20020820 TZHC Mwanza
- Citation
- 20020820 TZHC Mwanza
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZHC
- Decision
- 20 August 2002
- Posture
- Civil Appeal / Judgment on Second Appeal
- Language
- English
More details
- Court
- TZHC
- Decision
- 20 August 2002
- Posture
- Civil Appeal / Judgment on Second Appeal
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The contract did not stipulate that the property would pass to the appellant upon default, and courts are reluctant to order transfer of property to pledgees without clear contractual provision and court order. The proper remedy is sale of the property and payment of the debt from the proceeds.
Court disposition
appeal dismissed
Orders
- Appeal dismissed.
02
Material facts
Parties
Andrea Mutegaichumu
AppellantRaphael Andrea
RespondentAmounts and remedies
- Loan Amount: TZS 15,000
- Interest Agreed: TZS 2,000
- Total Amount to Be Paid: TZS 17,000
03
Procedural history
Posture
Civil Appeal / Judgment on Second Appeal
04
Questions and positions
Legal issues
- 01
Whether the appellant is entitled to take ownership of the pledged property upon respondent's default
- 02
Whether the contract provided for transfer of property upon default
Party arguments
- Applicant
- Appellant argued that upon respondent's failure to repay the loan, he was entitled to take the pledged shamba as his own property as per their agreement.
- Respondent
- Respondent contended that the property should not pass to the appellant and that the proper remedy was sale of the shamba with proceeds used to pay the debt.
05
Court’s reasoning
Legal principles
- 01
Jacob Tibifukula v. Daud Justinian [1968] HCD No. 134; Clemence Mushaka v. Mukulasi Byazo
Where money is loaned upon a pledge of property, the property does not pass to the pledgee upon default unless there is a court order and the contract so stipulates.
06
Ratio, limits and disposition
Ratio decidendi
The contract did not stipulate that the property would pass to the appellant upon default, and courts are reluctant to order transfer of property to pledgees without clear contractual provision and court order. The proper remedy is sale of the property and payment of the debt from the proceeds.
Obiter and limits
- Courts are reluctant to order for passing of property to people who hold properties after a pledge.
Court disposition
appeal dismissed
- Appeal dismissed.
Source and reliance status
TZHC · 20 August 2002
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZHC
Judgment· 20 August 2002
IN THE HIGH COURT OF TANZANIA /\.T BUKOBJ\. (PC) CIVIL APPEAL NO. 91.1. OF 1994 (--·,(From the decision of the District Court of Muleba District in Civil Appeal No. 17 of 1989 and original Civil c~se No. 17 of 1988 - Nyamilanda Primary Courie Before: LeSo Ngonyani, Esq. PDM). ANDREA MUTEGAICHUMU 0 0 0 0 0 ~ 0 0 0 0 0 . , o o e o o o • o o o o o APPELLANT
VERSUS Rli.PHAEL ANDR"SA ••••• " • • • • • • • • • • • • • • • • • • • • • • • RESPONDENT_ JU .D G ME NT Mll.SANCHE, J. The appellant, Andrea Mutegaichumu, way back in 1986 (13/11/86) was approached by the respondent Raphael Andrea. The respondent was hard up with money. S~, he borrowed .Shs.15,000/= from the appellant. Appellant gD.ve him the money but said that on paying beck there should be an added Shs .• 2;000/= as interest. They agreed on that and a contract was drawn. The respondent however govE- out a piece of shamba as security just in case the loan would not be paid back. Indeed, when time came to pay b-:.ck the lo:;..ri, the respondent had no money to pay back. The money was to be paid back by 11/6/87. So, the appell31lt "clung:·; to the shamb.;i as_ it were, and filed a case asking the Court to say that he was tcl<.:ing it for good. He .lost in the primary Court. He appealed to the District Court and, here he has lost again, The first appellate Court (Mr. Ngon:y.'.'l.ni) hns argued that the most that could be done is for the sh:,nnba to be sold and the appellant would be paid from the mon:ey realised from the sale. That is to say, the appellant would only be p::;lid Sh.17, 000/=~ If the shrnnba fdched more money, then the difference would be gj_ ven to the rcspondenb This looks a .sound decision. Courts are rather reluctant to order for pa.ssing of property
to 2 people who hold properties after a pledgeo That is why as was held in Jacob Tibifukula v. Daud Justinian [i96'§! HoC.Do No 134 Georges CJ, and quoted .with approval by Sisya·J in Clemence Mushaka v Mukulasi Byazo that: 11 where money is lon110d i;pon n ple.rl:::;c .of property, on conditiqn that the property becomes the property of the pledgee, if the loan is not paid in time, the property does not pass unless there is a Court order to that effect 11 ~ ' That is assuming, of course, that the contraqt provided for the passing of the property. In the pre,s8:·1-'.: c:;)_se I see no such stipulation in the contract. The appeal is dismissed. ·-;y/ .-·- -·-·• I . ,.: . I /,, ! I ' , .... \! Jo E,{ ., C. MA.S/.,NCHE
JUDGE 20th August,20020
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.