LAND APPEAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL CASE NO. 3363 OF 2024 [Arising from Land Application No.93 of 2019 of the District Land and Housing Tribunal for Temeke before Hon. Chinyeie, CP, delivered on lCfh January, 2024) ACCESS BANK TANZANIA LIMITED............................................ APPELLANT

VERSUS SOPHIA SALUM SEIF (The administratix of the estates of FATUMA SALUM @ TAFUMA SALUM SEIF)........................ 1st RESPONDENT MUSSA MOHAMED NGAPAWA and TATU SAID NGAPAWA (The Administrator and Administratix of the estates of the late SAIDI ALLY).................................................. 2nd RESPONDENT OMARY KASIM NGULANGWA........................................... 3rd RESPONDENT WAUNGWANA AUCTION MART LIMITED......................... 4th RESPONDENT

JUDGMENT 20/6/2024 & 25/7/2024 GWAE, J It is the spousal consent, which is the requirement of the law when it comes the issue of disposal of the matrimonial home. Failure to obtain consent from either of the spouses has tremendously and mostly affected financial institutions and in rare cases, individuals like bonafide purchasers who buy matrimonial home without obtaining the requisite consent. This legal requirement is provided under section 114 of the i Land Act, Cap 133, R. E, 2019 and section 59 of the Law of Marriage Cap 29, R. E, 2019 (LMA). Before District Land and Housing Tribunal of Temeke, it was the 1st respondent, Sophia Salum Seif (the administrator of the late Fatuma Salum @ Fatuma Salum Seif who filed the suit against the appellant and rest of the respondents herein above. In its verdict, the tribunal found that, the 1st respondent's requisite consent was obtained. Hence, the loan agreement offered by the appellant to Omary Kassim Ngulangwa, 3rd respondent was illegal. Briefly, the facts giving rise to this appeal as per the Tribunal's record may conveniently be stated as follows:- Fatuma Salum @ Fatuma Salum Seif now deceased person was a lawful wife of Said Ally (who is also deceased). They contracted Islamic marriage on the 27th October 1990. In the subsistence of their marriage, they managed to get matrimonial properties including matrimonial houses with

residential license No. TMK000953 and TMK000954, at Nyambwera Street, Tandika (the suit property). In 2017, the third respondent borrowed from the appellant Tshs. 60,000,000/= and Saidi Ally secured the said loan by using the suit 2 houses. According the said Fatuma, without her consent. Later on, she discovered that, the third respondent defaulted to pay the loan and the appellant issued default notice through the 4th respondent in the year 2018. On 27th March, 2019, the 4th respondent, under instruction of the appellant, issued a 14th days' notice requiring the third respondent to repay the outstanding loan to the appellant. Subsequent to the issuance of the said notice, Fatuma Said filed a suit at the Tribunal, claiming for the following reliefs:- a. Declaration that the suit properties are matrimonial houses. b. Declaration that the Mkataba wa Amana Na. 07071001466- 58 is illegal for lack of the applicant's consent. c. Perpetual injunction to restrain the respondents their agents or assignees from trespassing to the applicant land and removing the applicant and her children from their house. d. Payment of general damages as it shall be determined by the tribunal. e. Costs of the application be paid to the applicant." Before the trial was concluded, Fatuma Salum @ Fatuma Salum Seif passed away. In a shot while Saidi Ally, her husband also passed away. Both the late Fatuma

and Said thoug passed away during 3 pendency but fortunately, they gave their evidence prior to encountering of their demises. Following the said deaths, the first respondent was appointed as an administratix of the estates of the late Fatuma while the second respondents were appointed as co- administrator of the estates of the late Saidi Ally. Having deliberated over the matter, the Tribunal decided in favour of the first respondent. The tribunal declared that the suit property is the matrimonial home and that the loan agreement Na. 0707100466-58 is illegal for lack of spousal consent. Further, perpetual injunction was issued to restrain the respondents, their agents or assignees from trespassing to the suit land and removing the deceased and her children from their houses. Being aggrieved by the decision of the trial Tribunal, the appellant has knocked the doors of this court armed with two grounds of appeal as fol lows:- 1. That, the Honourable Chairperson grossly erred in law and fact for failure to evaluate and analyze the adduced evidences and she did not consider the evidence adduced by the 3rd Respondent (Appellant herein) hence hold in erroneous decision.

