hamisi bushiri pazi others vs saul henry amon others 2022 tzca 186 13 april 2022

hamisi bushiri pazi others vs saul henry amon others 2022 tzca 186 13 april 2022

The sale and subsequent transfer of the suit property to the second respondent was illegal and ineffectual to the extent of the appellants' 6/7 shares, as the certificate of sale was not validly issued under Order XXI Rule 92 following a confirmation order under Order XXI Rule 90(1), and the second respondent was not a bonafide purchaser for value without notice due to constructive notice of co-ownership. The suit was not barred by Order XXI Rule 90(3).

Citation
hamisi bushiri pazi others vs saul henry amon others 2022 tzca 186 13 april 2022
Parties
1st Appellant: Hamis Bushiri Pazi; 2nd and 3rd Appellant: Hamis Bushiri Pazi (as the Administrator of the deceased estate of Neema Bushiri Pazi and Mwajuma Bushiri Pazi); 4th Appellant: Stumai Bushiri Pazi; 5th Appellant: Hatujuani Bushiri Pazi; 1st Respondent: Saul Henry Amon; 2nd Respondent: S.H. Amon Enterprises Ltd; 3rd Respondent: Musa Hamisi Kazuba; 4th Respondent: Kassim Ally Omari (as the Administrator of the estate of Tatu Bushiri Pazi); Third Party: The Attorney General
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
13 April 2022
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Execution of Decrees, Fraudulent Sale, Bonafide Purchaser, Government Proceedings, Co Ownership, Attachment and Sale of Property
Source Language
English
Property Law Civil Procedure Execution of Decrees Fraudulent Sale Bonafide Purchaser Government Proceedings Co Ownership Attachment and Sale of Property

Case Brief

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Parties

Hamis Bushiri Pazi

1st Appellant

Hamis Bushiri Pazi (as the Administrator of the deceased estate of Neema Bushiri Pazi and Mwajuma Bushiri Pazi)

2nd and 3rd Appellant

Stumai Bushiri Pazi

4th Appellant

Hatujuani Bushiri Pazi

5th Appellant

Saul Henry Amon

1st Respondent

S.H. Amon Enterprises Ltd

2nd Respondent

Musa Hamisi Kazuba

3rd Respondent

Kassim Ally Omari (as the Administrator of the estate of Tatu Bushiri Pazi)

4th Respondent

The Attorney General

Third Party

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the attachment, sale and eviction from the suit property was illegal and ineffectual
  2. 2 Whether the suit was barred by law under Order XXI Rule 90(3) of the Civil Procedure Code
  3. 3 Whether the second respondent was a bonafide purchaser for value without notice

Ratio Decidendi

The sale and subsequent transfer of the suit property to the second respondent was illegal and ineffectual to the extent of the appellants' 6/7 shares, as the certificate of sale was not validly issued under Order XXI Rule 92 following a confirmation order under Order XXI Rule 90(1), and the second respondent was not a bonafide purchaser for value without notice due to constructive notice of co-ownership. The suit was not barred by Order XXI Rule 90(3).

Court Disposition

Appeal allowed

Orders

  • Judgment and decree of the trial court quashed and set aside
  • Appellants declared rightful owners of the suit property and developments thereon to the extent of their 6/7 shares