Diamond Trust Bank (DTB) vs Jimmy C. Mabon Do and Others (Land Application No.27832 of 2025) [2025] TZHC 8615 (19 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPLICATION NO.27832 OF 2025 (Arising from the ruling of this Honourable Court in Execution case Ho. 4665 of 2024) DIAMONDD TRUST BANK (DTB) .................................................. APPLICANT VERSUS JIMMY C. MABON DO, MWAMBA AUCTION MART AND COURT BROKERS .................................................................... 1 st RESPONDENT IMANI JAMES ILOMO ................................................................................. 2 nd RESPONDENT ABRAHAM ANTONY SANGA ........................................................................ 3 rd RESPONDENT RULING Date: 10 lh & 19 th December, 2025 MASABO, J; - The applicant was the decree holder in Land Case No. 4 of 2018 before this court in which she was awarded a sum of TZS 490,309,429.62/= against the 2 nd respondent. In realisation of the decree, she filed Execution No. 4665 of 2024 seeking the assistance of this court in the attachment and sale of the 2 nd respondent's properties namely Plot No. 7, Block D, Nkuhungu, North with CT No. 24110 - DLR, and Plot No. 82, Block A, Nkuhungu South with tittle No. 9254 DLR, so that he can realise the decretal sum of TZS 490,309,429.62/=. The application was granted whereby the 1 st respondent was appointed to execute the decree. In the course of such execution, the 1 st respondent conducted a public auction on the 4 th April 2025, at which Plot No. 7, Block D, Nkuhungu, North with CT No. 24110 (herein to be referred to as the suit property), was sold to the 3 rd respondent who emerged as the successful winner. 1 I Page The applicant is aggrieved with the modality employed by the 1 st respondent in auctioning the suit property. He thus preferred the current application seeking to set aside the sale on the ground that it was marred by material irregularities. At the hearing of this application, which proceeded by way of written submissions, Mr. Ditrick Mwesigwa, learned advocate, appeared for the applicant, while the 2 nd and 3 rd Respondents enjoyed the service of Mr. Emmanuel Andrea Bwile, learned advocate. The parties filed their submissions on time save for the 1 st respondent, who defaulted the scheduling order, although it was scheduled in his presence. Submitting in support of the application, Mr Mwesigwa adopted the contents of the affidavit filed in support of the chamber application and submitted that the court be guided by Order XXI Rule 90(1) of the Civil Procedure Code [Cap 33 R.E 2023], which sets out the grounds for setting aside the sale. He further cited the decision of the Court of Appeal of Tanzania in the case of Ottu on Behalf of P.L. Asenga & Others vs Ami Tanzania Limited (Civil Application No. 44 of 2012) [2013] TZCA 474 TANZLII, in which it was held that the applicant seeking for an order setting aside the sale must demonstrate that a material irregularity or fraud was committed or done in publishing or conducting the sale and that the fraud or material irregularity has occasioned him a substantial injury'. These conditions, he argued, have been established through paragraphs 4, 6, 7, 8 and 9 of the applicant's affidavit. In these paragraphs, it has been deponed that the notice of sale was issued on 2 nd April 2025 and the auction was held bwo days later contrary to section 12(2) of the Auctioneers Act [Cap. 227 R.E. 2023], which mandatorily requires issuance of a public notice of at least 14 days before the auction. 2 | P a g e Non-compliance was a material irregularity as held in the case of Godebertha Lukanga vs CRDB Bank Ltd and 3 Others (Civil Appeal No. 25/17 of 2017) [2021] TZCA 72 TANZLIL Also, the notice issued was not advertised in the areas surrounding the suit area. Another irregularity, he argued, was the 3 rd respondent's failure to pay 25% of the purchase price after the fall of the hammer or on the date of the auction. Amplifying this point, he submitted that the 3 rd respondent, having won the bid forTZS 35,000,000/=, which was the highest bid, was required by law to pay TZS 8,750,000/= equivalent to 25% of the purchase price on the same date but he failed. As per annexure A3 to the affidavit, he only paid TZS 5,000,000/=, not on the same date but on 8 th April 2025, when 4 days had elapsed, contrary to Order XXXI Rule 84(1) of the Civil Procedure Code. This was a major irregularity as it vitiated the sale. Mr. Mwesigwa argued further that another irregularity regarded the 3 rd respondent's failure to pay the remaining 75% within 14 days contrary to the requirement of Order XXI Rule 85(1) of the Civil Procedure Code and Regulation25(l) of the Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, 2017 (GN No. 363 of 2017). The 3 rd respondent paid the above sum after the expiry of 45 days. As per annexure A4 to the chamber summons, he paid it on 3 rd June 2025. By then, the permissible period had already lapsed, and it was therefore a material irregularity as held in the case Felix Lugakingira vs Sukah Security Co. (T) Ltd & Two Others (PC Civil Appeal 52 of 2021) [2022] TZHC 12781 TANZLIL 3 | P a g e The last irregularity, he argued, was on the purchase price as it was far below the actual value of the suit property. It was 50% below the market value shown in the valuation report, which rendered the sale untenable as held in Ukod International Co. Ltd vs Stanbic Bank (T) Ltd & 2 Others (Mise. Commercial