ELEN

JUU1C1AKY

IN THE HIGH COURT OF TANZANIA IRINGA SUB-REGISTRY

AT IRINGA LAND CASE NO. 03 OF 2022 ELEN APOSTOLIS VASILIKAKIS .................................................. PLAINTIFF

VERSUS CRDB BANK PLC ................................................................... 1st DEFENDANT YONO AUCTION MART & COMPANY LIMITED .................... 2ND DEFENDANT

JUDGMENT Date of last order: 02. 08.2024 Date of Ruling: 06.09.2024 S.M. KALUNDE, J.: In 1992, the Co-operative and Rural Development Bank (Now "CRDB Bank PLC"), offered a fixed loan facility of TZS. 11,667,000/= to Apostolis Vasilikakis, now deceased ("the deceased"). The deceased was a tobacco farmer carrying out his activities in Iringa. He was also the registered owner of a farm measuring 928 acres held under Certificate of Title No 10625 MBYLR, LO No. 12925, Nzihi Village, in the District and Region of Iringa ("the suit property"). As security for the loan a first fixed charge (Exhibit DI) was registered in favour of CRDB Bank on 16th day of January 1992. The deceased continued to service the loan, and it would appear he repaid the entire principal amount and interests. However, on 8th day of April 2008, a Deed of Variation of Mortgage ueiweeii me uctca^cu aiiu <_r\L>u ljciiik hi lavuui ui li ic laici . jauiy, on 23rd day of March 2009, Apostolis Vasilikakis passed away while attending medical treatment at the Giorgos Gennimatas General Hospital in Athens, Greece. Through Probate and Administration Cause No. 1 of 2009, Elen Apostolis Vasilikakis ("the plaintiff") applied for letters of administration to this court. On 8th day of January 2009 letters of administration were granted to the plaintiff. Upon her appointment, the plaintiff took over the affairs of tobacco farming

carried out by her deceased father. As the administratix, she also took over the liabilities and obligations of the deceased including loan repayment to CRDB Bank. The plaintiff continued the business and banking relation CRDB Bank. After taking over, the Deed of Variation of Mortgage (Exh. D2) continued to subsist and remained binding between the parties. On 27th day of November 2012, relying on the Deed of Variation of Mortgage (Exh. D2), the plaintiff executed a Mortgage of a Right of Occupancy (Land Form No. 40) to secure future and contingent debt worth TZS. 300,000,000.00 and a subsisting TZS. 121,563,275.01. Between 2013 and 2015, three more loan facility agreements were executed in favour the plaintiff. On 2nd day of December 2013, a loan facility agreement (Exhibit D3) was executed between the plaintiff and first defendant for advancement of USD 20,000. In March 2015, the second loan facility agreement (Exhibit D4) was executed for advancement of TZS. 27,000,000. In the same year around 29lh day of December 2015, a loan facility agreement 2 between tne piamtirr ana nrst aerenaant. aii tne tnree racmiy agreements (Exhibits D3, D4 and D5) were secured by a first legal charge of the farm over the suit property; letter of hypothecation over all farm inputs and products; and Chattel Mortgage over a tractor. The three loans were all disbursed and utilised by the

plaintiff. Proof of disbursement and utilisation was present in the form of account statements registered in the name of the plaintiff (Exhibit D8). The account statements related to Account No. 0111072402200 (Elen Apostolis Vasilikakis); 0211072402200 (USD ACCOUNT); 0211072402201 (01601-Term Loan Corporate); 026C072402203 (Term Loan Corporate); 016007240224 (01601- Term Loan Corporate). The plaintiff defaulted to settle the facility agreements for advancement of USD 400,000.00 (Exh. D5). It is this agreement which is a subject in the present suit. By 2020, the plaintiff was in arrears to the tune of USD 11,429.13 in outstanding amount plus interests and penalties. Following the default, on 5th day of February 2020, the second defendant served the respondent with a sixty days' Notice of Default, Land Form No. 54A (Exhibit D6). The notice was issued in exercise of the second plaintiff's right under section 127 of the Land Act [Cap. 113 R.E. 2019]. The notice informed the plaintiff that in the event they fail to pay the arrears within the prescribed time, CRDB Bank will proceed to sell, enter possession, sell, or lease the suit property. Additionally, CRDB Bank threatened to sue the plaintiff to recover the arrears. 3 the amount stated in the default notice. Subsequently, the first defendant appointed Yono Auction Mart & Company Limited ("the second defendant") to auction the

