. Although the plaintiff has
claimed that there was an' ora,l agreement between him and the 1stti',:'~~ \ ,'oJ",,: i
.. ·('···.1<,.... k'~ '·~t, 1,a I,
Defendant for a loan the amount of which he impliedly claims to be
'i i,'}amount to shs.l,390,0001=, by l,1i5' own evidence, he has only
t ,j( i;.~:,;l}~:mal1aged to show that, the DefeI}dant asked him to submit a budget
~'",,;f\ ) \
and that he submitted a budget of shs.l,390,0001=. The Plaintiff has
failed completely to adduce evidence to show that the alleged budget
:\ ·.l·'1,390,0001= was approved by thelst'g>efendant or agreed to by both
"f" .'
i.>4} ft· t j.'~'l'l\)'
parties. A mere submission of a' budget to the defendant does not
gr 'jl
52:~.>'
\
constitute an agreement to j~pply ~ll the money shown in the
budget. Secondly, the plaintift': r~ferred to "preparing" and to
"submitting" a budget to the 1st Defendant. By necessary inference,
the said "budget" must had been "prJ~~ed" and "submitted" in a formI <Ji (;
of a "document". The plaintiff hcl~'pt&tlud~d no document to prove. ~
,g( 1,
that he "prepared" and "subnJit¢~(i"'~\'budget of Tsh.l,390,OOO/= to the
1st Defendant. He has not adduced,evidence to justify the reception
of oral evidence in lieu of thy,~oct,lII;l~nt in which the budget was.:'llt·~rl<.
j,J ,S ~1't),"prepared and submitted". SectiqnlOO (1) of the Evidence Act would
therefore preclude the plaintiff from giving oral evidence of the said• t . :-\..
budget, when it was "prepared" ~n(tYsubmitted" in the form of a[)("
.~ ,',J~N J
['Ire/, "'I!'The Plaintiff has relied:,neavily on Exhibit PI which in the
'\.. ,,"',I'~l
plaint, was referred to as Annextur~ RIM(I) I have already pointed• ,,'" " -10", {'''Ill''', ::>',' .••t ""'\~" '\ .,-' .•.H ••.;;ill.
out that the document wasnpt,\n fad annexed to the copy of theS';"! r'~:.TkjJ,,:
amended plaint, which is the basis of this suit.
unfortunately escaped the notice of the Defence Counsel and of thisA , :.(
" '{~ "'~ ,I .
court. However, the said Exh. PI if}:,liChis a letter dated 3/1/97,'I,m f
\ . 1~"~, li'ln I{l'jl
t' .,,"1
\ i!l P \.<'
,:-I",r:/f - \ h"i! 'I
purported to have been wr\~~~f~~ ~~~'t~laintiffto the Director of the
1st Defendant, bears his title.' "RE'Mkopo Tshs. 870,000/=". The
Plaintiff states in part in the said lett~r, as follows:l
II Baada ya Mr. Mafindi KU'agiza nipeleke bajeti
awamu ya kwanza shs.700,000/= na zilizobakia
nitapewa awamu ya, p/fi ~l1;qc!:fl ya kuona kuwa~, ,l..,: ~q,j~ .,~j ~ !;:~_.!
fit " 1 "t. . ; . .f..r.;J~l) . . .pesa mllzopewa.zrrnefimya kazl. Laklm baada
,',1)t;,'-, . -'I
ya ukaguzi na' kuridhika kuwa pesa hizo
zimetumika lpasavyo, sikumaliziwa pesa za
awamu ya pili .....
Mkopo ambao "nadPhba kuongezewa
kwa kuwa ni[i:kU;~tl'bado kumalizia ujenzi na
kulipa chakula cha waftt~y'akazi ni kama
ifuatavyo:-"
First, if the Defendant had agreed to advance the Plaintiff a
loan of sh.1,390,OOO/=and had! already advanced the sum of
Tshs.700,OOO/=, if the alleged balanceris:shs.870,OOOas shown in Exh.",·,}'t5.tt! I'
Pl, the total amount to be ad~~p;~edby; the 1st Defendant, would add. z)j>' 'f:t
up to shs.l,570,OOO/= which is;fnore than Tsh.l,390,OOO/=, which the
Plaintiff alleges the Defendant had agreed to advance. This goes toJlrt
cast doubt on the plaintiffs claim that:J4e was on agreement in which
the 1st Defendant had undertaket},ito advance shs.l,390,OOO/= to the"; 'h'~
plaintiff. Secondly, the wordAt;lg"of,Exh. Pl, shows that this was a/~.,~~~~ .'
