Construction Ruling edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO 1657 OF 2023 (Arising from Civil Execution No. 25 of 2020 and Land Case No. 17 of 2016) UK CONSTRUCTION & GENERAL SUPPLIES LTD …………..….. 1ST APPLICANT PILLY RAMADHANI SHENYE (Administratix of the Estates of the Late Miraji Seleman Kigera) ……………………..… 2ND APPLICANT MUGORE MIRAJI KIGERA ……………………….…………………. 3RD APPLICANT PILLY RAMADHANI SHENYE ……………...………….……..…..… 4TH APPLICANT UDAH MIRAJI KIGERA ………………………….……..…….…..…. 5TH APPLICANT VERSUS STANBIC BANK TANZANIA LIMITED ………………...……….. 1STRESPONDENT KASSANGA H. KASANGA T/A ROCK CITY TAKERS LTD …………………………………..…….. 2ND RESPONDENT MAJANI MASAGATI ……………………………………..………… 3RD RESPONDENT RULING 30th August, 2024 CHUMA, J. By this application, the applicants are seeking the indulgence of this court to inspect the Court Broker’s Report on material irregularity and set aside the sale held on 4th September, 2023 in Civil Execution No. 25 of 2020 which originated from Land Case No. 17 of 2016. From available records, I will briefly narrate the background of this matter. The applicants were Judgement Debtors in Land Case No. 17 of 2016 which ended with a Deed of Settlement for payment of TZS. 87,000,000/= being recorded 1 and adopted as a decree of the court in early October, 2019. It was further agreed in a deed of settlement that the applicants shall pay the 1st respondent, the decretal sum in installments which was supposed to end on January, 2021. The applicants never paid the decretal sum as agreed. The 1st respondent being the decree holder applied for execution by way of sale of plot No. 14 Block J Mukedo Street in Musoma Municipality (the suit house). The 2nd respondent was appointed to conduct the said sale and the 3rd respondent purchased the suit property in public auction at TZS. 149,000,000/=. By this application, the applicants challenge the sale by the 2nd respondent to the 3rd respondent for the reason that it is tainted with irregularities. The parties were ordered to argue the application by way of written submissions. Mr. Godfrey Basasingohe Learned advocate filed submissions for the applicants; the submission for the 1st and 2nd respondents was filed by Dr. George Mwaisondola Advocate; whereas Mr. James Njelwa Advocate filed a submission for the 3rd respondent. The rejoinder submissions for the applicants in reply to the submissions for the 1st and 2nd respondents alarmed my attention on the late filing of submissions. I will first address this issue. It was submitted by Mr. Basasingohe that the filing of the reply submission by the 1st and 2 2nd Respondents was inexplicably out of time, contrary to the court order dated 6th May, 2024. The filing schedule and timeline were to file submission in chief on 20th May, 2024, reply submission on 3rd June, 2024, and Rejoinder submission on 10th June, 2024. That, the counsel for the 1st and 2nd Respondents exhibited a blatant disregard for the court's order by filing the reply submission on 7th June, 2024 which is four days beyond the prescribed period, and without seeking prior leave of the court. Furthermore, the service of the submission was effected on the Applicant’s counsel on 11th June, 2024, which was one day past the deadline for filing the rejoinder submission. He submitted further that, in the case of Kiputo S/o Ahmad Vs. Mariki S/o Mpenda and 3 others, Criminal Appeal No 5 of 2021 (unreported) on page 5, last paragraph and page 6 last paragraph, it was held that; “It is a trite law that failure to file written submission on dates scheduled by the court without justifiable reasons is as good as non-appearance on the hearing date.” 3 Also, in the case of Winfrida Lazaro Zabron Vs. Ryaga Yuda Ryaga and 6 others, Civil Case No. 30 of 2022 (unreported), on pages 4 and 5 it was observed and held that; “…The foregoing reality notwithstanding, the counsel went ahead and filed the envisaged submission in chief without first seeking to enlarge the time given to him. In other words, he subscribe to the fact that what he purports to condone is non-existent. It is not clear why, instead of filing the purported submissions, the Counsel did not file an application for extension of time…After having elucidated the 1st defendant’s tardiness, as I have done in details above; the court in inclined to briefly state the consequence thereof. In the interest of brevity and coherence, I will not try to reinvent the wheel. Recurrently, courts hold that by neglect or failure to file his written submissions, the party volunteers not to prosecute own case.” Hence, the counsel for the applicant urged this court to disregard the submissions of the 1st and 2nd respondents which were filed out of time. Having gone through rejoinder submissions by the applicants, I visited the judiciary online filling system to see the dates when the submissions were filed online. It was revealed that; the submissions in 4 chief were filed on 