msamanga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) ATDAR ES SALAAM LAND CASE NO. 73 OF 2022 BERNADETTE JOSEPHINE MSAMANGA (Administratix of the estate of the late GERNARD IDD MSAMANGA).......... ..............PLAINTIFF VERSUS DAVID MTIMBI MWAKA... ..1^^ DEFENDANT ESOSHI TRADING COMPANY LIMITED...............2'^'' DEFENDANT NMB BANK LIMITED..^........... 3^ DEFENDANT J U DG M E NT Date ofLast Order: 20. 09.2023 Date ofJudgment: 23.10.2023 T. N. MWENEGOHA,J. At the centre of this dispute, is a mortgaged property, held by the 3'"^. defendant, located at Plot No. 132, Block E, Tegeta within Kinondoni Municipality, Dar es Salaam Region, with a Certificate of Title No. 43922. The plaintiff has claimed that, there is Mortgage Agreement, existing between the 2"^ and 3'"'^ defendants without the owner's consent. That, the PT defendant, having the custody of the Certificate of Title for the property described above, fraudulently placed the same as security for the said Agreement between the 2"^ and 3'"^ defendants. Again$t this background, the plaintiff sued the three defendants jointly, claiming among others for a discharge of the mortgage in respect of the said property and the Certificate of Title to be returned to the jDlaintiff. AH defendants denied the claims against them. The 2"^ defendant insisted in her Written Statement of Defense that, the plaintiff's late husband, one Gerald Idd Msamanga was fully aware of the mortgage transaction and he consented to it by allowing his landed property to be used as security for the loan in question. Further, that he is the one who signed all the required documents for the mortgage at his office, located at Muhimbili Health and Allied Sciences University. The 3^^ defendant in her Written Statement of Defense, insisted that, the 2"^ defendant took a loan, to the tune of 300,000,000/=, under the guarantee of the late Gerald Idd Msamanga, who placed the disputed property as security for the loan. ." In hearing of the case, the following issues for determination were agreed 1. Whether the l®Vand 2"'' defendants jointly and severally fraudulently used Plot No. 132, Block E, Tegeta within Kinondoni Municipality, Dar es Salaam Region, with a Certificate of Title No. 43922, to secure loan in favour of the 2"^ defendant; 2. What reliefs are the parties entitled to. The plaintiff's case opened with the testimony of PWl, Bernadette Josephine Msamanga. She stated that, the late Gerald Idd Msamanga was her husband and she is the Adminstratjx of his estate. She tendered the Letters of Administration, which were adniitted as Exhibit PI. She insisted that, she needs the Certificate of Title for the suit property of her late husband to be returned to her, from the 3'^'' defendant. She informed the Court that she was not aware of the whereabouts of her Certificate of Title and the same came to light when she conducted a search through the Ministry of Land and Housing and Human Settlement Development [ Ministry of Lands] That, the search results revealed that the said Certificate of Titie is at NMB Bank. She tendered the search report and was admitted as Exhibit P2. It was her testimony that, she made follow-up at NMB Headquarters and spoke to the bank officers who told her that, the property in dispute was used to secure a loan from the bank. She was shown a Mortgage Deed and a spousal consent signed by her. That, the documents appeared to have her thumbprint and her signature and names. PWl insisted that, ail of the particulars appearing of the said documents were forged, as she never consented to any mortgage. That, even the Advocate who attested the documents is not known to her. She tendered: the Spouse Consent and was admitted as Exhibit P3. PWl went on to state that, even the names appearing on Exhibit P3 are not her current used names, as she used them 40 years ago, before she was married. That,; for now she is called Bernadette Josephine Msamanga and not Bernadette Kamoga as shown in the bank produced identity card. Exhibit P4. PWT went on to say that, her signature was also forged as it is different from her real one. That, it is why she believes the documents were forged. That, there was also a picture and names of her late husband on the Mortgage Deed. That, the Mortgage Deed reads as between Idd Gerald Msamanga and the NMB Bank, the same was admitted as Exhibit