Mohamed Said Sinani & Sons Limited & Others vs CRDB Bank PLC (Civil Appeal No. 666 of 2023) [2025] TZCA 1298 (17 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KEREFU. 3.A. KHAMIS, J.A. And NANGELA. 3-A.^ CIVIL APPEAL NO. 666 OF 2023 MOHAMED SAID SINANI & SONS LIMITED ............................ 1 st APPELLANT MOHAMED SAID SINANI...................... ................................. 2 nd APPELLANT ASMA MOHAMED SINANI...................................................... 3 rd APPELLANT VERSUS CRDB BANK P LC ........................... . ................. . ................* ..... RESPONDENT (Appeal from the Judgement and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Mbaqwa, J.) dated the 29th day of March, 2023 in Commercial Case No. 113 of 2020 JUDGMENT OF THE COURT 5th & ^Decem ber, 2025 KHAMIS, 3.A.: This appeal arises from a judgment and decree of the High Court, Commercial Division in which the respondent sued the appellants for the alleged breach of the loan facility agreement. The genesis of the dispute, as stated in the plaint, is that pursuant to the facility letters signed on 29th May, 2013 and 22n d August, 2014, the first appellant was granted, by the respondent, a term loan facility of TZS. 887,319,503.00 to finance the purchase of three IVECO tractor units and seven fuel tankers air suspension with ten compartments and an overdraft facility of TZS. 150,000,000.00 respectively. The terms of the contract for the term loan facility were that: it would attract an interest rate of 18% per annum accrued daily on the outstanding balance and charged monthly; had a grace period of six (6) months; was to be disbursed directly to the first appellant's account; the credit period was forty two (42) months whose expiry date was 31s t July, 2017; the loan inclusive of interest thereon was to be repaid monthly as per the detailed repayment schedule; it was secured by the first legal mortgage over properties on Plot Nos. 4 & 5 Industrial area, Mtwara and Plot No. 307, Block "AA", Market area, Mtwara Municipality both registered in the names of the first appellant. Additionally, the term loan was secured by a chattel mortgage over seven (7) trucks and trailers registered in the name of the second appellant, first charge fixed and floating debenture over ail present and future assets of the first appellant and cross guarantee signed by Sinani Building Contractors Limited. The terms of contract for the overdraft facility were that: it attracted an interest rate of 18.5% per annum which accrued from day to day on the outstanding balance charged monthly and commenced from the date the borrower started to utilize the overdraft facility; attracted a penalty of 3% per annum above the interest rate charged, if the borrower fail to operate within the approved limit or fails to comply with any of the terms of the overdraft facility letter; the credit period was one (1) year due to expire on 30th September, 2015; upon expiry of the credit period, any outstanding balance together with interest charged thereon and other charges would fall due and be payable immediately unless the facility was renewed; it was secured by first charge legal mortgage over properties on Plot No. 4 & 5, Block "I" Industrial area, Mtwara Municipality, Plot No. 307, Block "AA", Market area, Mtwara Municipality, Plot No. 102, Block "3", Factory (Viwandani) area, Mtwara Municipality registered in the names of the second appellant, Plot No. 165 & 167, Block ”1", Kisota area, Temeke Municipality, Dar es Salaam registered in the name of the third appellant, chattel mortgage over tankers and trailers with Registration No. T 680 CLV, T 677 CLV, T 329 CPT, T 684 CLV, T 852 CQF, T 983 CRH, T 357 CRT, T 978 CRH, T 981 CRH, T 980 CRH registered in the names of the second appellant. Additionally, the loan was secured by the directors' personal guarantee and indemnity signed by the second appellant and one Abdulrahman Mohamed Sinani. It was also secured by the first charge fixed and floating debenture over entire assets of the first appellant. Subsequently, the first appellant failed to repay the loan as per the agreed repayment schedule hence made a successful application for restructuring of the loan facilities. In the deed of variation executed on 25th May, 2017, the term loan was merged with the overdraft facility and the previous terms and conditions were varied. The new credit facility amount was TZS. 530,670,093.07 repayable in sixty (60) months and would come to an end in May, 2022. The interest rate stood at 18% per annum accrued daily but, charged monthly. A penalty of 3% per annum was charged in the event of default. TTie new facility had no grace period and required the repayment in monthly instalments as per a detailed repayment schedule. The securities remained the same. It was the respondent's case that, the first appellant failed to adhere to the terms and conditions of the restructured loan facility by failure to repay the outstanding sum which stood at TZS. 614,946,043.43 as in May, 2020. Following the default, the respondent allegedly required the second and third appellants to repay the outstanding amount but they refused, neglected