suit property to recover the outstanding loan amount, interests, and penalties. On 24th February 2022, the second defendant issued a Notice of Auction through Habari Leo Newspaper (Exhibit D7). The auction notice specified that the second defendant, under the directions of the first defendant, were going to auction the suit property on 24th day of March 2022. Following the plaintiff's default in repaying the loan, the defendants attempted to sell the said property in exercise of the chargee's Statutory Power of Sale. The plaintiff defaulted, refused and neglected to settle the sum owed, she remained in default of the loan repayment. Instead, on 10th March 2022, she filed the present suit claiming that she has failed to honour her contractual obligations to repay the loan because the first defendant froze her account and threatened to auction the suit property. The plaintiff filed the present case seeking for judgment and decree against the defendants jointly in the following terms: 1. A declaratory order that the plaintiff is the lawful owner of the suit property; 2. A declaratory order that the intended sale of the suit property is unlawful; 3. A permanent injunction restraining the defendants or their agents from interfering whatsoever with the suit property; and 4 I grant. In the plaint lodged to this court and her testimony in court, Elen Apostolis Vasilikakis (Pwl), the

plaintiff acknowledged that she took up a loan with the first defendant; and that the loan was secured by a charge over her immovable property known as CT No 10625 MBYLR, LO No. 12925, Nzihi Village, Iringa Region. The plaintiff pleaded further that she has been honouring her end of the bargain in repaying the loan. However, she was perplexed that on 22nd September 2017, the first defendants froze her bank account without any justification and without issuance of any notice. Pwl narrated that, even the Managing Director neglected her call for a meeting to discuss the quagmire. Regarding the value of the suit property, Pwl claimed that by the time the present suit was instituted, the property was valued of TZS. 1,000,000,000,00. To support this contention, the plaintiff tendered a Valuation Report of farm with CT NO. 10625 at Nzihi Area, Iringa Rural District dated November 2014 (Exhibit P3). The plaintiff complained that she was not told that if she defaulted her account will be frozen. She added that with her account frozen she failed to carryout various transactions and consequently she defaulted in repaying the loan. Pwl complained further that the closure of her account exuberated her financial miseries as she could not meet her tax obligations or pay salaries to her employees. According to the plaintiff, if her accounts were not frozen, she could have satisfied her

obligations in repaying the s The plaintiff requested that the first defendant unfreeze her account so that she can repay the loan and save the suit property from being auctioned. In cross-examination by Mr. Antipas Lakam, learned advocate for the defendants, the plaintiff accepted that she took a 400,000 USD loan with CRDB Bank. Pwl conceded further that the loan was secured by a mortgage on the suit property, when she was asked whether she has repaid the loan, Pwl said she has defaulted in repaying the said loan. She also knew that if she fails to repay the loan the security will be auctioned. However, regarding the default and auction, she claimed that she was not served with a notice of default. Pwl contended further that, she knew of the auction notice through her neighbours. When she was asked if she had any postal address, Pwl conceded that she maintained a postal address where all her communications were directed. Regarding whether the account was operational or not Pwl admitted that between 2017 to 2019, the account was operational, and she used to receive her dividends, but she could not draw the same as they were confiscated by the bank. In re-examination, Pwl claimed that she failed to repay the loan because she run out of capital to run the business. Zakaria Paulo Mgobasa (Pw2) testified in support of the plaintiff case. However, except for his work experience in

