LAND APPEAL NO 8883 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 8883 OF 2024 (Arising from Land Application No. 136 of2019) AMANA BANK LIMITED............................................................. APPELLANT VERSUS KIBWANA OMARY MKURUZO (As the Administrator of the Estate of the late MAUA SALUM MKWAMA............. 1st RESPONDENT VIOLETH ANAEL MOSHA................................................ 2Nt> RESPONDENT JUDGMENT 31/7/2024 &21/8/2024 A. MSAFIRI, J The origin of this appeal is the Land District and Housing Tribunal of Kinondoni District at Mwananyamala (herein the trial Tribunal) whereby the now 1st respondent has sued the now appellant and the now 2nd respondent as the 1st and 2nd respondents respectively In Application No. 136 of 2019. The applicant's claims before the trial Tribunal against the respondents were that he (applicant) is a legally appointed administrator of the estate of the late Maua Salum Mkwama who died intestate in 2003 at Sinza Area,, i in Dar es Salaam. That on 22/12/2014, Amana Bank Ltd (1st respondent) and Violeth Anael Mosha (2nd respondent) entered a loan agreement whereby the security for the loan was the landed property described as Plot No. 79 Block "D" Sinza Area, Kinondoni District, Dar es Salaam (herein as suit house/suit premise) and it was done without the knowledge or permission of the applicant who is the administrator of the estate of Maua Mkwama who is deceased. The Applicant prayed for the declaration that the mortgage deed purported to be entered between the respondents and the deceased person on 22/12/2014 is null and void as when Maua Mkwama is claimed to have guaranteed the mortgage in 2014, she was already passed away since 2003. Amana Bank who was then the 1st respondent filed their WSD and vehemently denied the applicants claim. They admitted the existence of loan transaction between the 1st respondent and 2nd respondent Vaileth Anael Mosha in December 2014 which was secured by third party mortgage of a suit premise in the name of Maua Mkwama. The 1st respondent denied the rest of the applicant's claim and put him to strict 2 The 2nd respondent never appeared in Tribunal despite being served. It is in record that she was served by publication after physical service proved futile hence the hearing proceeded exparte against her. After hearing, the trial Tribunal decided in favour of the applicant and went on to declare the mortgage agreement void since the mortgagor Maua Salum Mkwama was proved that she died in 2003. In the judgment, at page 7, the trial Chairman found that the applicant has proved his case whereby the evidence proved that Maua Salum Mkwama died on 28/3/20023 and she never executed a mortgage deed with the 1st respondent on 22/12/2014. The application was granted with costs. The now appellant was aggrieved and have lodged this appeal and has advanced a total of 15 grounds of appeal which I will not reproduce herein. The disposal of the appeal was by way of written submissions whereas, the appellant was represented by Mr. Haji Sofi Sama, learned Advocate while the 1st respondent was represented by Mr. Jebra Kambole, learned Advocate. The 2nd respondent was served by publication after the physical service failed to trace her where about as per the affidavit of service which was produced in court. JM I 3 I find the first, second and third grounds of appeal to be on the same issue basing on the errors purportedly committed by the trial Tribunal regarding the service of the 2nd respondent Violeth Anael Mosha. In the first ground, the appellant complain about the failure of the Tribunal to consider that there was no summons issued and/ or serviced to the 2nd respondent, in the second ground, the appellant complain about the failure of the trial Tribunal in ordering service of summons to the 2nd respondent to be effected by way of publication and in third ground, the appellant avers that the trial Tribunal erred in proceeding exparte against the 2nd respondent. I will determine the three grounds jointly. In the first ground, Mr Sama submitted that the summons to the 2nd respondent was not properly served as per Regulation 6(3) of the Land Disputes Courts (The District Land and Housing Tribunal), Government Notice No. 174 of 2003. That the affidavit in the court records reveals that the summons was only served to the appellant but not to the 2nd respondent in person. He said that there is no proof whether the service to the 2nd respondent was properly effected and the affidavit of service did not indicate the manner and time of service which the purported service was made. 4 Mr Sama argued the second and third grounds jointly. He referred to the records of trial Tribunal of 07/10/2019 where the Tribunal granted an order for service of summons to the 2nd respondent by way of publication and the records of 12/11/2019 where it order the matter to proceed exparte against the 2nd respondent. The counsel was of the view that the Tribunal ought to ascertain that serving summons to the 2nd respondent personally had failed before ordering service by way of substitution which is the last resort. That