20101022 TZHC Dar es Salaam

r ; IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 185 OF 2009 BOARD OF TRUSTEES OF THE .,~-- AGRICULTURAL INPUTS .. ,...J ~-~~ ~ \~ TRUST FUND. . . ..................... .... PLAINTIFF VERSUS MOHAMED SAID KILUA .. ............. •DEFENDANT EX-PARTE JUDGMENT Plaintiff represented by learned advocate Mr. Msumba is claiming from defendant Mohamed Said Kilua for recovery of Tshs. · . ;r'·., 69,984,000/= (Sixty Nine Million Ninety four hundred thousand Shs. Only) being the prin_cipal sum and interest of-a loan ext~nded to the defendant by the plaintiff . .., .and since the defendant has failed to refund the loan sum the plaintiff prays for judgm·ent and decree as follows:- / 1 . : i) Defendant be ordered to pay. the sum of Tshs. 69,984,000/= only being the principal sum including interest or ii) An order for sale legal mortgage over landed property on Plot No. 186 CT. 1299 Block A Chilongola Area, Mtwara Urban if the debt is ·not paid. iii) The interest of 2% monthly on present claim from the date of filling the suit till full judgment iv) Interest at the court rate from the date of filling the suit full judgment v) Costs of the suit vi) Any other relief that this court may just see fit to grant. Defendant was dully served by way of substituted service by advertisement in the local newspaper of Mwananchi dated 2ih March, 2010 and by way of registered mail with Reg. No. 01164825 of March 26, 2010. Defendant didn't enter appearance nor filled his written statement of defence and plaintiff prayed for ex-parte hearing and the prayer was granted under order VIII rule 14 (l)(b) of the Civil Procedure Code. Plaintiff in proving his case he had one witness Charles Malito a Co-operate Secretary of the Agricultural Inputs Trust Fund (AGTIF) which is a government Institution created by statute for the purpose of granting agriculture loans to farmers. This witness testified to the effect that defendant one Mohamed Kilua secured a loan from his 2 institution on 8th June, 2006 after executing the loan agreement. The amount of loan granted and advanced to the defendant was sixty million Tshs on agreement of paying the loan on four equal installments of 16,200,000 after each three months after the expiry of the grace period of six months. Another condition was that on interest at the rate of 8% per loan life and also if the defendant defaults it attracts a penalty of 2% from the date of the last installment become due until full payment. The loan agreement was admitted in evidence and marked PE1. Up to date the defendant is a total defaulter who has not paid any part of the loan. In securing the loan the defendant mortgaged his landed property under title No. 1299 Mtwara and the mortgage of the right of occupancy was registered and it has been admitted in evidence and marked PE2. After the expiry of the period of paying the loan, the plaintiff traced the defendant and he did promise to pay the loan but he has never honoured his promise. The plaintiff through his debt collector Masala Enterprises Co. Limited issued him a notice requiring defendant to settle the debt, a notice which was admitted in evidence and marked PE3. Defendant acknowledge to receive the notice but he never communicated with the debt collector and hence the debt is still outstanding todate. From the above evidence I am fully satisfied that the plaintiff has proved that the defendant did secure a loan of sixty million Tshs. as per loan agreement PEl and mortgage of the right of a occupancy PE2. I am also satisfied that the loan which was to be paid in four 3 equal installments has not being paid todate as evidenced by PE3 and that is why the plaintiff still have the mortgaged right of occupancy and therefore the plaintiff has proved his claim that the loan of sixty million Tshs, advanced to defendant has not been paid as agreed in the loan agreement PEl and hence the Plaintiff has proved his claim against the defendant and judgment is hereby enter in his favour and all his prayers as per item (i)(vi) in the plaint are granted. ' F.H. Massengi JUDGE 22/10/2010 Delivered in chamber court this 2ith October, 2010 in presence Mr. Kalinjuna for plaintiff and in absence of the defendant. JUDGE 22/10/2010 Order: (1) Plaintiff is to notifying the defendant about the ex- parte judgment entered against him. 4