and or ignored, hence the filing of the suit as indicated above. The reliefs sought by the respondent were orders for repayment of: TZS 614,946,043.43 outstanding in the loan account; interest on the outstanding amount at the contractual rate of 18% per annum from 26th May, 2020 to the date of judgment, interest on the decretal sum at the rate of 12% per annum from the date of judgment to the date of full payment, costs and any other relief as the court deem just to grant. The appellants filed a joint written statement of defence acknowledging existence of the term loan facility and the overdraft facility which were, subsequently, merged into one credit facility as per the letter of variation dated 25th May, 2017 (exhibit D3). Nevertheless, the appellants disputed the alleged failure to repay the loan as per the agreed repayment schedule. It was their position that, the restructuring of the original facilities was done to meet the first appellant's desire for additional loan to facilitate her construction business. The appellants maintained that, the loan was fully paid as per the terms of the letter of variation and expressed a surprise that, the suit was prematurely instituted before the reconciliation of the first appellants account by the respondent. Further, the appellants demanded for immediate release of the collaterals on the ground that there was no outstanding loan to be repaid. At the trial, the respondent relied on the evidence of her Manager, Charge Off Portfolio, Jacob Mpozemenya (PW1) who maintained that, the first appellant failed to adhere to the terms and conditions of the loan facility letter (variation) and did not remit the monthly instalments as required. The appellants flaunted three witnesses: Medard Paul Mugisha (DW1), Asma Mohamed Sinani (DW2) and Mohamed Said Sinani (DW3). DW1, a professional accountant engaged by the first appellant, testified that, the respondent miscalculated the entries in the first appellant's account and hence, the alleged outstanding sum was a sham. He said there were many transactions that were credited as loan drawdown and debited as loan settlement without notifying the first appellant. DW1 identified such transactions and opined that, the respondent ought to have reconciled her books of account before instituting the suit. The trial Judge entered judgment for the respondent ordering the appellants to pay TZS 614,946,043.43 as the principal outstanding amount, interest thereon at the rate of 18% per annum from 26th May, 2020 to the date of judgment, interest on the decretal sum at the court's rate of 12% per annum from the date of judgment to the date of full and final payment and costs of the suit. Aggrieved with the entire judgment, the appellants lodged this appeal setting out six grounds of appeal. Subsequently, the appellants successfully sought leave to add five more grounds. ITie said eleven grounds of appeal faulted the trial court for: one, trying the case without ascertaining a resolution by the respondent's board of directors to mandate the institution of the suit; two, failure to interpret the evidence given by the parties and relied on the weak evidence adduced by the respondent; three, holding that the respondent advanced the credit facilities to the first appellant without considering that the respondent failed to tender the alleged credit facility advance; four, awarding the specific damages to the tune of TZS. 614,946,043.43 without being strictly proved by the respondent; five, admitting into evidence the documents tendered by PW1 which were not attached to his witness statement contrary to the requirements of the High Court (Commercial Division) Procedure Rules, 2012 (the Commercial Court Rules); six, disregarding the evidential value of exhibit D5 which proved non-existence of the outstanding loan and the miscalculations of the loan amount by the respondent; seven, failure to dismiss the suit in respect of the loan facility dated 17thApril, 2014 which was time barred as the suit was filed in November, 2020; eight, admitting and relying on exhibits P3 and P4 without an accompanying affidavit being tendered contrary to requirements of sections 78 (1), (2) and 79 (1) and (2) of the evidence Act, Cap. 6 [R.E 2019] (the TEA); nine, admitting the documents that were not attached to the witness statement of PW1; ten, failure to hold that there was no reconciliation of the accounts as pleaded by the appellants; and eleven, failure to hold that the second and third appellants had no guarantee obligations following the rejection of the mortgage deeds and the demand notices. At the hearing of this appeal, Messrs. Nyaronyo Mwita Kicheere and Roman Masumbuko, learned advocates, teamed up to represent the appellants. On the other hand, Ms. Faiza Salah, also learned advocate/ acted for the respondent. The parties had earlier on filed their respective written submissions as per rule 106 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and exercised their right to highlight. Since the appellants' written submissions had covered the first six grounds of appeal, the other five grounds of appeal were orally canvassed. Submitting in support of the