Scanned 93 2022

IN THE HIGH COURT OF TANZANIA

LAND DIVISION (AT DAR ES SALAAM) LAND CASE NO. 93 OF 2022 DEOGRATIAS HENRY RUTABANA.............................................. PLAINTIFF

VERSUS

MWANGA HAKIKA MICROFINANCE BANK LIMITED (formerly known as EFC MICROFINANCE BANK LIMITED) ..1st DEFENDANT COMMISSIONER FOR LANDS.............................................2nd DEFENDANT REGISTRAR OF TITLES........................................................ 3rd DEFENDANT THE HONOURABLE ATTORNEY GENERAL..............................4th DEFENDANT NUTMEG AUCTIONEER & MANAGERS CO. LIMITED.............. 5th DEFENDANT JOHNSON ZUBERI ZIMBO.................................................... 6th DEFENDANT

JUDGEMENT 18/9/2024 & 30/9/2024 A.MSAFIRI,J This is a judgment on the suit which was instituted in the court by the herein above plaintiff against the defendants seeking for a declaratory order that the purported sale of his property house built on Plot No. 402 Block "E", Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059, Land Office No. 528058(herein the disputed property) by way of public auction which was purported to have taken place on 04/4/2018 is illegal, null and void. AIL 1 The plaintiff prays for Judgment and Decree against the defendants jointly and severally as follows:- 1. Declaratory judgment and decree that, the 1st defendant had no legal power to order auction over Plot No. 402 Block "E", Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059, hence illegal.

2. Declaratory judgment and decree that, the sale agreement and transfer agreement between the 1st, 5th and 6th defendants in respect of Plot No. 402 Block "E" Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059 was illegal and unlawful ab initio and setting aside the said sale.

3. Declaratory judgment and decree that, any authorization of transfer/ disposition by the Office of the 2nd and 3rd defendants in respect of Plot No. 402 Block "E" Mbezi Beach comprised under Certificate Title No. 139059 was unlawful and illegal.

4. That, this Honourable court be pleased to order the cancelation of the transfer/ disposition over Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059 from the title name of DEOGRATIAS HENRY RUTABANA to JOHNSON ZUBERI ZIMBO.

5. Declaratory judgment and decree that, Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059 is a lawful property of DEOGRATIAS HENRY RUTABANA.

6. Judgment and decree that, the 1st, 5th and 6th defendants have no any legal authority to evict any person who resides in Plot No.402 2 Block "E" Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059.

7. The Honourable court be pleased to make an order of permanent injunction against the 3rd defendant, his agents, servants and any other person acting under his authorization from evicting and disturbing any person who resides in Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised under Certificate Title No. 139059.

8. Specific damages to the tune of Tanzanian Shillings 450,000,000/= and General damages to the tune of Tanzanian Shillings 300,000,000/= for the unlawful sale of the suit property that made the plaintiff suffer serious mental anguish, shock and nervous disturbances and deprivation of the plaintiffs of their property, as may be assessed by this Honourable court.

9. That, the 1st and 5th defendants be declared to have breached the duty of care towards plaintiff by failing to serve to the plaintiff any "Statutory Notice" on the day of default to amount due.

10. Punitive damages.

11. Pay costs (sic) of this suit.

12. Any other relief this court shall deem fit to grant. The defendants filed their written statements of defence in which they vehemently denied each and every allegation by the plaintiff and put him to strict proof. They prayed for the dismissal of the suit in entirety with costs. -At/ L 3 The 6th defendant, Johnson Zuberi Zimbo along his written statement of defence, he also filed a counterclaim against the plaintiff claiming that he is the legal owner of Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City which is comprised under Certificate Title No. 139059 which he purchased at a public auction on 04th April 2018. He prayed for the judgment and decree against the plaintiff as follows:- i) Payment of the sum of Tanzanian Shillings Fifty Seven Million Six Hundred Thousand (Tshs 57,000,000) being loss of expected rent for two houses which are situated in Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised in Certificate of Title No. 139059 for the years 2019, 2020, 2021 and 2022. ii) Loss of expected rent for two house situated in Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised in Certificate of Title No. 139059 from the date of filing of this suit to the date of judgment. iii) Interest at bank rate from the date of filing of this suit to the date of judgment. iv) Interest on the decretal sum at court rate from the date

