Access Bank and Elizabeth Minza Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 20231215000027694 (Arising from the Judgment and Decree of the District Land and Housing Tribunal for Kahama at Kahama in Land Application No. 36 of 2018 by Chairperson Hatson) ACCESS BANK TANZANIA ……………….………….……..….…….…. APPELLANT (CURRENTLY KNOWN AS ACCESSMICROFINANCE BANK TANZANIA LIMITED ) VERSUS ELIZABETH MINZA…………………………………………...…… 1ST RESPONDENT PAUL MATIKU TUBETI……………………………………..……...2 ND RESPONDENT JUDGMENT Date of Last Order 31.10.2024 Date of Judgment: 13.12.2024 MWAKAHESYA, J.: Before the District Land and Housing Tribunal for Kahama (the DLHT), in Land Application No. 36 of 2018, the first respondent sued the appellant and the second respondent, who was her husband, seeking the following orders: that, she was a lawful co-owner of the suit premises; a mortgage agreement between the appellant and the second respondent was void and of no legal effect; a permanent injunction restraining the appellant, her agents and workmen and any other person from trespassing or otherwise interfering with her peaceful occupation of 1 the suit premises; and general damages to the tune of TZS 15,000,000/=. A brief background of the events leading to Land Application No. 36 of 2018 is that the first respondent and the second respondent were husband and wife, having contracted a Christian marriage in the year 2009. In the year 2016 the second respondent took out a TZS 150,000,000/= loan with the appellant and secured the same with various properties including landed properties, one of them being a house located on plot No. 384 Block “E” within Kahama District – Shinyanga Region which actually served as a matrimonial home. The other landed properties being Plot No. 124 Block “A” and Plot No. 126 Block “A” also within Kahama District. In the course of this appeal I shall refer to the three properties as “the landed properties”. Upon the second respondent defaulting to pay the loan, in the year 2018, the appellant sought redress in accordance with the loan agreement and was keen on auctioning the house located on Plot No. 384 Block “E” (the matrimonial home) and thereby prompting the first respondent to institute Land Application No. 36 of 2018 alleging that she was unaware of the loan transaction and the mortgaging of the matrimonial home since she did not give consent towards the same. 2 In the end the DLHT was of the view that the first respondent did not give her consent when the second respondent mortgaged the matrimonial home and restrained the appellant from selling the mortgaged properties. Aggrieved, the appellant has filed the present appeal containing five grounds which are: 1. That, the learned trial chairperson erred in law by refusing to accept in evidence spouse consent that was duly tendered in accordance with the law; 2. That, the learned trial chairperson erred in law by relying on a marriage certificate that was legally flawed and proceeded to decide that the applicant and the 1st Respondent were husband and wife; 3. That, the learned trial chairperson erred in law and in fact by nullifying the mortgage agreement and ordering surrender of certificates of Titles to the applicant without considering that the applicant had followed due process in obtaining spousal consent; 4. That, the learned trial chairperson erred in law and in fact by nullifying the mortgage agreement and ordering surrender of certificates of Titles over the suit properties to the applicant without any proof tendered by the applicant and the 1st respondent justifying ownership and/or no caveat was tendered by the applicant justifying her interest over the suit properties; and 5. That, the learned trial chairperson erred in law and in fact by not considering the weight of evidence adduced by the applicant/and or failure to make critical analysis of evidence adduced by the applicant. At the hearing of the appeal, the appellant was represented by Ms. Happiness Mangowi, learned advocate, while the first respondent was represented by Mr. Saraji Kwikima, learned advocate. Since it was 3 uncontroverted that the second respondent was deceased, a successful application was made for the first respondent to be made a personal legal representative of his interests in the appeal. Submitting on the first ground of appeal, Ms. Mangowi argued that, section 66 of the Evidence Act provides that documents must be proved by primary evidence, the exception is provided under sections 67 and 68 of the same Act. She argued further that, during trial at the DLHT when the spousal consent was being tendered by SU3, the witness told the tribunal that the original could not be obtained within reasonable time and sought to tender a photocopy under section 67(1)(c) of the Evidence Act but the DLHT rejected the document. Ms. Mangowi elaborated that the Court of Appeal case of Ibrahim Twahil Kusundwa and Another v. CRDB Bank and 3 Others, Civil Appeal No. 194 of 2021 (2024 TZCA 19 January, 2024 TanzLII) provided for the conditions under which secondary evidence can be given under section 67(1)(c) of the Evidence Act and the DLHT Chairperson was wrong in rejecting the document when SU3 was attempting to tender it. Ms. Mangowi also referred to the decision of the Court in Shomari Athumani @ Mwanja and Another v. The Republic, Criminal Appeal No. 650 of 2021 (2024 TZCA 46) (16 February, 2024 – TanzLII) 4 where it was held that secondary evidence is allowed under section 67(1) of the Evidence Act. Unrelentingly, she was also of the view that, regulation 10(1), (2) and (3) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002 (the Regulations) was also relevant and the document could have been received under that provision. She finished her submission on the first ground by stating that, the