iddu busanya mugeta another vs sophia chizi others 2014 tzhc 2244 18 march 2014

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA MISCELLANEOUS CIVIL APPEAL NO. 21 OF 2008 (Arising from Mwanza District Court of Nyamagana, Appiication No. 11/2007) IDDU BUSANYA MUGETA.............................................I st APPELLANT RESTITUTA B. MUGETA............................................... 2nd APPELLANT (As joint Administrators of The late Lazaro Busanya) VERSUS SOPHIA CHIZI............................. ......................... ..1st RESPONDENT AMOS NJILE LI LI......................................................2nd RESPONDENT GEORGE NYAMTEKI........ ........................................3 rd RESPONDENT ISANGI COURT BROKER.......................................... 4™ RESPONDENT JUDGMENT BUKUKU, J.: On 9th January, 2007, the late Busanya (now represented by the appellants herein), filed a chamber application requesting the Resident Magistrate's Court of Mwanza, at Mwanza, for the following orders: (i) Sale of house on plot No. 580 block "GG" Nyakato Mwanza in execution of a decree be set aside and same released from attachment arid sale. (ii) Costs of this application. The application came after the demise property was sold in a public auction on 26th December, 2006, in the satisfaction of the trial court's decree. The application,was met by a preliminary objection on a point of law raised by Mr. Magongo, Learned Advocate for the respondent to the effect that, the sale was absolute and therefore there was nothing to stay. Having heard the parties, the trial court upheld the preliminary objection. Having been aggrieved, the appellants are now in this court appealing against the said order, fronting two grounds of appeal namely:- (i) That the trial magistrate erred in law an in fact by holding that, the sell was absolutely contrary to the requirements of Order XXI rule 90 of the Civil Procedure Act, Cap 33 R.E. 2002; and 2 (ii) That, the trial magistrate erred in law and fact by not considering an application before him, hence holding that, there are nothing to stay. On 30th August, 2013, the parties were ordered to argue the appeal by way of written submissions. They both complied. I am grateful to them. i This case seems to have a chequered history. I will narrate albeit briefly as to what transpired. It is on record that, there was this case between,George Nyamtaki V. Integrated Security Guard Ltd; Miscellaneous Civil Application No. 28/2006. Whatever transpired in that case, the end result was that, the plaintiff in that case, George Nyamtaki won and became the decree holder and the defendant, became the judgment debtor. In the process of execution of the judgment decree, the suit house, situated on plot No. 580 block "GG" Nyakato Mwanza was made subject of sale, hence sold by order of the court. Upon being informed of the sale of the house, the late Lazaro Busanya immediately filed a chamber application in the Regional Magistrate's Court on 9th January, 2007, objecting to the sale. In his affidavit in support of the application, he claimed that the demise house is his since 1993, that 'the plot on which the suit house is standing was transferred to him by one Charles Kanjie out of love and affection and thereafter, he built the demise house thereon. According to the appellants, the iate Busanya then rented the house to one Sophia Chizi, the 1st respondent and Director of the Integrated Security Guard Co. Ltd. by then. It Is further claimed that, the appellant had never featured nor been a party to the proceedings in Miscellaneous Civil Application No. 28 of 2005 to warrant his house to be sold in execution of a decree. It is also claimed that, the late Busanya was neither a director nor a shareholder of Security Guard Co. Ltd. to warrant his house to be sold. According to the appe!5aif:s, there is no point in time that the first respondent ever owned nor possessed the demised house, apart from being a mere tenant. It is therefore from this background that the appellants plead that, the sale was purely done on ground of irregularity and asks this court to reverse it. In this appeal, the appellants enjoyed the services of Mr. Magoiga, learned Advocate while Mr. Magongo, learned Advocate appeared for the second respondent. The appeal was argued by way of written submissions. < In arguing his position on the first point, Mr. Magoiga submitted that, a sale can only be absolute if the property sold is of the judgment debtor. According to Mr. Magoiga, by attaching the property not of the judgment debtor then, the sale becomes illegal because, the appellants who were not made part to the suit were condemned unheard. It is from this position that Mr. Magoinga prays that, this court sets aside the decision of the trial court. With regard to the. second point, Mr. Magoiga pointed out that, the trial court erred by not hearing the application on merit. It is his submission that, the trial court ought to have considered the application on merit and therefore, it is his conviction that, by upholding the preliminary objection, the trial court confirmed illegality. On