IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM
fCORAM: NDIKA, J.A., KAIRO. J.A.. And MLACHA. J.A/>

CIVIL APPEAL NO. 194 OF 2021

IBRAHIM TWAHILI KUSUNDWA........................................ 1ST APPELLANT

IBRAHIM TWAHILI KUSUNDWA (The Administrator of the
Estate of the Late TWAHILI SELEMANI KUSUNDWA)............. 2nd APPELLANT

VERSUS
CRDB BANK PLC........................... ................................ isr RESPONDENT
MEM AUCTIONEERS AND GENERAL BROKERS LTD............2nd RESPONDENT
EPIMAKI S. MAKOI......................................... ........... 3RD RESPONDENT
PRIM A. MUSHI........... ..................... ................... ..... 4TH RESPONDENT
(Appeal from the Judgment and Decree of the High Court of Tanzania,
Land Division at Dar es Salaam)
(Maghimbi. J.^

Dated the 31st day of August, 2020

in
Land Case No. 274 of 2017

JUDGMENT OF THE COURT

6th November, 2023 & 19th January, 2024

NDIKA. J.A.:

Ibrahim Twahili Kusundwa, acting in his personal capacity and as

the administrator of the estate of the late Twahili Selemani Kusundwa,

("the first and second appellants" respectively), lost an action in the High

Court of Tanzania, Land Division at Dar es Salaam. The suit was

essentially for nullification of sale by public auction made on 21st July,

2017 of landed property described as Plot No. 13, Block '30', Nyamwezi

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Street, Kariakoo Area, Dar es Salaam comprised in Certificate of Title No.

32350 ("the property"). The appellants' misery was further compounded

as the trial court entered judgment with costs on counterclaim in favour

of Epimaki S. Makoi and Prim A. Mushi, the third and fourth respondents

correspondingly, adjudging them lawful owners of the property and

awarding them mesne profits. Troubled by this outcome, the appellants

now appeal to this Court.

Ahead of dealing with the substance of the appeal, it is essential to

say something more about the background facts, and the way in which

the appellants7pleaded case was determined by the trial court.

The appellants' action was against CRDB Bank PLC and MEM

Auctioneers and General Brokers Ltd., the first and second respondents

respectively, along with the third and fourth respondents. It was not in

dispute that in September 2007, the first respondent initially advanced to

the first appellant a loan in the sum of TZS. 600,000,000.00 for financing

construction of a commercial and residential multi-storey building on the

property, then owned by Twahili Selemani Kusundwa, the first appellant's

father. The loan was secured by a mortgage over the property executed

by the deceased. Although said Twahili Sefemani Kusundwa passed away

on 18th May, 2008, the first appellant was duly granted letters of
administration (Exhibit PI) over the deceased's estate on 11th April, 2013,

which was about five years after the deceased's demise.

In 2012, the first respondent commenced measures aimed at selling

the property on the claim that the appellants had defaulted on the loan.

To this end, the first respondent appointed an auctioneer, Comrade

Auction Mart and Court Broker, to sell the property by public auction. To

fend off the impending sale, the first appellant instituted Land Case No.

120 of 2012 in the High Court, District Registry at Dar es Salaam ("the

first suit") against the first respondent and the appointed auctioneer. The

suit was marked settled on 17th September, 2013 by order (Exhibit P4)

made by Hon. Mazengo, District Registrar, in terms of Order XXIII, rule 3

and Order XLIII, rule 1 of the Civil Procedure Code, Cap. 33 ("the CPC")

after the parties had lodged a deed of settlement dated 16th September,

2013 (Exhibit P3). We think it is essential that we set out the content of

the operative part of the said deed at this stage:

"NOW IT IS HEREBY AGREED as follows:

LOAN AMOUNT

a) The plaintiff owes the defendant the sum ... of TZS. 1,290,105,179.73 (One
billion two hundred ninety million one hundred five thousand one hundred
seventy-nine cents seventy-three only) outstanding to the plaintiff's loan
account with the defendant.
REPAYMENT PERIOD

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 b) The plaintiff shall service and repay the said loan in full in 10 years' time
from 2013, and in ten yearly equal instalments of TZS. 228,328,187.00 (Two
hundred twenty-eight million three hundred twenty-eight thousand one
hundred eighty-seven only). The first instalment shall fall due and be
payable on or before 31st December, 2013. The other instalments shall fall
due on or before 31st December of each respective year as set out in the
repayment schedule attached hereto and forming part of this Deed.
INTEREST RATE
c) The said loan shall carry and or be charged interest at the rate of 12% per
annum.
DEFAULT CLAUSE
d) Should an instalment remain outstanding on its due date, that is 31st
December of each respective year, and remain so outstanding up to and
including 30th June of each succeeding year, the whole loan then
outstanding shall [fall] due and be payable immediately.
FINALITY CLAUSE
e) This Deed shall constitute a final and conclusive resolution of the dispute
between the parties hereto, and the same shall be registered in court
according to law."

The repayment schedule referred to in Clause (c) above, admitted

in evidence as Exhibit P5, shows the following repayment plan:

YEAR DATE DISBURSEMENT OPENING AMOUNT REPAID CLOSING

LOAN PRINCIPAL INTEREST INSTALMENT BALANCE

BALANCE

1 2013 1,290,105,179.73 1,290,105,180 73,515,565 154,812,622 228,328,187 1,216,589,614

2 2014 1,216,589,614 82,337,433 145,990,754 228,328,187 1,134,252,181

3 2015 1, 134,252,181 92,217,925 136,110,262 228,328,187 1,042,034,256

4 2016 1,042,034,256 103,284,076 125,044,111 228,328,187 938,750,180

5 2017 938,750,180 115,678,156 112,650,022 228,328,187 823,072,015

6 2018 823,072,015 129,559,545 98,768,642 228,328,187 693,512,469

7 2019 693,512,469 145, 106,691 83,221,496 228,328,187 548,405,779

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8 2020 548,405,779 162,519,493 65,808,693 228,328,187 385,886,285

9 2021 385,886,285 182,021,833 46,306,354 228,328,187 203,864,453

10 2022 203,864,453 203,864,453 24,463,734 228,328,187 0

TOTAL 1,290,105,179.73 1,290,105,180 993,176,689 2,283,281,869

What followed in the aftermath of the aforesaid settlement forms

the essence of the dispute between the parties.

On the part of the appellants, their case as pleaded in the amended

plaint was that on 7th July, 2017 the first appellant learnt from his tenants

at the property that the property had been advertised for auctioning by

the second respondent as an agent of the first respondent. The public

auction was slated for 21st July, 2017. To ward off the impending sale,

the first appellant lodged Land Case No. 50 of 2017 in the High Court,

District Registry at Dar es Salaam along with Miscellaneous Land

Application No. 77 of 2017 for an injunctive relief. The latter action was

withdrawn on 24th July, 2017 after it had come to light that the property

was auctioned off on 21st July, 2017.

Apart from repetitively denying that the public auction took place,

the appellants averred further that the purported sale, if at all it ever

occurred, was carried out without the appellants, as the borrower and

mortgagor, having been served with any default notice besides the

newspaper advertisement of the public auction (Exhibit D4). More

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significantly, the appellants averred in paragraph 21 of the amended plaint

as follows:

"21. That further to the above, the first plaintiff

states that he was not in default as per the
rescheduled payment plan and the temporary
delay was brought to the attention o f the first
defendant so that the entire instalment still outstanding
[was] to be cleared during the months o f July and
August2017." [Emphasis added]

Based on the foregoing, the appellants primarily prayed for

nullification of the sale. They also pressed for an order allowing the first

appellant to continue repaying the loan as per the restructured repayment

plan, an order of permanent injunction against the respondents

restraining them from interfering with the appellants' occupation and use

of the property, general damages as assessed by the court, and costs of

the suit.

