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At Mbeya Hosea Kasumo Mwakasitu

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At Mbeya Hosea Kasumo Mwakasitu THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) AT MBEYA LAND CASE 08 OF 2017 HOSEA KASUMO MWAKASITU.....................................................................PLAINTIFF VERSUS IGAWILO ENTREPRENEURSHIP ASSOCIATION........................................................1st DEFENDANT ALAM JOSEPH MSIGWA........................................................................................... 2nd DEFENDANT GIBSON JOSEPH MWAKALIMBULE..........................................................................3rd DEFENDANT NCBA BANK (T) LTD.................................................................................................... 4thDEFENDANT LUMAGE AUCTION MART.......................................................................................... 5thDEFENDANT JUDGEMENT Date of Hearing : 08/10/2020 Date of Judgement: 10/12/2020 MONGELLA, J. Hosea Kasumo Mwakasitu, the plaintiff herein, is the legal owner of Plot No. 702, Block ‘DD’ Uyole area within Mbeya City (hereinafter referred to as the plot in dispute). The said plot bears CT No. 12564-MBYLR and LO No. 269783. In his plaint, he claims that, the 1st, 2nd, and 3rd defendants obtained a loan from the 4th defendant (trading as Commercial Bank of Africa (T) Ltd by then) at its Mbeya branch to the tune of T.shs. 100,000,000/- (One hundred million Tanzania Shillings). The plaintiff guaranteed the said loan by charging the plot in dispute under mortgage. The loan was to be repaid within a span of eight months from 20th January 2012, the date it was disbursed. He claims further that the 1st, 2nd, and 3rd defendants defaulted in repaying the loan. As a result, on 16th August 2013 the 4th defendant issued to him a sixty days’ notice to repay the outstanding balance of T.shs. 102,240,682.70 or else the 4th defendant shall proceed to enforce its remedies under the law. On 26th January 2014 he received a 14 days’ notice from the 5th defendant, following being instructed by the 4th defendant that upon failure to repay the outstanding balance the plot in dispute shall be sold without an order from the court. Given the situation, he resorted into filing this suit claiming for the following reliefs: I. A declaration that the intended sale of the plaintiff’s suit premise by the 4th and 5th defendants is illegal and contrary to the law. 2. A permanent injunction against the 4fh and 5th defendants from interference with the plaintiff’s disputed property. 3. A declaration that the plaintiff has no obligation to pay the loan, rather the 1st, 2nd, and 3rd defendants are to repay the loan to the 4th defendant. 4. Costs of the suit. On the final pre-trial conference, six issues were framed for the proper determination of the matter, to wit: 1. Whether the plaintiff has got any cause of action against the 1st, 2nd, and 3rd defendants. 2. Whether there was breach of contract for the payment of the loan by the 1st, 2nd, and 3rd defendants. 3. On what terms the plaintiff mortgaged the suit property to the 4th defendant. 4. Whether the attempt to sale the property located on plot No. 702 Block ‘DD’ Uyole area in Mbeya City by the 4th and 5th defendants was lawful. 5. Whether it was proper for the 4th and 5th defendants to attempt to auction the property of the plaintiff alone while the loan was guaranteed by two guarantors. 6. To what reliefs are the parties entitled to. All parties were represented. The plaintiff was represented by Ms. Juliana Marunda, the 1st, 2nd and 3rd defendants were represented by Mr. Mika Mbise, and the 4th and 5th defendants were represented by Mr. Joseph Mbogela, all learned advocates. In proving the issues os listed above, the prosecution mounted two witnesses and two exhibits. PW1 was the plaintiff himself. He testified that he guaranteed the 1st, 2nd and 3rd defendants on a bank loan by using his title deed. He said that sometime in August 2018 the 2nd and 3rd defendants went to see him and told him that they have an association named Igawilo Entrepreneurship Association (hereinafter referred to as IEA). They told him that they wanted a bank loan on behalf of the association, but had no collateral for the loan. They therefore asked for his title deed to obtain the loan. PW1 continued to testify that the 2nd defendant is his neighbour and he pleaded with him to guarantee them through his title deed something which he agreed. In the same day he gave them the title deed for the bank to assess if it sufficed for the loan advancement. He claimed that the 3rd defendant was his local government leader thus he believed him. The two later informed him that the bank has assessed the title deed and approved it as sufficient to guarantee