JOYCE SAFII

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 26528 OF 2023 (Appeal from the judgment and decree of the District Land and Housing Tribunal for Temeke at Temeke, Hon. Sosthenes, Chairperson, delivered on 17th October 2023 in Land Application No. 06 of2023) EXIM BANK TANZANIA LIMITED...................................APPELLANT VERSUS JOYCE CLAUDIUS MASEKO....................................... RESPONDENT JUDGEMENT Date of last order: 28/02/2024 Date of Ruling: 25/04/2024 MWAIPOPO, J: This Appeal emanates from the Judgement and decree of DLHT of Temeke which was given in favour of the Respondent on 17th October 2023 in Land Application No. 6/2023. The brief facts of this case are that the Respondent herein filed an Application in the Tribunal against the Appellant herein, Stanley Davis Vumu and Kishe Auction Mart and Court Brokers Tribunal claiming for the following reliefs; i. An order declaring the 1st and 2nd Respondent stopping from selling the said land ii. Costs of the proceedings i iii. Any other relief(s) the Hon. Tribunal shall deem proper In determining the said Application, the Tribunal formulated the following issues; i. Endapo hakukuwa na ridhaa ya mwenza hivyo dhamana iliwekwa kinyume na sheria ii. Nafuu gani kila mdaawa anastahili In the course of hearing both parties gave their testimonies and tendered evidence to prove their case. In the final analysis the Tribunal delivered the decision in favour of the Respondent herein with costs •OSS®? Aggrieved with the said decision the Appellant has filed a Memorandum of Appeal containing seven (7) grounds of Appeal as follows; 1. That the trial Chairperson erred in law and in fact in holding that tho Respondent is the wife of Stanley David Vumu, the Mortgagor. 2. That the trial Chairperson erred in law and fact in holding that Appellant has failed to verify that Miheri was the spouse of Stanley David Vumu hence deciding that there was no spouse consent from the wife of the mortgagor. 3. That the trial Chairperson erred in law and fact in shifting the burden of proof to the Appellants while the Respondent had failed to discharge her duty. 4. The Trial Chairperson erred in law and fact in interpreting the case of Cresent Impex (T) Limited VS. Mtibwa Sugar Estate Limited; CiVil^^ Appeal No. 455 of 2020 as such reached into unfair decision. 5. That the Tribunal failed to evaluate the evidence on record, thereby reaching an erroneous decision. 6. That the trial Chairperson erred in law and fact in holding that the certificate of title to be returned to the Respondent, a relief not prayed by the Respondent and the Respondent is not registered a owner in the title. 7. That the trial Chairperson erred in law and fact in the exerdse df;Ws judicial discretion of awarding costs. Thus the Appellant prayed for the Appeal to be allowed with costs. The hearing of the Appeal proceeded by way of written submissions where by parties complied with the timetable drawn by the Court. At the commencement of hearing, the Appellant was represented by the learned counsel Caster Lufungilo and the Respondent enjoyed the services of learned counsel Mwanahamis Rashid Kimario. Arguing in support of the Appeal, the learned counsel for the Appellant contended under the first ground of appeal that; the trial Chairperson erred in law and in fact in holding that the Respondent is the wife of Stanley David Vumu as per the marriage certificate, the Mortgagor while the evidence contained in the certificate of title identifies the person as Stanley David Vumu. Therefore she did not have any interest on the mortgaged property because the property in issue is not owned by Stanley Devis Vumu rather by Mr. Stanley David Vumu(Mortgagor). She further contended that the throughout the hearing at the Tribunal the Respondent did not adduce any evidence to show that those people are the same. She referred the 3 court to the case of Lydia P. Swai Vs the Manager International Commercial Bank(T) and others (Misc. Land Application 834 of 2018 (2021) TZ HCL Land D 714 28 May 2O21(unreported) " at pg 7. to prove that the Respondent was not married to the registered owner of the suit property. With regard to the second ground of appeal, the AppellanFcoffltffiff®*^ that the trial Chairperson erred in law and fact in holding that the Appellant has failed to verify that Miheri was the spouse of Stanley David Vumu hence deciding that there was no spouse'-consent^i^m^s®® the wife of the mortgagor. The Appellant submitted that spousal consent is a mandatory requirement under section 114(1) of the Land Act when one mortgages a matrimonial property andjmpp^e^g duty on the mortgagor to disclose that the property subject of the