final judgment DAUDI BASHE Tanzliii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI LAND CASE NO.13 OF 2022 DAUDI BASHE HASSAN (As the administrator of the estate of the late Asha Mohamed Laban) ……………………..……….PLAINTIFF VERSUS MICROFOOD LIMITED.…………………………………….…………1ST DEFENDANT T.I.B. DEVELOPMENT BANK LTD………………..………………….2ND DEFENDANT THE ATTORNEY GENERAL..………………………………………….3RD DEFENDANT JUDGMENT 21st August & 4th October, 2024. A.P. KILIMI, J. The plaintiff herein Daudi Bashe Hassan (Administrator of the estate of the late Asha Mohamed Laban) is praying against the defendants herein jointly and severally for the following orders; a) Declaration that the suit property is the property of the late Asha Mohamed Laban. b) Declaration that the purported mortgage of the suit property is null and void ab initio. c) An order compelling the 2nd defendant to discharge the purported mortgage unconditionally release and hand over the title of the suit property to the plaintiff. d) Declaration that the 1st and 2nd defendants are trespassers to the suit property. e) Permanent restraining order against the 1st and 2nd defendants from enter fearing or dealing with the suit property in any manner whatsoever. f) General damages for pain and mental anguish as will be assessed by court. g) Costs of the suit 1 h) Any other relief(s) that this Honorable court may deem fit and just to grant. As per plaint filed, the plaintiff claims against the defendants jointly and severally over the ownership of the plot situated at Pasua area within Moshi municipality with plot No. 184 Block B section 1 Lot No. 109292 with title No. 12989, hereinafter “suit property”. He stated that the original owner of the suit property is her mother one Asha Mohammed Laban who passed away on 5th day of June 2011. He attached the death certificate and copies of letters of his appointment as administrator and labeled as ‘DBH 1’. The plaintiff further avers at page 7 of the plaint that the deceased acquired the ownership of the suit land since 1997 where she developed by constructing a residential house and remained as a rightful owner till her untimely demise in 2011. He further avers that on diverse dates in 2018 while in the due course of administering the deceased estate, he come to learn that the 1st defendant had trespassed into the suit property by using the title deed No. 12989 (a suit property) as a security for loan he secured with the 2nd defendant without prior notice or authorization from the owner of the suit land. 2 At paragraph 9 of the plaint, the plaintiff stated that it was impossible for the owner to authorize the said suit property on the said dates as she was already a deceased since 5th June 2011. For the 2nd defendant, the plaintiff stated that he displayed negligence in handling of the mortgage transactions by failing to investigate the legality of the title and the borrower. He further stated that the 2nd defendant had shown interest to dispose the said suit property as per notice of sale “annexure DBH 2”. Upon being served with a plaint, the 2nd and 3rd defendants through their jointly filed written statement of defence “WSD” strongly disputed the plaintiff claims and averred that the late Asha Mohammed Liban was the owner of the suit land but she was the 1st defendant guarantor to the credit facility agreement entered between 1st and 2nd defendants on 13th January 2015 as per TIB-1 annexure. 2nd defendant further replied that one Asha Mohamed Liban stated as per her affidavit that the suit property was not a matrimonial asset. He further replied that he conducted due diligence and found no encumbrances to the suit property and proceeded to register as a mortgage. In this matter, the plaintiff was represented by Mr. Baraka Masawe learned advocate while the 2nd and 3rd defendants were represented by Ms. 3 Glorian Issangya, Senior State Attorney whereas the case was ordered to proceed in the absence of the 1st defendant after a normal service of summons and publication to make him available proved futile. Before the hearing parties agreed on the following issues; 1. whether the deceased was the lawful owner of the right of occupancy of mortgaged property 2. Whether the mortgaged issued by second defendant was legal. 3. Whether the parties acted honestly in the mortgage creation The plaintiff case was founded with two witnesses Daudi Bashe Hassan who testified as PW1 and Yusufu Ahmed who testified as PW2. Further, four exhibits were adduced in support of the plaintiff’s testimony, ‘exhibit P1’ a Letter of administration issued by Moshi Urban Primary Court in Probate 71/2015 dated 23/05/2018, ‘exhibit P2’ a Death Certificate of Asha Mohamed Liban with Reference Number A00384882, ‘exhibit P3’ an Order from the District Land and Housing Tribunal of Moshi at Moshi dated 23/11/2021 in Application No. 87 of 2021, and ‘exhibit P4’ a 90 days’ Notice with Ref. No. BEM/DN4/VOL.4/004 dated 1/6/2022. In their defence, the 2nd and 3rd defendants brought two witnesses, Lameck Mavipya who testified as DW1 and Emily Chipeta who testified as 4 DW2. They also tendered three exhibits ‘exhibit D1’ a credit facility agreement between TIB Development Bank and Micro-Food Limited dated 13th January, 2015, ‘exhibit D2’ an affidavit of Asha Mohamed Liban dated 22/1/2015, and ‘exhibit D3’ a Mortgage Deed and Personal