appeal, Mr. Masumbuko adopted the written submissions earlier on filed, highlighted on them and then, addressed each of the additional grounds of appeal. In the process, he consolidated the second, third and fourth grounds of appeal. He also consolidated the fifth and ninth grounds, as well as the sixth and tenth grounds of appeal. On the first ground of appeal, he referred us to section 147 (1) of the Companies Act, No. 12 of 2002 (the companies Act) for the proposition that, anything done by officers of the company without a sanction of the board 8 of directors by way of a resolution cannot be associated by the company. He contended that, the respondent did not lead any evidence to show that the filing of a suit against the appellants was sanctioned by the board through a formal resolution. He cited our decision in William Sulus v. Joseph Samson Wajanga, Civil Appeal No. 193 of 2019 [2023] TZCA 92 (9 March,2023) for the proposition that, the alleged absence of a board resolution was a legal issue that is to be considered at the earliest opportunity, although, it was not canvassed before. He also sought reliance on the case of Simba Papers Convertes Limited v. Packaging and Stationary Manufacturers Limited & Another, Civil Appeal No. 280 of 2017 [2023] TZCA 17273 (23 May 2023) in support of the argument that, a suit instituted on behalf of a company without its mandate through a board resolution is incompetent and the resultant proceedings, judgment and decree are void. On the consolidated second, third and fourth grounds of appeal, Mr. Masumbuko invited us to revisit the evidence on record and find that the trial Judge misdirected himself in holding that, the respondent proved the existence of the credit facilities. He referred us at page 495 of the record of appeal and argued that, it was wrong for the trial Judge to conclude that, 9 the appellants failed to lead any evidence to dispute the facility letter of 2017. The learned counsel cited our previous decision in the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2019] TZCA 453 (11 December 2019), in support of the assertion that, the burden of proof was unfairly placed on the appellants instead of the respondent. That, the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his burden of proof and that, the burden of proof cannot be diluted on account of the weakness of the opposite party's case. On the fifth and ninth grounds of appeal, the appellant's counsel cited rules 49 (1) and 50 and the third schedule to the Commercial Court rules to contend that, a witness statement filed in the Commercial Court must be accompanied with copies of the intended exhibits. That, the documents produced at the trial and admitted as exhibits were neither attached to the witness statement nor identified as the law required. Reliance was placed on the decision of this Court in the previous case of Total Tanzania Ltd v. Samuel Mgonja, Civil Appeal No. 70 of 2018 [2021] TZCA 265 (25 June 2021), where it was held that, in case a witness testifies through a written statement, the normal procedure for admission of any document annexed 10 to the witness statement in terms of sections 63, 64, 64A, 65, 66, 67, 68 and 69 of the TEA, has to be followed. On the sixth and tenth grounds of appeal, the learned counsel referred us at page 392 to 414 of the record of appeal, where the appellants tendered exhibit D5 and led evidence to show non-existence of the outstanding loan owed to the first appellant. He contended that, despite the said exhibit showing fabrication of the alleged loan by the respondent, the trial Judge chose to ignore its evidential value. Furthermore, Mr. Masumbuko placed reliance on the case of Samwel Kimaro v. Hidaya Didas, Civil Appeal No. 271 of 2018 [2019] TZCA 201 (1 July 2019) for the proposition that, specific damages must be specifically pleaded and strictly proved by a party who wishes to have a judgment in his favour. He contended that, the respondent pleaded specific damages to the tune of TZS 614,946,043.43 but failed to lead evidence to prove such a claim. He referred us to exhibit D4 (the bank statement) at page 382 of the record of appeal which allegedly showed no outstanding debt. The statement further reflected some credit transactions in the first appellant's account while in reality no such monies were deposited. The learned counsel asserted that, exhibits P3 and P4 (the bank statements) showed no credit entry in the account meaning no money was i i disbursed to the first appellant's account as per the credit facility. On specific reference to exhibit PI (the letter of variation of 2017), he contended that, it was not backed up by the letter of credit of 2014 which showed no disbursement of money into the first appellant's account. He also faulted the respondent for failure to produce the letter of variation of 2015. The learned counsel argued that, the respondent's evidence was contradictory. He compared exhibit PI which showed the loan amount of TZS. 670,093.07 and the bank statement (exhibit P4) which allegedly showed no disbursement of that figure. He invited us to find that, the bank statements spoke for themselves and should not be supplemented by