IN THE HIGH COURT OF TANZANIA 
		AT DAR ES SALAAM
CIVIL CASE NO. 243 OF 2000.

HERMAN K. KIRIGINI	APPLICANT

VERSUS
AGRICULTURE INPUTS TRUST FUND STOCK
BROKERAGE AGENCIES	RESPONDENT

JUDGMENT

Mlay, J.

2. The plaintiff be granted an extension of two years from the date of filing this suit being time within which to repay the loan.
3)	
A permanent injunction to restrain the defendants or their servants or agents from selling the plaintiffs house at Musoma on Plot No. 32 Block "L" Kamnyonge area until the despute over the amount of the loan the plaintiff is now required to pay is resolved and until the extended time prayed form above has expired.
4)	Costs of this suit to be granted to the plaintiff
5)	Any other relief deemed just be granted to the plaintiff.

Both defendants filed written statements of Defence disputing the plaintiffs claims. At the hearing of the suit the Plaintiff HERMAN K. KIRIGINI was the sole witness who testified as PW1, led by Mr. Magesa, learned advocate.

He produced the letter granting the loan as Exh. PI. PW1 told this court that he used the money to buy animal drugs in the sum of Tshs.28,145,2000/-.

He said he paid another instalment on 19/03/98 by cheque No.011084601 of shs.3,500,000/- and another installment of Tshs.2,100,000/- paid by cheque No.011084629 dated 25/11/98. He produced two cheque- counterfoils to prove the payment of the two installments as Exh. P3. PW1 went on to say that after the payment his business was confronted with problems from the end of 1998 up to this day (the day he was giving evidence, which was on 28/9/06).

Upon re- examination by Mr. Magesa, PW1 told this court that the Demand Notice, Exh. P6 reminded him to repay the loan that is why he came to court. He said the Notice stated that the last day of repaying the loan was 30/9/99. he stated further that he had bank statements at his home which concern the account which he was operating on the business. He stated further that the loan agreement shows that the maximum period for the repayment of the loan was 12 years. He said the twelve years have not expired. He said since he took the loan the maximum period for repayment of there loan will end in 2009.

That was the end of the evidence offered by the Plaintiff after which Mr. Magesa closed the Plaintiffs case.

DW1 tendered the Loan Agreement and the mortagage deed as exhibits "Dl" and "D2", respectively.

Upon being cross examined by Mr. Magesa, DW1 told this court that the Plaintiff does not deserve to be granted extension of time because there is no such provision in the Loan Agreement. He denied that the Loan Agreement provides that the period of the loan is 12 years.

Counsels for the parties were allowed to file final written submissions on the suit. However, before going into what each counsel submitted, it is necessary to set out the issues which were agreed upon and framed, particularly because the written submissions have been made on the issues, as framed. The framed issues are as follows:
1. Whether the Plaintiff has paid to the 1* Defendant the seem of Tshsl 1,150,000/- as part payment of the loan of Tsh.30,000,000/- which the 1* Defendant advanced to the Plaintiff.
2. Whether the Plaintiff is entitled to obtain from the defendant an extension period in which to repay the loan advanced to the Plaintiff by the 1* Defendant.
3. What reliefs the parties are entitled to.

Having summarized the evidence adduced by both sides, the Plaintiff counsel Mr. Magesa went on to address the framed issues starting with the 1* issue. Mr. Magessa submitted that, that the plaintiff has paid shs.6,000,000/-towards liquidation of the loan, is not in dispute. He contended that, what is in dispute, is the payment of shs.5,150,000/-. He submitted that the Plaintiff gave evidence to the effect that he paid the money and he exhibited before this court counterfoils of his cheques to show that he issued cheques for the said payment. He contended that the Plaintiff could not offer better evidence as the bank branch to which he made payment had changed ownership and it was not easy to trace past records. He refered to the evidence of DW1 to the effect that the 1* Defendant was depending on the record of the borrower to confirm the repayment. He submitted that in the circumstances, the plaintiff has shown on the balance of probability, that he paid the sum of shs.5,150,000/- and for this reason, this court should hold that the plaintiff has paid the sum of shs.l 1,150,000/- towards the liquidation of the loan, and answer that first issue in the affirmative.

