Final Neville Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI CIVIL APPEAL NO. 17 OF 2023 (Appeal from the Judgment of District Court of Moshi at Moshi dated 21st September, 2023 in Civil Case No. 48 of 2001) NEVILLE EVAREST RIMOY……………………………..…………….1st APPELLANT ANNA EVAREST RIMOY…………..……………………….…………,.2st APPELLANT (Both as administrators of the estate of the late Evarest Patrice Rimoy) VERSUS CRDB BANK PLC ……………………………….………………………1ST RESPONDENT ABU MOHAMED SHAYO………………………………………………2ND RESPONDENT JUDGMENT 6th & 28th August 2024. A.P. KILIMI, J. The Appellants named hereinabove being dissatisfied with the decision of the District court of Moshi at Moshi ‘the trial Court’ in Civil Case No. 48 of 2001, appeals in this Court to quash and set aside the trial Court decision with costs by the following grounds of appeal; 1. That the trial Court grossly erred in law and fact in holding that the appellants have no locus standi to sue the Respondents herein and or prosecute this matter over the suit property 2. That the trial Court grossly erred in law and facts in entertaining extraneous matters and determine issues that were never framed without even affording the parties right to be heard. 1 3. That the trial court grossly erred in law and fact in holding that the appellants have no right to question and or challenge the purported public auction over the suit property. 4. That the trial Court grossly erred in law and fact in holding that the 2nd respondent is the bonafide purchaser for the value of the suit property. 5. That the trial Court grossly erred in law and fact in failing to properly evaluate the evidence adduced at the trial and instead chose to gloss over to justify the decision reached. The matter has a chequered history, it began on 14/3/2000 when one Peter John Njau advanced loan facility at Tsh 5,000,000/= with CRDB BANK PLC “first respondent”. Evarest Patrice Rimoy (now the deceased) mortgaged his property ‘the suit property’ to the first defendant for and on behalf of Peter John Njau. The loan was to be repaid back by 14/03/2001. With interest amounting to Tshs 772,667.44/=, up to 30/03/2001 Peter John Njau was indebted to an amount of Tshs. 5,772,667.44/=as he defaulted to pay. Since the loan was secured with the suit property of Evarist Rimoy plot No. 91 at Majengo Moshi with title deed No. 4900, it was sold by the first respondent to the second respondent Abu Shayo in a public auction at Tsh 6,000,000/=. While the 2nd respondent was affecting the transfer of the title to his names, he faced several applications and 2 caveat to the registrar of titles from the appellants thus the said transfer was never completed. The version of the appellants testimony at the trial Court was that, at the District Court of Moshi at Moshi via Civil Case No. 48 of 2001 the now deceased Evarest Patrice Rimoy being the then first plaintiff, filed the suit against the 1st respondent herein, the 2nd respondent was added later. After his death, the appellants in their capacity as administrators of his estates took over the case claiming the ownership of the suit property situated at plot No. 91, Block ‘N’ section IV within Moshi Municipality with certificate of title No 4900. Their prayers as per the amended final filed plaint was, one; declaration that the purported mortgage of the suit property was null and void ab initio, second declaration that purported public auction of the suit property is null and void ab initio for emanating from a void mortgage and tainted with gross irregularities, third immediate and unconditional discharge of the suit property , General damages for loss of use, pain and anguish, Costs of the suit and any other relief(s) the trial court may deem fit to grant. After a full trial, the trial Court dismissed the appellants suit with costs for reasons that the appellants had no locus standi to sue the 3 respondents as their administration were already expired and no application were ever brought for extension of time in respect to their administration. Further the trial Court declared the first respondent as a bonafide purchaser of the suit property. Dissatisfied with the trial court decision, the appellants are in this court with the above listed grounds of appeal. The parties agreed to dispose the appeal by way of written submissions whereby both of the appellants were represented by Mr. Martin Kilasara learned advocate, the 2nd respondent enjoyed the legal service of Mr. Ikamba Robert Msanga learned advocate and the 1st respondent failed to appear but was dully