KG-Intertrade Company (T) Ltd vs TIB Development Bank Ltd and Others (Land Case No. 15074 of 2024) [2025] TZHC 8470 (19 December 2025)

1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA LAND CASE NO. 15074 OF 2024 KG - INTERTRADE COMPANY (T) LTD ……………… … … PLAINTIFF VERSUS TIB DEVELOPMENT BANK LTD…………………… … . 1 ST DEFENDANT THE HON. ATTORN EY GENERAL …………………….2 ND DEFFENDANT MELVA INTERNATIONAL LTD………………………...3 RD DEFFENDANT TRUST COMPANY LTD. ………………………………...4 TH DEFFENDANT IN COUNTER CLAIM TIB DEVELOPMENT BANK LTD……………………… … . 1 ST PLAINTIFF THE HON. ATTORNEY GENERAL …………………… … .. 2 ND PLAINTIFF VERSUS KG - INTERTRADE COMPANY (T) LTD …………………… DEFFENDANT JUDGMENT 4 th & 1 9 th December, 2025 KAWISHE, J.: The plaintiff , KG - Intertrade Company (T) Ltd filed suit in this court severally and jointly against the defendant s named hereinabove for declaratory o rders that the auction conducted by the 3 rd defendant on 22 nd March , 2022 over the mortgage property , F arm N o. 38, SO /No.4199 with Letter of O ccupancy with Lo. No . 811 situated at Mlayoyo V illage in Songea

2 District Ruvuma Region is nullity on account of il legality and throw away price . The plaintiff prayed for the following:

1. An order for nullification of the auction conducted in March, 2022 by the 3 rd defendant auction the mortgaged property Farm No. 38, SO /No. 4199 . Letter of Right of Occupancy Lo. No. 842 11 situated at Mlilayoyo Village, Songea District, Ruvuma Region in the name of Ms. KG - Intertrade Company Tanzania Ltd.
2. An order for reauctioning by a court appointed auctione er Letter of Right of Occupancy Lo. No. 84211 situated at Mlilayoyo Village, Song ea District, Ruvuma in accordance to the law and upon proper valuation. Alternatively ,
3. An order to allow the plaintiff to dispose the mortgage property Farm No. 38, SO /No. 4199. Letter of Right of Occupancy Lo. No. 84211 situated at Mlilayoyo Village, Song ea District, Ruvuma Region within a period to be fixed by the court so that the outstanding debt shall be cleared.
4. An order for general damages for wrongs, economic hardships and sufferings committed by the defendants at the detriment of the plaintiff to b e assessed by the court.
5. Payment of interest rate ate court rate of 7% on the decretal sum above from the date of judgment until full payment.
6. An order for the cost of the case.
7. Any other order/relief this court may deem fit and just to grant. When served with the plaint, the 1 st and 3 rd defendants filed their written statement of defence (WSD) disputing the plaintiff’s claim. They prayed for the same to dismissed with costs. In addition, the 1 st and 2 nd defendants filed a counter claim complaining that th e defendant breached the Credit

3 Facility Agreement, Mortgage Deed, Debenture Deed as well as the Loan Guarantee Agreement with an outstanding amount of Tzs. 321,360,600/= including penalty and interests as of 12 th August 2024. The plaintiffs in the counter claim prayed for the following orders : (i) Declaration that the defendant is in breach of the Credit Facility Agreement, Mortgage Deed, Debenture Deed as well as the Loan Guarantee Agreement. (ii) The defendant to pay the outstanding loan amounting to Tzs. 321,360, 600/= including penalty and interest to the plaintiff. (iii) Payment of Interest at the Court rate from the date of filling this suit to the date of judgment. (iv) Plaintiffs to exercise their rights towards Personal Guarantee of defendant's shareholders namely SULE IMAN MTANDAMA KANTINGA and Mohamed HAMISI GAYO. (v) Attachment and sale of guarantors' personal properties to realize the outstanding amount. (vi) Costs of this suit to be borne by the defendant. (vii) Any other order as this Honorable Court shall deem just to grant. Prior to digging deep into the deliberation of this suit, I find it pertinent to state the facts which bore this suit. According to the plain tiff’s plaint, the plaintiff is a client of the 1 st defendant. That she got a loan facility which she defaulted rep ayment leading the 1 st defendant to do recovery measures by way of auctioning the mortgaged property in issue and in that move, she appointed the 3 rd defendant as an auctioneer to auction the

