19971212 TZCA Dar es Salaam

I •toa•••-,••toJcO(lf!,ftO•c> (Appeal fro::,1 t;1e Jwlc,nent and ';)ecree of the H.ig!1 Court c.f To.u:~ania at· D2,.;'.' es 3alaam) ( lfohalJ.a ,. J .) . cL,ted -the 1st day o:f July, ·1994 in .c. ~.Y..\~ .~2::i_:~e. _;:j: q_ ••• J~.Q _(?f. ..1.9..9._~ JUDGH:~.,.'.J'2 ~ OF ..•. - ...·-·· . ................ .,.: TH.8 COURT _.,. ,..._, __ ·- ·----,-~,-~ ......- RAV1i1DI·IAr-f I' J • A• ~ -••--•-•--•-•-' W•,••••• - • ~ The res9ondent, !Jal ter. 'I'. Czurn, was the owner of' a r~·.: .... of' iccupancy ·over an i:igr::.culturo.l laud, Unit .i•To. h, ;}t Jha 1.ll":;_ >Toyo in ;·1.:=.igugu, .ds.bati District, Aru.sh-:1 :{egion~ under a --(J' l in ·1959. Out of >. total of r, 550 acres, he cleared ,3.nd use.J. l'--· onJy l~OO Oi1 -,..•ijicl1. · he c1.1.ltivat1:~J :-i.. number· of crops for export_. The re~pond2nt in 1960 obt~ined overdraft facilities from th~ depos::.. ting hi:3 -ti·clr::• cl.eed. Th,1se facilities contj_nued even• 0 I after 'I 967 when (·111 b3n1~s were nationalised and the National ' Bank of Corn111erce (i-J'.JC), the appellant Bank, e::1me into bein~~· In 1981 the appellant Bank decided to create a mm~tga.:~e ::Je,,-. \ to. be secured by tile title deed oJ." the respondent. T11e mo-- \ deed was sig.ned by the parties on 14/12/81 and se.::111.➔d ,:iy t:., appellant .Bank 0::1 28/12/81. . .. /2 In 1983 hie respondent was diagnos'ed to have cancer and ·\ the experts at \he ·;·:Ci-IC Hospital advised; him . to go for treatme~1t "r,,. :' ). - -1 !•. . i . I abroa<;i (Exb.. P1 )\. 'I'he respondent proceetled to Germany after \ . . \ -,r ~ he had made a vei\bal arran·gement with Reir. ~'ather :like. Bar<' (PW ,4), to look a:fter the said farm in hls absence. The . res:porident admits that he neither reported his departure to ·c.t12 . appellant Bank no.r did he·· know the balance of his debt. 'l'h2 ·appellant Bank conceded to hnve received a letter from the respohdent in hospital giving the details of his illness and .I treatment abroad • Sometime in '1986, while the respondent was still undergoing treatment, Father Barry wrote him saying that ··:his · farm had. been sold by the appellant Bank. The res:t)ondent wrote . the appellant Ban!< on 12/8/86 (Exh. :01) · wanting to know the name and the address of the buyer. The appellant Bank replied 1 vide its letter 'of 3/12/86 (Exh. P2), signed by Mr. Kobelo (ff· 1 ), saying tha-t the farm had been sold for Shs .600, 000/ == and that that was done under the powers contained in clause 1-1 (a)· r.-f the mortgage deed. The letter further disclosed that the _property had already been transferred and registered in the purchaser's ~~} name. However, the name and the address of the purchaser were not disclosed. In his evidence in court, ~r. Kobelo admitted that at the time l1e wrote the letter, transfer of the property had n~t been·effected, Th'= property . was. tf,ansferred . to the I j . . first . purchaser, . Harish . Jiwa 0ghad, who was'. the second defenda.nt · . . 1 . in the suit, on 27/6/91 wh.ile registration l1as on 10/3/92 . ! shown in th.e transfer ~eed (Exh. P7). . . . . . S-tmetime in 1990,. the ·respondent returned briefly to Tanzeriia and instructed Mr~ Jo~eph D'Seuza (PW2), learnod ·• .. /3 I. 3 vocate, to :file a ca:veat (Exh. P3) with _the Land ilegistry, ~ ~ .._,., I ;' Moshi l · That was done on 17/9/90 an-1 the res-i::>ondent went back to Germany, PH2 fu!