makriman trust fund ltd vs national bank of commerce and others 2020 tzhclandd 117 27 april 2020

makriman trust fund ltd vs national bank of commerce and others 2020 tzhclandd 117 27 april 2020

The court held that although the mortgage deed did not expressly cover the extension of the overdraft facility, the plaintiff, through its director who was also a director of the 2nd defendant, had full knowledge and was involved in the extension. Therefore, the plaintiff could not be discharged from liability as a mortgagor, and the intended sale of the mortgaged property by the 1st and 3rd defendants was lawful.

Citation
makriman trust fund ltd vs national bank of commerce and others 2020 tzhclandd 117 27 april 2020
Parties
Plaintiff: Mackriman Trust Fund Ltd; 1st Defendant: National Bank of Commerce Ltd; 2nd Defendant: Lesheya Investment Co. Ltd; 3rd Defendant: Sadock Dotto Magai
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
27 April 2020
Procedural Posture
Land Case / Judgment
Outcome
Suit dismissed with costs
Legal Topics
Mortgage Liability, Guarantee and Suretyship, Extension of Banking Facility, Notice to Guarantor, Enforcement of Security
Source Language
English
Land Law Contract Law Banking Law Mortgage Liability Guarantee and Suretyship Extension of Banking Facility Notice to Guarantor Enforcement of Security

Case Brief

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Parties

Mackriman Trust Fund Ltd

Plaintiff

National Bank of Commerce Ltd

1st Defendant

Lesheya Investment Co. Ltd

2nd Defendant

Sadock Dotto Magai

3rd Defendant

Procedural Posture

Land Case / Judgment

Legal Issues

  1. 1 Whether the mortgage deed executed by the plaintiff covered the extension of overdraft facility granted to the 2nd defendant by the 1st defendant in 2000
  2. 2 Whether the plaintiff's mortgage property secured only Tshs 400,000,000/-
  3. 3 Whether the intended sale of mortgaged property by the 1st and 3rd defendants is lawful

Ratio Decidendi

The court held that although the mortgage deed did not expressly cover the extension of the overdraft facility, the plaintiff, through its director who was also a director of the 2nd defendant, had full knowledge and was involved in the extension. Therefore, the plaintiff could not be discharged from liability as a mortgagor, and the intended sale of the mortgaged property by the 1st and 3rd defendants was lawful.

Court Disposition

Suit dismissed with costs

Orders

  • The suit is dismissed with costs.
  • The 1st defendant may proceed with the recovery process, including sale of the mortgaged property, as prescribed by law.