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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 104 OF 2023 (Consolidated with Land Case No. 105 Of 2023) ALDO HANS POPPE (Administrator of the Estate of the Late Zacharia Hans Poppe) 1®^ PLAINTIFF ANGEL ZACHARIA POPPE (Administratrix of the Estate of the Late Zacharia Hans Poppe) 2"^° PLAINTIFF ABEL CAHARIA POPPE (Administrator of the Estate of the Late Zacharia Hans Poppe) 3"^" PLAINTIFF VERSUS BANK OF AFRICA TANZANIA LIMITED (BOA TANZANIA) 1®^ DEFENDANT BILO STAR DEBT COLLECTOR CO. LIMITED 2^° DEFENDANT JUDGMENT to 31'*^ July, 2024 E.B. LUVANDA,J The First, Second and Third Plaintiffs named above are claiming against the First and Second Defendant above named for the following reliefs: One, declaration that the purported auction and/or sale of the landed properties that comprises of Plot No. 163 & 165, ID No. 289396 Ununio Area and house No. 10, Plot No. 1057, Block'1" Mbezi Beach both located within Kinondoni District Dar es Salaam is invalid, null, void, unjustified and contrary to law for want of sixty days statutory notice by the First Defendant; Two, declaration that the 1 purported auction and/or sale of the landed properties that comprises of Plot No. 163 & 165, ID No. 289396 Ununio Area and house No. 10, Plot No. 1057, Block "L" MbezI Beach both located within KInondonI District Dar es Salaam Is Invalid, null, void, unjustified and contrary to law for want of fourteen days statutory notice by the Second Defendant, among other defects; Three, the purported purchase by the third party of the landed properties that comprises of Plot No. 163 & 165, ID No. 289396 Ununio Area and house No. 10, Plot No. 1057, Block "L" MbezI Beach both located within KInondonI District Dar es Salaam Is Invalid, null and void for want of good title and want of compliance with mandatory requirements of the sale/auction process by the First and Second Defendants; Four, declaration that the purported auction and/or sale of the landed properties that comprises of Plot No. 163 8i 165, ID No. 289396 Ununio Area and house No. 10, Plot No. 1057, Block "T" MbezI Beach both located within KInondonI District Dar es Salaam Is Invalid, null, void, unjustified and contrary to law for want of (sic) Is still lawful owned by the estate of the late Zacharia (Zachary) Hans Poppe, and thus still constitutes the estate of the said Zacharia Hans Poppe of whom the Plaintiff are lawful administrators thereof; Five, for orders of payment of damages to the tune of Tsh 2,000,000,000.00 being compensation for the Injuries and damages occasioned to the First, Second and Third Plaintiffs by the unlawful, unjustified and unwarranted acts by the First, Second and Third (sic) Defendants; Six, for costs of the suit and any other order the Court will deem just and fit to grant. According to the evidence on record, specificaily testimony of Masoud Ally Manya (DWl) who is a head of recovery unit for the First Defendant, asserted that in September 2011 and March 2014 Zacharia Hans Poppe (deceased) t/a Z.H. Poppe Co. and Hans Pope Hoteis Limited requested and were granted by the First Defendant total credit facilities of USD 700,000 and USD 2,000,000, as per faciiity ietter Ref. PDO/CDT/cwl/781/11 dated 09/09/2011 and Ref. PDO/CDT/ern/0182/14 dated 3/03/2014, exhibit D1 and D2 respectiveiy. According to DWl, landed properties described as a house No. 10, Plot No. 1057, Block L, under certificate of title No. 1131196/2 Mbezi Kinondoni Municipality and Plots No. 163 and 165, CT 45369/1 Boko Low Density Area, Ununio Kinondoni Municipaiity were mortgaged by Zacharia Hans Poppe (deceased) as collateral for the above facilities, as per mortgage of a right of occupancy exhibit D4 and D5 respectively. It was the evidence of DWl that Zacharia Hans Poppe t/a Z.H. Poppe Co. changed its form of business from sole proprietorship to limited liability company styled as Z.H. POPPE Limited. DWl asserted that vide facility letter dated 26/11/2019 exhibit D3, the outstanding loan of USD 646,000 of Z.H. Poppe Limited was restructured, where the borrower was required to service it within eight years pius fifteen months grace period. DWl explained that in November 2021 the First Defendant received two letters from the borrowers informed her of the demise of Zacharia Hans Poppe who was the guarantor, managing director and majority shareholder of the two borrowing companies. It was the evidence of DWl that the said letter addressed further that the