20190317 TZHC Dar es Salaam

. . . ., . . . IN-THE HIGH ·coURT OF TANZANIA (DAR. ES SALAAM DISTRICT . . . REGISTRY). . . ~ ' . . .AT.DAR.ES SALAAM .. ', LAND CASE NO. 104 OF .2015 · -. cALvIN PAuLo TARIMo .•....••....••... ~u••····:~-..... i •••••• ■■ 1 ST PLAINTIFF WITNESS PAULO TARIMO.u ... ~ ................. ~••n••········2No PLAINTIFF . ·_VERSUS,- AccEss BANK TANZANAI LIMITED •...• . . . . . . ~·······••n••···1ST. DEFENDANT . PRISILA PAULO TARIM0 .... ~ ...........•...•..•.. ~ ....•.... 2ND DEFENDANT JUDGMENT. MASABO, J.L.:- ..· In this suit, t~e Plaintiffs are jointly praying for adeclaratory order that they are the · lawful' owners · of the suit . properties descri.bed as Ardhi No. ' ' · KND/NGB/MPA18/2O ·with ·Residence -~icence No. KND. 8225 located · at · ' . Ndugumbi. -·ward then in · Kino'ndoni . _municipality and Ardhi No. KND/TND/PKCl0/38 with Residence. License No.· KND 007709 located at Pakacha street, Tandale Ward, Kinondoni Mu.nidpality in Dar· es Salaam. · They .are also. praying for· nullification of the mortgage created over the . . :. .. . . . . . . . . premised suit; an order for surrender of the original residence licenses of the . . ·, . . . suit premises to the Plaintiff,. and . a permanent . . ir:,junctive orders barring the . . , . . . . . . . . 1st Defendant from ente.ring possession, evicting, interfering or tempering in any other. way with·. the owhership/use of the. SlJit premise. and a general damages at a tune of Tshs so,ooo,·ooo/= 1 JLMasabo ~- In a nutshell,this . . . suit has-its. genesis in deniiS~ .o(the one. Paulo tarimo, the . . ;_ .. . . . . father to the plai-ntiff and the original· owner of the suit properties ·above. -described. Following :his death in 1997,th~ ow.riership-of the suit properties - devolved to the· piaintiff. At this time the both the plaintiffs were <?f minor . _age hence the custoclianship of the said propert_ies: and the documentations - . . . . .. thereto vested in the 2 nd Defendant, their mother. ~ti$ alleged that, ori 18th July 2014 the . -2 nd Defendant. . fraudulent.ly. -obtafned ·. . . . a loan -from the 1st , . ~ . . Defendant. to which ?he cre-ated mortgage charges overthe two pre.mises . . .· .. . st nd without notification or consent of the 1 and 2 Plaintiffs. That; having ', . ·_ obtained ·the loan,: the 2nd . defendant defa_ulted.payme,nt as a result the.1 st Defendant sought to enforce its legal dghts over the suit.premises hence .this suit. During the hearingthe . plaintiffs . enjoyed . the probono service. of the Mr. - . ~ . · Seuye, holding brief from the Tanganyika Law Soci~ty whereas on the other hand the 1 st Defendant . . . . was ably r~presented by Mr. .- Deus . Mallya~ The 2nd ' .' Defendant defaulted appea·rance and an order_ for ·exparte proof against her · · was issued on 14TH August 2017. The Court framed three ofissues for·determinatiori: i. Who is the ·1awful owner of the suit premises? . . . ' . . . ii. Whether there was a valid mortga9e contract over the suit premise · between the l~ Defendant and the 2 nd -Defendant iii. To what reliefs are the parties ·entitled to?_ 2 JLMasabo .~ - In support of their case, the plaintiffs brought no other witness than themselves: PWl, Calvin Paul Tari mo .(the 1st plaintiff herein) and PW2, · Witness Paul Tarimo (the 2nd defendants herein). Their account was more or less similar and can be summarized as follows. Both are children of the 2nd Defendant and one Paulo Tarimo who died in 1997 who left behind, among other properties, the two suit premises whose ownership devolved to PWl and PW2 through a testamentary will. At this time, they were of minor age hence they could not immediately assume ownership of the two premises as a result, they were vested in the 2nd Defendant herein who held the same in trust. Acting beyond her. powers and without notifying PW land PW2 or seeking their consent, the 2nd defendant fraudulently obtained a .loan from the 1st defendant and mortgaged the two houses without PWl and PW2's consent. None of the two had information pertaining· to the loan until in November 2015 when they were served with a default notice requiring the 2nd Defendant to repay her outstanding loan of Tshs 94, 528, 815/82. Further the notice indicated the bank's intention to exercise its right of sale of the of the mortgage premises should the 1st Defendant fail to repay her loan within 60 days. That upon follow-up they discovered that indeed the 2nd Defendant . fraudulently created a mortgage and that all the documentations for the suit premises were under the custody of the 1st Defendant Bank. In addition, the following exhibits were tendered and administered 'Leseni ya Makazr No. KND 8225, Ardhi No. KND/NGB/MPAJB/20 dated 18th March 2006 {Exhibit P1}; 'Leseni ya Makazi Namba KND007709, Ardhi Namba KND/TND/PKC/10/38 dated 7th march 2007 (Exhibit P2); and a default notice dated July 2015 (Exhibit P3). 