·ther said that he complied vii th the requi- rements of ss ~51 3.nd 78\ of the Land 11.egistratioh Ordinance, Ca~1 334 but. no communicatio:.1 was made to him even thoutsh the prof.1erty had bee·n transferred twice~ The respondent came back to Tanzania sometime-in 1992 and on 14/8/92 he filed the suit; t/12 subject matter of this appeal, aga'i1tst the appellant Bank, Harish Jiwa Oghad, the first purchaser, and Kilimangu Ltd., t.::12 se.cond pu:t:'chctser. The respondent prayed that the sale of the farm, on both occasions, be found null and void:and. for a ' declaration that the resp0!1dent is still the lawful owner of ~ the farm and that he is entitled to compensation for special damages suffered and for loss of profits. ' Only the appellant Bank filed a written statement of defence and entered appearance, the other two defendants did neither; The appellant Bank brought in Mr. Kobelo (DW1), wh•, at the material tiiile, was the Chief .Manager Incharge of Legal arid Trustee Services Department, Me told th2 court that he sent C). a demand notice of payment ~f mortgage debt to the re3pondent on 14/6/85 (.Sxh. D4) • .However, he admitted thr1t the letter i might have gone astray and that it did not reach the respond2iTt as it was wrongly addressed.· He also confirmed that at the time. of writing Exh ~ D4, they had already invited tei1ders for the sale· •f the farm. DW1 could neither sav in' which newspap2:c:3 were the invitations for tenders advertised nor could he say how many tenders t•tere received. In .fact, he could not even produce the tender sulJmi tted by the f .irst purchaser. All th·~.t was produced was a letter of 1_1/11/85 (l~xh. P6) froill DW1 to t~2 first purchaser inf arming him -t;hat he has been ~warded the tcti.-::l,Jr ... /4 ii ii ·-_,,,-r--r----=,.··~-1----------- 1 4 i. to his dJplication of 6/6/~5- Then DW1 conceded that on 6/6/85 when th'.:? f ir3t• purchaser wrote his application, the t ' time for receiving tenders had elapsed. Time ran out in May, 1985. NCIU.LLA, J. for·mulated ten issues cJ.nd at the end of th,:? day he gave judgment in fe.vour_.of the res'Jonde.i1t. The le,irn.:o·.1. judge was satisfied that the appellant Bank did not senrl any notice demanding payment of the niortgage· debt to the respondent (fl) for the simple reason that the purported notice, Exh. D4, bc,r,,~ a wrong address. Following that determination, the learned judge held that the appellant Bank had no legal right to sell C$ the mortgaged property and, consequently, there was no sale at all. ivtoreover, the purchase price was found to be grossly inadequate and this, together with other evidence,satisfied the court that the sale of the· farm was made secretly and in collusion between tri,~ •fficers of the appellant Bank and the first purchaser. That, too; nullified the sale. So, the court -was satisfied th,;:t; the farm was nlt validly transferred to the. first purchaser for two reasons: lne, the appellant Bank wrongly exe.rcised his - pow·er of sale of the farm and i two, ·at t'le time of ~he purported transfer, there was already a caveat filed in . . the Land Registration Office, Moshi which wi:ls disregarded. I The ·'court w:.is al so satisfied that the respo_ndent, as the C:iveator, was not served \v.ith the statutorY,' notice under· s.-'/l-3 (6) •f . 334, the Land l-tegistra.tion Ordinande, Cap . :. before . effecting J. : ' the transfer. A.s to the claim o/ loss of. ~ntici~_:,ated inc om<.~; the court found tha.t there was none but gave Shs .50, 000, 000/ =· as general.damages. That decision has agr'.rieved the appellant Bank anrl. hem:.;c-) this appeal. Be:forc u.:, the a:_)pellant Bank was represented by ·'· •:,, ,, "-ho r~.c:monde.nt was advocatec~. ·'i . ....,,_,. I . .