the trial Tribunal was improperly moved by 1st respondent to order publication and later exparte order against the 2nd respondent. To cement his points on service, Mr Sama cited the case of China Railway Construction Engineering Group vs. The Palm Residency Limited and Royale Orchard Limited, High Court of Tanzania, Land Division at Dar es Salaam in Land Appeal No. 197 of 2021. In reply, Mr Kambole submitted that the non-appearance of the 2nd respondent during the trial does not impact the appellant's ability to defend his case. That the appellant cannot claim that the absence of the 2nd respondent undermined his ability to present witnesses and evidence before the court. That the 2nd respondent has not appeared during the trial nor in this current appeal despite the issuance of summons and widely ? 5 circulated public notice in newspapers. He submitted further that this appeal is not about setting aside exparte proceedings or judgment. He said that the cited case of China Railway Construction Engineering Group vs Palm Residency (supra) is distinguishable from the matter at hand as the cited case was on setting aside the exparte judgment. On rejoinder, the counsel for the appellant reiterated his submission in chief and added that the reliefs sought in the Land Application No. 136 of 2019 touches the 2nd respondent as her obligations to the appellant were secured by the suit premises and any decision shall affect her interests and rights. He submitted further that the 2nd respondent was a necessary party in the matter. In the above three grounds, the appellant has dwell much on the issue of service of the 2nd respondent without stating on how the presence of the 2nd respondent would have added advantage to the appellant's case or helped the appellant in her defence. The appellant never not told this court on how the absence of the 2nd respondent has affected the case of the appellant. The appellant was never denied her right to be heard. The appellant was present all the time of the hearing and never raised the issue of absence of the 2nd respondent and its impact on the appellant's 6 The one who could complain about the impropriety of the service of the 2nd respondent could have been the 2nd respondent herself. Since the appellant have failed to show the court how her case was prejudiced by the improper service of the 2nd respondent then this court is of the view that the 1st respondent's rights to be heard and defend her case was not in any way prejudiced by the claimed improper service and the exparte order which was entered by the Tribunal against the 2nd respondent. Furthermore, the Tribunal was satisfied by the service of the 2nd respondent by publication before it issued exparte order and the 1st respondent did not at any time before the Tribunal challenged or raised a concern as a party, on the process of service of summons on the 2nd respondent. I therefore find that the first, second and third grounds of appeal lacks merit. The counsel for the appellant abandoned grounds no. 4,5,and 7. He pray to argue on grounds no.6 and 9 jointly. The counsel stated that the trial Tribunal erred in admitting and relying on secondary evidence (Exhibit Pl) which was inadmissible and also erred in holding that the applicant never mortgaged the suit premises by relying on inadmissible documentary evidence which are Exhibits Pl and P5. ML 7 He said further that as per the Tribunal records, the Tribunal admitted and relied on the said exhibits but no foundation on the admissibility of the said exhibits was laid down by PW1 but rather by the 1st respondent's counsel. According to Mr Sama, counsel for the appellant, the trial Tribunal ought to have rejected the exhibits for want of foundation. In reply submission, Mr Kambole submitted that the Tribunal followed the proper procedure for admission and the appellant did not object to the tendering of the said documents hence any attempt to dispute their admission at this stage is an afterthought. In rejoinder, the counsel for the appellant merely reiterated his submission in chief. In order to determine these two grounds I had to go through the proceedings of the Tribunal. On 31/8/2022, PW1 led by his counsel, prayed to tender the Letters of Administration. The 1st respondent was being represented by Mr Nassoro Ahmed, learned advocate, Mr Ahmed did not raise any objection to the tendering or admission of the document. The document was admitted as Exhibit Pl. In addition, the witness PW1 narrated on how he came to be appointed as an administrator, hence reading on the records, I am of the view that the Tribunal did not error in ‘ 8 law or in fact in admission of exhibit Pl and the witness laid foundation on the document before tendering it. On tendering of exhibit P3, again the counsel who was representing the 1st respondent, Mr Ahmed said clearly that they have no objection to its admission. The same is for the tendering of Exhibit P5 where the Advocate Mr. Nassoro Ahmed stated specifically that he has no objection. Regarding the proceedings, I totally agree with the counsel for the 1st respondent that the claims raised now on