guarantee indemnity signed by Asha Mohamed Liban dated 13th January, 2015. Starting with the first issue on whether the deceased was the lawful owner of the right of occupancy of mortgaged property. The plaintiff alleges that the suit in dispute, plot No 184 Block B with title No. 12989 located at Pasua area within Moshi Municipality belongs to his late mother Asha Mohammed Laban who bought the land and made developments and lived therein since 1997 up to her demise on 5th June 2011. His testimony is supported by the PW2 who stated that the deceased was his grandmother and that he lived and stayed with her since he was 10 years of age. The 2nd and 3rd defendants as per their jointly filed written WSD are not disputing that the late Asha Mohammed Laban was the owner of the suit property, they stated that she was the owner of the property that is why the bank believed her filed documents for the 3rd part mortgage. 5 It is trite law that to prove the ownership over the disputed land or property, the one with the certificate of occupancy is termed to have a good title over the disputed land. Considering the circumstance of the suit at hand and having considered the testimony of the parties, it is undisputed fact that the certificate title No. 12989 LR Moshi, Plot No. 184, Block ‘B’ Section ‘V’ Land office No. 109292 at Pasua area within Moshi Municipality are in the names of the late one Asha Mohammed Laban, the plaintiff’s mother. This is because even though the plaintiff has not tendered the certificate title of occupancy, in his plaint he had attached the notice of sale of the disputed property ‘annexure DBH2’ which reveals and describes the owner to be the plaintiff’s mother. Further the 2nd and 3rd defendants are not disputing that the disputed property belongs to the deceased. In view thereof, I am of settled view in respect to the said suit property the lawful owner is the late Asha Mohammed Laban. Thus, the first issue is answered in affirmative. In respect to the second issue on whether the mortgaged issued by second defendant was legal, I have noted that this issue is intertwined with ground number three that is whether the parties acted honestly in the mortgage creation, this is because the alleged mortgage cannot be legal if 6 was not created honestly, thus, these two grounds will be determined together. To prove the same, I am guided by the principle is that in civil cases, the proof is on balance of probabilities, and the one who alleges must prove those facts to exist. See sections 110(1) (2) and section 112 of the Evidence Act [Cap 6 R.E 2022] which provides that; “110 (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 112. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person.” See also the decision of Paulina Samson Ndawavya vs. Theresia Thomas Madaha, Civil Appeal No. 53 of 2017 (unreported), where the Court held that:- “...It is equally elementary that since the dispute was in a civil case, the standard of 7 proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other...” The import of the above authority principally, requires the plaintiff to prove that the mortgage issued by the 2nd defendant was illegal and that there was no honest in creation of that mortgage. The plaintiff Daudi Hassan Bashe (PW1) alleges that the mortgage between 2nd defendant and his deceased mother was illegal, and that the 2nd defendant illegally mortgaged the said title from 1st defendant without taking into consideration on whether it had any encumbrances. He stated that his mother died on 5th June 2011 while the said mortgage was entered in 2015, thus the mortgage was illegally obtained as it lacked his mother’s authorization or consent since she was already a deceased at a time the alleged agreement was entered. PW1 tendered a death certificate ‘exhibit P2’ in proving and showing that his mother died in the year 2011. His testimony was supported by PW2 who stated that his grandmother died in the year 2011. PW1 prayed for this court to order the release of the 8 certificate of title of the deceased so that he may proceed in administration of his mother’s estate. Contesting on the second and third issue, the 2nd defendant argued that the mortgage issued to 1st defendant was legal as there were no any problems until when it reached the time for execution upon default of the 1st defendant to payback the mortgage. To prove that the mortgage was legal, defence brought a Bank officer one Lameck Mavipya (DW1) who testified that the 1st defendant after taking a loan from the 2nd defendant (exhibit D1) he defaulted, but among the securities he placed was the deceased estate which was surrendered by the deceased herself through her affidavit(Exh.D2). He further stated that the plaintiff’s mother also consented to be a personal guarantor of the 1st defendant as shown in (Exh. D3). Further the defense brought a registration of birth and death officer from RITA one Emily Chipeta (DW2) who testified that the death certificate tendered (Exh.P2) with registration No. L4036/2011 was not in their registry records as it was none existing, he further stated that such kinds of death certificate starting with registration letter ‘L’ were to mean late 9 registration’ and are usually issued to register death occurred at home while exhibit P2 showed that the death occurred at Mawenzi