Case No. 128 of 2023) [2023] TZHCComD 350 TANZLIL As for the injuries, the learned counsel argued that if the sale is upheld, the applicant will not realise his decretal sum, considering that the suit premise is one of the two assets attached in its realisation and the second property was not sold as it did not attract any interested buyer. The applicant has suffered a substantial loss as his decretal sum has not been realised and will remain unrealised as held in the case of Edwin Msigwa and Others vs Mkasu Saccos and Others (Consolidated D.C Civil Appeal No. 28265 & 28266, 28263 and 28264 of 2024) [2025] TZHC 5216 TANZLIL Wrapping up, the learned counsel submitted and prayed that the application be granted as the above demonstrated irregularities are material and have caused the applicant a substantial injury. As alluded to earlier, the 1 st respondent did not file his written submission, but in his counter affidavit, he deponed that, indeed, he conducted the auction and having sold the suit premise to the 3 rd respondent, who was the highest bidder he notified him of the obligation to pay the 25% after the fall of the hammer, but payment was not made on the same day. It was made on 8 th April 2025, and on that day, he paid TZS 5,000,000/= only. He also conceded that the sale price was below the value indicated in the valuation, which was approved on 9 th May 2025. 4 | P a g e Opposing the application, Mr Bwile adopted the counter affidavit jointly filed by the 2 nd and 3 rd respondents and invited this court to dismiss the application with costs. He argued that the legal burden to prove the alleged irregularity rests on the applicant, but as per her affidavit, she has miserably failed to discharge it. Regarding the failure to pay 25% of the purchase price on the date of the auction and the remaining 75% in 14 days after the auction, he submitted that these are not sufficient reasons for setting aside of the sale as the full amount was paid, and the applicant has not suffered any substantial injury. With regard to the issuance of 14 days' notice of sale, he submitted that there was no irregularity as the auction was in compliance with the court's order that it be conducted within a very short time. On the submission that the sale price and the actual value of the suit were at a huge variance, it was submitted that no one is to blame because at the highest bid at the auction was TZS 35,000,000/=. On the allegation of insufficient- advertisement in the surrounding areas, it was submitted that the lamentation is without merit. Had there been no sufficient advertisement of the auction, there would have been no bidders, but as per the record, there were several, including the 3 rd respondent. Winding up his submission, Mr Bwile reiterated that the conditions for setting aside the sale are as stipulated under Order XXI Rule 90(1) of the Civil Procedure Code and in the case of OTTU on Behalf of P.L Asenga & Others (supra) and they must all be proved by the applicant. Since they have not been proved in the present application, it must fail and be dismissed with costs. 5 | P a g e In his brief retort, Mr Mwesigwa reiterated his submission in chief, insisting that there exist irregularities that were committed during the sale of the suit property and they warrant the setting aside of the sale. I have considered the rival submissions by the parties alongside the affidavits and the counter-affidavits by the parties. The issue for determination is whether the sale was marred by irregularities that warrant its setting aside. Order XXI rule 90 of the Civil Procedure Code, Cap 33 R.E. 2023, on which the present application is based, provides as follows: 9O.--(l) Where any immovable property has been sold in execution of a decree, the decree-holder, or any person entitled to share in rateable distribution of assets, or whose interests are affected by the sale, may apply to the court, to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it: Provided that, no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud", [emphasis added]. The Court of Appeal, while applying this provision in Ottu On Behalf of P.L. Asenga & Others vs Ami Tanzania Limited (Civil Application 44 of 2012) [2013] TZCA 474, held thus: The meaning of the provisions cited above as correctly submitted by Mr. Mbwambo is that the grounds for setting aside the sale under Rule 88 (1) of O.XXI, is limited only to where it can be proved that there were irregularity or fraud in publishing or conducting the sale and further that the applicant must also prove to the satisfaction of the court that he has suffered substantial injury. We do not read the 6 | P a g e Rule to impose any other restriction as suggested by the judge. So, a sale held in execution of a decree can be set aside under this rule only if the following conditions are fulfilled (a)There must be as material irregularity or fraud. (b)The material irregularity or fraud must be in publishing or conducting the sale. (c) The applicant must have sustained substantial injury. (d) Such injury must have been caused by reason of the material irregularity or fraud. In our case, the first hurdle which the applicant had to jump is whether there was any evidence on the record to substantiate the application." The present application is based on irregularities. Therefore, the first hurdle that the applicant herein has to jump is to establish whether the alleged irregularities exist. It has been argued