20181109 TZHC Mwanza

.. ( IN THE HIGH COURT OF TANZANl1A {DISTRICT REGISTRY) ATMWANZA , PC. CIVIL APPEAL NO. 47 OF 2017 (Arising from the Sengerema District Court at Sengerema in Civil Appeal No. 02 of 2016) · Last order: 01 . 11 .2018 \ .. Judgment Date: 09.11.2018 ',. \~ .. ·,"' , A.Z.MGEYEK~A,. J \\, , , , .~-,,-·~ -..,_• .... , ~- "\ \ !The ·- 'bppel!Clfit. ({ \\ > ·-,\. -~, appealed to this court following his _dissd~~-(action ~it;h the decision of the S.engerema District Court Civil \ ·'-- 1 . Appeak klos;._02/of 201 .7 which dismissed the application filed· by the appellant. This is the second appeal following the first one which was before the. District Court of Sengerema acting as- a first appellate 1 .-i,, f ) Court of the decision made by the Primary Court of Busisi exercising its original jurisdiction. A brief background to the appeal, the appellant and one Emmanuel entered into a contract on the sale of cotton. Emmanuel committed himself to repay the loan and failure to that he promised /---:"'--.. to mortgage his_ matrimonial house for sale in o?~~r, to repay fhe . ' ' loan.· It happened that Emmanuel failed to<rep,SJY th·~:: lq_aF}/So he \ ~--.....·-..........,--,,, \ \ :.'--..._ \, '( ~ _,./•' '.( ,' was subjected to sale the matrimonial house\JKJ ordeF,to repay the (?\, \\ //:" .,:·-, loan. The trial court ordered the respohqer1t to/pdy the appellant . ,,···:·•··-... '·,.. \"-.... \ ··-_ Tshs. 4,233,500 and to return the mizont·vatCieclAOQ,'G)OO/=. .. ........._ ,,,...., \: At the first ', \, ··•,.' . ""- \._\ ',. appellate court, the respond~~1t .(- ~ri;1noi ·,, ·ap~ettant) objected the ' sale of the matrimonial house. I. / / i \ \ The appellanl.oqj~~:f'ed the .execution order and decided to ' S'e \. 'I' '-, '•, MC "AA,,/• • .~ , lodge an appe6[b$fot$'tr,e District court of Sengerema. The District //~--'. '\,\ /, \,, •,, ., ·,...,,' . Court heard\t_hE? a_ppli¢ation·and gave judgment for the respondent \,_ \'-..,_/!' ,... ··.. ., (orig?afnJ:>f,~~'aQ,ll ~Y d8claring that the sale of the mortgaged house:was \ unlowful> \ \ : . '· \ •\ \ \ \ l \·. ·", ; / T~,~"j~pp:l1a~t being dissatisfied by the decision of the appellate tribunal filed an appeal in this court containing four grounds of appeal. 2 At the hearing, the appellant appeared 1n person, unrepresented and the respondent also appeared in person,· .unrepresented. Arguing in support of his grounds of appeal the appellant stated that he entered into a contract witr{··one Emmanuel · Nicholaus and the Primary c;ourt ordered thg,f,~-{~ma~Q~I. sho~J.q pay him his outstanding debt and in case he fails\f~\·tepay_th'e~:P'~Pellant . ·•.· .. .. . /""' . \ '\.· // . ·""·~..,,..., then his mortgaged house to be solist·to re~<)y.er the. >debt. The . ~~-~ \\ . \. ··'\."\.\, ' appellant continued to argue tha,Ythe..gpp~IL~::mt\~~::mfirmed in court . \\~' '.\..·.~.:<· -': . "'-.... ,_···,,~... ~~. . ~. ><· :'\.\ .._, '--<:_· \ that the property in question b~l~mg~d}o hiri]_"ahd if he runs short of money then his property/b.e ·--~~bjected for sale. The appellant I(. . .. '·\.. --...... '\_- ~ therefore, prays for this/court Jo·J?rd~rJhe sale of the property to ' \ /. ', enable him to recqv~r his 'r:noney. ·•., '\,,. ·\,., \< '--, "\\\ l_n repl'(,,ther~spo~-o~nt objected that the property in question does n.ot:~-.p~-l~n6; . //,./ . - . "", ='·~~..,..... .t6~ ·:em~an~el, she stated that the property '\,~-~: ,"\··,., "'-....... · ·.