20190510 TZHC Dar es Salaam

"I ,· IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM LAND CASE NO. 30 OF 2014 CLAUSI INVESTMENT LIMITED ....................................... PLAINTIFF VERSUS FIRST NATIONAL BANK OF TANZANIA LIMITED .................. ~ .............................. DEFENDANT JUDGMENT Date of last order: 24/4/2019 Date of Judgment: 10/05/2019 NGWALA, J. In this suit, that was instituted by the Plaintiff against the defendant on 22/5/2014, the Plaintiff was seeking for the following reliefs: - 1. A declaration that the Notice of default and intention to sale the two mortgaged properties and shop at Keko Magurumbasi Dar es Salaam and that shop based at Mwanjelwa Mbeya is illegal. 11. An order to declare the entire sale of the two mortgaged properties a shops based at Keko Magurumbasi Dar es Salaam and Mwanjelwa is illegal. 111. Costs of the suit. In opposing the suit, the defendant filed a Written Statement of Defence with a counter claim for the following reliefs: 1. That the plaintiffs suit be dismissed in its entirety. 1 .... ·. . . ·. . 2. Declaration that the plaintiff is indebted to the defendant the sum ofTshs. 350,934,636.00 as of 3 rd July, 2014. 3. An Order against the plaintiff for immediate payment of Tshs. 350,934,636.00 to the defendant. '/?~~ 4. Order for payment of interest on the amount due at 21 % per .. ~; ·.:(:, annum from July, 2014 until the date of judgment. 5. Declaration that the plaintiff and all guarantors are jointly and severally liable to pay the outstanding amount together with interest. 6. Order for eviction, delivery of vacant possession and sale of landed properties against the plaintiff. The plaintiff who is the defendant in that suit filed a reply to that counter claim. The defendant and his counsel Mr. Rusumo failed to appear in Court to pursue their claims and defend their counter ··' .. - : . claim despite of several summons which had been issued to the · plaintiff to defend the suit. Consequently, on 12/10/2014 this Court granted leave to the defendant to prove his case. The Plaintiff in the counter claim testified through PW2 Anthony Bwahama, the Credit Manager who stated that the Bank statement indicates the defendant secured a loan agreement from the plaintiff. The facility agreement or offer letter and a loan agreement was tendered and admitted in Court as exhibit 'P4'. It also revealed that . ~. -:: ':~) ,; the defendant had taken a sum ofTshs. 200,000,000/= as term loan and Tshs. 150,000,000/= as overdraft which in all make a total sum . ' . -~- . :·t ~.., . :~ 2 ... .... of Tshs. 350,000,000/=. Further it was revealed that the said transactions in the account were reflected in the Bank System. In that regard the Bank statement and the loan statement were tendered and admitted in Court as exhibit 'PS" for justification. Further it was revealed that at the moment the defendant (borrower) had failed to repay the loan as per their terms of agreement. It was established that the defendant has only paid a Tshs. 40,000,000/= out of the total loan of Tshs. 350,000,000/= which was granted to him in September, 2013. Furthermore, the defendant's failure to repay the loan within the agreed time has led to accumulation of the debt from Tshs. 350,000,000/= up to Tshs. 700,000,000/= due to the interest charges and penalties. In that regard the Court was asked to issue an order to compel the defendant to pay the sum owed on the date of its decision. It was also averred that the offer letter and the loan agreement reflects that the repayment per month was to be twelve (12) month which according to him was not even enough to cover the interest. Lastly, it was submitted that when a person defaults to repay a loan, the plaintiff follows the procedure in exercising its right to sell the mortgaged property. In that regard it was insisted that all Bank products that is loans and overdrafts are governed by Bank of Tanzania (BOT) and in house policies on the maximum the loan will be paid. • Indeed, from the plaintiffs testimony and evidence tendered in ·. :. ii • ·-.-:~.1!- ,;..'~~ r• -~ -:~-;~ -..,.•• ~~ ·,; support of the counterclaim there is no dispute that there is a loan contract between the defendant and the plaintiff. Further it is clear that the defendant has failed to repay the loan. In that regard this Court is satisfied that the plaintiff in the counter . .,.. · claim has managed to prove his claims against the defendant. Consequently, the Court by orders as follows: - -- .. \\ ~ '·•..... · 1. The plaintiffs suit is dismissed. 2. The Plaintiffs claim in the counter claim are granted as prayed. It is so ordered. ~. A.F. NGWALA JUDGE 10/5/2019 -~;~·'. ·. :-;,·> -~ 4 ... " 10/5/2019 Coram: Hon. Dr. Ngwala, J. Plaintiff/Defendant: Absent ."'.•..r.,· For the Plaintiff/Defendant: Absent Defendant/Plaintiff in Counterclaim: Present Plaintiff in Counterclaim: Mr. AdolfTeemba (Advocate) Court: Right of Appeal to Court of Appeal of Tanzania explained. ~· A.F. NGWALA JUDGE 10/5/2019 5 ., ... ·.•·.