HAMISA O SIMBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA DISTRICT REGISTRY

AT DODOMA LAND APPEAL NO. 26 OF 2023 (Originating from the District Land and Housing Tribunal for Singida at Singida in Land Application No. 132 of 2018) HAMISA O. SIMBA.............................................................. APPELLANT

VERSUS RAJABU JUMA MIKINDO................................................................... 1stRESPONDENT TANZANIA POSTAL BANK PLC........................................................... 2Nt>RESPONDENT TULVIN INVESTMENT (T) LTD.......................................................... 3rdRESPONDENT EMMANUEL BOHOLE.......................................................................... 4thRESPONDENT

JUDGMENT Date of the last order: 23/5/2024 Date of the Judgment: 2/7/2024 F. R. KHALFAN, J. Before the District Land and Housing Tribunal of Singida sitting at Singida (hereinafter referred to as the "trial tribunal"), the appellant sued the respondents, claiming ownership of a house on plot No. 601, Block "BB" located at Misuna area within Singida Municipality (hereinafter referred to as the "suit house"). According to the appellant, she purchased the suit house from the 1st respondent on 21/08/2017 at i the price of TZS 20 million so that he could liquidate his bank loan of TZS 6 million from the 2nd respondent. The appellant further claimed that at the time, she was waiting for the documents of title to the suit house and since the 1st respondent had sued the 2nd and 3rd respondent at the trial tribunal over the very suit property, the 4th respondent required her to vacate the suit property alleging that he had bought it from the 2nd and 3rd respondents. According to the appellant, the sale of the suit house to the 4th respondent was illegal as it was done without disclosure to her. In his written statement of defence, the 4th respondent, alleged that, whatever sale that was done by the 1st respondent after his purchase on 21/05/2017 from the 2nd and 3rd respondents, was fraud since he legally purchased it. On their part, the 2nd and 3rd respondents filed a joint

written statement of defence, in which they claimed that the suit house was used as collateral by the 1st respondent in the loan of TZS 5 million advanced to him. That, upon the 1st respondent's failure to service the loan as agreed, they duly auctioned the suit property to the 4th respondent. Having heard the parties, the trial tribunal was satisfied with the evidence from the 2nd, 3rd and 4th respondents and it dismissed the appellant's application forthwith. 2 The appellant was displeased with the trial tribunal's decision; hence she filed the instant appeal on five grounds of appeal, to wit: 1. That, the learned trial tribunal chairperson erred in law and in fact in declaring the 4h Respondent the lawful owner of the suit house.

2. That, the learned trial chairperson erred in law and in fact in holding that the Appellant has no right to inquire on the legality of the auction alleged to have been conducted by the 3d Respondent on ground that she was not party to the agreement entered between the 1st and the 2nd Respondent while the fact is that she has such right as she has interest in the suit premise.

3. That the learned trial chairperson erred in law and in fact in admitting the receipts tendered by the 4h Respondent in purchasing the suit premise and proceeded to deciare him the lawful owner of the suit premise regardless of illegality raised by the Appellant in her written submissions.

4. That, the learned trial chairperson erred in law and in fact in disregarding the written submission filed by the Appellant.

5. That, the learned trial chairperson erred in law and in fact in differing with opinions of the assessors. 3 The appeal was argued by written submissions. The 1st respondent did not enter appearance. In her submission in support of the appeal, the appellant raised a concern that, the opinions of assessors were not recorded in the trial tribunal's proceedings. She referred to the case of Sikuzani Saidi Mgambo and Kirioni Richard vs. Mohamed Roble, Civil Appeal No. 197 of 2018 (CAT) which was referred to by this court in the case of Shanta Mining Company Ltd vs. Gabriel Issa Nyambi, Land Appeal No. 63 of 2022 in which it was observed that the assessors' opinion must feature in the proceedings. As to the merits of the appeal itself, the appellant argued jointly the 1st, 2nd and 3rd grounds of appeal contending that the alleged auction on 21/05/2017 conducted by the 3rd respondent, was marred by irregularities as the 4th respondent paid 25% of the purchase price on 22/05/2017 instead of 35% that was required to be paid instantly on 21/05/2017. Further to that, the said 4th respondent paid the remaining 75% of the purchase price after the expiration of 21 days which was contrary to the law. The appellant went on to submit that the advertisement of the sale of the suit property was only done in Kiswahili News Paper ('Habari Leo') which was contrary to the law since it was also

required to be 4 advertised in the English News Paper. The appellant went on to fault the auction proceedings leading to the sale of the suit property as the local leaders in the area were not informed. She added that the suit property was sold at the price below its value as she bought it at TZS 20 million while it was auctioned at TZS 9 million. She referred to section 133 (2) of the Land Act in that the sale of mortgaged property should not be below 75% of the market value. The appellant wondered that if the 1st respondent owed the 2nd respondent TZS 6 million and the suit property was auctioned at TZS 9 million, then where was the balance? It was her view, that shows that the balance was misappropriated, suggesting that the purchase price and the sale of the suit property were characterised by ill motive. Due to this, the appellant argued that it was in the interest of justice that the sale of the suit property by the 3rd respondent to the 4th respondent be nullified. She referred to the decision of this court in the case of Bagamoyo View Hotel Limited vs. EFC Tanzania M. F. C. Ltd and 2 Others, Land Case No. 54 of 2019. The appellant further challenged the holding of the trial tribunal that the appellant was not a proper person to question the legality of the auction leading to the sale of the suit property since she was a 3rd party to the loan agreement between the 1st