of judgment to the date of payment in full. v) An order of eviction of the plaintiff from Plot No.402 Block "E" Mbezi Beach within Dar es Salaam City comprised in Certificate of Title No. 139059. vi) Costs of this suit. vii) Any other reliefs that this Honourable court may deem just and to grant. 4 At the hearing, the plaintiff was represented by Mr Martin Frank, and Ms. Hawa Turusia, learned Advocates, the 1st and 5th defendants were represented by Mr. Stephan Mayombo, learned Advocate, the 2nd,3rd,4th defendants were represented by Mr Gaius Lupogo, State Attorney and the 6th defendant was represented by Mr. Bernard Ngatunga, learned Advocate. Before the trial, four issues were framed by the court which are:- 1. Whether the plaintiff defaulted on the repayment of the loan.

2. Whether the sate of Plot No. 402 Block "E" Mbezi Beach within Dar es Salaam (herein as suit property) by public auction on 04h April 2018 to the &h defendant was lawful.

3. Whether the transfer of right of occupancy in respect of suit property by the 2'd and 3rd defendants in favour of the 0h defendant was legal.

4. If issue No. 3 is answered in affirmative, then whether the plaintiff has a right to challenge the sale of suit property after the transfer of the same to the 3h defendant.

5. To what reliefs are the parties entitled to. To establish his claims, the plaintiff was a sole witness in his own case and he testified as PW1. He said that on 22/9/2017 he obtained a house improvement loan facility from the 1st defendant amounting to TZS 80 million and he pledged his house with Title No. 139059 Plot No. 402 Block 5 Ez located at Mbezi Beach area, Kinondoni Municipality as security (the suit property). That they enter a loan agreement with the 1st defendant that the plaintiff was to repay the loan within five years i.e. 60 months, forTZS 2,910,281.80/= monthly repayment. He tendered a photocopy of a loan facility agreement which was admitted in court as exhibit Pl. PW1 stated that after entering a loan contract, the Bank (1st defendant) released money on 26/09/2017 through my account. Whereby TZS 75,640,000/= was deposited in his into account which is at EFC Microfinance Bank. He said further said that EFC Microfinance Bank have merged to Mwanga Hakika Bank as of now, EFC does not exist. He said that when the money was deposited in his account, PW1 discovered that the amount money was not as they agreed on loan contract. That after that, on the first monthly repayment, he discovered that the Bank has charged him TZS. 2,960,000/=. That on the second repayment, the amount charged was TZS 2,910,281.80/=. That, after the third repayment, the plaintiff PW1

received a default notice from the 1st defendant demanding him to pay the whole debt plus interests of 60 6 exhibit P4 neither his name nor the suit property was in the said newspaper advert. That, after that, he made a follow up on the auction, and registered a caveat to put a stop on transfer. That the caveat was registered on 27/04/2018 at the Ministry for Lands, Land Registry. He produced the said caveat which was admitted as Exhibit P5. PW1 said that he followed up to the District Commissioner Office to check whether the auction was conducted by the said office's permit, that he was told that there was no such permit. That after that he decided to institute a suit at the District Land and Housing Tribunal of Kinondoni at Mwananyamala (DLHT). That at DLHT, EFC (the 1st defendant) raised an objection that the Tribunal had no jurisdiction to entertain the suit and the preliminary objection was sustained and it was directed that the matter be instituted at this court. On their side the 1st and 5th defendants also brought their witnesses whose name was Fadhili Kobas Katule who testified as DW1. He said that he know Deogratias Henry Rutabana, who is the plaintiff and who was their client and that was granted a loan when the Bank was called EFC that the plaintiff was extended a loan facility of TZS. 80 million. The loan was for 60 months duration, \i m • 8 months and all other