21st May, 2024; both reply submissions were filed on 3rd June 2024; the rejoinder submissions in reply to the 3rd respondent’s submission were filed on 10th June 2024 whereas the rejoinder in reply to the submissions by 1st and 2nd respondents were filed on 12th June 2024. It was correctly submitted by Mr. Basasingohe that this court on the 6th day of May 2024 ordered submission in chief to be filed on the 20th of May 2024, reply submissions of all respondents to be filed on the 3rd of June, 2024 and Rejoinder submission to be filed on 10th June, 2024. Evidently, according to the judiciary online system, the submissions that were filed out of time without leave of the court are submissions in chief and rejoinder submissions in reply to the submissions by the 1st and 2nd respondents. The stamp of the court in the submissions in chief indicates the same to be filed on 20.5.2024. Looking at the Exchequer Receipt, payment was effected on 22.5.2024. I failed to understand why the document was received by a court clerk and stamped before being filed online and court fees being paid. Nevertheless, it is the law under section 21 (1) of the Judicature and Application of Laws (Electronic Filing) Rules of 2018 that, documents are considered to have been filed in court on the date the same is submitted online see the case of Cata Mining 5 Ltd Vs. Obetho Joseph Werema, Land appeal No. 124 of 2021 and Mohamed Shashil Vs. National Microfinance Bank Ltd, Labour Revision No. 106 of 2020, (both unreported). Indeed, no court of law may overlook noncompliance with its order. It has been held countless times that court orders must be respected. See the cases of Laemthong Rice Co. Ltd Vs. Principal Secretary Ministry of Finance Zanzibar, Civil Appeal No. 259 of 2019; and Mary Joseph Vs. Rachel Zephania, Misc. Land Application No. 37 of 2020; Micky Gilead Ndetura (a minor suing through Gilead Ndetura Lembai a next friend) Vs. Exim Bank (T) Ltd, Commercial Case No. 4 of 2014; and Tanzania Breweries Ltd Vs. Edson Dhobe and 19 others, Misc. Civil Application No. 96 of 2000 (all unreported). It was also correctly argued by Mr. Basasingohe that, failure to file written submissions on time as ordered tantamount to non-appearance. See the case of Kiputo S/o Ahmad Vs. Mariki S/o Mpenda and 3 others; Winfrida Lazaro Zabron Vs. Ryaga Yuda Ryaga (both supra) and Godfrey Kimbe Vs. Peter Ngonyani, Civil Appeal No. 41 of 2014 (unreported). Therefore; because the applicant delayed filing their submissions in chief in total disregard of the court order they have failed to prosecute their application. 6 On concluding whether to dismiss this application for want of prosecution or nonappearance, I have arrived at the law governing affidavits. According to Order XLIII Rule 2 of the Civil Procedure Code Cap 33 R.E 2019 (the Code); every application as the instant one is always made by Chamber summons and supported with an affidavit. In the famous case of Uganda Vs. Commissioner of Prisons, Ex parte Matovu [1966]1 EA 514 it was held inter alia that an affidavit for use in court, is a substitute for oral evidence. Also, OTTU Vs. AG and others, Misc. Civil Application No. 15 of 1997(unreported) the term affidavit was defined by Katiti J (as he then was) in the following words; “The expression, “affidavit”, unfortunately despite it being a lawyer’s everyday tool, is not defined by any statute I could lay my hand on. But the lexicon meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath, or affirmation before an authorized magistrate or officer”. Submissions in law are not a substitute for oral evidence they are meant to elaborate factual issues already adduced before the court by either oral or written evidence and the law. The court of appeal in the case of Dr. A Nkini & Associates Limited Vs. National Housing 7 Corporation, Civil Appeal No. 72 of 2015 (unreported) stated the following regarding submissions on page 20; “We need to restate the fact that submissions by an advocate are not evidence as we have decided in Republic vs. Donatus Dominic @ Ishengoma & 6 Others, Criminal Appeal No. 262 of 2018 and Morandi Rutakyamirwa vs. Petro Joseph [1990] T.L.R 49]. Submissions are arguments based on the available evidence and the governing law” As noted by my brother Hon. Mlyambina J. in the case of Atuwonekye Mwenda Vs. Herzon Mangula, Misc. Land Application No. 5 of 2020 (unreported); the practice of the court has been mainly to dismiss the applications for want of prosecution when the applicant has failed to file a written submission as ordered by the court. On page 21 of the judgment he went on to say; “I don't condone the practice of Advocates acting negligently. The point that I make, as I do distinguish the position in Hashim Madongo's case, is that; in the application made of chamber summons, the matter should not be dismissed for want of prosecution or non-appearance of the Applicant and/ or his Advocate while there is affidavit evidence in record. 