Busad Ibrahim vs Treasury Registrar & Others (Civil Appeal No. 208 of 2023) [2025] TZCA 971 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: MWARUA, J.A., MASHAKA. J.A, And FELESHI. J.A.1 CIVIL APPEAL NO. 208 OF 2023 BUSAD IBRAHIM (as an Administratrix of the estate of the late ISSA MOHAMED BOON) ................ . ................ APPELLANT VERSUS THE TREASURY REGISTRAR ....... . ..................................... 1 st RESPONDENT VIOVENA & CO. LTD ................................... . .....................2 nd RESPONDENT GODWIN E. NZINYANGWA................................................3 rd RESPONDENT WEMA H. LUMULIKO ..... . ................................ . ......... . ..... 4™ RESPONDENT GRACE H. LUMULIKO........................................................5 th RESPONDENT NEHEMIA PANYA..............................................................6 th RESPONDENT THE HON. ATTORNEY GENERAL.........................................7™ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Sumbawanga) (Nvanqarika, J.^ dated the 4th day of December 2015 in Land Case No. 2 of 2010 JUDGMENT OF THE COURT 11th March & 12th September, 2025 MWARIJA. J.A.: In the High Court of Tanzania, Land Division at Dar es Salaam, the appellant, Busad Ibrahim, acting in her capacity as the administratrix of the estate of the late Issa Mohamed Boon, instituted Land Case No. 135 of 2009 (the suit) against the Consolidated Holding Corporation (which was later taken over by the Treasury Registrar), Viovena & Co. Ltd, i

Godwin E. Nzinyangwa, Wema H. Lumuliko, Grace H. Lumuliko and Nehemia Panya (the 2n d - 6th respondents respectively). The suit arose from the 1s t respondent's act of selling a mortgaged property, Farm No. 3 situated at Mkowe in Sumbawanga District, Rukwa Region (the suit property) owned by the late Issa Mohamed Boon (hereinafter "the deceased" or "the borrower'7 ). The suit property was held by the borrower under Certificate of Title No. 4750, L.O. No. 96785 and according to the appellant, it was valued at TZS 8,990,000.00. According to paragraph 7 of the plaint, the same was mortgaged by the borrower in 1989 as a collateral for a loan of TZS 1,820,000.00 he obtained from the defunct National Bank of Commerce ("the Bank7 ') which was later succeeded by the Consolidated Holding Corporation (hereinafter "the Corporation"). The deceased defaulted to repay the loan and as a result, on 7/11/2008 the suit property was sold to the 3rd , 4th , 5th and 6th respondents. The appellant, who claimed that the deceased was her husband, was appointed as the administratrix of his estate on 2/12/2008, alleged that she was unaware of the mortgage and the sale. She thus instituted the suit seeking the following reliefs: 2

(1) Declaratory orders that the 1st and 2n d defendants act o f selling the suit property located at Farm No. 3, under Certificate o f Title (CT) No. 4750, L.O. No. 96785, Mkowe, Sumbawanga District, registered under the name oflssa Mohamed Boon was illegal for [having not followed] the law pertaining to sale o f mortgaged lands and at a price which is unfair and as such, void. (2) Payment o f genera! damages [to the plaintiff by the defendants]jointly and or severally [as may be assessed by the court] (3) Interest for No. (2) above at commercial rate o f 31% per annum from the date o f filing o f this suit to the date o f final payment (4) Cost o f this suit (5) Any further orders and relief (s) as the Honourable court may deem fit andjust to grant. Each of the 1s t and 2n d respondents filed separate written statements of defence as appearing at pages 32 (i) and 33 respectively while the 3rd , 4th 5th and 6th respondents filed a joint one. The 1s t respondent disputed the appellant's contention that, the suit property was sold without following the law and procedure. It contended that, the sale was conducted following the borrower's default in repayment of the loan and after the procedures for sale, including service of notice of default and publication, had been complied with.