expenses involved, within 14 days. He produced the said Notice which was a photocopy which was admitted as Exhibit P2. PW1 said that the Notice of default bare dates which are prior to the loan contract between the plaintiff and the 1st defendant. That he took the loan on 22/09/2017, the notice was written on 17/01/2017, and the reminder of payment was of 03/01/2017. PW1 said further that after two months, the caretaker of the collateral called him and told him that there was an auction where the collateral was sold. That there was no any statutory notice from the 1st defendant (60 days' notice) and no notice from the 5th defendant (14 days' notice). PW1 stated that he decided to go to the Bank, and asked them the proof of an auction and they gave him the Auction Report, and certificate of sale. He produced the said Certificate of Sale which was admitted as Exhibit P3. PW1 testified that he had discovered that the statement that the auction was advertised in Mtanzania Newspaper of 13/01/2018 was not true and that the Newspaper exists but the advertisement for auction does not feature in the said newspaper. He produced Mtanzania Newspaper of 23/01/2018 which was admitted in court as Exhibit.P4. He said that in 7 He identified an offer for a term loan to prove that the Bank extended the said loan. The offer was admitted in court as exhibit Pl. PW1 said that as per the loan

agreement, the interest was 36% per year. The security for loan was the suit property and that the agreement was signed on 22/09/2017. The witness testified further that after getting the loan, the plaintiff defaulted in repayment. He did not repay on time so the Bank issued the plaintiff with 14 days Demand Notice. He identified the said Demand Notice which has already been admitted in court as Exhibit P2. He said that the Notice was received by the plaintiff on 19/01/2018 but still the plaintiff failed to pay the loan. That the Bank issued another Demand Notice to him which was 60 days Demand Notice. That the plaintiff was supposed to pay the loan within 60 days and on default, the Bank will dispose of the security for loan recovery. The witness tendered the said Demand Notice which was admitted as Exhibit DI. DW1 said that the Notice exhibit DI was issued on 01/02/2018, to Deogratias Henry Rutabana reminding him of loan repayment within two months (60 days). The principal amount of the loan was TZS 79,489,718.02, plus the interest which was TZS. 89,022,238.43. J\(,lI. 9 The witness said that the plaintiff refused to receive the Notice Exhibit DI hence the Bank took the Notice to Mbezi Street Government, where it was received by the executive officer of the said street on 01/02/2018. That after that, the Executive officer was supposed to search for Rutabana and issued/served

him with a Notice. It was the Executive officer who earlier introduced Rutabana to the Bank. That Rutabana still defaulted to pay the amount until the 60 days expired and after expiry of 60 days, the Bank proceed on auction process. DW1 said that he know Nutmeg Auctioneers (the 5th defendant) who is the agent of the Bank appointed to conduct auctions on mortgages. That the Bank assigned the 5th defendant to conduct the auction by selling the house of the plaintiff, for recovery of the loan of the Bank. That the 5th defendant followed the proper procedures that first; the suit property was advertised in Mtanzania newspaper. That after issuing the advertisement in newspaper, the plaintiff did not pay any amount or deposit any loan amount in a Bank and hence, the Bank through the auctioneer continued with the auction. DW1 said that the auction was done on 04/04/2018 and Johnson Zuberi Zimbo who is the 6th defendant was the highest bidder, and he io the suit property. The witness produced a photocopy of the certificate of sale which was admitted as Exhibit.D2. That the certificate of sale was issued by the 5th defendant and it was issued to Johnson Zuberi Zimbo (the 6th defendant) for the purchase of the suit property. That the purchaser paid the purchase price through the 1st defendant account at BOA Bank. He produced the bank's statement of BOA Bank which was admitted as Exhibit

D3. The witness said that the exhibit D3 shows that on 04/04/2018, Johnson Zimbo, deposited TZS 37.5 million at BOA Bank, on 19/04/2018, Johnson Zimbo deposited TZS 41 million at BOA Bank and on 23/04/2018, Johnson Zimbo deposited TZS 36 million and 35.5 million. He concluded that according to the evidence, the plaintiff defaulted to pay the loan despite being issued with default Notice. In cross examination, the witness was led to tender a letter which was issued by the Street Executive officer of Dovya Street where the plaintiff resides. He said that the Notice of default was served to Mbezi Street instead of Dovya Street where the plaintiff resides because the suit property is located at Mbezi Street. Afl I. n DW2 was the 6th defendant Johnson Zuberi Zimbo. He adduced his evidence and said that he knows the suit property and that he owns it. He said that he got the said property by buying it from an auction which was conducted on 04/4/2018. The auction was done by Nutmeg Auctioneers (5th defendant) authorised by EFC Bank. He said that he got information about the auction by seeing an advert from Mtanzania Newspaper dated 17/3/2018. The newspaper was admitted as Exhibit D5. He said that in the said Mtanzania newspaper, he saw an advertisement whereby at page 12 there was description of the suit property and the name of the owner Deogratias Henry Rutabana. The suit property