P5 and Land Form No. 41 as P6. PWl insisted further that, all these document were forged. The signatures on the Deed are not of her late husband as they are different from other documents including his identity card and passport [Exhibit P7 collectively]. When cross-examined by Advocate for the defendant, PWl insisted that, her husband died in January. That, the agreement was ydid/ therefore she should be given the Certificate of Title. That, the said Title was with the defendants and she did not know how it was taken from the said office to the 3'"^ defendant. That, the said Title was given to her young brother David Mwaka for him to secure a loan to the tune of 80 million at Amana Bank and not at NMB Bank. The said loan was issued to Mr. Mwaka and was repaid. However, the said Title is no longer at Amana Bank. That, for now, the Title for the property in dispute is at NMB Bahk^ That, Mr. Mwaka was given the said Title for many years and had refused to return it. That was the reason behind the search at the Land office. That, it is the same Mr. Mwaka who surrendered the Title to NMB and now he is not cooperating with PWl owing to the misunderstanding existing between them. When cross-examined further by Advocate Hamza for the defendant, PWl maintained that, she was told by NMB Bank that, the 1^*^ defendant was the one who gave them the Title Deed for the suit property, that's why she filed this suit. That, Tdd Gerald Msamanga and Gerald M Msamanga are one and the same person. That, Bernadette Kapoka is not her name. That, before she was married her name was Bernadette Josephine Kapoka. That, she did not sign in the Spouse Consent. Her signature is in the verification clause of the plaint which is different. That,: she does not have a forensic report to prove that the signatures were forged. That, her late husband did not sign the Mortgage Deed as he knew her names very well, he cannot mistake her name. bh re-examination, PWl insisted that, the Tittle Deed in question was with David Mwaka. That, he was given by them for securing a loan at Amana Bank. He got 80 million and PWl and her husband were ok with that. That, in Exhibit P6, the name of her husband has been written-as Idd Gerald Msamanga while In Exhibit P7 it is written Gerald Idd Msamanga with both documents containing a photograph of her late husband. That, before she was married, her name was Bernadette Josephine Kapoka. This marked the end of the plaintiff's case. The and 2"'^ defendants abovenamed, did not appear when this case was called for hearing, therefore, the case was heard exparte against them. The defense case was led by DWl, Jesca Macharia, a Relationship Manager of the 3''^ defendant. She stated that, her duties include the collection of non-performing loans. That, Esoshi Go. Ltd is their client/who took an overdraft facility in 2017, to the tune of 300 million Tanzania Shillings. She tendered the Offer Letter and a Mortgage Deed and were admitted as Exhibit D1 collectively. It was her testimony that, the siiit property was placed as security for the said loan. That, Idd Gerald Msamanga was the guarantor who placed his house as security. The loan was supposed to be paid within 1 year. She added that there is also a spouse consent form, [Exhibit D2]. That, thd said consent came from the plaintiff herself, and there is her thumbprint. That, todate, the bank has never received any complaint, be Civil or Criminal, on the legality of the documents in question. That, the loan: remains unpaid to date and the bank has already issued a Demand Notice to the guarantor for the default payment of the loan,[Exhibit D3]. She further claimed that, there is a letter from the Esoshi Directors admitting to have taken the loan from the bank, as seen in [Exhibit D4]. she informed the Court that, the outstanding balance for the loan so far is 375 million Shilings. When cross-examined by Advocate Hussein Kitta Miinga, DWl insisted that, there is a signature of Idd Msamanga on the Deed but she is not an expert on signature identification as there is a special unit on that. She also declares not to know the facds of the guarantor and the spouse: That, she became aware of the loan when it was referred to her after the borrowers defaulted. She also declared that the spouse's name is Benadette Kapoka, married to Idd Msamanga as per form No. 41. That, DWl