Tanzania Azimio Construction Company Limited vs CRDB Bank Limited (Civil Appeal No. 404 of 2023) [2026] TZCA 385 (1 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. J.A.. RUMANYIKA, J.A. And ISMAIL, J.A .l CIVIL APPEAL NO. 404 OF 2023 TANZANIA AZIMIO CONSTRUCTION COMPANY LIMITED .................APPELLANT VERSUS CRDB BANK LIMITED ............ ............................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) fMbagwa, J.) dated the 16th day of March, 2023 in Commercial Case No. 120 of 2013 JUDGMENT OF THE COURT 10th December, 2025 & 1st April, 2026 RUMANYIKA. J.A.; On 17th October, 2002, the parties executed a loan agreement between themselves. The appellant, Tanzania Azimio Construction Company Ltd was granted a term loan of TZS. 163,210,758.98 and an overdraft facility of TZS. 40,000,000.00 for purchase of some construction equipment. It was secured it by way of mortgage of, among others, the landed property, Vide a Certificate of Titie No. 3136 for Plot No. 181, Block Q. Its location was not disclosed in detail in the plaint. However, things did not go as smooth as planned as the appellant is alleged to have defaulted to repay the loan in full. On her part, the appellant asserted that she repaid the loan and in excess of TZS. 85,666,286.07, for which she claimed a refund vide Commercial Case No. 120 of 2013 before the High Court of Tanzania (Commercial Division) at Dar es Salam ("the trial court") vainly. In that case, therefore, it was asked for the respondent to hand over the respective Certificate of Title to her, alleging it was no longer lawfully withheld. Similarly, the appellant asked for general damages, interest and costs of the suit. Also; it t was the appellant's case that, before expiry of the said loan term, and upon being advised by the respondent successfully, she sold all the construction equipment and used the proceeds to repay the overdue loan money. That, the amount of TZS. 120,000,000.00 realized was deposited in the appellant's bank account on 6th September, 2007, settling the outstanding loan. It was also testified that, although, eventually, the appellant had liquidated the whole debt, let alone the excess amount paid, still the respondent withheld her Certificate of Title, for no reason at all. The respondent testified through Luther Mneney who was the sole defence witness. He disputed all the appellant's claims, asserting that, the loan was not fully repaid, let alone the alleged excessive payment. He added that, the total amount disbursed was TZS. 243,718,000.00, despite TZS. 120,000,000.00 that was deposited, upon being realized from the sold equipment, which did not satisfy the whole debt. Therefore, it was argued, the respondent was justified to withhold the corresponding Certificate of Title, being security for the outstanding balance. In consequence, however, the appellant lost the battle. Undaunted, the appellant has preferred the present appeal with six points of grievance. They are paraphrased thus; One, the trial court wrongly holding that the appellant lied in her evidence; two, the trial court to hold that the appellant is still indebted to the respondent bank; three, the impugned decision being founded on foreign and extraneous documentary evidence; four, the trial court's failure to appreciate that the appellant had also paid third parties; five, the trial court's holding that the respondent bank disbursed TZS. 206, 560,000.00 to the appellant and; six, the trial court's holding that the appellant's case was not proved to the required standard. When the appeal was called on for hearing, Messrs. Jamhuri Johnson and Rainer Songea, learned counsel, appeared for the appellant and the t respondent, respectively. Mr. Jamhuri, to start with, adopted the appellant's written submission filed on 08/09/2023, as part of his oral submission. Regarding the first ground of appeal, it was contended that, when the documentary evidence and the respective invoices are considered together, the appellant's case clearly was proved on the required standard. Therefore, it was argued, to hold that the appellant told lies, the trial court's finding is inconsistent with the record. That, the burden of proof lies on the respondent to show that the appellant is owed to the latter. Much as the appellant's counter claim was properly dismissed. Further, Mr. Jamhuri faulted the learned trial Judge, in his finding that the "nil" or "zero" balance, that appeared in the respondent bank's books of accounts did not reflect the reality on the ground. Rather, it was asserted, the respondent was not certain about the exact amount of the loan