Ibrahim Twahili Kusundwa & Another vs CRDB Bank PLC & Others (Civil Application No. 168/17 of 2024) [2025] TZCA 852 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A.. KENTE, 3.A.. And MANSOOR. 3.A.^ CIVIL APPLICATION NO. 168/17 OF 2024 IBRAHIM TWAHILI KUSUNDWA .......................................... 1 st APPLICANT IBRAHIM TWAHILI KUSUNDWA (Administrator of the estate of the late TWAHILI SELEMANI KUSUNDWA) ...... 2 nd APPLICANT VERSUS CRDB BANK PLC .................................................................1 st RESPONDENT MEM AUCTIONEERS AND GENERAL BROKERS LTD .............. 2 nd RESPONDENT EPIMAKI S. MAKOI.............................................................3 rd RESPONDENT PRIM A. MUSHI............................................................... 4 th RESPONDENT (Application for review of the Judgment of the Court) (Ndika. Kairo and Mlacha. JJA.^ Dated the 19th day of January, 2024 in Civil Appeal No. 194 of 2021 RULING OF THE COURT 31st July & 12thAugust, 2025 KENTE. J.A: This application invokes our review jurisdiction in terms of Rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (hereinafter the Rules). The Judgment sought to be reviewed was delivered in the respondent's favour on 19th January, 2014. Going by the notice of motion, the application is specifically based on Rule 66 (l)(a) of the Rules and it raises three grounds (after counsel for the applicants abandoned the third ground and sought to argue the remaining

three grounds) as instances of error that the applicants believe to be apparent on the impugned judgment and to have resulted into a miscarriage of justice. During the hearing of the application, when we found it difficult to fully comprehend the applicants' grievances as they were not clear from the language used in the notice of motion and the supporting affidavit, we asked Mr. Daniel Welwel, learned counsel who appeared to represent them to assist us get the gist of the applicants' complaint in each ground. Responding to our question, Mr. Welwel stated in the first place that, the first ground upon which the decision of the Court is intended to be reviewed, is the contention that, there was no proof of payment of the entire auction sum as to entitle the third and fourth respondents to seek shelter under the principle of bona fide purchaser for value without notice which protects innocent purchasers from prior claims on the property. As to the second ground, it was explained that, its import was that, since it was found that the first respondent had not issued a proper default notice in terms of section 127 of the Land Act and that, as a result, the auction was conducted rather prematurely, the Court had omitted to accomplish its task in that it failed to award the applicants damages for the first and second respondents' wrongdoings. Finally, it was Mr. Welwel's clarification that, under the last ground of review, it was the applicants' position that, since the fourth 2

respondent did not appear to testify before the trial court with a view to establishing his rights on the suit property and that, assuming that it was not proved that the third and fourth respondent had liquidated the whole of the purchase price, the fourth respondent was undeservedly protected as a bona fide purchaser. As would be expected, the above paraphrased grounds were traversed by the first and second respondents in their joint replying affidavit. However, rather than containing factual statements made under oath or affirmation as is the norm, the said affidavit contains legal arguments, opinions and conclusions. Although in a legal context like the present one, the above infraction of the law is so egregious as to almost be unforgivable, it is generally understandable given the nature of the applicants' unconventional and equally disputatious averments in the notice of motion and the supporting affidavit. We shall revert later to this aspect of the parties' averments in their respective affidavits. Meanwhile, it is convenient and necessary to go into a brief history of this matter. Relevant for the present purposes, the brief factual background giving rise to this application, goes as follows. In September 2007, the first applicant obtained from the first respondent bank a facility worth TZS. 600,000,000.00 secured by mortgage of the second applicant's property comprised in Block "30" Plot No. 13 Nyamwezi Street Kariakoo, Dar es 3

Salaam (Certificate of Title No. 32350). The facility was meant for the construction of a commercial and residential multi-storey building on the said property. Upon death of the second applicant who was the first applicant's father, on 18th May 2008, the first applicant was duly appointed and granted letters of administration of his father's estate. That was on 11th April, 2013. After the first applicant who was the borrower defaulted in 2012, the first respondent sought to exercise its right to sell the property. For this purpose, the first respondent appointed an auctioneer to sell the mortgaged property by way of public auction. In the wake of the dispute that ensued between the first applicant and the first respondent, and in an effort to ward off the intended sale, the first applicant took out an action by instituting Land Case No. 120 of 2012 in the High Court of Tanzania (at Dar es Salaam) against the first respondent and the appointed auctioneer. However, by September 2013, the parties had agreed to fully and finally settle all matters arising out of their dispute and, on 16th September, 2013 they accordingly went on filing a deed of settlement in court formally resolving their dispute. But then, four years later, because of what seems to be the first applicant's failure to fulfill his obligations under the settlement deed, on 21s t July, 2017 the property was auctioned off by the second respondent on the instructions of the first respondent. The first applicants' effort to have the 4

sale nullified by the court on the grounds that he was not in default as per the rescheduled payment agreement, was ineffectual as the trial court in the subsequently filed Land Case No. 274 of 2017, took the view that, indeed the first applicant had defaulted on his loan repayment obligations as stipulated in the deed of settlement. Unhappy with that decision of the High Court, the applicants appealed to this Court citing twelve grounds of complaint. Of material relevance to our instant case, we will reproduce verbatim the first and sixth grounds of appeal by which, together with other grounds, the applicants had challenged the decision of the High Court in Land Case No. 274 of 2017.