mortgage is a matrimonial property or some other person has interest in it. The Appellant contended that they discharged that burden by ascertaining the marital status of the mortgagor and the his spouse by testifying that they were introduced to Miheri by the guarantor, as his wife and he tendered spousal consent (exhibit D 7 ..... . -T*—'-M' referred on page 7 of the Judgement. Thus, the Appellant invited this court to find this ground in their favour. As for the 3rd and 4th grounds of appeal, the Appellant argued them together to the effect that the Trial chairperson erred in law and fact in shifting the burden of proof to the Appellants while the Respondent had failed to discharge her duty and that he also erred in interpreting the case of Cresent Impex (T) Limited Vs. Mtibwa 4 :w Sugar Estate Limited, Civil Appeal No. 455 of 2020 as such reached into unfair decision. The Appellant contended that, the burden of proof as per section 110(1) and (2) of Law of Evidence Act lied to the Respondent and not the Appellant. They referred the court to the case Paulina Samson Ndawanya vs. Theresia Thomas Madaha Civil Appeal 45 of 2017 TZCA 453 (unreported) to drive point home that the said burden never shifts to the adverse party until the party on whom the onus lies discharges his and the same is not diluted on account of the weakness of the opposite party. She faulted the Tribunal by relying on the case of Cresent Impex (T) Ltd (supra) and contended that it was wrong for the Tribunal to rely on the marriage certificate of the Respondent which displayed different names to that of the owner of the mortgaged property. Thus, the Tribunal ought to have dismissed the matter instead. With regard to the 5th ground of appeal, the Appellant submitted that the Tribunal failed to evaluate the evidence on record, thereby reaching an erroneous decision. She argued that before the trial, the Respondent testified that she is a lawful wife of th£u,i‘!2*€K ' Respondent/mortgagor and she has lived with him since 1993. However, she was not involved in the loan arrangement as her consent was not procured. During trial DW1, Sibogo Madcrtw'^Bafik.-Ws® Assistant Manager special asset management, testified before the court that the said suit property was mortgaged by the 2nd Responded as a security for the loan amount of TZS. 40 advanced to one M/S Miheri enterprises and overdraft facility of TZS 5 40 Million as well as restructured loan facility of TZS 66,000,000/*= DW1 further testified that the consent of Miheri Jonas Mwalingo who the 2nd Respondent, Mortgagor identified as his wife was duly procured and admitted as D7.When the borrower defaulted notice of default was served to the Mortgagor. That is when the Respondent herein filed this matter claiming to be the lawful wife and that she did not consent to it. Therefore, the Appellant contends that this ground has merit and invited the court to evaluate the said evidence and rule in favour of the Appellant. Regarding the 6th ground of Appeal, the Appellant argued that, the trial Chairperson erred in Saw and fact in holding that the certificate ■■■■■■ of title to be returned to the Respondent, a relief not prayed by the Respondent and the Respondent is not the registered owner in the title. The appellant has asserted that it is not in dispute that vide pleadings the Respondent did not pray for the certificate returned to her. However, the Tribunal on pg. 10 ordered the certificate of title to be returned to the Respondent who is not the owner and still in dispute if he relates to the. Then 2nd Respondent in -1 MW the Tribunal. They submitted that the Tribunal ought to have granted what was prayed for in the pleadings. The Appellant referred the court to the case of Dr. Abraham Israel Shuma,x;.Mu^«^^siO® National Institute for Medical Research and Another, Civil Appeal No. 68 of 2020(unreported) pg 13. 6 Moving to the 7th ground of appeal, the trial Chairperson erred in law and fact in the exercise of his judicial discretion of awarding costs. The learned counsel referred to Regulation 21(1) of the Land Disputes Courts (DLHT) Regulations, 2003 which grants that discretionary power to the Tribunal. However, they stated that it has to be exercised judiciously. She referred the Court to the case of Tanga Cement Company Ltd Vs Jumanne O. Massanga and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (CAT) and Regional Manager, TAN ROADS Kagera Vs^R«iaha-;mw» Concrete Company Ltd, civil Application No. 96 of 2007 CAT both unreported. The Appellant contended that the Trial Chairperson did not exercise his discretion judiciously by awarding Applicant/Respondent herein while knowing that the was still loan default from the 2nd