hospital. He further stated that in the year 2011, all death certificates were computer generated and not issued by a type writer as indicated with exhibit P2. In determining the above two raised issues, I had to peruse on the tendered exhibits in this suit, and in summary in regard to issue number two and three is that on 13th January 2015 the 2nd defendant (banker) extended credit facility to the 1st defendant (the borrower) amounting Tshs. Two Hundred seventy-three million eight hundred ninety thousand (TZS 273,890,000.00) plus interest and other charges thereon. The facility had a long- and short-term loans. The long-term loan was Tanzania shillings One hundred Ninety- Three Million Eight Hundred Ninety Thousand (Tzs 193,890,000) and short- term loan Tanzania Shillings Eighty Million (TZS 80,000,000). The long- term loan was to expire after sixty-six (66) months including grace period while the short-term loan was to expire after twenty-two (22) months. As a security for that loan, the 1st defendant placed the plaintiff deceased estate (suit property) and the deceased filed her affidavit to surrender the suit 10 property to the 2nd defendant where as she placed herself as a personal guarantor to the 1st defendant. Upon 1st defendant default in paying the loan, the 2nd defendant started executing the loan agreement by attaching the plaintiff’s mother’s estate for sale, the plaintiff herein is arguing that the mortgage against his mother was not illegal as explained above. Having considered the testimony from both sides, to answer the two issues in my view the vexing question arises is whether the mortgage was legal. To start with the how the creation of Mortgage was, at paragraph 10 of his plaint, the plaintiff claims that the second defendant was negligent in handling mortgage transaction thus he was not diligently in its formation. In his testimony, he relied that the said guarantor who was her mother by that time was already dead. In such respect and per the issue raised I am enforced to check the legality of the said mortgage. DW1 a bank officer from the second defendant testified on how the said the said personal guarantee, was prepared by the bank, and gave Micro-Food Ltd the said documents to be signed by the guarantor, Asha Mohamed Laban who signed. The same was admitted as exhibit D2, he 11 further tendered exhibit D3 which is mortgage of the right of occupancy document. When cross examined by Mr. Baraka learned counsel for the plaintiff, DW1 said as follows; “I know Micro-Food Ltd, was at Moshi, personally I don’t know Asha Mohamed Liban, until we gave the loan, I did not know that she was dead, I don’t know if she died in 2011, we gave borrow er M icro-Food Ltd guarantee but it is done under the control of advocate, as a Banker I have a duty of care to the customer, it is the duty of our client to serve her w ith guarantee and affidavit ,we believe on affidavit because it signed by the advocate It is not my duty to prove about guarantee to our custom er w hen m aking guarantee, personally I exercised the duty of care, and I know I must notify commissioner for Land, in Mortgaged deed Commissioner could have not signed if there is no notification.” [ Emphasis added] 12 According to section 113 (3) of the Land Act, Cap.113 R.E 2019, the law requires that, powers to create mortgage be exercised subject to conditions and or limitations put in place by the law., therefore, that, for the 2nd Defendant to be secured by mortgage, there should be compliance with the law, the failure of which renders the mortgages unlawful. First, I have scanned the said documents tendered, as rightly asked by Mr. Baraka the application for approval of disposition which is made under section 39 of the Land Act Cap. 113 R.E. 2019 was not signed by the commissioner for land or authorized officer. This provision is couched in mandatory, thus failure to comply with its requirement renders negative compliance which is fatal. Second, the alleged affidavit (exhibit D2) which stated that suit property is not a matrimonial property was signed by the alleged guarantor on 22nd January 2015, whereas the document creating the mortgage of right of occupancy in respect to the suit property and personal guarantee was signed on 8th December 2014. This means that the said guarantor entered the above contract with the second respondent without being declared the status of the said suit property. As alluded above the power to 13 create a mortgage is exercisable subject to certain prohibitions or limitations set out by the law above. Therefore, in view of the above the second defendant did not exercise his due diligence to verify about the status of the said suit property when the said agreement was entered on by the said alleged guarantor on 8th December 2014 as envisaged by the law which was amended by mortgage of Matrimonial home Act no. 17 of 2008, which basically require the mortgagee must be responsible to take reasonable steps to verify whether the applicant for a mortgage has or does not have a spouse. (See section 114(2) of the Land Act). Therefore, it was not correct as PW1 said as quoted above, that it was not his duty know about the guarantor property, taking regard according to exhibit P3 it was an agreement to create a mortgage between the guarantor and the second defendant (the Bank) which was entered in the presence of the two without and in absence of the two. In my view under the circumstances the second defendant owes a duty in accordance with the law, which did not exercise diligently. Thus, in the premises I cannot ascertain that the said mortgage was legally created. 