LAND APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA LAND APPEAL NO. 130 OF 2022 (C/F Land Application No. 148 of2010, District Land and Housing Tribunal for Arusha at Arusha) AMINA JUMANNE MBERESERO................................................. APPELLANT VERSUS JUMANNE MOHAMED......................................................... 1st RESPONDENT ARTHUS FIDELIS MUSHI.................................................. 2nd RESPONDENT NANGE AUCTION MART & DEBT COLLECTOR................ 3rd RESPONDENT JUDGMENT 11th September &. 15th November, 2024 Masara, J Amina Jumanne Mberesero, the Appellant herein, sued the Respondents herein at the District Land and Housing Tribunal for Arusha at Arusha ("the trial tribunal") praying for: a declaration that the suit property is a matrimonial property in which the Appellant has a share; a declaration that the purported sales agreement between the 1st and 2nd Respondent is null and void for lack of consent from the Appellant; a permanent injunction retraining the Respondents and or their agents, associate, servants or any other person acting on their behalf, from selling, disposing trespassing or evicting the Appellant and or her tenants from the suit property and any other relief that the tribunal deems just and equitable to grant. 1 | Page After hearing, the trial tribunal dismissed the Appellant's application. Dissatisfied by the said decision, the Appellant has appealed to this Court armed with three grounds as hereunder reproduced verbatim'. 1) That the trial tribunal erred in law and fact when it opined that the 2d Respondent legally bought the house while spouse consent was not given before the sale of the house by the 1st Respondent to the 2d Respondent. 2) That the trial tribunal erred in law when failed to properly understand the concept of contribution and acquisition of matrimonial properties as the result she ended dp. declaring the 2fd Respondent as the lawful owner hence an erroneous decision. 3) That the district land and housing tribunal erred in law and facts when it failed to consider the evidence adduced by the Appellant herein solemnly relied on the evidence by the 2nd Respondent and his witness hence a bad decision was given. At the hearing, Mr Richard Manyota, learned advocate, appeared for the Appellant,, while Mr George Mrosso, learned advocate, appeared for the 2nd Respondent. Despite notice to the 1st and 3rd Respondents, they did not enter appearance. Hence, the Appeal proceeded ex parte against the 1st and 3rd Respondents. Hearing proceeded by way of written submissions and both parties filed their respective submissions, save for the rejoinder. 2 | Page In his submission in support of the Appeal, Mr Manyota opted to combine the 1st and 2nd grounds of appeal while the 3rd ground of appeal was argued separately. On the 1st and 2nd grounds of Appeal, Mr Manyota averred that the disputed house was a matrimonial property and that the 1st Respondent did not obtain the spouse consent from the Appellant as per the dictates of the law; specifically, section 59 of the Law of Marriage Act, Cap. 29 [R. E 20221. To support his position, he referred to the decision in Yusneth Masambiro Sadock vs Equity Bank Ltd and Others, Land Case No. 95 of 2019. Mr Manyota further submitted that the 2nd Respondent's acquisition of the matrimonial property was not properly done, in the sense that, before the 1st Respondent sold the house, he had a duty to disclose that he has a wife. Further, that he was duty bound to inform the wife and obtain her consent. That the Appellant knew nothing about the sale until she was served with the notice to vacate the house. On the 3rd ground of appeal, Mr Manyota argued that the trial tribunal failed to evaluate the evidence that the Appellant was married to the 1st Respondent under Islamic law marriages since 2009, and that the disputed house is their matrimonial house since 2009 when they started 3 | Pa ge living in it. Mr Manyota canvassed further that the trial tribunal solely relied on the evidence of the 2nd Respondent something that led it to arrive into a wrong and bad decision. Mr Manyota prayed that this Court does re-evaluate the evidence of the trial tribunal and come up with its own decision as per the decision in the case of Leonard Dominic Rubuye @Rubuye Agrochemical Supplies vs Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419. Mr Manyota, therefore urged the Court to allow the Appeal with costs. Opposing the Appeal, Mr Mrosso contested all the grounds of appeal and supported the findings of the trial tribunal. Responding to the 1st and 2nd grounds of appeal jointly, Mr Mrosso contended that exhibit DI as well as the evidence by DW1 and DW2 support the finding that the suit property was solely owned by the 1st Respondent in line with the provision of section 58 of the Law of Marriage Act, Cap. 29 [R.E 20191, which states that marriage shall not operate to change the ownership of any property acquired or prevent a party from acquiring a property. Mr Mrosso further submitted that the 2nd Appellant is an innocent buyer who believed that the suit property is owned by the 1st Respondent and further followed due process in obtaining the certificate of tittle as well 4 | Page as tracing the original owner. Reference was made to the case of Kalende vs Haridar & Company Limited [2008] 2 EA 173. Mr Mrosso also contended that the Appellant failed to prove her contribution to the improvement of that property so as to acquire any interest to that property. He distinguished the case of Yusneth Masambiro Sadock {supra) on the ground that, in the cited case, the property was a matrimonial one while in the case at hand the property was solely owned by the 1st Respondent, who. disposed the same to the 2nd Respondent. Mr Mrosso added that parties should not be allowed to depart from their pleadings and that the court is bound by the pleadings of the parties. He supported this position with, the decision in the case of James Funke Gwagilo vs Attorney General [2004] TLR 161. He pointed out at the Applicant's pleadings before the trial tribunal, paragraph 6 of the application, where she stated that she got married to the 1st Respondent in 2009, confirming that the disputed property cannot be a matrimonial property since it was obtained before parties got married. Countering the 3rd ground of