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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 169 OF 2023 (Arising from Commercial Case No. 180 of 2017) D.B SHAPRIYA & CO. LIMITED..............................................1ST APPLICANT MINESTONE MOTORS LIMITED............................................2ND APPLICANT DYNAMIC MOTORS LIMITED................................................3RD APPLICANT KISHOR DHANJI SHAPRIYA..................................................4TH APPLICANT AMISHI SHAPRIYA................................................................5TH APPLICANT VERSUS BARCLAYS BANK (T) LIMITED...........................................1ST RESPONDENT ABDALLAH MAKATTA T/A SENSITIVE AUCTION MART & BROKER.....................2ND RESPONDENT OPTATUS CHRISSANTU NDONDE.....................................3RD RESPONDENT KAMAKA CO. LIMITED.......................................................4TH RESPONDENT RULING Date of Last Order: 25.11.2024 Date of Ruling: 07.03.2025 AGATHO, J.: The present Application seeks an order to set aside a sale conducted on 3rd October 2023 with respect to landed properties known as Plot No. 27 and 28 Block A located at General Industrial Area, Makuburi Dar es Salaam. These properties were mortgaged to the first Respondent by the first Applicant and guaranteed by the second to fifth Applicants. The application is made under Rule 88(1) of Order XXI and Section 95 of the Civil Procedure Code [Cap 33 R.E. 2019]. 1 Other reliefs sought by the applicants are: - An order to invalidate any subsequent actions, registration or change of ownership made by the 4th Respondent after what the learned advocate termed as an “illegal sale” as well as any other relief which this Honorable Court may deem fit to grant. The applicants also pray that costs of this application be borne by the Respondents. The application is by way of chamber summons in support of which is a joint affidavit and supplementary joint affidavit of Kishor Dhanji Shapriya and Dipackumar Kotak, Principal officers of the applicants. On the other hand, the application is opposed by the 1st, 2nd and 4th respondents through their respective counter affidavits. Hearing of the application was conducted by written submissions. Parties were under representation of learned counsel. For the applicants was Mr. Roman Masumbuko. On the other side, for the 1st and 2nd respondents was Mr. Mpaya Kamara and for the 4th respondent was Mr. Bakari Juma. The grounds of contention contained in the Applicants’ affidavits are One, they had not been served with the attachment order. Two, they had not been served with the proclamation of sale. Three, the said public auction was not announced and conducted on the material date. Four, the 1st respondent conducted valuation of the landed properties but 2 without being appointed by the court. Five, the 2nd respondent did not conduct any valuation but it is the 1st respondent who used own valuer to devalue the landed properties. Six, the 4th respondent had taken over the landed properties without following court procedures. Background of the matter contains a history that, the 1st respondent had sued the applicants in Commercial Case No. 180 of 2017. Parties reached into an amicable settlement of the case. A consent decree was subsequently issued to that effect. Consequently, the decretal sum upon adjustments was executed before this Court. An attachment order in respect of the landed properties of the applicants was issued as well. On 21st July 2023, this Court issued an order for sale of the landed properties in a public auction. The 2nd respondent was appointed to conduct the auction. On 3rd October, 2023 the auction was conducted. The certificate of sale was issued on 12th October 2023. Before delving any further in determining this application, from the parties’ arguments, a significant argument has been probed by the first respondent that this kind of application is only tenable when the court has not declared the sale absolute and granted the purchaser the Certificate of Sale. 3 Elaborating, the 1st respondent stated that whenever the Court has issued a Certificate of Sale, the sale is said to be absolute and an application of this nature cannot be granted. In support, she cited the case of Gaimo Construction Company Limited vs. Macleod Electrical Contractor Limited and 2 others, Misc. Commercial Application No. 19991 of 2024 HC COMM, Arusha. The applicants responded to the above allegation through their rejoinder by challenging the absoluteness of the Sale in this case. The applicants submitted that since there was among other things, lack of confirmation of sale by the court and an illegal Certificate of Sale, then the sale cannot be held to be absolute. The applicants drew the attention of this court to the last proceedings prior to issuance of the Certificate of Sale by the Deputy Registrar of the