borrowers are aware of the facilities which were secured by the estate of the late Zacharia Hans Poppe and that the deceased family are in the discussion and process of appointing the administrator. A fact that Zacharia Hans Poppe passed away, was confirmed by Aldo Hans Poppe (PWl) who tendered a certificate of death exhibit P2 vindicating that the late Zacharia Hans Poppe passed away on 10/09/2021. PWl also tendered a ruling dated 23/09/2022 exhibit PI for Probate and Administration Cause No. 177 of 2022 being a grant pendente Hte to the First, Second and Third Plaintiff herein, as administrators of the estate of the late Zacharia Hans Poppe. DWl stated that despite restructuring, the borrower failed to service the loan, where the First Defendant issued demand letters requiring the borrowers/companies to remedy the default failure of which the First Defendant will proceed with recovery measures against securities pledged, citing demand notice Ref. No. MM/VPL/RCR/618/22 dated 30/08/2022 and Ref. MM/VPL/CRC/619/22 dated 30/08/2022 exhibit D6 and D7 respectively and a response from the borrowers advocate Ms. Dora Maiia for MSL ATTORNEYS exhibit D8 and D9 both dated 12/09/2022. According to Petro Nyanda Masanyiwa (DW2), as of 4/11/2022 the outstanding balance stood at USD 4,066,922.08 as per borrower's statement of accounts exhibit D16 and D17. DWl stated that in September 2022 the First Defendant received a letter from the Plaintiffs introducing themselves as joint administrators of the estate of the mortgagor (Zacharia Hans Poppe), where the First Defendant issued a sixty days notice of default to the Plaintiffs, citing notice of default dated 4/11/2022 exhibit DIO and Dll for Plot No. 1057 Block L Mbezi Kinondoni, CT No. 113196/2 and Plots No. 163 & 165 Boko Ununio Kinondoni Municipality CT No. 45369/1, respectively. DWl stated that after expiry of sixty days notice, the First Defendant instructed the Second Defendant to dispose the suit properties to recover the outstanding loan plus interest, where the Second Defendant issued a notice of intention to auction the Mbezi property vide Uhuru Newspaper dated 14/03/2023 exhibit D13 for the auction scheduled on 28/03/2023, which did not materialize. DWl asserted that the Second Defendant issued a second notice of intention to re-sale the Mbezi property vide Uhuru dated 12/04/2023 exhibit D15. DWl stated that Ununio property a notice of intention to sale was issued on 7/04/2023 vide Uhuru newspaper exhibit D14, for the auction to be conducted on 14/04/2023, which nevertheless did not take place to date. A fact of publishing notice In Uhuru newspaper was supported by Julltha Bartome (DW3) who also tendered the auctioneer's report dated 19/04/2023 along bids from three bidders, exhibit D18. DWl and DW3 asserted that Magreth Omary Msangama was the highest bidder for the property at MbezI for re-sale which took place on 19/04/2023. DWl also tendered a letter dated 14/11/2022 exhibit D12 alleged the Plaintiffs had consented for the sale of one of the securities to settle the outstanding loan also acknowledged receiving sixty days notice of default. From the foregoing, the Plaintiffs led by PWl faulted the above process to have flawed procedures, on the ground that: they were not served with sixty days notice; the Second Defendant failed to comply with a requirement of fourteen days notice mandatory prior any auction or sale; for Ununio property the Second Defendant Issued the fourteen days notice on 7/04/2023 for the auction to take place on 14/04/2023 almost eight days later and property at MbezI the purported fourteen days notice was Issued on 14/04/2023 and the auction was scheduled to take place on 19/04/2023 almost six days later; they faulted signatures on the sixty days notice exhibit DIO and Dll being forged and manufactured signatures purporting to belong to the Plaintiffs; they faulted a letter exhibit D12 being not worth, for reason that It was not signed by the Second and Third Plaintiffs; they faulted auctioneers report D18 for reason that the auction was conducted before the elapse of fourteen days, also that the bids fell far below the market value. Issues which were framed on 25/09/2023 after an order for consolidation Land Case No. 104 and 105 of 2023, are: One, whether the First Defendant issued sixty days notice to the mortgagor; Two, whether the First Defendant issued sixty days notice to the Plaintiffs in their capacity as administrators of the estate of the mortgagor upon