2. That, the Honourable Chairperson erred in law and fact by holding that the suit property is the Matrimonial house 4 between SMI and SU1 (1st Respondent and 2nd Respondent herein) without any justifiable proof thereto." The appellant has prayed before this court to allow the appeal by quashing the judgment and decree of the trial Tribunal and set aside any subsequent orders arising therefrom. The Hearing of the appeal was conducted by way of written submissions. The appellant was represented by Mr. Sylvester Mulokozi, learned advocate, the first respondent enjoyed the service of Mr. Hashim Mziray, learned Advocate and the second respondent was unrepresented. The third and fourth respondent did not appear in court despite of being dully served. Therefore, the matter proceeded ex-parte against them. In support of the first ground of appeal, the counsel for the appellant submitted that, the appellant's witness named Focus Osward Makungu tendered before the tribunal the spousal consent (PE3) and the Loan Contract and Collateral Contract (PEI &PE2). It was thus his submission that the Chairperson wrongly failed to consider the fact, that the appellant had a spousal consent from the said Asha A. Mtauka consenting the mortgage deed of the suit property and no reason for disregarding the same was given. He cited the case of Stanslaus 5 Rugaba Kasusura and Another vs. Phares Kabuye

(1982) TLR, 338 to bolster his argument. Mr. Mulokozi further submitted that, the appellant conducted search and found the property owned by the second respondent and Asha. A. Mtauka free from any encumbrances and that the said Asha gave her consent of the same to secure the loan advanced to the 3rd respondent. He was of the view that, the reasoning of the chairperson to consider only marriage certificate followed by a holding that, the property in question was a matrimonial home was erroneous in the eyes of the law. Mr. Mulokozi cited section 114 of Land Act Cap 113, R.E 2019, which requires the mortgagor to disclose whether or not he or she has a spouse. The counsel further urged the court to make refer to National Bank of Commerce Limited vs. Nurbano Abdallah Mull, Civil Appeal No. 283 of 2017 casting the duty not only to the mortgagee but also to mortgagor to disclose the information of his or her spouse. It therefore his submission that, the appellant complied with all the legal requirements and that; the mortgagor's spouse one Asha. A. Mtauka who was found residing in the suit property and she issued a Spouse Consent. 6 It was his further submission that, the trial tribunal Chairperson misdirected herself for failure to evaluate and consider the tendered spousal consent by holding that, the tendered spousal consent dated of 10th April 2017 consented non existing loan of

08.04.2019. He thus argued that the records do not reveal such loan contract, instead the Loan Contract and Collateral Contract produced and admitted as Exhibit Pl and P2 signed in April and July 2017 during the mortgage process and transaction. Regarding the second ground of appeal, Mr. Mulokozi Submitted that, the trial Chairperson wrongly held that, the suit property is the matrimonial house between the first and second respondent basing on the oral evidence tendered by the first respondent without any other evidence supporting that, the disputed property is the matrimonial home between the first and the second respondent. He referred to page 4 of the impugned judgment which referred the first respondent's statement that, they rented a room and later they bought a parcel of land for Tshs.500,000/= from Mzee Ticha and they built a family house. To him, it was necessary for the sale agreement to be tendered before the Tribunal to prove such assertion. The counsel Further questioned as to why both properties were registered in the 7 name of the second respondent only? And if the first respondent has an interest in the suit property, why her interest was not registered? Bolstering his argument, he referred to the case of National Bank of Commerce Limited vs. Nurbano Abdallah Mull, (Supra) to support his argument. In reply thereof, the counsel for the 1st respondent disputed

