ANNASTAZIA SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEALNO.148 OF 2Q24 (Arising from the decision of the District Land and Housing Tribunal for Temeke in the Land Application No.39 of2021 delivered on 2ffh November,2023) ANNASTAZIA EPHRAIM KIONDO.................................... APPELLANT VERSUS ACCESS BANK (T) LTD....................................................................... 1stRESPONDE BAHATI DEOGRATIUS MWITA..........................................................2ndRESPONDE JULIUS ALOYCE MUSIBA................................................................... 3rdRESPONDE JUDGEMENT l&h December2024 &07 January2025 LHEMED, J. The landed property subject of the dispute from which the instant appeal originates is TMK/MBGK/KCH10/284 with parcel Number TMK 034052 located at Kichemchem Mbagala in Temeke Municipality, Dar es Salaam. The Appellant herein is the one who instituted Land Application No. 39 of 2021 at the District Land and Housing Tribunal for Temeke. In the said suit, the Appellant was challenging the mortgage of the suit landed property executed i by the 3rd and 1st respondents in favour of the loan given to the herein 2nd Respondent by the 1st Respondent. The Appellant who is the wife of the 3rd Respondent averred that the suit house is a matrimonial property and has been used as matrimonial home of the Appellant and the 3rd Respondent. According to her, the property in dispute was mortgaged without her knowledge and consent. She was thus seeking for the following reliefs before the trial Tribunal "(i) Permanent injunction restraining the Respondents from selling or doing anything whatsoever in respect of the suit property. (ii) Nullification of mortgage entered by the 3rd and 1st Respondent(sic) in favour of the 2nd Respondent. (Hi) Payment of genera! damages at the tune of 25,000,000/= arising from the act thereof. (iv) Costs (v) Any other relief as the court may deem fit andjust." The matter proceeded exparte against the 2nd Respondent who never appeared before the trial Tribunal despite being served including by publication mode of service in Mwananchi News Paper of 23rd April 2021. 2 0 The 1st Respondent disputed the claims asserting to be entitled to attach and sale the pledged collateral as the 2nd Respondent failed to honor the terms and conditions of the loan agreement. On his part, the 3rd Respondent filed his written statement of defence disputing all the claims. In his written statement of defence, the 3rd Respondent averred that he never guaranteed any one to acquire a loan from any financial institution. He contended further that the residential licence used to guarantee the said loan got lost at Temeke Municipal Land Office while he was in the process to renew the said licence. Before the trial Tribunal, two issues were framed hereunder quoted verbatim '7. Endapo mkataba wa dhamana katika nyumba yenye mgogoro ulikuwa halali. 2. Endapo Wadaawa wanastahiH nafuu wanazoomba." The above issues are translated into English as follows:- 3 1. Whether the mortgage deed in respect to the suit house was lawful. 2. To what reliefs are the parties entitled. To prove the above issues, the Appellant was the sole witness of her own case who testified as SMI. The 1st Respondent paraded two (2) witnesses SU1&SU2. The 3rd Respondents testified himself as DW3. Having heard the testimonies from the parties, the trial tribunal found that the Appellant (SMI) and the 3rd Respondent (SU3) failed to prove that the 3rd Respondent had not guaranteed the loan which was given to the 2nd Respondent by the 1st Respondent. The trial chairperson ended up dismissing the entire suit with costs. The appellant got dissatisfied with the said decision hence the instantaneous appeal on the following grounds:- "1. That the trial Chairperson erred in law and facts for failing to consider documentary evidence tendered by the herein Appellant during trial. 2. That the trial Chairperson erred in law and facts for failing to comply with the principle ofproof in civil case. 3. That the Chairperson erred in law and facts for shifting the burden ofproof among parties contrary to the legal requirement." 