4 property. That in the auctioning the mortgaged property the 3 rd defendant did not abide to the law and regulations. That the act of the defendant auctioning the farm to the 4 th defendant and evicting the plaintiff occasioned loss of the real value of the property. That the sale did not clear the debt. In the written statement of defence, the 1 st and 2 nd defendants disputed the claim asserting that the auction was conducted in accordance to the law. That the mortgaged property was inspected, valued and auctioned at is market value. By way of counter claim, the defendan ts who are 1 st and 2 nd plaintiffs in the counter claim averred that on 21 st October, 2013 the 1 st plaintiff entered into a Credit Facility Agreement to the effect that the 1 st plaintiff advanced the defendant with Medium Term Loan under Agriculture Window amounting to Tzs. 197,0000/= to finance purchase of a tractor and allied implements to facilitate maize and sunflower production and Short - Term Loan under Agriculture Window amounting to TZS 53,000,000/ = to finance farm, operations cost requirements of the project. That to date, the defendant has not made full payment of the remaining loan amount and the same has accrued interest, penalty, and charges to the tune of TZS 321,360,600/= including penalty and interests as of 12 th

5 August, 2024. Hence the main cl aim and the counter claim before this court for determination. Although they were duly served, the 3 rd and 4 th defendants did not appear in court to defend the case. To that effect an ex parte hearing order was issued against them. After completing preli minary hearing of the suit, t he parties agreed that the main and counter claim s be argued simultaneously. In determining the matter, the parties agreed on the following issues to lead this c ourt.

1. Whether the attachment and sale by public auction of the su it property was lawful.
2. Whether the defendant in the counter claim is in breach of the loan agreement and is liable to pay the outstanding loan amount, interest, penalties and charges thereof under the mortgage agreement .
3. What are the reliefs do the parti es entitled to . When the case was called for hearing the plaintiff was represented by Mr. Dickson Pius Ndunguru learned advocate whereas the 1 st and 2 nd defendants enjoyed the legal services of Mr. Ibrahim Kabelwa and Ms. Tausi Swedi , learned State Attorn eys. In determining this case I resolve the issues raise seriatim.

6 Mr. Kossa Suleiman Kantinga , Farm Manager to the plaintiff in the main claim testified as PW1. The testified that the plaintiff is a client to the 1 st defendant, Tanzania Investment Develo pment bank ( TIB Bank) . That he knows Melva International Ltd after TIB bank had engaged her to auction the mortgaged property. He added that he knows Trust Company Ltd the buyer of the mortgaged property sold by Melva International Ltd. The witness told th is court that on 19 April, 2022 Melva Company Ltd accompanied by officers from TIB Bank auctioned the mortgaged land Farm No. 38 located in Mlilayoyo Village . PW1 continued to testify that he saw the advertisement and the notice on the newspaper on 10 th Ap ril, 2022 and the farm was sold on 19/4/2022 . He continued to testify that the notice was for 9 days and not 14 days. He stated that when applied for the loan, the farm was valuated by TIB and its price was Tzs. 520,000,000/=. As a result , the plaintiff wa s granted with the loan. PW1 tendered the Valuation Report of a Farm Property No. 38 at Mlilayoyo Village, Songea District Ruvuma Region which was admitted and marked as exhibit P1 . He testified that the valuation report was prepared by M & R Agency Ltd, l ocated in Happiness Center Block, Sam Nujuma Road, D ar es S alaam. Mr. Kossa added that, the valuation was done in in September, 2013. The

7 market price as Tzs. 520,000,000/= while forced sale value was 364,000,000 /=. PW1 told this court that in 2018 Mr. Ha jj Namulia with other three colleagues went to the farm and introduced himself as an officer from the 1 st Defendant, TIB bank. That Mr. Hajj told PW1 that he went to value the farm and prepare a report. That he did not go around the farm as the first value r did. PW1 testified that he was not availed with a copy of the valuation report until after the auction in 2022. PW1 tendered the Report on Valuation of Agricultural Property Farm No. 38, Mlilayoyo Village, Songea Rural District in Ruvuma, Valuation Repor t for Loan Recovery Purpos e which was admitted and marked as exhibit P2 . PW1 continued to testify that, the report was prepared by Property Matrix Co. Ltd for TIB Bank. He referred this court to page 20 of the report show ing that the land property’s grand total is Tzs . 53,000,000/ = . That p age 21 of the report show that the market value was T z s. 71,000,000/ = forced value T z s. 53,000,000/ = . He stated that, the first valuation was on the same land with a value of T z s. 520,000,000/ = . PW1 claimed that land does not depreciate rather it escalates. It was his testimony that the challenge was the evaluation. That the report did not reveal the drastic fall of the value