By their joint written statement of defence, the first and second

respondents stoutly denied liability. They claimed that the appellants

defaulted on their repayment obligations under the deed of settlement.

That by 21st July, 2017, they were in default by a total of TZS.

310,562,748.00 as they had paid TZS. 602,960,000.00 only out of the

sum of TZS. 913,312,748.00 required under the deed. They also claimed

that the property was duly sold by the second respondent to the third and

fourth respondents on 21st July, 2017 at the scheduled public auction.

The third and fourth respondents similarly denied liability. They

asserted that they bought the property at the price of TZS.

1,530,000,000.00 at a public auction conducted on 21st July, 2017 by the

second respondent acting as the first respondent's agent. They averred

further that being bona fide purchasers for value without notice, they

were lawful owners of the property. Based on a counterclaim, they prayed

against the appellants for vacant possession of the property, mesne

profits, and costs of the action.

By their reply to the respondents' defence statements and

counterclaim, the appellants maintained not only that the deed of

settlement did not contemplate the first respondent's act of auctioning off

the property but also that the scheduled public auction proved abortive

due to a disruption. They also alleged, it seems in the alternative, that the

auction was not preceded by a mandatory default notice. So far as the

counterclaim was concerned, they refuted the third and fourth

respondents' claims of vacant possession, mesne profits, and costs.

The trial court framed five issues for trial, namely:

1. Whether the first appellant defaulted on his obligations under the deed
o f settlement
2. Whether the alleged sale o f the property by the first and second
respondents to the third and fourth respondents was in exercise o f the
power o f sale under the mortgage deed or under the deed of
settlement and whether the sale was lawful.
3. Whether the third and fourth respondents are bona fide purchasers of
the property.
4. Whether the third and fourth respondents are entitled to mesne profits
from the property.
5. To what reliefs are the parties entitled.

In proving the claims, the first appellant testified as PW3. His case

was supported by PW1 Amini Aii Semlamba, the Manager of the property;

PW2 Ahmed Odo Basilius, a trader conducting business at the property;

PW4 Beatrice Joseph Shio, the then local leader, Kariakoo ward; PW5

Ubwa Sadiki Watuta, Mtaa Chairman, West Kariakoo; and PW6 Pili Ahmed

Salim, also a local leader. Whereas the first appellant adduced evidence

on various aspects of the case, the other five witnesses essentially focused

their testimonies on the alleged sale of the property. It was their evidence,

in effect, that the scheduled public auction did not occur on 21st July, 2017

following a commotion that ensued at the property pitting the supposed

auctioneer's team and certain rowdy elements.

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 On the adversary side, the first respondent relied on the testimony

of DW1 Jacob Pozemata, an official from the bank's Loan Recovery Unit.

For the second respondent, its Operations Manager, DW2 Proches August

Moshi, testified on how the alleged public auction was conducted on the

appointed day. The third and fourth respondents' case was built on the

testimony adduced by the third respondent (DW4) supported by the

evidence given by DW3 Brenda Kuringe, an Assistant Registrar of Titles

from the Ministry of Lands, Housing and Human Settlements

Development; and DW5 Feiician Mboya, a shoe trader at Narung'ombe

street, Kariakoo area.

Having scrutinized the evidence on record and considered the

contending submissions of the learned counsel, the trial court determined

all the framed issues against the appellants. On the first issue, the court

held, based on the loan repayment schedule (Exhibit P5), the first

appellant's bank account statement for the period up to 24th July, 2017

(Exhibit P7) and the statement of reconciliation of payments made by the

appellants between 2013 and 2016 (Exhibit D2), that the appellants

defaulted on their loan repayment obligations under the deed of

settlement in the first suit (Exhibit P3). That by the end of 2016, the

appellants had to pay TZS. 913,312,748.00, but they remitted TZS.

602.960.000.00. meaning that they were in default by the sum of TZS.

310.352.748.00.

As regards the second issue, the trial court made two pertinent

findings: first, that the deed of settlement did not discharge the mortgage

deed between the second appellant and the first respondent, implying

that the first respondent still retained its power of sale under the mortgage

deed. Secondly, that the disputed public auction occurred on 21st July,

2017 as appointed and that it was duly conducted pursuant to a sixty days

default notice served on the appellants in 2012 and that all other

applicable procedural requirements were met.

So far as the third question was concerned, the trial court found

that the third and fourth respondents bought the property at the public

auction after emerging the highest bidders for the sum of TZS.

1.530.000.000.00. The court was satisfied that they were bona fide

purchasers for value without notice and that they were protected by the

law pursuant to section 135 of the Land Act, Cap. 113 ("the Land Act").

As hinted earlier, the claim of mesne profits featured as the fourth

issue. The trial court took the view that the third and fourth respondents,

having become owners of the property after purchasing it at the public

auction on 21st July, 2017, were entitled to mesne profits from the

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appellants who had since then been in wrongful possession of the

property.

In consequence, the trial court dismissed the appellants' claims with

costs and entered judgment for the third and fourth respondents on the

counterclaim. In particular, the court adjudged the third and fourth

respondents the lawful owners of the property and ordered the appellants

to yield up vacant possession of the property. Furthermore, apart from

awarding costs to the third and fourth respondents, the court granted the

two respondents mesne profits at the rate of TZS. 23,100,000.00 per

calendar month with effect from 1st August 2017 to the date of the

judgment.

The appellants challenge the trial court's judgment and decree on

ten grounds of grievance as follows:

1. That the trial court erred in fact and law by holding that the public
auction was conducted under the power o f sale without considering
that there was no statutory notice served on the appellants before the
auction as the initial default notice, if any, was extinguished by the
deed o f settlement and the consequent decree.
2. That the trial court erred in fact and law by not holding that the deed
o f settlement, having resulted into a decree, was final and conclusive
on the loan and mortgage and that any amount due on the loan was
to be ascertained based on the deed and decree, implying that the first

ii
 respondents sale o f the property was a violation o f the deed of
settlement which should have been executed by an order o f the court.
3. That the trial court's decision was irregular on the ground that the trial
proceedings were tampered with before and after delivery o f the
impugnedjudgment
4. That the trial court erred in fact and law by awarding mesne profits to
the third and fourth respondents without any proof o f the claim.
5. That the trial court erred in fact and iaw by declaring the public auction
and sale o f the property lawful while in fact there was no auction
conducted on the fateful day by the second respondent
6. That the trial court erred in fact and law by declaring the third and
fourth respondents as lawful and bona fide purchasers o f the property
while in fact they never participated at the auction either as partners
or individually.
7. That the trial court erred in law by declaring the third and fourth
respondents as lawful purchasers o f the property while they in fact did
not pay the full purchase price.
8. That the trial court erred in fact and law by deciding the case based on
the allegation that title to the property had passed to the third and
fourth respondents while in fact there was no proof o f the alleged
transfer ana\ if any, the said transfer was obtained in violation o f an
existing lawful order o f the court.
9. That the trial court erred in fact and law by admitting a photocopy of
the certificate o f sale as Exhibit D6 without compliance with the
applicable procedure for admission o f secondary evidence.
10. That the trial court erred in law when it relied on a bank statement
(Exhibit P7) to conclude that there was default in repaying the loan

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 without considering that there was no affidavit to verify the authenticity
o f the statement as required by the law.

At the hearing of the appeal, Messrs. Thomas Brash, Erick Simon

and Ashiru Lugwisa, learned advocates, teamed up to represent the

appellants. On the other hand, Mr. Libent Rwazo, teamed counsel, stood

for the first and second respondents whereas Mr. Godwin M. Mwapongo,

also learned counsel, represented the third and fourth respondents.

