JUDGMENT OF DOUGLAS MAGOMBOLA VS SOPHIA MWENDA

THE UNITED REPUBLIC OF TANZNIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 96 OF 2023 CASE REFERENCE NO. 20231102000538030 (Originating from Application No. 134 of 2023 in the District Land and Housing Tribunal for Mbeya) DOUGLAS AUGUSTINO MAGOMBOLA .........................................APPELLANT VERSUS SOPHIA ALPHONCE MWENDA .......................................... 1ST RESPONDENT SHUKRAN MWAKIBINGA ...................................................2ND RESPONDENT JUDGMENT 10th December 2024 & 6th March 2025 NONGWA, J. In the District Land and Housing Tribunal for Mbeya through Application No. 134 of 2022, the appellant Douglas Augustino Magombola sued the respondents over plot No. 1367 block “Y” located at Mwakibete area within the City and region of Mbeya (the disputed property). The facts in a nutshell are simple, through certificate of marriage which was admitted as exhibit P1, the appellant and the first respondent are husband and wife since 1991 after contracting a Christian marriage. It was alleged by the appellant that the disputed property was acquired 1 in 1994 by the two as gift from George Mbwana and later decided to registered it in the name of the first respondent to avoid family dispute upon his demise. That they developed the disputed property by building a house and since 2000 to 2020 was used as a matrimonial home. That the dispute emerged in 2021 when the first respondent disposed it to the second respondent without his consent. In support of the claim the appellant testified as PW1 and was supported by James Peter Magombola (PW2) who said the appellant told him had a house in Mbeya. He tendered certificate of marriage which was admitted as exhibit P1. In defence the second respondent disputed a claim alleging that it was registered in the name of the first respondent alone and conducted due diligence before he purchased. He testified as (DW1) and called James Peter Mapunda (DW2) who said the first respondent was her neighbour, Kamru Habibu Msonde (DW3) who testified on the sale agreement and transfer documents he prepared and Mpoki Mwalufunda (DW4) a land officer who said per land register entries, the disputed property was first registered in the name of the first respondent and in 2020 they effected transfer to the second respondent. The first 2 respondent did not file her written statement of defence or enter appearance. In its judgment the tribunal found that as the disputed property was registered in the names of the first respondent there was no need to seek consent of the appellant in disposing it thus, dismissed the application with costs. Aggrieved by the whole judgment, the appellant has filed memorandum of appeal on six grounds. One, that the trial tribunal erred in law when held that the land in dispute was not a matrimonial property. Two, that the trial tribunal erred in law and fact for failure to take into consideration the contribution made by appellant in developing the land in dispute as a matrimonial property. Three, that the trial tribunal erred in law and fact in holding that the sale transaction was proper as the consent of spouse was not required while the evidence was in contrary. Four, that the trial tribunal erred in law and fact for failure to properly analyze and evaluate evidence taking into account major contradictions on the side of respondent thus reaching unjust decision. Five, that the trial tribunal erred in law and fact in holding in favour of the 2nd respondent while the evidence by 2nd respondent fall short to the standard required by the law. Six, that the trial tribunal 3 erred in law and fact for failure to properly attend and address the issues in dispute in line with the cogent evidence adduced before it by the appellant. And the alternative ground was that the trial tribunal erred in law for failure to read and explain the pleadings to the respondent as required by law. When the appeal came up for hearing, the appellant was represented by Mr. Emmanuel Clarence, learned advocate whereas the respondent had the service of Mr. Baraka Mbwilo also learned advocate. The appeal was agreed to be argued by filing written submission. In his submission Mr. Emmanuel argued ground one to three and four to six together and the alternative ground separately. Submitting in first three grounds, counsel stated the appellant and first respondent had lived together since 1987 and in 1991 officiated their relationship by celebrating a Christian marriage. That the disputed property was acquired by joint efforts by constructing a residential house and have lived therein since 2000 adding that this aspect was not cross examined by the respondent. He submitted, the second respondent relies on exhibit D1 which was not read after its admission. He prayed the same be expunged from record. 