the evidence of PW1 which was allegedly misleading. Reliance was placed on the High Court's case of Jonathan Karaze v. Laurence Bwakila, PC Civil Appeal No. 26 of 2020 [2020] TZHC 897 (14 May 2020) where the High Court relied on sections 100 and 101 of the TEA to persuasively hold that, once a contract is reduced into writing it excludes the oral evidence and therefore, between parties, no term of contract can be orally modified or otherwise amended. On the seventh ground of appeal, Mr. Masumbuko referred us to page 2 of the record of appeal where the plaint showed the parties contractual relationship started in the year 2014. He also referred us to page 8 of the 12 record of appeal where the letter of variation dated 25th May, 2017 (exhibit PI collectively) varied the terms and conditions of the loan agreement executed on 17thApril, 2014 and 18th May, 2015. He argued that, at the time of restructuring in 2017, the act of default had occurred and therefore, the respondent ought to have filed the suit within six (6) years which expired on 17th May, 2021. Instead, the suit was filed on 23r d August, 2021 hence time barred. On the eighth ground of appeal, the learned counsel cited section 84 of the TEA to contend that, the law was contravened when PW1 tendered the documents that were admitted as exhibits P3 and P4 which were annexed without an accompanying affidavit. He invited us to expunge them from the record. Regarding the eleventh ground of appeal, Mr. Masumbuko contended that, the mortgage deeds in respect of the securities owned by the second and third appellants and the demand notices allegedly addressed to them were not admitted in evidence by the trial court. He argued that, the absence of such evidence meant the second and third appellants were not liable as guarantors for the outstanding loan. In conclusion, the learned counsel urged the Court to allow the appeal with costs as prayed. 13 On her part, the respondent's counsel, in opposing the appeal, and after adopting the written submissions on record, submitted that, the appeal was without merits and prayed that we uphold the findings of the trial court and dismiss the appeal with costs. Addressing the first ground of appeal, Ms. Salah cautioned the Court that the issue on the alleged filing of a suit without a board resolution was factual. It was neither raised nor argued in the trial court. She relied on our decision in the previous case of the Registered Trustees of St. Anita's Greenland Schools (T) & Others v. Azania Bank Limited, Civil Appeal No. 225 of 2019 [2023] TZCA 59 (24 February 2023), where it was held that, this Court cannot judge on an issue which the High Court had never had an opportunity to consider and make decision on it. In the alternative, she contended that, a company is an independent entity with a legal capacity to sue and be sued in its own name and that, lack of a board resolution in instituting a suit against a third party was not fatal. She cited section 147 (1) of the Companies Act and insisted that, the provision was not mandatory as the word "may" was used to provide that any act of a company would be done by resolution passed in a general meeting of any class of the members of a company. She placed reliance on the decision of this Court in the case of Salim O. Kabora v. TANESCO Ltd 14 & 2 Others, Civil Appeal No. 55 of 2014 [2020] TZCA 1812 (7 October 2020) where we said that, the word "may" implies that it is optional. Further, the learned counsel contended that, the case cited by Mr. Masumbuko was distinguishable as it related to an internal dispute in the company and not an external dispute as in this case. She cited the case of Simba Papers Converters Limited (supra), for the proposition that, a board resolution would be necessary where the suit involves a dispute between a company and one of its shareholders or directors. On the consolidated second, third and fourth grounds of appeal, Ms. Salah submitted that, the trial court correctly found the respondent established all four issues recorded for determination. She contended that, through the evidence of PW1 and exhibit PI, the respondent proved that the credit facility was advanced to the first appellant on 17thApril, 2014 and the terms thereof were varied in 2017 following restructuring of the loan. She referred us to page 317 of the record of appeal and exhibits D2 and D3 showing the first appellant received the credit facilities from the respondent which were subsequently varied on account of the failure to make payments as per the agreed repayment schedule. Regarding breach of the agreement, the learned counsel referred us to exhibit P4 (the bank statement) which showed the outstanding amount 15 was TZS 614,946,043.43 comprising of both the principal sum and interest accrued from 30th March, 2019 to 16th August, 2021. She also relied on the demand notice issued by the respondent (exhibits P5 and P6) to argue that, the evidence on record was watertight against the appellants. Further, the respondent's counsel submitted that, the trial Judge properly ignored exhibit D5 which showed no outstanding debt. Expounding, she contended that, exhibit D5 showed no outstanding