kilua ali kisaka vs agricultural imputs trust funds others 2003 tzhc 56 9 july 2003

IN THE HIGH COURT OF•TANZANIA

AT M R ES SALAAM CIVIL CASE NO. 200/3000 KILUA ALI KESAKA .... ....APPELLANT

VERSUS

AGRICULTURAL IMEUTS TRUST FUNDS & OTHERS*,,....... RESPONDENT

J U D G M E N T LUANDA.J. .............................................. Kukopa Harusi, Icu-lipa Matanga, This Kiswahili saying applies to this case* Literally translated in Bnglishi thus:-to ’a o zzi& i/ joyous,, whereas to pay back is sorrjwful# Having gone through the•evidence of the parties and documents tendered in court thereis no dispute that the plaintiff * the defendant with the sole purpose of borrowing money* The plaintiff wrote a letter to that effect thereafter he filed in application form* The plaintiff intended to bodJJ’oW Tshs 20,0001 000/= In return he was rc;" to surrender a title deed as security. The plaintiff did that* The defendant took all necessary steps including filing notice of search / in the Ministry of Land to see whether there was any encumbrance, / There was none* The title deed was in the name of the plaintiff# The transaction was ' on 2/h/\997* The plaintiff was to settle the debt latest by 18th March|l998^ The plaintiff w^js^unable to settle the debt as per the agreement#! The defendant through / dated 9th May,2000 published notice of sale of the mortgaged property. The plaintiff rushed to this court and instituted this suit in that the property attached should bereleased and the properties of the 3 rd and H h be substituted* He also filed an application for a temporary induction# This court refused the order prayed for as there £s

no*r:ri.-\*j issue to be a'4u^i-rrtv.- upon* The plaintiff denied to have mortgaged his house with the defendant* That is an afterthought* The evidence on record is dcuJl and clear in that he was. the are who borrowed the money and mortgaged his house as coratersCU And to date he is yet to settle the debt# ' «•’ 2 Hie defendant said they had already sold the house* Lot tne £'•“ what I had stated when ^ to grant temporary induction. I saidI- "■4 * 0 the only meaningful solution for him as a borrower and alike is to repay the l,v:a and not to rush to the court of law for protection. Court of law will.not accept lame excuses in not F~ tilir.; debts. And it will be the last institution, if at all, to protect such borrowers of the applicant's calibre” In view of the foregoing, therefore, the suit ha^Lerits. The same is dismissed with costs. ' Judgment delivered Mr Ukangwa for the Pl&intiff Lyimo for the defendant* B*M«Luanda Judge 10/7/2