served with summons of this matter as it appears on record he acknowledged the service on 27/03/2024 thus the matter proceeded in his absent. Mr. Kilasara opened the floor by submitting jointly grounds number one, two and three, by arguing that appellants being administrators of the deceased estate, they become aware of the dispute over the ownership of the suit property in 2022 during its renovation. The counsel then faulted the decision of the trial Court by deciding that the appellants had no locus standi without considering that there was no evidence submitted proving 4 that the appellants were revoked from being administrators of the deceased estates and that no objection was ever filed to dispute their appointment. The counsel added that no inventory or account filed to a probate court or a court order closing the said probate, thus the appellant had locus standi to sue the defendants. To support his point, he cited the decision of Ibrahim Kusaga vs. Emanuel Mweta (1986) TLR 26 at page 30 on powers of administrators of estates being representing the deceased and acting on and or for his behalf in court. Mr. Kilasara contended further that the trial court erred in law and facts in deciding an issue which were never framed during hearing, thus going contrary to what was agreed and framed. He submitted that it was wrong for the trial Court to raise the issue suo motu and not giving the appellants right to argue on it. He added that on 30/08/2023 only four issues were agreed but at page 13-22 of the trial court decision, the trial Magistrate raised the issue concerning the locus standi of the appellants and proceeded to determine it suo motu without affording the appellants right to argue. To bolster his contention, Mr. Kilasara said the court ought to be limited with the issues framed, and invited me to refer decision of Ex-b,8356 S/sgt. Sylivester S. Nyanda vs. The Inspector General 5 of police &Another (Civil Appeal No. 64 of 2014 TZCA 215; Ndesamburo vs. Attorney General (1997) TLR 137, Attorney General and The Chief Executive Tanzania Road Agency (TANROADS) vs. Itex Serl Civil Appeal No. 491 of 2021, TZCA at Tabora. Thus, the learned counsel was of the view that failure to accord rights to be heard occasioned miscarriage of justice to the appellants. The learned counsel concluded that the appellants were having locus standi to question the public auction in their capacity as administrators of the deceased estate. In respect to grounds number four and five; Mr. Kilasara submitted that the trial court failed to determine the framed issues as one of the agreed framed issues were whether the public auction of the suit property was tainted with illegalities. He submitted that the trial Court proceeded to strike it without assigning the reasons and instead as per page 24 of the decision; the trial court proceeded to declare the 2nd respondent to be a bonafide purchaser. To buttress his stance avows the court had to answer each and every framed issues as directed by the court in the decisions of Joseph Ndyamukama vs. N.I.C Bank Tanzania Ltd &Others, Civil Appeal No. 239 of 2017 TZCA at Mwanza; Alnoor Shariff Jamal vs. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 and Kukal 6 Properties Development Ltd vs. Maloo and others (1990-1994) E.A 281. The counsel went on submitting that the trial Court erred by shifting the onus of proof to the appellants by requiring them to prove that they defaulted in loan repayments. To back up his point that the burden never shifts unless the one who alleges discharges his duty, the counsel invited the court to consider the decision of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha, Civil Appeal No45 of 2017, TZCA at Mwanza. Arguing on statutory default notice, Mr. Kilasara contended that no notice concerning public auction were issued to the deceased in accordance with section 125(1), (2),131(1),(2),(3) and 133 (2),(3) of the Land Act 1999 Cap 113.. He further submitted that no evidence were brought forward of notice to the public or in a newspaper or a 14 days’ notice in terms of section 12(2)(3) of the Auctioneers Act, Cap 227. Further the counsel submitted that no evidence were brought to prove that the 2nd respondent paid Tshs. 6,000,000/= to the 1st respondent after buying the said property. To cement his point on issuance of default notice, the counsel cited the decisions of BUCO Investment Holding Ltd vs. CRDB Bank Plc and 2others Commercial Case No 15 of 2016, Registered 7 Trustees of Africa Inland Church Tanzania vs. CRDB