On its part, through its principal officer, Violet Kaberege, the 2n d respondent denied the claims. The said principal officer stated that, she sold the suit property, which to her knowledge, was the sole property of the borrower, after she had complied with the relevant legal procedures, including the requirement of issuing a notice of intention to sale and the date of sale. She did so through the address of the borrower prior to the date of the auction which took place before the appellant was appointed as the administratrix of the estate of the deceased. She added that, the sale was made after advertisement in the Daily News and Nipashe newspapers of 29/8/2008 and 24/10/2008 respectively. On the price of 7ZS 2,000,000.00 at which the suit property was sold, the 2n d respondent contended that, it was the highest price fetched at the auction. As for the 3rd , 4th , 5th and 6th respondents, they also denied the appellant's claims. They contended that, they participated in the auction after they had learnt through the Nipashe and the Daily News papers of the dates mentioned above that, the suit property was to be auctioned. It was their contention further that, they competed with other bidders and became successful hence the lawful purchasers thereof for being the highest bidders at the price of 7ZS 2,000,000.00. 4

From the pleadings, the following three issues were framed for determination: "1. Whether there was proper statutory notice to the plaintiff before the safe o f the mortgaged property, which is a farm with title No. 4750 (DRL), Mkowe area in Sumbawanga District, Rukwa Region. 2. Whether the sale [by] the 2n d defendant [o f the mortgaged property] to the J d , 4h , 5th and @ h defendants stated [in issue No. 1] at the price o f TZS 2,000,000.00 was ... reasonable in the circumstances. 3. To what reliefs, if any, are the parties entitled to." The hearing of the suit proceeded ex~parte after the respondents, who were duly served, defaulted to enter appearance. The appellant, who testified as PW1, adduced evidence that, she was one of the wives of the borrower who, according to the certificate of death (exhibit PI), passed away on 11/10/2004. After about four years of the death of the borrower, she applied before the Urban Primary Court of Sumbawanga, for letters of administration of the deceased's estate. She was appointed the administratrix on 2/12/2008 vide Probate and Administration Cause No. 85 of 2008. Having been appointed, she instituted the suit. It was her evidence further that, she had neither been made aware of execution of 5

the mortgage deed between the borrower and the 1s t respondent nor the notice of default of payment of the loan. She thus prayed for the reliefs stated above. Having considered the pleadings and PWl's evidence, the learned trial Judge observed that, there was no dispute that, the suit property was mortgaged as a collateral for the loan which was advanced to the borrower by the Bank whose assets and liabilities were vested in the Consolidated Holding Corporation and subsequently, in the 1s t respondent. He observed further that, the parties were not in dispute regarding the borrower's default in repayment of the loan hence the 1s t respondent's move to auction the suit property. On the appellant's claims, the learned trial Judge was of the view that, the same were not proved. On the claim that she was not aware of the mortgage deed, meaning that the suit property was mortgaged without her consent, the learned trial Judge found the complaint misplaced because the appellant ought to have filed a suit challenging the legality of the mortgage between the deceased and the Bank with a view to show that, the suit property was a matrimonial property which could not be mortgaged without her consent. He found therefore, that, since the appellant had sued as the administratrix of the deceased's estate, she

stepped into the borrower's shoes to challenge the sale, not the mortgage. The trial court thus found the appellant's complaint untenable. The learned trial Judge observed further that, the appellant had the opportunity of filing a suit in her capacity as the borrower's spouse to challenge the mortgage but did not do so, instead, she filed the suit to challenge the sale in her capacity as the administratrix of the estate of the deceased. On the complaint that, a default notice was not served on the borrower, the High Court found that, after having served the notice to the borrower, the 1s t respondent did not have the duty of ensuring that, other persons including the appellant, had become aware of the notice or otherwise. It found further that, under section 125 (1) of the Land Act Cap. 113 [R.E. 2002] (the Land Act), which was applicable at the material time, it was not a mandatory requirement for a lender to serve upon the borrower, a default notice. As for the complaint that, the suit property was sold at the price which was below its value, the learned trial Judge held that, the claim was devoid of merit because, it was not substantiated by evidence. He observed that, because the appellant did not adduce evidence showing that, at the auction, there was a bid which was above TZS 2,000,000.00, 7

the complaint was unfounded. He concluded that, in the circumstances, the 3r d , 4th , 5th and 6th respondents were bonafide purchasers of the suit property. He eventually dismissed the suit. The appellant has appealed against the decision of the High Court. She joined the Attorney General (the 7th respondent) as a necessary party. According to the memorandum of appeal filed on 1/12/2022, the appeal, is predicated on the following three grounds: "1. That, the Honourable learned Judged erred both in points o f law and facts when he failed to decide that there was no proper and correct statutory notice to the appellant before the sale o f the mortgaged property named Farm No. 3 with Title No. 4750 DLR at Mkowe area in Sumbawanga District, Rukwa Region. 2. That, the Honourable learned Judge erred both in points o f law and facts when he failed to decide that the sale o f Farm No. 3 with Title No. 4750, DLR at Mkowe area in Sumbawanga District, Rukwa Region to the J d , 4h , 5th and &h respondents at Tshs [2,000,000.00] was unreasonable in the circumstances o f the case. 3. That, in the absence o f default notice against the appellant, the learned trial Judge erred in