was described as Plot No. 402 Mbezi Kinondoni Area. The advertisement was issued by EFC Bank. That after seeing the advertisement, he followed up at EFC Bank and the Auctioneer took him to see one house which was marked on the fence by a red paint. It was an advertisement for sale. That he inspected several houses and choose to buy the suit property. That he went to see the area Street Government officers. DW2 said that the Auction was conducted on 04/4/2018 and it took place at the suit property. That he purchased the suit property and was issued A 12 with the Title Deed. He produced the copy of the said Title on reason that the original Title Deed is mortgaged to KCB Bank as security. He said that he processed transfer of occupancy and now he is the new owner. He produced a copy of the Certificate of Title which was admitted as Exhibit D6. DW2 said further that he purchased the suit property at the price of TZS 150 million and was issued with a Certificate of Sale which he identifies as exhibit D2. Also the witness produced a document about the auction which the court admitted as exhibit D7. DW2 said he paid 25% of the purchase price on the date of auction i.e. TZS. 37.5 million on 04/4/2018 and paid the rest of the purchase price by depositing on the EFC account at BOA Bank. That the money was paid in four instalments and after the purchase the suit property was handed

over to him. That, later the plaintiff filed a suit in the DLHT instructing the tenants to vacate the premises while knowing that he is not the owner of the house. That when DW2 travelled outside the country, the plaintiff forcefully evicted the tenants from the suit premises and put his tenants who have been paying him rent for about five years now. Jm I 13 DW2 said that as of now, he is not getting anything from the suit houses while the plaintiff has collected a total of TZS 108 Million for five years while knowing that the house is not his. He prayed to be paid all cost of all the cases which the plaintiff has instituted against him and also urged the court to order eviction of the plaintiff from the suit premises as he is not the lawful owner of the same. He also prayed for the court to grant his prayers in a counterclaim. Waziri Masoudi Mganga was a witness for 2nd,3rd and 4th defendants. He testified as DW3 and stated that, he works at the Office of the Registrar of Titles, Ministry for Lands. That according to his duties, one of the transactions he did was processing the documents on Plot No. 402 Block E Mbezi being registration of the mortgage of right of occupancy, registration of Transfer under Power of Sale, and registration of filing of Caveat. That, according to the records of the Registrar of Titles, the last transaction on Plot No. 402 is on registration of

mortgage of right of occupancy whereby the said Mortgage was of the registered owner one Johnson Zuberi Zimbo. /w I I 14 DW3 said that there was a previous registered owner who according to the records, his name is Deogratias Rutabana. That Johnson Zuberi Zimbo was registered owner after the Office of Registrar of Titles received the transfer of ownership by Power of Sale after the previous owner who has mortgaged the Title to default in repayment whereby the plot was sold by auction. That the office of Registrar of Titles received the request of transfer of ownership, and after that the office issued a 30 days' Notice to the previous owner of the Plot, informing him about the intention of the Registrar to transfer ownership and ask the previous owner to bring an order of the High Court to object the Registrar to transfer the ownership. After the expiry of 30 days, the office of Registrar did not receive any objection or order hence it continued with the transfer of ownership of the suit plot. He prayed to produce the two Notices the first one is a Notice of Transfer by sale, the second one is Notice of Caveat and a dispatch which shows that the two Notices were sent to the plaintiff by Post. The three documents were admitted collectively as Exhibit D8 (a,b,c). DW3 testified further that after notifying the plaintiff, the office of Registrar of Titles waited for 30 days but did

