christina john konta vs abbyushony anosisye kibona 3 others 2023 tzhclandd 16829 30 august 2023

IN THE HIGH COURT OF TANZANIA (UNO DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 230 OF 2023 (Originating from Land Application No. 213 of 2017, Temeke District Land and Housing Tribunal) CHRISTINA JOHN KONTA APPELLANT VERSUS ABBYUSHONY ANOSISYE KIBONA isr RESPONDENT THESPHORY JULIUS MASANJA RESPONDENT ACCESS BANK TANZANIA LTD 3RD RESPONDENT NOLIC INVESTMENT CO. LTD 4™ RESPONDENT JUDGMENT 28«ito SCh August, 2023 E.B. LUVANDA,J The Appellant above raised one ground of appeal to challenge the decision of the Tribunal which ruied that the Appeliant had consented for their house to be used as a coilaterai for the ioan secured by the First Respondent from the Third Respondent,the Second Respondent(husband of the Appeiiant being a guarantor. The Appellant grounded that; the trial Tribunal erred in law and fact by misconceived the evidence and arrived at unjust decision wherein it conciuded that the Appeiiant had consented 1 v to using her matrimonial. The appellant whose submission was drawn gratis MS. Lightness Raimos learned Advocate for Tanzania Women Lawyers Association (TAWLA), submitted that the Tribunal wrongly concluded that the Appellant had provided consent for her matrimonial home to be used as collateral. She cited the case of Fanuel Zakayo vs. Aneth Raphael & CRDB Bank PLC, Civil Appeal No. 9/2020. She submitted that the awareness of the Appellant of the intention of the Second Respondent to pledge their house as collateral for the loan was inaccurate. She cited section 59 of the Law of Marriage Act, Cap 29 R. E. 29019; Hadija Issa Arerary vs. Tanzania Postal Bank, Civil Appeal No. 135/2017. The learned counsel submitted that the Appellant did not affix her signature to the purported signature, argued it was forged. In reply, Mr. Sylvester Mulokozi learned Counsel for Third Respondent submitted that the Appellant claims that she did not consent for the matrimonial property to be used as security for the loan, is not true, arguing that during the hearing of the suit, the Third Respondent tendered the proof of consent that was sworn and signed by the Appellant, Exhibit D2 (sic, Dl). On rejoinder, the Appellant submitted that exhibit Dl was faisified because was not attested. Generally speaking, a complaint by the Appellants Is unmerited. At the trial a consent was tendered and admitted as Exhibit D1 showing that the Appellant had assented for the house to be used as security. Indeed, Exhibit D1 was attested by Advocate Kida Mwangesi including rubber stamp. A mere fact that the Appellant said when she consented she did not understand, cannot be a ground for invalidating instrument for consent in exhibit Dl. The question of forgery for a signature reflected in exhibit D1 was not pleaded in the application (pleading) at the trial Tribunal, neither put in evidence by the Appellant nor cross examined on it. When the Appellant was asked questions for clarification from the wise assessor (R. Masunu) the Appellant was recorded to had said that she did not fill any form nor signed. But thereafter the Appellant stated that at the time she was given a letter by the Bank, it had full description of their house, her photograph and signature. However the Appellant did not say if at all the alleged signature was forged. It is to be noted that in the application (plaint) at paragraph 6(vi) the Appellant pleaded that she was not involved or notified nor consented. This fact was invariably pleaded by the Appellant after being showed the alleged letters by the Bank. But the Appellant did not plead forgery. In Fanuel Zakayo (supra) the Court held. "It is apparent that the spouse consent in the mortgaging ofthe matriaihome was notiegaiiyprocured, it wasgiven by the wrong spouse which makes it iiiegar I have reproduced the above phrase to indicate how is distinguishable from the facts of this case. This is because therein, a consent was invalidated because it was given by the wrong spouse, while the situation here, the Appellant purport that when she consented she did not understand. Therefore it is taken that in our case there is a valid consent. Indeed exhibit D1 is written in Swahili. Therefore a plea by the Appellant that she did not understand it is content, is an after thought which cannot be entertained. The decision of the Tribunal is upheld. The appe with cost^ 0. s s U I UJ (S E.B/ LUVANDA V- dt OUDGE DIVVS^ Judgment delivered in the presence of the Appellant in person and in the absence of the Respondents. The Appellant is a layperson is advised to lodge a notice of appeal and application foiNeave to appeal within 30 days. s e.b./lovanda s /JUDGE V- A6/08/2023 b 4