appeal, Mr Mrosso argued that the burden to prove that the property is a matrimonial one lied with the Appellant as per the decision of Habiba Ahmadi Nangulukuta & 2 Others vs 5 | Page Hassanei Ausimchopa (The Administrator of the Estate of the Late Hassan Nalino) & Another, Civil Appeal No. 10 of 2022 (Tanzlii). Based on the above, Mr Mrosso urged that the failure by the Applicant to prove that the disputed property is a matrimonial property contravened section 110 of the Evidence Act, Cap. 6 [R.E 20191. He prayed that the Application be dismissed with costs for lack of merit. Having outlined the submissions made on behalf of the parties herein, it behoves me to make a determination of the appeal as argued by Counsel for the respective parties. I have keenly considered the records of the trial tribunal, the grounds of appeal and the rival submissions for and against the appeal. The issue for determination is whether the appeal has merit. Notably, grounds 1, 2 and 3 of the Appeal revolve around the issue whether the disputed house is a matrimonial property and whether spouse consent was issued prior to its disposal to the 2nd Respondent. That said, in my view, all the grounds of appeal are intertwined in that they revolve around the status of the disputed house sold to the 2nd Respondent without the spousal consent of the Appellant. In order to clench what is contested by parties herein, this Court had to review what parties pleaded at the trial tribunal. This is to keep in line 6 | Pa ge with the settled principle of law that, in civil cases, parties' pleadings set a roadmap of their cases and are binding upon them as well as the court/trial tribunal adjudicating the matter. For this I am guided by the Court of Appeal decision in Barclays Bank T. Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019 [2020] TZCA 185 Tanzlii. Before the trial tribunal, the Appellant pleaded, among other things, that: one, she got married to the 1st Respondent in the year 2009; two, that they jointly acquired the disputed house; three, that they both lived within the disputed house and rented part of it to tenants and' four, that the 1st Respondent fraudulentlyKand without consent of the Appellant sold the disputed house to the 2nd Respondent. The 2nd Respondent, on the other hand, pleaded that the disputed house was solely owned by the 1st Respondent who obtained the disputed house from one Salim A. Saad before he celebrated his marriage with the Appellant. That the said house was later on sold to the 2nd Respondent. The 2nd Respondent, thus, pleaded that the disputed house was not a matrimonial property requiring spousal consent. As is the norm, the Appellant who initiated the case at the trial tribunal beard the burden, on a balance of probability, to prove all the contentions raised in her pleadings. In my view, looking at the evidence 7 | Page in totality, I have no hesitation to agree with the trial tribunal that the Appellant failed to discharge the burden to the required standard. My conclusion is based on the following aspects: One, the pleadings and evidence suggest that the Appellant got married to the 1st Respondent. This fact was disputed by the Respondent and his witness. The Appellant tendered a marriage certificate from BAKWATA dated 20.08.2009. As there was no evidence proving otherwise, I have nbxhesitation to doubt that the Applicant was a wife of the 1st Respondent herein.' Two, the Appellant pleaded that the disputed house was jointly acquired between her and the 1st Respondent., While responding to the question from one of the assessors, she stated that she contributed TZS 2,000,000/= towards the acquisition thereof. Unfortunately, that fact is not supported with the available evidence, on record. The Appellant never adduced any evidence tracing the ownership or means of acquisition of the suit house. The 2nd Respondent, on the other hand, managed to trace and reveal the original ownership of the disputed land, pursuant to exhibit DI tendered at the trial. The house was actually exchanged and not bought as she alleged. The same was also acquired in 2007 long before she got married to the 1st Respondent. 8 | Page Three, it was the Appellant's version that she lived in the disputed house as matrimonial house and that part of the said house was rented out to tenants. Whereas it is true, from the evidence of DW1 that he was forced to engage the services of the 3rd Respondent to evict tenants from the disputed house, there is no scintilla of evidence to prove that the house was occupied by the Appellant as a matrimonial house or it was a business house rented to tenants. Even if the Applicant was residing in the said house,, it js not the position of law that once one spouse resides in a house which is registered in his or her spouse's name, then the house is rendered a matrimonial house. For the Appellant to claim entitlement as. a spouse whose consent was necessary for an effective disposition of the house, she was duty bound to prove that the house was nothing but a matrimonial house. Gauging the evidence as a whole, I do confirm the position taken by the trial tribunal. The 2nd Respondent did all that was possible and cannot be taken to have fraudulently acquired the house in dispute. It is in evidence that after the case was filed against the three Respondents, the 1st respondent disappeared and could not be traced. Whether that assertion is true or not, there is nothing to suggest that the 2nd Respondent did not acquire a good title to the suit house. The Appellant 9 | Page was given an alternative of reacquiring the house by refunding the purchase money plus interest. I have no basis to overturn that decision issued by the trial tribunal serve for the interest of 100% per year. I reduce the interest to 25% per annum. In the upshot, the Appeal is devoid of merit and is hereby accordingly dismissed serve for the interest to be paid .by the Appellant as compensation to the 2nd Respondent, in case she opts to refund the money taken by the 1st Respondent as the price for the disputed house. The interest is reduced to 25% pen annum since the year2011 till V \ 'v\ payment in full. From the circumstances of the subjectTrom which this Appeal arose from, I direct that each party bears its own costs. DATED and DELIVERED pt ARUSHA this. 15th day of November 2024. JUDGE 10 | P a g e