money disbursed, not clear if it is TZS. 163,000,000.00 or TZS. 203,000,000.00, which is reflected in the loan agreement (exhibit P2). Therefore, Mr. Jamhuri prayed for the appellant to be refunded the excessively deposited TZS. 85,666,000 and unconditional release of Certificate of Title. That, the Court be pleased to find that the appeal is merited and to allow it with costs. In reply, Mr. Songea adopted the respondent's written submission filed on 25/07/2025. He contended that, the appellant did not discharge her burden of proof, showing that, she had actually repaid the loan in full and exceeded it by TZS. 85,666,000.00, as alleged. Mr. Songea referred us to copies of the self-explanatory letters (exhibits P15 and P16) found on pages 137 and 138 of the record of appeal showing that, on or as at 09/11/2010 the outstanding amount stood at TZS. 39,864,747.10. He also asserted that, according to exhibit P8 which appears on page 148 of the record of appeal, the balance stood at TZS. 44, 294, 242.30 then, which the appellant did not sincerely disown, as she only asked to be spared the accrued interest. Further, Mr. Songea referred to the substance of evidence which appears on page 172 of the record of appeal, as regards to the reconciliation of the records carried out by the parties on 07/09/2019. That the parties mutually agreed that the outstanding amount is 77S. 29, 965,209.34. It was also argued that the appellant did not demonstrate to have paid any other subsequent instalments ever since. Therefore, the learned counsel stressed, the respondent was justified to withhold the respective Certificate of Title and that the appellant's complaint is unfounded. That, the appellant sold the said equipment at her own volition, with whose proceeds of TZS. 120,000,000.00 she managed at least to pay one of the long overdue instalments to the respondent bank. Therefore, the Court was urged to dismiss the appeal entirely for lack of merit, with costs. Having considered the learned counsel's rival arguments, with the record of appeal reviewed in line with the cited laws, we are settled in our minds that the appellant, respectfully understood the triable issue upside down. As such, it is not about whether or not the appellant was indebted to the respondent. Rather, it is whether the appellant had fully repaid the loan and exceeded the amount due, as alleged, from its inception has been the gist of the appellant's case. With respect, we find the appellant's complaint in the first ground of appeal to be misconceived. As such, in his considered view, the learned trial judge held that the appellant's evidence was too insufficient, unreliable, and contradictory to meet the required standard of proof, not that she told lies, as alleged. For instance, it was observed that, the probative value of the invoices and the bank statement presented apart, there was no proof of the alleged payments done to the alleged suppliers (third parties), as appears on pages 395 and 398 of the record of appeal, among others. Therefore, we decline to reverse the learned trial Judge's findings as they depict true position of the law. It is a trite law that, he who alleges, in this case, the appellant that he had repaid the loan fully and exceeded it by TZS. 85,666,000.00, must prove it, which she did not. See - Paulina Ndawavya v. Teresia Thomas Madaha (Civil Appeal No. 43 of 2017) [2019] TZCA 453. This complaint crumbles. We recall that the second ground of appeal attacks the learned trial Judge in holding finding that the appellant is still indebted to the respondent bank. We agree with Mr. Songea, on a contention that the appellant misconceived the court finding. As a matter of fact, its truth is not hard to comprehend. As a matter of fact, it was not the court's positive and specific finding that the appellant is indebted. Rather, the appellant was found to have failed to prove her allegation on the balance of probabilities, that she had repaid the loan fully and exceeded the outstanding loan amount. Therefore, the sixth ground of appeal fails. Also, worth noting is exhibit P20 which is one of the respective letters of the respondent to the appellant dated 07/09/2009. It showed the outstanding amount to be TZS. 29,965,209.34 whilst the bank statement (exhibit P6) recorded it zero-balance. With respect, we do not agree Mr. Jamhuri's contention, in this regard, that the zero-balance meant the appellant's actual indebtedness. We note, from the record that, it is the appellant's continued failure to repay the loan timely and in full, turning out to be a non-performing loan that culminated into the "zero