8 the farm. That both the reports were prepared for TIB Bank. That the value did not match the local area value of land. Mr. Kossa told this court that the valuation conducted in 2018 and the sale was made in 2022. Thus, it was outdated. He stated that according to paragraph (c) of the report, states that valuation report has specific time. That the valua tion done in 2018 was not proper to sell the property in 2022 without conducting valuation. PW1 testified that no 14 days’ notice was issued. No advertisement was mad in the local area in the mortgaged land. He told this court that the auction was not co nducted in the mortgaged land. That it was an abrupt event. PW1 stated that a fter the valuation of 2013 there were developments made in the mortgaged farm including planting trees, banana trees, and a pool for keeping fish. That in 2018 there were other de velopments made by improving the houses in the farm . That a ll the developments were not depicted in the valuation report. T he witness testified that the land measures 160 hectares equals to 400 acres. That i n the first phase were cultivated 250 acres for p roduction. That there were natural trees preserved in the mortgaged farm. He added that they expected that the price of the farm should have been Tzs. 900,000,000 /=

9 however, it was sold at Tzs. 60,000,000/=. The witness prayed that if the mortgaged propert y will not be auctioned again be remitted to the plaintiff so that they ay negotiate with the bank and pay the loan. He added that it was the only property mortgaged, hence it be sold at the right price to clear the loan. PW1 stated that at the time the fa rm was sold the loan was Tzs. 290,000,000/= . That he is not aware the money gained from the auction went to. That the value of the mortgaged farm exceeds the amount of the loan. PW1 told this court that he has to pay the loan. Nevertheless, TIB Bank the 1 s t defendant is looting his farm while demanding money from him. Cross examined by the 1 st and 2 nd defendants’ learned State Attorney Ms. Tausi, PW1 replied that , he is a Farm Manager of KG - Intertrade Company. That they borrowed from TIB bank in 2014 Tzs. 250,000,000/=. That when they applied for the loan, they were shown the valuation report and agreed with the same. That in 2018 they were not availed with the valuation report. He replied further that they were given a copy of the report after the farm ha d been sold. He added that, both valuations were ordered by TIB. That the first one has no problem. That he disputes the second valuation report. He continued to reply that in 2014 TIB bank told

10 them that the farm had a value more than the money borrowed. That the valuation of 2018 giving less value to the farm was not correct. Upon further cross examination, the witness stated that the notice issued was for 9 days instead of 14 days. He replied that when the farm was sold the outstanding loan was Tzs. 290, 000,000/ = in 2019. That at the time of hearing this case it was Tzs. 320,000,000 /=. That it is 6 years from the time the farm was sold. Th at after the sale, TIB bank did not tell them how much was deducted from the loan. When he was cross examined by Mr. Ibrahim Kabelwa learned State Attorney for the 1 st and 2 nd defendants, PW1 replied that, there was a fraud in the sale of the farm. That the amount sold, Tzs. 60,000,000/= is less than the value of the mortgaged property. He continued to reply that both 20 14 and 2018 valuation s were made for TIB bank. Re - examin ed by Mr. Dickson Ndunguru for the plaintiff, PW1 testified that, as per the counter claim, the loan is Tzs. 321,000,000 /=. He added that, t he first valuation report showed that the value of the far m was T z s. 520,000,000/ = but TIB bank auctioned it at T z s. 60,000,000/ =. He continued to testify that after the first valuation, TIB bank gave the plaintiff a loan of Tzs. 250,000,000/=. That he believes the farm was worth than

11 the loan as it was the sole security enabled the plaintiff to get the loan. To the counter claim he replied that their written statement of defence (WSD) and their plaint does not state how much was deducted in the loan . He told this court that i t is true that both valuation reports were endorsed by the chief government valuer, but the last valuation was made in 2018 and land sold in 2022. He reiterated his testimony in chief. PW2 was Mr. Nicholaus Mselewa who is a neighbour to the sold mortgaged farm. He testified that he sold a la nd near the plaintiff’s farm. PW2 tendered sale agreement, Hati ya Mauziano ya Eneo la Shamba baina ya Nicholaus Mselewa, Esther Nicholaus Mselewa, Antonia Marindisa Anthon and the Herman Gervas Zenda (buye r) which was admitted and marked as exhibit P4 . He told this court that the market value of land in their village range s between Tzs. 1,500,000/= to 1,800,000/= per acre. That the plaintiff’s farm is about 500 acres. Cross examined by Mr. Ibrahim Kabelwa PW2 he is not an expert of land prices. That in di sposing their land there was no professional valuation. T hat t he agreement was between their family and the buyer. Being c ross examined by Ms. Tausi PW2 replied that they sold ¾ acres in 2021 why the mortgaged farm was sold in 2022. That the price was Tzs.