· . . belo_figed to<her, arid. she is the rightful owner the said property. The :. ' \\ \. ., \_ \ respop~ent su9~itted that she built the house after she sold the · \ • I \ . ·, ! : . cows wh[ch .. . 5-r1·e inherited from her father-. The respondent prays for '• ·_ , this court to find her the rightful owner of the property in dispute. After a careful perusal of the record of the case and the final -s·ubmissions submitted by both parties. I should -state at the outset· that, in the course of determin!ng this case I will be guided by the 3 canon of civil justice which suggests that, one "the person whose evidence is heavier than that of the other is the one ·who must win" - Hemedi Said Vs. Mohamedi Mbilu ( 1984) TLR 113. The main issue for determination is whether or not this appeal is based on founded grounds. <:::::·~-. In relation to the first and third grounds 9t9pped(_vx~ich S,~lates \: '"" '~ / / '' '•-.,,··,-... . to the evaluation of evidence and the res'pqnd,ent det~nce. The . • .,~c \\ \ '•<~;,, :.:?">••,.,,,_ •-,,•;, respondent at the District Court of Sengeremh\submit-tetl . \\ '.-:'· that the \\,, \\, , house which was mortga'ged by :-:h~r. llu~hor:\~ b~lpngs to her; ~he built the house before she wos ~drtied··td·E:mm'anuel. It is in the ·\, "· ' . ...\.... '•-<....., record that the responde,Rt ,a~'d: G,ne Emmanuel entered into an ./·: ,,.., ·.,\,.,,·· ',\..,,,•-,,\ ...... \., agreement of sale of ~:bJton anq Emmpnuel committed himself to \., ·. .,,,,J.".: ·._. '"\ . . . repay the loan fail,~r-~ to, 'that he c/)nsented to sell the matrimonial 0 house in order to s~r~iCe\the loan\. Therefore I have found that the .,,,/""7°""-~:-~. . \\ "<,<_\". .,. .,._ ',., ,_ - . Magistrat_e ~\(aluat~d tne·. ~vidence and considered the defence· ·.... ...,.... / __ , •. case. '-,........_'\. '-.,::' \<\\... "'-.,,_\, '\.\~ \· ·\ \~- ' '-; __ ',Looking. at1fhe second ground of appeal, it would appear that \._ \\ J. / . the app~llaot/itiaising an issue which was not raised at the District '➔ •• -~~ - ~f Court that the appellant· court failed to draw an adverse inference from the respondent who could not join her husband and that she claimed to build an expensive house after selling two cattle· only. This is a new issue and cannot be entertained at this juncture. If is a . . settled principle of law that matters not pleaded or taken in the trial 4 court cannot be raised on appeal. (Hotel Travertine Limited and 2 _Others V National Bank of Commerce Limited [2006) TLR 133). I, therefore, do not find any merit on this ground. In regard to the fourth ground of the appeal, the respondent contended that the District Court of Sengerem?<~rr~d in deciding that the· attached property belong to tb£:t resp&Q@~nt y::i, the \'.,.: \~: ..• _,"·-,,..., .."' '-,.\ . '-.... . \" ;~'J:- '/ absence of any proof of ownership. In the r~~brq>tbe r~_spondent . ' '·, .,_ \ ', .. ' objected the sale of the _matrimonial hq~s"e. f\0q./4 found that the sale was enforcement of a mo~tg~g-~~~x~~c,~t~p\.by his husband . . ',,. "\......~"; __ ~""'<~--~·· ~'"'-,-...---....._'\,,__\ '\,,_ \,, , Emmanuel who was alleged:·:·to "-·-.. h:9ve·:•.,, ·sectJred ·-- .. a loan of Tshs. ·, '.\\ , 4,233,500/= from the ap9ellqnt ·aod. ,thb{·tre loan was never paid ·,, '. '-, \ /. . ' ,, \ back, Consequently, the Respo,171d~nt-{ilEtd ah application before the • • // < ' ' '<. ~. District Court of Sengerema" 'dlsputing the alleged mortgage and '·\~,•-,'-,,\ \<_ ·•,,. ·.. . , ,../ ,: seeking to set.a?ide-_··the .,.,.,, sale -'6f the matrimonial home to the .' ·...,_ '\' ~ ' appellant an{ong··other } fhi[)gs. . . _,/ ,., -,, ' ' ./ ,, ., < /· .. ', "· (I ,have found'tl:)Qt in the record one Emmanuel (the husband of ! . \ .