debt on the first appellant's account because the respondent complied with regulation 9 of the Banking and Financial Institutions (Management of Risk Assets) Regulations, 2014 which required banks to write off non-performing loans for four consecutive quarters. She submitted that, the said requirement did not discharge the first appellant from the liability to pay the outstanding loan as testified by PW1 and shown in exhibit P4 reflected at pages 554 and 339 of the record of appeal respectively. She placed reliance on the case of M/S Universal Electronics and Hardware (T) Limited v. Strabag International GmbH (Tanzania Branch), Civil Appeal No. 122 of 2017 [2021] TZCA 125 (19 April 2021), to submit that, through exhibits PI, P3 and P4, the trial court properly found the first appellant breached the agreement and awarded a befitting relief to the respondent. 16 On the fifth and ninth grounds of appeal, Ms. Salah contended that, the case cited by the appellants' counsel, Total Tanzania Ltd v. Samwel Mgonja (supra) was distinguishable. She argued that, the issue in Total Tanzania Limited (supra) was on non-tendering of the documents attached to the witness statement and in no way related to non- attachment of the intended exhibits to the witness statement. Further, the learned counsel submitted that, the provisions of the Commercial Court Rules relied upon by the appellants' counsel did not provide for the requirement of attaching the intended exhibits to the witness statement. In the alternative, she urged the Court to invoke the overriding principle for the interest of justice as the said documents were clearly identified in the witness statement and referred to the plaint as its annextures. In support of the prayer she cited the case of Dar Express Co. Ltd v. Mathew Paulo Mbaruku, Civil Appeal No. 132 of 2021 [2023] TZAC 228 (2 May 2023), where the Court held that, rules of procedure are the handmaidens and not the mistresses of justice. They are meant to facilitate the administration of justice in a fair, orderly and predictable manner, not to fetter or choke it. 17 On the seventh ground of appeal; Ms. Salah submitted that, the suit was not time barred as the cause of action was based on the restructured loan facility made in 2017. She cited section 62 of the Contract Act which governs alteration of contracts to argue that, when the loan facilities were varied, the new terms took precedence and therefore, the suit was timely filed in the year 2000. She insisted that, the suit was lodged after three years from the accrual of the cause of action and therefore, well within the six (6) years prescribed under the law. On the eighth ground of appeal, Ms. Salah submitted that, it is not a legal requirement to file an affidavit in support of the intended exhibits. She contended that, the disputed exhibits P3 and P4 were attached to the plaint and mentioned in a list of documents that was lodged prior to the trial. In reference to the Commercial Court Rules, she maintained that, the disputed documents were referred to in the witness statement as per the legal requirements and urged us to discard the appellants' assertion on that ground. On the eleventh ground of appeal, the learned counsel for the respondent submitted that, the second and third appellants were not sued under the mortgage agreement but rather as guarantors for the loan. She contended that, the mere rejection of the mortgage deeds did not exonerate 18 them from the liability to repay the outstanding loan. She further maintained that, the two appellants could only be discharged from the liability if the loan was fully paid. Finally, the learned counsel urged us to dismiss the appeal and order the appellants to repay the outstanding loan as decreed by the trial court. On rejoinder, Mr. Masumbuko reiterated his earlier submissions and urged the Court to allow the appeal with costs as prayed. This Court has considered the grounds of appeal, the record and the learned counsel rival submissions. The issues that crops up for determination are seven, thus: one, whether the trial court erroneously entertained the suit without a board resolution of the respondent board of directors; two, whether the trial court erroneously entertained a suit that was time barred; three, whether the trial court erroneously admitted the exhibits tendered by PW1 contrary to the mandatory legal requirements; four, whether the trial court was justified to hold that the respondent established existence of the credit facilities; five, whether the trial court was justified to find that the first appellant breached the terms of the credit facility; six, whether the trial court was justified to hold that the second and third appellants are liable for repayment of the outstanding loan amount; and seventh, whether the trial 19 court was justified to award the respondent the sum of TZS. 614,946,043.43 as outstanding loan and interest thereon. This being a first appeal, our duty is to re-evaluate, re-assess and re analyze the evidence on record in light of the parties' submissions made before us. The purpose is to reach to an independent conclusion as to whether or not to uphold the decision