- .... .., 5 nf appeal. \\ l}ut 'for thG determination· o.:f this appeal, l we are of the opinio~ that three matters are of crucial I importance. F'irst, h;?d the right to sale th~ mortgaged. property, so as_to satisfy the s2cured debt, accrued? ;second; regardless of the finding on ·che first issue, was the mortgaged property s ~ld .. se_cretly and L1 c.ollusion be·tween the appellant ~'Janlc arid 0 the first purcha.s2r ::lnd between the latter an:l · the s1.0cond purchaser? Lastly, '.!ho.t are the 1~emedies to· the :r,arties? • i Let us at th2 outset make it abundantly c12ar that two (.7 matters are not in dispute. First, the n2sp•ndent vJas indebted t• the appellant Jank. Second, the respendeht went for c· treatment abroad without informing the appeilant Bank a!ld \•Ti thout knowing the degree o:f his indebtedness to the appellant Ba::1.~<: ~- Had the right to sell the mortgaged pr'operty accrued? 1'1s. Bigeye main:tainecl that the right had acc:rued. 3he so.id that the loan was on a yearly basis and that the overdraft was to have been paid 2t the end of 1983 but it was not paid ev0n by '1985 ~ So, the l2arned advocat;e argued, · the appelL.=mt Ba1i.k . I fi had the. right to :foreclose· and -Hi.at the failure to rc;>a.y: brought Clause 11 of the 1'lortg,~ge Deed ( Exh.; P4) into play. ~-- Trtat clause, 1vis. B152yG pointed' out, reL~rs to the :3tatutory ., pewers c.onferrod o;.1 mortgagees by the Cenveyancing and Law •f Property Act, '1881 (hereinafter referred to as the '1881' Act). . . The lear11,ed advocate coi1tended that s. 19 of the 'i 8131 J·\.ct ' gives~ mortgagee _the pow8r to sell a mortgiged pr6p~rty ~hen the mortgage· money has become due. She· pointed out :further .. .that s. 20 •f the· •i m:1 ;\ct provides thnt the p01·.Jer of sale of a moftga.g.e property i::; exercisable vlheh one of ·th~ t1tipuln"ted three conditions· is t1et. She also ref erred; us tq the L.~.~!. }?.f I eti. at p. 903 on the ! i ~~,I~' . " l.... -'I 7· ~- I ;l . 6 ,'- (( ' . Comments on s. 20. One/ of those_ three condi tio~s, she point.:;,1. I out, is if a provision . \contained I in the Act or in the mortga;c deed is broken. The lel3.rned couns~l argued that the respondent • breached Regulation 6_of_ the Land Regulations, 1948 when he left the premises, a right of eccup-3t1cy. of land for agricultural purposes, under the care of anot})er person for more than-two months without the approval of the President. So, she maintained that that breach gave rise to the right to sell the mortgaged· property without notice under Clause 11 of the- @ .... · ·Mortgage Deed read together with ss. 19 and 20 o.f the 188'1 Act. •Ms. Bigc~ye ,· in the al terna ti ·Je, it would appear, argued fui~ther that in any case a notice in the form of the letter of 14/6/85, Exh. D4, was given. She admitted that the letter was wrongly addressed, but she imputed the fault on the respondent who left the country without giving his proper 13.ddress. In any event, she argued, since the letter was not' returned to sender, then it r.1Ust have reached the respondent. () Mr. Chadha in his Teply said that the ovetdraft was a ' continuing affalr which had no limit as t• the amount to be advanced or as to the ti'me ·:ror payment. i He con,ltepded that a notice of demand had to be given and served ·by registered post as provided under ·s. 11 O of the Ll3.nd Registratibn Ordinanch (Cap 334 }:. He pointed out that i~tr. K0 belo · (DW1) conceded that the demand notice might not have reached the respondent. Mr. Chadha subm.,_tted that since there was no der1and. notice/ for the. payment· of the., moneys du~.:, then the right· to sell had -not accrued and the sale was unl'c)wful. J Let us first see what th~ ~arties have agr~ed in