14 Nevertheless, I have scanned both exhibits D1 and D3 which are credit facility agreement and mortgage of right of occupancy agreement respectively, also the personal guarantee and indemnity attached in D3. Both are cancelled/altered on the year the said agreements were entered. However, no signature of the author was put thereto to authenticate on each the said cancellation/alteration done. In view thereof, it therefore my opinion even the date the said agreement was entered is uncertain. Thus, in the absence of procuring witnesses who witnessed the said agreement as in this issue were material witnesses to prove the same, I am settled by these documents remaining as they are, cannot prove that the said date of agreement which is disputed is the date of the agreement. Notwithstanding the above, the plaintiff Daudi Hussein Bashe (PW1) testified that his mother died before the year the said agreement to be a guarantor was entered which is 2015. The defence through DW2 from RITA contended that the death certificate exhibit. P2 tendered by plaintiff was nonexistence in their registry, and he added by the time exhibit P2 was issued all death certificates were computer generated and not issued manually as exhibit P2 indicated. 15 In view of the above allegation from the defence, I am of considered opinion, Defendants are venturing that the plaintiff has done fraud/forgery in submitting the wrong death certificate. Having formed the said opinion, let me look whether the pleading filed support the said allegation, I am saying this because it is a trite 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 or is at variance with the pleaded facts must be ignored. (See James Funke Ngwagilo vs Attorney General [2004] TLR 161. See also Lawrence Surumbu Tara vs The Hon. Attorney General and 2 Others, Civil Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building vs Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both unreported). At paragraph 6 of his plaint, Plaintiff avowed that the original owner of the suit property is her mother one Asha Mohammed Laban who passed away on 5th day of June 2011. He attached the death certificate and copies of letters of his appointment as administrator and labeled as ‘DBH 1’. And at paragraph 9 he averred that first defendant had no any right or authorization to use the said title deed as the owner of the said suit 16 property was already a deceased since 5th day of June, 2011. Thus, she could not authorize the use the suit property as a mortgage charge. In their joint WSD, the second and third defendant filed in this court and received on 12th May 2023, at paragraph 3 stated that deceased was the owner of the suit property and 1st Defendant’s guarantor, and the rest were strongly disputed. Also, in answering at paragraph 9 of the plaintiff above, these defendants responded at paragraph 4 of their WSD that during loan application, the guarantor executed the Guarantee Agreement and sworn affidavit to state that the said mortgaged and guaranteed was not Matrimonial property, thus attached copies of the said guarantee agreement and Affidavit. I have considered the above pleadings of both parties as above, there is no dispute the plaintiff from the outset was very clear in showing which evidence he was going to rely that the above transaction could have not been possible since his mother was dead at the alleged agreements dates , thus what he did during trial is to present a death certificate and one witness who confirmed so. Thus, in my view according to the cited law above, the plaintiff complied with principles of pleading stated above. 17 In respect to the joint respondents above, according to the pleading by the plaintiff, it was apparent they knew the point of rely by the appellant, thus in my view they were required to counter attack on the same pleading about the death of the alleged guarantor. According to their WSD they said nothing. By replying nothing about the said death on their WSD, I have thought how the plaintiff could have known whether defendants were planning to rely on the fact of their defence that Asha Mohammed Laban was not dead at the time she guarantee the suit property. In my view this prejudiced the plaintiff in his preparation to prove his case by being taken into surprise. I wish to support my point by the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (TANZLII) when the court referred its earlier decision of James Funke Gwagilo vs. Attorney General [2004] TLR 161 and stated at page 13 as follows; “The function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated another equally important principle of law that parties are bound by their own pleadings and that no 18 party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded.” Be that as it may, as alluded above the defendants’ witness DW1 testified showing that the said tendered death certificate is non-existing. This means he is alleging fraud or forgery by the plaintiff in respect to the said document. According to Black's Law Dictionary, 8th Edition at page 