crdb bank ltd vs tanzania agroindustries co ltd 2003 tzhccomd 10 10 february 2003

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DARES SALAAM COMMERCIAL CASE.NO. 194 OF 2001 CRDB BANK LIMITED.................................. PLAINTIFF/RESPONDENT VERSUS TANZANIA AGROINDUSTRIES CO. LTD....DEFENDANT/APPLICANT RULING The Applicant/Judgement-debtor is praying for, “ 1. The postponement the order(?) of sale by public auction; 2. Costs be providedfor, ” and in support thereof is an affidavit of Ibrahim Kachare in which the main assertion is that the outstanding amount is less that Tshs 10 million while the house put under attachment is worth Tshs 165,000,000/=. The Applicant is represented by Mr. Mhango, Advocate, while Mr. Lawuo represents Respondent. The challenge is made with the supporting Counter-affidavit of Dorah Ngaliga which confirms the liability as being Tshs 10,522,930.51 only, adding however that decree holder’s right to have the property auctioned stands intact as the said property was mortgaged to secure the loan, and that the sale can be done by private treaty if found necessary. Submitting in support of the application, Mr. Mhango, Advocate, cited Abdillah Shrwa v Sheikh Mohamed Haj Ahmed 1977 LRT No. 43 and Hotel Travertine Limited and two others vs NBC Ltd, (CA) Civil Appeal No.59 of 2002 and insisted that the property should not be attached as its value is not commensurate with the liability; that the judgement debtor should be allowed to pay in instalments, and finally, that in the event of failure to pay, the judgement-debtor should be allowed to appoint an auctioneer of his own choice or be allowed to sell it by private treaty. In response, Mr. Lawuo distinguished the cited decisions urging that in Shrwa case there were both immovable and movable properties hence could be separated and 2 that that case concerned attachment before judgement while the Hotel Travertine Ltd case concerned a matter whose appeal had already been filed with the Court of Appeal. That apart, he insisted that O.XXI, Rule 81 (1) CPC can only come to Applicant’s aid if a condition prescribed under O.XXI, Rule 81 (3) exists, that is, if the property in question is not a mortgaged property. On my side, I should straight away state that indeed the decisions in Hotel Travertine Ltd case and Shnva case, as rightly pointed out by Mr. Lawuo, cannot assist the Applicant. While in both cases the courts were not amused at all by the system or mode of attaching judgement debtors’ properties whose values are rather very high as compared to the decretal amount, the facts in those cases were different. In Shrwa case there were other properties of values almost commensurate to the decretal sum-going for a property whose value is ten fold naturally sounded suspicious bells to common sense. In the other case, the judgement-debtor was still challenging the decision by way of appeal unlike in the present case where the decretal sum so far outstanding is not disputed. As regards Mr. Lawuo’s challenge on the applicability of O.XXI, Rule 81 (1) let us delve into its wording. O.XXI, Rule 81(1) and 81(3) CPC provide as follows:- “ 81 (1) Where an order for the sale of immovable property has been made, if the judgement-debtor can satisfy the court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property or part thereof or of any other immovable property of the judgement-debtor, the court may, on his application, postpone the sale of the property comprised in the order for sale on such terms andfor such period as it thinks proper, to enable him to raise the amount (2).................................................................................................................. (3) Nothing in this rule shall be deemed to apply to a sale ofproperty directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property. ” Relating the above wording to the facts at hand, I am of the considered opinion that the prohibition in Rule 81 (3), technically is not applicable. I have used the word 3 “technically” purposely. The decree in question is not for sale in enforcement of a mortgage of or charge on, property on plots 311 and 313 Block A Mikocheni but rather the sale of these properties is pegged on a decree emanating from a consent judgement in the following wording: “ Parties agree as follows: 1. That the Defendant shall pay to the Plaintiff all the outstanding sum as of 26/11/2001 by 31/7/2002. 2. That the interest chargeable on the principal sum starting from the date of filing of the suit till judgement shall be 19% p.a and thereafter 7°/o p.a till final payment. 3. That the Defendants shall bear the costs. ” Although from the pleadings we know that the judgement debtor had failed to service an overdraft facility extended by the decree-holder and secured by the mortgaging of the very properties attached, the consent judgement above quoted does not touch them at all. Technically therefore, the disputed attachment is a normal attachment in execution of decrees. It would have been different if the order had indicated that in the event of default, the sanctions under the mortgage Agreement would be invoked. I am satisfied that the present attachment is of the type where a judgement-debtor can call O.XXI, Rule 81 (1) CPC into play. Next, I turn to the prayer as presented in the chamber summons and quoted above. Apart from inelegancy exhibited in its very wording, I have found myself caught up in a problem of how I should act upon it. The Applicants therein simply leave us at a cross-road, for, their only prayer is to, “postpone sale” without more! We only get a glimpse of what they seek or intend to do if postponement is made from the affidavit and submissions - that is, be allowed to pay in instalments or be allowed to sell the house by self-auction or private treaty. The question is whether courts can grant prayers not sought in the chamber summons but which are reflected in the supporting affidavit and submissions. 4 I have carefully considered and paid deep thoughts on the matter after which I have concluded that I cannot grant the prayer for postponement as reflected in the chamber summons. I have two reasons for this First, the order if issued would be superfluous because time when the sale was to take place has already elapsed. The current status of the matter is unknown to this court. Secondly, and more important for that matter, the court cannot grant a prayer not sought and reflected in the chamber summons. What is contained in an affidavit evidence and the submissions is merely intended to support the prayers in chamber summons. Prayers which surface in affidavits and submissions unless reflected in the said chamber summons are irrelevant. The court cannot grant what was not asked for. Parties/Counsel should always be careful when drawing up their pleadings so that each element is aptly placed where legally it should be. No doubt the Applicant’s intention was to have the other prayers included but for reasons unknown to us they were not. Now, for sake of argument, if I was to grant the only prayer legally sought- postponement of sale-common sense would still be bogged down by the question, “what next?”. It would simply be an exercise in futility. Courts cannot grant useless orders or orders swamped in cosmetics. For reasons stated, the application is dismissed. However, depending on the status of the matter, the Court’s doors are not closed for befitting and properly drawn up applications. L.B.KALEGEYA, JUDGE Delivered in the presence of Mr. Lawuo. L.B. KALEGEYA, JUDGE Applicant to be notified. L.B. KALEGEYA, O' iCt JUDGE 10/2/2003 Coiitutercia. Con Dai es Dated ...1 .1 of