not receive any order or / 15 objection from the plaintiff hence the office proceeded to transfer the ownership and the caveat which has been registered was revoked. He said that a copy of Post Register Book of 13/07/2018 shows a list of letters which have been posted at the post box of an individual and that according to Exhibit D8 (a) and D8 (b), the plaintiff is identified in the documents as Deogratias Heny Rutabana with P.O Box 8969 DSM and the letters (Notice) were sent to him. That, according to the Exhibit D8 (a -c), the procedure of transfer of title/ownership was done according to the law and the procedure and he pray to the court to acknowledge Johnson Zuberi Zimbo as the lawful owner of suit property who has been registered by the registrar of titles. The parties through their counsels filed their final submissions which the court has also considered in determining this matter. Having gone briefly through the evidence, I will now go to the determination of the issues in dispute. The first issue is whether the plaintiff defaulted on the repayment of the loan. It is not in dispute that the plaintiff requested and obtained a loan facility from the 1st defendant. Exhibit Pl is an offer for a term loan issued to the plaintiff by the 1st defendants. The offer shows that TZS 80,000,000/= j 16 was availed to the borrower Deogratias Henry Rutabana for a period of 60 months

with an interest of 36% per annum and the loan is payable by instalments. The security for the loan was the suit property. The parties signed the Letter of Offer whereby Deogratias Henry Rutabana signed on 22/9/2017 and on the bank side, it was signed by one Fadhili Katule on the same date 22/9/2017. In his evidence, the plaintiff said that he was not availed with the agreed TZS 80 million but was given TZS 75,640,000/= which was deposited in his account at EFC Bank on 26/9/2017. That he followed up with the Bank Officer on the amount but was told to wait while they are checking up on the matter. The plaintiff said further that when it came to first monthly repayment, he discovered that the Bank has charged him TZS 2,960,000/= while the agreement was TZS 2,910,281.80 monthly repayment. That the second repayment was the agreed amount which is TZS 2,910,281.80. That after the third repayment, the Bank served him with 14 days' notice directing him to pay the whole amount of TZS 80 Million plus the interests. The Notice was admitted as exhibit P2. The plaintiff said that he went at the Bank where he received the said Notice. He said that he did not default on repayment because at the time the Notice was issued, he was still at 17 the first repayment. The plaintiff said that the default Notice was dated 17/01/2017 while the loan was availed to him on 26/9/2017 hence the Notice was

issued to him even before he took loan! The witness of the 1st and 5th defendants, DW1 identified the Notice admitted as exhibit P2 and said that it was issued to the plaintiff on 19/01/2018. It is the trite law that he who alleges must prove. This requirement is provided under Sections 110 and 112 of the Evidence Act, Cap 6 R.E 2019. In the instant suit, the plaintiff claim to receive the loan of TZS 75,640,000/= from the 1st defendant which he admit the amount was deposited in his bank account. The plaintiff and the 1st defendant entered an agreement which was produced in court as Offer of a Term Loan (exhibit Pl). Clause 13 of exhibit Pl shows the mode of repayment and states that the borrower commits himself to repay the borrowed capital and interest in 60 instalments as provided in the schedule attached thereto. However, the said schedule was not produced in court along with the Offer Letter and the court was not told why the payment schedule was not attached. The plaintiff signed the Offer Letter and this signifies that he agreed to its terms and conditions. The 1st defendant said the plaintiff, 18 defaulted and upon the default, the bank issued him with 14 days' notice. The plaintiff said that he was issued with the default notice after the third repayment. However, the plaintiff have no proof on his evidence on the alleged repayments. When he was being re-examined by

his advocate, the plaintiff stated that the in the loan agreement (exhibit Pl), it was not specified how he should repay the instalments but the Bank was always deducting the amount in his account. But as I have pointed out earlier, the loan agreement shows that the repayment will be according to the attached schedule. Did the attached schedule indeed attached to the loan agreement? That remains in the knowledge of the parties to the loan agreement who both signed to agree to the terms and conditions of the agreement. It is my view that since the plaintiff signed to agree to the terms of the loan offer, the loan offer which shows that the schedule was attached to it, then he cannot repudiate now and said that the repayment was not specified. In the final submissions by the plaintiff through his advocate, it is submitted that there was no repayment schedule of the loan. But in the loan offer exhibit Pl, the schedule was attached and the plaintiff signed the said loan offer agreeing to the contents. The plaintiff did not tell the court about the claimed attached schedule of payment which is stated in ■ 19 exhibit Pl and whether at the time he signed to agree to the terms of exhibit Pl, the repayment schedule was attached or not. In addition, the plaintiff did not show in his evidence whether he made the repayments as agreed and did not default as the 1st defendant claims. In