spousal consent was duly tendered in accordance with the law, and failure of the DLHT to receive it in evidence occasioned injustice to the appellant. Ms. Mangowi withdrew the second ground of appeal and went on to submit on the third and fourth grounds of appeal jointly. She submitted that, under the laws there is a distinction between a matrimonial home and matrimonial property. The meaning of matrimonial home is provided under section 112(2) of the Land Act. While, that of matrimonial property is not provided under the statutes but has been provided under caselaw. She referred to the High Court case of Niite Yuda Sanga v. Janken Asukile Mwalegwa and 5 Another, Land Appeal No. 81 of 2023, HC – Mbeya (unreported) to solidify her proposition. She went on to submit that, under paragraph 6(a)(i) of the application, the applicant (first respondent in this appeal) stated that the three plots of the land in dispute are registered under occupancy in common between the applicant and the second respondent. However, she (the first respondent) was not able to prove this. She submitted further that, the mere fact that the respondents were married did not bar the second respondent from owning personal property as under section 60(a) of the Law of Marriage Act. The presumption was that the properties belonged to the husband to the exclusion of the wife, unless there was proof from the wife that she had contributed towards the acquisition or improvement of the said properties as required under section 161(2) of the Land Act. Whilst, the first respondent had alleged that she contributed towards acquisition of the same through taking part in a motorcycle spare parts business, she did not bring forth evidence to prove the same. Likewise, the second respondent did not confirm her affirmation. 6 She rounded off her submission by arguing that, the second respondent had earlier given evidence that Hawa Mlapa was his wife but later on he testified that the first respondent was his wife. Thus, the second respondent is estopped from denying what he had testified earlier. She relied on the Court of Appeal decision of Hadija Issa Arerary v Tanzania Postal Bank, Civil Appeal No. 135 of 2017 (unreported) to buttress her submission. On the fifth ground of appeal, Ms. Mangowi reiterated her submissions on the previous grounds. Replying to the first ground of appeal, Mr. Kwikima, learned advocate was of the view that, the trial chairperson was correct in refusing to admit the spousal consent document as it failed the test of admissibility and that reliance of regulation 10(3)(b) of the Regulations was futile since that provision puts emphasis authenticity and no foundation was laid by SU2(sic) to enable him to tender the said document. The learned advocate went on to submit that, the DLHT gave a reasonable ruling as to why it refused to admit the document, that is, the original had to be brought and the maker to tender it. 7 On the third and fourth grounds of appeal, Mr. Kwikima submitted that, it was never rebutted that: the house on Plot No. 384 Majengo is the house where the respondents used to reside; that, the first respondent was not aware of the mortgage and did not consent to the mortgage; and that, there was no verification as to the spousal consent, as was supposed to be done in accordance with the case of Hadija Issa Arerary (supra). On the issue of the contribution of the first respondent towards the contribution towards the acquiring of the matrimonial property, the learned advocate was adamant that the first respondent proved that she contributed by engaging in a motorcycle spares business and insisted that she did not stray from her pleadings. The learned advocate finished off by submitting that, the issue of estoppel was a misconception and that the spousal consent could not override a marriage certificate. The respondents having contracted a Christian marriage (Roman Catholic), the same was monogamous. The personal legal representative of the second respondent submitted briefly that, the first respondent did not give consent. Therefore, the loan agreement was invalid. 8 The appellant’s counsel did not have anything to add in her rejoinder apart from reiterating her submission in chief. Having heard the parties’ respective submissions, the duty left for this court is to determine the merit or otherwise of the appeal at hand. The first ground of appeal boils down to the inadmissibility of the alleged spousal consent issued by the second respondent to the appellant when wooing the appellant to advance the loan. I subscribe to the submission by the learned counsel for the appellant that vide section 66 of the Evidence Act, documents must be proved by primary evidence, which is the document itself, and that an exception is provided under sections 67 and 68 of the same Act. However, as held by the Court of Appeal in the case of Shomari Athumani @ Mwaja (supra) the conditions set out in section 67(1)(a) to (g) have to be satisfied. I reproduce the provision for reference: “67. -(1) Secondary evidence may be given of the existence, condition or contents of a document in the following evidence cases- (a) Inapplicable; (b) Inapplicable; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for 9 any reason not arising from his own default or neglect, produce it in reasonable time; (d) – (g) inapplicable. [Emphasis mine]. The Court, in Shomari Athumani’s case (supra) had this to say: “With regard to admission, the law is explicit and we need not break a sweat on it. It is simply that proof of documentary evidence must be through primary evidence, except where it is provided otherwise. This is the import of section 66 of the Evidence Act. The exception to this general rule is the application of sections 67 and 68 of the said law which allow admission of secondary evidence on the condition that such evidence must conform to the provisions of section 67 (1) (a) to (g) of the Evidence Act. One of the key conditions is enshrined in paragraph (c) of sub-section (1) which fits the circumstances of the instant matter. It requires that such evidence must be preceded by an explanation that the original has been destroyed or lost or that for any reason that is not of his own default or neglect, the same cannot be produced in reasonable time. What we distil from the cited provision is that, imperatively, a foundation has to be built on why it is intended that secondary evidence be relied upon. Doing so is an all- important way of ensuring reliability as an objection to its admissibility calls the competence of the document into question…” [Emphasis mine]. 