his(mortgagor)demise; Three, whether the sale/auction of Plot No. 163 and 165 ID 289396 Ununio Area Kinondoni Dar es Salaam and Plot No. 1057 Block L Mbezi Beach Kinondoni Dar es Salaam (suit properties) by the Second Defendant under the instructions of the First Defendant is lawful; Four, to what reliefs are parties entitled. On my part, for logical conclusion, I will start tackling issue number one. The First Defendant led by DWl maintained that the First, Second and Third Plaintiffs were served with a sixty days notice of default, exhibit DIO and Dll. PWl on the other hand dispelled this fact on the explanation that signatures in exhibit DIO and Dll are forged and manufactured. It is common ground that forgery is criminal offence which attract penal measures. The rule is that, when elements of fraud and forgery are introduced in civil litigation, the burden of proof do not remain that of convention standard of proof by balance of probability, rather will attract proof on the higher degree although not equivalent to proof beyond reasonable doubt as imputed in criminal. In the case of Omari Yusuph vs Rahma Ahmed Abdulkadr [1987] 169, cited by Mr. Stephen Axwesso learned Counsel for the Defendants, at page 175, the apex Court commented that, I bold a pertinent portion, A' sshown, the appellant came to courtseeking to impunge the transfers ofthe property alleging criminal conductI.e. fraud on the parts of the vendors, the purchasers and Mr. Ismail. I think it is now estabiished that when the question whether someone has committed a crime is raised in civiiproceedings thataiiegation need be estabiishedon a higher degree of probabiiity than that which is requiredin ordinary civiicases, the iogicandrationaiity of that ruie being that the stigma that attaches to an affirmative finding offraudjustifies the imposition ofa strict standard ofproof, though as Rupert Cross cautions and Illustrates In his text-book on Evidence at page 124 the application of that rule Is not always commodious. In my assessmentandas demonstratedabove, the evidence that was led against the purchasers and Mr. Ismail fell short of the requiredstandard' Herein, the First, Second and Third Plaintiff pleaded forgery in their joint reply to the written statement of defence, specifically at paragraph five (Land Case No. 104 of 2023) and paragraph six (Land Case No. 105 of 2023). In the testimony, PWl re-stated the same facts of forgery and manufacture of signatures in exhibit DIO and Dll and that they never appended their signatures therein. When PWl was cross-examined by Ms. Kavola Semu learned Counsel for the Defendants, stated that he is aware of a fact that forgery is a criminal offence. However, when was asked as to when he discovered forgery and steps taken, PWl was evasive, asserted revealing it when he was shown by his advocate, but he could net tell as to when exactly it was shown to him by his lawyer, neither stated as to where his lawyer procured it. PWl stated further that he did not take any step to the forgery committed against his signature, for reason that he assigned his lawyer to take necessary steps. Up to this moment, basically PWl failed miserably to establish particulars of forgery, time and action taken towards that crime. In that way, it cannot be said that the elements of forgery was proved by PWl. In fact, PWl was merely alleging without any tangible proof whatsoever. Above all, exhibit DIO and Dll suggest was signed by the First, Second and This Plaintiff. PWl who faulted a letter exhibit D12 to have not been signed by his fellow administrators, now was speaking on behalf of his fellow administrators who did not appear to testify. According to Order XXX rule 2, Cap 33 (supra), requires all executors or administrators to be joined to a suit. The rule provides. 'Where there are several trustees, executors or administrators, they shaii aii be made parties to a suit against one or more of them' By the same analogy, the Second and Third Plaintiff ought to prove their case. There is no rule that when they are several administrators, one may act or execute duty on behalf of others. In the case of Attorney General vs Tanzania Electric Supply Company Limited and Fourteen Others, Civil Revision No. 1 of 2023, CAT,(cited by the learned Counsel for Defendants) at page 29 ruled, '...another issue to be addressed is in respect of the 5^, 13^'^ and 13^ plaintiffs (now the 4^, 13^ and Mthe respondents) namely Noya John Conrda,29 Major Mussa Seieman Kingaiand Masegedo