Clause 11 of the Mortgag~ Deed: 7 j 11 . "(a) At a~y time after the ·principal moneys and· interJ~st hereby° secured have·. become payable e:i!ther as a result of a lawful demand by the Barile ( or under the Pprov1.sions of Clause 10 . hereof) . the Bank shall thereupon i immediately be entitled without a1\y previous :notice to or concurrence on the pJrt of the i1ortgatsor to exercise all statutory powers conferred on Mortgagees ( by the ccimveyari'cing a~d L.aw of Property Act, 1881) intluding the poJ,er to appoint a R 8 ceiver and t~e power I of sal2 but without the restricti6ns ( imposed by Section 20 of the sai~ Act)• •• 'I: It is abundantly clear to us that the parties have agreed that· all the statutory powers 'conferred o:h the mortgagees under s. 19 of the 1881 Act become exercisable without any previous notice enly when "the pri~cipal mo•1eys· ~md interest hereby secured have become payable; 1 • These principal moneys and interests· secured become payable if one of two things happen. ".Ei the_r as a result of a lawful demand or under the provisions ofr · Clause. 1b·i. i · After travelling through the contents of Clause 'IO, we are satisfied that it is inapplicable here. If only to illustr8.te "' .J... that our satisfaction is well grounded, we reproduce the whole .. .. of that clause: . 1-0. 'l'he princip·a1 moneys and interest her'eby secured · shall bec,,me immediately due and ·payabl;e:- I' (a) If e. der.1and is m8de by the r1an.k for the I repay}ilGnt of the. principal money;s and inter0st hereby s2cured under th,e prov.~sions hereof and if the i'1or.tgagor shall ' make default in ' repaying. sµch ! in SU.'llS full within two days of 'such demand being made; or /n ,· -,- / .,_ ·,1 ../ \ 8 \ I (b) if the ,-~crctgagor shall make def au~ t in the perfonaal'\c,~ or observanc•2 of any df the • I . covenr-ints I or obligation herein coritain,xl or impiied, ( ~th2r. than for payment of mo~12y); or • I (c) if a distr2ss or exec·utior1 either. by virtue of any court order, decree er process or by "' appoL'1tlilent ()f a receiver is levied upon any part of the rriortgaged property or against any_of the chattels or other property or the Mortgagor situate on or abou~ •r b~lon$ina to th2 mo:;~tgaged prop::-?rty and the? debt for dhich L.?vy is rnade or annointcd is ·not paid .. off within severi days; or (d) i f a r2c,:..::i..·Ilng order ls mad.,e or any effective bankru:;;:,tcy petition is filed against any of the dortgagors; ~r ( e) if tl.w title o-f any part of the mortgaged property shall i'or a.ny .reason be termL1ated. The appellant Bank has not alleged that~ condition of ttte mortgage, oth;=r than payment of moneys due~ has 1Jjen breac.l:1c'rl ui:1.dei' sub-clause? (h) or any of the mJ.tters mentioned in sub-- C' ciauses ( c J, (d) :lnd ( e) has taken pl;ac.e •.. , 5·•, : possibly the ~ n1y . . t. stipulation in Clause. ··10 which. mir;ht be relevant h{~rt::! is .• j ! sub-clause _(a) -whiblV tnlks· of a demanµ for pay:~ent having been I ·,. inade by th1l .appellant Banl?. This brin;ss · us to ithe li.t'st .t I stipulatinn of c1a·use 11: a li1\·1ful demG.nci. 'dad there a law~ul l de,nand by the appellnnL Bank? f . ·Mr.Kobel~ (D~1) said that they had writien a letter to the respondent, Exh. D.2 but then .admitted that th2 address on· Exh .D2 was different from trw address on Exh. P2 a;,1d added 11 Due to. the discrepancy in the address, the not.tee, Bxhibit D2, may not have reached the plaint.1.f f. Indeed, ther2 j_s no :gro""f that the said notip.e reached the plaintiff;,. If V1(:t is hot I ,, and to put the n.3.il into th,= coff iri, the parties have Clause 14 of the mortgage as follo~s: '-~ Any d~maxid or riot ice re 1uired or· authorised by this i~lortg::1.ge . ( to be served by·. th,? . Be.n.k on the. i/fortgagor shall be addressed; to th2 i.'