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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 7479 OF 2024 (Originating from the Judgment and Decree of Application No. 171 of 2020 of the District Land and Housing Tribunal for Mbeya at Mbeya by Hon. A. Mapunda) GEDINA SAKAJINGA MWANKYUSE…………..……..….…APPELLANT VERSUS FARIDA MWAKAMISA SANGA………...….………….1ST RESPONDENT ASANTE FINANCE LTD…………………………….…..2ND RESPONDENT NSAJIGWA SIMSOKWE………………….……………3RD RESPONDENT JUDGMENT Date: 6 January 2025 & 5 March 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT). The brief facts of the case are that the appellant owned Plot No. 224 Block JJ Itezi within Mbeya Region (the Disputed Property). In 2016, the appellant mortgaged the Disputed Property to the second respondent for a loan. 1 According to the appellant, she was only the guarantor of the loan, but the actual borrower was the first respondent. However, the first and the second respondents claimed that the loan was taken by both the appellant and the first respondent. That, after the failure to pay the loan, the Disputed Property was sold to the third respondent. The appellant unsuccessfully sued the respondents herein before the DLHT. Dissatisfied with the decision of the DLHT, she brought this appeal on the following grounds: 1. That, the trial tribunal erred in law and fact by entertaining and considering the respondents' evidence while they departed from their pleadings. 2. That, the trial tribunal erred in law and fact by deciding that the sale of the disputed land adhered to the law while there was clear evidence that the law was contravened. 3. That, the trial tribunal erred in law and fact by failing to analyze and assess the evidence adduced by the appellant, and hence, it reached an unjust decision. 4. That, the trial tribunal erred in law and facts to decide the matter based on weak evidence adduced by the respondents. 2 Hearing of the appeal was by of written submissions. The appellant was represented by Mr. Felix Kapinga, learned counsel. The first, second and the third respondent appeared in person, unrepresented. Submitting on the first ground of appeal, Mr. Kapinga began by citing the case of Yara Tanzania Limited vs. Ikuwo General Enterprises Limited, Civil Appeal No.309 Of 2019. The case, among other things, discussed a celebrated principle that parties are bound by their pleadings. He added that the second respondent introduced facts not pleaded in her pleadings. For instance, the issue of taking the appellant to court and issuing a notice of default to the appellant. Also, the issue that the appellant was the borrower. Mr. Kapinga believed that the newly introduced facts ought to have been ignored by the DLHT. Moving to the second ground, the counsel submitted that one of the issues for determination was whether the second respondent was right to sell the Disputed Property and followed the proper legal procedure. Mr. Kapinga faulted the DLHT for not observing whether the notice was issued to the appellant as a guarantor and if the procedures pertaining to public auction were complied with. In support of his argument, he cited the case of Martha George Kilimo vs. NCBA Bank Tanzania Limited & Two Others, Land 3 Case No. 96 of 2022 (Unreported). The counsel cemented that the second respondent tendered no evidence to prove the public auction adhered to the procedures as provided by the law. Moreover, Mr. Kapinga pointed out contradictions concerning the broker's name that conducted the sale. He added that PW2 mentioned the broker as QUESTION MARK. PW3 mentioned the broker as TANZANIA AUCTION MART, while PW4 mentioned TANZANIA QUALITY as the broker. He said the contradictions are questionable as to the credibility of the evidence. The counsel prayed to argue the third and fourth grounds of appeal together. To begin his argument, he cited the case of Leonard Mwanashoka vs. Republic, Criminal Appeal No. 225 of 2014 (Unreported) and that of Stanslaus Rugaba Kasusura & Another vs. Pharase Kabuye [1982] TLR 338. Both cases, inter alia, discuss principles governing the analysis and evaluation of evidence. He submitted that from the DLHT judgment (the Judgment), particularly on page six (6), the DLHT reached a conclusion considering only evidence from the respondents’ side. He added that the DLHT’s conclusion on page six (6) came out from the framed issue that “Nani kati ya mdai na mdaiwa namba 1 ndiye aliyekopeshwa na mdaiwa namba 2”. 