balance". After all, while under cross examination, PW1 made it very clear, as is appearing on page 172 of the record of appeal. That, upon reconciiing the record of 7/9/2009 onwards, TZS. 29,965,209.34 remained to be the outstanding amount It was also revealed that the appellant did not pay any other instalments since then, despite of the alleged excessive payment and the zero-balance status reflected in the bank statement (exhibit P6). Therefore, it cannot be said that the zero-balance was real, having the effect of discharging the appellant from the liability to repay the loan. As such, the learned trial Judge rightly so observed it. Let alone the alleged excessively paid amount of money, which was not substantiated by the claimant. We have reiterated that position on several occasions, such as in NBC V. Universal Electronics & Hardware & 2 Others [2005] T. L. R 258. As such, the onus of proof was properly shifted to the appellant. Duty to affirmatively prove the alleged indebtedness of the respondent, which she did not. Too, the second ground of appeal flops. The third ground of appeal it is recalled, concerns the learned trial Judge, allegedly basing his decision on extraneous evidence. What we gather from pages 180 to 321 of the record of appeal are the documents that were relied upon by the trial court. They are copies; one, of the respective loan facility approving letter (exhibit PI); two, of the term loan agreement between the parties dated 17th October 2002 (exhibit P2). Three, of invoice raised by M/S Gailey and Roberts (exhibit P3), four, of an invoice raised by Ms Africarriers Ltd. in the process (exhibit P4) and; five, of a bank statement for Account No. 011/10/583427/00 (exhibit P6). Others are (exhibits P l l , P12, P13) which are the copies of bank pay-in slips, relating to instalments ever paid by the appellant. As such, it does not appear to us that the said documentary evidence was either wrongly procured or improperly tendered in court and admitted in evidence, given their unfettered relevance to the case. Therefore, the 3rd ground of appeal is misconceived, and on that account dismissed. About the fourth ground of appeal, the learned trial Judge is faulted in his finding that, the appellant failed to prove her allegation, that she also had paid third parties. This complaint also will not detain us, so is the allegation that the respondent had disbursed less sum of the approved loan amount. It is so, because, it was also incumbent upon the appellant to prove these allegations, on balance of probabilities, in terms of section 110(1) of the Evidence Act, which she did not, as alluded to earlier on. The Court has tested this legal principle several times and repeatedly. For instance, see - Barelia Karangirangi v. Asteria Nyalambwa (Civil Appeal No. 237 of 2015) [2019] TZCA 51). To hold otherwise, therefore, it is tantamount to shifting burden of proof to the respondent which we decline to venture into. Last but not least, are the issues of the respondent having released less loan money or acting negligently. For all the reasons that we have endeavored to discuss above, this complaint is neither here nor there. It is an afterthought, to say the least. To round up, it is not hard to find that the amount disbursed by the respondent to the appellant was TZS. 206,560,000.00. Moreover, the appellant's complaint that she was wrongly declared a liar is respectfully misconceived. Notably, the context of that finding, in our considered view, was reached in the course of the learned trial Judge analyzing of the evidence. That, the appellant's evidence was contradictory and unreliable, falling short of the required degree of proof. It is not the same as saying that the appellant told lies. However, whatever the amount of money that was disbursed, it counted nothing in the circumstances of the case. It is so because, in the end the issue that stands is whether or not the appellant had repaid the loan in full and exceeded the actual amount due. The appellant failed to prove it, as observed before. Too, the fifth ground of appeal also crumbles for being unmerited. For the reasons that we have endeavored to give, we find no merit in the entire appeal. We hereby dismiss it with costs on the appellant. DATED at DODOMA this 31st day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 1st day of April, 2026, virtually in the presence of Mr. Benson Florence, learned counsel for the appellant, Ms. Teckla Kimati, learned counsel for the respondent and Mr. Issa Issa, Court Clerk; is hereby certified as a tm exopy of the original. D. P. KINYWAFU EPUTY REGISTRAR COURT OF APPEAL 10