Ahead of the hearing, we granted leave to the appellants pursuant

to rule 113 (1) of the Tanzania Court of Appeal Rules, 2009 to argue two

additional grounds, which we have rephrased as follows:

1. That the triai court erred in fact and law by declaring that the auction
was properly conducted while, if at all there was any auction, the said
auction was prematurely conducted.
2. That the trial court irregularly terminated mediation proceedings on the
ground that the appellants had no offer to settle the matter.

We wish to remark, at the outset, that the appellants canvassed all

the above grounds except the tenth ground in the substantive

memorandum of appeal. We treat the said ground as abandoned.

We find it logical to begin our deliberations by addressing the

complaint in the second additional ground that the trial court flouted the

mediation procedure.

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 Referring us to page 1075 of the record of appeal showing the trial

proceedings conducted on 23rd April, 2019, Mr. Brash contends that the

mediator judge (Mgetta, J.) hastily terminated the mediation process on

the ground that the appellants were not ready to give any offer to the

respondents for settling the dispute. He anchors his submission on Abasi

Salim Kichenje v. Shehe Mohamed Zayumba & Another, Civil

Appeal No. 49 of 2005 [2007] TZCA 187 [10 July 2007; TanzLII].

Conversely, Messrs. Rwazo and Mwapongo are at one that the mediation

procedure was fully complied with.

At first, we wish to reiterate what we stated in Abasi Salim

Kichenje {supra) that mediation is one of the hallmarks of our civil justice

system. As a court-annexed process, it was introduced as an alternative

procedure for settling disputes. At the materia! time, it was supposed to

be conducted in accordance with the provisions of Orders VIIIA, VIIIB and

VIIIC of the CPC. It is significant to bear in mind that mediation is

conducted privately and that whatever information the mediator receives

from the parties during the process must remain confidential. The

rationale for confidentiality is to preserve the integrity and impartiality of

the trial that may follow in the event the dispute is not settled. What we

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are now enjoined to determine, in the beginning, is whether the mediation

process complied with the applicable procedure.

It is evident from page 1075 of the record of appeal, referred to by

Mr. Brash, that on 23rd April, 2019 the mediator judge held a mediation

session attended by the learned advocates for the parties at the end of

which he remarked that the appellants were not ready to offer anything

to the respondents for settling the dispute. Certainly, in the interests of

confidentiality the mediator could not have given any detailed remarks. In

our considered view, the mediator formed an opinion that the parties were

very wide apart. He was justified to conclude that the dispute was no

longer amenable to a mediated settlement. The appellants7 claim,

apparently half-hearted, that mediation was prematurely terminated is

plainly misleading.

We have read our decision in Abasi Salim Kichenje {supra) relied

upon by Mr. Brash. Cited completely out of context, it does not advance

the appellants' cause. For it is authority for the principle that a judge or

magistrate assigned to try a case cannot act in the case as mediator judge

or magistrate in the case. In that case, we nullified the proceedings partly

on the ground that the judge assumed the dual role of mediator judge

and trial judge.

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 Even if it is assumed, arguendo, that the mediation process did not

comply with the law, that irregularity would not necessarily vitiate the

proceedings. In our ruling in Aidan George Nyongo v. Magesse

Machenja & 3 Others, Civil Appeal No. 292 of 2017 [2022] TZCA 101 [9

March 2022; TanzLII], we interrogated in detail the effect of the omission

by the trial court to conduct mediation between the parties. While

acknowledging the significance and rationale of complying with the

mediation procedure at the pretrial stage, we concluded that the omission

did not have the effect of vitiating the proceedings of the trial court.

Turning to the third ground of appeal, Mr. Brash complains that the

trial proceedings were so tampered with that they vitiated the trial court's

judgment. Referring to various parts of the record of appeal, especially in

respect of the testimonies of PW4 and PW5, he submits that the transcript

of the evidence gathered at the trial is presented in three incongruent

versions. He is emphatic that the proceedings are doubtful and incorrect.

Replying, Mr. Rwazo submits that although the transcript of the

evidence contains several typographical errors, they had no effect on the

quality of the impugned judgment. Citing Alex Ndendya v. Republic,

Criminal Appeal No. 207 of 2018 [2020] TZCA 202 [6 May 2020; TanzLII],

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the learned counsel contends that a court record is a serious document

that should not be lightly impeached.

For his part, Mr. Mwapongo argues that the appellants have failed

to demonstrate the effect of the discrepancies in the testimonies of PW4

and PW5 to the justice of the case. He elaborates that the two witnesses,

who were local leaders, mostly testified as to whether the alleged public

auction occurred as appointed and that their evidence was so peripheral

to the outcome of the case.

Having scrutinized the entire record of appeal, we firstly agree with

Mr. Brash that the transcript of evidence is plainly muddled. For example,

it is notable from page 978 of the record that the proceedings of that day

ended with a transcript of the evidence of PW3 recorded on 23rd

September, 2019, but what follows next is the testimony of PW6

appearing from page 981. It means that the evidence of PW4 and PW5 is

omitted in that part of the record. Nonetheless, it turns out that the

testimonies of these two witnesses appear from pages 1122 and 1130

respectively.

Upon full reflection on the grievance at hand, we uphold the

submissions by the learned counsel for the respondents that the

discrepancies complained of are simple typographical errors exacerbated

17
by poor organization and arrangement of the proceedings having no effect

to the quality of the impugned judgment as well as the justice of the case.

The appellants have failed to demonstrate that the evidence on record

was distorted in material terms due to the disarray of the proceedings.

Certainly, the most discrepant portion of the record covers the testimonies

of PW4 and PW5. But, as rightly argued by Mr. Mwapongo, the said

discrepancies do not deflect from the essence of their evidence as local

leaders on whether the alleged public auction occurred as scheduled.

Overall, we are satisfied that the record presents a transcript of the

testimony of each witness coherently and accurately.

Next, we consider the ninth ground of appeal, faulting the

admissibility of a photocopy of the certificate of sale (Exhibit D6) tendered

at the trial by DW4. The said certificate was issued by the second

respondent as proof of the sale of the property to the third and fourth

respondents.

It is not in dispute that Exhibit D6, being secondary evidence, was

admitted upon the foundation laid by DW4 that the original document was

lost. As proof of the loss, he had tendered a police loss report (Exhibit D5)

dated 20th June, 2020, stating that the loss was reported to the police on

10th June, 2020. Both at the trial and before us, Mr. Brash vigorously

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challenged the admissibility of the document on two grounds: first, that

the police loss report (Exhibit D5) indicated that what was reportedly lost

was "Hati ya Mauziano"implying Sale Agreement, but not "Certificate of

Sale." It is Mr. Brash's submission that Exhibit D6 does not answer the

description of the lost document shown on Exhibit D5. Secondly, referring

to pages 776 to 777 as well as page 1181 of the record of appeal, Mr.

Brash contends that Exhibit D5 is not proof of loss because DW4's oral

evidence as to when he discovered the loss and reported the matter to

the police was contradictory. To illustrate the point, the learned counsel

has extracted a part of DW4's testimony on cross-examination as shown

at page 1208:

"On 19/06/2020 when we were here in courtis when I

realized that the document was lost I lodged the loss
report on 20/06/2020. (Exhibit 05), the first line is a
date, 10/06/2020.1 reported the loss to police on that
date and I collected the document on 20/06/2020. But
10 days before I had already reported the matter to
police."

Both Messrs. Rwazo and Mwapongo counter that the impugned

exhibit was admitted in pursuance of section 67 (1) (c) of the Evidence

Act, Cap. 6 after DW4 had satisfied the trial court that the original

document was lost as unveiled by the police loss report (Exhibit D5).