685 defines on the meaning of "fraud" that: “it is a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment or a misrepresentation made recklessly without belief in its truth to induce another to act." As stated above that the allegation of fraud by Defendants came up by the testimony of DW2, therefore has been brought later even without being pleaded in the second and third WSD. In any event, since there is nothing fraudulent in defending this suit as per WSD, the testimony of DW2 cannot be entertained at the said later stage. This is because in our 19 law it is very clear on how the pleadings should be when a party relies on fraud in Civil matter. Order VI Rule 4 of the Civil Procedure Code (Cap 33 R.E. 2019) provides that: " In all cases in which the party pleadings rely on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all others cases in which particulars may be necessary to substantiate any allegation, such particulars (With dates and items of necessary) shall be stated in the pleading". The import of the above law was interpreted by various court which used the statute in pari materia that where the party relies on fraud, that the fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of the pleadings, furthermore allegation of fraud must be strictly proved. Although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. (See Musoke vs Mayanja [1995-1998] 2 EA 205 and Ratilal Gordhanbhai Patel vs. Lalji Mkanji (1957) EA 314 at 316. 20 In our jurisdiction the court in City Coffee Ltd vs Registered Trustee of Ilolo Coffee Group (Civil Appeal No. 94 of 2018) [2019] TZCA 645 (TANZLII) cited with approval the case of Musoke vs Mayanja (supra) and had this to say at page 12; “it is clear that regarding allegations of fraud in civil cases, the particulars of fraud, being a very serious allegation, must be specifically pleaded and the burden of proof thereof, although not that which is required in criminal cases; of proving a case beyond reasonable doubt, it is heavier than a balance of probabilities generally applied in civil cases.” For the foregoing, since are the defendants above who brought the evidence of the said fraud, therefore owes the duty to prove the same, and in the premises above, I have failed to consider their defence in respect to the alleged fraud. Be that as it may, I have taken regard the tendered death certificate which was supported by the direct evidence of plaintiff a who testified that the alleged guarantor Asha Mohamed Laban died on 5th June 2011, the same was supported by another direct witness who is PW2. Moreover, I 21 have thought about the fact that, the plaintiff filed probate matter vide probate no. 71 of 2018 at the Moshi Urban Primary court, which is more than six years before the commencement of this matter, wherein on 23/05/2024 was granted letters of administration of the deceased alleged to be a guarantor on the year 2015. In conclusion thereof, I am of considered view, the evidence of the plaintiff is heavier than that of the defendants in this aspect, therefore their claim that the alleged guarantor was not dead at the said time of transaction crumbles forthwith. In the upshot and for the above reasons and observations, it is my finding that the Plaintiff has proved his case to that extent. In respect to the relief sought by the plaintiff, the first one is Declaration that the suit property is the property of the late Asha Mohamed Laban. As per answer of the first issue above which is answered in affirmative, this relief is granted as prayed. In regard to second and third relief sought by plaintiff which are Declaration that the purported mortgage of the suit property is null and void ab initio and an order compelling the 2nd defendant to discharge the purported mortgage unconditionally release and hand over the title of the 22 suit property to the plaintiff. As per reasons stated above which answer the second and third issue raised, these prayers are granted as prayed. In respect to the fourth prayer by the plaintiff to this court declare that the 1st and 2nd defendants are trespassers to the suit property. Since the above issues are answered in affirmative, then the fifth prayer sought suffice to accommodate this prayer, thus, I issue permanent restraining order against the 1st and 2nd defendants from enter fearing or dealing with the suit property. In the sixth relief, the plaintiff has claimed for general damage for pain and mental anguish, I have considered the circumstances of this matter, the plaintiff being the administrator of the deceased estate, this is his legal duty to prosecute or defend deceased properties. However, the said house is still in his domain and used for family benefits despite of being in said alleged mortgage. Therefore, in my view I think these circumstances does not attract any damage to be paid to the plaintiff and family. Thus, the same is not granted. 23 Lastly, given that the matter emanates from a probate dispute, I make no order as to costs. It is so ordered. DATED at MOSHI this 4th day of October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 4th day of October, 2024 in the presence of Mr. Baraka Masawe for the Plaintiff, also Plaintiff present whereas all Defendants absent. Sgd; A. P. KILIMI JUDGE 4/10/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI JUDGE 4/10/2024 24