both points o f law and facts when he held that the buyers were protected by sections 134 and 133 o f the Land Act, Cap. 133 R.E. 2002" At the hearing of the appeal, the appellant was represented by Mr. Simon Mwakolo, learned counsel while the 1s t and 7th respondents were represented by Mr. Stanley Mahenge, learned State Attorney assisted by Messrs Mjahidi Kamugisha and Ibrahim Kabelwa, both learned State Attorneys. The 2n d - 6th respondents did not enter appearance although they were served by substituted service in Mwananchi and the Guardian newspapers of 14/3/2025. Due to their non-appearance, hearing proceeded in their absence under rule 112 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). In compliance with rule 106 (1) of the Rules, on 1/12/2022, Mr. Mwakolo filed his written submissions in support of the appeal. On their part, the 1s t and 7th respondents complied with rule 106 (7) of the Rules by filing their reply submissions on 29/12/2022 through Mr. Fortunatus Mwandu, learned State Attorney. The 2n d - 6th respondent did not file any reply submissions. At first, the 1s t respondent's stance on the appeal was that, the same was incompetent. It thus lodged a notice of preliminary objection on

3/3/2025 challenging the competence of the appeal. At the hearing however, Mr. Mahenge abandoned that preliminary objection and instead sought and obtained leave to raise orally, another preliminary objection based on a different point of law to the effect that, the filing of the suit breached the provisions of section 6 (2) of the Government Proceedings Act, Cap. 5 [R.E. 2002] (the Government Proceedings Act) which requires that, a ninety days notice be issued to the Government before institution of a suit against it. The learned State Attorney argued that, the suit was against a Government institution because, the assets and liabilities of the Bank which were previously vested in the Corporation, were later vested in the Treasury Registrar. He cited section 5 of the National Bank of Commerce (Reorganization and Vesting of Assets and Liabilities) Act, Cap 404 [R.E. 2002] which transferred and vested in the Treasury Registrar, the residual functions and assets of the Bank, previously vested in the Corporation. He argued that, the effect thereof is that, the suit was against the Government and should have been filed after compliance with section 6 (2) of the Government Proceedings Act. In reply, Mr. Mwakolo opposed the preliminary point of objection. He submitted that, since at the time of filing the suit, the Corporation 10

was, by virtue of section 4 (2) (b) of Cap. 404, a legal entity capable of suing and being sued in its corporate name, section 6 (2) of the Government Proceedings Act was not applicable. He submitted further that, after GN. 203 of 27/6/2014 had become effective whereby the assets and liabilities of the Corporation were transferred and vested in the 1s t respondent, the Attorney General had the right to intervene in the suit. He prayed that the preliminary objection be dismissed. Determination of the preliminary objection need not detain us much. It is an undisputed fact, as submitted by Mr. Mwakolo that, at the time when the suit was filed, the Corporation (the 1 s t defendant) was a legal entity capable of suing and being sued. It was not a Government institution and for that reason, section 6 (2) of the Government Proceedings Act was not applicable. That provision stated as follows: w 6-(l) (2) No suit against the Government shall be instituted, and heard un/ess the daimant previously submits to the Government Minister, Department or Officer concerned a notice o f not iess than ninety days o f his intention to sue the Government specifying the basis o f his ciaim against the Government, and he shaii send a copy li

o f his claim to the Attorney Genera!" [Emphasis added]. The Treasury Registrar was substituted for the Corporation in the suit in 2021 in Miscellaneous Land Application No. 7 of 2021. In that application, the appellant sought and obtained an order extending the time of lodging a notice of appeal. It was at the time when the Government Proceedings Act, Cap 5 [R.E. 2019] had come into force. Section 6A (1) and (2) thereof provides as follows: "6A - (1) The Attorney General shall, through the Solicitor General, have the right to intervene in any suit or matter instituted by or against the ministry, local government authorities, independent departments and other government institutions. (2) Where the Attorney General intervenes in any matter in pursuance o f subsection (1), the provisions o f this Act, shall apply in relation to the proceedings o f that suit or matter as if it had been instituted by or against the ministries, local government authorities, independent departments and other government institutions; Provided that, the requirement o f ninety days notice o f intention to sue the Government as 12