was not present when the documents were signed (Deed and the Spouse Consent). That, the Demand Notice is issued to all, the borrower and guarantor and that the Directors were not given the Demand Notice. On re-examination, DWl stated that, the Bank recognises the Spouse Consent to be valid. That, her duties is to recover the loans upon being given the information that the client has failed to pay the loan. That was all from the defense side and the parties got the chance to file their dosing arguments, through their respective Advocates. Mr. Miinga for the plaintiff, provided in his submisdons that, the case is about a dishonest borrower who colluded with dishonest bank officers to mortgage a property, belonging to a third party without the latdr's knowledge. For such, forged signatures were used in an attefnpt to suggest that, the property owner had wiliingiy mortgaged his property and his spouse has consented to it. The plaintiff in her plaint specifically pleaded the existence of fraud in the mortgage transaction in question as stated in Omary Yusuph versus Rahma Ahmed Abdul Kadir(1987) i TLR169. He stated that, through all her evidence, PWl managed to prove the existence of fraud in the transaction. That, PWl tendered Exhibits P5 and P6 and when the signatures were compared with that of P7, they were materially different. For this reason, under Section 75(1) of the Evidence Act, Cap 6, R. E. 2022, this Court is duty bound to see that, the signatures are forged. That, when Exhibit P5/D1 is compared with the signatures on Exhibit P4 and P7, it will be seen clearly that they are different. For this there is no need to call a forensic expert to distinguish: the same under these circumstances, as stated in D.P.P versus Shida Manyama@Se[eman Mabuba, Criminal Appeal No. 285 of 2012, Court of Appeal of Tanzania at Mwanza,(unreported). Mr. Mlinga, went on to argue that, the evidence of DWl, as a recovery officer supports the plaintiff's case. She admitted to have never seen the deceased nor the plaintiff, executing Exhibits P3, P5 and P6. She only came to know about the transaction after the 2"^ defendant had defaulted. It appeared clearly that, DWl did know the centre of the matter, which is fraud in the creation of the mortgage in question. It was his argument therefore, that it is evident that the plaintiff has: managed to prove her case on balance of probability and she is entitled to the reliefs claimed, including the general damages claimed, as stated in Alfred Fund! versus Geled Mango, Director Sandhru Coach Limited and Phoenix of Tanzania Assurance(T)LTD, Civil Appeal No. 49 of 2017, Court of Appeal of Tanzania. On the other hand, Mr. Maliki Khatib Hamza, for the defendant,; maintained that, this case was not proved as required under Section 110(1)and (2) of the Evidence Act, Cap 6 R. E. 2022. He insisted that, the plaintiff is not a lawful owner of the suit property and further that, she has no cause of action against the defendants. As per Exhibit P2, a search report, that shows, the disputed property belongs to Idd Geraid Msamanga. That, Exhibits P4 and P7, tendered by the plaintiff (Voter's Identity Card and a Passport) cannot be used as a conclusive proof to show that, Idd Geraid Msamanga and the late Gerald Idd Msamanga are one and the same person. He referred to a similar position was taken in the case of Farsy A. Msuya versus Jennifer Mkapesa Chuwa, Land Case No. 11 of 2020, High Court of Tanzania at Dar es Salaam (un reported). He claimed that, throughout her testimony, the plaintiff(PWl) was suing and giving testimony on her own capacity as a spouse instead as ah Adminstratix of the estate of her late husband. Therefore, she is bduhd by her pleadings. Hence, she failed to give evidence in the capacity of the Adminstratix. That, above all, PWl claimed to be married to the late Gerald Idd Msamanga, but did not give:any evidence to prove that, the said marriage exists as stated in Sofia Omari Said versus Bakari Abdallah Chikuyu, PC Civil Appeal No.35 of 2020, High Court of Tanzania at Mtwara(unrepoited). He further contented that, the property in dispute was not a matrimonial home and PWl failed to prove that, as she said, throughout their lives, she and her late husband lived at Mwenge. That,further, there is no proof of forgery fraud in execution of the docunients for effecting the