LAND APP 10955 SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 10955 OF 2024 EVARIST RAMADHANI MDUMA.............................................. APPELLANT VERSUS CRDB BANK.................................................................... 1st RESPONDENT KIMBEMBE AUCTION MART...........................................2nd RESPONDENT PHILIPO SALEHE HAMISI.............................................. 3rd RESPONDENT MIRAJI SALEHE HAMISI................................................ 4th RESPONDENT (Originating from Land Application No.548 of 2018 of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia) JUDGMENT 07/10/2024 & 17/10/2024 A. MSAFIRI, J. The appellant Evarist Ramadhani Mduma was the applicant in Land Application No. 548 of 2018 before the District Land and Housing Tribunal of Kinondoni at Mwananyamaia (the trial Tribunal). The appellant has jointly sued the four hereinabove respondents over the suit property located at Makangira Street, Msasani Ward, Kinondoni District, Dar es Salaam. In the Application before the trial Tribunal the applicant/appellant claimed that he is the lawful owner of the suit property with residential license No. KND16909. He said that sometimes in 2010, he handed over the said. i residential license to his relatives Philipo Salehe Hamisi (3rd respondent) and Miraji Salehe Hamisi (4th respondent) so that they can help him to pay the annual residential license fee at Kinondoni Municipal Council. That the said respondents never returned the residential license back to him despite several requests. The applicant claimed further that, surprisingly on 20/02/2015, he heard an advertisement in the street whereby the 2nd respondent was announcing the intended auction on the suit property. That upon following the matter, he was informed by the officers of the 1st respondent (CRDB Bank) that the suit property is going to be sold. And that the sale is in relation to a loan extended to the 3rd and 4th respondents trading as Mapacha Center purportedly guaranteed by the suit property. The applicant claimed further that he was shown by the 1st respondent some documents which was purportedly signed by him and his wife, but the applicant denies to have signed any document, neither his wife. Among the reliefs he sought, the applicant /appellant prayed for declaration that the loan agreement between the 1st respondent and 3rd, and 4th respondents allegedly guaranteed by the applicant/appellant was null and void for being based on forged signatures of the applicant and a forged spouse consent. He also prayed for the Tribunal order against the 2 1st respondent to immediately hand over the applicant's residential license No. KND16909. After the hearing of the evidence of both parties, the trial Tribunal dismissed the applicant's claims with costs. Aggrieved, the appellant has lodged the current appeal advancing six (6) grounds which I will not reproduce here but I will go through them during determination of the appeal. The appeal was heard by way of written submissions and the appellant was represented by Mr Yuda Dominic, learned advocate while the 1st respondent was represented by Mr Boniface Evans Woiso, learned advocate. The 2nd respondent did not enter appearance and neither filed his written submissions despite being served hence the hearing of the appeal proceeded in his absence. The 3rd and 4th respondents were served and on several times they appeared in court in person but never filed their reply submissions hence the court drew an inference that they did not contest the appeal. On determination of the grounds of appeal, I will consolidate the first and second grounds which are both on the irregularities of the intended auction whereby it is claimed that the Tribunal erred when it held that the 1st respondent had a right to sell the house of the appellant even without 3 issuing to the appellant, the statutory 60 days' notice and fourteen 14 days' notice. In the submissions by Mr Dominic, he stated that it is mandatory for the mortgagee to issue 60 days' notice to the mortgagor before exercising the right to sell the mortgaged property. That this is provided under Section 127 (2) of the Land Act, Cap 113 R.E 2019. That during the trial, the Officer of the 1st respondent acknowledged that there is no evidence that a 60 days' notice was issued as required by the law. That it was unlawful then for the court to affirm the mortgagee's right to sell under such circumstances. Mr Dominic submitted further that before a bank can exercise the right to sale a mortgaged property through the auctioneers, Section 12(2) of the Auctioneers Act, Cap 227 R.E 2002 requires that the auctioneer should issue a 14 days' notice to the mortgagor. The counsel Mr Dominic argued that the fact that the auctioneers in the current matter could not issue 14 days' notice to the mortgagor was enough to hold back the Tribunal from holding that the Bank has a right to sell the mortgaged property. To bolster his points, the counsel cited the cases of Registered Trustees of Africa Inland Church of Tanzania vs. CRDB and 2 others, 4 Commercial Case No. 7 of 2017 HC Commercial Division at Mwanza (Unreported). Mr Woiso, counsel for the 1st respondent submitted in reply that the issue of failure to serve the appellant with 60 days' notice and 14 days' notice was never pleaded by the appellant in the application before the trial Tribunal and it was not even an issue in dispute. The counsel added that there is nowhere in the trial Tribunal's judgment that suggests that the 1st respondent was allowed or has the right to sell the mortgaged house without issuing 60 days and 14 days' notices. The counsel cited the case of James Funke Gwagilo vs Attorney General [2004] TLR 161 where it was held that parties are bound by their own pleadings and so does the court. He said that the grounds of appeal are misconceived and the cases cited are misplaced. In this, I agree that the fact of the irregularity of the intended auction or failure of the 1st respondent to issue the 60 days and 14 days notices to the appellant was never pleaded in the application. Even in the reliefs sought, the applicant did not move the Tribunal to declare the intended appeal void for the failure of the 1st respondent to issue the alleged notices to the appellant. 