stipulated under this Act shaii not appiy where the Attorney Generai intervenes under this section During the hearing of the above stated application for extension of time and the proceedings in this appeal, the 1s t respondent was represented by learned State Attorneys from the office of the Solicitor General, following the substitution of the Treasury Registrar for the Corporation. For these reasons, we do not find merit in the preliminary objection. The same is hereby dismissed. On the grounds of appeal, Mr. Mwakolo abandoned the 2n d ground and argued together the 1s t and 3r d grounds. He submitted that, according to the record, the notice of default of payment of the loan was served at the time when the borrower had passed away on 11/10/2004 and before the appointment of the appellant as the administratrix of his estate on 2/12/2008. It was the contention of the learned counsel that, in the circumstances, the notice was ineffective in law. Clarifying that point in his oral submissions, he cited section 125 of the Land Act. He argued also that, the 1s t respondent exercised its right of sale of the suit property without giving a three months' notice as provided for under clause 9 (1) of the Loan Agreement. According to the learned counsel, giving a default 13

notice was necessary under section 125 of the Land Act because the suit property was a subject of the mortgage. Mr. Mwakolo challenged also the legality of the sale of the suit property arguing that, despite the advertisement for its sale in the Daily News and Nipashe News papers of 29/8/2008 and 24/10/2008 respectively, since the auction was conducted after the death of the borrower and before the appellant had been appointed to administer his estate, the sale was illegal. For that reason, he argued, the finding of the learned trial Judge that the 3r d , 4th , 5th and 6th respondents were protected as bonafide purchasers of the suit property, was erroneous. In response, the learned State Attorney for the 1s t and 7th respondents opposed the submissions of Mr. Mwakolo; first, that the sale was illegal on account that a notice of default to repay the loan was not served to the appellant and secondly, that the auction was conducted without a proper notice to the appellant. On the contention that the sale of the suit property was done without a notice to the appellant, the learned State Attorney argued that, apart from lack of evidence that, the appellant was the wife of the borrower, she could not, in her capacity as an administratrix of the deceased estate, be in the position to challenge 14

the sale on account that, she was not notified of the 1s t respondent's intention to exercise its right of selling the suit property. The learned State Attorney argued further that, the 1s t respondent could not have been aware of the death of the borrower without being so notified by the appellant or any members of the deceased's family. He submitted thus that, the sale, which was carried out after publication in the newspapers mentioned above, the act which was done after about 15 years of the date of default, was proper. With regard to the notice of default of payment of the loan, the learned State Attorney contended in his oral submissions that, the same was issued as shown by the letter appearing at page 26 of the record of appeal and also as published in the Nipashe and the Daily News papers of 29/8/2008 and 24/10/2008 respectively, Mr. Mahenge argued also that, in any case, the issuance of a default notice was discretionary under section 125 (1) of the Land Act and even if the 1s t respondent would have failed to serve it upon the borrower, such failure would not have affected the sale of the suit property. Adding to the submissions made by Mr. Mahenge, Mr. Kamugisha argued that, since at the trial, the appellant did not tender the Loan Agreement, her claims lacked proof and thus ought to have been dismissed for want of merit. 15

We have duly considered the submission of the learned counsel for the parties. To begin with the point raised by Mr. Kamugisha that, since the appellant did not tender in evidence a copy of the Loan Agreement, the suit ought to have been dismissed for want of merit, we find, with respect, that the argument is indefensible. The reason is that, existence of the Loan Agreement which was the basis of the sale of the suit property by the Corporation, was not disputed. In reply to ground 7 of the plaint in which, the appellant asserted that, the Bank entered into the mortgage deed with the borrower, the Principal Officer of the Corporation stated as follows: "That the contents o f paragraph 7 are admitted to the extent that, Issa Mohamed Boon (the deceased) mortgaged the suit property at the said value and the loan mentioned... It was also not disputed that, the loan agreement provided for the conditions which should be followed by the mortgagee (the Bank) before it could exercise its right of sale of the suit property, in the event the mortgagor defaulted to repay the loan. They include; serving the borrower with a default notice, which was also provided for under section 125 (1) of the Land Act (now section 127 (1) of the Revised Edition,