Bank Plc and 2 others, Commercial Case No 7. of 2017 at page 12. He therefore pinned down his submissions by praying the appeal be allowed with costs by submitting that this Court has jurisdiction and a duty as the first appellate Court to re-asses the evidence of the trial Court as it was held in the decisions of Mwakagata vs. Verji (1971) HCD 94, Ndizu Ngasa vs. Masisa Magasha (1999) TLR 202 and Deemay Daat and Two others vs. Republic (2005) TLR 132. Mr. Ikamba Robert Msanga learned Counsel for the 2nd respondent in replying the above submissions, prayed the appeal to be dismissed with costs and the trial court decision be upheld. He chose to reply the grounds separately and starting with ground number one on locus standi of the appellants, he opposed the ground by submitting that appellants were given right to argue on the suo motu raised issue. The counsel stated that the appellants at page 51 para 2, 57, 58,59 and paragraph 62 of the trial proceedings, PW1 testified that the suit property were already distributed to one Corney Rimoy thus he was the one with locus standi to file the case at hand and not the appellants as their administration were already expired. The learned counsel stated that both parties were accorded right 8 to argue on the suo motu matter as evidenced also byDW2 at page 77 para 1 of the trial court proceedings. Replying to the issue raised suo motu by the trial Court, Mr. Msanga argued that the trial court was correct to raise it as it had a legal duty to see whether the appellants were still administrators. He argued that since the appellants were appointed on 19th day of May, 2015, the trial Court was correct to state that their administration had already expired as they were due to file inventory and accounts of the estates within six months from the date of their appointment but failed to do so. Thus, since no prayers for extension of time for their administration, any act done by appellants were contrary to the law as there is no lifetime administration. He added that the appellants were appointed on 19/05/2015 and that they were required to file inventory within six months and settlement of accounts on 19/05/2016 but failed to do so, thus their administration seized and become illegal thus they had no locus stand to proceed with the case. The counsel stated that the same was discussed in details by the trial Court decision at page 15,16,17,18,19,20,21 and 23. He stated that even now the appellants lacked locus standi to try the appeal at hand. To emphasize, the learned counsel cited the decision of Beatrice Brighton 9 Kamanga and Amanda Brighton Kamanga vs. Ziada William Kamanga, Civil Revision No 13 of 20202 HCT at pages 23-24. Mr. Msanga was of the opinion that since one Corney Rimoy was bequeathed with the disputed property, the appellants had no locus to administer as Corney Rimoy was still alive. The counsel added that representation of the deceased cannot be affected while the deceased was still alive as per section 71 and 100 of the Probate and Administration of Estate Act “PAEA” Cap 352 R.E 2002. On administration of estates whilist the person is still alive, the learned counsel supported the assertion with the following decisions CRDB Bank PLC VS. Symbion power Tanzania Limited at page 14 to 15, William Sulus vs. Joseph Samson Wajanga, Civil Appeal No. 193 of 2019 TZCA at Mwanza at page 10, Lujuna Shubii Balonzi vs. Registered Trustees of Chama cha Mapinduzi [1990] T.L.R 203. Mr. Msanga further disputed the appeal by submitting that the cited decision of Ibrahim Kusaga vs. Emmanuel Mweta (supra) was distinguishable and misconceived as the applicant’s counsel referred to an opinion of a judge and not what was held. He added that the case was an appeal from Primary Court thus different with the appeal at hand. The 10 counsel added that appellants were afforded right to be heard as the trial court considered both of the parties’ evidence and testmony. He further replied that the cited decision of Ndesamburo vs. Attorney General (supra) was also distinguishable. He was of the opinion that the trial court was correct to decide the issue of locus standi of the appellants as it was rooted into the jurisdiction of the court, thus it was to be considered by the court at the earliest opportunity. The counsel stated that the competency of the appellants as administrators were properly detailed by the trial court decision at page 13 to 23 of its decision. In regard to the fourth ground, Mr. Msanga submitted that this ground was determined by the