12 1,250,000/= . He continued to reply that 1 acres’ price is Tzs. 1,500,000/=. That there was no valuation conducted . Re - examin ed by Mr. Dickson Ndunguru , PW2 stated that t he price was drawn from the value of land in their village . The plaintiff’s counsel pr ayed and the plaintiff’s case was closed. In defence, Mary Barnabas Kiyuga, Senior Officer Loan Management of TIB bank testified as DW1. She testified that KG - Intertrade, (the plaintiff) TIB bank’s client got loan from the bank in 2013. That it was Tzs. 2 50,000,000/= in total. That the plaintiff was supposed to pay the loan in 4 years period. She added that f or a client to get a loan from the bank must file an application for the loan, attachments from the company, business, security for loan and a busines s plan in general. DW1 told this court that the plaintiff in the main claim defaulted in paying the loan, thus wr o te her a 30 days’ notice a recall letter . Not acting, they issued her with another 60 days’ notice a default notice letter . DW1 tendered the 3 0 days’ notice and 60 days’ notice which were admitted and marked as exhibit D1 collectively. That even after being issued with the notices the plaintiff did not pay the loan. Hence, the bank gave the broker mandate to dispose the security so that the bank ’s money c ould be recovered. That, Msolopa Investment

13 Company Ltd was assigned with the task. T hat t he client was given 14 days’ notice. She told this court that the notice was published in the newspaper about the sale for not less than 14 days. Th at th e b roker issued a notice to the client and advertised in the newspaper on 5/7/2020 and the auction was conducted between 27 th and 29 th July, 2020. The witness identified the 14 days’ notice stating that it is dated 17/5/2018 . She prayed to tender the same but was objected by the plaintiff’s advocate. After submission by both parties, objection was overruled. The copy of the 14 days’ notice and Sunday Newspaper were admitted and marked as exhibit D2 collectively . DW1 continued to testify that after the adverti sement on the newspaper, the auction was conducted as planned. She added that the mortgaged farm located at Mlilayoyo Songea District was auctioned at Tzs. 60,000,000/= . That the price resulted from the valuation of the government valuer. That the governme nt issued directive price . The witness told this court that at the time of auction the farm, the loan was about Tzs. 300,000,000/=. That Tzs. 60,000,000/= gained from the auction did not clear the debt. That the outstanding loan up to 2/12/2025

14 was Tzs. 33 6.7 million . She tendered Bank Loan Statement of KG Inter Trade Co. Ltd which was admitted and marked as exhibit D3. The witness also testified as PW1 in the counter claim. DW1/PW1 stated in the counter claim they sued the defendant who took a loan of Tzs . 250,000,000/= with a long - term loan of Tzs. 197,000,000/= and short - term loan of Tzs. 53,000,000/=. That the security for the loan was Farm No. 38 located at Mlilayoyo Songea. That the TIB bank, the plaintiff in the counter claim guaranteed the defendant to buy tractors and other farm implements. She added that the defendant was granted with the loan after she had completed all the required processes. DW1/PW1 tendered Credit Facility Agreement, Guarantee Agreement and Debenture Deed which were admitted an d marked as exhibit D4 collectively. She told this court that the defendant in the counter claim was required to pay the loan in 4 years. That up to the time of this case, the defendant had paid Tzs. 117 million which included the money gained from the auc tion of Farm No. 38, the security for the loan. The witness continued to testify that up to 2/12/2025 the outstanding loan was Tzs. 336.7 million . That the loan was supposed to be settled in 2017. She added that, from 2017 to 2025 is 8 years. She told this court that by the time the plaintiff filed her claim, the