the bank loan. On 21st January 2012, they notified him that he was needed at the bank. He thus went to the bank on the same day. The bank was Commercial Bank of Africa (CBA) by then, now NCBA Bank Tanzania Limited) located at Soweto area within Mbeya City. At the bank he was given some documents concerning guaranteeing the loan and he was told to sign as a guarantor. He was shown a place to sign and signed to guarantee IEA. He added that the bank officer who attended him introduced him to another person named Stella Anyitike Mbogela. He was told that the said Stella was his fellow guarantor and has also charged her title deed. They were thus two guarantors and they both signed the same document, but on different parts. PW1 guaranteed the loan through his house by giving the title deed. The same was admitted in evidence as ‘Exhibit Pl.’ Other people who signed the Credit Facility Letter were the 2nd and 3rd defendants as chairman and secretary of the 1st defendant, respectively. The same was admitted as ‘Exhibit P2.’ He continued to testify that after signing the loan facility letter he asked if the borrower was capable of paying and was assured by the bank officer that in accordance with their investigation the borrower was capable of paying the loan. He was told that his obligation was to remind the borrower to repay the loan. He said that after four months he followed up at the bank if the loan was being repaid, but was informed that it was repaid in only three months installments. The fourth month was not paid. He followed up with the 2nd and 3rd defendants and they told him that he should wait for eight months as the loan shall be repaid in full. He said that after eight months he was surprised to receive a letter from the bank notifying him that the borrower he guaranteed has not repaid the loan and was given sixty days to ensure that the loan was repaid. He thus went back to the borrower and he was assured that the loan shall be repaid within the sixty days’ period. However, the loan was never repaid. He went back to the 1st defendant and was told that there were some problems, but was still assured that the loan shall be repaid. However, on 26th January 2014 he was issued a fourteen days’ notice by the 5th defendant on sale of his house. Thereafter he sought advice from a lawyer and ended up filing this matter in this Court. On cross examination, PW1 said that the 1st defendant is an institution and is the borrower. He denied having any relationship with the 1st defendant being it a member or holding any leadership position in the association. He also denied taking any money form the loan advanced by the 4th defendant to the 1st defendant. He said that he did not understand if one guarantees a loan he is obliged to repay when the borrower defaults. On re-examination he claimed that he signed the credit facility letter without knowing the contents therein as he does not know English language and the provisions were not interpreted to him. He insisted that it is the borrower who is supposed to repay the loan and not him. PW2 was one Benedicto Mbogela, a member of the 1st defendant association. He also gave a sworn testimony saying that he knows the plaintiff as the guarantor of the 1st defendant on loan issued by the 4th defendant. He said that at one point their leaders asked them if they had any title deeds which can be used to obtain a bank loan. Later a meeting was conducted and they were informed that two guarantors were found. One of the guarantors was named Stella and was a member of the 1st defendant association and the second was the plaintiff. The said guarantors gave their title deeds and a loan was obtained by the leaders, that is, the chairman and the secretary. The loan was from CBA Bank and was to be repaid within eight months. He continued to testify that, after the loan was obtained, the members were informed that they can obtain loans from the association. Some members obtained loans. However, they failed to repay as scheduled. Following that situation a meeting was called to insist members in repaying the loan. He then met with the plaintiff who informed him that his house was about to be sold as the association has failed to repay the loan. PW2 further stated that the 1st defendant association has now disintegrated. He as well stated that the second guarantor, who was her sister, passed away and he does not know anything about her property. He said that the plaintiff is not a member of the 1st defendant association. On cross examination, PW2 stated that the association had more than 300 members and he does not know all of them. He held no leadership position and was not responsible for keeping office records. He said that the loan was used to lend money to the members of the association.
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