the farm, most of his evidence was hearsay. He narrated that he had been working in the farm since 1997, the deceased was running the farm. According to Pw2, the plaintiff took over the management of 6 Pw2 recounted that in 2017 the plaintiff told him that she has taken a loan from CRDB Bank. He was later told that by the plaintiff that her account was suspended. He recounted, after the suspension of the account all farm operation ceased, and some employees were also laid off. In his view, the collapse of agriculture and decline of the number of employees in the plaintiff's far, was due to the suspension of the plaintiff's bank account at CRDB Bank. The defence summoned two witnesses and tendered in evidence eight documentary exhibits. Emmanuel Simbengale (Dwl), a relationship manager from the first defendant recounted that the relationship between CRDB Bank and the plaintiff began in 1992 when her father, through a mortgage deed (Exh. DI), pledged the suit property as security for a loan. Thereafter, in 2008 the mortgage deed was varied through a deed of variation (Exh. D2). Dwl testified further that in 2008, the plaintiff's father passed away and the plaintiff step into the shoes of his father to continue the relationship with the Ban and proceeded to repay the outstanding loans. The witness added that in 2013 and 2015, the plaintiff signed three loan facility agreements for

advancement of various amounts of money. The first agreement was executed on 2nd day of December 2013 (Exh. D3) relating to advancement of USD 20,000. In 2015, two loan facility agreements; one dated 18th day of March 2015 (Exh. D4), and the other dated 29th day of December 2015 (Exh. D5). The two facility agreements related to the advancement of TZS. 27,000,000.00 and USD 400,000.00, respectively. Dwl 7 (Exhibits D3, D4 and D5) were secured by the same securities; that is a first legal charge of the farm over the suit property; letter of hypothecation over all farm inputs and products; and Chattel Mortgage over a tractor. In his further testimony, Dwl narrated that the facility agreements were advanced to, and utilized by the plaintiff. However, she failed to deposit her monthly repayment schedules. To illustrate the disbursement, utilisation, and defaults, Dwl tendered in evidence Account Statements of various accounts held by the plaintiff at CRDB Bank (Exh. D3). Dwl recounted further that, upon default, CRDB Bank served the plaintiff with a sixty days' statutory notice (Exh. D6) requiring him to pay USD 11,429.13 in outstanding loan amount, interests, and penalties. Together with the notice of default, Exhibit D6 comprised of a payment receipt from Tanzania Posts Corporation ("TPC") dated 18th day of March 2020. The witness added that the notice was issued after failure of

discussions to settle the matter. According to Dwl, even after issuance of the sixty days' statutory notice, the plaintiff failed to deposit the default amount. Thereafter, the Bank appointed the second defendant to auction the suit property to realise the outstanding loan. He added that, on 24th February 2022, the second defendant issued a notice of auction through Habari Leo Newspaper (Exh. D7). Dwl was cross-examined by Mr. Lazaro Hukumu, learned Advocate for the plaintiff. During cross-examination Dwl stated that the plaintiff defaulted in paying all the three loan facility 8 notice of default was supposed to be issued for each of the three loans. The cross examination revealed that the witness was aware that each notice was supposed to state a specific amount due and the due date. He added that there was no default notice for the TZS. 27,000,000.00; and USD. 400,000 loans. In addition to that, Dwl admitted that the notice of default (Exh. D6) did not indicate the due date for payments. In further cross-examination, Dwl acknowledged that in addition to the sixty days' notice of default, and before advertising on a newspaper, the auctioneer was required to issue a 14 days' notice of auction. Despite the acknowledgement, Dwl conceded that the plaintiff was not served with the 14 days' notice of auction. The witness was also asked the authenticity of the notice of

default (Exh. D6) for lack of the Banks' official stamp, he replied that it was possible to communicate with clients without affixing the Banks official seal, stamp, or logo. When he was asked why they could not effect physical service to the plaintiff, Dwl stated that the plaintiff uttered abusive language to Bank officials when they visited her to the farm. However, he stated that they did not take any steps regarding the abusive language. According to Dwl, the default amount was estimated at TZS. 1,500,000,000.00. Abel Peter Mahanga (Dw2), a broker for the second defendant acknowledged that his company issued a notice to auction the property on 24th day of March 2022. However, on the stated date they failed to obtain bidders. During cross- examination, Dwl testified that he was made aware of the case 9 procedure tor auctioning, uwi stateo tnat ne ronows company procedures and not the law. He stated that according to his company policies, there was no need for a 14 days' notice of auction. Having presented a summary of evidence, my duty now is to resolve the two issues framed for determination during the Final Pre-Trial and Scheduling Conference. The issues are stated thus; first, whether the intended sale or auction of the suit property is lawful; and two, what are the reliefs of the parties. However, before delving into determination of the issues framed for determination,

