20200226 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM LAND APPEAL NO. 23 OF 2017 {Originating from Judgment of the District Land and Housing Tribunal for Temeke at Temeke in Land Application Nq. 188/2010 by Hon. Chairperson Mwakibuja} M/S MSOLOPA INEVSTMENT CO. LTD ........ 1sT APPELLANT !SHARA SOLOMON MGHUMBA ................... 2No APPELLANT ABDUL HAMZA M USHI ......-.-. i .-.-•• ~-~:. ~ .- • -~ ~ .-~ -~ ~-~~-~ ~ ~~-:3RD j~-Pf>E - - -- -- -- - - - - - - - --- . Lt.ANT

VERSUS PAUL WEREMA ......................................... 1 ST RESPONDENT JAPHET PHILIPO ................................... 2No RESPONDENT

SMALL INDUSTRIES DEVELOPMENTORGANISATION ...... ....... 3Ro RESPONDENT Date of last Order: 21/02/2020 Date of Ruling: 26/02/2020

JUDGEMENT MGONYA, J. Aggrieved by the decision of Temeke District Land and Housing Tribunal of Temeke in Land Application No. 188/ 2010 the Appellant in this matter sought for an appeal before this Honorable Court with 6 grounds of appeal against the aforesaid decision, as herein below:- 1 ,-- ~ ....-- - .

1. That, the Trial Court erred in Jaw and fact by failure to take into consideration that the public auction was consideration that the public auction was conducted after the 1 st Appellant had been authorized by the Court and the :rd Respondent to auction the 1 st Respondent's suit premises.

2. That, the learned trial Tribunal erred in law and in fact ""by failure to "take into account "ihai: the rd Appellant bought the 1 st Respondent's suit premises namely TMK/MBGK/KJC22/213 which comprised of the house.

3. That the Trial Tribunal erred in law and fact by failure to make findings that the 1st Respondent had put a security the house in dispute to the :rd Respondent and the instruction to the third was that upon default was that upon default his mortgaged property should be sold and the 1 st Respondent did default to pay the loan monies.

4. That the learned trial Tribunal erred in law and fact by failure to take into account that the :rd Appellant was a bonafide purchaser.

5. That the learned trial Tribunal erred in law and in fact by failure to take into account the documentary 2 . 1.-, evidence could be valid by documentary evidence and not by oral evidence.

6. That the learned trial Tribunal erred in law and in fact to hold the way it did. When the Appeal was placed before me for hearing both parties appeared and the matter was argued by way of written submission. As from the submission of the parties it has come to my knowledge _that the Appellants are aggrieved by the decision of the District Land and Housing Tribunal which was not in their favour. It is the Appellants complain upon the decision of the District Land and Housing Tribunal that the Auction held by the 1st Appellant had been authorized by the Primary Court and the 3rd Respondent on auctioning the 1st Respondents' suit premises. And that the Tribunal had failed to have taken consideration of the documentary evidence available and that where there is documentary evidence it is valid and that oral evidence cannot supersede documentary evidence. However, upon default by the 1st Respondent in failing to pay his debts, the 2nd Respondent opted to institute a case before the Primary Court at Temeke to recover the loan while the 3rd Respondent opted to appoint the 1st Appellant to do the needful. 3 Therefore, it was erred by the Tribunal to hold that there was no appointment of the 1st Appellant to auction the 1st Respondent's house by the third party then. It is the concern of the Appellants that if there was no such appointment for the 1st Appellant to auction the 1st

Respondent's house, how then did the she receive the proceeds of the public _auctio-□ and_how .did_ th.e residential. license-wbich w-as -unGfeF the - custody of the 3rd Respondent get to her possession? Moreover, the Appellants aver that the 1st Respondent had obtained a loan from the 3rd Respondent and security to such loan was Residential License No. TMK/MBGK/KC22/213 and its developed house No. MBK/MTK/129. Upon default the same were auctioned in a public auction to release the 2nd and 3rd Respondents' loans. It is in the submission of the Appellants that the auction by the 1st Appellant was lawful and legal since the order for the sale of the property was authorized by the Court and the 3rd Respondent as a result of these two orders the property could not be saved. It is the 2nd Appellant who was the highest bidder and therefore making him a bonafide purchaser; the 2nd Appellant later sold the property to the 3rd Appellant. 4 The 1st Respondent's submission to the appeal has the contention that the auction that was held by the 1st Appellant was unlawful since the order of the Primary Court had not included his house as one of the properties to be sold as a result of defaulting to pay his loan. It was the Courts order that the piece of land adjacent to the disputed house was what was the order of the Court. It was the 1st Appellant's own motion to include the house -- - - -