Mortgage as claimed by PWl in her testimony. He argued that, forgery is a serious issue and it cannot be proved by naked eyes, merely by looking at Exhibits Dl, P4, P5, P6, and P7. To cement his position, the 3'''^ defendant's counsel, referred the case of Omary Yusuph versus Rahma Abdulkadir(19i87) TLR 169. He insisted that, the 1^ issue was not proved by the plaintiff. hence, she is entitled to no reliefs. That, the Mortgage was legal and the 3^^ defendant is entitled to recover the sums advanced to the borrower. That, the 3^^ defendant being a Financial Institution, should be protected for her operations to continue and her business to prosper, as stated in Zak Import & Export Company Limited versus Crown Finance & Leasing Ltd, Civil Case No. 27 of 2000, High Court of Tanzania at Dar es Salaam (unreported). Having heard the testimonies of the witnesses, their Exhibits, along with their final submissions for and against this case, the time has come to see whether the evidences of the parties have answered the agreed issues for determination. However, before I venture into the discussions of the agreed issues, it is vital that I address a concern that was raised by Mr. Maliki Khatib Hamza, counsel for the defendant. He insisted that, the plaintiff has no,cause of action against the defendants/ owing to the fact that, she is not a lawful owner of the suit property. It was his claim that the suit property belongs to Idd Gerald Msamanga and that, there is no conclusive proof to show that, Idd Gerald Msamanga and the late Gerald Idd Msamanga are one and the same person. In my opinion, this contention is unfounded. There is no dispute that, the two names belong to the same person. The plaintiff has tendered Exhibit P6 which is similar to Exhibit D2 a Mortgage of Right of Occupancy^ (land Form No. 41), tendered by the defence. This document contains a photograph of the late Idd Gerald Msamanga. PWl identified the ,said photograph to be of her husband, who she referred as Gerald Idd Msamanga. This alone proves that, Idd Gerald Msamanga and Gerald Idd Msamanga who appears on the said report as owner of the suit property, is one and the same thing. Secondly, in the Written Statement of Defense by the defendant, she appears to be aware that, Gerald Idd Msamanga is now deceased, as she doubted if the plaintiff was legally appointed as the Adminstratix. This is another evidence proving that, the defendant knew that, Gerald Idd Msamanga and Idd Gerald Msamanga are one and the same person and he is late husband of the plaintiff. For these reasons, the plaintiff being the wife and Adminstratix of the estate of her late husband, she has interests in the suit property. Therefore, the concern is devoid of merits. Back to the issue, on whether the and 2"^ defendants jointly and severally fraudulently used Plot No. 132, Block E, Tegeta within Kinpndoni Municipality and Dar es Salaam Region, with a Certificate of Title No. 43922, in favour of the 2"^ defendant. In her testimony, PWl, Bernadette Josephine Msamanga insisted that, her late husband never mortgaged the suit property. The mortgage in question was fraudulently created between the defendants themselves, owing to the fact that, the 1^ defendant-had the custody of the Certificate of Title of the suit property. DWl, Jesca Macharia, for the defence, insisted that, the mortgage was legally created as there was no fraud associated with its creation. The position given by PWl and DWl in their testimonies as far as the legality of the mortgage is concerned, was reiterated in the closing arguments by their respective counsels. Mr. Mlinga, in strengthening the plaintiff's case maintained that, the plaintiff's testimony and evidence thereto has managed to prove the 10 existence of fraud in the creation of the mortgage in question. He insisted that/ by comparing the signatures in Exhibits P5, P6 and that of P7, the Court will agree with the plaintiff that it is evident/even upon the use of naked eyes that the mortgage was fraudulently created. He referred the Court to Sections 75(1) of the Evidence Act, Cap 6, R.E 2022/and the D.P.P versus Shida Manyama@ Seleman Mabuba,(supra). The advocate for the third defendant, Mr. Hamza insisted that, we need strict proof to establish fraud in the mortgage transaction between the 3'"'^ defendant and the late Gerald Idd Msamanga. That, the