Ukod International co.Ltd vs Stanbic Bank Tanzania Limited and 2 Others,misc civil Commercial No 128 of 2023.

The applicant is moving the court for an order with an effect of setting aside sale of Plot No. 195 Block “G” Makambako Urban Area conducted by the 2nd respondent on 31st day of July, 2023 on the ground of irregularities.

The application is made by way of Chamber Summons supported with an affidavit affirmed by Mr. Jamal Ibrahim Moalim, the Managing Director of the applicant company. The application is made under Order XXI Rule 8881) and section 95 of the Civil Procedure Code CAP 33 R.E 2022. On the

other hand, the application is contested through counter affidavits sworn by Ms. Jesca W. L. Massawe, a registered court broker and that of Mr. Mexon Jephta Sanga, Managing Director of the 3rd respondent tthe

purchaser).

It is the position of the law under Order XXI Rule 88 81) of the Civil Procedure Code that a sale held in execution of a decree can be set aside only if the following conditions are fulfilled:

a)There must be a material irregularity or fraud.

.b)The material irregularity or fraud must be inpublishing or conducting the sale.

.c)The applicant must have sustained substantialinjury.

.d)Such injury must have been caused by reason of thematerial irregularity or fraud. See: OTTU ON BEHALF OF P. L. ASENGA & 109 OTHERS VS. AMM (TANZANNA) LLMMTED, C VVL APPL CATTON NO.  OF 2012, CAT AT D.S.M.

The parties’ affidavits, counter affidavits and arguments of the learned

counsel for the parties present the following issues for determination:

:i)Whether there was material irregularity or fraud in the manner in which sale was conducted.

Whether inadequacy of price is in itself a

material irregularity that can result in setting

aside of sale.

Reading the affidavit of the applicant, there appears to be no specific averment on any particular material irregularity committed in the conduct of sale. It would appear, in view of the learned advocate for the applicant,

the material irregularity and substantial injury were implicit in the low price at which the disputed property was sold. However, mere inadequacy of price is not in itself a material irregularity that can lead to setting aside of

auction sale.

Under Order XXI Rule 88 1) of the Civil Procedure Code, it should be alleged and proved that there was not only inadequacy of price but also that, the inadequacy of price was caused by reason of the alleged material

irregularity or fraud as the case may be, that is when sale can be set aside.

In other words, allegations of material irregularity or fraud and substantial injury have to be specifically made with sufficient particulars. Mere general allegations without proof are not sufficient. 

The facts must be established which can reasonably sustain the allegations. In this case, there was no specific allegation with sufficient particulars on material irregularity, there was no evidence of substantial injury resulting from whatever irregularity and there was no evidence to the effect that save for the material irregularity, the disputed property could fetch more price than the one at which it was sold i.e TZS. 183,000,000/=