20191119 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 197 OF 2016 BETWEEN BENJAMIN ADAMSON MUSUBA....................................... PLAINTIFF VERSUS NURU FINANCE AND BUSINESS SERVICES CO. LTD ....• DEFENDANT JUDGEMENT Date of Last Order: 25/10/2019 Date of Judgment: 19/11/2019 MLYAMBINA, J. The plaintiff claims and prays for the following orders and relief (s): i. Judgement in favour of the plaintiff against the defendant for Tshs 160,000,000/= ii. The defendant be compelled to hand over the plaintiff's certificate of occupancy with block No. M Plot No. 56 Gaba Matosa Kinondoni District within Dar es Salaam plus the Fuso tipper with Registration No. T984 DHD to the plaintiff. iii. Interest on the afore said amount at the court rate post judgement. iv. Cost of this suit be provided for by the defendant. v. Any other relief (s) that this Honorable Court may deem just and equitable to grant. 1 '. It was the plaintiffs' claims that, on 12/05/2016 the plaintiff borrowed a total of Tshs 20 Million from the defendant with an interest of 15% contrary to her financial loan policy which was 10%. But the plaintiff was instructed to return a total of Tshs 23 million within a month and in case of default, the plaintiff was to pay a tune of Tshs 8,500,000/= in each month for the period of four months which makes a total of Tshs 34 million. The plaintiff went on to claim that, on 13th June, 2016 after the expiration of the said one month and while the plaintiff was organizing the defendant's money, the defendant decided to seize a plaintiff's motor vehicle make FUSO TIPPER with registration no. T 984 DHD at Ubungo Darajani (Sisimizi Garage). Also, the defendant took the certificate of occupancy of the plaintiff's house with Block No. 56 Goba Matosa Kinondoni District within Dar es Salaam City. The plaintiff pleaded that the defendant's act of seizing and detaining the plaintiff motor vehicle make FUSO TIPPER with Registration No. T984 DHD without any legal justification as the afore said vehicle was not subject into the loan agreement but due to that act the plaintiff has suffered damages as Keneth Kain Kyando terminated the contract with the plaintiff. 2 ■ .. The claim by the plaintiff was that he was not served with the statutory notice of default (if any) and the defendant actions were taken prematurely as the aforesaid contract was for 4 months. Also, the purported interests of 15% per month were high and contrary to policy that regulate and governed the defendant. When filing amended written statement of defence, the defendant stated inter alia that sometimes on July, 2016 the plaintiff approached the defendant and pardoned to settle the outstanding loan interest and penalties accrued thereof by selling his motor vehicle bears Registration No. T9884 DHD makes FUSSO TIPPER where the plaintiff himself handled the vehicle together with the file for purpose of selling the same, also, to be used as additional collateral for loan where to date the vehicle has been sold under assistance of the plaintiff. Surprisingly, according to the defendant, on 4th October, 2016 the plaintiff instead of paying the outstanding loan wrote a demand notice with intentions to sue demanding the motor vehicle and certificate of occupancy which was pledged for loan. Thus, the demand was replied, and informed that he was required to settle the loan instead of demanding collateral. 3 The defendant went further to raise a counter claim by paying the following relief (s); a) Payment of Tshs 68,600,000/= only out of Tshs 20,000,000/= as an outstanding loan in terms of principle sum. b) Interest on (a) special claim above at the rate of 25% per annum from filling date to the date of judgement. c) Interest of decretal sum at the court's rate from the date of judgment to the days of full satisfaction. d) Cost of the suit. e) Any other relief (s) that the court may deem just and equitable to grant. During Final Pre-Trial Conference the following issues were agreed for determination: 1. Whether the plaintiff had a loan agreement with the defendant. 2. Whether motor vehicle FUSO TIPER Registration No. 984 DHD was among of the loan collateral. 3. To what relief (s) are the parties entitled. 4 The prosecution/defendant case was proved by Benjamin Adamson Masuba who was the sole witness (PW1). The defence case and plaintiff in the counter claim was led by a single witness one George Buruno Gandye (DWI). From the pleadings and testimonies there was no dispute on the following facts: One, the plaintiff borrowed from the defendant the sum of Tshs 20 million at the interest of 15% on 12/05/2016. Two, the defendant's financial loan policy was at 10% instead of 15%. Three, the plaintiff defaulted to repay the loan. Four, the object of the plaintiff to procure the loan was to pay/clear statutory fees at ports for his Motor vehicle FUSO TIPPER. Five, the defendant attached and auctioned the motor vehicle make FUSO TIPPER with Registration No. T 984 DHD. In view of the above, there is no dispute that the plaintiff and the defendant had a loan agreement. The dispute that needs determination is; whether the FUSO TIPPER Registration No. T 984 DHD was among the collateral. 5 PWl under oath denied the motor vehicle to have been part of the collateral. To that effect, PWl tendered the loan application form between the parties herein as exhibit. Pl. Paragraph 5 of the exhibit Pl states that; the collateral of the loan was a house/plot and house hold properties. DWl on his side, merely alleged that the Motor Vehicle Make Fuso tipper with Reg No T.984 DHD was part of the collateral. There was no any supporting evidence, be another witness testimony nor any document to prove such allegation. As such, the second issue is answered to the effect that the motor vehicle make FUSO TIPPER with Registration No T984 DHD was not part of the collateral. Therefore, the defendant had no right to auction/sale it. In the cited case of Bank ofAfrica v. Rose Miyago Assea Commercial Case No. 138 of 2017(unreported) my brethren Mruma J. held: "It is high time now for the banks to be aware that once they decide to exercise their statutory power of sale under the mortgage agreement and the sale does not realize the amount secured they cannot come to with the view of having recovered the unrealized amount by attacking and auctioning other properties of the mortgaged. Only the properties mortgag are liable for realization of the amount secured under the mortgage agreement and facility letter concerned. .. " 6 ; . The other issue for determination is on the relief (s). As observed earlier, the defendant did not object that the financial policy did not allow her to charge interest rate of 15%. Her ceiling was 10%. That means, the contract entered between the parties herein as far as the interests concerned was void as it was contrary to the financial policy of the defendant. Again, the plaintiff admits that he has not repaid the loan. As such, I condemn the plaintiff to repay the principal sum of the loan only. Indeed, there is no dispute that the motor vehicle of the plaintiff was auctioned/sold without any statutory notice. I declare therefore that the sale of the plaintiff's motor vehicle with Reg. No. T984 DHD was null and void. The plaintiff's claims of Tshs 160 million has not been proved anywhere throughout his testimony. In the end therefore, I partly grant the suit/ counter claim with the following order: 1. The defendant in the main suit is ordered to pay general damages at the tune of eight (8) Million for illegally auctioning the Plaintiff's Motor Vehicle in 2016. 7 .' 2. The defendant is ordered to hand over the plaintiff's motor vehicle make FUSO TIPPER Registration No. T984 DHD to the plaintiff. 3. The defendant is ordered to handle over the plaintiff's certificate of occupancy with block M. Plot No. 56 Gaba Matosa Kinondoni District now Ubungo District upon being paid with the principal loan sum of Tshs 20 Million. 4. Costs be shared. It is so ordered. Judgment pronounced and dated 19th day of November, 2019 in the presence of Editha Godfrey Advocate for the plaintiff and Zidadi Mikidadi Advocate for the defendant. 8