Court cannot; discover fraud by naked eyes, only through compering signatures on the Exhibits tendered. Certainly, I agree with Mr. Hamza on this fact. As a matter of course, we; heed an expert in signature identification, to help this Court on resdiying this issue. However, there is an exception to the general rule. As arguecl by Mr. Mlinga, the provisions of Section 75(1) of the Evidence Act, Cap 6, R. E. 2022, gives the Court a power to rule on fraud, by compering signatures. For quick reference, I will reproduce it as here under; - order to ascertain whethera signature, writing orsea! is that of the person by whom it purports to have been written or made, any signature, writing or seai, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared with the one which is to be proved, although that signature, writing or seai has not been produced or proved for any other purpose." 11 The same position was emphasized in a number of authorities, ineluding the case of D.P.P versus Shida Manyama@ Seleman Mabuba, (Supra). In Thabitha Muhondwa vs/Mwango Ramadhani Maindo and Another, Civil Appeal No. 28 of 2012, Court of Appeal of Tanzania (unreported), where it was observed that;- "It is dear from that provision that some of the methods of proving a signature is by comparing signature of a person with his other signature. The other methods are under ss 47 and 49 of the same Act." Having cited the authorities above, I wili proceed to state what I have seen, after matching the purported signatures of the late Gerald Idd Msamanga, contained in Exhibits P5 and bl (Mortgage Deed) and P6 and D2 (Mortgage of Right of Occupancy, Form No. 41), with the signatures of the same person available on Exhibit P7 collectively (NMB ATM Card and a Passport of the late Gerald Idd Msamanga). Undeniably, the signatures in the purported mortgage dpcuments Exhibits P5 and Dl(Mortgage Deed) and P6 and D2(Mprtgage of Right of Occupancy, Forrn No. 41), do not at all match with the signatures, given by the same person, in Exhibit P7 collectively (NMB ATM Card and a Passport of the late Gerald Idd Msamanga). Truth be told, the signatures appearing on Exhibits P5 and D1 (Mortgage Deed) and P6 and D2 (Mortgage of Right of Occupancy, Form No. 41) do not belong to the late Gerald Idd Msamanga. The Defendants had opportunity to prove on this issue, yet they did not. This Court is forced to believe then that the signatures were forged. That is to say,the mortgage agreement between the 3'^ defendant and the late Gerald Idd Msamanga or Idd Gerald Msamanga as it reads 12 ■ ■ on the mortgage documents, was fraudulently entered. Therefore, the sd^mQ Void ab Initio. In addition to that, l also compared the signatures of the plaintiff herein: above, who is said to have consented in the mortgage in question as seen in Exhibits P3 and D2, with her signatures in the plaint. Again, I found the signatures not matching. This Court is forced to believe then that, it is true, as claimed by PWl in her testimony that, she was not aware of the existence of mortgage and she never consented to it. That is because, the same never existed. It was procured by fraud. Even her names are different. In the so-called Spouse Consent document, the plaintiff was referred as Bernadette Kapoka, but she stated her official name to be Benadette J. Msamanga as seen in her voter's identity card (Exhibit P4). In her testimony, PWl insisted that, the name Kapoka seized to use the moment she got married to her deceasied husband. Therefore, it was no longer her name when the mortgage in question was being created, . Furthermore, all these mortgage documents, P2, P5, P6, D1 and D2 were attested before a Commissioner for Oaths, one Joyce Kabula. However, in the jurat of attestation, the said Commissioner for Oaths, did not state if she knew the Mortgagor and; his wife, personally or the same were identified to her by someone else. Since there was a dispute from the plaintiff(PWl), that she never signed nor appeared before any lawyer for the documents in question, the defendants, particularly the S'"" defendant was duty bound to bring Advocate Jocye Kabula to testify in this Court over the matter in dispute. She could have proved to the satisfaction of this Court on whether, the plaintiff or her late husband appeared before her on the material dates. Fortunately, she is the same