20120920 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 207 OF 2011 MUGETA JOSEPH BWIRE BHAKOME . . . . . . . . . . . APPLICANT Vs. AZANIA BANK LTD . . . . . . . . . . . . . . . . . . . . 1 sT RESPONDENT -' MABUNDA AUCTIONEER MART CO. LTD . ·. . 2ND RESPONDENT Date of last order-11/ 9/2012 Date of Ruling-20/9/2012 RULING Shangwa, J. The Applicant Mugeta Joseph Bwire Bhakome has filed an application for a declaratory order against the sale of his house as a nullity and for an order that the status quo should be maintained pending the finalization of the main suit. His house which was sold was mortgaged property. The plaint for the main suit is attached to this application and it is headed as HC Civil Case No. 207 of < I. 2 2011. In this application, the Applicant also prays for costs against the Respondents Azania Bank Ltd and Mabunda Auction Mart Co; Ltd who are the 1st and 2nd Respondents respectively. The Applicant supported his application by his own affidavit. The application was presented by written submissions as ordered by this court. In his written submissions, counsel for the Applicant Mr. John Mapinduzi submitted that the Applicant is the lawful owner of the house located at Plot 227, Block D Mbagala Temeke District, Dar es Salaam Region, owned under Certificate of Title No. 25195. That One Sylvanos Mbegeswa whom the Applicant guaranteed to secure a loan from Azania Bank Ltd defaulted payment of the loan and that after defaulting to do so, the 1st Respondent instructed the 2 nd Respondent to sell his house. He further submitted that following those instructions, the Applicant instituted a suit in the District 3 Land and Housing Tribunal of Temeke to verify the correctness of the loan and the balance that the 1st Respondent was supposed to be paid but that while the said suit was till pending in the Tribunal and while he had opted to lift the guarantee of the loan to Sylvanos Mbegeswa by Azania Bank Ld and while he was making arrangements to make sure the debt is paid, the 1 st and 2 nd Respondents proceeded to auction his house. He prayed that the status quo should be maintained and the sale should be nullified, so as to allow the Tribunal to finalize the case. In reply, counsel for 1st Respondent Mr. Mugila attacked this application and prayed this court to dismiss it with costs. He did so on the following grounds:- First, that while the Applicant was given extension of time to file his written submissions on 9 th July, 2012, he filed the same on 17 th July, 2012 without being granted 4 extension of tim~ _to file the same. He argued that the Applicant's failure to file his written submissions as ordered by the court amounts to a failure to prosecute it. In support of his argument he referred this court to the case of Said Salum Mohamed V. Bakari Selemani Yombe Civil Appeal No. 160 of 2004 (unreported) in which it was held by this court that a failure by the Appellant or Applicant to file written submissions 1n arguing the appeal or application amounts to a failure to prosecute the same of whose consequence is to dismiss the same. Second, that the Applicant's hosue located at Plot No. 227, Block D Mbagala, Temeke District, Dar es Salaam with Certificate of Title No. 25195 was a mortgaged property for a Bank Credit facility of Tshs.15,000,000/= given to one Sylvanos Mbegeswa by the 1 st Respondent Bank who failed to repay the loan within the agreed period. . ' 5 Third, that the Applicant's house was sold to one Ally · Mohamed Salehe to recover the-unpaid loan. Fourth, that all legal procedures concerning the sale of the Applicant's house were strictly followed. Fifth, that the Land Case which was filed 1n the District Land and Housing Tribunal in which the Applicant wanted to challenge the sale of his house was dismissed on 12 th August, 2008 by the Chairman of the Tribunal Hon. Kaare. The impression that I have gathered in this matter is that the Applicant has embarked on a heavy and difficult task of window shopping for the recovery of his house at Plot No. 227, Block D, Mbagala, Temeke District, Dar es Salaam Region with Title No. 25195 which was sold by 2 nd Respondent at a Public auction conducted on 5 th November, 2011. As already mentioned, it was sold to one Ally Mohamed Salehe who was the highest bidder. 