Juma Mgweno respectively, who did not appear to testify before the trial court to prove their claims against TANESCO. In terms of sections 110,111 and 115 of the Evidence Act, it is dear that the said three plaintiffs had failed to discharge their burden ofproof Therefore, apart from PWl evidence on forgery and fraud which I have held to be wanting, the Second and Third Plaintiff did not tender their evidence at aii regarding the allegations that their signatures were forged. For that matter, I hold the view that the First, Second and Third Plaintiff were served with and acknowledged exhibit DIG and Dll. 10 Another glaring question is as to when the First, Second and Third Plaintiff received notice of default exhibit DIO and Dll. This is because in exhibit DIO and Dll depict the date when they were crafted or issued to wit on 4/11/2022, but the date of receiving is missing, was not indicated. It is to be noted that the said notices of default were issued under the provision of section 127 of the Land Act, Cap 113 R.E. 2019. The said provision provides that, '(1) Where there isa defaultin paymentofanyinterest orany other payment or any part thereof or in the fuifiiiment ofany condition secured by any mortgage or in the performance ofany covenant, express or implied, in any mortgage, the mortgagee shallserve on the mortgagor a notice in writing ofsuch default (2) The notice required by subsection (1)shaii adequately inform the recipient ofthe following matters: (a)the nature and extent ofthe default; (b)thatthe mortgagee mayproceed to exercise hisremedies against the mortgaged iand; and (c) actions that must be taken by the debtor to cure the default; and (d)that, after the expiry ofsixty daysfoilowing receiptofthe notice by the mortgagor, the entire amount ofthe claim wiii become due and payable and the mortgagee may exercise the right to seii the mortgaged iand. (3) The Minister may, byregulationsprescribe the form and content ofa notice to be served under this section and where the notice to 11 be served under this section has been prescribed, a notice served under subsection (1)shaii be in that form and shaii be void ifit is notin thatform' According to exhibit DIO and Dll, at the last paragraph from the bottom, provide, 'Be further notified that in the event that, Z.H. POPPELIMITED do(es) not rectify the defauit stated above within SIXTY(60) DA YSfrom the receipt ofthis notice, the entire amount ofthe iiabiiity with us shaii be due and payabie and we may exercise our right to seiithe mortgagedproperty cited above, or appoint a receiver, or iease the property, or enter into possession' At the space for inserting the date of receiving notice, it is blank space and empty without any contents thereof. Therefore, exhibit DIO and Dll are void for non compliance to the requirement of indicating the date when it was served or received by the recipients. In that basis, exhibit DIG and Dll are as good one as having not been served to the administrators of the estate of the late Zacharia Hans Poppe (mortgagor). On similar footing, no notice of default was served to the mortgagor. With this finding, the first and second issue are answered in the negative. For the third issue. It is in record that only the property at Mbezi was subject for bidding where on the bids opening date 19/04/2023 before 09.00 am, the tender was opened and Magreth Omari Msanga was declared to be the highest 12 bidder at 140,000,000/=. According to DWl, re-saie scheduied for the property at Ununio on 14/04/2023 did not take place. The Plaintiff did not tender evidence showing that this property was sold too. In other words, the Plaintiff are taken to have conceded to a fact that a property at Ununio was not sold. A complaint associated to the sale of the property at Mbezi was predicated on a fact that it was done within a short notice prior expiry of fourteen days, citing exhibit D13 and D15. However, DW3 clarified on cross examination by Mr. Omari Msemwa learned Counsel for the Plaintiffs, I quote. We auctioned fast year March or Apr!!. It is true that we disposed prior expiration offourteen days counting from the second advertisement The first advertisement is fourteen days, but ifit is a foiiow up advertisement it is not mandatory to be fourteen days, it might be even seven' According to Uhuru newspaper dated 14/03/2023 exhibit D13, a property at Mbezi was slated for auction on 28/03/2023, which DWl and DW3 asserted that it did not materialize. Then on 12/04/2023 it