trial court at page 8,9,10,11,12 and 13 of the trial court judgment. He submitted that as per the evidence of PW1, PW2 and DW1 both testified that the deceased failed to discharge the facility guaranteed. He replied that a notice of default was issued in march 2001 but still parties failed to pay the loan. The court broker was appointed who issued a public notice for auction of sale. Thus, the counsel was of the view that all procedures were followed to inform the appellants on the said sale, thus the trial court correctly declared the 2nd respondent to be the 11 bonafide purchaser. He cited the decision of The City Brewery Limited vs. Chhanganlal Jeraj Ganarar & Odhavji Jeraj (1959) 1 E.A. 1030. In regard to the Auction sale, Mr. Masanga stated that the public auction was conducted on 23rd June 2001 and after the sale of the suit property, Evarest Patrice Rimoy ‘now deceased’ filed this case No. 48 of 2001 against the said auction sale whose results were the interim orders and injunction. Thus, the counsel was of the view that it was a misconception by the appellants to state that no notice for sale were affected to them because at that time the case was filed Evarist Patrice Rimoy was still alive and all notices for auction and the sale of his property were conducted while he was still alive that is why after sale, he filed civil case No. 48/2001. Explaining on why the 2nd respondent failed to pay the remaining instalments to the 1st respondent, Mr. Msanga stated that because he paid 25% at the auction date, when he wanted to pay the remaining instalments, he met with interim orders and upon expiration of the said orders he proceeded to pay the remaining instalments. The counsel stated that the 1st respondent had the right to sale the suit property to the 2nd respondent as he was already paid in full by instalments. To bolster his 12 argument on the right to sale, the counsel cited the decision of CRDB Bank Limited vs. Isaack B. Mwamasika & 2 others, Civil Appeal No. 139 of 2017 (unreported). Replying to the fifth ground, Mr. Msanga told this court that, the trial court based its findings on both oral and documentary evidence adduced by the parties. The learned counsel stated that the trial court further referred to different case laws and legal provisions in arriving to its decision. Thus, the trial court did not rely on the weakness of the other part evidence. The counsel referred to page 13 of the trial court decision on how the trial court evaluated the evidence by considering the testimonies of both sides. Thereafter Mr. Msanga summarises his arguments and prayed this appeal be dismissed with costs. Having considered the trial court records, the grounds of appeal and the parties’ rival submissions above. I wish to start with the first and second grounds jointly wherein the questions cutting across for determination on these grounds is centred on, whether the issue of locus standi of the plaintiffs was raised suo motu by the trial court, and if the said issue is answered in affirmative, then the next issue needs to be determined is whether parties were afforded right to be heard. Whilst, in 13 my opinion therefore, determination of the remaining grounds hangs on the determination of the abovementioned grounds. According at page 13 of the impugned decision the learned Senior Resident Magistrate in composing the judgment had this to say; “Before going to the second issue this court find it just to have an issue of locus standi of the plaintiff. I t should be noted that the issue here is not am ong agreed issues by the parties and raised by this court. However, the same is left to be decided by this court. This court is of such observed view as the same pleaded by parties in pleadings and took enough chance in respective evidence.’” [Emphasis added]. He further continued at page 14 of the same judgment and observed that; “From those factual materials, the issue of locus stands for the plaintiffs to sue comes into play. Though the same was not raised at first as hereinabove stated this court have the power to raise it in this stage and decide for the interest of justice.” 