his part, Mr. Magongo, arguing for the second respondent alluded that, the sale of the demise house took place on 26th December, 2006, and that, there was no application made under Order XXI Rule 88 or 89 of the Civil Procedure Code until the same was declared absolute by the then Hon. Mgaya, District Registrar, which was made on 27th December, 2006. He thus surmised that, no application was made immediately after the sale and that the sale absolute was made after the lapse of thirty days as provided under item 6 and 7 of part III of the Schedule to. the Law of Limitation Act, Cap 89 R.E. 2002. It is thus his submission that, the court was therefore entitled to assume that no application had been made thus invoking the provisions of Rule 90(1) of Order XXI of the Civil Procedure Code. According to Mr. Magoiga, since the sale was made absolute as there was no pending application as required by law at that time, then the decision which is being attacked was proper and that, the provisions of Section 52 of the Civil Procedure Code comes to play. He thus surmised that, If anything, the only available remedy to the appellants is to file a suit under Section 53 of the Civil Procedure Code or Rule 101 of Order XXI of the Civil Procedure Code. Mr. Magongo thus prayed this court to dismiss the appeal since It is devoid of merit. In dealing with this appeal, I will start addressing the second ground of appeal. It is not disputed that, the suit property was sold by way of public auction on 26th December, 2006. It is also not disputed that, on 27th December, 2006, the then District Registrar issued a certificate confirming the sale to be absolute. Further more, it is not disputed that, on 9th ■ January, 2007, the then appellant, (now deceased) filed an application at the trial court, praying the court to set aside the sale. The Code of Civil Procedure is very clear on who, when, and how a sale can be set aside. Rules 87 to 90 of the Civil Procedure Act deals with * setting aside of sale of immovable property. When a movable property is sold in execution of a decree, an application for setting aside sale may be made under these provisions by the person affected and the grounds made therein. Such an application has to be made within the prescribed period of limitation. In this particular case, Rule 98 (1) of Order XXI of the Civil Procedure Code is relevant. It states; "98 (1) - V\/here any person other than the judgment debtor is dispossessed o f immovable property' by the holder o f a decree for the possession o f such property or, where such property has been sold in execution o f a decree, by the purchaser thereof, he may make an application to the court complaining o f such dispossession. (2) Tne court shall fix a day for investigating the matter and shall summon the patties against whom the application is made to apjoear and answer the same." >ly understanding of this Rule is that, the court is required, upon receipt of an appiication made under the above Rule, to proceed to adjudicate upon the application by holding a fully fledged inquiry and determine ail questions including the questions relating to right, title or interest in the property arising between the parties to the proceedings or their representatives. It is after this determination that the court shall, either (a) allow the application or (b) dismiss the application or (c) pass such order as it deem fit. In this particular case, what transpired is different from what is enunciated in rule 98 of Order XXI of the Civil Procedure Act. It is on record that, after the application to set aside the sale was filed, what followed was a preliminary objection raised by the respondent, which finally determined the matter. The question I have asked myself is, whether the preliminary objection raised by counsel for the respondent was legally competent, and if the answer is in the affirmative, its merit. I think at this juncture, it is proper to remind ourselves what a preliminary objection entails. In order to do so, I would like to quote Sir Charles Newbold in the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd. V. West End Distributors Ltd. (1969) EA 696, 700, wherein he stated: "So far as I am aware, a preliminary objection is in the nature o f what used to be a demurrer. It raises a pure point o f law which is argued on the assumption .that all facts pleaded by the other aside are correct It cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f judicial discretion" While in the same case, Law, j.A. had the foilowing:- " ....... a preliminary objection consists o f a point o f law which * has been pleaded, or which arises by dear implication out o f pleadings, and which if argued as a preliminary point; may dispose o f the suit Examples are an objection to the jurisdiction o f the court, or a plea o f limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration." With all due respect, that has not been the case here. The argument that the sale was absolute have not convinced and led me to accept the objection to be strong enough to dispose of the application. The objection raised, needed proof of title, right of ownership, or any other interest in that property. Under such circumstances, and based on Mukisa Biscuits case, (supra), the point of objection raised, could not have qualified to be a preliminary point. Proof was required. 