the arguments of the counsel for the appellant and regarding the 1st ground of appeal, they stated that, the trial Tribunal considered and deliberated all the evidence before and the issues were evaluated and analysed in reaching a fair judgment. The 1st respondent's counsel went on arguing that, the appellant did not take reasonable steps for verification of spousal consent and did not provide enough evidence on verification process and neither summoned Asha A. Mtauka to testify on her favour. Regarding the second ground of appeal, it was submitted by the counsel for the first respondent that, at the trial, PW1 testified on how she was married and how they managed to buy the matrimonial houses in the disputed plots, the evidence which were collaborated with the evidence of PW2, Mussa Bakari Mussa. To support his argument, he 8 invited this court to use the position found in the case of National Bank of Commerce vs. Nurbano Abdalla Mulla, (Supra). The second respondent on his side submitted regarding the first ground of appeal that, the evidence was evaluated by the trial Tribunal and the appellant failed to prove how their evidence was not analysed. He stated that, the appellant's witnesses testified that, they were not present when the loan facility letter and mortgage of the suit property were processed and they did not witness Asha Mtauka signing the alleged spouse

consent. The second respondent also submitted that, the appellant did not bring the evidence from the Nyambwela Street Chairperson who could confirm their allegations and no evidence was tendered to confirm that, the said Said Ally signed an affidavit to confirm Asha Mtauka is his wife. He stated that, Fatuma Salum tendered a marriage certificate and even Salum Said plainly admittedly testified that he did not involve Fatuma Salum. Regarding the second issue, it was submitted by the second respondent that, the applicant confirmed that, the suit property was a matrimonial home as opposed to the appellant who did not bring any adverse evidence. 9 Having considered the submissions of both sides, the issue for determination is whether the appellant's appeal is praiseworthy or otherwise. To begin with, the first ground of appeal, the counsel for the appellant faulted the trial Tribunal for not considering the spousal consent of Asha A. Mtauka tendered as exhibit P3 Spousal consent is the mandatory legal requirement regarding the mortgage of the matrimonial home. Section 114 of the Land Act, Cap 113 R. E, 2019 provides that a mortgage of a matrimonial home shall be valid only if the document or form used in applying for such mortgage is signed or assented by the borrower his or her spouse of the borrower living in that matrimonial home. Also section 59 (1) and (2) of the Law of

Marriage Act, Cap 29 R.E 2019, provides that:- "59. -(1) Where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, tease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any taw for the time being in force relating to the registration of title to land or of deeds. (2) Where any io person alienates his or her estate or interest in the matrimonial home in contravention of subsection (1), the estate or interest so transferred or created shall be subject to the right of the other spouse to continue to reside in the matrimonial home until— (a) the marriage is dissolved; or (b) the court, on a decree for separation or an order for maintenance otherwise orders, unless the person acquiring the estate or interest can satisfy the court that he had no notice of the interest of the other spouse and could not by the exercise of reasonable diligence have become aware of it." Taking into consideration of the above provisions of the pieces of the cited legislation and taking in board facts of the instant case, I find that, the trial Tribunal disregarded the spousal consent (PE3) tendered by the appellant and signed by one Asha A.

Mtauka, the wife of the 1st respondent, consenting the mortgage of the suit properties. However, for the reasons, which I shall demonstrate hereinafter, the said spousal consent had deficits. Considering the evidence, on record I am satisfied as was correctly held by the DLHT that, the suit properties were matrimonial home. Upon finding that, the suit properties are matrimonial properties between the 1st and 2nd respondent, and fact that, both deceased persons were living li in the suit properties unlike Asha A. Mtauka who is said to have been a resident of Ununio-Mbezi Beach. It was therefore correct for the trial Tribunal to disregard exhibit P3, because Asha. A. Mtauka was not brought by the appellant in the Tribunal to testify that she was living in the suit property and that she signed that spousal consent as the wife of Saidi Ally. Even SM2, Musa Bakari Musa, who was the street chairperson by then, testified to know Fatuma Salum Seif as the wife Saidi Ally who was living in the suit properties unlike Asha A. Mtauka. Regarding the second ground of appeal, whether the disputed property was a matrimonial home was among the issues in the course of hearing and later determined by the trial Tribunal. In its findings, the trial Tribunal hold that, the applicant successfully proved that the suit premises are matrimonial properties. Having gone through the impugned judgment, I