4 Hearing of the Appeal was done by way of submissions. Mr. Erick Felix Chale, learned advocate duly acted for the Appellant while the 1st Respondent enjoyed the legal service of Ms Violet Mipawa. The 3rd Respondent did not file reply submissions as he appears to be at one with the Appellant's views. The matter proceeded exparte against the 2nd Respondent who never appeared despite being duly served, including by publication effected on 4th June 2024 in Mwananchi Newspaper. Arguing in support of the 1st ground of appeal, the learned counsel for the Appellant asserted that before the trial tribunal the herein appellant testified that her and the 3rd respondent are husband and wife legally married since 2008. In substantiating the said testimony marriage certificate was tendered and admitted into evidence as Exhibit Pl. The learned counsel was of the view that the trial Tribunal failed to make the required consideration to the testimony and exhibit tendered and hence contravening the legal standards of adjudicating disputes. With regard to the 2nd ground, the counsel of the appellant argued that the trial Chairperson failed to comply with the principle of proof in civil case, which requires the person who alleges to prove. In his submissions, the learned advocate cited section 110(1) of the Evidence Act [Cap 6 R.E 5 2022] and the case of Oliva James Sadatally vs Stanibic Bank Tanzania Limited, Civil Appeal No.84 of 2019 arguing that the appellant had managed to prove her allegations that she did not consent the mortgage. In regard to the 3rd ground of appeal, the learned counsel contended that it was wrong for the trial Tribunal to to shift the burden of proof to the Appellant of what ought to have been proved by the respondents. He cemented his arguments by the decision of this court in Makungu Onesmo vs Lufasinza Mugeka and 2 others, Land Appeal No.92 of 2022. In his view the judgment was erroneous for shifting the burden of proof among parties. In reply to the 1st ground of appeal, the learned counsel for the 1st respondent argued that the trial chairperson did not error because evidence adduced could not disapprove the facts that the 3rd Respondent pledged the disputed property as collateral for the loan advanced to the 2nd Respondent by the 1st Respondent herein. She insisted that the Appellant managed to prove to be the wife of the 3rd Respondent. 6 Regarding the ground of failure of the trial chairperson to comply with principles of proof in civil cases, the learned counsel for the 1st respondent contended that the Appellant failed to convince the trial chairperson that the 3rd Respondent to whom she claimed to be her husband, never obtained spousal consent when mortgaging the disputed property. The learned counsel was of the opinion that proving to be the wife of the 3rd Respondent could not warrant nullification of the mortgage as the 3rd Respondent had acquire consent of his another wife one Lwiza Thomas Mrope. The learned counsel was of the opinion that the Appellant had failed to prove her allegation contrary to section 110 of the Evidence Act (supra). In the 3rd ground of appeal, the learned counsel for the Respondent was of the view that the trial Tribunal did not shift the burden of proof rather the onus of proof. According to the learned counsel what shifts is not the burden of proof rather it is onus of proof as was discussed in Crescent Impex(T) Limited vs Mtibwa Sugar Estates Limited, Civil Appeal No. 455 of 2020 and Benedict Mhagama vs Kalaita Yohana(the administrator of the estate of the late Sophia Mohamed), Civil Appeal No. 135 of 2021. He ended praying for dismissal of appeal. The 3rd Respondent also filed reply submissions. I have read it thoroughly and found it containing arguments, which support the Appeal. In his rejoinder submissions, the learned counsel for the appellant reiterated his submissions in chief. Having keenly read the rival submissions presented by the parties and the main issue for determination is whether the appeal is meritorious. I have revisited the pleadings which were presented before the trial tribunal in order to assess what ought to be proved. I am doing so based on the principle that parties are bound by their own pleadings as propounded by courts in numerous decisions including that in Barclays Bank(T)Ltd vs Jacob Muro, Civil Appeal No.357 of 2019 where it was held that:- "l/Ve feel compelled, at this point, to restate the time- honored principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts must be ignored." At the trial Tribunal, the Appellant pleaded to be the wife of the 3rd Respondent herein who was said to have mortgaged the suit landed property in favour of the loan issued by the 1st Respondent to the 2nd Respondent. In her application, the Appellant alleged to have participated in the acquisition 8 of the said matrimonial property, which is also used as matrimonial home of the Appellant and the 3rd Respondent. I have noted from the proceedings of the trial tribunal that, the key issue, which the Appellant herein ought to have proved, was on whether the mortgage of the suit landed property was lawful. The trial Tribunal was obliged to determine the said issue following the prayer for nullification of the mortgage on the ground of want of the Appellant's consent. It was thus the burden of the Appellant to prove that she was the one to consent the mortgage transaction of the suit landed property. I