of the trial court. This nobel duty is in line with rule 36 (1) (a) of the Rules. The first issue is whether the trial court erroneously entertained the suit without the respondent's board resolution. This issue should not detain us in view of our decision in the case of Petrolube (T) Limited & Another v. Bulyanhulu Gold Mine Limited & Others [2025] TZCA 559 (4 June 2025) that, a board resolution is only required in cases of internal strives between members of a company. In this matter, the dispute involved the appellants who are third parties and therefore, no board resolution was required to institute the suit. The first ground of appeal thus fails. The second issue is whether the trial court erroneously entertained a suit that was time barred. The learned counsel were at logger heads on whether or not the suit was time barred. As rightly submitted by both counsel, in terms of Item 7 of Part 1 to the Law of Limitation Act (the LLA), a suit founded on contract is to be instituted within six years. It is not 20 disputed that the parties' relationship dates as far back as 2014 when they signed the first term loan facility. It was equally not disputed that the term loan facility of 17thApril, 2014 and the overdraft facility of 22n dAugust, 2014 were amended through the letter of variation dated 25th May, 2017 (exhibit PI). It is trite law that, a variation of an existing contract involves an alteration, as a matter of contract, of the contractual relations between the parties. See Halsbury's Laws of England, 4th Edition, Volume 9 at page 391, Paragraph 569. In this case, the respondent's suit was founded on a breach of the terms of the letter of a variation as expressly stated in paragraphs 7, 8 and 9 of the plaint, which was reflected in page 3 of the record of appeal. A contractual cause of action accrues on the date of the alleged breach of contract. The notice of default (exhibit P5) showed the first defendant defaulted to pay the outstanding sum for over 612 days as on 3r d March, 2020. In simple arithmetic, the act of default occurred on 30th June, 2018. The suit was instituted on 23r d August, 2021 which was about 1,150 days from the date of accrual of the cause of action. It follows that, the suit was filed within time and therefore, the seventh ground of appeal crumbles. 21 The third issue is whether the trial court erroneously admitted the exhibits tendered by PW1 contrary to the mandatory legal requirements. The learned counsel for the appellant contended that, the trial court erroneously admitted into evidence documents that were not attached to the witness statement of PW1. It was further contended that, exhibits P3 and P4 were admitted without an affidavit under section 78 (1), (2), 79 (1) and (2) of the TEA. The respondent's counsel strongly differed on the ground that there was no such legal requirement. We will start with the second limb of the contention related to application of sections 78 and 79 of the TEA. The relevant provisions read: "78 (1) A copy o f an entry in a banker's book shall not be received in evidence under this Act unless it is first proved that the book was at the time o f the making o f the entry one o f the ordinary books o f the bank and that the entry was made in the usual and ordinary course o f business, and that the book is in the custody or control o f the bank. (2) Such proof under subsection (1) may be given by a partner or officer o f the bank and may be given orally or by an affidavit sworn before any commissioner for oaths or a person authorized to take affidavits. 79(1) A copy o f an entry in a banker's book shaff not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. 22 (2) the proof under subsection (1) shall be given by person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner for oaths or a person authorized to take affidavits." It is clear that, the provisions reproduced above outlines a specific procedure to be followed in proving the bankers' books. A bankers book refers to the collection of a bank's financial records such as ledgers, cash books, bank statements as well as records kept on information systems, encompassing data messages, computers, storage devices, and various electronic data retrieval mechanisms. In Exim Bank Tanzania Limited v. Truelite Investment Ltd & Others [2023] TZCA171 (4 April 2023) this Court considered the application of sections 78 and 79 of the TEA and observed that, the same require production of the original banker's books or their copies subject to meeting certain stipulated conditions. Our reading of the said provision reveals that to admit the banker's book, a party intending to produce it needs a certified copy of the entry, proven by a bank official's affidavit or oral testimony, establishing the book's ordinary use, proper custody, and entry made in the usual course of business. In this case, the disputed documents were proved by PW1, a bank official through his witness statement and upon oral cross examination by the appellants' counsel. 