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Court allows NBC to challenge payment decision

THE Court of Appeal has allowed the National Bank of Commerce (NBC) Limited to challenge the decision for payments of 20m/-to a client, Maisha Uledi (Life Business Centre), for allegedly withholding certificate of title without justifiable cause.

Justices Augustine Mwarija, Mwanaisha Kwariko and Lugano Mwandambo ruled in favour of the Bank, the applicant, after allowing an application for leave to appeal against the decision of the High Court, which had granted the payments to Maisha Uledi (Life Business Centre), the respondent.

In an application for leave to appeal, they noted, what is required of the court hearing such an application is to determine whether or not the decision sought to be appealed against raises legal points which are worth consideration by the Court of Appeal.

From the impugned decision and the parties' submissions, the justices pointed out two issues arose there from, including whether in a claim for damages based on loss of use of property, general damages may be awarded notwithstanding the plaintiff’s failure to prove his claim for specific damages.

The second issue, they noted, related to the question of jurisdiction of the trial court to continue hearing the case on claim that it was a commercial dispute, through such point being a point of law was not raised in the High Court.

After having considered the parties' submissions, the justices had to determine whether in a case of commercial nature filed in the District Court as an ordinary suit, such a case is subject to the pecuniary jurisdiction of that court under section 40 (3)(b) of the Magistrate’s Court Act.

“In our considered view these issues are worth consideration by Court of Appeal. In the circumstances, we find merit in the application and hereby grant it. The applicant is accordingly granted leave to appeal to the Court of Appeal under section 5(1) (c) of the Appellate Jurisdiction Act,” they riled.

The applicant was the defendant in the Resident Magistrate's Court of Mtwara. She was sued in that Court by the respondent, who claimed specific damages of 70m/-arising from an act of withholding the a certificate of title without justifiable cause.

It was contended by the respondent that the applicant continued to withhold the certificate after the former had fully paid the loan of 30m/-for which the certificate was deposited as collateral.

According to the respondent, the applicant did not release the certificate despite having received a letter of request as well as reminder letters from the respondent. Apart from specific damages, the respondent claimed for general damages and some interests. The claim was denied by the applicant.

The applicant contended that she was justified to withhold the certificate because of the respondent's failure to discharge his obligation of paying the discharge fee of 150,000/-, a condition precedent for release of the certificate as stipulated in the loan agreement.

At the conclusion of the trial, the trial court found the applicant did not have any justifiable cause for withholding the certificate after full repayment of the loan. The court, however, found that the respondent had failed to prove that he suffered any specific damages as a result of the applicant's act.

With regard to the claim of general damages, the trial court was of the view that the withholding of the certificate denied the respondent the prospects of using it to obtain loans from other financial institutions.

The court found that for the period within which the applicant retained the certificate, the respondent could have used it to obtain twice the amount of loan he obtained from the applicant. The trial court, thus, awarded the respondent general damages of 60m/-.

Having being aggrieved by the decision of the trial court, the applicant appealed to the High Court. In its judgment handed down on August 24, 2017, the High Court agreed with the trial court that the applicant unjustifiably withheld the respondent's certificate.

On the quantum of general damages, however, the High Court found that the awarded amount was on the high side because the same was based on incorrect reasoning. In the circumstances, the High Court reduced the amount of 60m/-awarded by the trial court to 20m/-.

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Author: FAUSTINE KAPAMA

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