and 2nd respondents. It was 5 her view that since she had interest in the suit property after purchasing it from the 1st respondent, then she was entitled to question it. As to the 4th ground of appeal, the appellant submitted that, at the trial tribunal, she filed her written submission as per its order. However, to her surprise, the said written submission was not featured in the judgment of the trial tribunal. It was the appellants view that, that act was tantamount to denial of her right to be heard. Therefore, she prayed for nullification of the said judgment. The appellant referred this court to the case of Bagamoyo View Hotel Ltd (supra). In finalising, the appellant, on the 5th ground of appeal contended that, the assessors in this case opined that the suit property was sold prematurely before the end of the loan agreement. It was the appellant's view that the reasons given by the trial Chairman in departing from such opinions, were unreasonable, thus leaving a lot to be desired. It was then her prayer to this court to interfere with such decision so as to do justice. In reply to the 1st ground of appeal, the 2nd and 3rd respondents, argued that there was evidence that the auction was conducted on 21/5/2017. They argued that the auction was proved by exhibit D3 and D7. They argued that whether the auction was to be conducted in English or Kiswahili, was not an issue

before the trial tribunal and 6 therefore the same cannot be raised at this stage. They referred to the case of Jasson Samson Rweikiza vs. Novatus Rwechungula Nkwa Civil Appeal No. 305 of 2020. In reply to the 2nd ground of appeal, the 2nd and 3rd respondents argued that the trial tribunal was correct in holding that the appellant had no right to inquire on the legality of the auction. They argued that the 4th respondent was a bona fide purchaser while the appellant was not a party to the loan and the prior sale process. Therefore, the appellant had no right whatsoever to question the validity of the sale. In reply to the 3rd ground of appeal, the 2nd and 3rd respondents argued that the auction of the suit premises was properly conducted and the evidence of the auction was conducted. They submitted that, if the appellant had objection against the admission of the evidence, she ought to have done so before the trial tribunal. To buttress their arguments, they referred to the case of Hadija Ally vs. George Masunga Msingi Civil Appeal No. 384 of 2019. In reply to the 4th ground of appeal, the 2nd and 3rd respondents argued that, the court is not bound to rely on written submissions to make decision rather the evidence adduced by the parties. They referred to sections 110 (1) (2) and 111 of the Evidence Act [Cap 6 R.E 2022]. 7 As to the 5th ground of appeal, the 2nd and 3rd

respondents argued that the chairperson is not bound by the opinion of assessors as stipulated under section 24 of the Land Disputes Courts Act [Cap 216 R.E 2019], (hereinafter referred to as the LDCA). They therefore urged the court to dismiss the appeal. In reply to the 1st ground of appeal, the 4th respondent argued that the learned trial chairperson duly considered the assessors' opinion as vividly seen on page 5 of the typed judgment. As to the 2nd ground of appeal, the 4th respondent argued that the existence or non-existence of the public auction was not among the issues raised before the trial tribunal; hence, the same cannot be raised on this appeal. He referred to the case of Jasson Samson Rweikiza vs. Novatus Rwechungula Nkwa (supra). As to the language used to advertise the auction be it English or Kiswahili, the same was not an issue before the trial tribunal and therefore cannot be raised at this stage. He argued that exhibits D3 and D7 are relevant documents to prove the existence of the public auction. As to the 2nd ground of appeal, the 4th respondent being not a party to the loan agreement, had no any right to question the legality of the auction. He argued that the auction was conducted on 21/5/2017 and the owner of the house who was the 1st respondent sold the suit 8 house three months after the auction had been conducted and later on disappeared. He

maintained that he was a bona fide purchaser of the suit house. As to the 4th ground, the 4th respondent argued that written submissions of the parties cannot be given more weight than the evidence. He argued that the authority referred to by the appellant is inapplicable in the matter at hand. As to the 5th ground of appeal, the 4th respondent argued that the trial chairperson is not bound by the opinion of assessors. He argued that the assessors fully participated in the matter and they gave their opinion which was considered by the trial chairperson. The 4th respondent therefore urged the court to dismiss the appeal. Having gone through the grounds of appeal, the parties' rival submissions and the records, I will start my deliberation with the legal issue raised by the appellant. The appellant argued that, the opinion of the assessors was not recorded in the proceedings of the trial tribunal. Despite the fact that the said issue was raised during submissions, it being a legal issue, it has to be considered first. It is on record that, on 06/09/2022, having closed hearing of the case for both sides, the trial tribunal fixed the matter until 13/10/2022 for the assessors to give and read their opinion to the parties. On 13/10/2022, the record shows that the assessors' opinions were read before the appellant (then applicant) and the 2nd and 4th respondents. The matter was then