3 JLMasabo ~ On its party the .i st Defendant . paraded only .one Witness :Safinia Daudi, 32 . . ' . . . . years, a ·Recoveries Officer ·for·the 1st Defend~nt who testified that~ the 2rid · Defendant was a ·1ong-terrn customer . of the pt .defendant's· bank. having . obtained six loans. Th~fon 18. th July20.14. ·. . .. . the2~d .. Defendantobtained . . ,_ .. a loan . . worth Tshs 100,000_,O00/- and she secured the _same· with business. chattel .· and a mortgage deed created_ over the suit preniises~ That, DWl who was at the material time-~orking . at the l st Defendant's back office personally . . processed the loan file and aU documentssubmitted :bY the 2·rid Defendant to secure the lo.an. That, in addltio~ .to the loan form, the 2 nd Defendant submitted two residenc~ licenses bearing her name, a -letter from Makuburi · . Ward which intr()dUc~d the 2nd Defendant"'s .son one Kelvin as guarantor of. . . . . . . the loan. That, upon being advanced the loan, the 2 nd defendant deposited the first 10 installments· after whic:h she defaulted ·payment. In support of · ,_ her testimony, DWl. tendered'the ·1oan agreement (Exhibit. D1); and the letter from Makuburi Ward{Exhibit D2}. · .. Both parties.· had · the opportunity ,to make finai . submissions. In his submission, the plaintiffscounsel argued that;the 2 nd Defendant is not the . . owners of the two premis.es and that she ·.only heldthe same as a custodian . of the plaintiffs who are the true. leg·a·1 owners of the suit pre~ised as it vividly appears from the residence licen_ses. He further argued that the .mortgage agreement· between the .1st defendant and the 2 nd defendant is · invalid ~s the _2 nd defendant could not legally enter into contract over a. property to which she was not the legal qwner. On his part, Mr. Amedeus · Mallya for the Respondent, focused onthe credibility of the testimony ·of 4. ~---~. . JLMasabo ~- PWl and PW2, he questioned the reliability of their testimony on two grounds. First, that they inherited the same as they produced no letter of administration of the estate of Tarimo Paulo, and second, that, there is no reason why upon attaining the age of majority they did not reclaim their residence licenses from their mother. I have carefully considered the testimonies before me and the submissions, thereto. I need not to restate that, under the law, the burden of proof lies on the party asserting the existence of a certain fact (Section 110 of the Law of Evidence Act, Cap 6 RE 2002). In this case, the plaintiffs being the ones alleging that they are the true legal owners of the suit property and that the mortgage deed was signed on their back, they have a legal duty to prove that, indeed they are the legal owners of the suit premises and that the mortgage created over the suit property is unlawful as it was created fraudulently without notification or their consent. On the first issue as to who is the legal owner of the suit property, the vital evidence is the testimony of PW1, PW2 which all converge on the fact that the plaintiffs are the legal owners of the suit premises and that the 2nd Defendant was only the custodian of the properties. Also vital is the evidence of Exhibit P1 and Exhibit P2 which corroborate perfectly well the Plaintiff's story. Exhibit P1 bears the following words: 'HALMASHAURI YA MANISPAA YA KINONDONI KWA LESENI HII IMETOA KIBALI CHA MAKAZI KWA: PRISCILLA PETER TESHA {MSIMAMIZI WA CALVIN PAULO TARIMO)" [Emphasis added]. JLMasabo * 5 .. Equally, in Exhibit P2 it isstated that: · - "HALMASHAURIYA . . MANiSPM YAKINONDONI ' . . KWA . LESENI , - ' Hll IMETOA KIBALI CHA MAKAZI KWA: PRiSCILLA' PETER - TESHA (MSIMAMIZI WA WITNESS PAULO TAR.IMO)." [Emphasis added]. ·· · · - · · . . . The wordings above are very clear and incapable of a·ny. interpretation other than the fact" that s>wnersh!P ~f the suit premis~s ve_sted -in -the 1st and 2nd - Plaintiff and that the 2 nd defendant was only the custodian; As- this evidence - was not controverted by any. evidence showing -that the ownership of the . . . . . ' nd suit premises devolved.to . . the 2 - Defendant, . . the answer to-the first issue is . certainly in the affirmative. - Regarding the se~ond issue· as to whether there was a valid mortgage co_ntract _ove·r the suit premise between the· pt Defendant and the 2nd Defendant, it is not disputed that the i nd Defendant is indebted to the 1st Defendant ha,ving obtained a ;oan of Tshs 100,000,000 on· 18th July2014. It . _is also undisputed that to secure the said loan the 2 nd Defendant pledged the disputed premises as -security and_ vested in. the 1st defendant the . . documents pertaining- to_· the -two premises. -The -loan_ agreement and collateral agreement executed by the parties_ (Exhibit D1) attests to this. The dispute_ rests on the validity of ~ontract and this draws us back- to the finding in the first issue and the question that comes to mind whether the 2 nd