request for an additional loan ('JMkopo. ambao naomba kuongezewaIi 'id~f
• _:j ,-~ (\~ t;kwa kuwa nilikuwa sijama ..li~i,ajMje:t;lz,i,••.. "). Thirdly, if the Plaintiff
·:h i.,:) \; 1..-i, ~,; ~ ~',
i'~ ('-\ .' 1,,;,,:
\{tI)ll': b;,,;had infact submitted a bUdge:~/0ij;~hs.i,390,OOO/=as claimed, he only
.-
needed to refer to the budget whi~h i'had been submitted and claim
the balance which had not beenp':l!p, on the submitted budget..,.J lit
{ .', l ~,tl
There would not have been any need for the Plaintiff to submit a
. ;1,:" Eh.fresh "budget" relating to the unpaidlDalance, as he did in Exh. Pl.
" L. '0, I '>:Fourthly, in Exh. P3, which ',is:a'letter dated 23/4/97 from the 1st
t'/i, It
Defendant to the Plaintiff, the plaitttiff was informed by the 1st
, "1.,~i:'~_,JJelrr;;~).. .Defendant that he had been, gl''t~Il agrIcultural Inputs and
. ' ,~i\J:,\'{ >.
shs.700,OOO/= and that whgl'f::the plaintiff asked for additionali
Tshs.870,OOO/=, he was informed that the additional sum would not
J t... t: ':ill.:
be advanced. This is document"~Hevidence produced by theI
plaintiff himself. On the totcf~~lB~·?'t~~.evidence, since the plaintiff(,~
{\}1.k ,\ ,~,
claims that there was ana~~~ent between himself and the 1st
Tsh.1,390,OOOj=,the plaintiff has}ail~d to establish on a balance of"'.'"v,":
probabilities, that there was such agr~ement. Exh. P1 does not prove
the existence of such a agreement, as,')itrelates to a request for an. .
additional loan, which was t~'fuseHby the 1st Defendant. To this
extent and in the circumstances drYlJihiScase, the first issue is. \ . ,;I<I;',/,il tH·~i.t"l'l'v, . .u,tl-:fi' ',:'110:.'(71,answered in the negative. . c.,
'>1
The second framed issue, is "whether there was a breach by the
Defendants of the loan agreement'!.:·
. ' ,The Defendants advocat~ ha~ submitted that;
j:tif, ; 'r;""the plaintiff having failed to prove the existence of
\;\\,
the loan agreement for "Ysh;1:t390,OOO/= and thelli-V;i":',~ ,;j,},<,:~.f}:Tl.l(_,
"\'(I',~ " C' /JTVC"!Plaintiff having ,t~stified: that he receLVes
1(: .;,'~',';: -"';~r,jl""\~~. ~).'
Tsh.700,OOO/= cash and farm inputs worth
56 ,I,
~" '" }."
Tshs.l,436,000j=, there is no shadow I doubt that((J C:
r",:j
the Defendant hono~red hift'J1art of the contract.~'. ,\ '. --,;~'J
~/#'S~ ! j
The Plaintiffs, remJrstJ,\\fpr an additional
Tshs.870,000j= 1Qaf"(f\i:,new request which was, t
never matured to an agreement .... "
He further submitted that" the request for Tshs.870,000j=, shows
no relationship with the alleged balance ofTshs. 690, OOOj=". For the above
reasons the Defendants advo~~l~pf~fed that the second framed issue,,~ J ~'
r {
be answered in the negative.