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 The sticking question here is whether Exhibit D6, being secondary

evidence, was properly admitted in the evidence. Section 67 (1) (c) of the

Evidence Act governs proof of contents of documents by secondary

evidence thus:

"67.-(1) Secondary evidence may be given o f the

existencef condition or contents o f a document in the
following evidence cases-
(a) to (b) [Not appiicabie]
(c) when the original has been destroyed or lost,
or when the party offering evidence o f its contents
cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
(d) to (g) [Not appiicabie]
(2) In the cases mentioned in paragraphs (a), (c) and
(d) o f subsection (1) any secondary evidence o f the
contents o f the document is admissible."
[Emphasis added]

In terms of section 67 (1) (c) above, secondary evidence is

admissible if it is established that the original has been destroyed or lost.

In the instant case, we think that Mr. Brash's objection was rightly

rejected. The trial court rightly reasoned that the phrase "Hati ya

Mauziano" in Kiswahili, in its ordinary and natural meaning, connoted

"Certificate of Sale" as opposed to "Sale Agreement", which in Kiswahili is

commonly referred to as "Mkataba wa Mauziano Accordingly, we dismiss

20
the contention that Exhibit D6 did not answer the description of the lost

document shown on Exhibit D5.

Similarly, the second limb of the objection, taking issue with the

apparent contradiction on the dates on which the loss of the original

certificate was discovered and reported to the police, was justifiably

rejected by the trial court. It is as plain as a pikestaff that Exhibit D5

indicates that the loss was reported by DW4 on 10th June, 2020 and that

the report was issued and collected by DW4 on 20th June, 2020. In our

view, Exhibit D5 laid a sound foundation upon which Exhibit D6 was

admitted. The evidently contradictory testimony by DW4 upon cross-

examination, as excerpted above, did not have any deleterious effect on

the admissibility of the aforesaid exhibit. It only raised questions as to the

credibility of DW4's evidence on when exactly he discovered the loss of

the certificate of sale and reported it to the police.

We now move to the first and second grounds, which, in our view,

are interwoven. We propose to deal with them conjointly by addressing

two issues arising therefrom: first, whether the deed of settlement and

the consequent decree extinguished the first respondent's power of sale

under the mortgage deed. Put differently, the issue is whether the

disputed sale was a violation of the deed of settlement that should have,

21
allegedly, been executed by an order of the court. The second issue

whether the first respondent served any sixty days' default notice in

accordance with the law if at all the sale was an exercise of the power of

sale.

For the appellants, Mr. Lugwisa contends, on the first issue above,

that following the recording of the settlement as per the order of the High

Court (Exhibit P4), the parties were bound by the deed of settlement and

the consequent decree. In the event of default by the appellants, he adds,

the first respondent was bound to follow the procedure for execution of

the consequent decree by seeking the trial court's assistance pursuant to

Order XXI of the CPC instead of resorting to the power of sale under the

mortgage deed.

Both Messrs. Rwazo and Mwapongo support the trial court's finding

that the deed of settlement did not supersede the mortgage deed. They

are insistent that the deed rescheduled the loan repayment without

extinguishing the first respondent's power of sale under the mortgage

deed. That the first respondent was entitled to invoke its power of sale to

realise the security.

We have carefully reviewed the deed of settlement (Exhibit P3),

which, as rightly submitted by the learned counsel, was recorded as a

22
decree of the trial court pursuant to the Deputy Registrar's order (Exhibit

P4). Having done so and taken account of the contending submissions of

the learned counsel, we are of the settled mind that none of the clauses

of the deed of settlement (including the default and finality clauses -

Clauses (d) and (e) respectively) extinguished the rights and obligations

of the parties under the mortgage deed. The trial court reasoned and

found that Exhibit P3 constituted an avenue through which the parties

agreed on the outstanding loan amount and laid down a new schedule for

repayment of the loan. Apart from the court accurately construing the

finality clause as a stipulation that the deed would amount to a final and

conclusive resolution of the dispute, it also took the view that the default

clause meant that upon a yearly instalment remaining outstanding on its

due date and continuing being so up to and including 30th June of each

succeeding year, then the whole outstanding loan would become due and

payable immediately. In the premises, the trial court concluded, quite

correctly, that:

"It follows then, [that] the remedy to recover the

amount payable by the first [appellant] was to go back
to the mortgage deed and exercise her powers under
the mortgage. This Is also cemented by the fact that
neither [Exhibit P3] nor [Exhibit P4] revoked the

23
 mortgage deed between the [second appellant] and
the first [respondent]."

In any case, it would be quite absurd and irrational, in our opinion,

to uphold the appellants' submission that the deed of settlement

superseded the mortgage deed despite there being no express provision

in the deed of settlement to that effect. Undoubtedly, no banker would

commit in court to a settlement if its effect is to extinguish its power of

sale under a mortgage deed, rendering the banker an unsecured creditor.

We recall that Mr. Lugwisa insisted that the first respondent had to

seek the trial court's assistance in terms of Order XXI of the CPC to

execute the decree. As we held in Shell and BP Tanzania Limited v.

University of Dar es Salaam [2002] T.L.R. 225, at 232 and 233, a

decree-holder need not seek the assistance of the court to execute a

decree in his favour if he can do so peaceably. Put differently, if the decree

can be satisfied smoothly without any breach of peace or violence

occurring, the decree-holder can proceed to enforce the decree singly.

Depending on the nature of the subject-matter and the disposition of the

judgment-debtor, execution of a decree may not require an order of the

court. Given that in the instant case the first respondent had its power of

sale assured and secured under the mortgage deed consistent with

section 126 (d) of the Land Act, we are of the firm view that no court
order was necessary for executing the decree through auctioning the

property.

Having confirmed the actuality and legality of the first respondent's

power of sale, we now deal with the issue whether the respondent bank

complied with the requirement of service of default notice ahead of

exercising that power of sale.

Certainly, the law on the issue at hand is well settled. Section 127

(1) and (2) of the Land Act, which governs service and content of default

notice, provides so expressly that:

"127.-(1) Where there is a default in the payment o f

any interest or any other payment or any part thereof
or in the fulfillment o f any condition secured by any
mortgage or in the performance or observation o f any
covenant, express or implied' in any mortgage, the
mortgagee shall serve on the mortgagor a notice in
writing o f such default
(2) The notice required by subsection (1) shall
adequately inform the recipient o f the following
matters:
(a) the nature and extent of the default;
(b) that the mortgagee may proceed to exercise his
remedies against the mortgaged land; and
(c) actions that must be taken by the debtor to cure
the default; and
25
 (d) that, after the expiry o f sixty days following receipt
o f the notice by the mortgagor, the entire amount of
the claim will become due and payable and the
mortgagee may exercise the right to sell the mortgaged
land."

Unquestionably, in the first place, subsection (1) above imposes a

mandatory obligation on a mortgagee, where there is default in the

payment of any interest or any other payment or any part thereof or in

the fulfillment of any condition secured by any mortgage or in the

performance or observation of any covenant, to serve the mortgagor with

a written notice of such default before exercising any of his remedies

under the mortgage deed. Furthermore, subsection (2) regulates the

contents of the notice so required to be issued and served. For a default

notice to be legally sufficient, it must adequately apprise the mortgagor

of the nature or extent of the default, the intention by the mortgagee to

exercise his remedies against the mortgaged property, the actions to be

taken by the debtor to cure the default as well as the intention by the

mortgagee to exercise the right to sell the mortgaged land sixty days

following the notice as the entire amount of the claim will have become

due and payable - see, for instance, Godebertha Rukanga v. CRDB

Bank Ltd & 3 Others [2019] 1 T.L.R. 339 and Joseph Kahungwa v.