4 In conclusion, the counsel insisted that the adduced evidence clearly shows that the appellant was just a guarantor and the first respondent was the borrower. In her reply submission to the first ground of appeal, the first respondent argued that it is true the law requires parties to be bound by their pleadings. However, she added that the parties did not introduce new facts nor depart from the pleadings in the matter at hand. That, the new facts mentioned by the appellant’s counsel during submission in chief were all pleaded, even if not by the exact wording. Supporting her argument, she cited the case of Seif Hamad vs Tanzania Union of Commerce [2003] TLR 19. Regarding the second ground, the first respondent submitted that the sale of the Disputed Property was made by adhering to the requirement of the law after default in the loan payment. That after the default, the matter was taken to court and decided in favour of the second respondent. Subsequently, after execution, the court-appointed a broker to sell the Disputed Property. She continued that the case of Martha George Kilimo vs. NCBA Bank Tanzania Limited & Two Others (Supra) is distinguishable from the matter at hand. She added in the cited case, the matter did not go to court, and the bank appointed the broker. She further 5 stated that there were no contradictions in the respondents' evidence that would go to the root of the case. Discussing the third and fourth grounds concerning who the borrower was between herself and the appellant. She argued that the appellant admitted to being the borrower and was responsible for the loan payment. She referred to page six (6), paragraph two (2) of the Judgment. The first respondent argued that in civil cases, the burden of proof lies with the person who alleges it. Where she cited sections 110 (1), (2) and 111 of the Evidence Act, Cap. 6, R.E 2022 (the Evidence Act). he further argued that since the suit is of a civil nature, the standard of proof was based on the balance of probabilities, where the court sustains the evidence which is more credible than the other. For his part, the second respondent, concerning the first ground, submitted that the respondents neither introduced new facts nor deviated from their pleadings. He, too, explained that the new facts pointed out by Mr. Kapinga were not new and were pleaded. Moving to the second ground, the second respondent submitted that the sale of the Disputed Property adhered to all law requirements. The evidence on 6 record reveals that the second respondent gave the appellant fourteen (14) days' notice of intention to sue. After no successful response, the second respondent brought the matter before the DLHT. After the case had concluded, the court appointed the broker to sell the Disputed Property. He cited Section 15 (2) of the Mortgage Financing (Special Provisions) Act of 2008 to cement his argument. That, the court broker engaged TANZANIA QUALITY as the auctioneer where the third respondent purchased the Disputed Property. He further cited Section 12 (3) of the Auctioneer Act, Cap. 227, R.E 2022. Submitting on the third and fourth grounds, the second respondent argued that the DLHT, before reaching its decision, analysed all the evidence adduced before it. He added that the matter of who the borrower between the appellant and the first respondent was determined. He further added that on page six (6) of the judgment, the appellant impliedly admitted to being the borrower. As for the third respondent, for the first and second grounds, the respondent repeated most of what had already been submitted by the first and second respondents. I will, therefore, not reproduce the same hereunder. 7 Moving to the third and fourth grounds, the third respondent argued that under Section 122 of the Evidence Act, it was rightly presumed by the DLHT that the appellant and the first respondent took the loan. He added that the appellant’s counsel intended to misdirect the court as he quoted only part of the paragraph on page six (6) of the judgment. Moreover, he disputed Mr. Kapinga's assertion that the appellant was only a guarantor. That does not exonerate her from liability. For emphasis, he cited Section 80 and Section 92 of the Law of Contract Act, Cap. 345 R.E 2019] (the LCA). It was the third respondent’s submission that the appellant is still liable even in the guarantor’s capacity. I have gone through the submissions from both sides, together with the laws, case laws, and records of the DLHT. I will now deliberate on whether I find this appeal with merit. To begin my discussion, I will first address the third and fourth grounds of appeal. From the records, the