The plaintiffs advocat~d5jori.thesame issue, contended that the
(Defendants) "never produced any document to show how the sum of
Tshs.700,000/= which they admit·1to have paid to the plaintiff, was
released to show they never menti~~ltlin their defence the existence';
of a loan agreement. Theyneverl rais~d in their pleadings even the': ...;-.'.1./" 'i,,:- -{,Ia.'H: ,,;,y
issue of supplying agricultiifn-l {inputs. All those facts were~ ~t-{ ,(
introduced by the plaintiff himsel[i:p-tja the defence just supported:f~ir,'3;:~'_~:'-':);"[,'.,. ;,;-}ii:~t'
them except on the balance of '{~h.6,9(),tJO,0/= that was to be paid ... fl.,!.i' .•• '\:_j
JI:,..... i
The Plaintiffs advocate ~ubt:nrtted that, " the unchallenged
evidence of the plaintiff has esta,~[~shett,that what was agreed was a loan of'u,n:, '.•,.,;.~
Tshs.l,390,OOOj= and the defendants released only Tshs.700,OOO=".t· .' P:t
, ~~,,:.. ,:,
As pointed out earlier:'lRtris judgment and in terms of section
110 (1), of the Evidence Act, the burden of proving the existence of a
Loan Agreement in which the Deftrnda,ptagreed to advance a loan of
Tsh.l,930,OOO/ = to the plaintiff" IjesQn' the plaintiff who asserts that" .; , ~
fact. It does not lie on the, Defendant to prove that such a loan
agreement does not exist. wJ~a~~t~l~eady found when disposing of
, ,'as/the first framed issue, that the plail1tl,£Lfailedto prove the existence of
'~',',~,; ,.~, ", .. :;.:'
such a loan agreement. By h;~;J(;rWIV?~iQidence,the plaintiff told this-ii,' 1;'i
court that he was asked to 'prepare' and submit a "budget" and that
the plaintiff did prepare and submit a budget of Tsh.l,390,OOO/=.
iI,,' l\,,'~I;The document containing the budget Was not produced in evidence
T, .,". ~t,' l
and there was no evidence whatsoever that the alleged budget was•
agreed upon or approved. A mere ascertation that a budget of,tik' I'
, 'i!1~}.Tsh.l,390,OOO/=was prepared,and submitted, and even without any
} \,1 " , l'proof that the alleged budgetWasa'greed upon and approved by the
l:',A'j~"'::'1),LiQI~.~'?~ ~. -,~" " ...•
, <-
-J:Defendant, does not constitute ./1 un~r~llenged evidence" proving the
existence of the alleged Loan AgreeII\~nt. Since the loan agreement,,;~,C' (:a
of Tsh.l,390,OOOj=was not,Rw~yed;fohave been made between thej"j,,~I:,l, ,I
plaintiff and the defendants, it fo1l9W's';tllatthe Defendants cannot be'Ii, .1\', ,;\
" ·:;'t,. •.', ,',\ \ v ,'.-l{:1i\._ .....
held to be in breach of a nqn e1i~~t\~S')M'qr.agreement. As for the loan
\:, "'~;,!~
agreement for the supplying ~qf,:a,griculturalinputs, this was not an
issue raised by the plaintiff in the Amended Plaint. The whole
plaintiffs suit as can be ascerta~nedrrom the Amended plaint, is\lc'l:J
based on an alleged breach 9~,,,SQ'!1tractor Agreement, by thet' I:~
Defendant to pay the plaintiff, th~,ampunt of Tshs.690,OOOj=being~.t~, ~~I,": ' ,~,; ~'; ,:jjr;tr;' ('t i (:
the balance on the sum of thf!1''greed ~oan of Tsh.l,390,OOOj=. The
",InDefendants could not have raisep' ~U~,f¢ncerelating to the supply of", .. ,.-t:,,(:'
" dE; bJl fl,j(Ja.! .agricultural inputs, when l:he'plaTrltiff\'had not pleaded the matter .
. 't "JAs the plaintiff failed to prove"itheexistence of the loan Agreement of
Tsh.l,390,OOOj=the Defendant was not proved to have breached the
said agreement by failing to pay tR~pl~intiff the alleged outstanding;C}7
:,' I
1,:1, 'to, "~,'/" ~;
sum of Tshs.690,OOOj=.We have(~lsd'demonstrated that if the sum oft d,
:i t.,~, 'J-
Tsh.700,OOOj=,which is adqlittedby-1 both parties to have been, 'I't'H' ,-1' ..·. I:
¥!La' 'advanced to the plaintiff, is "added to the claimed balance of
"ll'j
,1', e
Tsh.870,OOOI= which is shown i~ ~x:,€.~~1as the outstanding amount,
the total sum would amount to tg~;'r;~O,OOO/= and not 1,390,000/=,),
which goes to prove that th~V~u~~r~q~ested in Exhibit Pl, was not.•..;' .. ,,: " :',
(i:",~li~'
part of the alleged loan of Tsh':I,390,OOq,= but a specific request for a-; ,.
loan of Tsh.870,OOO/= for .whlFqfi(~hEWtl1wasno evidence offered to'\ .• I!"~ ~-l,Af'f7\.':
prove that this sum was agr~e9.:upon. The second framed issue is:, ", ,"
accordingly also answered in the negative.