• ' \. ', I, ', \ ', . .the \}~spondertJ mortgaged the · matrimonial house, but ', '. I unfortuhqt-ely,,/the respondent did not consent to place the matrimonial house as the security of his loan. The District Court of Sengerema decided rightly that a matrimonial house is· not subjected for sole/ execution without the spouse permission. In the present case, the respondent did not c9nsent, and the law is clearly 5 I I stated under section 112 (3) of the Land Act, Cap.13 [R.E 2002] that spousal consent is i·mportant. Section 1l 2(3) provides that: · " 112 (3) ·A mortgage of a matrimonial home including a customary mortgage of a matrimonial home shall be valid only if: (a) Any document or form used in applying/or such mortgage 1/ ., is signed by, or there is evidence from the\dqcument ',~ that if "\ ,~·-. '..,. ·~\\.· ,,r-.. . has been assented to by the bO'{Q:'3/e(and ·q,:ix_, spouse of \ \ · . ,. '•--... ', .../_. the borrower living in that matrimorHol home~~'.. , ··< . ("' ' '\ \._ ,/I, '! . \·· \_// / Similarly, Section 59 (1) of the J_qw '· o·f<Jy\arridge Act, Cap.29 [R.E {/ ', ', \ 2002] provide that: " 59(1) Where any es-tote o'r\:in.t,er~st in the matrimonial home is / ...,· ., ·, ,;_ ' owned by the hus~c:md or Ahe Wife1 h~ or she shall not, while the \ ,', // ' ··-.. ·., . . marriage sub<~is.!.. ar::i.d\without-}t:le consent of the other spouse, ' ' \ ·, , alienate it by way._of'·s.ale, __gift,lease, mortgage or otherwise and /<,,. .... -~.·-~ ......,,_ ""\'\ ·,. . ,, ·•. ,_ __ -.. -~ the other ·sp9yse s-t1qlJ be de_emed to have an iriterest therein . ' ) "' ·,. "·.._ . capable :b§in~f:?FC?t~ct~d by caveat' caution or otherwise under ,,.,,✓----:···;··.,--:···-,,, ""·\ . ,,' ·...,,,,.,,. :·· .•·,'; • ,,/cm"y lqv✓ for·t-QE\time·being in force relating to the registration of title ( 'Jo land d{de;d;), \_ ' lj \ , \ ·•... f ; . . G0Jd~g _by'the above· provisions, the respondent had proved that she had an interest in the mortgaged property. I find the findings of the District Court of Sengerema were rightly decided._ There is no dispute that ·the- appellant needs to· be compensated· and one Emmanuel needs to compensate the appellar:,t by any . other property apart from the matrimonial house. 6 Subsequently, I am satisfied that in the instant case there are no extraordinary circumstances that require me to interfere .with the first appeliate court findings of fact, the respondent evidence overweighed the appellant's evidence. I would accordingly dismiss the fourth ground of appeal. ,, Based on the foregoing analysis, I fir\d,;.(!0.-"[ne?il .00/01/ the 1 grounds of appeal. For that reason, I dismJss . ·•.. th \ \., --,,, ~}1~g·i;fwith _"'./ \ ... costs . \ ' \_ ,; .· •, \\' .. -· . -.,. ·--. ~ . '\\\.,"',..._,...._,_ \\ \. . ·., ", "'~ \..-\·\ \ '\ "-. -~~ \'\ \ \ Order accordingly. ·<:-:,, ·\. ,_, Dated at Mwanza this 9th;'/day·of . .. November2018. '·.. .,>,., •. '\., '\._ f :A.Z~'iEKWA •. ( JUD'GE 09.11.2018 :.(-•, . Delive~E; :,~\t~'e pres_ence of both parties this date 09. 11(201 ]J\ \'. \. I ,· I \. \ \ ., \.,\ ~:\t .:,]f' t-·,\,hu~t ·. ' '-./ ' ~{~Wf~· f. ...i, }...:.__,~\ v,,_. ,.1 _, / ~ 2.-:i, /, I/ ;Ji~ ·•. . -~, ~[9:·~-->::---~-/;/1<·Z .MG E: EKW A -~~~~NJ1/ JUDGE ----- 09 .1 l.2018 The right of Appeal is fully exptained. 7