Respondent. They thus prayed for the court to find merit in the Appeal and^vers^tFte Judgement and Decree of the lower court. Submitting in rebuttal, the learned counsel for the Respondent began his submissions by raising two preliminary observations as follows; One, he submitted that the Land Application no. 06/2023 which was determined at DLHT for Temeke at Temeke before Hon. Sosthenes- Chairperson and decided on 17th October 2023 did not involve only two parties, it involved other parties. He contended that the law allows any person from several complainants or defendants to appeal from the Order or Decision of the Trial Court as per Order XXXIX Rule 4 of the OPCaCap«33»^^^ Re 2022 but it does not allow change of parties as the as the appellant did in the appeal at hand, hence the appeal is incompetent and be rejected as 7 - - -. required by Order XXXIX Rule 3(1) of the Civil Procedure Code (Cap 33’ 2022). The names of the parties were to remain as they were in the trial court tribunal. With regard to the second observation, the Respondent contended that the Appellant did not supply the Respondent with a copy of submissions in chief on 13th day of March 2024 as per the order of the court dated 28th February 2024 hence failed to make perusal on 14 to 16 day oFWrclT^0W^ss» till 18th March 2024 when she was supplied from the Advocate of the Appellant on 14th March 2024. The Respondent has argued that as a result they failed to make perusal hence they felt it was an injustice to -them,. The Respondent prayed for the court to expunge the submissions for non compliance of the court order. With regard to the reply to the submissions in chief on the appeal, the Respondent contends that the trial Chairperson did not erre in law and in fact in holding that the Respondent is the wife of Stanley Devis Vumu, as there is no dispute about that and the differ^qg^^^l^^^^ marriage certificates and the certificate of title do not hold water. He contended that the two names are used interchangeably referring to the same person Stanley Devis Vumu as testified by the Respondent. Further she contended that marriage is proved by the marriage certificate and the same was admitted before the Tribunal as Exhibit Pl. She thus distinguished the case of Lydia P. Julius Swai(supra) Regarding the 2nd ground of Appeal, the learned counsel for the Respondent concurred with the trial Chairperson in holding that the Appellant failed to verify that Miheri was the spouse of Stanley David Vumu 8 due to the fact that no evidence was tendered in the Tribunal to show that Miheri was the wife of Stanley David Vumu. Secondly he argued that there was no spousal consent from the wife of the Mortgagor due to the fact that Miheri failed to establish whether she is the wife of Stanley Davis Vumu hence failed to produce spousal consent before the Tribunal written and signed in that name as such. The spousal consent tendered was signed by the one Miheri Jonas Mwalingo (Exhibit 7) who is not the wife of Stanley Davis Vumu or M/s Miheri Enterprises. He contended that the Respondent is the legal wife of Stanley Davis Vumu and was the one supposed to grant spousal consent. He referred the court to section 33 of the Law of Marriage Act, the case of Fanuel Zakayo Vs. Aneth Raphael and CRDB Bank PLC, Civil Appeal Bo. 9 of 2020 and Samwel Olunga Igogo & Others vs. Social Action Trust Fund and another to affirm the point that spousal consent must be legally procured. Moving to the 3rd and 4th grounds of appeal, the Respondent has submitted that the trial Chairperson did not error in law and in fact but he was^^pr^p^^sw to hold that the Respondent had managed to discharge her onus of proof and the same was not shifted to the Appellant but the appellant failed to prove where the burden of proof lied upon him. He reiteraied^toMiU8£v^fi«» spousal consent can be proved by a person who has a marriage certificate. He distinguished the cited cases by submitting that they are in support of the Respondent submissions. He referred the court to pagesofetheuWMOSt Judgement of the Tribunal to show that before the Chairman applied the case of Crescent Impex (supra) he stated how the onus of proof could shift. The learned counsel argued that the cases of Cresent, 9 Paulina Samson Ndawanya (supra) both support the contention by the Respondent that the Appellant was supposed to prove her allegations after they were already proved by the Respondent. Regarding ground 5 of Appeal, the Respondent contended that the trial Tribunal carefully evaluated the evidence on record thereby reaching a just, proper and fair decision after analysing exhibits of parties. As for ground 6 of appeal the Respondent argued that the trial