cross examination, the plaintiff agreed that 03/11/2017 was the date of first repayment and he did not deposited any money as the Bank debited his account. The plaintiff said that on 03/12/2017, he did not deposit any money and on 03/01/2018, he did not deposit any money in the account as the Bank deducted the money into his account. Unfortunately, there is no evidence on the repayments. The plaintiff claims that he did not default, but at the same time he did not tell the court how much money out of the loan sum were already paid by him at the time he was issued with the default notice. I find that the evidence of the plaintiff does not show on whether he repaid the loan as per the agreed terms in the loan agreement. Since the plaintiff signed the loan agreement, then he is bound by the terms and conditions therein and since he failed to show whether he made repayments and how he made repayments, then he defaulted on repayments of the loan. jb> , r 20 The other evidence which shows that the plaintiff defaulted, is the fact that the plaintiff received the default 14 days' Notice. It is clear that the said Notice shows that it is dated 17/01/2017 and it refer the payment schedule for 03/1/2017 while the loan agreement was signed on 22/9/2017. There was explanation from the witness of the 1st defendant that it was a typing error which I agree for the reason that the

plaintiff signed to receive the said Notice on 19/01/2018. In his evidence, the plaintiff said that the typing error needs evidence to prove and I find that the fact that he agreed to receive the Notice on 09/01/2018, it shows clearly that the Notice could impossibly been issued on previous year before even the loan was issued to him. While re-examined by his advocate, the plaintiff agreed to receive the Notice and started 'fighting' to collect the money for repayment. This shows clearly that at the time the default Notice was issued, there are some repayments which the plaintiff have not yet paid. Hence the plaintiff have failed to establish that he serviced the loan issued to him without any default. Basing on that analysis, I find that the plaintiff defaulted and the first issue is answered in the affirmative. n. 21 The second issue is whether the sale of Plot No.402 Block "E" Mbezi Beach within Dar es Salaam (herein as suit property) by public auction on 04h April 2018 to the &h defendant was lawful. The plaintiff have stated that the procedures for the sale of the suit property were not complied with. That the mandatory 60 days' Notice from the 1st defendant and 14 days' Notice from the 5th defendant were not served to him prior to the advertisement of the public auction in the Mtanzania newspaper on 17/3/2018. On their side, the 1st and 5th defendants contended that the

Notices were issued and the public auction was according to legal procedures hence it was lawful. Section 127 (1) and (2) of the Land Act, Cap. 113 R.E 2019 states that; 127(1): '"Where there is a default in the payment of any interest or any other payment or any part thereof or in the fulfillment of any condition secured by any mortgage or in the performance or observation of any covenant express or implied, in any mortgage, the mortgage shall serve on the mortgagor a notice in writing of such default". 127(2): "The notice required by subsection (1) shall adequately inform the recipient of the following matters; 22 c)............ that, after expiry ofsixty days following receipt of the notice by the mortgagor, the entire amount of the claim will be due paid payable and the mortgagee may exercise the right to sell the mortgaged land’. In the evidence, as said, the plaintiff denied to have been served with the 60 days' notice. He admitted to have been served with the 14 days default notice only. The 1st defendant through DW1 said that the 60 days' notice was served to the plaintiff but since he refused to receive it, the same was served through the Street Government of Mbezi Beach. The purported 60 days' Notice was admitted as exhibit DI. Indeed, exhibit DI was addressed to the plaintiff but the plaintiff did not sign to show that he received the Notice. The witness DW1 said