8 I further note that, once a Party engages an Advocate, he thinks that his Advocate will appear when the case is taken up for hearing. But when the Advocate fails to appear, normally, a Party should not suffer on account of default or non-appearance of the Advocate. The Court should proceed to determine the application based on the available affidavit evidence.” (emphasis added) I subscribe to this reasoning. I will therefore proceed to determine the application on merit by considering the affidavits supporting the application and disregarding the submissions by the applicant which were filed out of time. In this application, as I have said in my ruling on preliminary objections dated 28.3.2024 is based on Order XXI Rule 88(1) of the Code. The applicants want this court to inspect the court broker’s report on material irregularity and set aside the sale conducted by the 2nd respondent on Civil Execution No. 25 of 2020. According to the affidavit of Godfrey Mjuni Martin Basasingohe, the execution is being faulted because the suit house was sold under the market value and did not consider the highest bidder; that the sale was conducted before the time speculated in the notice and proclamation for sale elapsed; the applicants were not served with a valid warrant of attachment, proclamation of sale 9 or notice by the 2nd respondent. The affidavit of Ibrahim Abdallah Mtonyi also insisted that he was the highest bidder at TZS. 200,000,000/= but the 2nd respondent sold the suit house to the 3rd respondent at TZS. 149,000,000/=. The application was contested by the affidavit of George Mwaisondola for the 1st and 2nd respondents that the auction was lawful and preceded by a valuation report. The auction followed all procedures required under the law and the amount that was obtained was the highest bit during the auction. In his submission, Dr. Mwaisondola was of the view that the root of conflict between the parties is a loan contract. The suit house was mortgaged by the late Miraji Selemani Kigera at the 1st respondent’s bank, that is the settled law that if you borrow the money you must pay, I was referred to the case of the Private Agricultural Sector Support Trust & another Vs. Kilimanjaro Cooperative Bank Ltd, Consolidated Civil Appeal No. 171 & 172 of 2019; and SME Impact Fund CV & 2 others Vs. Agroserve Company Ltd, Civil Appeal No. 9 of 2018 (both unreported). He submitted further that, the valuation report dated 18.8.2022 was conducted for sale. The allegations that there was a higher bidder than the 3rd respondent are baseless as the bit by the latter was higher at the 10 auction. That, there were several attempts of selling the suit house and all sales were proceeded by correct proclamation order of the court. Lastly, by annextures ILC1 (copy of newspaper) attached to the affidavit, the applicants admitted to having been notified. Likewise, the 3rd respondent contested the application by filing a counter affidavit. Mr. Njelwa for the 3rd respondent also submitted that annextures MM3 and MM4 appended to the 3rd respondent’s counter affidavit indicate that auctioning procedures were complied with. That for the sale to be rendered irregular there must be proof of injustice done to the judgment debtors. That, in the case of National Bank of Commerce Limited Vs. Allan Reuben Mollel t/a First World Investment Auctioneers Court Brokers and another, Misc. Commercial Case No. 2 of 2023 it was held inter alia that mere inadequacy of price is not in itself a material irregularity that can lead to setting aside auction. that according to the proclamation of sale (annextures MM2 to the 3rd respondent’s counter-affidavit) indicates the market value of the suit premises to be TZS. 149,000,000/= therefore the difference is only TZS. 9,000,000/= from the price the house was sold. He submitted further that, the fact that there was the highest bidder apart from the 3rd respondent was misconceived because according to the 11 auction report, the 3rd respondent was the only highest bidder. Regarding the proclamation of sale, he submitted that the point on the discrepancy figures in the proclamation of sale did not feature in the Applicant’s affidavit therefore it should be ignored. On the allegation that the Judgment Debtor was not notified he submitted that it is misconceived. That publication was done at Raia Mwema Newspaper as seen on the Applicants’ affidavit attached as Annexture- ILC 1. Further, notice and Proclamation for sale were also affixed on a conspicuous place at the suit premises and witnessed by the street chairman following avoidance of service by the 3rd Applicant. That the court broker’s affidavit and proclamation for sale to that effect were collectively attached as Annexure MM2 to the 3rd respondent’s counter affidavit. That, under Order XXI, Rule 88(1) of the Code setting aside sale by auction is limited only to where it can be proved that there was irregularity or fraud in publishing or conducting the sale and further that the applicant must also prove to the satisfaction of the court that he has suffered substantial injury. Further reference was made to the case of OTTU on Behalf of P.L. Asenga and 109 Others Vs. AMI (Tanzania) Limited, Civil Appeal No. 44 of 2012 (Unreported). 