flora christopher mutayoba vs nmb bank plc 2 others 2023 tzhclandd 17024 13 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 332 OF 2023 (Arising from Land Application No. 40 of 2020 Kinondoni District Land and Housing Tribunal)

FLORA CHRISTOPHER MUTAYOBA APPELLANT

VERSUS

NMB BANK PLC RESPONDENT ADILI AUCTION MART Z"" RESPONDENT VUMILIA WILFRED MASULE S"*" RESPONDENT

JUDGMENT 10"^ to 13'0 October, 2023 E.B. LUVANDA,J The Appellant named above is challenging the decision of the Tribunal dismissed her daim for want of merit. In the memorandum of appeal, the Appellant raised the following grounds: One,the Chairperson erred in law and fact for entertaining the application without jurisdiction; Two, the Chairperson erred in law and fact In evaluating the evidence in record as a result to holding that the Appellant guaranteed the defaulted loan facility advanced to the Third Respondent herein by the First Respondent; Three, the trial Chairperson erred in law and fact for failure to evaluate on the legality of mortgage. Four the trial Chairman erred in law and fact for 1 failure to consider the facts and evidence adduced by parties on the vaiue of the suit property in relation to the loan issued to the Appiicant/appellant; Five, the Chairperson erred in iaw and fact for finding that the Appellant has failed to prove if she did guarantee the loan facility advanced to the Third Respondent. Ms. Esther Poyo iearned Counsel for Appellant submitted that the District Land ad Housing Tribunal (DLHT) of KinondonI had no jurisdiction over matters emanating from Ubungo District. She cited section 22(2) of the Land Disputes Courts Act, Cap 216 R.E. 2019 that it set geographicai limits of a district, region or zone in which it is established. Also

cited Government Notice No. 44 of 2019, page 136 that it operationaiized District Land and Housing Tribunal for Ubungo with effects from 25/10/2019, arguing this matter was filed 31/03/2021 and commenced hearing on 02/12/2021.She submitted that the matter ought to have been transferred to UBUNGO DLHT. She cited the case of Fanuel Mantiri Ng'unda vs. Herman Mantiri Ng'unda & 20 Others, Civil Appeal No. 8/1995; Tanzania Harbor Authority vs. Liner Agencies Co. Ltd [2004] TLR 127. Ground number three and four, the iearned Counsel argued jointly that the mortgage facility issued by the First Respondent in favour of the Third Respondent was void abinitio for contravening the provision of regulation 29(1)(a)and (b)of Banking and Financial Institutions(Mortgage Finance) Regulations, G.N. 288 of 2014, which require loan to value ration should not exceed ninety percent. She submitted that exhibit D6 shows that at the time of procuring the second loan facility by the First Respondent to the Third Respondent, the suit property was valued Tshs 60,000,000/=. She submitted that the same suit property was collateral in a previous loan facility to a tune of Tshs 20,000,000/= advanced by the First Respondent to the Appellant which is still servicing, arguing to the surprise of the Appellant her property was also used as a collateral securing a defaulted loan facility of Tshs 40,000,000/=, from

the First Respondent in favour of the Third Respondent. She submitted that the Appellant had contested the validity of mortgage to the defaulted loan for reasons that it is tainted with forgeries, irregularities, arguing also that the said loan facility exceed the value of threshold prescribed by the law. Ground number two and five the learned Counsel submitted jointly, she argued that, the Appellant adduced evidence to the effect that the mortgage document tendered by the First Respondent including a spouse consent exhibit D2, certificate of ownership exhibit D3, picture of the Appellant and one Victor Sinare Ndossi exhibit D4,spouse consent exhibit D5, were used by the Appellant when procuring the loan from the Frist Respondent a sum of Tshs 20,000,000/- in 2019. She submitted that is ubsusrb for DWl to say the same documents were used in procuring the loan facility to the Third Respondent. She submitted that the mortgage property has never been a matrimonial property and the Appellant never received any notice from the Bank including the fourteen days notice. She submitted that the procurement of second loan was nothing but connivance between the First and Third Respondent to the detriment of the Appellant. In reply, Ms. Asia Tokutoola learned Counsel for the First Respondent submitted that the Appellant is the one who made the Application to the Kinondoni DLHT, arguing now

wants the case to be instituted at Ubungo DLHT as a place of suing. She submitted that the Appellant did not raise such objection at Kinondoni DLHT, as the court of first instance, arguing there was no any miscarriage ofjustice that have been done to her, rather the Appellant want to delay the First Respondent from securing (sic, recovering) its loan. She cited the provision of section 19 of the Civil Procedure Code, R.E.

2019. Ground number two and five, the learned Counsel submitted that they have never been served with exhibit D2, D3, D4 and D5 from the Appellant as per her submission, arguing that it remain to be facts known to the Appellant. She submitted that exhibit D6 (informal mortgage) dated 04/11/2019,shows clearly how the Appellant guaranteed the loan of forty million from the First Respondent to the Third Respondent by signing and was aiso signed by the Ward Executive Officer, iocai government chairman. First Respondent's ioan officer and Branch Officer and was attested. She submitted that if the Appeilant dispute the signature on the above document she wouid have proved by iodging forgery ailegations on her signature, which she failed to do. She submitted that the Appeiiant faiied to prove that she did not guarantee the said ioan, citing section 110 (1) of the Evidence Act, Cap 6 R.E.