I find it apposite to state the background facts which parties seem to agree on. To start with, available evidence reveals that parties executed several commercial transactions where the first defendant availed banking facilities to the Plaintiff. In turn the Plaintiff voluntarily availed, to the first defendant, securities in the form of a first legal charge on the suit property, a letter of hypothecation over all farm inputs and products and Chattel Mortgage over a tractor. Evidence in support of this aspect was specifically pleaded by the plaintiff under paragraph 4 and 5 of the plaint and her own testimony in cross- examination. The testimony of Dwl as well as through exhibits DI, D2, D3, D4 and D5 supports this conclusion. Thus, there is no dispute on the securities at all. There is also no dispute that the Plaintiff is in default and owes the first defendant, at least according to the notice of default (Exh. D6), the sum of USD. 11,429.13. The Plaintiff does not deny having io 8 and 9 of the plaint. However, she partly attributed the default to the first defendant's suspension of her bank accounts. Additionally, the Plaintiff does not dispute that in accordance with the loan facility agreements executed between them, upon default, the defendant is entitled to recover from the securities. The plaintiff acknowledged further that in accordance with the law and loan facility

agreements, upon default, the first defendant is entitled to and legally obligated to issue the statutory notices to ignite crystallization of the securities as well as the realization process regarding the suit property. However, if I understood well the Plaintiff's case, she is questioning the bonafide on the part of the Defendant whilst attempting to realize the securities. The plaintiff alleges that the first defendant fraudulently attempted to auction the suit property without first issuing a notice of default as required by law and issue a notice of auction within 14 days prior to auction. These requirements are provided for under section 127(2) of the Land Act and section 12(1) of the Auctioneers Act [Cap. 227 R.E. 2002] respectively. As correctly observed by the parties, the 60 days' statutory Notice of Default is governed by the provisions of section 127 which reads: "127.-( 1) Where there is a default in the payment of any interest or any other payment or any part thereof or in the fulfilment of any condition secured by any mortgage or in the performance or observation of any li -- -------- — ---- ----------------------- ------ the mortgagor a notice in writing of such default. (2) The notice required by subsection (1) shall adequately inform the recipient of the following matters: (a) the nature and extent of the default; (b) that the mortgagee may proceed

to exercise his remedies against the mortgaged land; and (c) actions that must be taken by the debtor to cure the default; and (d) that, after the expiry of sixty days following receipt of the notice by the mortgagor, the entire amount of the claim will become due and payable, and the mortgagee may exercise the right to sell the mortgaged land. (3) The Minister may, by regulations prescribe the form and content of a notice to be served under this section and where the notice to be served under this section has been so prescribed, a notice served under subsection (1) shall be in that form and shall be void if it is not in that form. [Emphasis Mine] The above section clearly requires the mortgagee to issue a 60 days' Notice of Default which inter alia sets out the conditions provided for under section 127(2) of the Land Act. In addition to that, under section 132 of the same Act, after expiration of sixty days from the date of service of a notice under section 127, the mortgagee shall proceed to sell the mortgaged land. However, if the sell is through a public auction, the mortgagee must give notice 12 interested persons. The entire section 132 provides: "132. -(1) A mortgagee may, after the expiry of sixty days from the date of receipt of a notice under section 127, sell the mortgaged land. (2) A mortgagee may exercise the power of sale in relation to any such land as referred