12 As I have noted herein, both rejoinder submissions will not be considered by this court. Having keenly considered the submissions for both parties I will consider the facts stated in the affidavit if they carry merit to the extent of setting aside the auction. The allegations that the auction was conducted earlier than the date mentioned in the notice should not detain me. It is undisputed that the sale was conducted on 4.9.2023. A copy of Raia Mwema newspaper attached by the applicant is unreadable. Fortunately, the copy appendant to the 3rd respondent’s counter-affidavit shows that the date of the auction is 4.9.2023. Likewise, annexure ILC1 attached to the affidavit shows the exact date of the public auction. This ground is therefore misconceived. I will now determine the issue regarding the price on which the suit house was sold. According to paragraph 7 of the affidavit, the value of the suit property was TZS. 212,000,000/= as per valuation dated 6.10.2023. According to annexure GLC-A attached to the 1st and 2nd respondent’s affidavit, the valuation dated 18.8.2022 shows the market value of the suit property to be TZS. 149,000,000/= which means within 14 months the difference in the value of the suit house is 127,800,000/=. Nevertheless, no law requires the valuation of the suit property to be 13 conducted before the sale of the attached property in execution of a court decree what is important is considered is the market price at the auction. I will therefore consider the last contention that there was a highest bidder than the 3rd respondent. The two affidavits supporting the application are to the effect that, one Ibrahim Abdallah Mtonyi was the highest bidder at TZS. 200,000,000/= but the 2nd respondent sold the suit house to the 3rd respondent at TZS. 140,000,000/=. According to paragraphs 6 and 7 of the 3rd respondent’s counter-affidavit, he was the only highest bidder at TZS. 140,000,000/=. As correctly argued for the 3rd respondent, according to the auction report (muhtasri wa mnada) there were three bidders at the auction; the 3rd respondent at TZS. 140,000,000/=; one Wambura Machera at TZS. 135,000,000/= and Mussa Juma Kamage at TZS. 120,000,000/=. This report was witnessed by three witnesses and stamped by the Ward Executive Officer. The claims by Ibrahim Abdallah Mtonyi are therefore either an afterthought or lack proof. If there is any foul prayer or fraud on the part of the 2nd respondent, the witnesses of the report, and the Ward Executive Officer, the law requires that fact to be proved on a higher standard than the balance of probabilities. I refer the cases of Gabriel Mathias Michael and 14 another Vs. Halima Feruzi and 2 others, Civil Appeal No. 28 of 2020, City Coffee Ltd Vs. the Registered trustee of Ilolo Coffee Group, Civil Appeal No. 94 of 2018, Dominicus Zimanimoto Makukula (administrator of the estates of the late Dommy Dominicus Makukula) Vs. Dominica Dominicus Makukula and 3 others, Civil Appeal No. 359 of 2020 (all unreported). Concerning the allegation that the applicants were not served with a valid warrant of attachment, proclamation of sale, or notice by the 2nd respondent as per paragraph four (4) of the applicants’ affidavit, it was the submissions by the respondents’ counsel that they were properly served. Regarding the notice of attachment, I have read an affidavit by Silas Lucas Isangi dated 7.4.2022 it is to the effect that the judgment debtor refused service of notice to settle the decretal sum therefore the same was affixed on conspicuous spaces of the house. The street chairman also affirmed this information by signing the notice that it was affixed. Regarding the warrant of attachment, it was issued by this court on 23.2.2022 against the suit house (annexure GLC-D to the counter affidavit of the 1st and 2nd respondents). The very points are bound to fail. 15 Regarding the proclamation of sale, the applicants have claimed that they were not served with a valid proclamation of sale and only learned about the Proclamation for sale through the Ward Executive Officer of Kitaji. The evidence provided by the applicant (Annexture ILC2) shows a Proclamation for sale dated 2nd November, 2022 with an amount of TZS. 149,000,000. However, this same document also reflects a different amount of TZS. 87,000,000, after the date and signature of the Deputy Registrar. And its suit No. is Land Case No. 17 of 2016 decided by the High Court, Mwanza." The 1st and 2nd respondents have attached Exhibit GLC-B, showing a Proclamation for sale dated 2nd November, 2022 with an amount of TZS. 87,000,000 