26
Agricultural Inputs Trust Fund & 2 Others, Civil Appeal No. 373 of

2019 [2021] T7CA 325 [23 July 2021; TanzLII].

In seeking to justify the sale of the property, which allegedly

occurred on 21st July, 2017, the first respondent asserted that it duly

issued and served on the appellants a default notice on 14th June, 2012

and that the said notice required the appellants to repay the entire loan

within sixty days. The first respondent did not tender the notice, but to

substantiate its claim, it relied on the contents of paragraph 10 of the first

appellant's plaint in the first suit against the first respondent and Comrade

Auction Mart and Court Broker, the first and second defendants

respectively, as proof of service of the notice. Indeed, in paragraph 10 of

the said plaint, which was admitted at the trial as Exhibit Dl, the first

appellant, who, as the sole plaintiff sued in his individual capacity,

acknowledged to have received a sixty days' default notice from the first

respondent. For clarity, we extract a part of the said averment:

"10. That, on 14*1June, 2012, the first defendant [the

first respondent herein] notified the plaintiff [the first
appellant herein] to repay the whole loan amount
within 60 days.../'

The sore point between the parties, both at the trial and before us,

was whether the said notice was valid and acceptable. In dealing with this
27
issue, the trial court held, in the first place, that even though the default

notice alluded to above was not tendered at the trial, the averment as

unveiled by Exhibit D1 proved that the first appellant was served with the

notice on 14th June, 2012. While being aware that the notice was served

more than four years after the mortgagor - Twahili Selemani Kusundwa

- had passed away on 18th May, 2008, the court deemed that service on

the first appellant as sufficient service on the mortgagor. To illustrate the

point, we let the relevant part of the judgment speak for itself:

"... if the [first] plaintiff [the first appellant herein]

admitted to have received a 60 days' notice from the
first defendant [the first respondent herein], and the
second plaintiff [the second appellant herein] passed
away, was he expecting the notice to be served on his
grave? [...] Whether the service [on] the borrower [who
is also] the administrator o f the estate o f the deceased
does not amount to service [on] the mortgagor given
the fact that they are one and the same flesh and
biood.... With due respect to the learned counsel, since
the first plaintiff acknowledged to have received [the]
60 days' notice and the second plaintiff having been
dead, we cannot [hold that] default notice... was not
served on the mortgagor."

The appellants essentially assail the above reasoning and finding on

two points: one, that the alleged default notice was not tendered at the

28
trial and that Exhibit D1 is not its proof. And two, that the alleged notice,

even if it was served on the first appellant who was the borrower, ought

to have been served on the administrator of the estate of the deceased

mortgagor.

Conversely, the learned advocates for the respondents urge us to

uphold the trial court's reasoning and holding on the ground that Exhibit

D1 sufficiently established that the appellants were duly served with

default notice. Mr. Mwapongo submits further that even if it is established

that no default notice was served, that fact would not affect the sale of

the property to the third and fourth respondents whom he called bona

fide purchasers for value without notice consistent with section 135 (2)

(c) of the Land Act.

Without any hesitation, we uphold the appellants' submission that

Exhibit D1 is not proof of service of default notice on the deceased

mortgagor. For all its worth, Exhibit D1 constitutes no more than an

admission by the first appellant alone that the alleged notice was served

on him on 14th June, 2012 in his individual capacity as borrower. At that

time, he was yet to be appointed the administrator of the deceased's

estate, implying that he could not step into the shoes of the deceased

mortgagor. For it is in the evidence that he assumed that office about ten

29
months later, that is on 11th April, 2013, as evidenced by the letters of

administration - Exhibit PI.

Moreover, the first respondent's position is further compounded by

the omission or neglect to tender the alleged notice in the evidence. In its

absence, it is nigh impossible for the Court to determine whether the said

notice met the threshold requirements of section 127 (2) (a) to (d) of the

Land Act regulating the contents of default notices. We will later on

consider and determine whether the non-compliance in issue had any

effect on the legality of the sale.

The foregoing determination takes us to the first additional ground.

It is submitted for the appellants on this ground that the alleged auction,

if at all it was conducted on 21st July, 2017, was carried out prematurely

in violation of the dictates of section 12 (2) of the Auctioneers Act, Cap.

227. This provision bars selling of any land by auction "until after at least

fourteen days public notice thereof has been given at the principal town

o f the district in which the land is situated and also at the place o f the

intended sale."We are cognizant that the rationale for this provision is

that it ensures that members of the wider public likely to be interested in

bidding for the property are invited to the public auction to enhance

30
competition, which would in turn result in a highly competitive purchase

price.

It is common ground that the second respondent, at the instance of

the first respondent, issued a public notice of the auction, slated for 21st

July, 2017, via a newspaper advert dated 7th July, 2017 (Exhibit D4). Mr.

Brash is resolute that the fourteen days' notice materialized on by 21st

July, 2017 and that the intended auction should have only been conducted

after 21st July, 2017. While Mr. Rwazo is unyielding that the notice given

by the second respondent duly complied with section 12 (2) of the

Auctioneers Act, Mr. Mwapongo posits that whether the notice was valid

or not does not affect the title to the property that his clients acquired as

bona fide purchasers for value without notice.

The issue at hand should not detain us. Since it is in the evidence

that the public notice of the intended public auction was issued on 7th

July, 2017, in terms of section 12 (2) of the Auctioneers Act, the auction

had to be conducted at least after fourteen days had elapsed.

Section 60 (1) (f) of the Interpretation of Laws Act, Cap. 1 provides that:

"60. -(1) In computing time for the purposes o f a

written iaw-

31
(a) where a period o f time is expressed to be at, on, or
with a specified day, that day shail be included in the
period;
(b) where a period o f time is expressed to be reckoned
from, or after, a specified day, that day shall not be
included in the period;
(c) where anything is to be done within a time before
a specified day, the time shall not include that day;
(d) where a period o f time is expressed to end at, on,
or with a specified day or to continue to or until a
specified day, that day shall be included in the period;
(e) where the time limited for the doing o f a thing
expires or falls upon an excluded day, the thing may be
done on the next day that is not an excluded day;
(f) where there is a reference to a number of
dear days or "at least" or nnot less than" a
number of days between two events, in
calculating the number of days there shall be
excluded the days on which the events happen;
(g) where there is a reference to a number o f days not
expressed to be dear days or "at least" or "hot less
than" a number o f days between two events, in
calculating the number o f days there shall be excluded
the day on which the first event happens and there
shall be included the day on which the second event
happens;

32
 (h) where an act or proceeding is directed or aliowed
to be done or taken on a certain day, or on or before a
certain day, then, if that day is an exciuded day, the
act or proceeding shali be considered as done or taken
in due time if it is done or taken on the next day that is
notan excluded d a y Emphasis added]

Reckoning the fourteen days period from 7th July, 2017 in

accordance with section 60 (1) (f) above by excluding the two events, it

is plain that the said limitation period expired on 21st July, 2017 and,

therefore, the intended public auction ought to have taken place on any

day after 21st July, 2017. On this basis, we sustain Mr. Brash's submission

that the public auction, if at all it was conducted on 21st July, 2017 as

scheduled, was carried out ahead of time in violation of section 12 (2) of

the Auctioneers Act.

In Godebertha Rukanga {supra) where there was a similar non-

compliance, we reaffirmed that the aforesaid provision was couched in

imperious terms and that non-compliance with it is not a mere procedural

irregularity. We then concluded that:

"... breach o f the provisions o f s. 12(1) o f the

Auctioneers Act prejudiced the appeiiant because, as
shown above, it deprived her o f the right to obtain the
best price o f the suit property at the time o f its sale."

33
 We will deal, later in the judgment, with the effect the above non-

compliance had on the auction. For now, we proceed to interrogate the

fifth, sixth and seventh grounds of appeal conjointly.