14 From the above excerpt from the trial court decision, it proves that the issue of locus stand of the appellants was raised suo motu. Nevertheless, the trial learned magistrate proceeded to state the reasons the appellants were having no locus stand, that the appellants administration was seized and become illegal after the tenure in law as administrators expired. Thus they had no locus to prosecute the case. This was envisaged at page 20 and 21 of the impugned decision and for easy of reference I reproduced hereunder; “From the above discussion, it should be noted that, plaintiffs were appointed by the Court on 19.05.2015. They were obliged to file the inventory within six months which expired on 19.11.2015 and stamen of accounts on 19.5.2016. Thereafter their appointm ent seized or becam e illegal unless there is extension of tim e from the court w hich appointed them . In this case at this juncture, two things involve which at the end take away the authority of the plaintiffs to sue as hereunder; Firstly, the fact that the time for their appointment has expired, the plaintiffs unless they had extension of time, they illegally litigating the matter. In accordance to section 107(1) and (2) of Cap 352 (supra), the plaintiffs had only 15 granted one year to accomplish the purpose of their appointment. They ought to use such tim e to prosecute this m atter, out of such tim e and w ithout leave of the court w hich appointed them is illegal. They cannot be w ith locus stand.” [Emphasis added] I have considered the above extract of the trial Court decision, it is evidenced that the issue of locus stand of the appellants/plaintiffs were raised suo motu by the trial Court and subsequently answered by the trial court. I am saying this because, I have scanned the trial court records no- where the same issue was addressed to the parties or their advocates. In view of the above, I am settled the first issue is answered in affirmative that the issue of locus stand was raised suo motu and after being raised parties were not given an opportunity to be heard in such respect. Therefore, I am in agreement with Mr. Kilasara for his contention that despite the trial court raised it suo motu but the same were determined without affording the parties right to present on the raised issue. The assertion by Mr. Msanga that the parties were accorded right to argue on the raised issue by each party. In my view such assertion is 16 misconceived as the evidence on record does not depicts if parties were afforded right to argue on the raised issue. Further even if it were depicted in evidence as the trial court magistrate stated in the impugned decision at page 13 that “…This court is of such observed view as the same pleaded by parties in pleadings and took enough chance in respective evidence…” still the parties had the right to argue on the raised issue when it was prompted by the trial magistrate, thus failure to observe the same, it amounts to breach of principles of natural justice on the right to be heard. In the case of Abbas Sherally &Another vs. Abdul S. H.M. Fazalboy, Civil Application No. 33 of 2002 the court held that; “The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision w hich is arrived at in violation of it w ill be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice.’’ [Emphasis added] 17 I have considered the cases listed by the trial Magistrate to support his decision, with respect none of them are in line with the circumstances of this matter where the issue of right to be heard was so fundamental. In regard to courts practises of raising issue suo motu, the same have been guided by paraphora of authorities in this land. In the case of Regina Monko vs Justin Monko (Civil Appeal No. 369 of 2021) [2024] TZCA 822 (TANZLII) the court referred it earlier case in James Funke Gwagilo v. Attorney General [2004] T.L.R 61 and observed that; “The importance of involving parties in the determination of issues framed cannot be over stressed. In a plenitude of authorities this Court has maintained that, after an issue or additional issue is framed, the court must accord parties an opportunity to be heard on such new or additional issue.” (See also Samson Ng'walida vs. The Commissioner General of Tanzania Revenue Authority, Civil Appeal No. 86 of 2008; Christian Makondoro vs. The Inspector General of Police & Another, Civil Appeal No. 40 of 2019 (both unreported); and Charles Christopher Humphrey Kombe t/a Kombe Building Materials vs. Kinondoni Municipal Council, Civil Appeal No. 19 of 2019, [2022] TZCA 205 ( 18 TANZLII) and Wagesa Joseph M. Nyanda vs. Chacha Muhogo, Civil Appeal No. 161 of 2016 (unreported) to mention few. There was an issue raised by the appellants’ counsel in his submission that the trial court grossly failed to properly evaluate and analyze the evidence adduced before it in determination of the issues framed. This first appellate court is thus implored to re-evaluate