to in paragraph (a) or (b) of subsection (5) of section 130. (3) The exercise by a mortgagee of his power of sale shall not be a disposition which is subject to the provisions of section 38. (4) Where a sale of mortgaged property shall be made by means other than public auction, a mortgagee shall be required to give notice of sale of not less than ten days to the mortgagor and to any third party holding a registered interest in the property.” [Emphasis mine] From the reading of section 127 read together with section 132 of the Land Act, the mortgagee power of sale may only be exercised upon expiration of the sixty days from the date of service of a notice under section 127 and upon issuance of a notice of sale of not less than 10 days to the mortgagor. It is also common ground that, the requirement to issue a notice of sale provided for under section 132 of the Land Act is also reflected under section 12 (1) of the Auctioneers Act which 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 13 [Emphasis mine] In the present case, the plaintiff alleges that she was not served with the 60 days' Notice of Default under section 127(2). She also contends that the notice of auction was also not served properly served. The defendants, on the other hand,

argues that the plaintiff refused service and as a result the first defendant opted to service the notice by post mail. The notice and copies of receipts were tendered in evidence as Exhibit D.6. In resolving the first issue, that is whether the intended auction of the suit property is lawful, the court must resolve legality of the notice under section 127(2) of the Land Act and the notice of sale under section 12 (2) of the Auctioneers Act. I shall begin with the 60 days' Notice of Default under section 127(2) of the Land Act. From the pleadings and evidence adduced by the partes there seem to be several questions that need to be addressed to resolve legality of Exhibit D.6. First, to which facility was the notice related to; second, was the notice properly served on the plaintiff. It is not contested that the plaintiff took out three loan facilities from the first defendant. I also pointed out that, in all the three loans, the suit property was pledged as security. The evidence available show that only one notice of default of issued (Exh. D6). The notice was prepared at signed at Dar es Salaam on the 5th day of February 2020. The first three paragraphs of the notice provide that: 14 which CRDB BANK PLC (the Bank/Mortgagee) granted to you Elen A. Vasilikakis (the Borrower) a term loan facility of USD 20,000,000.00 (say United State Dollars Twenty Thousand only) of which the outstanding balance as at the date of this notice is USD 11,429.13 (say United State Dollars Eleven Thousand Four Hundred Twenty-Nine Cents Thirteen only).

2. You have faille to pay them sum of USD 11,429.13 (say United State Dollars Eleven Thousand Four Hundred Twenty-Nine Cents Thirteen only) being the outstanding loan balance and the default has consistently continued for over 638 days as at the date of this Notice despite several reminders.

3. You are required to pay forthwith the sum of USD 11,429.13 (say United State Dollars Eleven Thousand Four Hundred Twenty-Nine Cents Thirteen only) within period of 60 (sixty) days from the date of receipt of this Notice." What is discernible form the above excerpt is clear that the Notice was issued relation to the loan facility agreement dated 2nd day of December 2013 (Exh. D3) which relates to the advancement of USD 20,000. Further, it is also worth mentioning here that the default amount stated in the notice of default is USD 11,429.13 (approximately TZS. 31,000,000) which relates to loan facility agreement dated 2nd day of December 2013. However, during cross-examination Dwl stated that, at the time of issuance of the notice, the default amount was estimated at TZS. 1,500,000,000.00. This is contrary to what was stated in the notice of default. The amount in the notice is not even 1% of the TZS. 1,500,000,000.00 stated by Dwl. If it were true that the plaintiff 15 reason as to why the first defendant would not issue a notice of default for each and every of the loan facility agreement defaulted or at least state the entire amount owed by the plaintiff in the one notice issued (Exh. D6). I gather that, it is from this lack of clarity and specificity on the part of CRDB Bank which attracts a feeling and sense of existence of bad faith on the part of the plaintiff. My