6 In his task of window shopping, the Applicant appears to be looking for the same thing from the High Court and from the District Land and Housing Tribunal of Temeke which is inferior to this court namely to recover his house by declaring its sale as a nullity and setting aside its sale. For instance, in this application, he is praying for an order to nullify the sale of his house and maintain the status quo pending the finalization of the main suit. In the main suit i.e. Civil Case No. 207 of 2011, he is praying for an order to set aside the sale of his house and maintain the status quo pending determination of the suit/ Application alleged to be pending in the District Land and Hou_sing Tribunal of Temeke i.e. Application No. 177 of 20~7 and for an order of payment of compensation of Tshs.170,000,000/= for unlawful sale of his house. In so far as this application is concerned, I agree with learned counsel for the 1st Respondent that the Applicant 7 filed his written submissions out of time after he had been given extension of time to file the same and that he did so without leave of the court. However, the authority he cited in support of his argument for dismissing the Applicant's application namely HC Civil Appeal No. 160 of 2004 Said Salum Mohamed V. Bakari Selemani Yombe \.._ . · (unreported) is distinguishable from this case. Whereas in the above mentioned case, the Appellant had entirely failed to file his written submissions to argue his case, in this case, the Applicant filed his written submissions albeit out of time and without a further extension of time sought by him and granted by this court. The question which arises here is what is the consequence of filing written submissions out of time set by the court after being granted extension of time to file the same and without leave of the court? The answer to this question is that such submissions should not be taken to . ' 8 be serious and the arguments contained therein should be considered of no weight. The issue to be considered at this juncture is whether or not the sale of the Applicant's house is a nullity. As it was correctly submitted by Mr. Mugila, Advocate for the Respondents, the Applicant's house was mortgaged as security for a loan of Tshs.15,000,000/= which was granted to one Sylvanos Mbegeswa. It is not in dispute that on 7 th August, 2006, the Applicant entered into a written Agreement with the 1st Respondent as guarantor of the said loan and he signed it. Under clause 3.0 of the said Agreement, the Applicant agreed that in case of default to repay the loan, the 1st Respondent should proceed to enforce its right against him after serving him and the borrower Sylvanos Mbegeswa with a notice of 14 days. Also, the Applicant agreed that if at t,he elapse of 14 days, the moneys due remain unpaid, the guarantee and the 9 mortgage shall automatically be enforceable against him and the Borrower respectively. There is evidence to show that ·the Applicant and the Borrower were served with a 14 days notice dated 17th August, 2007 and 11th May, 2007 respectively. Despite the said notice, neither the Applicant Mugeta Joseph Bwire Bhakome (guarantor) nor his friend Sylvanos Mbegeswa (Borrower) bothered to pay moneys due to the 1st Respondent at the expiration of the said notice and beyond. Four years or so later after the expiration of the said notice, the 1st Respondent instructed the 2 nd Respondent to sell the house in issue. After being so instructed, the 2 nd Respondent sold it to Ally Mohamed Salehe at· a public auction. In my considered view, taking into consideration the fact that the Applicant's mortgaged house/property was sold by the Respondents four years later or so after the '' . ' \ 10 expiration of 14 days notice provided for under the guarantee Agreement, the Applicant's argument that it was unlawfully sold as the suit was still pending in the Tribunal to verify the correctness of the loan and the balance and as he had opted to lift the guarantee of the loan to Sylvanos Mbegeswa and as he was making the arrangements to make sure the debt is paid is not a valid argument. In other words, his argument does not hold water. It is an argument intended to pervert the cause of justice and it cannot be accepted by any reasonable court or Tribunal. In fact, the Applicant's window shopping activity to recover his mortgaged property after being sold to recover the 1st Respondent Bank's money which the Borrower namely Sylvanos Mbegeswa failed to repay is just a wastage of time and an abuse of justice. For these reasons, I declare that the sale of the Applicant's mortgaged house/property was quite valid and \ ' 11 lawful. In other words, I declare that the sale of that house is not a nullity. The issue of maintaining the status quo is out of context. The purchaser of that house Ally Mohamed Salehe is now its lawful owner. He is authorized as from now onwards to occupy it, rent it or demolish it and build a new structure or deal with the same in any other manner as he deems fit. I therefore dismiss this application with costs. The order for maintaining the statµs quo issued on 23rd March, 2012 is hereby vacated. ~ A.Shangwa JUDGE 20/9/2012 ·\ • I ' ' ,. ' 12 Delivered in open court in the presence of the Applicant and Mrs. Mziray Advocate for 1st Respondent this 20 th day of September, 2012. A.Shangwa JUDGE 20/9/2012