the appeal stage by the appellants on the tendering and admission of the said exhibits are mere an afterthought since the appellant never raised objection during the trial on the admissions or the procedure for admission which were correctly followed by the Tribunal. I find that the grounds no. 6 and 9 lacks merit. On ground 8, the counsel for the appellant submitted that the trial Tribunal erred in admission of certificate of title (Exhibit P3) which has been expired since 30/3/2009. In reply, the counsel for the respondent argued that the appellant's submission in chief was contradictory whereby on ground no. 8, the appellant argued that the tenure of the right of occupancy (Title Deed- Exhibit P3) had expired and ought not to be admitted by the Tribunal. That at page 10 of the appellant's submission, it is stated that the tenure<= 9 was renewed. The counsel said that the said document Exhibit P3 was properly admitted and was relied upon by both parties to the suit in arguing their case. The appellant re-joined by maintaining that the disputed document has expired and the Tribunal should have rejected it. Indeed at page 8 of the appellants written submission, the counsel for the appellant argued that the tenure of the Title Deed has expired hence it ought to be rejected by the Tribunal. In the same submission at page 10, the counsel submitted that the trial Tribunal failed to make analysis of the evidence adduced by the appellant during the trial that the tenure of the right of the occupancy of the suit premises was renewed and updated by the mortgagor (Maua Salum Mkwama) by the Commissioner for Land and later registered by the Registrar of Titles. I find that the appellant is trying to confuse the court. How can the Title Deed be expired and at the same time there is evidence from the appellant that it was renewed? Even if there was no claim from the appellant herself that the Title Deed was renewed, it is my view that the issue whether the Title Deed has expired or not could have properly be determined by the trial Tribunal as it needs evidence to ascertain it which cannot be done at the appeal level.- 10 In addition, the appellant never raised the question of the expiry of the Title Deed during trial and did not tell this court when she found about the expiry of the Title Deed. This ground of appeal also lacks merit. The counsel for the appellant consolidated grounds nos. 10,11,13,14 and 15 of appeal and argued them jointly. Mr Sama submitted that the evidence was not properly evaluated by the trial Tribunal hence caused miscarriage of justice to the appellant. That there was evidence that the tenure of right of occupancy was renewed and updated by the Registrar of Titles upon application by the Title holder Maua Salum Mkwama. That DW2 testified that Maua Salum Mkwama signed the mortgage deed in his presence. Furthermore, he said that the same Maua Salum Mkwama had instituted Land Application No. 178 of 2017 against the appellant which was later dismissed and that it was undisputed by the 1st respondent that Land Application No. 178 of 2017 existed but that the trial Chairperson disregarded such importance evidence. He argued that it was improper for the trial Tribunal to shift the burden of proof to the appellant to prove that Maua Salum Mkwama was alive. That if the Tribunal would have properly scrutinise and analyse the ■ ii evidence brought forward by the appellant, it would not have reached its final findings that led to injustice to the appellant. On reply, counsel for the 1st respondent contended that the decision of the Tribunal was proper on the ground that the 1st respondent herein, proved his case on the required standards that Maua Salum Mkwama died on 28/3/2003 and that the 1st respondent herein (Kibwana Omary Mkuruzo) was appointed the administrator of the deceased estate in 2018 in Administration Cause No. 20 of 2017, therefore that the person that died in 2003 could not have executed the mortgage on 22/12/2014. The counsel added that the death certificate was not objected by the appellant during the trial and other documents therefore the appellant is precluded to object the evidence at this stage. In rejoinder, the counsel for the appellant responded that the 1st respondent did not discharge his duty since there was no allegation in the pleadings nor testimony on allegations of losing the certificate of title, fraud, forgery and impersonation in the process for the renewal of the certificate of title also in the execution of the mortgage deed for the suit premises. It is trite law that he who alleges must prove. This is laid down in the Evidence Act Cap 6 under the provision of Sections 110,111 and 112. In : 12 the instant matter the applicant's claims were that he is a legally appointed administrator of the estate of Maua Salum Mkwama who died intestate in 2003. That he as the administrator was not aware and has not authorised Amana Bank to use the deceased land Title Deed as a guarantee. He prayed for declaration that the mortgage deed purported to be entered between the respondents and deceased person on 22/12/2014 to be declared null and