The thrust of the fifth ground is the argument that the public auction

slated for 21st July, 2017 did not go ahead, meaning that the property was

not sold. On this complaint, the appellants' counsel made extensive

submissions while referring to the testimonies of the first appellant (PW3)

along with the evidence adduced by his five witnesses (PW1, PW2, PW4,

PW5 and PW6) claiming that the scheduled public auction aborted

following an upheaval that ensued at the scene pitting the supposed

auctioneer's bunch and certain wild elements. It is argued further that the

evidence by the respondents' witnesses (DW1, DW4 and DW5) was

incoherent and unreliable.

On the sixth and seventh grounds of complaint, it is argued for the

appellants that there is neither proof that the third and fourth respondents

acted jointly or individually in purchasing the property at the disputed

auction nor is there evidence that they eventually paid the purchase price

in full. In elaboration, it is contended that the fourth respondent was not

present at the alleged auction and that he did not offer any separate or

joint bid. So far as the payment of the purchase price was concerned, it

34
is argued by the appellants' counsel that no document was exhibited at

the trial to prove the payment of the purchase price in full. The third and

fourth respondents, it is added, should have tendered at the trial proof of

the alleged payment, but they did not.

Conversely, it is primarily contended for the respondents that DW1

and DW2 established that the property was auctioned off as scheduled

and that the third and fourth respondents' joint bid in the sum of TZS.

1,530,000,000.00 was the highest. That there was no legal requirement

that every bidder must physically attend at an auction.

So far as the disputed payment of the purchase price is concerned,

it is submitted for the respondents that the certificate of sale (Exhibit D6),

issued by the second respondent, was itself sufficient proof of the

payment of the purchase price in full. Moreover, the respondents'

advocates submit that whether the purchase price was fully paid is an

issue between the vendor and the purchaser and that the vendor had

never complained of non-payment. It is stressed that it was acknowledged

at the trial on behalf of the first and second respondents that the purchase

price was fully paid.

We need not travel a long distance over the three issues at hand.

Having examined the evidence on record, we think it is preponderant that

35
the property was auctioned off. Like the trial court, we base our finding,

at first, on the testimony of the auctioneer's principal officer (DW2) who

supervised the auction. At page 1172 of the record of appeal, he is shown

to have told the court of trial that:

"The auction took piace on 21st July, 2017. I

participated in the auction. I arrived at the property
around 08:00 hours ... then around 09:00 hours [an]
officer from CRDB called Jacob [DW1] also came."

The witness went on at page 1173 testifying that:

"The auction started at [TZS.] 500 million and one

person went to 1 billion and it continued slowly... And
then one person came up with 1.5 billion.... The highest
bidder was Epimaki Steven Makoi [the third respondent
herein] who when he was giving us his information, he
told us that he had his partner who he called... Prim
Aioyce [the fourth respondent herein] So, we took
both their details as the highest bidders."

DW2 added, a moment later, that:

"One o f the conditions o f the auction was that the

highest bidder should pay 25% o f the sale price
instantly. For them it was around TZS. 382,500,000.00
but instead they paid TZS. 450,000,000.00. The money
was deposited in the defaulter's account, Ibrahim

36
 Twahffi at CRDB Azikiwe. The remaining amount was
paid [ within] 14 days."

DW2's testimony was amply supported by the following strands of

evidence: first, the first respondent's official (DW1), who was also present

at the auction, gave a similar account. Secondly, the first appellant's bank

account statement for the period up to 24th July, 2017 (Exhibit P7)

confirms that the third and fourth respondents deposited on 21st July,

2017 into the first appellant's account TZS. 450,000,000.00 following the

fall of the hammer. Thirdly, the certificate of sale (Exhibit D6) issued by

the second respondent provides further proof of the sale. Finally, the deed

of transfer under power of sale (Exhibit D7) presented to the Registrar of

Titles by the first respondent on 9th August, 2017 is the final piece of proof

of the sale.

The respondents' case was further strengthened by the admissions

made by the first appellant, who, throughout his testimony kept changing

his stories, exaggerated things and seemed to live in a false sense of

reality. We shall demonstrate.

It is undisputed that for purpose of keeping the imminent public

auction at bay, the appellants lodged in the High Court a chamber

application for a temporary injunction. When the matter came up for

37
hearing on 24th July, 2017, it was obviously overtaken by events.

Addressing this aspect in his evidence-in-chief captured at page 1101 of

the record of appeal, the first appellant prevaricated as follows:

"They said they sold the house on 21/07/2017. I am

saying that on 21/07/2017there was no house that was
sold and no auction took place. After saying that the
house was sold on 21/07/2017f we asked the bank who
was the purchaser o f the house and they could not tell
us. But I know the house was sold at [the] price
o f [TZS.] 1.5 billion. After knowing that the bank
sold the house, I then decided to withdraw the
matter because we had opened the case only for
the purpose of getting an injunction."
[Emphasis added]

The first appellant, then, tendered in evidence a photocopy of the

order of the High Court dated 24th July, 2017 in respect of Miscellaneous

Land Application No. 77 of 2017 (Exhibit P6). Despite his evasiveness and

equivocation, it is too plain for argument that he, in effect, admitted that

the property was auctioned off at the price of TZS. 1.5 billion and that he

had his application for injunction withdrawn since its substance had

lapsed.

Moreover, at page 1102 of the record of appeal, the first appellant

acknowledged that the third and fourth respondents deposited into his

38
account TZS. 450,000,000.00 towards the purchase price as exhibited by

his bank account statement for the period up to 24th July, 2017 (Exhibit

P7). At page 1111 of the record, he responded in cross-examination that

"the auction took place In July while I was to pay till December"and that

"It is my manager Amini Semlamba who told me that the property was

already sold. He is PW1. "Considering the first appellant's own admissions

as reproduced herein, we find the evidence by his cast of five witnesses,

that the public auction was abortive, is untrue and misleading.

The evidence as reviewed above also settles the issues whether the

third and fourth respondents offered a joint bid at the auction as well as

whether the purchase price was paid in full. Apart from both DW1 and

DW2 testifying that the third respondent's bid at the auction was given as

a joint bid with the fourth respondent, the first appellant's bank account

statement (Exhibit P7) shows that the initial deposit of TZS.

450,000,000.00 was made jointly by the two respondents later that day

of the auction. Besides the certificate of sale (Exhibit D6) confirming the

two respondents as the joint purchasers of the property, it attests that

the purchase price was paid in full. This fact is also confirmed by DW1,

who, as shown at page 1166 of the record of appeal, stated that the two

39
respondents cleared the balance on 31st July, 2017. In the premises, we

find no substance in the fifth, sixth and seventh grounds of appeal.

It is now logical that we consider the effect of the flouting of the

requirements under section 127 (1) and (2) of the Land Act and section

12 (2) of the Auctioneers Act.

For the appellants, Mr. Brash is forceful that the non-compliance

rendered the public auction illegal. He, therefore, urges us to nullify the

sale and restore the title to the property to the second appellant.

For his part, Mr. Rwazo downplays the significance of the non-

compliance, claiming that the third and fourth respondents were bona fide

purchasers for value without notice as defined in Suzana S. Waryoba

v. Shija Dalawa, Civil Appeal No. 44 of 2017 [2019] TZCA 66 [11 April

2019; TanzLII].