1. That the trial court erred in fact and in 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 of settlement and the consequent decree;
2. That the trial court erred in fact and in law by declaring the third and fourth respondents as lawful and bonafide purchasers of the property while in fact they never participated at the auction either as partners or individually. After going through the evidence on the record and hearing the arguments by the parties, the Court found in respect of the above - quoted grounds of appeal that, indeed the first respondent had not issued 5

and served a default notice on the first applicant's father who was the mortgagor and that, the neglect by the first respondent to tender the said notice, if any, rendered it 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. Dealing with the first and second respondents' flouting of the legal requirements under the above cited law together with S. 12(2) of the Auctioneers Act, the Court appears to have taken the view that, the omission was inconsequential and it did not invalidate or otherwise nullify the subsequent sale of the mortgaged property by public auction. With regard to the applicants' (then the appellants) complaint in the sixth ground of appeal, having reviewed the evidence, the Court agreed with and consequently sustained the factual finding made by the trial court that, the evidence on record preponderantly established that the property was auctioned off as scheduled and that the third and fourth respondents were jointly declared the highest bidders whereupon they subsequently made a down payment of TZS 450,000,000.00 before they later on cleared the balance on 31s t July 2017. As to the applicants' complaint that the third and fourth respondents did not attend the auction, the Court reasoned that, there was no legal requirement that every bidder must physically attend the auction. Upon the foregoing and other reasons as can be distilled from the impugned judgment of the 6

Court, the appeal by the applicants was entirely dismissed for lack of merit. A stated earlier, the applicants are of the firm conviction that, the judgment of the Court cannot be allowed to stand as, in view of the issues raised in the grounds of review, it contains some obvious errors that are apparent on the record and, in the applicants' opinion, the said errors have led to a miscarriage of justice. However, as intimated earlier, in reply to the grounds preferred by the applicants in support of the application, of which we remain unconvinced, the respondents correctly contended that the issues raised by the applicants through their joint grounds of review were purely legal and factual and that they were fully considered and resolved by the Court in its judgment. We propose to deal very briefly with the two instances of error as presented by the applicants. Notably, the sole ground upon which the present application is premised is in Rule 66 (1) (a) of the Rules which reads as follows: "66 (1) The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds- (a) The decision was based on a manifest error on the face of the record resulting into a miscarriage of justice"

Obviously, in the alleged instances of error that were cited by the applicants in support of the application, the issue that the said grounds raise and, that is the most fundamental question in all applications of the present nature, is whether, the judgment which is sought to be reviewed, has a defect that is immediately apparent from the record as to need neither evidence nor investigation or a long process of reasoning to find it. Put in other words, the alleged error which is sought to be reviewed, should be so clear that there is no room for disagreement about its existence. We have time and again pronounced ourselves on the above position of the law but, in view of the trend in the recent past, where this Court has been inundated with frivolous or vexatious applications requesting it to review its own decisions, it is incumbent upon us to emphasize that, save for what is specifically and strictly provided for in Rule 66 (1) of the Rules, this Court has no jurisdiction to review its own decisions or to set them aside and re-open appeals. For, if it were not so, then there would be no finality in dealing with appeals and, on our part, we would be lacking in candour, if we were to conceal our unhappiness about endless litigation. In the case of Saul Henry Amon and Another, [2024] TZCA 275, while going along with our earlier decision in the case of Nguza Viking @ Babu Seya & Another v. Republic, Criminal Application No. 5 of 2010, we extrapolated from our numerous case authorities and finally guided that,

the Court will not interpret as a manifest error on the face of the record if the ground advanced in support of an application for review falls in any of the following instances, namely: (3) If the error is to be detected by the process of reasoning; (b) I f there are two possible views regarding the interpretation or application of the of the law; (c) Any ground o f appeal; (d) Any erroneous decision; (e) A mere error or wrong view; and (f) A different view on a question of law or an erroneous view on a debatable point or a wrong exposition or wrong application of the law [Emphasis added] Coming to the instant case, as correctly submitted by Messrs Libent Rwazo and Godwin Mwapongo who are respectively learned counsel for the first and second respondents on one hand, and the third and fourth respondents, on the other hand, and this is plain for all and sundry to see, the complaint that the judgment of the Court is marred by a number of manifest errors apparent on the record is, in all respects, identical with the applicants' grievances in the first and sixth grounds of appeal which were considered and determined by the Court in the manner as we had stated earlier in this ruling. That being the case, we find no justification to entertain 9

the applicants' complaint as that will be synonymous with allowing them to unconventionally appeal a finally determined and closed case. On the facts of this case, we cannot discern any error on the face of the record as warranting review of the judgment of the Court. In the ultimate event, we find no merit in the application which we accordingly dismiss with costs. DATED at DAR ES SALAAM this 11th day of August, 2025. Ruling delivered this 12th day of August, 2025 in the presence of Mr. Daniel Wei wel, learned counsel for the Applicants and Mr. Godwin Musa Mwapongo, learned counsel for the 3r dand 4th respondents also holding brief for Mr. Libent Rwazo, learned counsel for the 1s t and 2n d respondents, is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL 10