that the plaintiff refused the service hence the Bank, the 1st defendant opted to serve him through the Street Executive Office of Mbezi Beach. Exhibit DI shows the signature and rubber stamp of the Street Officer. It was signed on 01/02/2018 by the said Street Executive Officer. It was stated by DW1 that after expiry of 60 days' notice, the 1st & 5th defendants advertised the intention of selling the suit property by auction. That the advert was in Mtanzania Newspaper which was admitted in court 23 as exhibit D5.The newspaper is dated 17/3/2018 and it shows among the properties to be auctioned is the suit property i.e. House with a Title Deed no 139059, Plot No. 402 at Mbezi Area, Kinondoni. I agree with the counsel for the plaintiff's arguments that the advertisement in the newspaper was served before the expiry of 60 days' Notice and this was contrary to Section 127 (2)(d) of the Land Act. Therefore even if the court will agree with the 1st and 5th defendants' claims that the sixty days' notice was properly served and received, still the 1st and 5th defendants failed to comply with the procedure as provided under the cited provisions as the 60 days' notice was issued on 01/02/2018 and the advertisement was published on 17/3/2018, the 60 days' notice has not yet expired. Section 12 (2) (3) of the Auctioneers Act, Cap. 227, provides that no sale by auction of any land shall

take place until after at least fourteen days public notice thereof has been given at the principal town of the District in which the land is situated and also at the place of the intended sale. The advertisement has to be published in both Kiswahili and English language Newspapers. In the present matter, since the advertisement was published before even 60 days' Notice has expired, then it is obvious - 24 that the mandatory requirement of 14 days public notice before the sale was also not complied with. The plaintiff in his evidence has pointed the discrepancies shown in the 1st and 5th defendants' documents such as the certificate of sale which was admitted as exhibit D2 which shows that the auction was advertised on 23/01/2018 in Mtanzania Newspaper while the pointed Newspaper does not contain an advertisement concerning the plaintiff's property. The said newspaper was admitted as exhibit P4 and indeed it does not contain the purported advertisement. The Newspaper that contains the advertisement for auction concerning the sale of the plaintiff's property is the one dated 17/3/2018 and it was admitted as exhibit D5. Another discrepancy which was pointed by the plaintiff is the difference of the address of the plaintiff between the one cited in the Certificate of Sale and the one in the loan agreement (Offer Letter). I find that the auction conducted by the 1st and 5th

defendants was un­ procedural. However, the fact that the auction was un-procedural does not make the sale unlawful. This court has found in the first issue that the plaintiff defaulted on repayment of the loan. By default, the 1st defendant, a Banker and mortgagee had a right of exercising a power of sale. At I 25 The third issue is whether the transfer of right of occupancy in respect of suit property by the 2nd and 3rd defendants in favour of the 6th defendant was legal. In his evidence as DW2, Johnson Zuberi Zimbo, the 6th defendant shows how he managed to purchase the suit property at a public auction and transferred the ownership in his name form the plaintiff. Exhibit D6 is a copy of the Title Deed which shows the change of name from the former owner to Johnson Zuberi Zimbo. Therefore, there was no dispute that the 6th defendant purchased the suit property in an auction. This was cemented by exhibit D3 which was produced in court by DW1 to prove that the 6th defendant paid the purchase price for suit property. Exhibit D3 is a bank statement (BOA Bank) that shows the cash deposits by the 6th defendant which the 1st and 6th defendants told the court that the deposits were for payment of the purchased suit property. Was the procedure for the transfer legal? In the evidence adduced by DW3 who was the witness for the 2nd,3rd,4th defendants, it was alleged that the procedure

for transfer of ownership/ Title deed from the former owner who is the plaintiff to the current owner who is the 6th defendant was adhered to. . 26 DW3 said that after the office of the Registrar of Titles have received the request of transfer of ownership which was acquired by the power of sale, the Registrar's office issued a 30 days' notice to previous owner, the plaintiff, asking him to issue an order of the High Court within the said time directing otherwise. That the 30 days' notice expired without the plaintiff having responded to the Registrar's Notice hence the latter proceeded with the process of change of ownership. He said that the plaintiff was issued with the two Notices informing him of the intention of the Registrar to change the ownership and to deregister the caveat which was previously registered by the plaintiff. That the plaintiff was served vide the post office and according to the dispatch, it shows that the two notices were deposited in the Post Office Box of the plaintiff by address of Box 8968 DSM. That the dispatch proves that the two notices were received by the plaintiff. The two notices and the dispatch were collectively admitted as exhibit D8. The plaintiff on his part denied to have received any notice from the defendants and that he was unaware of them. Also, the plaintiff through his counsels challenged the legality of the issued Notice. In