Mr. Mwapongo associates himself with Mr. Rwazo's submission,

citing section 135 (2) (c) of the Land Act and section 51 (1) of the Land

Registration Act, Cap. 334 in support thereof. He posits that the two

respondents had no obligation to inquire into whether the required notices

had been duly issued and served. He relies on The National Bank of

Commerce v. Dar es Salaam Education and Stationery [1995]

40
T.L.R. 272, Suzana S. Waryoba {supra), Godebertha Rukanga

{supra), and JM Hauliers Limited v. Access Microfinance Bank

(Tanzania) Limited formerly Access Bank Tanzania, Civil Appeal

No. 274 of 2021 [2022] TZCA 522 [26 August 2022; TanzLII].

The concept of bona fide purchaser for value without notice is

encapsulated by the provisions of section 135 of the Land Act as well as

section 51 (1) of the Land Registration Act, providing statutory protection

to such a purchaser of landed property. The former provision, which we

extract in full, states that:

"135.-(1) This section applies to-

(a) a person who purchases mortgaged land from the
mortgagee or receiver, excluding a case where the
mortgagee is the purchaser;
(b) a person claiming the mortgaged land through the
person who purchases mortgaged land from the
mortgagee or receiver, including a person claiming
through the mortgagee where the mortgagee is the
purchaser where, in such a case, the person so claiming
obtained the mortgaged land in good faith and for
value.

(2) A person to whom this section applies -

41
(a) is not answerable for the loss, misapplication or
non-application o f the purchase money paid for the
mortgaged land;

(b) is not obliged to see to the application o f the

purchase price;

(c) is not obliged to inquire whether there has

been a default by the mortgagor or whether any
notice required to be given in connection with
the exercise of the power of sale has been duty
given or whether the sale is otherwise
necessary, proper or regular,

(3) A person to whom this section applies is protected

even if at any time before the completion o f the sale,
he has actual notice that there has not been a default
by the mortgagor, or that a notice has not been duly
served or that the sale is in some way unnecessary,
improper or irregular, except in the case o f fraud,
misrepresentation or other dishonest conduct on the
part o f the mortgagee o f which that person has actual
or constructive notice.

(4) A person prejudiced by an unauthorized, improper

or irregular exercise o f the power o f sale shall have a
remedy In damages against the person exercising that
power.
 (5) A person referred to under subsection (1), whether
acting for himself or by or through the mortgagee from
whom that person obtained the mortgaged property,
shall be entitled to possession o f the mortgaged
property immediately upon acceptance o f a bid at a
public auction or contract o f sale o f that mortgaged
property. "[Emphasis added]

So far as the registration of purchased mortgaged property is

concerned, section 51 protects a bona fide purchaser for value without

notice in the following terms:

”51. -(1) A bona fide purchaser for value o f a registered

estate from a lender selling in professed exercise o f his
power o f sale shall not be bound, nor shall the Registrar
when a transfer is presented for registration be bound,
to inquire whether default has occurred, or whether
any notice has been duly served or otherwise into the
propriety or regularity o f any such sale, but the
Registrar shall serve notice o f such transfer on the
owner o f the estate and shall suspend registration of
such transfer for one month from the date o f such
notice, and at the expiration o f such period the
Registrar shall register the transfer as at the date o f
presentation, unless in the meanwhile the High Court
shall otherwise order, and thereafter the transfer shall
not be defeasible by reason that default had not

43
 occurred, or that any notice was not duly served or on
account o f any impropriety or irregularity in the sale.
(2) Every such transfer, when registered shall vest the
mortgaged estate in the purchaser freed and
discharged from all liability on account o f such
mortgage or o f any other incumbrance registered or
entered subsequent thereto, except a lease to which
the lender has consented in writing, or to which the
consent o f the lender is not required."

Perhaps, we should state, in addition, that in Suzana S. Waryoba

{supra), we quoted with approval the following definition of a bona fide

purchaser for value without notice:

"A bona-fide purchaser is someone who

purchases something in good faith, believing that
he/she has dear rights o f ownership after the
purchase and having no reason to think
otherwise. In situations where a seller behaves
fraudulently, the bona-fide purchaser is not
responsible. Someone with conflicting claim to
the property under discussion would need to take
it up with the seller, not the purchaser, and the
purchaser would be allowed to retain the
property."

In our view, a bona fide purchaser for value without notice, based

on the above cited provisions, is protected in all circumstances except in

44
the case of fraud, collusion, misrepresentation, or other dishonest conduct

on the part of the mortgagee of which that person has actual or

constructive notice - see section 135 (3) of the Land Act,

In the instant case, it has not been suggested that the auction in

issue was tainted by fraud or collusion or any other kind of dishonest

conduct on the part of the first respondent as the mortgagee of which the

third and fourth respondents had actual or constructive knowledge. In any

case, we agree with Mr. Mwapongo that the two respondents had no

obligation to inquire into whether the required notices had been duly

issued and served. Consistent with section 135 of the Land Act as well as

section 51 (1) of the Land Registration Act, we find and hold that the non-

compliance complained of was of no effect to the validity of the auction

and that, upon acceptance of their bid on 21st July, 2017, the two

respondents became entitled to possession of the property pursuant to

section 135 (5) of the Land Act.

The eighth ground now comes for determination. Here the

appellants contend that the alleged transfer of title to the property to the

third and fourth respondents was unproven and that, if at all such transfer

occurred, it was executed in violation of an order of the trial court that

was in force at the time. It is explained that the property remained

45
registered in the deceased mortgagor's name as evidenced by the

Certificate of Title No. 32350 (Exhibit P2). It is argued further that the

deed of transfer under power of sale between the first respondent, on the

one hand, and the third and fourth respondents, on the other, (Exhibit

D7), lodged by the first respondent on 9th August, 2017 violated an order

of the trial court (Makuru, J.) dated 1st August, 2017 enjoining the parties

to maintain the status quo. The fourth respondent (DW4), it is contended,

acknowledged being aware of the said order. Further reference is made

to the testimony of DW3, an Assistant Registrar of Titles, who also

admitted the existence of that order. It is, therefore, claimed that the

transfer should have waited for the finalization of the suit by the trial

court.

We think that the above contentions are fully answered by Messrs.

Rwazo and Mwapongo who argue in common that the impugned transfer

was sufficiently proven to have been executed in accordance with the law

and that it did not violate any trial court's edict for maintenance of the

status quo ante. Indeed, the transfer was anchored on the deed of

transfer under power of sale lodged on 9th August, 2017 with the Office

of the Registrar of Titles in accordance with section 51 of the Land

46
Registration Act. So pertinently, DW3 testified, as shown at page 1183 of

the record of appeal, that:

"The application for registration was lodged on

9/8/2017.... The previous owner submitted an order of
the court that the transfer should not proceed. We
registered the order and didn't proceed with the
transfer."

The aforesaid witness adduced further that:

"Later on, another order was submitted that the stop

order was lifted, then the stop order was removed from
the records and that it is when the registration and
transfer to the new owners couid proceed. As per
section 32 o f the [Land Registration Act] the date of
registration o f the transfer o f ownership is the date
when the application for [transfer] was received in the
office o f the Registrar;..."

Certainly, section 32 (1) of the Land Registration Act, referred to by

DW3 in her testimony, fully supports her position:

"(1) A document presented for registration or entry in

the land register which satisfies the requirements o f
this Act and o f any other relevant law shall be deemed
to be registered or entered, as the case may be, at the
moment when it is presented, notwithstanding
that the actual inscription in the land register
maybe </e/ayetf/'[ Emphasis added]
 It is, therefore, our view that although the application for

registration was presented to the Registrar of Titles on 9th August, 2017

and the transfer deemed, in terms of section 32 (1) of the Land

Registration Act, to have been entered on that day when the trial court's

order was still in force, the actual inscription in the land register was

delayed due to the said trial court's order. We are satisfied that the actual

inscription was made on 24th July, 2018 after the trial court's order had

been lifted. We, therefore, find no substance in the eighth ground of

appeal.

