hamis mohamed zowange vs bank of africa tanzania limited and another 2020 tzhclandd 2257 20 july 2020

> ri IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 108 OF 2020 HAMIS MOHAMED ZOWANGE APPLICANT VERSUS BANK OF AFRICA(TANZANIA) LIMITED l^RESPONDENT MASS & ASSOCIATE Z^^^^RESPONDENT (Application for investigation of mortgaged property, estabiish income derived out of it, etc, pending Execution Appiication No. 2 of 2020) RULING MGETrA,J: One Hamisi Mohamed Zowange,the Judgment debtor (hereinafter the applicant), on 6"^ March, 2020 through a legal service of Mr. Edward Peter Chuwa, the learned advocate, lodged an application by way of chamber summons supported by an affidavit affirmed by himself (the applicant) requesting this court to Investigate the value of the mortgaged property which was the subject matter In Land Case No. 84 of 20018, which Is now the subject matter In Execution Application NO. 2 of 2020. The applicant also needs this court to establish the Income derived out of It that It would not be feasible for attaching and sale the entire mortgaged property In the effort to recover TZS 768,059,978.77. He further asked this court to order that the respondent to take possession of the mortgaged / ^•7 property and collect rent therefrom in the execution of the consent settlement instead of attachment and sale. Through a legal service of Mr. Godwin Muganyizi, the learned advocate, In its counter affidavit sworn by Elizabeth Muro, its company secretary, the Bank of Africa (Tanzania) Limited, the decree holder (henceforth the 1^ respondent) vehemently asked the court to dismiss the application as the property to be attached and sold was mortgaged by the applicant on his own volition in the course of securing a loan that was extended to him. She stated further that if the property will be sold and the sale proceeds surpasses the amount now outstanding that wiii be deposited in the applicant's bank account. Having the foregoing in mind, I proceeded to order the learned advocates representing their respective parties to argue the application by way of written submissions. I commend the learned advocates for their researched written submissions. I have very seriously read the affidavit, counter affidavit and written submissions and finally come at a simple conclusion that the issue in this application is not the income derived out from the sale of the mortgaged property if auctioned, but rather it is the readiness for the applicant to service or clear the loan he obtained from the 1^ respondent. Admittedly, mortgaging any property presupposes that if one fails or defaults to service the loan obtained, that property shouid be either sold or dealt with in the manner of repaying the loan. This is what the respondent intends to do. The arguments that the mortgaged property is worth more than the decretal sum are In fact as properly stated by Mr. Muganyizi, the 2 learned advocate, unfounded. I am of the same view and proceed to state that the applicant has to wait until the mortgaged property is sold by way of public auction. After the auction, if the sale proceeds will be bigger than the decretal sum, the decretal sum will be deducted and the remaining sum will be retained by the applicant. In the alternative and without prejudice the foregoing, as it is not disputed, the applicant is at liberty to sell the mortgaged property by himself and then deposit the decretal sum with the respondent and thereafter, retain the remaining sum. In the event, it is therefore absurd to stop the process of execution by the respondent for unfounded grounds. This application is accordingly dismissed with costs. It Is so ordered. cr J. S. MGETTA JUDGE 20/7/2020 Court: Ruling is delivered today this 20^^ day of July, 2020 in the presence of Mr. Julius Msengezi, the learned advocate for the applicant and in the presence of Mr. Godwin Muganyizi, the learned advocate for the respondent. ^ J. S. MGETTA "r JUDGE 4.. \ 20/7/2020