adjourned for judgment on 19/01/2023. Going through the record, I saw the written opinion of the assessors that is, of Mr. Eli Y. Kindulu and Ms. Amina Kisenge who presided over the matter with the tribunal chairman in the whole trial of the case. I have gone through the judgment of the trial tribunal, it shows that the trial tribunal chairman, briefly reproduced what each assessor had opined and thereafter, he went ahead in giving his reasons for not agreeing with their opinion. I am of the considered view that the trial tribunal substantially complied with the law regarding the involvement of assessors. I therefore find the legal issue raised by the appellant to have no merits and it is accordingly overruled. Coming to the 1st, 2nd and 3rd grounds of appeal, the appellant argued that the legal procedures in selling the suit property in the auction were violated. There is no dispute that the 1st respondent mortgaged the suit property to the 2nd respondent for the TZS 5 million, he defaulted his obligation to pay the loan. Hence, the 2nd respondent embarked on recovery measures. It was not disputed that the auctioning of the suit property was the result of the breach of the terms of the loan contract between the 1st and 2nd respondent for failure to service the io debt. That being the case, the appellant who is a stranger to the loan contract could not question the legality of

the auction procedures. Even if it could be true that legal procedures in auctioning the suit property were violated, the parties to the contract could only sue or be sued on it. In the instant case, it is on record that the appellant bought the suit property on 21/08/2017 from the 1st respondent for him to liquidate his debt from the 2nd respondent. Had the appellant been diligent enough, she could have inquired as to the status of the suit house and she could have realised that the suit house was auctioned by the 3rd respondent long ago on 21/05/2017 and was in the names of the 4th respondent. To add salt on the wound, it is not in dispute that the appellant, prior to the purchase, was aware that the 1st respondent owed the 2nd respondent TZS 6 million in which the suit property was used as a collateral. And she was again aware that the intention of the 1st respondent in selling the suit property was to redeem his house. The question now is, what did the appellant do to ascertain if indeed the 1st respondent owed the 2nd respondent only TZS 6 million and not more than that? Furthermore, if at all the 1st respondent owed only TSZ 6 li million. Whether after paying her purchase price the 1st respondent paid that amount to his creditor. These unanswered questions leave a lot to be desired. I therefore find that the 1st, 2nd and 3rd grounds of appeal are lacking in merits and are

accordingly dismissed. With regard to the 4th and 5th grounds of appeal, this court finds no merits in the appellant's complaint simply because her written submissions were considered in the judgment. The contents of the judgment with which tribunals are required to consider are provided under Regulation 20 (1), that: "The judgment of the Tribunal shall always be short, written in simple language and shall consist of: (a) a brief statement of facts; (b) findings on the issues; (c) a decision; and (d) reasons for the decision." Emphasis Added. Furthermore, if the chairman, in his judgment, differed with the opinions of the assessors, there must be reasons for such departure. This is stipulated under section 24 of the LDCA. It must be noted that it is not the requirement of law for the court to state or reproduce every fact or point raised by the parties be it in their pleadings, during the 12 hearing and/or in their submissions. It suffices only to deal with issues relevant to the particular case. Going into the impugned judgment, there is no doubt that the Chairman adhered to the requirements of the law. That is, having summarised the facts forming the case he ascertained issues and finally determined them with reasons for his findings. With regard to the opinions of the assessors vis-a-vis the facts in issue, it is my strongest view that the chairman was right to depart from

them. This is due to the fact that the basis for the 2nd respondent to sell the mortgaged property (the suit property) was due to the breach of the terms of the loan contract by the 1st respondent. Clause 6 of exhibit D6 (the Mortgage Deed between the 1st and 2nd respondents) is emphatic on this, it reads: ''Natambua na kukubaii kwamba iwapo nitashindwa kulipa mkopo huu kwa muda uliopangwa (yaani miezi kumi na mbi/i toka siku ya mkopo kutoiewa), au iwapo nitashindwa kufuata masharti ya kukopa kama iiivyoainishwa katika mkataba, benki ina haki ya kuuza nyumba yangu Hi kulipa deni ia mkopo iitakaio kuwa bado nadaiwa. Natambua kwamba benki inayo haki ya kuuza nyumba yangu wakati wowote iwapo nitashindwa kutekeieza masharti ya mkopo huu bi/a ya benki kuiazimika kunidai kwa maandishi. Benki hata hivyo itatakiwa kutumia utaratibu u/io bora zaidi katika kuuza nyumba yangu (yaani kv/a njia ya mnada wa hadhara). "Emphasis Added. Based on the above mortgage deed, it is shown that some of the terms and conditions in the loan contract were that the 1st respondent was required to be repaying the debt on monthly basis for the period of twelve months. However, the 1st respondent managed to repay in only two months. That being the case, as the tribunal Chairman rightly found, it was wrong for the assessors to hold that since the loan was expiring on 20/08/2017 then the 2nd respondent illegally sold the suit property on 21/05/2017. In light of the foregoing discussion, I find this appeal non- meritorious and it is hereby dismissed in its entirety. In the circumstances, I make no order as to costs. It is so ordered. Delivered at Dodoma this 2nd day of July, 2024. F. R. KHALFAN

JUDGE 2/7/2024 14