At this juncture, we revert to the fourth ground of appeal. It assails

the award of mesne profits to the third and fourth respondents at the

monthly rate of TZS. 23,100,000.00 from 1st August, 2017 to the date of

the judgment

The appellants essentially argue that mesne profits were unproven

and, therefore, they should not have been awarded. They postulate that

the said claim was contested in the pleadings and that, since it was a kind

of special damages, it ought to have been specifically and strictly proven.

It is posited further that in the circumstances of the case, the third and

fourth respondents should have tendered rent payment receipts or leases

in respect of the property to determine the rental income the appellants

were earning from the property.

In bolstering their submissions, the appellants cite Eligius

Kazimbaya v. Pilli Prisca Mutani @ Pilli Prisca Yangwe Mutani &

Another, Civil Appeal No. 163 of 2019 [2020] TZCA 1886 [4 December

2020; TanzLII] where this Court followed its earlier decision in Tanzania

Sewing Machine Co. Ltd. v. Njake Enterprises Ltd., Civil Appeal No.

15 of 2016 [2016] TZCA 2041 [27 October 2016; TanzLII] on the principle

that given that mesne profits are not a pure question of law and that they

have to be calculated based on rent payable at the material time,

documentary proof such as leases, payment receipts or other documents

should be produced and examined as proof of mesne profits payable in

the circumstances of the case.

Mr. Rwazo counters that even though there was no specific proof of

the claimed mesne profits, the trial court rightly awarded the claimed

amount against the appellants based on the appellants' own pleading that

they expected to collect TZS. 23,100,000.00 monthly as rental income

from the property. Mr. Mwapongo weighs in contending that, the first

appellant admitted in his testimony that he used to collect from the

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property a total of TZS. 362,000,000.00 annually as rental income, which

he arrogated for loan repayment.

Section 3 of the CPC defines "mesne profits" of property as:

"those profits which the person in wrongful possession

o f such property actually received or might, with
ordinary diligence, have received therefrom together
with interest on such profits, but shall not include
profits due to improvements made by the person in
wrongful possession."

We take the liberty to refer as well to Halsbury's Laws of England,

Volume 27 of the 4th Edition, which aptly defines "mesne profits" at

paragraph 255 as follows:

"Mesne Profits —The Landlord may recover in an action

for mesne profits the damages which he has suffered
through being out o fpossession o f the land or if he can
prove no actual damage caused by him by the
Defendants trespass, the Landlord may recover as
mesne profits the amount o f the open market value of
the premises for the period o f the Defendant's wrongful
occupation. In most cases the rent paid under any
expired tenancy will be strong evidence as to the open
market value, Mesne profits being a type o f damages
for trespass can only be recovered in respect o f the
Defendant's continued occupation after the expiry of

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 his legal right to occupy the premises. The Landlord is
not limited to a claim for the profits which the
Defendant has received from the land or those which
he himself has lost."

It is plain from the above definitions that the term "mesne profits"

means profits received or ought to have been received by a trespasser

from his wrongful occupation and use of the landed property as well as

interest thereon.

The decision of the English Court of Appeal in Swordheath

Properties Ltd v. Tabet [1979] 1 WLR 285, where the defendants had

remained in occupation of residential property after a lease had come to

an end, is quite instructive as it confirms the ordinary letting value of the

property as the correct measure of mesne profits. In that case, Megaw U

(with whom Browne and Walter UJ agreed) said at 288:

"It appears to me to be dear, both as a matter o f

principle and o f authority, that in a case o f this sort the
plaintiff, when he has established that the defendant
has remained on as a trespasser in residential property,
is entitled, without bringing evidence that he could or
would have let the property to someone else in the
absence o f the trespassing defendant, to have as
damages for the trespass the value o f the property as
it would fairly be calculated; and, in the absence of

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 anything special in the particular case it would
be the ordinary letting value of the property that
would determine the amount of the damages."
[Emphasis added]

We are cognizant that in Tanzania Sewing Machine Co. Ltd.

{supra), we stated that since determining the quantum of mesne profits

is not a pure question of law and that such profits must be calculated

based on rent payable at the material time, the claimant must furnish

proof in various forms including tenancy agreements, payment receipts or

other documents to establish rental income or other profits received or

ought to have been received by the trespasser.

It is pertinent to stress here that as a matter of law the burden of

proof lies on the plaintiff who claims entitlement to mesne profits.

Nonetheless, the onus of proof, not being static, will shift from one party

to the other depending upon applicable legal presumptions and the weight

of the evidence adduced. Crucially, the onus of proving the amounts of

money received lies on the defendant since that fact, in most cases, is

exclusively within his actual or constructive knowledge.

In resolving the issue under consideration, it is necessary to recall

that the third and fourth respondents claimed in their counterclaim (at

paragraph 8 of the written statement of defence to the amended plaint)

52
payment of TZS. 23,100,000.00 per calendar month as mesne profits. At

paragraph 7 of their written statement of defence to the counterclaim, the

appellants disputed the claim, stating that the third and fourth

respondents were not entitled to vacant possession of the property and,

therefore, they had no justiciable claim of mesne profits. It should be

remarked, at this point, that as we have upheld the trial court's holding

that the third and fourth respondents, being bona fide purchasers for

value without notice, became entitled to possession of the property after

their bid was accepted at the auction in terms of section 135 (5) of the

Land Act, the occupation and use of the property by the appellants, since

then, was wrongful.

Furthermore, even though it is true that the third and fourth

respondents did not produce any testimonial or documentary proof upon

which the trial court could have assessed allowable mesne profits, we

think, in the circumstances of this matter, mesne profits were sufficiently

established. We so find based on two grounds: first, as it is

overwhelmingly established in the evidence that the appellants used the

property commercially as a rent-earning asset, they bore the onus of

proving the amounts of money received as rental income since that fact

was within their actual and exclusive knowledge. As a matter of fact, they

53
ought to have given an account of rental income earned or expected to

be earned. It is significant that they did not lead any kind of evidence to

debunk the quantum of money claimed by the third and fourth

respondents.

Secondly, to clinch the matter for the third and fourth respondents,

the first appellant shot himself in the foot by admitting in his testimony,

as shown at page 1111 of the record of appeal, that the property earned

him not less than TZS. 362,000,000.00 per annum, which turns out to be

TZS. 30,166,666.67 per calendar month. The relevant part of his

testimony reads thus:

"My sources o f income to repay the ioan include the

rent collected from the property. My [rental income]
per year is more than TZS. 362,000,000.00 if all the
tenants pay at the prescribed time. Most o f the money
was used to repay the loan."

The first appellant, having made the above admission on affirmation

against his own interest, cannot now deny the truthfulness of that fact.

Given the circumstances, we uphold the trial court's award of TZS.

23,100,000.00 as mesne profits per calendar month as prayed by the third

and fourth respondents. We are cognizant that the said amount is way

below what the appellants were supposed to be collecting monthly, but

54
we have no legal basis for enhancing it. The fourth ground of appeal

equally fails.

In the final analysis, the appeal must fail. We dismiss it with costs.

DATED at DAR ES SALAAM this 16th day of January, 2024.

G. A. M. NDIKA
JUSTICE OF APPEAL

L. G. KAIRO
JUSTICE OF APPEAL

L. M. MLACHA
JUSTICE OF APPEAL

The Judgment delivered this 19th day of January, 2024 in the

presence of Mr. Thomas Brash, learned counsel for the Appellants and

Ms. Miriam Bachuba, learned counsel for the 1st and 2nd Respondents, Mr.

Godwin Musa Mwapongo, learned counsel for the 3rdand 4th Respondents,

is hereby certified as a true copy of the original.

2($ — "
1 D. RTTOMO
DEPUTY REGISTRAR
COURT OF APPEAL

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