Defendant being the guardian/next friend of the plaintiffs could legally enter into the collateral agreement? - _ 6 JLMasabo ~ .. , .... •• . . . .. _Under the Law of Contract Act, Cap 345 RE 2002 minors cannoten_ter into - contract as . they ·lackthe necessary . . . legal :Capacity (See . section· li(l)}. . A. •. . . guardian, may pursuant to section 6S:of the Law of Contract Act, o~ly enter into contract for necessities, broadly defined· as those ·things which the minor · actually . needs and. -without . which an individual . . tannot reasonably ·exist. ' . In : - . it is to be the instant c:ase . noted . that .. at the . time the collateral agreement . was concluded the plaintiff had- attained the_ age of ·1a-~ The first Plaintiff (PWl) who is now 26 years qld was at the :material time 21 years old and -the 2nd Plaintiff_and PW2 who isnow 25_years 61dhad 20 years atthe material time. Accordipgly,the issue ot' minority ooes not arise: a_nd· hence the need · .for consent to which both parties have alluded to. _·- . . . . . On the plaintiff's. part, it was pleaded and testified . .. . . . that their consent . was . . . . . . neither sought nor granted ·while on the 1st Defen_qant side, it is stated that consent was sought and. obtained. The cdurt have carefully examined th_e purported consent . as contained in . . Exhibit D2. Three major . irregularities . . . . have been noted in this exhibit. First, the letter is a merely introductory letter through which. the· 1ocal -government . .. . office,· for Makuburi ·. . . . Ward Kinondoni . . . .' . . Municipality introduced the persons ·named therein ·to the· 1st Defendant _· Bank. It says nothing about . the -consent. . The t_itle'. of the letter - - reads ~ "Utambulisho wa ndugu Keluvini Paul Safari' and_· part of its content which states the aim of the letter reads as follows: "namleta kwako aweze kumzamini mama yake kwa_ ajirlya kuchukua mkopo" [emphasis added].· Vividly, the title and the content of the ietter speak for themselves. It need not be overstated that, the purported conse~t is not contained in this letter. 7 JLMasabo ·~ •• ,. The second major irreg·ularity is that, the name of the person introduced in this Exhibit is .incons~stent . . . with . that. of the· 1st Plaintiff~ . . The person .. - ,· .in respect of whom the intr~ductibn in Exhibit .1)2 is given -is Keluvini Paulo Safari. . . . . . .. .. which is·differenf from the 1st Plaintiff!s name-'of Calvin Paulo Tarimo arid• no evidence was rendered to: show that the said K~luvini Paulo Safari is one the same person.to Calvhi PauloTarimo.·On this note,.even if I were to hold that th~ content of. Exhibit Di suffices as. consent;. it wUI still fail in . this ·front. The l~st. - irregularity is thatthe ietter is dated 31/03/2010 which . , . . . . . suggests thafit was written . 4years. p·ribr .to the ··, . conclusion of the collateral ' . . agreement for which it is pu'rp.orted to approve. In hertestimony, DYv'+ while . conceding to this irregularity . told the court that the 2nd Defendant was a .· . seasonal customer of the bank and that she took six loans using the same documents. In :sum,. · the three _irre·gularities . . . . . . ; I have endeavored . to . . . . . demonstrate above not only shoWs that there was. no consent but exhibits acute negligence on t_he party ·of the 1st D~fendant Bank; . . . - . . . . As regards, the third issue as to what remedies ar~ th~ parties entitled to, this court is of .th~ view that, the_· plaintiffs haying· ably. proved their case · against the Defendants ar~ their .prayer for ·nullification ·of the mortgage . , . . . . . created over the suit premise c1nd surrender of the residential· permit. I am also of the view that,· the plaintiff deserves to be awarded a general damages .· to cover for the time they have spent in attending to court for over 5 years, . the apprehension• of ·1osing their premi~e~ . . coupled with . th~ in~bility to put . . the premise under use. as its documentations· . . have since· 2014 remained ·- . . . 8 . JLMasabo ·. ~- . under the custody of the 1st Defendant. To this, I will award Tshs 30,000,000/= Accordingly, I enter judgment for the Plaintiff and subsequently make the following orders: (i) The mortgage created over the premised suit is declared a nullity (H) The 1st Defendant is hereby ordered to surrender the original residence licenses of the suit premises to the Plaintiffs and is barring from entering possession, evicting, interfering or tempering in any other way with the ownership/use of the suit premise (iii) and a general damage at a tune of Tshs 30,000,000/= (iv) Costs on the Defendant DATED at DAR ES SALAAM this 17th day of March 2019. r8 J.L. MASABO JUDGE Ruling delivered in open court today 17th day of March 2020 in the presence of Mr. Brian Magoma for the Plaintiffs and Mr. Bernard Maguha Representing Mr. Mallya for the Defendant. J.L. MASABO JUDGE 9 JLMasabo