am holding so based on section 110(1) of the Evidence Act (supra) which provides thus:- "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence offacts which he asserts mustprove that those facts exist." I have read evidence which was adduced by the Appellant herein and found that she testified to be the wife of the 3rd Respondent. The Appellant, who testified as SMI, tendered the certificate of marriage (P-1) to substantiate her oral testimony. Evidence of the Appellant was also of the effect that the suit landed property was acquired jointly by the Appellant and 9 the 3rd Respondent, that she was not consulted and thus never consented the mortgage of the suit landed property. Going through the record, I am convinced to find that the Appellant discharged her duty to prove that she is the wife of the 3rd Respondent and that she was the one to consent the impugned mortgage pursuant to section 59(1) of the Law of Marriage Act[Cap.29 RE 2019] which provides thus:- " Where any estate or interest in the matrimonial home, is ownedbg, the husband,or, the, wife, he or, she, shall not, while, the, majriage, subsists and, without, the, consent, ofthe, other SQpuse, alienate it by vyay of sa!e, 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 tide to land or of deeds. "[Emphasis added] In the light of the above provision, the spouse who challenges disposition of landed property on the ground that she/he never consented has to prove that one, she/he is the spouse of the person alleged to have io disposed the property; and two, the suit landed property is a matrimonial home or property. In the matter at hand, the Appellant tendered the certificate of marriage that was admitted into evidence as exhibit P-1 for purposes of proving that she is the spouse of the 3rd Respondent who was said to have mortgaged the property without her consent. My firm view is that, having managed to establish to be the wife of the 3rd Respondent and that she never consented the disputed mortgage, was enough on the apart of the Appellant to prove that the mortgage was illegal. I have noted from the judgment that the trial chairperson condemned the Appellant (SMI) and the 3rd Respondent (SU3) for having failed to prove that the 3rd Respondent did not guarantee the loan. This is found at page 11 of the typed judgment where she stated thus:- "Ninafikiri SMI na SU3 wameshindwa kuthibitisha kwamba SU3 hakudhamini mkopo kwa nyumba yao ya ndoa, Mwanamke mwingine, Lwiza Tomas Mrope akiridhia kama MwenzT ii The above observation in my opinion is erroneous because SMl(the Appellant) and SU3(the 3rd Respondent) where two distinct parties with different burdens of proof. Therefore, it was wrong to mix-up the two parties as if both had common interest with same burden and onus of proof. In Benedict Mhagama vs Kalaita Yohana(The Administrator of the Estate of the late Sophia Mohamed), Civil Appeal No.135 of 2021, the Court of Appeal of Tanzania emphatically observed that:- "Zf is again trite that the burden ofproof never shifts to the adverse party until the party on whom the onus lies discharges his, and that the burden ofproof is not diluted on account of weaknesses of the opposite party's case." In the light of the above principle of law, having discharged her onus of proof that she was the one to consent the mortgage transaction in respect of the suit landed property, the onus of proof shifted to the respondents to disapprove what the Appellant had adduced. In fact, evidence which was adduced by the 3rd Respondent supported what the Appellant had testified before the trial Tribunal. The 3rd Respondent in his evidence told the trial 12 0 Tribunal that one Lwiza Tomas Mrope, alleged to consent the mortgage transaction as his wife, was not known to him. Furthermore, records of the trial tribunal do not have evidence of the certificate of marriage of the 3rd Respondent and one Lwiza Tomas Mrope, there is no documentary evidence to prove that truly, the 3rd Respondent signed the mortgage document. Besides, before the trial Tribunal, it was not in dispute that the suit landed property was mortgaged as a security for the loan that was disbursed to the 2nd Respondent who never appeared during trial at the trial Tribunal. The trial Tribunal was called to determine the legality of the said mortgage which had no consent of the Appellant, the wife of the 3rd Respondent. In the end, I find merit in the appeal and proceed to make the following orders:- 1. Appeal is allowed; 2. The Judgment and Decree of the trial Tribunal are set aside; 3. The mortgage of the suit landed property declared illegal and thus a nullity for want of the Appellant's consent; and 4. The Appellant is entitled to costs of the appeal. 13 Order accordingly. DATED at DAR ES SALAAM this 07th January, 2025 14