Commercial Division which read as follows: - “Date: 19/07/2023 Coram: Hon. C.P. Mkeha, J Parties: Absent CC. E. Mkwizu Court: Upon filing of valuation reports in respect of the attached properties, let the following order be complied with. Order: 4 • Proclamation of sale be issued. • Sale not to be conducted below the estimated value without consent of the court” Adv. Roman Masumbuko went on to submit that there were no any other proceedings in the executing court following the order of 21st July 2023 and so this means that the sale was not confirmed by the Executing Court. Regrettably, the Deputy Registrar issued a Certificate of Sale without the executing court order confirming the sale. Having so recapped what was submitted by both parties with regard to absoluteness of the sale by auction conducted on 3rd October 2023, I find it fit to dwell on a single issue which is whether the sale of the properties subject of this application is absolute? The answer to this crucial question will enable final determination of the matter at hand. The learned counsel for the applicant has cited the case of Gaimo Construction Company Limited vs. Macleod Electrical Contractor Limited and 2 others Misc. Commercial Application No. 19991 of 2024 HC COMM, Arusha (Unreported) in support of an averment that where a certificate of sale is issued then the sale becomes absolute and therefore cannot be further challenged. Indeed, that is the spirit behind Order XXI Rule 90 (1) of the Civil Procedure Code [Cap 33 R.E. 2019] which is enacted in the following words: - 5 “90. (1) Where no application is made under Rule 87, Rule 88 or Rule 89, or where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute” The applicant has quoted the last order given by the court in this case which after issuing an order for proclamation of sale, explicitly instructed that the sale should not be conducted below the estimated value without consent of the court. However, contrary to that order, parties herein are in mutual agreement that the sale was conducted below the value in the valuation report. This can be readily seen on paragraph 4 (p) of the Reply submission by the respondent where the learned Counsel states that the inadequacy of price is not a ground for setting aside the auction. That only means that the respondents accepts that the property was sold below the value. Unlike in Gaimo’s case (supra) in this case, the valuation report submitted by the First Respondent indicated the amount of TZS 8,630,000,000/=. However, the properties were sold at TZS 6,040,000,000/= without any order of the court consenting the lower price of TZS 6,040,000,000/=. This was clearly wrong and made an important step of confirming the sale to have been skipped. 6 Effects of the sale not being confirmed through an order of the court are echoed in a recent CAT case of Hamisi Bushiri Pazi & Others vs Saul Henry Amon & Others (Civil Appeal No. 166 of 2019) [2022] TZCA 186 (13 April 2022) at page 26 where the court, when faced with a similar situation, quoted with approval the case of Balozi Abubakar Ibrahim & Another vs Ms. Benandys Ltd & Others (Civil Revision No. 6 of 2015) [2015] TZCA 5 (18 November 2015) in which the court stated:- "This is mainly because, the executing court shall only grant a Certificate of Sale under O. XX I R. 92 after the sale has become absolute. A sale becomes absolute after the executing court has made an order under r. 90(1) confirming the sale. Indeed, the last order in the record is the one made on 22nd May, 2015 issuing a proclamation for sale. That being the case, the sale has not been confirmed: See PETER ADAM MBOWETO V. ABDALLAH KULALA [1981] TLR. 335." In Hamisi’s case (supra) the court went on to elaborate that in the absence of an order confirming the sale, the Certificate of Sale issued will be illegal. With the above authority which automatically binds this court, and in absence of an order of confirmation of sale in place, especially after the 7 court had expressly required the parties to consult it in case of a need to sell the properties below the valuation price, the Certificate of sale issued in this case is declared illegal. In a similar vein the fourth respondent cannot be said to be a bonafide purchaser for value for reasons of the sale being absolute because, as held in Balozi Abubakari Ibrahim and Another vs MS Benandys Limited (supra) for the purchaser to be a bona fide purchaser there must be an order confirming the sale under O. XXI r. 90(i) of the Code. In the upshot, the application to set aside the sale is therefore allowed. Given the nature of the case, no order as to costs is given. It is so ordered DATED at DAR ES SALAAM this 7th March Day of March 2025. U. J. AGATHO JUDGE 07/03/2025 Court: Ruling delivered by Hon. Joyce Minde, Deputy Registrar, today, 7th March 2025 in the presence of the parties. 8 U. J. AGATHO JUDGE 07/03/2025 9