think the trial Chairperson used interchangeably the phrase matrimonial home and matrimonial property and failed to differentiate the two. Matrimonial home has been defined Section 2 of the Law of Marriage Act, which is pari material with section 112 (2) of the Land Act, to mean:- 12 "The building or part of a building in which the husband and wife ordinarily resides together...." On the other hand, the term "matrimonial property" was defined in the case of National Bank of Commerce Limited vs. Nurbano Abdallah Mulla, (Supra) to mean:- "...the phrase matrimonial property has a similar meaning to what referred as matrimonial asset and it includes a matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage." Having found the difference on the phrases above and upon considering the evidence adduced by PW1 that, she purchased the suit properties with her husband, DW1. The houses, which both deceased persons lived therein with their four children, the testimony that was supported by SM2, Musa Bakari Musa, who testified that, PW1 and her husband were living in the suit properties. SM2 added that, they built and they own the said properties and in most occasions they saw PW1 supervising the process of building them. Hence, it stands proven that, the suit properties are the matrimonial home. Furthermore, the

suit properties are the matrimonial properties having acquired during the subsistence of their marriage. 13 The counsel for the appellant contended that, the sale agreement between Mzee Ticha and the first and second respondent was to be tendered in the Tribunal to prove the allegation of joint ownership and he further questioned on the registration of the suit properties in the name of the 2nd respondent alone. I find the contention of the counsel for the appellant is answered by the provision of section 59 (1) of the Law of Marriage Act, which states that:- "59. -(1) Where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds. Guided by the above cited provision of the law, even though the suit properties were registered in the name of the 1st respondent alone, still the first respondent would has an interest therein, the interest that has to be protected by the law against any sale, gift, lease or mortgage without her requisite consent. The Court (Mackanja, J (rtd)) at

once stressed the position of the law in the case of Chakupewa vs. Mpenzi and another [1999] 1 EA 32, held: 14 "The suit property was a matrimonial asset which had been acquired through the joint efforts of the Appellant and her husband. Although the suit property was registered in the name of the husband, the Appellant had beneficial interest and in law, the purchaser got only what the husband owned, he could not have purchased the Appellant's beneficial interest without her consent. The husband did not pass the whole title and the sale was therefore invalid, "(emphasis supplied). Guided by the above judicial precedent and provision of the law together with the evidence adduced during hearing of the parties' dispute, I am satisfied that, the 1st respondent had an interest in the mortgaged properties. Similarly, I have examined the evidence adduced by DW2 (SU2) one Oswald The appellant's side also corroborated the evidence that, the bank did not discharge its duty to satisfactorily ascertain that, if the said Asha A. Mtauka, 2nd wife of the late saidi Ally has an interest in the properties. The Bank after disclosure by the late Saidi, guarantor that he had a wife, was supposed to amply ascertain if the disclosed wife who has consented, if such spouse actually owns or has an interest in the house, or if there is other third party holding interest in the two houses 15 intended to

be mortgaged. The requirement is stipulated under section 114 (3) of the Land Act (supra), which reads; "(3) A mortgagee shall be deemed to have discharged the responsibility for ascertaining the marital status of the applicant and any spouse identified by the applicant if, by an affidavit or written and witnessed document, the applicant declares that there were spouse or any other third party holding interest in the mortgaged land." According to the evidence on record, it is sufficiently established that, the appellant's officials were not diligent enough in discharging their statutory mandate. This finding is justified the evidence adduced by PW1, and PW2 (SMI & SM2) and via the answers by the appellant's witness, one Focus Oswald (SU2-DW2) when cross-examined by the 1st respondent's learned advocate. He (SM2) replied that, they were were not given a marriage certificate of the said Asha Mtauka neither they looked for the consent of another wife of the late Saidi who was dwelling in the matrimonial home together with her children. For clarity, parts of his answers when cross-examined are reproduced herein under; "S/mtaa ni/ikwenda. S/mtaa hawajasaini kwenye mkataba wa amana... Asha Mtauka hakuonyesha cheti cha ndoa wa/a hatukukitafuta..Kama wake wapo zaidiya 1 wanapaswa kusaini ridhio la mwenza." 16 In the premises, I find no reason to fault the decision of the

trial Tribunal. It follows therefore the mortgage in respect of the properties with residential licences No. TMK000953 and TMK000954, located at Nyambwera Street, Tandika area within Temeke District, was a nullity for want of spousal consent. Consequently, the appeal is devoid of merit, it is thus dismissed in its entirety. Each party shall bear his or her own costs of the appeal and those before the trial tribunal. It is so ordered. dated and delivered at dar ES SALAAM this 25th July 2024. 17