fatuma mayunga vs consolidated holdings corporation others 2014 tzhc 2299 6 august 2014

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT TABORA LAND APPEAL NO. 49 OF 2014 (From the Decision of the District Land and Housing Tribunal of SHINYANGA District at SHINYANGA in Land Case No. 115 of 2008) FATUMA MAYUNGA......................................................... APPELLANT VERSUS - CONSOLIDATED HOLDING CORPORATION AND 3 OTHERS ..................................... RESPONDENT JUDGMENT 08th July & 06th August, 2014 S.M. RUMANYIKA. 3 The background to this matter is short and clear. Fatuma Mayunga (the Appellant), sued unsuccessfully in the DLHT. Mainly for; (i) an order declaring house on plot No. 366 "V" Shinyanga Municipality "suit property" matrimonial property (ii) a mandatory prohibitive order against, the Respondents herein to sell the suit property. She is aggrieved. Hence the four (4) grounds of appeal in the words of one self as under:- 1. That the Learned Chairman erred in law and fact in holding that the suit premises was not a matrimonial home. 2. That the Chairman erred in law and fact in holding that the intended sale of the house in dispute was lawful. 3. That the Chairman erred in law and fact in requiring caveat by wife on matrimonial property rendering her contribution to its acquization frustrated. - 4.The Chairman erred in law and fact in ordering the sale of matrimonial property which arose out of illegal mortgage. Messrs Ng'wigulila and Mwashambwa learned advocates appear respectively, for the Appellant and Respondents. Mr. Ng'wigulila submitted during the hearing of this appeal, that the suit premises were actually matrimonial home. (Section 2 of the Law of Marriage Act Cap. 29 RE 2002 (the Act)) defines it. But the 4th Respondent fled it. The Applicant and Children were left behind. That any sale by the 1st Respondents of the suit premises contravened' the provisions of section 48(2) (e) of the Civil Procedure Code Cap 33 RE 2002 (the CPC). Attachment and sale of such property is prohibited. Husband (4th Respondent) having alienated it without Appellant's consent. That the 1st Respondents should have inquired with a yiew to establishing any 3rd party interests therein. Instead of receiving it casually as it did in a rush. The sale be set aside and appeal be allowed with costs. Submitted Mr. Ng'wigulila. Submitting in reply, Mr. Mwashambwa contends that no contract was proved (between the Appellant and 4th Respondent). Be it customary marriage or something else. The disputed was not a matrimonial home. That if anything, it was only six (6) rooms rented for shops. Privately owned by the husband (4th Respondent) this was allowed under section 58 of the Act it was only. Only registered in the latter's name. One needed not to seek and obtain Appellant's consent. That the Appellant should have registered a caveat. Should one have any registered interest therein. As the suit premises were mortgaged in. 1993. Before the Land Act Cap 113 was enacted and was in force. That the disposition was lawful, because the 1st Respondents were not aware of it being matrimonial home (cited the case of Idda Mwakalindile V NBC Holding Corporation. Civil Appeal No. 59 of 2000) (CA) at Mbeya E.A Vol. 1 Page 148. That the Appellant's bare interests in the registered suit premises were no barr to its alienation. Because mere existence of section 58(1) of the Act was not sufficient to prevent it from being alienated. No caveat was filed either. Bank (the 1st Respondents) were at liberty to sell it. That only the wife (Appellant) resided in the disputed premises. The provisions of section 58 of the Act never covered the situation. The learned counsel stressed. In his rejoinder, Mr. Ng'wigulila submitted that the suit property, was registered in the husband's name yes! But that fact alone could not have distinguished wife's and children's rights. That she became aware of the disposition late in the day. She could not have filed any caveat before. That the two cases cited by Mr. Mwashambwa were distinguishable. The issues are (a) whether the Appellant and the 4th Respondent were wife and husband (b) whether the disputed premises was a matrimonial property but also resided by Appellant and Children (c) whether attachment and sale of the disputed premises was lawful. At least it is on record, therefore evident, that the Appellant and 4th Respondent now separated, had contracted a customary marriage in 1980 and were blessed with some issues. In order not to put words in his mouth, the 4th Respondent (Dw2 then) says:- The Appellant (Now Appellant") is mv wife. I married her in 1980 under customary rites ........ she and I were blessed with children. I paid bride price to applicants parents..... Mv Marriage with Applicant still subsists. Applicant and I are living in separation....... (emphasis added"). This is to say that the 4th Respondent and Appellant are actually at one on this material point, I just cannot understand what proof of marriage then the DLHT wanted from the Appellant. After all even one was to go by Dwl's testimonies that the that the two were only lovers, yet still the two decade plus (1980 - 2008) love relationship, blessed with a number of children under the same roof was nothing, but a senior constructive marriage in the circumstances. As the 4th Respondent does not tell when actually were the spouses separated. Issue No. 1 is answered in the affirmative. The disputed premises were matrimonial property cum commercial. On this one the Appellant was live. But also, the husband (4th Respondent). The latter speaks it in blacks and whites on two different occasions:- My family and I live in the suit premises....Mv family lives in such suit premises..... (the underline is mine). From the quotation above the suit premises qualify under section 2 of the Act. It is to that extent a matrimonial home. Issue No (b) is answered as such. Moreover, it is used for commercial purposes and partly residential at the same time. I quote the 4th Respondent again in part:- ......... Four rooms of suit premises are used as shops............ Infact the two issues above are answered in the affirmative. Attachment and sale of the suit premises could not in the absence of the Appellant's consent, be lawful. The 4th Respondent just admits to have not mortigaged the suit premises prior to seeking and obtaining the Appellant's consent. He is on records to have said; ...... I offered as security the suit premises for loan without notifying my fam ily......... I d id .....not seek consent of applicant before offering suit premises as security for loan for she could refuse............. This is to say that fearing her not to consent to alienation of the matrimonial suit premises, the 4th Respondent never ventured even to seek one. He just mortgaged it, and without ado, the 1st Respondent took the property. In other words whereas the husband recognizes the mandatory consent of his wife (Appellant), he just by passed her and disposed of the suit premises on her back. Now was attachment and sale by the 1st Respondents of the suit premises lawful? It was not. At least through Dwl (An officer of the former), one had reason not to accept the disputed premises in a rush as security. The moment they were told that two were only the lovers, it was incumbent upon the 1st Respondent to inquire into it in due course, and diligently from the Appellant. With a view to establishing need or not at all, of the wife's consent. Infact though had reasons to, the 1st Respondents never did the needful expected of them by any reasonable tribunal. Case of Edda Mwakalindile (supra) is with greatest respect, distinguishable. In other words, the Appellant was, in the circumstances of the case both interested and had the right. The case of Hadiia Mwene V Ally Maberi and Another, HC, Civil Appeal No. 40/1995 (unreported) is distinguishable. The DLHT was overwhelmed by among other evidence, that as long as the suit premises were registered in the name of the 4th Respondent, it was privately owned by him. This view Mr. Mwashambwa took in his submission herein, can actually always not be true. I think, and it is common knowledge that very seldom than not were matrimonial property in typical African societies registered in names of both the'spouses. Perhaps it is because husbands are presumed sole bread earners of the family(s). This respectfully, infmges potentially women rights. Which essentially are human rights. Wives have vested interests and rights in their respective matrimonial property. Leave alone rights of their children/dependants. Case of Hadiia Mnene V Ally Maberi & Another. Civil Appeal No. 40 of 1995 (Unreported) is distinguishable. Like any others, wives have fundamental rights to own property. The land Act (Cap 113 R.E 2002) might have not been in operation when in 1993, the suit premises were being registered Granted! But although the provisions of section 48(1) (e) of the code, do not prohibit exclusively alienation of matrimonial home, the law protects the property against selfish spouses, who would have disposed of the same on the fellows' backs. Hence rendering wives homeless. But logically, as said before, spouses can not be deprived in a hide, of their rights to own property other than matrimonial homes. The premises might have not been matrimonial home, but still simply a matrimonial property. The 4th Respondent was as said, duty bound to seek and obtain consent of wife (the Appellant) before allienating the suit premises. On the issue of the Appellant filing no caveat, this point needs not to detain me. She did not, but knew about it at a later stage. Just before the property was attached and sold. She intervened immediately. This evidence was not contested. The Appellant could not have protected interests she thought was free of nay threats before. All said, appeal is allowed with costs. Here and at the DLHT. The former's decision and orders quashed and set aside respectively. Ordered accordingly. R/A explained. S.M.RUMANYIKA JUDGE 21/ 07/2014 Delivered under my hand and seal in chambers, this 6th August, 2014. In the absence of the parties. S.M.RUMANYIKA JUDGE 06 / 08/2014