rn the auction f6 reasons kn-own- to the 1st Appellant. -However, the land that was obtained from the 3rd Respondent was a loan by the Company owned by the 1st Respondent and that the company being registered under the Companies Act is a legal person that can sue and be sued. It was then erred by the 3rd Respondent to have acted towards the 1st Respondent on his personal capacity instead of the company. The 1st Respondent avers in the submission that refereeing the 3rd Appellant as a bonafide purchaser by value is bad in law since this appeal is against a decision that the house was unlawfully sold without any justification. The 3rd Appellants purchase cannot be validated by unjustified illegal executing process and therefore submitted that the decision of the District Land and Housing Tribunal was right by holding that the Primary Court ordered for sale of the piece of land adjacent to the house 5 and that the 3rd Appellant purchased the land, the house was not sold on that day. From the submission of the 2nd and the 3rd Respondents in reply to the appeal, after I have gone through the submissions, I find that both are on in the same line of argument as the 1st Respondent hence forth their submission. I refrain from reproducing. but urge that the same will be part of what will form the decision of this court. Having thoroughly gone through the grounds of appeal and submission

of the parties, I take it of importance to discuss the appeal by consolidating the 1st, 2nd ,3 rd and 4th grounds of appeal. It is from the face of record that the District Land and Housing Tribunal of Temeke had a Land Application before it in challenging a sale by auction that was ordered by the Primary Court in a matter that was before the Primary Court of a civil nature. It appears that the order for sale by the Primary Court as evidenced in records was for a piece of land that was adjacent to the 1st Respondents house. But however, the sale that the appointed Broker carried out comprised of the piece of land together with the house in it. 6 From the public auction that comprised of the piece of land and the house is where the whole dispute arouse. The Broker who is the 1st Appellant in this case states to have acted upon the court order and the order by the 3rd Respondent who also the 1st Respondent owed money which he had secured a loan from the same and had defaulted. - In-the· records the Primary ·Courts'- order states ~'KIWANJA KILICHOPO NYUMA YA MAKAZI NA. TMK.027360 ARDHI NO. TMK/MBG.KCJ22/213 ILIYOKO MTONI KIJICHI". This order was a result of Civil Case No. 16/2008. Between Japhet Philipo and Paul Werema Chacha. It is in the records and the submissions that the 1st Appellant is the Agent of the 3rd Respondent in collecting debts of clients that default in paying

their loans. And in the records the 1st Appellant after being notified to collect debts from defaulting clients of the 1st Appellant wrote a letter to inform the 1st Appellant that the 1st Respondent being in default is also facing a Court order for sale of his piece of land and that the 1st Appellant should use that opportunity to order the 1st Appellant to auction the same to recover their monies. This was such a misconception by the 1st Appellant in misleading the 3rd Respondent. 7 The 1st Appellant should have taken note that the 3rd Respondent was not party to the suit which the order for sale of the piece of land arouse from and hence there would be no legal rights to execute the idea sold to the 3rd Respondent by the 1st Appellant and that the 3rd Respondent has no legal right to benefit from the order. The act of the 1st Appellant has no any colour of right to succeed -since- -auctfo-nin~f if -property- not-nam-ed--in- the 0rder-is- -- -- ___ _ illegal and unlawful. It is strictly a practice that in auctioning properties only the property named or listed in the order is the one to be auctioned and not otherwise. However, it is in the record that the person that obtained a loan from the 3rd Respondent was 1st Respondents Company known as "PAWECHA PRODUCTS" and therefore attacking the 1st Respondent at his personal capacity was a misconception and unlawful. Therefore, I

firmly stand to say that I join hands with the decision of the District Land Housing Tribunal to the aspect of sale of the house. In view of the 5th and 6th ground of appeal, it is my view that the 1st Appellant was the misleading party to the 3rd Respondent via letter dated 20th October 2008 to the Manager of the 3rd 8 . Respondent. The letter aimed at reducing the 3rd Respondent to order sale of the 1st Respondents' land just because the 1st Appellant was appointed a Court Broker by the Primary Court for sale of the 1st Respondents piece of land. It is my view that the 1st Appellant took advantage of interests best known to him to auction the house. That is to the effect of the denial of the 3rd Resp_or1d~nt _to _!l~v~ _oi:_dered tbe 1st Appellant to_ auction -the - house. It is my view that the averments on documentary evidence to be valid by documentary evidence would not stand in thrs manner to cover the mistakes of the 1st Appellant. From the above I find no reasons to quash the decision of the District Land and Housing Tribunal but rather uphold decision of the Tribunal delivered on the 4th day of October 2018. The Appeal is hereby dismissed with costs. Order accordingly. Right of Appeal Explained. i4r~ L. E. Mgonya

JUDGE 26/02/2020 9 ,. . li ¾ Court: Judgment delivered before Hon. J. E. Fovo, Deputy Registrar in chambers in the presence of the 1st Respondent and Ms. Janet RMA, this 26th day of February, 2020. k'- L. E. MGONYA __ ~==:--.... JUDGE ----------2-at-021~02.o__ _ 10 ---------