·Iortgagor at the mortgaged propeirty or at the , plac,'.) of busin2ss of the T-Tortgagor in Tanzania•. . . . . I last 'lmow:1 to the Bank or at the p•-stal address list known to the Bank cind the same; ' shall be dee.112d to 11ave been .served when it wou,ld in ordinary course have rJached its destination and in proving such 1servicc it·· shall be sufficient to prove th6t the letter conttininG . the notice was prope:t'ly.addrcssed I to the Hortgagor and duly posted. ; (emphasis is •urs). . The appellant Bank has failed to prove service &.s ,. i requir;ed by the Mortgage D~ed. Of course there. is also s. 110 ~f th·e Land a.egistration Ordinance which demands th.at the notib·:?. should have been sent liy registered post1• TI-iere is nothing/ left for us exc.::pt to hoid that there· was no such la.wiul demand·., which. sparks Clause 10 into .operati6n. •' ~- . The appellant B.s.nk has also relied heavily on section 19 f. of tha ·188'1 ;.:..ct. ..-!,) must :first state, as the. learn.ed trial judge did, that uncl1:~r ·the provisions of sectien 2 (-1) of the Land (Law "'f PropertJ' and Conv0yancing) Or.dinance, (Cap .,-14) read together ·11it'.i:1 s~c.tion 2 of the Judic_ature· and ~\p:,;)lication ~f Laws Ordi~ance -(Ca.p 453); the ·1881' Act·applies in 'l'anzania . ' . '. ' ' with resp_eqt to mortg-'le;es •. Section 19 of that /1.ct provides; ' 1, •· ( 1 ), !. 1-~ moi~t&n<'i~e, wherii the ·mortgage is mr-:.de lJIJ de-::< 1, -· 'by virtue r,f t:lu$ , · ·: sh.all,(. Act, hav~ the following powers, to the like e~ten"t as i,f they had been in ter111s confer~ed by the mortgage de~d; but not iurther ( na1pely): ' \ . . .: _l .. I \\ I 10 (i) A Jwer, when the mor1lgage money has i beco?1e d~~.re, ·to sell, or toconcu1i with any·. other person in selling, the mortgaged property, or any. other_ part there:•£, either subject to prior. charges;'_ or not,· and either together or in lots, by Jblic auction or by private contract, ~ubj1~ct to such cbnditions respecting title,· or evidence of title, or other matte·1~, as he ( the mortgagee) t~ihks fi~~ with pbw~r to vary any contract for sate, and to buy in at an auction, . or to . rescind any contract .for sale; and to re~sell; without being artswerabie for any loss iccasioned thereby, ••• But ~ven uiider this section the. powet' to sell ithe mortgage ; prbperty is exercisable only when the mortgaged money has becotil-3 due, Thi:?. issue is when the mortgaged money can be said to h~1.v.:: bee 6me · dtiel'l To determine that the provisions of s. 20 have been res ~j:r•·';.:.:d to.~ · That secti·on stipuiates three conditions. If any one of .pt~w:~e·r~~f:fe is met, then a mortgagee can exercise the statutory 4 o 1, sale. As aiready explained above, scholarly arguments .' have been advanced by both partie_s and_ the learned triai judge . . 1,: went to a considerabl.e extent to discuss those; provisions. ~ith due. r~spect . to the learned judge, it is our considered j I ~pin.i6n_that that section is not applicable. ['he parties in I • I . Clause 11 At. the. Mortgage D~ed. .have expressiy brr.ivided that! ·· At ahy time· after tiie · principal moneys a~d interest . ,· : her~by secured h;ve b~come payable eithe~ as a·. resuit of .,.. a lawful demand ·by the Bank (or.under ' the previsions of Claus~ 10. hereef) the Bank shall thereupf'n ·immediately be entitled without . any . ••• /11 ·-II ·' .