assessment of available evidence also demonstrates that the first defendant did not serve the plaintiff a 60 days' Notice of Default regarding the loan facility agreements entered in 2015. That is; the facility dated 18th day of March 2015 (Exh. D4), and the other dated 29th day of December 2015 (Exh. D5). These two facilities are associated with the advancement of TZS. 27,000,000.00 and USD 400,000.00, respectively. In his evidence the plaintiff intimated that she was not served with default notice regarding any these loans. There was also no evidence forthcoming from the first defendant that the notices regarding the two loans were prepared or served to the plaintiff. Most importantly, it must be recalled that, during cross-examination, Dwl conceded that the CRDB Bank did not prepare or serve the plaintiff with a 60 days' Notice of Default relating the TZS. 27,000,000.00 loan (Exh. D4) or USD. 400,000 (Exh. D5). In the end it can be safely vouched that there is no evidence to prove that the first defendant prepared or served the plaintiff with a notice of default for Exh. D4 or Exh. D5. Next, I will consider the sufficiency of the notice. Here I will consider whether the notice was legally sufficient. A closer 16 Dar es Salaam on the 5th day of February 2020 and served on the respondent through post on the 18th day of March 2020. The notice was purported to be signed by

Deodatha Mutagonda, Senior Manager Loan Recovery, and Deogratius Maige, Head of Special Assets Management. However, none of the signatories affixed their stamp. The plaintiff alleges that the notice was not authentic. I have carefully examined the records particularly the loan facility agreements, exhibits D3, D4 and D5 and observed that all these documents were signed by authorised persons and affixed with their respective stamps. The stamps affixed were from Credit Managers and Manager Legal Documentation. From the official stamps it could be stated with certainty that they were issued by the Bank. It is important to note here that, though minor and not necessarily a legal requirement, affixing an official stamp would have added probative value in the said document. There is no plausible reason as to why a document let alone a notice coming from a Bank of the stature of the first defendant would not be affixed with an official seal or stamp to verify its authenticity and render credence on the same. The other issue in the notice is the failure to meet the requirements of section 127(2)(a) of the Land Act. In accordance with the said section a Notice must show the nature and extent of the default. In the present case, Dwl alleged that the plaintiff was in arrears to the tune of TZS. 1,500,000,000.00, however, as pointed out above the notice only covered a sum of

TZS. 31,000,000. Looking at what was stated in the notice and what 17 property for default of TZS. 1,500,000,000.00, being an amount owed for all the three loans, based on the notice of default (Exh. D6), then the notice is defective and invalid because the amount stated therein is fraction. Undeniably, the first defendant is still entitled to recover the stated amount in the notice. But the circumstances in the present case suggest that they wanted to recover the entire TZS. 1,500,000,000.00, based on a notice for arrears of USD 11,429.13. However, even assuming that, for intent and purposes, the notice of default was proper, the next question would be whether the notice properly served to the plaintiff. The plaintiff alleges that she was not served with any 60 days' Notice of Default. She denied having been physically served with the notice or receiving the said notice via mail. The first defendant, on the other hand, contends that they could effect service to the plaintiff because she was not cooperative, and she was using abusive language. The starting point to address this issue is to revisit the provisions of section 127(1) which prescribes the requirement for service of the notice. The section clearly states that where there is a default in the payment of any interest or any other payment in the fulfilment of any condition secured by any mortgage, the mortgagee "shall

serve" on the mortgagor a notice in writing of such default. The said section does not prescribe the manner of service of the stated notice. I have also had an opportunity of revisiting all the three agreements (Exh. D3, D4 and D5) and noted 18 I for a manner of communication or service of documents or notices. Now that parties did not provide for a manner of service, this court is entitled to resort to the provisions of the law regulating general service of summons. For this, guidance is provided for under section 83 of the Interpretation of Laws Act [CAP. 1 R.E. 2019] which reads: "83. Where a written law authorizes or requires a document to be served, whether the word "serve" or any of the words "give", "deliver", or send" or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served- (a) by delivering the document to him personally; (b) by post in accordance with subsection (1) of section 82; (c) by leaving it for him at his usual or last known place of abode, or if he is a principal of a business, at his usual or last known place of business; or (d) in the case of a corporation or of an association of persons (whether incorporated or not) by delivering or leaving the document or posting it as a letter, addressed in each case to the corporation or association, at