this, having considered the contents of exhibits D8 collectively, I am satisfied that the notices were legally served and received by the plaintiff. 27 Since the said plaintiff failed to challenge the intention of the Registrar within the prescribed date, the 30 days expired, then the Registrar had authority to proceed with the change of ownership and registration of the Title into the name of the new owner. On the issue of the different address of the plaintiff, it is my view that the Registrar was right to use the address of P.O. Box 8969 in lieu of other addresses since the cited one was the one used by the plaintiff in the Title Deed. On the difference of the Title Number in the Caveat Notice, I find it not fatal since the Notice of Transfer under Power of Sale which was issued to the plaintiff on the same date i.e. 12/7/2018 contains correct Title No. 139059 as it appears in the Title Deed. By this, I find that the procedure of transfer of the suit property from the plaintiff to the 6th defendant was legal. The third issue is answered in affirmative. Following that I find that the 6th defendant is the bonafide purchaser entitled to be protected under the provisions of Section 135 of the Land Act. This takes me to the fourth issue which is if issue No. 3 is answered in affirmative, then whether the plaintiff has a right to challenge the sale of suit property after the

transfer of the same to the &h defendant. Af L ■ 28 This need not take much time. According to the law, the plaintiff have a remedy provided under Section 135 (4) of the Land Act. This position was elaborated further in the case of Godebertha Rukanga vs. CRDB Bank Limited & 3 Others, Civil Appeal No. 25/17 of 2017, where it was observed by the Court of Appeal that the remedy for the mortgagor who has been prejudiced by the Act of the mortgagee of selling a mortgaged property without complying with the requirements of the law is provided under Section 135 (4) of the Land Act which provides inter alia that; Section 135(4); "A person prejudiced by an authorized, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power1', (emphasis added). Here, the person who is prejudiced by improper or irregular exercise of power of sale is the plaintiff and his remedy is to seek for damages against the 1st and 5th defendants who exercised the power of sale improperly/ irregularly. I am of the view that the remedy is not to seek to nullify the sale but to seek for damages against the mortgagee. The fourth issue is answered in negative. The fifth issue is on the reliefs. In this I find that despite the fact that the auction was irregular and unprocedural, it does not nullify the right of the* 29 6th defendant as a bonafide

purchaser of the suit property. I declare that the 6th defendant is the bonafide purchaser protected by the law under Section 135 of the Land Act, Cap 113 R.E 2019. In this, I am highly persuaded by the decision of my learned sister Hon. Philiph J, in the case of Registered Trustees of Africa Inland Church of Tanzania vs. CRDB Bank & 3 Others, Commercial Case No.7 of 2017, HC Commercial Division, Mza (Unreported), whereby, while interpreting the provisions of Section 135 of the Land Act, she was of the view that; " To my understanding, the provisions of Section 135 of the Land Act, bars reversing the completed process of sale and transfer of ownership of the land to the bonafide purchaser for value as provided in section 134 (4) of the Land Act, on account of procedural matters such as failure to issue or serve the required notice or irregularity in the sale", (emphasis added). I also base my findings on the observations of this court in the case of Moshi Electrical Light Co. Ltd and 2 others vs. Equity Bank (T) Ltd & others, Land Case No. 55 of 2015 HC Registry Mwanza (unreported), where it was held that the protection of a bonafide purchaser for value provided under Section 135 of the Land Act, accrues upon registration and the transfer of the property in question to the bonafide purchaser. /V 30 In the instant case, the evidence shows that the sale of the suit property was

complete and the said property has already been registered under the name of the 6th defendant. The 6th defendant has filed a counter claim against the plaintiff claiming for reliefs. As per the law that he who alleges must prove, in his evidence, the 6th defendant have failed to establish the claimed loss of expected rent. The 6th defendant failed to establish that the suit property was rented and or expected to be rented and the amount of money for rent. Since the 6th defendants did not establish his claims of loss of expected rent, the court grants him only the relief of eviction of the plaintiff from the suit property. To sum up conclusively, the plaintiff's suit is dismissed with costs. The 6th defendant counter claim succeeds to the extent that the court orders the eviction of the plaintiff from the suit property. Right of appeal explained to the parties. It is so ordered.

JUDGE 30/9/2024 31