15 outstanding loan was Tzs. 321 million . That the amount includes bank interests, charges and penalties . She prayed for this court to dismiss the main claim and allow the counter claim, ordering the defendant to pay the loan and the costs of this case. Cross examined by Mr. Dickson Ndunguru for the plaintiff/defendant in the counter claim, DW1/PW1 replied that in the plaint the plaintiff claimed the amount of the loan, interest and penalties . That in the plaint they did not claim Tzs. 336.7 million . She continued to reply that in the statement the plaintiff did not show the date she deducted the Tzs. 60 million from the loan. Upon further cross examination, DW1/PW1 replied that nowhere the statement s howed that the advertisement on the newspaper about the auction was linked to Msolopa Investment Company Ltd. That the plaintiff in the main claim complained against the third defendant therein, Melva International Company to have conducted the auction wit hout following the required procedures. That Msolopa Investment issued the notice in the newspaper while Melva International conducted the auction in April, 2022. Continued to cross examine, the witness replied that Melva International Ltd issued a 14 day s’ notice however, she did not tender the

16 same in court. She added that, the advertisement of the auction b y Melva International Ltd was not tendered in court. She told this court that Msolopa Investment Company Ltd was a broker appointed by the 1 st defend ant in the main claim. That Melva International was the one who auctioned the farm. She replied further that, the plaintiff in the main claim did not complain against Msolopa Investment Company Ltd did not follow procedures in auctioning the farm. That in the newspaper she tendered in court the auction was conducted on 1/8/2020 . That the 14 days’ notice was issued by Msolopa Investment Company Ltd but was not the one who auctioned the farm as no buyer was found. She replied that valuation report lasts for 4 years. That the valuation of the auctioned farm was conducted in 2018. DW1/PW1 was shown by Mr. Ndunguru, exhibit P1 which claimed that she did not tender the same hence cannot respond to the questions. She had to read as it is written. She replied it is written valuation report of Farm No. 38 Mlilayoyo Ruvuma Region . She read the value of the farm to be Tzs. 520,000,000/= . Again Mr. Ndunguru, showed the witness exhibit P2 whereby she claimed that she did not tender the same hence not

17 conversant with the information therein. She claimed she is a credit collector officer and not a loan appraisal officer. Re - examined by Mr. Kabelwa , she replied that, it is a banking procedure that interest rates are charged on loans. She added that in case of defaulting in paying loans, penalties set by the bank are imposed on the client. That it is in the agreement on credit facility agreement. R e - examined by Ms. Tausi, DW1/PW1 stated that a ccording to credit facility agreement agriculture loan the interest rate is 5%. A r ate calculated annually. She testified that notices are intended to notify the client that she has a loan and has to pay within 14 days, 30 days or 60 days depending on the type of the notice. That the advertisement notifies the public and the client that there is a loan and the property is to be auctioned. That the defendant in the counter claim paid Tzs. 117.5 million which include the money got from the auction of the farm . That t he outstanding loan is Tzs. 336.7 million . Mr. Jacob Watson Mwakiposa test ified as DW2. He testified that there two valuations are made. First when the client applies for the loan and the second when the loan security is to be auctioned. He was shown e xhibit P1 . DW2 replied that it was a valuation report prepared in 2013. That t he

18 value of the Farm No. 38 was Tzs. 520 million. Upon being shown exhibit P2, DW2 stated that, it was a valuation report prepared when the farm was to be auctioned. He added that the procedures for preparing a valuation report were followed. He told this court that valuation companies registered by the valuation board and they are accredited to do valuation. That when a company prepares a valuation report, it must be submitted to the chief government valuer for approval prior to submitting it to the bank. That the bank also verifies the report, if there is any technical challenge the report is reported to the chief government valuer who will remit the same to the valuating company. DW2 stated that exhibit P2, valuation report was conducted in October 2018 . That i t was conducted for the purpose of selling the security . That the farm was valued at Tzs. 71 million. He testified that the report was endorsed by the chief government valuer as it was stamped. Comparing the prices on exhibit P1 and P2, DW2 told th is court that the difference in price, was due to the approach stated in the reports. That exhibit P1 was prepared in 2013 explains that there were crops, trees and infrastructure. Whereas in exhibit P2 prepared in 2018 it was a farm which was a farrow far m. It was not attended. No infrastructure and crops were

19 found in the farm. The house found there were vandalized huts. DW2 testified that both the reports that is exhibit P1 and P2 are valid and correct. He added that the report of 2018, exhibit P2 was us ed to auction the farm. He added that, the law requires that the report for sale be current without any explanations. He continued to testify that in valuation reports there is no specific time. That it depends on the security to be valuated. That the type of security determines the mode and type valuation report. That preparation of valuation is guided by prescribed standards which are legal and professional guidelines. That in preparing the valuation reports, valuers are required to follow the guidelines. Cross examined by Mr. Dickson Ndunguru, DW2 replied that in the 2018 report, exhibit P2 nowhere it is stated that the farm was farrow. He replied further that the 2013 report, exhibit P1 it is stated that the farm was valuated with crops. He continued to reply that both exhibit P1 and P2 the houses are grass thatched. He replied that according to the 2013 valuation report one acre was Tzs. 1 ,621.92 . That, the 2018 valuation report for auctioning the farm, the price of one acre was Tzs. 150,000/=. Upon further cross examination, DW2 replied that there are properties which can depreciate or appreciate due to environment . He added that the