4 Submitting on analysis and evaluation of evidence in the conjointly ground four to six, Mr. Emmanuel stated that the disputed property was acquired during subsistence of marriage and there was joint effort in developing it. He stated all exhibits were not read to parties after its admission into evidence, the omission he said was not curable and they be expunged. Counsel submitted if exhibits are expunged remain oral testimony which tilts in favour of the appellant. Further submission was that the second respondent did not conduct due diligence before he purchased the disputed property as it was not pleaded in his written statement of defence. That per evidence of DW2 the second respondent asked for ten cell leader after he had purchased. He added that no official search was tendered in evidence to prove there was due diligence. Adverting to alternative ground on contravention of regulation 12 of the Land Dispute Courts (the District Land and Housing Tribunal) Regulation G.N. No. 174 of 2003 (the Regulation), Mr. Emmanuel stated that regulation requires the chairman before commencement of hearing to read and explain the application to the respondent. That DW1 when cross - examined said did not understand what was contained in paragraph 6(ii)(a-c) of the amended application, which was occasioned 5 by failure to read it to him. He prayed for trial de novo on account of that ailment. Countering the above submission, Mr. Baraka started with the definition of the term matrimonial property which he said is not defined by the Law of Marriage Act. He referred to the meaning of the term found in the Matrimonial Property Act of India to mean the matrimonial home or homes and other real and personal property acquired by either or both spouses before or during their marriage. He said the same is found in the case of Bi. Hawa Mohamed vs Ally Seif [1983] TLR 32. Another principle, Mr. Baraka said was important to the determination of appeal is that of caveator emptor. Connecting dots to what was submitted by Mr. Emmanuel that the appellant was not cross - examined if the disputed property was matrimonial, Mr. Baraka stated PW1 was cross - examined as seen at page 37-40 of proceedings. He added that the appellant failed to call local leaders and neighbours in support of his story. That he failed to produce the offer he alleged was registered in his name and that such evidence contradicted DW4 who said the disputed property was registered in the name of the first respondent for the first time. That the appellant failed to prove his extent of contribution. 6 Counsel submitted the second respondent proved his title after conducting due diligence as pleaded at paragraph 7 of the amended WSD and that was corroborated by DW2 and DW4. He added that by securing affidavit of the first respondent on status of marriage was enough for him. He supported the argument with the case of Idrissa Ramadhani Mbondera vs Allan Mbaruku and Another, Civil Appeal No. 176 of 2020 [2023] TZCA 204 (27 April 2023; TanzLII) and Hadija Issa Arerary vs Tanzania Postal Bank, Civil Appeal No. 135 of 2017 [2020] TZCA 217 (11 May 2020; TanzLII). Building up his stance Mr. Baraka stated certificate of title is conclusive evidence of ownership and it was in the name of the first respondent. That the appellant did not file caveat to registered his interest, as such disposition was lawful. On failure to analyse evidence in ground four, five and six, it was submitted that the appellant failed to prove his contribution to the acquisition of the disputed property. On failure to read exhibits counsel said it was a new issue not raised in the memorandum of appeal. Regarding alternative ground that application was not read to partied before hearing. Mr. Baraka submitted the appellant was not prejudiced adding that parties were represented by advocates. He 7 referred to the case of Issa Ndege vs Tlaghasi Shangwe, Land Appeal 105 of 2022 [2023] TZHC 16319 (27 March 2023), Augustine M. Sengwaji & Others vs Theresia Mathew Sengwaji & Others, Land Appeal No. 27424 of 2023 [2024] TZHCLandD 195 (23 April 2024) and Magreth Fabian Mrina (As Administratrix of the estate of the Late Fabian Steven Mrina ) vs Efc Tanzania Microfinance Bank & 4 Others, Land Appeal Case No. 232 OF 2023) [2023] TZHCLandD 17137 (13 October 2023) in all these cases it was held that the appellant was not prejudiced in anyway by the chairman's failure to read and explain to him the contents of the application. Mr. Baraka contended the anomaly was also cured by section 45 of the Land Disputes Courts Act [Cap 216 R: E 2019]. I have considered rival submissions and records of appeal before me. Main issues are one, whether failure to comply with regulation 12 of the Regulation is fatal. Two, whether exhibits were read after its admission and if is fatal. And three, whether the appellant proved his claim that the disputed property was matrimonial. I will start with the issue of failure to read the application to the respondent thus contravening regulation 12(1) of the Regulation. Mr. Emmanuel submitted the failure is fatal and vitiated the proceedings, Mr. 8 Baraka had opposite view, he argued it is not fatal. From the contending arguments, regulation 12 provide as follows; ‘12 (1). The Chairman shall at the commencement of hearing, read and explain the contents of the application to the respondent. (2) The respondent shall, after understanding the details of the application under sub-regulation (1) be required either to admit the claim or part of the claim or deny. (3) The Tribunal shall- (a) where the respondent has admitted the c/aim, records his words and proceed to make orders as it thinks fit. (b) where the respondent does not admit the claim or part of the claim, lead the parties with their advocates if any to frame issues.’ The above imposes obligation to the chairman to read contents of the application to the respondent before commencement of hearing. Then the respondent will have to admit or deny. When the content is admitted the chairman will make necessary orders and in case the respondent denies the case has to proceed at the stage of framing issues and adducing evidence. 9 From the wording of the above law, the right of application being read is accorded to the respondent and in that sense is the one who is entitled to raise this concern and not the appellant who was the applicant in the tribunal. Further as rightly submitted by Mr. Baraka parties were represented by advocates, as officers of the court/tribunal knew well the procedure. Be that it may this is the procedural aspect which cannot vitiate trial. After all parties were fully heard until when the decision was delivered, thus even if the complaint had been raised by the respondent, it could not have effect vitiating trial. Coming to whether exhibits were not read after its admission, Mr. Baraka is right that the same was not raised as ground of appeal, however being a point of law, the respondents had chance to make their reply. It is now a well-established principle in the Law of Evidence as applicable in trial of cases, both civil and criminal, that generally once a document is admitted in evidence after clearance it must be read in court. See Bulungu Nzungu vs Republic, Criminal Appeal No. 39 of 2018 [2022] TZCA 454 (21 July 2022; TanzLII). However, the rule is relaxed in civil proceedings in which parties are bound by their pleadings and documentary exhibits are known to parties in advance as opposed to criminal trial. In that circumstance failure to read documentary exhibit 10 is not fatal unless the party alleging establishes was prejudiced. Faced with akin situation in Robert Mhando & Another vs The Registered Trustees of ST. Augustine University of Tanzania, Civil Appeal No. 44 of 2020 [2023] TZCA 65 (24 February 2023; TanzLII) the court held; ‘Whereas Mr. Nasimire is on record as having strongly objected to the admissibility of the two exhibits saying, inter alia that they were not genuine for not having been issued by the respondents, DWl's evidence is remarkable of her discordant but conclusive statement that, there was no doubt that all the disputed receipts were issued by the respondents. Given this state of affairs, one thing becomes clear. That is, throughout the trial, the material contents of the disputed documentary exhibits were well known to the respondents as to render inconsequential the complaint by Mr. Nasimire that, they were not read out in court after being admitted in evidence.’ Emphasize supplied. In this matter there was exchange of pleading between the parties in which all documents which were admitted in evidence were attached. That is to say parties knew in advance documents to be relied by the counter party. Further parties had opportunity to object during its clearance stages and cross- examine witnesses. On those circumstance, the complaint that exhibits were not read to parties after its admission cannot be said is fatal. I therefore dismiss this complaint. 11 Next is whether the appellant proved his claim. From the record two matters are not in dispute, one, that the disputed property was registered in the name of Sophia Alphonce Mwenda (first respondent) and two, the second respondent purchased from the first respondent. There is little disagreement if the appellant and first respondent were husband and wife but based on exhibit P1, the two were couples. There were some arguments that extent of contribution was not proved, however I refrain from this discussion as those arguments are suited most in matrimonial proceedings which is not the case here. From the pleading and submission there was use of matrimonial home and matrimonial property interchangeably. That was erroneous because the two are not the same. Matrimonial home is defined undersection 112(2) of the Land Act Cap 113 to means the building or part of a building in which the husband and wife ordinarily reside together. Whereas matrimonial property or assets under section 114(2) of the Law of Mariage Act as including those acquired during the marriage and those owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. Through case law, the Court has defined matrimonial asset to be those assets which were acquired by one or the 12 other spouse before or during their marriage, with intention that there should be continuing provisions for them and their children during their joint lives. See Shakila Lucas vs Ramadhani Sadiki, Civil Appeal No. 349 of 2020 []2024 TZCA 36 (14 February 2024; TanzLII) and Tumaini M. Simoga vs Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022 [2023] TZCA 249 (12 May 2023; TanzLII). Generally, when it is proved that the property is a matrimonial asset, under section 161(1) of the Land Act and 59(1) of the Law of Marriage Act Cap 29 R: E 2019] (the LMA) no disposition can be affected without spouse consent. However, this rule has exception under section 58 of the LMA which recognise separate property of husband and wife. When a question arises whether it is matrimonial property or not, it is a question of law and facts to be established by evidence. Thus, a party who is challenging a property owned separately by one spouse in a marriage, has a burden to establish that the property in question is a matrimonial property. It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act [Cap. 6 R.E 2022]. It is equally elementary that the standard of proof, in cases of this nature, is on balance of probabilities which simply means that the court will sustain such evidence which is more credible than the 13 other on a particular fact to be proved. It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his/hers and the said burden is not diluted on account of the weakness of the opposite party's case. In proving that it was matrimonial property, the appellant in his application stated it was acquired as gift from George Mbwana out of love and affection, this is not reflected in his testimony. Be that it may he said they constructed the house in 2000 and lived until in 2020 when it was disposed. This evidence contradict because the appellant said most of the time was in Arusha. PW2 did not salvage the situation because his evidence was based on what he was told by the appellant. From the evidence presented by the appellant I did not find any evidence that it was a matrimonial home. The question remains whether it was matrimonial property, the disputed property was in the name of the wife under section 60 of the LMA there is rebuttable presumption. It provides; ‘Where during the subsistence of a marriage, any property is acquired- (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property 14 belongs absolutely to that person, to the exclusion of his or her spouse; or (b) in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. [Emphasize added]. Thus, the appellant had duty to prove that it was the matrimonial property. It is the law that the person with a certificate will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained. In the case of the court Amina Maulid Ambali & Others vs Ramadhani Juma, Civil Appeal No. 35 of 2019 [2020] TZCA 19 (25 February 2020; TanzLII) approved the observation made by Dr. R.W. Tenga and Dr. S.J. Mramba in their book bearing the title Conveyancing and Disposition of Land in Tanzania: Law and Procedure, Law Africa, Dar es Salaam, 2017, at page 330: ‘… the registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership of, or a legal interest in, a parcel of land. The act of registration confirms transaction that confer, affect or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the title.’ 15 To prove that the second respondent did not sit idle in inquiring marital status of the first respondent, DW2 said it was only the first respondent who was living in the disputed property and told her, had no husband and not married. She was not cross - examined on that aspect. Further DW1 and DW3 said the first respondent sworn the affidavit of her marital status, that she was not married. Such affidavit was tendered by DW3 and admitted as exhibit D1. This answers the argument that there was no due diligence by the second respondent. In the case of Hadija Issa Arerary vs Tanzania Postal Bank, Civil Appeal No. 135 of 2017 [2020] TZCA 217 (11 May 2020; TanzLII) the court stated; ‘Since it was sufficiently proved that the mortgagor was not married and there was no any caveat whatsoever registered, then the appellant cannot benefit from the provisions of section 59(2) of the LMA and section 161 of the Land Act on account of the fact that she did not have a registrable interest in the mortgaged property. In another case of the case of Idda Mwakalindile vs NBC Holding Corporation [2001]1 EA 148 the court held that; ‘Under the Law of the Marriage Act, a spouse had a registrable interest in the matrimonial home. In this instance the Appellant 16 had not registered her interest. There was therefore no way the First Respondent could have known of her interest considering that the house was in the sole name of her husband." We are increasingly of the view that the mortgagee was correct to disburse the loan believing that there was no any other third party with.’ Although the case above was with regard to mortgage, the principle applies to the case at hand that inquiry as to marriage status and checking if there is any registrable interest on the property subject of transaction is of the foremost importance. The second respondent in this case complied with the law. It is my considered view that by securing affidavit on status of marriage of the wife and inquiring with land authorities if there were any encumbrances, the second respondent complied with section 161(3) of the Land Act. There is no evidence that the second respondent knew the appellant before and that was married to the first respondent. In absence of any evidence suggesting knowledge of the second respondent was aware that the first respondent was married but proceeded to buy without inquiring if the husband has consented, I find no wrong in the disposition. From the above, the appellant failed to prove his case on the required standard, there is no justification to fault the findings of the 17 tribunal. I am of the settled view that the chairman made a correct conclusion that the first respondent was the sole owner of the disputed property and had right to dispose to the second respondent without consent of the appellant. In the event, I find the appeal devoid of merit and it is hereby dismissed in its entirety without costs. V.M NONGWA JUDGE 6/3/2025 Dated and Delivered virtually at Mbeya this 6th March 2025 in presence of the 2nd respondent and Mr. Baraka Mbwilo learned counsel for the 2nd Respondent. V.M NONGWA JUDGE 18