Said Kalonda Mayani vs N.B.C. - Kigoma Branch (Civil Appeal No. 29 of 1997) [1998] TZHC 2421 (26 November 1998)
Judgment
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IN TEE HIGH comT OF TANZANIA
AT TABORA
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CIVIL. APPEl\L NO• 29 OF 1997
ORIGHJAL FROM MISC. CIVIL CASE NO. 15 OF
1996 KIGOMA DISTRICT counT
SAID KALONDA HAYANI
• • • • • • • • • • • • • • • • • • • • •
APPELLANT
Versus
N.B.Ce - KIGOMA BRANCH •••••• •••••••••••• RESPONDENT
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JUDGMEN,T
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The appellant, .§.~~<i .. ..lil.9-.Ad_Mai is aggrieved at
'the decision of the Kigoma District Court where Hr. Kitusi,
,
RM, .. had dismissed his objection to his being evicted
frorn a house in which he was living and had been mortge.ged
to the Bank (N.B.C.). He had obtained a loan of
Shs. 800.,000/= from the Bank.
Tho appellant's argument is that 'the house he had
mortgaged was or is a residential houe and that
therefore it cannat be taken over.
We have had a lot of such cases of recent. People
have borrowed money from the National Bank of Commerce
after pledsing houses., sometimes residential houses.
When time to pay came they never paid, arguing that,
after all, the houses were residential houses and
therefo-re not subject to forfeiture.. Cotmsels often
refer to s. 48 of the Civil Procedure Code 1966 as
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amended b:v.· Act No. 11/76 Section (d) and (e), reada:
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n (d) An-y land used for. agricultural
purpose.a by. a village, Of\ Ujaaa
Villaga Cooperative Society~ or
an individual whose livelihood is
· wholly dependent upon th~. use of
sucb land;
(e) any residential house or building,
or part of a house or building ,
occupied-by the judgment debtor>
his wife., and defend.ant children
for residential purpose" may not
be attached.
A residential house of ,judgment debtor .will not be
attache'd , if the choice of attaching that house is that
of ·;the judgment creditor. That is to sa:,, if the
: .. .. house never got mortgaged at all. Once a. person mortgages
his. house, himself, that house will be subject to
attachment. in case thel"•e is default. This is what was
said.,. again, by my brothe·r Mc home J in the case of N .B.C •
.... _.... .,. .
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v. Severin :::::milio Novo - Mbeya Civil Case Ho. 78/90.
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in short., there my brother has said that a person who
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moPtga/;es a house in which he is living,· is at risk of
-losing that house in case there is default in payment •.
In short, such a house becomes liable to attachment
·and sale.
This appeal is devoid of any merit. It is dismissed
with costs.
At Tabora
26th lfovember 1998
Parties: Absent
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