its principal place of business or principal office in the United Republic." The above section does not need any addition or interpretation. It clearly provides that, for individuals, service may 19 document or the persons own last known address and by post. I must also add that the law does not preclude combining all the three modes of service. Since there were several options, it was therefore a duty of the first defendant to make sure that he or she selects a mode of service that is effective and efficient in the circumstances of the case. Reverting to the circumstances of the present case, the first defendant claimed that they failed to service effect personal or physical service of the notice to the plaintiff because she was not cooperative. There was no straightforward evidence on how the plaintiff was not cooperative. There was no evidence that the defendants attempted to effect personal service to the plaintiff even once. In the circumstances, it cannot be firmly said that the plaintiff resisted or rejected personal service or that she was not cooperative to the extent that service must be effected by post. There is also evidence that CRDB Bank Headquarters and its Branch in Iringa were aware of the plaintiffs' lawyers, Mwakingwe & Co. Advocates, because they were sent with letters inviting them to discuss of matters pertaining the loans through exhibits Pl and P2. The

first defendant did not resist the said letters. The Bank could have as well contacted her legal representatives regarding the manner for effective service. In addition to that, since the first defendant knew the plaintiffs address, in accordance with section 83(c) of the Interpretation of Laws Act, they could have as well just proceeded 20 last known place of abode, or her principal place of business. Despite all the above options, the first defendant elected to serve the plaintiff by post. I have examined the receipt for postage and noted that the receipt show that the letter was posted in Iringa and not Dar es Salaam where it was allegedly prepared. If the notice made it to Iringa Branch I wonder, why they could not serve it to the plaintiff's farm. There is also no evidence of what was the content of what was posted in the said receipt. In the circumstances of the present case, proof of the content of what was posted is important because the basis of the plaintiff's claim is an allegation that she did not receive the said notice. Before concluding on this matter I think I must underscore that, the primary objective of the notice under section 127 of the Land Act is to make the mortgagor effectively notified of the nature and extent of the default; actions that he or she must take to cure the default; that if the default is not remedied within the sixty days following

receipt of the notice the entire amount of the claim will become due and payable and the mortgagee may exercise the right to sell the mortgaged land. A service that does not realize this objective is not effective. Thus, for service under section 127 to be effective, it must be established that the notice came to the mortgagor's knowledge. Thus, where the addressee denies receipt of the notice, the onus is on the sender to prove that the notice was indeed effectively served and delivered. In the case under consideration, the first defendant failed miserably to prove that the plaintiff was effectively served with the notice default. 21 sale. Section 12 (1) of the Auctioneers Act requires that prior to auction a 14 days' notice to auction must be issued. The section reads: "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." [Emphasis mine] In the present case the said notice was allegedly issued through Habari Leo Newspaper on 24th day of February 2022, (Exhibit D7). However, careful look of Exh. D7 show that the said exhibit has no printed name of the Newspaper or date on which it was published. Instead, the name of the Newspaper and dates on which it was printed were inscribed by handwriting. In the

end and considering it was merely a copy, I have no hesitation in holding that Exh. D7 is a mere piece of paper which have no probative value to these proceedings. Since there was no actual print indicating the name of the Newspaper and dates on which it was printed it remains unclear on whether the said notice was issued and if so whether it was issued on a widely circulating newspaper and within the prescribed period by law. From the above analysis of evidence presented before the court, I am satisfied that the plaintiff was not properly served with the 60 days' statutory Notice of Default as provided for under section 127 of the Land. It is also evident that prior to the intended sale, the defendants did not issue a 14 days' notice of sale under 22 — •w. vi iml ui iv. ii nd ।vicu jcjic cui 11iicu vvili i i equir emeriLS of the law. For the foregoing reasons, the plaintiff suit succeeds to the extent that: (a) The intended sale of the suit property is declared unlawful and ineffectual for failure to comply with the law; (b) The order for permanent injunction must fail because the plaintiff remains in arrears and granting permanent injunction would be precluding the first defendant from exercising her contractual and legal rights upon compliance with the provisions of the law. In the circumstances, the plaintiff shall have his costs. It is so ordered. DATED at IRINGA this 06™ day of SEPTEMBER, 2024. 23