2023. and publication of a notice of intention to sale the suit property. See paragraphs 5 of the plaint and 2 of the 1s t respondent's written statement of defence. That having been said, we proceed next, to consider the complaint by the appellant that, she was not served with a default notice. We are of the considered view that, the complaint is meritless. Although under section 110 of the Evidence Act, Chapter 6 of the Revised Laws (the Evidence Act), the burden of proof is on the party who asserts existence of a fact, in the particular circumstances of this case, in which the appellant had asserted the negative; that a default notice was not served on her, the burden of proof would have shifted to the 1s t respondent. That is in accordance with the provisions of section 115 of the evidence Act which states that: "115- In civil proceedings when any fact is especiaiiy within the knowledge o f any person, the burden o f proving that fact Is upon him" In this case, it was the 1s t respondent who was in the position to counter, through documentary or oral evidence, the appellant's contention that, the borrower was not served with a default notice. The application 17

of that section of the Evidence Act, where a fact required to be proved is in the personal knowledge of one of the parties arose in, among others, the cases of Standard Chartered Bank Tanzania Limited v. National Oil Tanzania Ltd (Civil Appeal No. 98 of 2008 [2013] TZCA 228 and Magambo 3. Masato and 3 Others v. Esther Amos Bulaya and 2 Others (Civil Appeal No. 199 f 2016) [2017] TZCA 1046. In the two cases, one of the issues was decided on the basis of the position of the law that, when a fact is especially in the personal knowledge of a party, the burden of proof lies on that party. In this case, the respondent would have the burden of proving, on the balance of probability, that the borrower was served with the notice. However, as found by the learned trial Judge, the appellant filed the suit in her capacity as the administratrix of the estate of the borrower. According to paragraph 5 of the 1s t respondent's written statement of defence, the borrower was served with the notice of default. In her evidence at page 87 of the record of appeal, the appellant blamed the 1s t respondent that, it did not serve upon her, a default notice. She was recorded to have stated as follows: 7 did not receive demand o f the loan on notice before the farm was sold'. 18

Clearly therefore, the complaint by the appellant is unjustified because she was not the borrower. In effect, Mr. Mwakolo did not dispute that a default notice was served on the borrower. His contention was that, the same was served at the time when the borrower had passed away and before the appointment of the appellant as the administratrix of the deceased's estate. It is obvious that, because the appellant was not the borrower, the notice could not have been addressed to her. Furthermore, as argued by the learned State Attorney, in her capacity as the administratrix of the deceased's estate, she could not be in the position to testify on the facts which could only be deponed by the deceased. As found by the learned trial Judge, her role as the administratrix of the deceased's estate was confined to matters of administration of the estate left by the deceased. She could not, in that capacity, complain on the matters which were privy between the borrower and the Bank. On the 3r d ground of appeal, in which the appellant had challenged the finding of the High Court that, the 3r d , 4th , 5th and 6th respondents were protected as lawful buyers of the suit property in terms of sections 134 and 135 of the Land Act, we equally find the ground of appeal devoid of merit. The argument by Mr. Mwakolo that, the sale was not lawfully 19

conducted because, it was done before the appointment of appellant as the administratrix of the deceased's estate, is with respect, incorrect. After the advertisement of the suit property for sale in the Nipashe and the Daily News papers, the fact which was not disputed by the appellant, and there having been no intervention from any member or relative of the deceased's family, the Corporation had the right to proceed with the auction. As submitted by the learned State Attorney, the Corporation could not be aware of the death of the borrower unless it was so notified. As for the buyers, the finding by the learned trial Judge that, they were protected as the lawful purchasers of the suit property is, in our considered view, a correct finding. Section 134 (2) (c) of the Land Act states that: "134 - (1).... (2) A person to whom this section appiies- (a)..., (b).... (c) is not obliged to inquire whether there has been a default by the borrower or whether any notice required to be given in connection with the exercise of the power of sale has been duly given or 20

whether the sale is otherwise necessary, proper or irregular". [Emphasis added]. Given the position of the law as reproduced above, the trial court's finding cannot be faulted. For these reasons, we also dismiss the 3r d ground of appeal. On the basis of the foregoing reasons, the appeal fails. In the event, we hereby dismiss it with costs. DATED at DODOMA this 9th day of September, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered via virtual link, this 12th day of September, 2025 in the presence of the Ms. Fatuma Issa Mohamed, Mother for the appellant and Mr. Siyumwe Mubanga, learned State Attorney for the 1s t and 7th respondents and in the absence for the 2n d , 3rd , 4th , 5th and 6th respondents and Ms. Rehema Makakala, Court Clerk, is hereby certified as