20 building ’s value was Tzs. 8 million in the 2013 report. That in the 2018 the building ’s value was Tzs. 10 million . R e - examined by Ms. Tausi, DW2 stated that, valuation report depends on the situation of the security . That if valuation is done at later date differences are inevitable. That the date of the valuation shall form the base for the differences. This marked the end of the defence and counter claim. The advocates prayed for and filed final submissions. Having summarized the parties ’ evidence and taken into consideration the ir final submissions, this court is called upon to resolve the issues raised in determinin g this case. The first issue is w hether the attachment and sale by public auction of the suit property was lawful. There is no dispute that the parties entered into a loan agreement. Also, it is agreed by the parties that the suit property was mortgaged as a loan security. In addition, the value of the suit property prior to the granting of the loan is not at issue. Conspicuously depicted, the loan was not repaid in time and not cleared to the time of this judgment. The suit property is Farm No. 38 located at Mlilayoyo Village. It was the testimony of PW1 that he saw the advertisement and the notice on the newspaper on 10 th April, 2022 and the suit property was sold on 19 th April 2022. He claimed that

21 notice was for 9 days and not 14 days. The plaintiff is a gainst the whole process of auctioning the suit property . It included the value of the suit property . PW2 was marshalled to testify on the village price of an acre in their locality bordering the suit property . The defendants defended their case that the a uction followed the law and procedure. DW1 testified that the 1 st defendant issued a 30 days’ notice followed by a 60 days’ notice to the plaintiff who defaulted both notices. She tendered exhibit D1 collectively to prove her testimony. It was her testimon y that having failed to obey the notices, the 1 st defendant appointed Msolopa Investment Company Ltd (Msolopa) , a broker to auction the suit property , the loan security. She stated that Msolopa issue a 14 days ’ notice to the public and the plaintiff that t he suit property was to be sold. She told this court that the 14 days’ notice was advertised in the newspaper on 5/7/2020 and the auction was conducted between 27 th and 29 th July, 2020. The witness identified the 14 days’ notice stating that it is dated 17 /5/2018 . The dispute i s that Melva International Company (Melva) who sold the suit property did not issue the required notice. Nonetheless, DW1 told this court that Melva issued a notice but not tendered in court.

22 The plaintiff claims that the attachment and sale of the suit property was against the law and procedure. On the other hand , the defendants aver that it was in accordance to the law and procedure. Issuance of notice and auctioning of the suit property is at the heart of this matter. PW1 claimed not notice was issued in the area of the suit property. The defendants tendered a copy of the notice and the newspaper in which it was advertised. The controversy at hand is when the 14 days’ was issued? Who issued the same? and who conducted the auction. It is a law that prior to the sale by auction a 14 days’ notice should be issued to the public. This legal requirement is provided for under section 12(2) of the Auctioneers Act (Cap 227 R.E 2023). It provides that: “ 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. ” From the testimony of the defendant and the evidence tender ed, in line with the quoted provision, no doubt that the 14 days ’ notice was issued as per exhibit D2 collectively. Then, who issued the notice? According to exhibit D2 collectively, the notice was issued by Msolopa on 17 t h May, 2018 . Who conducted the auction? DW1 when cross examined, replied that Msolopa issued the notice while the auction was conducted by Melva. T hat,

23 Melva conducted the auction without issuing 14 days statutory notice. It is a tricky situation before me whi ch calls for settled mind and research. That the notice was issued by Msolopa but did not conduct the auction. Melva did not issue the notice but conducted the auction. Accordingly, s ection 12 of the Auctioneers Act (supra) requires a 14 days’ notice to th e public prior to the sale of a landed property . F rom the wording of section 12(2) and (3) of the Auctioneers Act (supra), it was generally the responsibility of the appointed and licensed auctioneer, th at is Melva to issue the notice. What transpired bet ween Msolopa and Melva, looking at it from a legal point of view, the law does not explicitly prohibit one licensed auctioneer from issuing the notice as a duly authorized agent for another, provided the proper agency relationship is established and legall y recognized. The same which has not been established before this court as to the issuance of notice and the conduct of the auction. Further to that, the defendants submitted that the statutory notice was issued which has been disputed by the plaintiff. However, their contention is banked on the printed notice forgetting that the law requires more than that. Section 12(3) of the Auctioneers Act (supra) requires the