5 Also during the trial while adducing his evidence in chief, the appellant/applicant did not raise the issue of service of 60 days or 14 days notices. It is a cardinal principle of the law of civil procedure founded upon prudence that parties are bound by their own pleadings and thus, no party is allowed to present a case contrary to the pleadings. This was set in the Court of Appeal case of Martin Fredrick Rajab vs. Ilemela Municipal Councli & another, Civil Appeal No. 197 of 2019, CAT at Mwanza (Unreported). At page 11 of the impugned judgment, the trial Chairperson correctly observed that in the evidence, the applicant has not challenged the procedures used by the 1st respondent in advertising the intention to sell the suit property by auction. I subscribe to this finding and add that there is no evidence that the auction has already taken place but what is there is the claim on the "intention". I find the first and second grounds of appeal to have no merit. The third ground is that the Tribunal erred by holding that the 1st respondent has a right to sell the house of the guarantor/appellant without any proof that the plot and other collaterals of the principal borrowers (3rd and 4th respondents) were sold. 6 In the submission, Mr Dominic submitted that while securing the loan from the 1st respondent, the 3rd and 4th respondents pledged their landed property located at Buyuni Ilala, Dar es Salaam as well as hypothecation of goods as collaterals to the loan. He said that the house of the appellant even if assumed that it was lawfully pledged as security for loan, it was one of the three securities, second in the order of priority. The counsel for the appellant submitted further that in their evidence before the Tribunal, the 1st respondent witness testified that there is no record that the collaterals of the 3rd and 4th respondents who are the principal debtors were sold in an attempt to recover the amount due before an attempt was made to sell the third collateral belonging to the appellant. In the reply submissions, Mr Woiso stated that it was correct for the trial Chairperson to hold that the 1st respondent has the right to sell the mortgaged house in dispute because as per evidence, the property in dispute was mortgaged to secure the loan advanced to 3rd and 4th respondents. That the issue of order and priority of the securities which were granted is misconception on the part of the appellant. During the evidence, the witness of the 1st respondent DW1 stated that in the collaterals which were secured for the loan in favour of the 3rd and M 7 4th respondents, the first was the house at Buyuni which belonged to the 3rd and 4th respondents and the second was the disputed property which belonged to appellant. DW1 said in his evidence that when the 3rd and 4th respondents defaulted, the Bank sold the house at Buyuni first and it was in the process of selling the second security when the stop order was issued. The appellant has argued that there was no proof that the house at Buyuni, the property of the 3rd and 4th respondents who were the principal borrowers was sold before moving to process the sale of the suit property. However, I am of the view that, what was in dispute was not the sale of the house at Buyuni. The dispute in the suit was not the sale of the house of the 3rd and 4th respondents hence the 1st respondent or her witnesses were not obliged or did not have duty to produce proof that the house at Buyuni was sold or not. It was enough that the witness said that the house of Buyuni was sold when the 3rd and 4th respondents defaulted on loan repayment. In addition, there was no evidence that the auction to sell the suit property took place or has taken place. Since the suit property was not yet sold, the principle of priority as stated by the counsel for the appellant cannot be effected. In addition, I agree that as long as there was proof that the 8 borrowers has defaulted, the lender or mortgagee has a right to exercise the power of sale of the mortgaged properties. I find the third ground to have no merit. The fourth ground is that the trial Tribunal erred by holding that there was spouse consent from the wife of the applicant while the applicant denounced to have a wife called Moshi Rashid Mduma. Mr Dominic submitted that during the trial, the wife of the appellant one Rehema Abraham Mmari testified as PW2 and told the Tribunal that she was the only wife of the appellant and a person called Moshi Rashid Mduma was not the wife of the appellant. That on the other side the respondents could not bring up the said Moshi Rashid Mduma to testify and support their evidence hence it was incumbent for the Tribunal to hold that the spousal consent was not genuine. In this, I subscribe to the findings of the trial Chairperson that the appellant did not prove that the documents which were produced in the Tribunal during the trial as exhibits D3, the Mortgage of Residential License, Exhibit D4, the spouse consent and exhibit D5, Personal Guarantee and Indemnity by Evarist Ramadhan Mduma, the appellant were forged. Since the appellant failed to prove that the documents were 9 not genuine, then the trial Tribunal had no reason to doubt the contents of the spouse consent. I also find this ground to have no merit. The appellant abandoned the fifth and sixth grounds of appeal hence I will also not determine them. In upshot, I find the appeal to have no merit and I find no reason to depart from the findings and the decision of the trial Chairperson. I therefore dismiss the entire appeal with costs. It is so ordered. r . If A.MSAFIRI JUDGE 17/10/2024 10