He submitted that, in terms of section 110 of the Evidence Act, the Plaintiff is required to prove that he infact paid to the defendant the sum of Tshs.5,150,000/-.

Referring to the Plaintiffs claim to have paid the sum and the evidence he produced Exh. P3, Ms Mutabuzi called to the attention of the court two letters produced by the Plaintiff, as Exh. P4.

I propose to dispose of the first issue before proceeding with the submissions on the next issue.

The Loan Agreement Exh. Dl, was signed by the Plaintiff on 8/4/97. Paragraph 3 (1) of he Loan Agreement provides as follows:
"3 REPAYMENT OF THE LOAN.
i) The Borrower hereby covenants and agrees to repay to the Fund the Principal amount of the loan in FOUR (4) successive QUARTERS equal instalment of shillings SEVEN     MILLION     FIVE     HUNDRED
THOUSAND       ONLY.	

The repayment schedule has been made a SCHEDULE to the MORTGAGE Deed, which is Exh. D2. The Repayment Schedule sets out the schedule for repayment of the whole loan and interest at the rate of Shs.7,500,000 as loan repayment and shs. 1,500,000/- interest, amounting to shs.9,000,000/-, to be paid in each of the four instalments. According to the schedule of repayment, the instalments were payable in July 1997, October 1997, January 1998 and the last instalment in April 1998. The name and signature of the Plaintiff is appended in the attestation clause appearing after the Schedule of Repayment. In paragraph 2 of a letter dated 31/12/97, the Plaintiff informed the 1* Defendant that he was forwarding to the 1* Defendant a cheque No. 010190011 dated 31/12/97 for shs.6 million being the first instalment of the loan. The Plaintiff wrote in Kiswahili.

2. Kwa furaha kubwa nakuletea hundi yangu iUyofunganishwa na barua hii yenye nambari 010190011 ya tarehe 31/12/97 kwa ajili ya malipo ya shilling 6.0 milioni ikiwa ni sehemu ya kwanza ya marejesho ya mkopo uliotajwa hapo juu.

Number. 1084629 and is dated 25/11/98 and also bears at the top the legend, "A. INPUTS TRUST FUND".

Secondly, cheque counterfoils are records kept by the owner of the cheque book for his own personal interest. They are not part of the cheque or evidence of the cheque itself. Even where a cheque has been issued or made, there must be evidence that the cheque was received by the payee. Counterfoils are not proof that the cheque was issued and received by the payee. If the cheques were actually made, proof would still be required that they were either received by the payee or deposited in the payees account. No such evidence has been offered by the Plaintiff.

On the second issue which was framed, which is whether the plaintiff is entitled to an extension of time in which to repay the loan, the Plaintiffs Counsel has submitted that, the Loan Agreement Exh. D.l, has clearly shown that the maximum period of paying the loan was 12 years. He contended that this is provided in Paragraph 3 (11) of the said Agreement.

Ms Mutabuzi argued that even if the Loan Agreement had provided for extension of time, which is disputed, such extension would have by now have expired. She further contended that the plaintiff knew that there was no such entitlement to extension, that is why in his plaint, he prayed for two years extension. For these reasons, she prayed that the suit be dismissed.

In his rejoinder Mr Magesa reiterated his earlier submissions that the plaintiff is entitled to extension on grounds that the period of repaying the loan had not ended, until 2009.

In Exh. P5, the plaintiff asked for unspecified extension of time in which to repay the Loan. He stated in the last sentence of the letter, in Kiswahili:
'Kwa msingi huo nitashukuru sana uongozi wa Mfuko wa Pembejeo za Kilimo kwa kunipa muda zaidi ili kuniwezesha kutekeleza azma yangu"

By the time the plaintiff wrote the letter asking for extension of time in which to repay the loan, Exh. P5, he was already in breach of the Loan Agreement and the attendant repayment schedule. Infact, the period of repaying the principal sum and interest on the loan in the terms of paragraph 3 (i) of the Loan Agreement and the timetable of repayment as set out in the repayment schedule, had lapsed.

