ibrahim twahili kusundwa and another vs crdb bank limited alias crdb bank plc and 3 others 2020 tzhclandd 2273 31 august 2020

ibrahim twahili kusundwa and another vs crdb bank limited alias crdb bank plc and 3 others 2020 tzhclandd 2273 31 august 2020

The 1st plaintiff defaulted on the deed of settlement by failing to pay the agreed annual installments. The mortgagee's power of sale was not extinguished by the deed of settlement or court order. Proper statutory notice was served to the 1st plaintiff, and the auction was lawfully conducted. The 3rd and 4th defendants are bonafide purchasers for value and entitled to mesne profits from the date of purchase. The plaintiffs' continued occupation after the sale was wrongful.

Citation
ibrahim twahili kusundwa and another vs crdb bank limited alias crdb bank plc and 3 others 2020 tzhclandd 2273 31 august 2020
Parties
1st Plaintiff: Ibrahim Twahili Kusundwa; 2nd Plaintiff: Ibrahim Twahili Kusundwa (Administrator of the estate of the late Twahili Selemani Kusundwa); 1st Defendant: CRDB Bank Limited alias CRDB Bank PLC; 2nd Defendant: MEM Auctioneers and General Brokers Ltd; 3rd Defendant: Epimaki S. Makoi; 4th Defendant: Prim A. Mushi
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
31 August 2020
Procedural Posture
Land Case / Judgment
Outcome
Plaintiffs' suit dismissed; counterclaim by 3rd and 4th defendants succeeds.
Legal Topics
Mortgage, Power of Sale, Auction Procedure, Mesne Profits, Default Notice, Bonafide Purchaser, Counterclaim
Source Language
English
Land Law Banking Law Civil Procedure Mortgage Power of Sale Auction Procedure Mesne Profits Default Notice +2 more

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Parties

Ibrahim Twahili Kusundwa

1st Plaintiff

Ibrahim Twahili Kusundwa (Administrator of the estate of the late Twahili Selemani Kusundwa)

2nd Plaintiff

CRDB Bank Limited alias CRDB Bank PLC

1st Defendant

MEM Auctioneers and General Brokers Ltd

2nd Defendant

Epimaki S. Makoi

3rd Defendant

Prim A. Mushi

4th Defendant

Procedural Posture

Land Case / Judgment

Legal Issues

  1. 1 Whether the 1st plaintiff defaulted the terms of deed of settlement executed on 16th September 2013 between the 1st plaintiff and the 1st defendant.
  2. 2 Whether the purported sale of the mortgaged/disputed property by the 1st and 2nd defendants to the 3rd and 4th defendant was in exercise of the power of sale under mortgage or under the deed of settlement and whether the sale was lawful.
  3. 3 Whether the 3rd and 4th defendants are the bonafide purchasers of the disputed/mortgaged properties.

Ratio Decidendi

The 1st plaintiff defaulted on the deed of settlement by failing to pay the agreed annual installments. The mortgagee's power of sale was not extinguished by the deed of settlement or court order. Proper statutory notice was served to the 1st plaintiff, and the auction was lawfully conducted. The 3rd and 4th defendants are bonafide purchasers for value and entitled to mesne profits from the date of purchase. The plaintiffs' continued occupation after the sale was wrongful.

Court Disposition

Plaintiffs' suit dismissed; counterclaim by 3rd and 4th defendants succeeds.

Orders

  • Plaintiffs' suit dismissed with costs.
  • 3rd and 4th defendants declared lawful owners of the suit property (Plot No. 13, Block 30 Nyamwezi Street Kariakoo Area, Certificate of Title 32350).