was re-pubiished vide Uhuru newspaper exhibit D15 for the auction to be on 19/04/2023, which DWl and DW3 conceded to have been less that fourteen days. Apart from the clarification by DW3 recaptured above, which I have approved to be valid. But stiii the alleged pre-mature sale cannot be a sole ground to vitiate the auction. In the case of Godebertha Rukanga vs CRDB Bank LTD and Others, Civil Appeal 13 No. 25/17 of 2017, CAT which declined to nullify sale for reason of short notice on account that the property was transferred to a third party, the apex Court had this to say, at page 25,1 quote. The second issue is whether, as a resuit ofthe irreguiarity in the process ofissuing a notice ofauction, the appeiiant'sprayer for nuiiification ofthe saie shouid have been granted. From the facts ofthe case as outiined above, the answer to this issue is in the negative. It is an undisputed fact that despite the short notice, the suit property was bought by the 4^ respondent through the respondent. It was not disputed further that thereafter, under the power ofsaie, the respondent caused the tide ofthe suitproperty to be registered in the name ofthe 4^ respondent. In the circumstances, being a bonafide purchaserfor vaiue, and because there was no evidence offraud or misrepresentation by the mortgagee, the 4'^ respondents right over the suit property is iegaiiy protected. That is in accordance with s. 135(1)-(3)ofthe Land Act Therefore, although there Is no evidence tendered depicting transfer of the suit property to Magreth Moary Msangama, but generally a short notice In a situation like the Instant matter. Is not fatal In particular where all things are equal and on place. Another argument by the Plaintiff was that a bid for the suit property fell far below the market value. But PWl was unable to tell the actual value of the suit 14 property, neither tendered any current valuation report depicting the value of the suit property at the time of auction. In the case of JM Haulers Limited Vs. Access Microfinance Bank (Tanzania) Limited former Access Bank Tanzania, Civil Appeal No. 274/2021, CAT sitting at Dar es Salaam, (cited by the learned Counsel for Defendants) at page 29, the apex Court propounded, 'In the absence of a valuation report that the suit property had appreciated in vaiue, we find the appellant complaint unsubstantiated. The appellant was in our observation obliged to furnish the court with the valuation report showing the increase in vaiue. Sections110and111 ofthe Evidence Act,(CapOR.E. 2019), require the one who alleges must prove. The Appellant is thus not exceptional. We wish once again to restate the stance we took in Joseph Kahungwa (supra) when we stated: "The appellant did not produce any evidence to prove that the property couid fetch more price than the one soid. Itis a cardinalprinciple ofiaw thatthe burden ofproofin civiicases lies on the party who alleges anything in his favour" However, in view of the holding in issue number one and two above, a bid and tender for a property at Mbezi cannot be salvaged. This holding will also impact the intended sale of Ununio property. Therefore, issue number three is in affirmative, that the sale of a property at Mbezi by the Second Defendant at the instruction of the First Defendant, was unlawful. 15 As to the final issue, relating to reliefs. The Plaintiffs pleaded a long list of reliefs ranging from declaration against the validity of the sale and intended sale of the property at Mbezi and Ununio (which I have already ruled in their favour), also for payment of damages to the tune of Tsh 2,000,000,000.00(a breakdown of one billion per each case) being compensation for the injuries and damages occasioned to the First, Second and Third Plaintiffs by the unlawful, unjustified and unwarranted acts by the First, Second and Third (sic) Defendants. Fiowever, this claim was not prosecuted by either PWl nor Second or Third Plaintiff. PWl merely stated that he pray this Court to grant reliefs sought in the plaint. But, there is no explanation as to why and how the Plaintiffs are entitled to this amount or any. For that reason, a claim for payment of money is dismissed. The suiy^^^granted. And for that, I make no order for costs. m E.B. ^ANDA JUDGE X ■4^/. 5I/O7/20I24 Judgment delivered in the pres^ce of Mr. Frank Machui learned Advocate for the First and Second Defendantyso holding brief for Mr. Omary Msemo learned Counsel for Plaintiffs. 50RT Op E.B. Ll^NDA O /JUDGE W07/202\^ 16 -X ■X DIVV