2022. Ground number two and four, the learned Counsel submitted that a loan or mortgage contract, spouse consent and other related documents required for processing ioan, were made available to the Tribunal. She submitted that before issuing the said ioan as the second ioan to the collateral, the bank was assured that the mortgaged property value was still on breath hence no breach of Banking and Financial Institution Act and Financial Institution Act and Regulations. Regarding ground number one, surely the Appeilant is determined to waste time for parties for unnecessary and unwarranted litigation. It is common knowledge that the Appeiiant is the one who sued the Respondent by instituting her complaint at Kinondoni DLHT on 31/03/2021 while being aware that Ubungo DLHT was operationized on 25/10/2019 vide G.N. No. 44 (supra). But the Appellant who was under representation from the inception of her suit, throughout the trial, and after seeing that the evidence of the First Respondent was well presented and it was adjudged against her wish, it is now she is raising a concern over territorial jurisdiction of Kinondoni DLHT. Importantly, the Appellant did not say why he choose to institute her complaint at Kinondoni DLHT instead of Ubungo DLHT. Neither stated if at ail she was prejudiced on any how for her complaint to be heard and determined at Ubungo DLHT. In view of that, I go

along with the argument of the learned Counsel for First Respondent that the concern is a mere place of suing which is taken care by the provision of section 19 of Cap 33 (supra), I quote and bold a portion of interest to me. "No objection as to the piece ofsuing shaii be aiiowed by any appeiiate or revisionai court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in aii cases where issues are settied, ator beforesuch settiement, and uniess there has been a consequentfailure ofjustice" Therefore, the Appellant is debarred to raise this objection at this appeiiate stage. Of course, the Appellant could had not risen such concern at the trial Tribunal against her own course of forum shopping. Therefore I cannot entertain this objection at this stage, because is taken or raised in bad faith at the very detriment of the First Respondent. As to grounds number three and four. The alleged contraventional of rule 29(1)(a) and (b) of GN No. 288 (supra), is irrelevant. The bottom line of the complaint of the Appellant was that she never guaranteed a loan of 40,000,000/= advanced by the First Respondent to the Third Respondent. However, the First Respondent tendered evidence vindicating that the Appellant indeed was a guarantor to a loan of 40,000,000/= which the borrower (Third Respondent) serviced the two proceding months

after disbursement, thereafter defaulted and went at large. Therefore, the argument by the Appellant that the First Respondent was negligent to let the Third Respondent procure loan, or that the second loan facility had the effect of exceeding the value threshold prescribed by the law, they all out of context. This is because on defence, Faudhia Awadhi Mushi(DWl) explained that the Appellant processed and took a loan to a different branch by using the same collateral. Therefore the Appellant's nultipractice cannot let to rein and win ground in the court of law. With reference to grounds number two and five. Actually the argument of the learned Counsel for Appellant that exhibit D2, D3, D4 and D5 tendered by DWl, to say it was used by the Appellant to procure a loan of Tshs 20,000,000/= from the First Respondent, is totally misleading. An affidavit for proof of ownership of a house exhibit D2 at paragraph two is clear that the Appellant deposed that she is mortgaging her property situated at Kimara Ubungo to the National Microfinance Bank PLC Mbezi Branch for purpose of security for a loan of Vumiiia Wilfred Masiie (Third Respondent) and NMB Bank PLC (First Respondent) for a loan of Tshs 40,000,00/= advanced to the Third Respondent. Exhibit D3 is a mere certificate for proof of ownership issued by the harmiet chairman in favour of the Appellant and exhibit D4 are photographs

depicting the Appellant and her husband stood in front of the suit house. In exhibit D2 and D5 there is no mention of a loan of Tshs. 20,000,000/=, neither depict the Appellant as a barrower. Equally an argument that DWl said the same documents exhibit D2, D3, D4, and D5 were used to procure the loan advanced to the Appellant is not only misleading, but also a concocted fact. Nowhere DWl uttered such wordings. What DWl said is that the Appellant used the same property to procure another loan to a different branch of NMB. Regarding a complaint that the Appellant did not receive a fourteen days notice of default, is baseless. This is because in her testimony the Appellant stated that she was served with the notice via her hamlet chairman one Epafra Nicodemo Shirima (DW2) who confirmed to have made a photostat of 14 days notice and delivered to the Appellant. In deed the Appellant was served with a sixty days notice of default, exhibit D8, where she acknowledged by appending her signature at the bottom on top of her name in a capacity of a guarantor. The learned Counsel for Appellant faulted the Tribunal for holding that the Appellant failed to prove if she never consented to the third party mortgage. In fact the Appellant failed to discharge her duty to prove her allegation. This is because at her re examination she (PWl) mereiy said she entertained a doubt that the Third

Respondent forged her documents. In other words, the Appellant was not certain if any one had forged any of her documentation for mortgage. When the Appellant was asked a question by a member of the Tribunal, she said she did not iodge any complain or case for forgery against the Third Respondent. On re examination, the Appellant said she did not have or tendered any document to prove that her doubt on forgery. Therefore the compiaint by the iearned Counsel for Appellant Is unfounded. It is her client who failed miserably to prove her case. The learned Counsel for Appellant submitted that exhibit D6 show that at the time of procuring the second ipan facility by the First Respondent to the Third Respondent, the suit property was valued Tshs 60,000,000/=. Going by the entire contents of informal mortgage age deed exhibit D2, word to word, there is no mention of a figure 60,000,000 or any value thereof in respect of the suit property. Therefore this too fail under the same pattern of concocted facts on the part of the learned Counsel for Appellant. This appeal Is devoid of any merit whatsoever. Appeal dismissed. The Appellant will shoulder costs of this appeal to the First C C5 E.B.I LUVA lUDGE V- s: ★ 13/TD/2023 5^^ TO Judgment delivered through Wdeo conferencing neither Ms. Easter Poyo learned Counsel for Appeliant^hor Ms. Asia Tokutoola learned Counsel for First Respondent or Second and T|;nrd Respondent attended. Ci s. E.B. VAN s V- i i ★ D 13/10/2023 IAT) DlV\ 10