The plaintiffs’ claim against the defendants jointly and severely is for declaration that the purported loans issued to the 2nd plaintiff by the 2nd defendant and mortgage of right of occupancy by the 1st plaintiff in favour of the 2nd defendant over a property on Plot No. 128, Regent Estate, comprised in CT No. 186151/37 are unlawful and void ab initio. They also seek a permanent injunction to restrain the defendants from selling and or disposing of the said property.
The plaint has it that sometimes in October, 2008 the 1st plaintiff learnt that a loan to a tune of USD 160,000 had been advanced to the 2nd plaintiff on her (1st plaintiff’s) certificate of Title No. 186151/37 as a mortgage security thereof. Upon following up the matter, she discovered that the 2nd plaintiff was neither aware of the loan nor the mortgage, but rather the same were processed fraudulently by the 1st defendant who was a director of the 2nd plaintiff without knowledge of other directors. It is also stated that at the time of processing such fraudulent loan, the 1st Plaintiff had deposited the original title deed in respect of the said property to one Sabodo for a Tshs. 500,000,000/= loan. The 1st plaintiff had then put to notice to the Registrar of Titles and the 2nd defendant whereby the latter misrepresented to the 1st plaintiff that she had to sign some papers in order to settle the matter once and for all. The plaint further discloses that the documents she (the plaintiff) signed without her knowledge were unilaterally conditioning her to accept a loan of Tshs. 100,000,000/= as an “additional” loan which was utilized to set off the fraudulent loan advanced to 2nd plaintiff. The plaint also shows that the 1st plaintiff upon referring the loan and mortgage documents to the handwriting experts of the police CID Identification Bureau Department, it was reported that all documents were forged.
The plaint further states various elements of fraud including non-mortgage of the Right of Occupancy by 1st plaintiff, non-involvement of the plaintiff in loan processing, forged signature of the Aunali Kassam and Abbasali Kassam who is not a director of the 1st plaintiff, false allegations of loss of Certificate of Right of Occupancy over the said plot, false application for a new title by the said Abbasali A. Kassam who was not the owner of the said title as well as forged motor valuation report for purpose of further securing the loan. On those grounds, the plaintiffs filed this suit.
Only the 2nd defendant entered a defence. This is because service to the first defendant had proved futile after several attempts whereby this court ordered the case to proceed ex parte against him. The second defendant disputed all the claims raised by the plaintiffs but also raised a counter claim.