that there were multiple irregularities. The alleged irregularities include, failure to issue 14 days' notice and to adequately advertise the notice, failure by the 3 rd respondent to pay 25% of the purchase price on the auction date and his failure to pay the remaining 75% within 14 days, absence of valuation report on the date of auction, sale of the suit property below its market value and insufficient advertisement. Some of these have been admitted by the 1 st respondent, who conducted the sale by public auction. The irregularities admitted include failure to issue the 14-day notice, the 3 rd respondent's failure to pay 25% of the purchase price after the fall of the hammer or on the same day and his failure to pay the remaining 75% on time. It has also been admitted that on the date of the auction, the valuation report of the suit property had not been obtained. Starting with the issue of 14 days' notice. Section 12(2) of the Auctioneers Act, Cap 227 R.E. 2023, states that: 7 | P a g e (2) A sale by auction of any land shall not take place until after at least fourteen days public notice thereof has been given at the principal town of the district in which the land is situated and also at the place of the intended sale. [Emphasis added]. The provision is couched in mandatory terms. As held by the Court of Appeal of Tanzania in the case of Jm Hauliers Limited vs Access Microfinance Bank (Tanzania) Limited (Civil Appeal 274 of 2021) [2022] TZCA 522 TANZLI, while elaborating the wording of section 12(2) (supra), for the auction to be conducted, the 14 days must have expired. In the present application, it is undisputed that the public auction in respect of the suit property was done on 4 th April 2025, which, as per annexure A2, was only 2 days after the issuance of the notice of auction in Zanzibar Leo Newspaper on 2 nd April 2025. The alleged irregularity, as admitted by the 1 st respondent, is found to have been proved. The 3 rd respondent's failure to timely pay the 25% and 75 % of the purchase price is similarly undisputed. The 1 st respondent has admitted it in paragraphs 4 and 5 of her counter-affidavits.. She also appended Annexure A3 and A4, which show that those payments were made contrary to the dictates of Order XXI Rule 84 (1) and Rule 85 of the Civil Procedure Code, which provides that: "84.-(l) On every sale of immovable property, the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per centum on the amount of his purchase money to the officer or other person conducting the sale and, in default of such deposit, the property shall forthwith be re-sold ..... 85. The full amount of purchase-money payable shall be paid by the purchaser into court before the 8 | P a g e court closes on the fifteenth day from the sale of the property ...... [emphasis added], Mr. Bwile has argued the court to find the anomaly above inconsequential due regard being that, irrespective of the delay, the 3 rd respondent eventually paid the purchase price in full and, as a result, he cured the illegality. I respectfully differ with Mr. the learned counsel. The wording of the two provisions above is precise and does not, in any way, support his view. In my considered view, it supports Mr. Mwesigwa's view. The 3 rd respondent, being the purchaser, was duty-bound to abide by the law regulating public auctions and he has none, but himself to blame for defying the mandatory provisions of the law. His noncompliance rendered the sale obsolete. Turning to the absence of the valuation report, through paragraph 7 of the l sr respondent's counter affidavit, it was admitted that indeed, when the auction was being conducted on 4 th April 2025, the valuation report was absent as it had not yet been approved. In my examination of the record, I have also observed that the report was finalised 5 days later on 9 th May 2025 and its certificate of approval issued on 12 th May 2025 as shown in Annexure A5 to the applicant's affidavit. This means that when conducting the auction, the 1 st respondent had no clue of the market value of the suit premise. This had the risk of auctioning the same below its market value as it happened whereby, the purchase price was far below its market and force value of TZS 107,000,000/= and TZS 80,000,000/=, respectively. In view of the above irregularities, the applicant has ably passed the first huddle by demonstrating the alleged irregularities. 9 | P a g e The second huddle, whether the applicant suffered prejudice, will not detain me. As already stated, the applicant sought the assistance of this court in execution aiming at realising the decretal amount of TZS 490,309,429.62 against the 2 nd Respondent. The irregularities above, notably, selling of the suit house at a price far below its purchase and forced value, are injuries to the applicant as they substantially affect the possibility of realising the decretal sum due to him. All said and done, I find the applicant to have demonstrated that the process was flawed with materia! irregularities which occasioned injury to the applicant and consequently rendering the purported sale of plot No. 7, Block D, Nkuhungu, North with CT No. 24110 to the 3 rd respondent null and void. Accordingly, I set it aside. I further ordered that a fresh auction be conducted by adhering to all legal procedures. Costs shall be shared by each of the parties shouldering its costs. DATED and DELIVERED at DODOMA, this 19 th day of December 2025 J. L. MASABO JUDGE 10 | P a g e