void. To prove his case during the trial, the applicant gave evidence both oral and documentary that Maua Salum Mkwama passed away in 2003. He went further as to produce a death certificate which was admitted during the trial which showed that indeed Maua Salum Mkwama died on that alleged time. In the judgement, the trial Chairman did analyse and scrutinise the evidence adduced by all parties to the dispute. This can be seen from pages 3-7 of the impugned judgment. Having gone through the whole evidence adduced by parties, the trial Chairman went on to determine the issues which were framed. The issues were first; whether the applicant mortgaged the suit premises to the 1st respondent for the loan advanced to the 2nd respondent; if the first issue is in affirmative, then whether the. 13 1st respondent is justified to sale the mortgaged premises; and what reliefs are the parties entitled to. In the determination of the issues, the trial Chairman basing on the evidence of PW1,PW2,DW1 and DW2, he found that the applicant never mortgaged the suit premises to the Bank. The Chairman found that the witnesses PW1 and PW2 proved that Maua Salum Mkwama died on 28/3/2003 by the death Certificate of the said Maua which was admitted as Exhibit P5. The trial Chairman considered the evidence by the defence as adduced by DW1 and DW2 and the mortgage deed which was admitted as Exhibit DI. However, in presence of the death certificate, the trial Chairman was of the view that it was impossible for Maua Mkwama who died in 2003, to mortgage her house in 2014. I am of the view that considering the circumstance of the matter, and the presence of the death certificate of the said Maua Mkwama, the trial Chairman was right to shift the burden of proof to the respondent/defence to prove how Maua Mkwama managed to execute a mortgage deed on 22/12/2014. The appellant through her counsel is dissatisfied by the act of the trial Chairman of shifting the burden of proof to the 1st respondent (now the appellant). However, in the circumstances, the trial Chairman was correct 14 to shift the burden after being satisfied by the evidence of the applicant that he has proved his case on balance of probability. Shifting the burden in civil cases is not a new practice in our jurisdiction as it was observed in the Court of Appeal case of Yusufu Selemani Kimaro vs Administrator General & 2 others, Civil Appeal No. 266 of 2020, CAT at DSM (Unreported). In the cited case the Court of Appeal observed thus:- "In civil cases, as a general rule, it is the party bringing the claim (the plaintiff) on whose shoulder the burden of proof lies. However, after the plaintiffhas led evidence either in the form of oral testimony, documentary evidence or objects, the burden of proof as a matter of adducing evidence or the onus ofproof (as it is otherwise called to distinguish it from the burden of proof which never shifts), shifts to the defendant to lead evidence either with the view to controverting the plaintiffs evidence or supporting his own case. According to the English case of Pickup v. Thames Ins. Co. 3 QBD, 594,600, the burden ofproof in this sense, is always unstable and may shift constantly throughout the trial accordingly as one scale of evidence or the other preponderates." (emphasis added). Ir 15 The Court of Appeal held further that; ./7j civil cases, the onus ofproof does not stand still, rather it keeps on oscillating depending on the evidence led by the parties and a party who wants to win the case is saddled with the duty to ensure that the burden of proof remains within the yard of his adversary. This is so because as per the case of Raghramma v. Chenchamma, A 1964 SC 1367 such a shifting of onus is a continuous process in the evaluation of evidence." (emphasis added). Essentially that is what happened in the instant matter during the trial. The applicant having led evidence showing that the late Maua Salum Mkwama died in 2003 and could not have entered a mortgage deed in 2014 as alleged by the 1st respondent, it was incumbent upon the 2nd respondent to lead evidence which would rebut the applicants version on that crucial point. Guided by the principle set in the above cited case, I find that the trial Chairman did not err when he shifted the burden of proof to the defence. The counsel for the appellant has submitted on the fact that the allegedly deceased Maua Mkwama once instituted a case in person before the Tribunal, an Application No. 178 of 2017 whereby Maua Mkwama and Vaileth Anael Mosha sued Amana Bank and Yono Auction Mart challenging 16 the auction. The counsel for the appellant argued that how a person who died in 2003 could institute a suit personally in 2017? However, it is my finding that the appellant did not prove that it was Maua Mkwama who personally filed the Application No. 178 of 2017. Basing on the above analysis, I find grounds nos. 10,11,13,14 and 15 to have no merit. In upshot, for the above reasons, I find the entire appeal to have no merit, I uphold the decision and judgment of the trial Tribunal and I hereby dismiss the appeal with costs. Right of further appeal explained. 17