Chairperson was correct in holding that the Certificate of Title be retu®e4»Adte^ww> Respondent since the Respondent prayed for the same before the Tribunal. The learned counsel referred the court to page 4 of the Judgement appealed against, where the Respondent stated before the Tribunal as follows; "Mwisho SMI aHomba Baraza kuamulu eneo la mgogoro Hsiuzwe, Benki warudishe hati" Regarding the 7th ground of appeal, which is to the effect that the trial Chairperson erred in law and fact in the exercise of his judicial discretion of awarding costs. The learned counsel contended that awarding of; cost is not a judicial discretion rather a legal requirement. The Appellant cited Regulation 21 (i) of the Land Disputed Courts (The District Land and Housing Tribunal) Regulation 2003. He argued that the law empowers the Tribunal with discretionary power to award or not to award costs". Thus, the law has not prohibited the trial Tribunal to award costs but in awarding the same the law directs that the circumstances of the case be considered. .. uiai , . He contended that the circumstances of awarding costs to the Respondent io were obvious and it was not a punishment to the Appellant as award was meant to reduce some costs incurred by the innocent Respondent-from-the negligence of the Appellant. He distinguished the case of Tanga cement company Ltd in this regard. In rejoinder, the learned counsel for the Appellant re-joined on the 1?;‘ following issues; Firstly, he submitted that the Respondent was not served with the submissions on 13th March 2024 because they were contacted several ' times but they were unavailable and their office is unknown. Secondly, with regard to the parties in the previous proceedings being not similar to the subsequent proceedings, he argued that that assertion is not true. She went on conceding that the rest of the parties were left out because among the Respondents in the Tribunal, the Appellant alone was aggrieved with the Judgement and decided to appeal argued that the said case was not a representative suit, each respondent appeared on its own and each of them had the right to appeal if aggrieved. She also contended that the law does not prohibit an appeal to be teroughti^B®® against only party. The learned counsel distinguished the case of HSU Chin (supra) in this regard and implored the court to dismiss the concern raised by the Respondent for being devoid of merit. With regard to the rest of the grounds of appeal, the Appellant reiterated their submissions in chief. I will not reproduce them in this regard. ... ii Having carefully considered the records of this court and the,.subffii^tefes»» made for and against the appeal by the trained legal minds, this court is now called upon to determine this matter. The broad question is whether this appeal has merit or not. However, before considering the merits or otherwise of this application, I am inclined, as is the norm, to first deal with, and to dispose of, the preliminary objection raised by the Respondent. This is in compliance with various decisions of this court; see, .. . ■ wo for instance, the recent case of Keith George Maginga Vs. Stanbic Tanzania Limited, Commercial application No. 120 of 2023 (Unreported). This court stated: "As a matter of law and practice, whenever there is a preliminary objection, the same must be disposed of before dwelling into the merits or otherwise of the main matter". As stated earlier on, this court has been called upon to determine a preliminary objection raised by the Respondent when tendering in court his written submissions to the effect that the Appeal is incompetent for failure to include all the parties who were pleaded in the previous proceedings. In dealing with preliminary observation I am also guided preliminary objection may be raised at any time as correctly stated by this court in Pyrethrum Company of Tanzania vs Rehema Chioko, Labour Revision No.6 of 2019 (HC) (Unreported): "...Courts of law are enjoined to decide matters before them according to the law. A court of law cannot thus, ■■ - - 12 ...... dose eyes to a PO based on point of law, merely because the PO has not been brought according to the practice, a PO has no time limitation in law. It can be raised at any time......." Consequently, I now proceed to determine the merits or otherwise of the said preliminary observation. For the reasons which will be apparent shortly, I wish to state from the outset that the Respondent's objection is meritorious and I sustain it. The respondent has raised a preliminary observation to the effect thaU;P^w some of the parties in the previous proceedings before the Tribunal have been by the Appellant omitted in the current appeal. The