20160526 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM (ORIGINAL JURISDICTION) MISC. CIVIL APPLICATION NO. 399 OF 2015 (Originating from Civil Case No. 107 of 2015) EPHATA BANK LIMITED ............................................. APPLICANT

VERSUS MARY MSIMBIRA ..................................................... RESPONDENT Date of Last Order: 24/03/2016 Date of Ruling: 26/05/2016

RULING FELESHI, J.: This ruling emanates from an application made under sections 68(e) & 95 and Order XXXVI Rules 6(1) & (2), 7(1) and 8 of the Civil Procedure Code, [CAP. 33 R.E, 2002] for attachment before Judgment' in respect of the respondent's property located along Bagamoyo road, Tegeta Ward, Plot No. 112, Block No. "D" LO. No. 81072 under Certificate of Title No. 37091 registered in the name of Mary Msimbira. The hearing of the application was scheduled and. addressed by way. of written submissions which parties complied with. To argue for the application, the applicant was represented by the M/5 Kimbori & Co. Advocates whereas the respondent engaged the services of the M/5 Law . Front Advocates. ·Addressing the application, the applicant's counsel submitted that, the applicant is seeking attachment of the referred plot as security for any Page 1 of 4 Court Decree that may be passed to recover the applicant's money paid to the respondent as loan as the respondent has ignored to pay her monthly installments as scheduled in the loan agreement facilities. The applicant's counsel added that, the respondent who was once an employee of the applicant, after being terminated from employment, has no reliable source of income to pay some two loan facilities thus worrying the applicant that the respondent may dispose of the said property for the purposes of meeting her daily life

expenses thus risking the overdue loan. Reference was made in a High Court decision in Efatha Bank Limited vs. Emmanuel Godwin Gambi, Miscellaneous Land Application No. 72 of 2014 and Sokoine Drive Services Station Ltd vs. Motor Vessel Sepidel, Fairseas Shipping Inc. & Mega Speed Liners Ltd, Commercial Case No. 33 of 2008 in which the Court held to that effect. In reply, the respondent's counsel submitted that, in terms of condition 5 of the loan agreement, the respondent was required to surrender her title deed No. 3709 as security for the loan whereas the respondent complied with. Moreover, the same was returned to the respondent in a friendly manner whereas there is no formal request asking the respondent to submit the said title deed which she failed to comply. Besides, the respondent is not in a position to either pay the loan or surrender her title deed to the applicant as the applicant has breached the loan agreement which is yet to expire. It is from the above that the respondent urges this Court not to grant the sought prayers. Page 2 of 4 In rejoinder, the applicant's counsel submitted that, non surrender of the said title deed since November, 2014 and failure to honour her overdue payments per the loan agreement facilities justifies for the Court to grant the sought prayers as to the attachment of the said property. Having considered the appl_icant's Affidavit and

Reply to Counter Affidavit, respondent's Counter Affidavit and submissions by respective counsels for the parties, this Court has the following in disposal of the application at hand. At the outset, it is not disputed that the respondent obtained loan facility from the applicant and that to date there are outstanding debts overdue in favour of the applicant. Considering the said affidavits and the submission by the respondent's counsel, it is clear that the respondent initially surrendered her title deed but later, secured it back. An immediate question is, if at all the respondent so surrendered her title deed in a "friendly manner" and as correctly submitted by the applicant's counsel that the she has resisted re-surrendering of the same saying that she is not in a position to surrender it, how can she be trusted that the taking of the said title deed from the applicant based in good faith and not ill motive such that she is keen to find repayment of the secured loan facilities if it will be so proved in main suit? At any stretch of imagination, one may not be convinced that the respondent's conduct is capable of tolerating a smooth final disposal of the matter whose decree shall stand against her interest. This goes in hand Page 3 of 4 ' with the fact, as correctly submitted by the applicant's counsel, that the respondent is not even honouring her commitments in paying back

her outstanding loan facilities. In the circumstances and in the interest of justice, the sought prayers by the applicant as to the attachment of the respondent's landed property located along Bagamoyo road, Tegeta Ward, Plot No. 112, Block No. "D" LO. No. 81072, Certificate of Title No. 37091 registered in the name of Mary Msimbira is granted. Considering the circumstances and nature of the case, the costs shall follow the event. E.M. FELESHI

JUDGE 26/05/2016 Ruling delivered in Chambers this 26th day of May, 2016 in presence of Ms.- Delphiner J. Kimbori, Advo_c_ate for the ..- Applicant -~-- - - and Mr. Innocent ~ Mushi, Advocate for the Responde r'- \. l .F SHI

JUDGE 18/05/2016 Page 4 of 4 - - - - - - - ~ - - - ~ - ------r-r •· _, ........ ,_,·. I... I \. / (