bearing Suit No. CMA/Z/NYAM/273/2020 decided by the CMA, Mwanza. "This document does not mention TZS. 149,000,000. The 3rd respondent's counter-affidavit (Annexture MM-2) provides a Proclamation dated 2nd August, 2023 with an amount of TZS. 149,000,000/= with the same document also showing TZS. 149,000,000/= after the date and signature. And its suit No. is Land Case No. 17 of 2016 decided by the High Court, Mwanza." The existence of multiple proclamations with different amounts, dates, and numbers of the suit for the same property (Plot No. 14, Block J, Mukendo) raises significant concerns. These discrepancies suggest 16 potential errors undermining the credibility of the service process conducted by the 2nd Respondent. Upon scrutiny of the affidavits and attached proclamations for sale provided by the applicant and the respondents, it is evident that significant inconsistencies exist within these documents. These inconsistencies are critical in determining the validity of the proclamation for sale under Order XXI, Rule 65 of the Civil Procedure Code, Cap 33, R.E. 2019. The rule mandates accuracy and consistency in these details to ensure transparency and fairness in the execution process. The Counsel for the 1st and 2nd Respondents rely heavily on Exhibit GLC-B, which references "Suit No. CMA/Z/NYAM/273/2020 decided by the CMA, Mwanza." This reliance is misplaced as it introduces a different suit number and type from the applicant's annexture ILC2 and the 3rd respondent's annexture MM-2. This discrepancy alone undermines their claim of procedural adherence. The respondents also referred this court to the cases of The Private Agricultural Sector Support Trust & Another and SME Impact Fund CV & 2 Others (Supra), to argue that loan defaults must be repaid and technicalities should not be used to evade debt obligations. However, these cases are distinguishable from the instant case because the main concern here is not the applicant's obligation to repay the loan 17 but whether the legal procedures for the sale of the property were adhered to. In the above-cited case of The Private Agricultural Sector Support Trust & Another (supra), the court emphasized payment of the loan, but it did not address issues of document validity and procedural compliance, which are central to the present case. Similarly, in SME Impact Fund CV & 2 Others (supra) the court cautioned against using legal technicalities to evade loan repayment, but the facts of that case involved the respondent's deliberate evasion of debt through inaction, not procedural irregularities in the execution process. On the other hand, the 3rd Respondent alleges that the sale was conducted legally and that the applicant's claims of irregularities are baseless. They invited this court to the case of National Bank of Commerce Limited (supra), which holds that mere inadequacy of price is not a material irregularity unless it is proven that the inadequacy was caused by the irregularity or fraud. They further cited the case of OTTU on Behalf of P.L. Asenga and 109 Others (supra), which provides the conditions under which a sale can be set aside. However, these cases are distinguishable because the primary issue here is not merely the inadequacy of price but the validity and procedural correctness of the proclamations of sale. The inconsistencies in the 18 proclamations, including different amounts and dates and suit numbers, amount to potential procedural irregularities that go beyond mere inadequacy of price. Due to the material inconsistencies in the amounts, dates, and suit numbers specified in the proclamations for sale, the proclamation does not comply with the procedural requirements set out under Rule 65 of the Civil Procedure Code, Cap 33, R.E. 2019. These inconsistencies render the proclamation invalid, irrespective of whether the applicant was properly served. The reliance of the 1st and 2nd respondents on exhibit GLC-B, which has a different suit number and type, further undermines their claim of procedural adherence. The court, therefore, finds the sale conducted by the 2nd respondent to be irregular and invalid contrary to what was submitted by the respondent's learned counsel. The execution process conducted by the 2nd Respondent resulting in the sale of Plot No. 14, Block J, Mukendo, is declared null and void due to the material irregularities herein above pointed. In premises, I proceed to set it aside. The application is then allowed to the extent herein stated. Owing to the circumstances of this matter parties should shoulder their own cost. It is so ordered. 19 DATED at MWANZA this 30th day of August 2024. W.M. CHUMA JUDGE 20 Ruling delivered virtually in attendance of Mr Godfrey Martin Learned counsel for the applicants, Dr. Mwaisondola Learned counsel for the first and second respondents also holds brief for Mr. James Njelwa for the 3rd respondent this 30th day of August 2024. C. KISONGO DEPUTY REGISTRAR 21