Appellant has on its part has contended that it has omitted other parties who were in the proceedings of the land case no6/2023 since as one of the Respondents in the said case it is aggrieved with Respondent herein and it has the liberty of appealing against the Respondent only since it did not have any issues to do with the rest of the Respondents namely Stanley Davis Vumu and Kishe Auction Mart and Court Brokers . In dealing with the said preliminary observation, I have perused the Judgement and Proceedings of the Tribunal and observed that at the Tribunal the Respondent who was the Appellant filed Application No. 6/2023 against the Appellant, the Exim Bank as the 1st Respondent, - Stanley Davis Vumu as the 2nd Respondent and Kishe Auction Mart and Court Brokers as the 3rd Respondent. However, in its Memorandum of Appeal the Appellant while contending to appeal against the said decision of the Tribunal in Land Application No. 6 of 2023, it never included-all the 13 parties who formed part therein. It only included the Respondent leaving out other Respondents who were parts, of the proceedings of the Tribunal. ' ' - • ~ . .. .x. AI MB While I agree that the law allows any person from several complainants or defendants to appeal from the order or decision of the Trial Court as per Order XXIX Rule 4 of the CPC Cap 33 RE 2022, the said provision does not allow change of the parties as the Appellant did in the instant Appeal. Hence the anomaly has rendered the Appeal incompetent. It is a cardinal principle of law that the names of the parties in the previous proceedings must appear as they are in the subsequent proceedings. This position was stated in the case of Jospeh Magombi Vs Tanzania National Parks (TANAPA)Civ appeal no 114/20216/CAT DSM (unreported) where it was held that: We think and agree with the judge in the case of William Godfrey Urassa (supra) that the parties who featured in the initial proceedings should be the same parties who featuring before the High Court as well ' as this court. We further say that unless a proper procedure has been followed to change or alter a name no changes of parties should occur. .. • See also the case of Isaack Wilfred Kasanga Vs. Standard Chartered Bank Tanzania Limited Civil Application No.453/01 of 2019CAT at Dar es Salaam where the court stated as follows; "Court records are considered authentic and could not be easily questioned. We are of the stance that this should always be the position that parties in the proceedings could 14 at any time given appear as they did in the previous proceedings unless there is a reason of not observing that". The same position was reiterated in the case of, Salim Amour Diwani v The Vice Chancellor Mandela African Institution of Science and Technology and Another, Civil Application No. 116 of 2021 CAT at Dar es Salaam where it was held that" . "... Court records are considered authentic and should not be easily altered as the parties will wish to do. It bears reaffirming that parties in the proceedings should at any given time appear aS^ they did in the previous proceedings unless there is a reason for not observing that and only with the leave of the court" In the instant Appeal it is clear that no leave of the court was sought before the filing of the Appeal. Since no leave of the court was sought then the appeal is rendered incompetent for being altered and consequently it deserves the punishment of being struck out with costs. It is as good as fiifrtrcf^WtW®ffl^ appeal. In the case of Leons Silayo Ngala Vs. Justine Alfred Salakana, Civil Appeal No. 38 of 1996 the CAT held that; "An incompetent appeal amounts to no appeal,r.u/&fa£Hw^^ such circumstance what the court does is to strike out the purported appeal off the Register". In the case of Methothela Vs. Matiko Marwa Mariba Application No. 6/2006, the full court categorically stated that; "The remedy for an incompetent appeal or application is to strike it out". 15 Therefore, based on the above reasoning, the position adopted in the cited cases cited and the submissions of the parties, I proceed to sustain the preliminary objection and strike out the appeal for being incompetent with costs. The preliminary Objection raised by the Respondent is sufficient to dispose the appeal. I will not labour on the other grounds of appeal. It is so ordered. Right of appealz explain laam this 25th day of April 2024 JUDGE 25/04/2024 The Judgement delivered this 25th day of April 2024 in the presence of Beata Telli, the learned counsel for the Appellant and Mr. Alexander Kapelela, learned counsel for the Respondent is hereby certified as a true copy of the original V. MWAIPOPO JUDGE 7.^5/04/2024 -'■k 'IM® . ...., ......