20161024 TZCA Arusha

20161024 TZCA Arusha

The respondent failed to prove payment of the full loan amount of Tshs. 180,000,000/=. Only Tshs. 50,000,000/- was paid to clear the mortgage. The respondent was not entitled to enforce transfer or sale of the property. The appellant was entitled to mesne profits for the period of the respondent's occupation, but due to lack of precise evidence, the mesne profits are estimated and offset against the outstanding loan. The order for sale of the property was set aside.

Citation
20161024 TZCA Arusha
Parties
Appellant: Tanzania Sewing Machine Co. Ltd; Respondent: Njake Enterprises Ltd
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
24 October 2016
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
appeal partially succeeds
Legal Topics
Loan Agreement, Performance of Contract, Mesne Profits, Remedies for Breach, Mortgage, Counterclaim
Source Language
English
Contract Law Land Law Loan Agreement Performance of Contract Mesne Profits Remedies for Breach Mortgage Counterclaim

Case Brief

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Parties

Tanzania Sewing Machine Co. Ltd

Appellant

Njake Enterprises Ltd

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the respondent paid the full loan amount of Tshs. 180,000,000/- to the appellant under the agreement
  2. 2 Whether the appellant was entitled to mesne profits for the period the respondent occupied the property
  3. 3 Whether the trial judge was entitled to order sale of the property under the Land Act without a specific prayer and after relevant provisions had been repealed

Ratio Decidendi

The respondent failed to prove payment of the full loan amount of Tshs. 180,000,000/=. Only Tshs. 50,000,000/- was paid to clear the mortgage. The respondent was not entitled to enforce transfer or sale of the property. The appellant was entitled to mesne profits for the period of the respondent's occupation, but due to lack of precise evidence, the mesne profits are estimated and offset against the outstanding loan. The order for sale of the property was set aside.

Court Disposition

appeal partially succeeds

Orders

  • Judgment and decree ordering sale of the suit property set aside
  • Outstanding loan of Tshs. 50,000,000/= due to respondent is offset against estimated mesne profits of Tshs. 50,000,000/= owed by respondent to appellant