The Plaintiff has contended that he is entitled to extension by reason of the difficulties he was a facing in his business and by reason of Paragraph 3 (ii) of the Loan Agreement which he claims stipulates the repayment period of 12 years.

As for the hardships the plaintiff was facing in his business, the Plaintiff and his counsel have not pointed out any provision of the Loan Agreement which provides for extension of time by reason of the borrower facing problems with his business or otherwise, in the repayment of the loan. In the absence of any such provision in the Loan Agreement, I find no legal basis to find that the difficulties faced by the plaintiff in his business are a strong reason for the Defendant or for this court to grant an extension of time in which to repay the loan.

Coming back to the provisions of Paragraph 3 (ii) of the Loan Agreement Exh. Dl by which the plaintiff has claimed the repayment period is twelve years, the paragraph states:

"(ii) The maximum term of this loan shall be TWELVE (12) years inclusive of the moratorium period which shall not exceed years from the date of Offer (i.e Funds written decision to grant the loan)"

If I understand Mr Magesas submission on this issue correctly, his contention is that the Loan Agreement could, under paragraph 3 (11) be extended up to twelve years and as the result, since twelve years had not lapsed, since the plaintiff was advanced the loan, he was entitled to an extension of time.

Ms Mutabuzi did not offer any help on the interpretation of paragraph 3 (ii) of the Loan Agreement but instead, she contended that, under paragraph 10 of the Agreement, which deals with "LOAN RECHEDULING, it is stipulated that rescheduling were not be entertained. The said paragraph states:

After a party has been in breach the loan agreement and the other party being entitled to enforce the agreement, the party in breach cannot to be entitled to an extension or rescheduling of the loan in the terms of the Agreement of which he is already in breach.
As stated earlier on, according to the terms of the Loan Agreement and the repayment schedule of the loan, the last instalment of the principal and interest was payable in April 1998. The Plaintiff did not apply for extension of time in which to repay the loan until 31/12/99, when he wrote the letter Exh. P5. By this time the period of repaying the loan had long lapsed and the Plaintiff was in breach of the agreement. The rescheduling which was asked for after the Plaintiff had been in breach and the Defendant had started enforcing the agreement by sending a demand notice, cannot be a rescheduling to which the Plaintiff is entitled under the agreement.

For this reason the second issue is also answered the negative.
The last issue is what reliefs the parties are entitled to. In the Plaint the Plaintiff has prayed for the following reliefs:

2. The Plaintiff be granted an extension of two years filing this suit, being the time within which to repay the loan.

4. A permanent infunction be issued livestrain the defendants or their servants or agents from selling the plaintiffs house at Musoma on Plot No. 32 Block C Kamayonge area until the dispute order the amount of the loan the plaintiff is now required to pay is re solved end until the extended time prayed for above has expired.
5. Costs of the suit be grated to the plaintiff.
6. Other relief.

As found by this Court, the Plaintiff having been in breach of the Loan Agreement and having sought an extension of time or rescheduling of the loan, after the period of repayment under the agreement had lapsed, the Plaintiff is not entitled to extension of time under the terms of the Loan Agreement, Exh. Dl.

On the prayer for extension of time for two years from the date of filing the suit, since the suit was filed on 3/7/2000, and it is now the year 2008, the prayer has been overtaken by events, for over seven years having lapsed. At any rate, as the first prayer cannot be granted, it would follow that the extension for two years, cannot be granted. On the third prayer, this court has found that the Plaintiff failed to prove that he paid the alleged additional payments of shs.5,150,000/- purportedly evidenced by Exh. P3, which are courtfoils of cheques. In the circumstances, the loan advanced to the Plaintiff can only be reduced by shs.6,000,000/- (six million) which it has been proved was paid by the plaintiff. The third prayer that the loan be reduced by shs.l 1,150,000/-cannot therefore be granted.

As the plaintiff failed to prove the main claims in the suit, there is no basis for restraining the Defendants from enforcing the Loan Agreement, in accordance with the terms of the Loan Agreement and of the mortgage deed.

In the final analysis the suit is dismissed, with costs to the Defendants.
J. I. Mlay
JUDGE

JUDGE
25/04/2008.