The third framed issue, is "whethlif the Plaintiff suffered any loss ofJ\~' ,
. h?,tearnings as the result of the breach of the Ibdn agreement".
'.~. ,
/$;; kt~J, -)~ e
,-. ,.~~·t ) .',e ~'s <r\',. ('
The Defendants have iri'effecf submitted that this issue cannot",~t"i,': h, :','.",
but be answered in the negative. The~'I\Urther submitted that even if.I",! \. '~"'-. J
for the sake of argument it isl~~t~~~ifhat there was an agreementr1 Of It
which was breached by the B~fendant, the plaintiff failed to show
why he should be paid damages of 10,000,0001= for breach of
contract while he is claiming spedaI cl,~'i:nagesof Tsh.3,555,OOO/= and,', t,,.,!:"' l'_.'it! f.
1,680,0001= for the same breach9f cQntract. He submitted further;J - .. [',;"\. ,
that the expected income for 14 Y.~.flrs1as claimed in paragraph 21 of.~:!))1, .'
1 Yi:!l :.tthe Amended Plaint, is purely;~speculative and based on conjuncture
as it is not feasible to anticipate income based on agricultural activity~ r;:~i'j
which is dependant on the wea!th~ ah4 availability of loans and also'J,;., ?
I
flactuations of prices and taxes, ih~l\i&~~gproduction costs.
! t':'i:~t
The plaintiffs advocate 6rl'\his i~~pecontended that the plaintiffil),
has testified on how he ~U~!:!~~1:1:lgr~s'because of the breach andI,. ;, >""',, ,~,'" ,c'I,./'
"" ,I'r. ,
argued that the Defendants,"~ho ~re specialized companies dealing with
tobacco, with all the expertise they have never adduced evidence to disprove
the plaintiffs ascertains on the expected production". He submitted that- 'ij' ~<l
this was an admission that' ~K~"t~iaintiff's claim on expected'j}.; \')) !
production was correct. Withouttlhe~~ed to go into the submissions, '~cl' t
which demonstrate the alleged;~os~i,it will suffice to say that, if there. ,:1..' ,.. ··n"i.~'I "
was a breach of the loan agreementbr,j:ontract, damages would be
awarded at the discretion of tfi~'~!~~iR~tqeneraldamages do not have',. ..•.. ' ·... ;··h ...·"
'i
to be proved. As for the al{~g¢dspecific losses, these are specific
damages which the Plaintiff has to prove by evidence and not by
mere ascertation or failure of th~:,befendant to adduce evidence to: \ ,,,~.'t j" f
~ ..n!the contrary. Specific damages haxetb:he specifically proved. In the
~ ': 1" .•.. jii
l~ '(N·t . t'
present case, since it has been!fou~sI t~at the plaintiff has not proved
the existence of the loan agreement tor Tsh.l,390,000j= and since it
has as the consequence been foupd tbflt there was no breach of the"Y,;j ¥~i't..,.
~::'.. .,,;
said agreement as it did not exi~t, itf~nows that both the general and'''''''i '. ~
i ":specific damages claimed by the ~plah\tiff, have no leg to stand on.
4., ,On the evidence adduced by\.H1ePlaintiff, even assuming that there
,i .
was a breach of the agreement, whIch is not the case, the specifict :..',;",':"
, ",' ":,,,.,,' (damages relating to, loss of "eathihgs":'Tsh. 1,680,000j= (para 18),
incurred expenses for labourefs!shs.3,782,000j= (para 19), renovation
of 8 barns shs.470,000j= shortfall on production of tobacco valued at·'t,
sh.3,555,000j= (para 9 and 10), were Merely asserted, but not proved, '•. i j
, "",j1'~Jl"
by evidence. The Defendant dia:.Jlot~:fhavethe burden of disproving,
what was not proved by the plaintiff.':~l1 '['''j''
It follows that the alleged \losses suffered or expenses incurred
by the plaintiff for the alleg~d bre~~,hof the loan agreement, are not, r '<,."iriHp;s
only unfounded for there be~ng no Breach, but they were not also, j;':-;J!"; t,
proved. The third framed issue is consequently also answered in the
negative.