23 The appellant's counsel contended that, the respondents' exhibits were not attached to the witness statement of PW1 and therefore, should not have been admitted. In the case of Total Tanzania Ltd v. Samwel Mgonja [2021] TZCA 265, the relevance of a witness statement was stated thus, it is only a statement of a witness which is treated as the evidence in chief and such treatment does not extend to the documents attached to it. In M/S Continental Services Limited v. M/S China Railway Jianchang Engineering Company Limited [2025] TZCA 743 (24 July 2025), the Court detailed the procedure for trial through a witness statement as applicable in the High Court, Commercial Division, thus: "Essentially, it is the practice in Commercial Court that, in a suit commenced by a plaint, the parties are further required to file their witness statements in support and oppose o f the case respectively, after filing their respective plaint and written statement o f defence. That apart, they are further required to attach or plead the documents they expect to rely on during trial, if any. In other words, the parties witness statements are treated as the evidence in chief to support the plaintiff's case while the defence witness statement is the evidence in chief o f the defence side opposing the plaintiff's case. It is noteworthy that, such treatment does not extend to the documents attached to the said statements, which are required to be tendered separately... and be subjected to the rules o f adm issibility." (Emphasis Supplied) 24 As rightly scored by the Court in the case of M/s Continental Services Limited (supra), in a trial involving witness statements, admission of a document into evidence is subject to following the rules of admissibility. We understand that, in the High Court, Commercial Division, the rules of admissibility of a document into exhibit involves pre-trial exchange of pleadings, formal tendering of the documents at the trial and the actual admission with court marking as exhibits. We also understand that, the procedure for tendering of documents, as far as the plaintiff is concerned, must comply with the requirements of rule 14 of Order VII and rule 1 (1) of Order XVIII of the Civil Procedure Code (the CPC). Rule 14, Order VII of the CPC provides that, where a plaintiff sues upon a document in his possession or power, he is required to produce it in court when the plaint is presented for filing and at the same time, deliver the document or copy thereof to be filed with the plaint. Where he relies on any other document whether in his possession or power or not, he is required to enter such document in a list to be added or annexed to the plaint. If a document is not in his possession, a plaintiff is required, if possible, to disclose in whose possession or power the document is (rule 15 under Order VII of the CPC). 25 In terms of rule 1 (1) of Order XIII of the CPC, the parties or their advocates are required, at the first hearing of the suit, to produce all documentary evidence of every description in their possession, on which they intend to rely and which has not been filed in court, and all other documents ordered to be produced by the court. This means that, where the plaintiff did not attach a document in a plaint, the same would be admitted if it was subsequently filed under rule 1 (1) of order XVIII the CPC. This procedure is applicable whether the document was attached to the witness statement or not. In this appeal, the disputed documents were referred to and annexed to the plaint as annextures CRDB 1, CRDB 2, CRDB 3 and CRDB 5. Additionally, the respondent filed a list of additional documents in terms of rule 1(1) of Order XVIII of the CPC which outlined two documents: copies of the credit facility letter dated 17thApril, 2014 and the first appellant's bank statement on account No. 016S408390502. The trial court proceedings show compliance of the stipulated procedure for admission of documents. We also noted from the proceedings that, in each occasion that PW1 sought to tender a document, the appellants were afforded the right to object which was followed by ruling of the trial Judge addressing the grounds of objection. In the circumstances, we are satisfied that, the disputed documents were 26 admitted into evidence as per the required procedure and thus, the fifth and ninth grounds of appeal also fail. The fourth issue is whether the trial court was justified to hold that, the respondent established the existence of the credit facilities. We have carefully analyzed the pleadings and the evidence on record. It is not disputed that, the first appellant and the respondent entered into loan agreements that were subsequently amended by the letter of variation (exhibit PI). The terms of agreement were expressly set out in exhibit PI dated 25th May, 2017. Exhibit PI showed that, the first appellant was granted a credit facility to the tune of TZS. 530,670,093.07 by merging the term loan with the overdraft facility under the new terms (restructuring). The new credit period was fixed at sixty (60) months and was to expire in May, 2022. The detailed repayment schedule agreement by the parties showed the first appellant was required to repay TZS. 13,458,516.54 for each month of the credit period. The securities were also specified as alluded to earlier on. In concluding that the