· / ,- 11 . ... previous notice tq or concurrence oh the part· of the M•rtgagor to exercise -all statutory powers conferred.on Mortgagees (by the Conveyancing and the Law of Property ~ct, 1881) including the power to appoint a lleceiver and the p0wer of sale but without the restrictions (imp..,s~d by Section 20 of' the said Act) ••• Soj the three restrictions imposed bys. ~o of the 1881 AGt . . have been categorically excluded by the parties ... All- that is necessary under the ivlortgage Deed is for ~he principal moneyr:: and the interest to become payable as expiained above and th,.~ i .statutory powers of sale are exercisable,: I I . . We shouid add here that s ~ 19 of thJ 1881 Act, which s,_,·t : · out those statutory powers• is 1oud and clear in sub... section !, ~:; that: This Section applies only if and as far as a contrary I intention is not expressed in the mortgage deed, ancl (,;,. shall have effect subject to the terms of the mortgage q deed and tottii2 provisions therein contained • ... •. ~-- The Mbrtgage Deed (Exh. P4) has expressed two vital contrary intentii-lrts ~hich are-materiRl to _this d;i.sput;. First, the ' ~ I statut,Airy p,wers of sale undetl s_. 19 of _th:e _1881 Act become exercisable :("Inly- whqn the -.principal moneys ~nd interest become payable as a result of the satisfaction of one of· the.two stipulated conditions. If that is fulf ill,ed, then the second . . contrary intention is that the restriction.s in s •. 2.0 of the 1881 Act.do net apply. • .• /12 12 ! The .situation thGn is that: there was rtol! lawful demand by' i secured by t,he Mortgage Deed (Exh. P4) did not! become payable ~ and therefore the appellant Bank could not exercise the statutory, powers under s. 19 of the 1881 Act! It follows then, that the sale of the mortgaged property to the first purchaser was. unlawful. Wa~ the sale between the appellant Bank and the first ~ . purchaser conducted in secrecy and in collusion? In other word.~:, ~ · ·can it be said that the £irst purchaser was a bona fide purchaser for value? Ms. Bigeye contended st.rongly that the sale was not dono secretly and in collusion between the appellant Banlc and the. first ·purchaser. The learned advocate·argued that there awas :1 t~nder by the first purchaser, a letter of 19/4/85, Exh. D3, ' . : offering to buy the farm for Shs.425,000/=. She contended further that that tender is mentioned in in Exh. D5, a letter- .i of 3/7/86 from the Hegiona;i. Principal· Assessor{ to the appellant · ' ' Bank. Mr. Chadha replied that DW1 admitted that Exh. D3, which is taken to :be the tender by the first purchaser, was submitted ' in connection with another farm, according to :nw1 himself. So, Mr. Chad.ha submitted, there. was no tender by i}he first ·purchas-:.::r. l i' I This matter of whether or not the same was conducted ' secretly and in collusion, was the second issJe formulated by ' the trial judge and he was very elaborate in ttis discussion o~ · that issue. We qupte him in e_xtenso: ·"With regard to the 2nd issue I ~lso find that the same is ·in th~ ~ffirmative_ f9r· the following reasons as. stated by tl-'le plaintiff, and as contained in Mr. Chndha's Written. .------r.,1:-----'••· •·•·. I , /I /" 13 published. No such Newspaper was produced in court to support that fact.· Further, ---:--------------------t-h.