person who prepared the Written Statement of Defense Tor the 2"^ defendant. Therefore, the defendants knew her whereabouts and could have procured her as their witness on the fact in issue. Further, she was the ideal person who was supposed to tender these documents as she attested them. Under Section 70 of the Evidence. Act, Cap 6 R. E. 2022, it is provided that;- "Ifa documentis required bylaw to be attested, itshall not. be used as evidence until one attesting witness has been calledfor the purpose ofproving its execution, ifthere isan attesting witness aiive and, subject to the process of the court, capable ofgiving evidence/f In Asia Rashid Mohamed v. Mgeni Seif, Civil Appeal No. 128 pf 2011, Court of Appeal of Tanzania/ at Mwanza (unreported), it was held that: "It is weii settled iaw in ourjurisdiction that the doctrine of estoppel cannot be invoked to defeat the performance ofa statutory duty....Since the other evidence depended on proper proofofthe execution ofExhibit 'PI'once the later piece of evidence is discounted, the appellant's daim of ownership over the suit house is ieft with no ieg". Therefore, the defendants'failure to call Advocate Joyce Kabula to testify in this case, leaves this Court with no option, other than drawing an i adverse inference that, if she was called, she would have given a testimony against them. Hence, Exhibits D1 and D2, tendered by the defendant and also, copies of the same, received as Exhibits P3, P5 and P6 from the plaintiff, remain to be of less value in proving the issue at hand against the plaintiff. The oral evidence of the PWl, along with her . 14 documentary evidence as to the disputed signatures, (Exhibit P4 and P7 collectively) is found to be more credible than that of the 3"^^ defendant which leaves a lot of question unanswered, see Sikudhani Abdallah Mshana and Another versus Bank of Africa and 2 Others, Land Case No. 5 of 2018, High Court of Tanzania at Arusha Cunreported). Conclusively, therefore on the issues, I find the same to have been affirmatively answered. The and 2"^ defendants jointly and severally, fraudulently used Plot No. 132, Block E, Tegeta within Kinondoni Municipality and Dar es Salaam Region, with a Certificate of Title No. ^ 43922, to secure loan in favour of the 2"^ defendant. In that matter, the landed property in dispute, was thus illegally mortgaged to the 3'^'' defendant by the 1^ and 2"^ defendants. As to what reliefs are the parties entitled; in her plaint, the plaintiff prayed among others, for general damages. In the case of Theodelina Alphaxad, a minor,s/t Next of Friend vs. The Medical In-Charge Nkinga Hospital [1992]TLK 235, it was held that: "General damages for tort or even breach of contract, are such damages, which so far as money can compensate, will give the injured party, reparation for the wrongful act." In the case at hand, the plaintiff being a beneficiary of the estate of her deceased husband's estate, was denied enjoyments of the property in dispute, owing to the defendants acts of holding the same illegally.^5he is obviously entitled to be compensated for the sufferings she endured in fighting for what is rightfully hers. This position was given in Mzee Abdallah @ Abdallah Mzee vs. Joachim Mzee and Another, Civjl 15 Case No. 364 of 1998, High Court of Tanzania, (unrepoited) where the that: "Iagree that the Plaintiffsuffered damagesin that he was deprived of the use of his Tide Deed and was generally inconvenienced and embarrassed." The defendants on the other hand, did not give any corporation to the plaintiff when she brought the matter to their attention. Therefore, they are liable for and deserve to pay damages to the plaintiff herein above. In the eyent, I find the suit to have been proved on balance of probabilities, in favour of the plaintiff. Having so said, I thus order as follows^ ; 1. The mortgage in favour of the Defendant was fraudulently obtained, so it \s voidab initio. 2. The 3'^^ Defendant should hand over the Title Deed to the Plaintiff free of encumbrances effective immediately. 3. The Defendants jointly and severally to pay the plaintiff general damages to the tune of 40,000,000/= which i^ compensation for withholding the right to use and enjoy the suit property commercially. 4. Defendants to pay the costs of the suit. Right of Appeal Explained. WENEGOHA o JUDGE r-H 23/10/2023 Dryi|^