nmb bank plc vs mafubilo general supplies ltd 5 others by way of counter claim rose mutagonga kundecha vs nmb bank plc 2 others 2023 tzhccomd 319 29 september 2023

nmb bank plc vs mafubilo general supplies ltd 5 others by way of counter claim rose mutagonga kundecha vs nmb bank plc 2 others 2023 tzhccomd 319 29 september 2023

The 1st defendant breached the facility and amendments; the 2nd and 6th defendants mortgaged the property and consented to the deed of variation; allegations of forgery were not specifically pleaded nor proved by expert evidence; the doctrine of novation applied, transferring liabilities to the 1st defendant; all guarantors are liable as sureties; the plaintiff is entitled to recover the outstanding sums, interest, general damages, and enforce the securities; the counterclaim is dismissed for lack of merit and evidence.

Citation
nmb bank plc vs mafubilo general supplies ltd 5 others by way of counter claim rose mutagonga kundecha vs nmb bank plc 2 others 2023 tzhccomd 319 29 september 2023
Parties
Plaintiff: NMB Bank PLC; 1st Defendant: Mafubilo General Supplies Limited; 2nd Defendant: Ibrahim Abdallah Kundecha (Personal legal representative of the late Abdallah Yusuph Kundecha); 3rd Defendant: Grace Irigo; 4th Defendant: Juma Bakari Said; 5th Defendant: Husna Jaffari Mafubilo; 6th Defendant / Counterclaim Plaintiff: Rose Mutagonda Kundecha
Court
TZHCCOMD
Jurisdiction
Tanzania
Judgment Date
29 September 2023
Procedural Posture
Commercial Case / Judgment
Outcome
Plaintiff's suit allowed; counterclaim dismissed with costs.
Legal Topics
Loan Default, Mortgage Enforcement, Guarantee Liability, Forgery Allegations, Counterclaim Procedure
Source Language
English
Banking Law Contract Law Civil Procedure Loan Default Mortgage Enforcement Guarantee Liability Forgery Allegations Counterclaim Procedure

Case Brief

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Parties

NMB Bank PLC

Plaintiff

Mafubilo General Supplies Limited

1st Defendant

Ibrahim Abdallah Kundecha (Personal legal representative of the late Abdallah Yusuph Kundecha)

2nd Defendant

Grace Irigo

3rd Defendant

Juma Bakari Said

4th Defendant

Husna Jaffari Mafubilo

5th Defendant

Rose Mutagonda Kundecha

6th Defendant / Counterclaim Plaintiff

Procedural Posture

Commercial Case / Judgment

Legal Issues

  1. 1 Whether the 1st defendant breached the facility and amendments
  2. 2 Whether the 2nd and 6th defendants mortgaged the property to the plaintiff
  3. 3 Whether the 6th defendant consented to the mortgage

Ratio Decidendi

The 1st defendant breached the facility and amendments; the 2nd and 6th defendants mortgaged the property and consented to the deed of variation; allegations of forgery were not specifically pleaded nor proved by expert evidence; the doctrine of novation applied, transferring liabilities to the 1st defendant; all guarantors are liable as sureties; the plaintiff is entitled to recover the outstanding sums, interest, general damages, and enforce the securities; the counterclaim is dismissed for lack of merit and evidence.

Court Disposition

Plaintiff's suit allowed; counterclaim dismissed with costs.

Orders

  • Declaration of breach by 1st defendant of facility letters and amendments
  • Declaration of breach by 2nd and 3rd defendants of mortgage and variation deeds