-e-~---w_a_s__ .!1Q_ receipt tender to' support .. payment of public a-ti~--;;:- ctiar gt? s :"-to -t}:'fe---~---·- ----~--------------------- ______ _ publisher of the Newspaper in ~espect of . invitation for tender to purchase the plaintiff's farm. Also the numbc~r of people· and their names .. who submitted their tenders was not ascertained. There was only one Singh whose letter of tender was tendered as Exh. D3, but DW1 denied that the said tend.er was in respect of the plaintiff's farm. So, only the 2nd defen~ant remains but • • • I whose letter of tender in resipect of the plaintif.f 1 s farm was not produced in this case. ; .The snid tender was simply rJferred to. in a . letter from the 1st defendant bank dated 1.1/11/85 (E.xh. P6) indicatini that the 2nd defendnnt had submitted his tender dated 6/6/85 long after the closing date had expired for·submitting tender. Under the circumst::::.nces the letter Exh. P6 was also an eye-wash to cover up what was in fact a conspiracy between the 1st defendant and 2nd defendant to effect the.sale of the ·plaintiff's farm secretly. Although the law . . does not prohibJt the mortgagee to sale a mortgaged property to a single purchaser and without pub).ication, yet once the 1st defendnnt offered for publication of the .sale by t2nder, he wc'.ls expe·cted by law and in equity to.carry . out . the:sale in that ~ode and honestly. Then there is notice of purported notice (Exh D4) *hich was issued long after the closing date for submi'i;ting tenders had.expired. Then there is ·the 1st. defend.ant's letter (Exh. P2) dat~d 3/12/86 · • in which nw1· lied that the plaintiff's farm had been sold and transfe~red to the buyer, , • I \. when il'~ fact ~~at was pot /true. Agairy the \ ·, 2nd defendant acted in co+lusipn with the· \ I ' '• I 14 1st de:i:\.:mdant and the Land Rdgistry at Noshi (with i'1r. i•lwakilema ;the Assistant Rcgistrnr of 'ri tles) and effE~cted transfer• of title.to the plaintiff's farm to the 2nd dei'endnn-t (see Exh. P7) ~hen there was a • I subsisting caveat ha~ing be~~ eritered against . . i such transfer (see Bxh. P3). 1 According to I P.W2 tho 2nd dtd end ant was quite aware of the said c~v~at a copy of which he was in po3scssj_on when he went to P\12 to seek his leg::i.J. ::idvi'cc -about the legal position of the farm in ~ucstion at that matdrial time. And 8:Ztcr securing. the trans.fer of the title · to tb0 f~.1rm into h.is name, the 2nd defendant quic!.~ly sold the farm away within jus·c four rno:..-rths for 6m/ = which was tenfold the I I ), • pricp at which he had purchased that farm ••• ii ·1 L, I· We agree with the learned judge in the way he handled th,1 matter and in his conclusion. However, we want to point out Ct few things. . One, ,it the time of ttw purported saL: of the suit premis~s, thure were only The Daily News ind its sister, The Sund::ty News, 3.S English papers and on th2 part o:f i<isw.9.hili newspapers there were Uhuru · and i•1fanyakn1 l . Surely a person in ·the position of Hr. Kobelo, DV-f1, in his capacity at that {' time as the Chief.Manager Incbarij of Leg~l and Trustac Services Department, would not h2VC failed to conduct a rGsearcl1 to . f. ~- i. . find out in wh8t issues of thcst~ papers w~re the .invitation~ for tend,?rs advertised. That he did not <lo so, invi tcs only conctusion, ti.nd that is that, there wds no· such i advertise~ent . iskinq '-· ·for tenders. But once we arrive at that I conclusion then it is contrn.dictory to sai, as the lc3rned judgt~ : I said 1uoting m·/1, tl1at at th•~ tim2 th2 first purchaser wtote his· tenclar the ti,::io for submi ttinr:; tend~rJ ha;l 11xpirtc.1d, ••• /15. Either it is acc_epted that the time for submitting tenders had expired, in which case it •is also ?CCepted that tenders were invited, or it is taken as established that there were ·,I II no tenders. Likewise, DW1 is recorded to have said that at I" iI 1 the time Exh. D4 was written, tenders; for the sale of th•2 f:-1r.;.1 !