19961220 TZHC Dar es Salaam

IN THE HIGH CCURT OF TANZANIA AT l)AR ES SALA.AM CIVIL CASE NO. 364 OF 1991 COOPERATIVE AND RURAL) •~••••••••••PLAINTIFF DEVELOHifE.NT BANK ) v~us PAUW KATOTO BUILDING CC'NTRACTORS • • • • .. • . • • • 1 DEFENDANT• · t a "' 0 RULING......• ....... -~ : .. -l eourt. Kyande•J as he then was, entered judgement for ·the J . . plaintiff as prayed in the plaint after the defendants eompany he.d admit~~~{}ft: claim., The defendant'o ~ompany w~ by then represented by one Mathi~ P~~-~'.. Kato'tOt the direetor of the eompe.cy .. • The only remaining issue at the mat¢x}~ .·• f1I• .. .. tiine w~ how and when the loan wae going to be paid, • , I; :_ . :··~ ~:~~:_:_..:: ':,:;::~ • . i. ·;)! ~ ~ 6 , the decree holder, applied for and obtained an order to at~i¥.~j and etU.e the house (residential) at Plot 106, Block T,_ within Mwru:iza t-Un.i.•i•lt: Follo\'1ing that, the tlef endants have• through Prof eseor Fimbo• tileq. theee obj~lt:fl proeeeding,s on two growids, First, that the house.is owned by oo~e o t h ~ ~ , and not the defendant ·eompany and in the alter-native, the house tannot ·be -atta'Ci ~ and sol~·as it residential. That in terms of Section 48 (l) (e) of the CPC 1jfl. ~- residential house cannot be subject of attaehment•, ' ti', . ·t)) .. :~.-~ ~- -'._~~ Mr, J1uganda learned eounsel for the plaintiff corapany/de~ree holder _is ; /~. opposed to the application." He hae submitted th~t one Paulo Nusoke Kattt.. . •\. ':J JI.ow deceased, was one of the directors in the defendant~t firm trading under·}>:.' name of PAUID KATCTO Building Contrators. He added that Pa'U,lo Kato;t, had pla♦eJl his house under mortagage for purpose of obtaining a loan faeility from the·/; l;:?, plaintiff bamc - hence the attachment was pioper. \ In reply Prof Fimbo has submitted that there.is no evidente that Paul.~ 'atoto wa& one of the partne~ to the firm of Paulo Katoto B~ilding Contratto \ The plaintiff bank I the Co - operative and• Rural Development ~ filed t. ~t \ Order },:summary procedure proceedings. The suit is groulltled on mortgo/,1\1 J \ ✓ after the defer.r.e.nt firm failad to honour its loan obligations upon deposit of 0 ertificate of Occupancy, title No. 13263, L O No 9 18618 Plot 108, Block I T ' 1 Mwanza. It is settled that the above title deed found its wa:y into the Plaintiff . J hands and custody through some one \·1ho had (a) interest in the property and (b) ..-,ho wanted loan facility from the bank.a This court has not been. informed that the title deed, found its way to the. plaintiff custody throu~=-h means other than · ~ma?; and one Mathias Katoto when he appeared in court; on 8/3/93 did not raise any objections and infact admitted the claim as observed earlier. Proceedings filed under On,.er 35 are termed summary procedures. The plaintiff na J. :-1 right to sell the property even with out recourse to the court., 1 The defendant firm i-,hen offering the title deed as security must have been aware of the consequence, in event of default. I am mindful of the provisions cited by Professor Fimbo for the objectors but ~ith respect I hold a di&ferent view in that where a residential ; ..,,~~~ is offered as security for a loan 1 its treatment is different from where an attachment is ordered by court and the decree holder includes in the list of items for attachment a residential house. These are two different situations and I dont see any legal connections between the two. In the premises I hold that the plaintiff bank had a right to proceed as it did .under Order 35 in· respect of the property that was mortgaged in order to obtain the / ; 0"1J'1 facilitye I ·dismiss the application filed by the objectors ,1-ith costs. . ( . :..- ' ~ ' ,, ' '· , . . . _.'. • t, - ,l . AoG. Bubeshi - ··.. ,_,,_, . JUDGE 20/12/96 Delivered hefore Hro Muganda for the decree holder and in-the absence of the applicant .,.1.,c· could not be served. JUDGE 20/12/96e