the evidence on record and make own findings. In respect to the two grounds discussed herein as alluded was prompted sua motu, in that regard this Court cannot step into the shoes of the lower court and assume that duty and this is because the jurisdiction of this Court on appeal is to consider and examine matters that have been considered and decided upon by the trial court. In this matter at hand parties were not considered in respect to the issue of locus stand, that means no evidence available for this court to re-evaluate. The same can be inferred by the Court of Appeal when exercising its appellate Jurisdiction from cases tried by the High court. (See case of Celestine Maagi vs. Tanzania Elimu Supplies (TES) and Another, Civil Revision No. 2 of 2014 (unreported) and Joseph Ndyamukama (administrator of the Estate of the late Gratian 19 Ndyamukama) v. N.I.C Bank Tanzania Ltd and Others (Civil Appeal No. 239 of 2017) [2020] TZCA 1889 (TANZLII). Nonetheless, according to the impugned judgment, in my view the trial court was not right to conclude other issues under the umbrella of appellant lacking locus stand without analyzing them by evidence available with reasons. At page 23 of the said impugned judgment the trial court said; “Having disposed such an issue it goes without saying that, no one in the circumstances of this case, then can question the legality of sale process of the suit property from first defendant to purchaser who is second defendant in this case. The second and third issues should be resolved in favour of the defendants. The fact that the deceased failed to discharge the facility guaranteed, the first defendant had right to sale the mortgaged property and the second defendant should be bona fide purchaser of the suit property.” [ Emphases added] The import and tenure of the above extract of trial court, depicts those issues were decided without evaluating the evidence adduced, the 20 answer to those issues were based on the fact that the appellants were having no locus standi , thus it follows suit as per trial court the same to be resolved in favour of the respondents hereinabove. Therefore, in my considered view I hold that failure to evaluate the evidence regarding the issue agreed inevitably leads to wrong or biased conclusions resulting in miscarriages of justice. In Mang'eni Ibagi vs David Sospeter Magambo (Civil Appeal No. 31 of 2021) [2024] TZCA 585 (TANZLII) the court observed that; “It is a well settled principle of law found in Order XX, Rule 4 of the CPC that a Judge is duty bound to decide on each and every issue before him one way or the other and failure to do so constitutes a serious breach that vitiates the impugned decision” (See also Alnoor Shariff Jamal vs. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 (unreported); National Insurance Corporation and Another vs. Sekulu Construction Company [1986] T.L.R. 157 and Kukal Properties Development Ltd vs. Maloo and Others [1990- 1994] E.A. 281; Mohamed Masoud Abdallah and Others vs. Tanzania 21 Road Haulage (1980) Ltd (Consolidated Civil Appeals No. 150 of 2019) [2021] TZCA 3538 (TANZLII). In view of the foregoing deliberations and findings, I hereby find the first ground and second ground meritorious and therefore allowed. Since allowing these grounds of appeal in the manner hereinabove have the effect of vitiating the impugned judgment, I find not duty bound to deal with the remaining grounds of appeal otherwise it will be an academic exercise. For the reasons stated above, I thus allow this appeal. Consequently, I nullify and quash the judgment and set aside the decree/orders made thereof issued by the trial court in Civil Case No. 48 of 2001 dated 21st September, 2023. Accordingly, I order the case file to be remitted to the trial court in order parties to be afforded right to be heard on the issue raised suomotu by the trial court. In doing so the trial court may consider other legal ways for the interest of justice to be reached. Thereafter, the trial court should proceed to compose a new judgment. Given the circumstances of this appeal, I order that each party shall bear its own costs. 22 It is so ordered. DATED at MOSHI this 29th day of August, 2024. X JUDGE Court: Judgment delivered today on 29th day of August, 2024 in the presence of Mr. Martin Kilasara learned advocate for both appellants and Mr. Emmanuel Mtungi for second respondent. Also, second Respondent present in person. Sgd; A. P. KILIMI JUDGE 29/08/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 29/08/2024 23