• '' had already been invited. That statetnent has been taken to "J prop- up ·.- the finding that the sale was condut,;l;t?d secretly t I r .. and in colJJ.usion. same time. But we cannot hnve our cake and eat it at tl: So, the Iinding is that t 1enders were r10t invited. I i I i. f . TJ:ie third. thing is that the record sh'ows that Mr. Mwakilema, I ! ' ! who was the Assistant Registrar of Ti/tl~s, i'"1 0 shi, was summoned I I · on three occasions to giv<-? 2vidence tjut did not appear and no I;I. witness. ,. reason was given for the ··rai'iure·. I He: was called as a defence i This invites us to make an !adverse inference that ; . ' ! if he had come· he would have · g:i.ven ev/ide.nce not favourable to - I the defence. He \lould have inade• it dlear I that there was i collusi(?n between .the appellant Bank iand the first purchaser and that was why the· caveat was ignoted. The fourth thing,· the pr'.ice paid. by the fi'rst ·purchaser was indeed very small. This i's clearly manifested by the fadt that the first purchaser soon afterwards resold the·'propGrty at six million shillings t.o the ·second. purchaser.· In fact the lea{--ned judge himself made that finding later on in his ·Judgment. The. seconµ purchaser, too, w3s,. not a bona fide pur?_h8.scr for value. He was. . ' warne:d. by ' . the . r_esponde_nt himself . ·. . . : ' ;· against . ' : buying th~ farm and y~t h~ went ahead ar,d b?ught_ it. 'l1his' toe wa.s one. of the findings of the. learn~d . ' judge. ! .·. ·so, we agree ·v,ith ttie lea'rned judge· that the farm was no· legally s·oid arid~ therefore, ·no ti:ti~: ·passed to ei th,::!l" of the ! ' . ' ,/ ' : ' ' two purchasers ·and that the .. ptopertyl remains to b·e ·that of the /1 k . , 16 ·, We may: as wcl],. point out here, a~ 9id the lerri0d jud g:J _. ' that it was not mandatory .that the sale d.f' the farm sh_ould i have been public~ It could have been pri:vate but then the appellant should h3.ve been courageous to :own what he did. I . instead of concocting li12s, As we hav(~ a~ply demonstrated, I the story u.f th~ appellant is cock and bull. i . The evidence shows i. that some of' th2 officers of the appellant Bank and some? of thos,:? I ! . of the Land Off ice in Hoshi were hr.i.nd in giovc with. the first and the second purchasers _in ef.Iectihg th~se transactions which, to put it midly, bordered fraudulent practices. F'tno.lly, we do not ·-thi~.1k that th<.? rkspondent is to be compensated a1iything :for ;-_oss of profits. It is clear from the evidence of the rcsuondent himself ani that of Rev. Barry ~ I (PW4) that. there ,wa,s._, nothing .of -conimercial. value on the farm . when the responde1'.l.t. 12ft for. Europe.· Thei-'e is also no evidenc2 . . as to when :th.e· -responde·nt would. have··,retu:bned. s·o as to .resusci- tate tlie ,·farm. I.-c is evident th~t he came b:J.ck bec_ause of the inforniatJ.on he r~:ceivcd that hln farm had ·peen sold· and ever then. he. returned to Europe .._shortly after~1ards ~, At most. the.rE-J rt could .be general damages _,.,rhicr! we F.tsscss.. shillings to be ch.3rt;Gd t·n~ ri.ormal court' tate of, interest· from ·to be ..four· million I i the-·time of judgment· of t;'1e Higb:Cour't• , •1 ,i, •, , , I , , ,·, The app~al is: d~smi3sed with costs. It is so ordered. DATED· a·•t;. .D.i~;i .if.S SALAAM; th_is 12th cta} of Decemb~.r, 1997 - . I' . '; ., ..., .. J' ,. "!, i ,. i· .,...... . I •.. /17 '·; ... i '. A.3.L. RAMADHANI -----·------ JUSTICE OF APPEAL __, __ ' B. A. SAMATTA JUSTICE OF APPEAL ----··•·--.._-~--- r· certify.that this is a true copy of the original • • ~~ ( M. ;~HL~GALI ) D~PU!1_ R§.9.J.S'_TR~~ I