Emanuel Paulo v. Daudi Tibendelana, (PC) Civ. App. 51-M-67, 20/3/68, Mustafa J.

Emanuel Paulo v. Daudi Tibendelana, (PC) Civ. App. 51-M-67, 20/3/68, Mustafa J.

Plaintiff sued defendant for the return of land mortgaged as security for a loan of Shs. 500/- The agreement called for the repayment of Shs. 1,000/- within one year ------ i.e., specified an interest rate of 100% per annum. Plaintiff alleged that, upon his failure to  pay the money, defendant ha claimed two shambas instead of the one pledged. The Primary Court found for defendant, and plaintiff’s appeal to the District Court was dismissed for non-prosecution. On appeal to the High Court, the Court was satisfied that the land mortgaged did include the shamba claimed by defendant. Further evidence obtained from the District Magistrate indicated that the shamba was worth between Shs. 2,000/- and Shs. 2,500/-

            Held: “(T)he whole transaction appears to be highly inequitable. This is usury with a vengeance. I find it unconscionable ….. In such circumstances the Primary Court Magistrate should have given judgment….. for either Shs. 500/- or at most Shs. 1,000/- which the defendant could have recovered by selling the shamba, the balance to be returned to plaintiff. Judgment for defendant entered, for Shs. 1,000/- the land to be sold at public auction if the judgment is not paid within 30 days, proceeds in excess of the judgment to be refunded to plaintiff. Defendant will have the right to bid at the auction; if proceeds fall short of Shs. 1,000/-, defendant will be entitled to sue plaintiff personally for the remainder.