alieth mushwahili vs national microfinance bank and 4 others 2021 tzhclandd 6803 3 november 2021

alieth mushwahili vs national microfinance bank and 4 others 2021 tzhclandd 6803 3 november 2021

The tribunal erred by determining an unframed issue regarding the existence of marriage between the appellant and 4th respondent, which was not among the issues agreed for determination, thereby violating procedural fairness and rendering the judgment a nullity.

Citation
alieth mushwahili vs national microfinance bank and 4 others 2021 tzhclandd 6803 3 november 2021
Parties
Appellant: Alieth Mushwahili; 1st Respondent: National Microfinance Bank; 2nd Respondent: Ban Investment Limited; 3rd Respondent: Abdallah Mohamed Kimbulaga (As Administrator of Estate of the Late Mohamed Kimbulaga); 4th Respondent: Streere Tindwa Temenao; 5th Respondent: Fadhili Hussein Kinjini
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
3 November 2021
Procedural Posture
Land Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
Mortgage Validity, Sale of Mortgaged Property, Procedural Fairness, Framing of Issues
Source Language
English
Land Law Mortgage Validity Sale of Mortgaged Property Procedural Fairness Framing of Issues

Case Brief

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Parties

Alieth Mushwahili

Appellant

National Microfinance Bank

1st Respondent

Ban Investment Limited

2nd Respondent

Abdallah Mohamed Kimbulaga (As Administrator of Estate of the Late Mohamed Kimbulaga)

3rd Respondent

Streere Tindwa Temenao

4th Respondent

Fadhili Hussein Kinjini

5th Respondent

Procedural Posture

Land Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the tribunal erred by determining an unframed issue regarding marriage between appellant and 4th respondent
  2. 2 Whether the mortgage between the 1st and 3rd respondents was lawful
  3. 3 Whether the sale of the suit property to the 5th respondent was lawful

Ratio Decidendi

The tribunal erred by determining an unframed issue regarding the existence of marriage between the appellant and 4th respondent, which was not among the issues agreed for determination, thereby violating procedural fairness and rendering the judgment a nullity.

Court Disposition

Appeal allowed

Orders

  • Judgment in Land Application No. 237 of 2013 is nullified
  • Case file remitted to the District Land and Housing Tribunal for Temeke before another Chairman to compose a new judgment considering the framed issues