respondent advanced the credit facilities to the first appellant, the trial Judge considered exhibits Dl, D2, D4, P3 and the respective evidence of PW1, DW1, DW2 and DW3. In so doing, he was satisfied that, the loan amount was disbursed to the first appellant as per 27 the facility letter (exhibit PI). We have independently reviewed each of those pieces of evidence and satisfied that the findings of the trial court were factually and legally correct. The fifth issue is whether the trial court was justified to find that, the first appellant breached the terms of the credit facility. We noted at page 495, 496 and 497 of the record of appeal that, the trial Judge in resolving the issue on breach of the credit facilities, reviewed the contents of exhibits PI, P3, P4, P5 and P6 and discarded the relevance of exhibit D5 for the reasons that: 7£ is dear in the bank statement for the 1st defendant's ban account No. 0165408390502 (exhibit P4) that a sum o f Tanzania Shiiiings 614,946,043.43 was written o ff as non-performing loan as per transaction dated 6thj May, 2020. It should be noted that writing off a debt is not the same as liquidation o f debt Rather, writing o ff is an internaI bank procedure aimed at clearing the bank books and does not exonerate the borrower from payment liabilities..." Having reviewed each of the above stated exhibits and upon consideration of the evidence of PW1, DW1, DW2 and DW3, we found nothing wrong through which we could differ with the findings of the trial court on the first appellant's default to repay the loan. This is to say, the second, third, fourth and tenth grounds of appeal do fail. 28 The sixth issue is on whether the trial court was justified to hold that, the second and third appellants are liable for repayment of the outstanding loan amount. We have examined the evidence of DW2 and DW3, particularly their witness statements which featured at pages 260 and 308 of the record of appeal, respectively. None of them disputed to have guaranteed the first appellant for the loan facility extended by the respondent. In paragraph 3 of his witness statement, DW3 (the second appellant) stated that: "J. That, in order to secure the said Loan facility, the shareholders, I included had to put two landed properties located at Mtwara Municipality known as Plots 4 and 5, Industrial Area with a certificate o f title No. 28925 and Plot No. 307, Block AA Market Area with a certificate o f title No. 1521 MTW. Also chattel mortgage over seven trucks and trailers registered in the name o f Mohamed Said Sinani." In paragraph 2 of her witness statement, DW2 (the third appellant) testified that: "2. That, in order to secure the said loan facility, the shareholders I included had to put two landed properties located at Mtwara Municipality known as Plot 4 and 5 Industrial area with a certificate o f title No. 28925and Plot No. 307Bloc AA Market Area with a certificate o f title No. 1521 MTW. Also chattel mortgage over seven tricks and trailers registered in the name o f Mohamed Said Sinani." 29 We have also examined the personal guarantee and indemnity agreements signed by the second and third appellant (exhibits P2 collectively). These agreements show that, the second and third appellants agreed to provide personal guarantee and indemnity as additional security against the loan. On strength of these exhibits and the admissions by DW2 and DW3, we agree with Ms. Salah that, the second and third appellants were sued as guarantors of the loan and not as mortgagors. We need not restate the law that, a guarantor is liable upon default by the principal debtor to repay the loan. Since, the act of default by the first appellant was well established by the evidence on record and there is sufficient evidence proving that, the two appellants were guarantors, we are certain that they are liable for the outstanding loan amount. The non-admission of the mortgage deeds in the circumstances of this appeal, in our view, cannot exonerate them from the liability to repay the loan. The last issue is on the relief awarded by the trial court. It is whether the trial court was justified to award the respondent the sum of TZS. 614,946,043.43 as outstanding loan and interest thereon. As earlier on stated, the trial court found the first appellant committed an act of default to repay the loan facility and that, based on the evidence on record, 30 the sum of TZS. 614,946,043.43 was outstanding. Having examined the entire evidence on record, we agree with the reasons given by the trial Judge in concluding that, the amount of money awarded and the interest thereon, was proved on the balance of probabilities. In view of the foregoing, it is our finding that the appeal is devoid of merits. In the upshot, we hereby dismiss it in its entirety. DATED at DODOMA this 15th day of December, 2025. R. J. KEREFU JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered through virtual Court this 17th day of December, 2025 in the presence of Mr. Nyaronyo Mwita Kacheere, learned counsel for the Appellant, Ms. Faiza Salah, learned counsel for the Respondent and Ms. Harida Hamisi, Court Clerk; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 31