| dc.description | JM HAULIERS LIMITED VERSUS ACCESS MICROFINANCE BANK (TANZANIA) LIMITED Former ACCESS BANK TANZANIA COURT OF APPEAL OF TANZANIA
(CORAM: MWAMBEGELE. J.A.. FIKIRINI. J.A, And MAKUNGU. J.A.)
CIVIL APPEAL NO. 274 OF 2021.
(Appeal from the Judgment and Decree of the High Court of Tanzania,(Dar es Salaam District Registry) at Dar es Salaam dated the 17th day of June, 2021 in Civil Case No. 118 of 2019)
Civil Procedure and Practice – Default notice – failure to heed default notice – power of court in sale of mortgaged property – public notice before sale of mortgaged property.
The plaintiff who is now the respondent, Access Microfinance Bank (Tanzania) Limited, formerly known as Access Bank Tanzania Limited, successfully sued the appellant, J.M. Hauliers Limited, before the High Court in Civil Case No. 118 of 2019, claiming the appellant's vacant possession and eviction order from the suit property in Tungi-Kigamboni with residential licence No. 002145-TMK/KNG/TNG31/24, Temeke Dar es Salaam (the suit property). Along the same line, the respondent prayed for a permanent injunction, and punitive damages to the tune of Tzs.200,000,000/= (Tanzania Shillings Two Hundred Million) and general damages of Tzs. 100,000,000/= (Tanzania Shillings One Hundred Million). Aggrieved by the decision, the appellant lodged this appeal on the grounds that That, the honourable Judge, erred in law and fact by holding that the60 days default notice was served on the appellant and refused the service; thereafter, the appellant was properly served through courier services. That, the honourable Judge erred in law and fact by holding that the respondent had a lawful title over the suit property. That, the sale o f the suit property was tainted with irregularities, including the absence o f the valuation report. That, the honourable Judge erred in law and fact by failure to understand that there was no public auction conducted on 29h June, 2019.
Held;
i. The appellant did not heed to the default notice, thus cannot be heard now to dispute the notice dully served upon him but he rejected it and wa admitted in evidence without objection.
ii. Where a mortgagee is exercising its power o f sale under a mortgage deed, the court cannot interfere unless there was corruption or collusion with the purchaser in the sale o f the property
iii. Valuation report is the basis of appreciation in value of a landed property.
iv. "No sale by auction o f land shall take place until after at least fourteen days public notice thereof has been given at the principal town.
Appeal dismissed.
Provisions Cited
i. Sections 110 and 111 of the Evidence Act, (Cap. 6 R. E. 2019),
ii. Section 127, 131, 132, 133 and 135 of the Land Act [Cap 113 .R.E 2019]
iii. section 12 (2) of the Auctioneers Act, Cap. 227 R. E. 2002
iv. sections 4 (1) and (2) of the Law of Contract Act, Cap. 345
Cases cited
i. Cuckmere Brick Co. Ltd v. Mutua Finance Ltd [1971] Ch. 949.
ii. The National Bank of Commerce v. Dar es Salaam Education and Stationery [1995] T. L. R. 272.
iii. Selemani Nassoro Mpeli v. R, Criminal Appeal No. 68 of 2020, where this Court
iv. Thungadhadra Industries Ltd v. State of Andra Pradesh [(1964) SC1372]
v. Joseph Kahungwa v. Agricultural Inputs Trust Fund & 2 Others, Civil Appeal No. 373 of 2019 (unreported).
vi. Maimuna Musa
vii. Sagamiko v. African Banking Corporation & 2 Others, Land Case No. 193 of 2015 (unreported),
viii. Registered Trustees of African Inland Church of Tanzania v. The Cooperative Rural Development Bank PLC (the CRDB) and 3 Others, Commercial Case No. 7 of 2017, which quoted the case of Moshi
ix. Electrical Light Co. Ltd & 2 Others v. Equity Bank (T) Ltd & 2 Others, Land Case No. 55 of 2015 ( both unreported), | en_US |