The fourth framed iSS}W:;j&M(~t!ther the Defendant defamed
the plaintiff". This issue, aris~~'frb,xn!raragraphs14-17 of the plaint,
in which the plaintiff has claimed that the Defendant on 23/4/97 did, . ,., ,ll}
publish or caused to be a publis'n¥ed\'Mr0rdsconcerning the plaintiff
which words were" meant and wer~.lunderstood to mean by those~
who heard them that the plaintiff' could not be trusted". The said, i
",l~d.'-~ I
words which the plaintiff has'quoteq in full in paragraph 14 of the
plaint are as follows:-
!~~1'f ~-.! },
"Kufuatana na uamuzi' Wako huo unaambiwa
wazi kuwa mkulima atakayekubeba pamoja nai ,.;1\~~ ; r;
Kampuni itakayonuhuar
" tumbaku yako.
HATUA ZA KISHER1'j{~tTACHUKULIWA
DHIDI YAKO PAMO/AG NA KAMPUNI"",
ITAKAYONUNUPt')YUMBf\KU YAKO. Na
kwa tahadhari ya 'taarij~!hii' tunapeleka Polisi., ." ""., ~F"
:'l"~~,,}" , (,'1iI'~l··rkwa ujulisho ilim'dmbo hayo yatakayotokea
?t f ,
yawe wazi kwa wahusiktl Iwote. Mtu huyu sio
mwaminifu hivyo j~1fl«J,lik4!#lnalipeleka kwenye! . "
Kampuni zote"','111'HlJ
The said words are contained in a letter Exhibit P3, which was
admitted to have been written by DVV2 the Administrative Manager; ,'~·~.:ij'~.:"~'-lI .":
of the 1st Defendant upon instructio~lfrom the said company. The
t", ~;~..'said letter Exh. P3, is addressed f(J'the Plaintiff Mr. Ramadhani Issa
Malengo and copied to STANCOM, TLTC, RUECO, INTABEX,
POLIC (sic) TABORA, KICnV~'l~~~ZI and MKUU WA MKOA." ,j I,
The Plaintiff has claimedinp~iagraph 17 of the plaint that "in" , \
consequence thereof the plaintiffs reputation has been seriously
damaged and he suffered considerable distress and
, -v')As the result of., fhe alleged deformation, the
.' ;.~,l:~, ,;,-,,1;
,j ',' \plaintiff is claiming general damages of Tshs.sOO,OOO,OOOj=.
The defendants advocate has sutmitted that this complaint has'/'j,', 'IJL',/·,". , PI~ '\ ";l"L\ 'ViP'
no merit. He gave a number Qfr£a§oil$~£The first reason is that there
,'t ' nis no evidence on record to est~bI1sh that the copies of the letter were
I
circulated and it is not elaborated as to who the recipients are.
64. ;\/ '{l
Secondly the Defendants advocate a"llguedthat DW 1 Mzee Joseph
Kishiki the Area In charge fd~K~J~~l~Yillage in which the plaintiff\ J; 1 r. ~;(/~'~ti:.',
had his farm, received informati'qp that the Plaintiff was intending to,:Jltt"'l' ,
avoid selling his tobacco produce to the Defendant, with whom he
had an agreement for agriculturalJnpPlts support. He contended that•• " •.1
it is also on record that DW 1 jnvestig'ated the allegation by seeing"
, .. ~- :": , :'
to sell the tobacco to TLTC' and the said HAMISI MJAHASI
confirmed the allegation. In a nutsheI*~the learned advocate argued
" ",Yt\' ~.Jt1i~~A~,that the letter Exh. P3 "was in fln{~;att~mptto prevent the breach of
"l;;\ a! ':/,'1agreement by the plaintiff th'ltttJfl~Defendant wrote a letter to him,
now alleged to have defamed him". He contended that the Plaintiff, It' ,~
never denied the contents of the l~tt~r'~hd that it was a fair comment.\'
"t'~;He further alleged that DW 3 corroborched the evidence of DW 2 that
f l ,. ~
it was common for Kigwa Villagers to receive agricultural inputs\ ~
; (
from one company and yet to sell their tobacco to third parties. The
, , \ \,,',~
Defendants advocate referred to the case of HAMISI V. AKILIMALI.", '.)\{·I~,}~IFJ"\~(r,'\\,