24 auctioneer to make public advertisement in the area the auction to be conducted. I wish to quote the provisions of subsection (3) : “ The notice shall be given not only by printed or written document but also by such other method intelligible to uneducated persons as may be prescribed and it shall be expressed in Kiswahili as well as English and s hall state the name and place of residence of the owner. ” According to the requirements of the cited section, and taking into account the complaint of the plaintiff that the auction did not follow the law and procedure and the defence raised by the defenda nts, I am of the view that, the defendant through the broker was required to publish the notice as required by the law. Since the defendants have not tendered any evidence to prove that Melva who auctioned the suit property issued the required legal notice , or there i s a legal relationship between Msolopa and Melva as far as the issuance of notice is concerned, I am convinced that the conduct of the auction did not follow the law and procedure. Subsequently, the attachment and the sale contravened the law and procedures. As a result, the first issue is answered in the negative. The second issue to answer is w hether the defendant in the counter claim is in breach of the loan agreement and is liable to pay the outstanding loan amount, interest, penalties and ch arges thereof under the

25 mortgage agreement. The plaintiff complained that the 1 st defendant sold the suit property below its value. Yet the 1 st defendant requires him to pay the loan. He has not denied to pay the loan. From the testimony of DW1/PW1 in the counter claim, the defendant in the counter claim, KG - Intertrade defaulted in paying the loan within the prescribed time. That the loan was for 4 years from 2013 to 2017. Loan security was Farm No. 38 located at Mlilayoyo Songea District Ruvuma Region. Exh ibit P1 shows that the suit property was value d at Tzs. 520,000,000/= when the defendant applied for the loan. Whereas, exhibit P2 prepared in 2018 the same suit property was valuated at market value of T z s. 71,000,000/ = , forced value T z s. 53,000,000/ = and it was sold at Tzs. 60,000,000/= . DW2 in the main claim Mr. Jacob Watson Mwakiposa testified that both the valuation reports were prepared by registered valuers and were endorsed by the chief government valuer. He told this court that drop in value was on the reason that in 2018 Farm No. 38 was a farrow land, unattended and had no infrastructure. When cross examined he replied that in the 2013 valuation report one acre was Tzs . 1 ,621.92 . That, the 2018 valuation report for auctioning the farm, the price of one acre was Tzs. 150,000/=. The price of the suit property has been contested by the plaintiff. PW2 testified that in

26 their village one acre of land ranged between Tzs. 1,500,000/= and 1,800,000/=. The motive behind the sale of the suit land elaborat ed by exhibit D1 collectively. According to the testimony of DW1 in the main claim and PW1 in the counter claim Ms. Mary Baranabas Kiyuga testified that the defendant in the c ou nter de faulted in paying the loan and was notified as per the law. In her claim and defence in t he counter claim the defendant did not dispute the same. PW1 in the main claim tendered exhibit P1 and P2 valuation reports of Farm No. 38 placed as loan security. This speaks for itself that the loan was not paid as required. He complained that valuation of 2013 when applying for the loan showed that Farm No. 38 was Tzs. 520,000,000/= while 2018 valuation report stated that Farm No. 8 was sold at Tzs. 60,000,000/=. He also complained that after the sale of the suit property the plaintiff was not informed h ow much was deducted from the loan. That the written statement of defence of the 1 st defendant and counter claim do not state how much was deducted from the outstanding loan. The defendant in the counter claim never disputed to have been served with the 30 days’ notice and 60 days’ notice. This is clear that the defendant in the counter claim defaulted in paying the loan.

27 Second limb of the second issue is whether the defendant in counter claim is liable to pay the outstanding loan amount, interest, penalt ies and charges thereof under the mortgage agreement. From the foregoing discussion evidenced by exhibit s D1 and D4 collectively , the testimony of DW1/PW1 Ms. Mary Barnabas Kiyuga on the loan agreement which comprise the Credit Facility Agreement, Mortgage Deed, Debenture Deed as well as the Loan Guarantee Agreement , the defendant in the counter claim is liable to pay the outstanding loan amount, interest, penalties and the charges thereof. I hold so basing on article II section 2.01.6 of the Credit Facilit y Agreement between the parties which required the loan to be paid in 44 months through monthly installments. Section 2.01.8 provides for the interest rate of 5 % per annum. This is as far as the m edium - term loan of Tzs. 197,000,000/= is concerned. For the short - term loan of Tzs. 53,000,000/= section 2.02.4.1 it was for 20 months with interest rate of 5% per annum. Since the defendant breached the Credit Facility Agreement the plaintiff in the counter claim was justified to enforce the agreement. It is clear that the defendant de faulted in re paying the loan hence liable to pay the outstanding loan amount, interest, penalties and charges thereof under the mortgage agreement. The defendant had the