10 Under such circumstances, I hold that, indeed, the trial magistrate erred in law and in fact by not considering the application before him as required by Rule 98 (1) of Order XXI of the Civil Procedure Act. I thus answer the second ground of appeal in the affirmative. Having held so, I now come to the first ground of appeal, that, the trial court erred in law and fact by holding that, the sale was absolute contrary to the requirements of Rule 90 of Order XXI of the Civil Procedure Act. In his written submission, Mr. Magongo submitted that, since the sale took place on 26th December, 2006 and thereafter on 27th December, 2006 a certificate was issued to declare the sale absolute, then the application is devoid of merit and should be dismissed. With greatest respect to Mr. Magongo, I beg to differ with his views. The reason is simple. As already intimated, where movable property has been sold in execution of a decree, any person, either owing such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside! According to part III of the schedule to the Law of Limitation-Act, an application to set aside sale, must be filed in court within thirty days from the date of sale. The provision provides:- "6. Under the Civil Procedure Code by a person dispossessed o f immovable property and disputing the right o f the decree holder or purchaser at a sale in execution o f the decree to be put in possession.............................................................................. thirty days. It is not disputed in this case that, the sale was conducted on 26th December, 2006. All things being equal, it was expected that, after the lapse of 30 days, the court was supposed to confirm the- sale to be absolute, if at all there was no application made under Rule 87, 88 or Rule 89 of the Civil Procedure Code. The question is, was the law complied with? According to the record, the 2nd respondent alluded that, before the sale, a notice of 14 days was issued and thereafter, the sale took place on 26th December, 2006. It is aiso on record that, one day after the sale, i.e. 27th December, 2006, the court made an order confirming the sale, where upon it became absolute. With due respect to counsel for the 2nd respondent, I am unable to agree with his submission that it was proper for the court to order the sale to be absolute, one day after the sale. My reasons are as follows: First, according to Rule 90 (1) of the Civil Procedure Act, a sale is mode absolute when no application is made pursuant to Rule 87, 88 or 89, or where such application is made and disallowed by the court. That is when the court shall make an order confirming the sale, and thereupon, the sale shall become absolute. Once the order is made under this Rule (Rule 90 (1) confirming the sale, the title of the auction purchaser relates back to the date of sale. Second, Rule 92 of Order XXI is very clear, it states:- "92 - Where a sale o f immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name o f the person who at the time o f sale is declared to be the purchaser and the certificate shall bear the date and the day on which the sale become absolute." According to the law, such certificate is conclusive in nature. Issuance of a certificate is merely a formal declaration by the court and 13 neither extinguishes nor creates any title. The object of such a certificate is to avoid any controversy regarding the identity of the property sold and the purchaser thereof and the date when the sale became absolute. I can add that, the issuance of a certificate is nothing but a ministerial act. I say so because, after the sale has become absolute, the property shall be deemed to have vested in the purchaser from the date when the property is sold and not from the date when the sale becomes absolute. In other words, the purchaser's title relates back to the date of the sale and not the confirmation of sale. Having established the law, one wonders, was the procedure followed? It is evident from the record that, the certificate confirming absolute sale of the demise property was obtained one day after the sale was concluded. This was absolutely wrong. All in all, having regard to the submissions of both parties, and the record available pertaining to this case, I have come to the considered opinion that, the whoie exercise was marred with irregularities which calls for the nullification of the proceedings at the trial court. The whole process 14 has revealed how the appellants were never given a fair triai according to the law as demonstrated. Under such circumstances, this court calls for justice not only to be done, but to be seen to have been done. I thus allow this appeal, set aside the order of sale of the demise property and order the demise property to be handed over to the appellants forth with. Order accordingly. Right of appeal explained. A.E BUKUKU JUDGE DELIVERED AT MWANZA THIS 18™ MARCH, 2014. 15