10 During trial one Mackanjero Ishengoma (SU3), an advocate who allegedly attested the consent, gave evidence for the appellant. He is on record, when attempting to tender it, stating that: “…Nyaraka hii ni ridhaa ya wanandoa kuridhia nyumba yao yenye leseni Namba 2070 kuwekwa rehani. Napenda nyaraka hii ipokelewe kama kielelezo. Hii nakala (copy), nyaraka hizi baada ya kushuhudiwa hupelekwa Banki na wanasema haionekani na iliyobaki ni hii nakala ya wakili…” SU3 did not lay any foundation whatsoever for tendering secondary evidence apart from merely stating that the bank, that is the appellant, had told him that the original could not be found. One would expect a reasonable and detailed explanation to be given as to why the original could not be found and even if the same was lost then at least a police loss report could be unveiled to prove the loss (see: Ibrahim Twahili Kusundwa and Another v. CRDB Bank Plc and 3 Others, (Supra). SU3’s purported explanation was rather lax and the DLHT was correct in rejecting the document. The appellant also sought to rely on regulation 10(1)(2) and (3) of the Regulations when faulting the DLHT in refusing to admit the alleged spousal consent. With due respect, the said provisions do not advance her cause as they relate to the production of documents that were not annexed to the pleadings or produced at the first hearing. 11 Having ruled that the DLHT was in the right in refusing to admit the alleged spousal consent, the question that also needs determination is the effect of the refusal to admit the same. During trial the first respondent gave evidence that she was the wife of the second respondent, having contracted a Christian marriage in the year 2009, and to prove that she tendered a marriage certificate (exhibit SM1). She also gave evidence that she jointly, with the second respondent, acquired the landed properties in the year 2010 (Plot No. 384) and 2012 (Plots No. 124 and 126) through selling motorcycle spare parts. The fact that the landed properties were a matrimonial home (Plot No. 384) and matrimonial properties (Plots No. 124 and 126) was reverberated by the second respondent (erstwhile the first respondent at the DLHT). Considering the above, the landed properties were thus, a matrimonial home and matrimonial properties. Section 59(1) of the Law of Marriage Act (the LMA) forbids the alienation of the matrimonial home without the consent of a spouse. In the same vein section 114 of the Land Act makes a requirement that a mortgage of a matrimonial home shall be valid only if a document or form used in applying for such mortgage is signed by a spouse or there is evidence from the document 12 that it has been assented to by the mortgagor and the spouse living in that matrimonial home. In the absence of a spousal consent form or document showing the first respondent’s assent to the mortgage, the mortgage of the house situated on Plot No. 384 Block “E” Majengo Area – Kahama District, Shinyanga Region was invalid. Likewise, the contribution of the first respondent in the acquisition and development of the remaining plots in the suit properties (Plots No. 124 and 126 Block “A” Majengo Area – Kahama District, Shinyanga Region) which in essence are matrimonial properties, vests an interest to her in the nature of an occupancy in common under section 161(2) of the Land Act. Thus, by virtue of section 159(6) of the same Act, the consent of the first respondent was a prerequisite when the second respondent was mortgaging them. This prerequisite was not met. Thus, again, the mortgaging of Plots No. 124 and 126 Block “A” Majengo Area was equally invalid. In light of the above, the first and third grounds of appeal are devoid of merit and I accordingly dismiss them. Turning to the fourth ground of appeal, the law does not require the presentation of a caveat for a spouse to protect her interest in a matrimonial home or matrimonial property. Such interest is provided for 13 under the provisions of sections 59 of the LMA, 114, 159 and 162 of the Land Act. When it comes to mortgaging a matrimonial home, section 161(3)(a) of the Land Act puts the onus on the lender to make sure that there is spousal consent. Thus, the fourth ground of appeal is devoid of merit and is dismissed. Turning to the fifth and final ground of appeal, and in light of what has been highlighted when dealing with the previous grounds of appeal, the learned DLHT chairperson made a correct evaluation and analysis of the evidence offered by both sides and came to the right conclusion, that there was a lack of spousal consent from the first respondent when the second respondent mortgaged the matrimonial home and the matrimonial poperties. Therefore, the fifth ground of appeal lacks merit and is dismissed. In the end, the appeal being devoid of merit is dismissed in its entirety. The respondents are entitled to their costs. It is so ordered. DATED at SHINYANGA this 13th Day of December, 2024. N.L. MWAKAHESYA JUDGE 14