28 obligation of repaying the whole amount of the credit facility, inclu ding interest and penalties as she defaulted in repayment according to the agreed schedule . T h is was so sub stantiated by the Court of Appeal in the ca se of 247 Communications Limited & Others vs CRDB Bank PLC (Civil App eal No. 805 of 2023) [2025] TZCA 1279 (15 December 2025) TanzLII , the C o urt held th at: “ Since it was not disputed that the first appellant defaulted to repay the loan and the notices of default were duly se rved on the second and third appellants, we are satisfied that, they are liable for the outstanding loan. ” F r om this authority, where it has been proved that the defen dant defau lted in rep aying the loan the n she is liable to p ay the outstanding loan. H owe ve r, in the matter at hand, i t has been testified by both parties that the mortgaged property was auctioned and the purchase price during auction did not satisfy the debt, in the absence of ev idence of bad faith or fraud in the conduct of the auction, the lender has a right to claim for the balance of the outstanding amount from the borrower. Nonetheless, the first issue has been answered in the negative, that the auction was not conducted in a ccordance to the law and procedures. That being the case , in my view, the defendant in the counter claim cannot be punished twice. The suit property was sold in violation of the law and procedure, and for a

29 less value which did not clear the loan. A s a result , I find it just for the defendant to pay the outstanding loan amount, interest, penalties and charges thereof as at the time of instituting this case. The third issue is w hat are the reliefs do the parties entitled to. Determining this issu e, I will be guided by the reliefs prayed for by the parties and evidence proving the damages. Considering that the suit has a counter claim, I will start with reliefs in the main claim then followed by the counter claim. The plaintiff in the main claim pr ayed for the following reliefs. i. An order for nullification of the auction conducted in March, 2022 by the 3 rd defendant auction the mortgaged property Farm No. 38, SO /No. 4199 . Th is court orders that th e auction conducted by Melva In ternational Company Ltd in Farm No. 38 located at Mlilayoyo Village, Songea District, Ruvuma Region was null and void ab initio. ii. An order for reauctioning by a court ap pointed auctioneer Letter of Right of Occupancy Lo. No. 84211 situated at Mlilayoyo Village, Songea District, Ruvuma in accordance to the law and upon proper valuation. T his or der is not granted. iii. S h e is granted with the c ost in the main case .

30 R everting to the counter claim, the plaintiff managed to prove her case to the required standard. In her claim she prayed for the following orders : i. T hi s court d eclare s that the defendant in the counter c laim is in breach of the Credit Facility Agreeme nt, Mortgage Deed, Debenture Deed as well as the Loan Guarantee Agreement. ii. Th is court orders t he defendant in the co unter c laim to pay the outstanding loan amoun t as at the time of filing this suit includ ing penalt ies and interest. iii. I refrain from granting the order for p ayment of i nterest at the Court rate fro m the date of filling this suit to the date of judgment. iv. I refrain from ordering the p laintiffs to exercise their rights towards Persona l Guarantee of defendant's shareholders namely Suleiman Mtandama Kantinga and Mohamed Hamisi Gayo . v. I refrain f rom ordering th e a ttachment and sale of guarantors' personal properties to realize the outstanding amount. vi. Costs of this suit to be borne by the defendant. vii. O n the prayer , a ny other order as this Honorable Court shall deem just to grant. Th e defendant in her alternative reliefs prayed to be

31 ordered to dispos e the suit property and pay the loan. If the defendant guarantees that she has a serious buyer who can buy and clear the loa n, penalties and interests, then she can be allowed by the 1 st plaintiff to dispose the suit farm. I am guided by the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) . It is so ord ered. DATED and DELIVERED at SONGEA this 1 9 th day of December, 2025. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr . Egidy Mkolwe lea rned State Attorney fo r the 1 st a nd 2 nd defen d ants in the main claim virtual ly and in the absen ce o f the parties . Right of appeal explained. E. L. KAWISHE JUDGE 1 9 /12/2025