appellant claimed she was only the guarantor of the loan that the first respondent took. On the other hand, the first and second respondents contended that the appellant took the loan and the first respondent collectively. However, they admitted that records from the second respondent’s office show the appellant to be the loan's guarantor 8 while the first respondent is the borrower. This is evident from the evidence of DW1 and DW3 on pages 31 and 42 of the DLHT proceedings (the Proceedings). As I revisited the records, particularly on page 31 of the Proceedings during cross-examination, DW1, who is the first respondent herein, stated, and I quote: “Ndio, kwa kumbukumbu ya Asante Finance, mimi ndiye mkopaji na Gedina ni mdhamini.” At page 32, she stated: “Ndio, fedha hizo shilingi 16,000,000/= nilikabidhiwa mimi ila tulikuwa wote na mdai” Further, at page 42 of the Proceedings, DW3 stated and I quote: “Katika shauri hili mkopaji ni Farida Sanga na mdhamini ni Gedina Sakajinga lakini sisi tunahesabu wote ni wakopaji.” From where I stand, and based on the evidence, it is my opinion that the first and second respondent impliedly admitted what the appellant stated. The allegations that the appellant and the first respondent took the loan together are mere words that are not supported by any evidence. That being 9 the case, what is not disputed and what was admitted by both parties is that the appellant was the loan's guarantor. Hence, I believe the DLHT misdirected itself in evaluating evidence. I am aware that in civil cases, who alleges must prove, as seen under Section 110 (1) of the Evidence Act and a number of decided cases, such as Attorney General & Others vs. Eligi Edward Massawe & Others, Civil Appeal No. 86 of 2002 CAT (Unreported). Nonetheless, the above principle goes together with the standard of proof in civil suits. That is, on the balance of probabilities. This means that the court will reach its decision after considering evidence from both sides. The same was discussed in the case of Habiba Ahmadi Nangulukuta & Others vs. Hassani Ausi Mchopa & Others, Civil Appeal No. 10 of 2022. Where it was stated: “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 2019]. 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 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 10 onus lies discharges his/hers and the said burden is not diluted on account of the weakness of the opposite party's case.” As aforementioned, the appellant's evidence that she was just a guarantor of the loan was impliedly supported by the respondents. Therefore, the respondents had the burden of proof. From the records, they failed miserably. Seeing the first respondent was available, it is a surprise that her property, the shop, was not auctioned. Instead, the second respondent sold the Disputed Property, while the appellant who was only a guarantor. The respondents failed to provide evidence to explain that aspect as well. Considering the first respondent’s property was also examined by the second respondent before the loan was issued, it is my opinion that selling the Disputed Property was therefore, in my opinion, inappropriate. At this juncture, the discussion by the DLHT on page six (6) of the Judgment was clearly misconstrued by considering only the respondent’s evidence. It was stated, and I quote: “Katika kesi hii ni jukumu la utetezi kuthibitishi iwapo mleta maombi alikopa. Ushahidi wa SU1, SU3 na SU4 unathibitisha kuwa mleta maombi alikopa. Wametoa ushahidi kwamba suala lilienda hadi mahakama ya mwanzo hata 11 dalali kuteuliwa. Huo ni ushahidi tosha. Mleta maombi mwenyewe amesema alilipa marejesho machache.” The matter being taken to court and the appellant having paid few instalments does not necessarily mean the appellant was a borrower. It could also mean she paid off the instalments in her capacity as a guarantor. It does not escape me that the appellant did not bring any witnesses before the DLHT, while the respondents brought four (4). It is trite law, however, that the quality of evidence matters, not the numbers. The same was decided in the case of Joshua Chipahna @ Kidyani vs. Republic, Criminal Appeal 336 of 2020. Where it was stated: “The learned State Attorney is also correct in pointing out that the weight of evidence to prove a fact does not depend on the number of witnesses. Section 143 of the Evidence Act, which Ms. Gwaltu referred us to, even a single witness can prove any fact. This Court said in Mwita Kigumbe Mwita & Magige Nyakiha Marwa v. R, Criminal Appeal No. 63 of 2015 in each case, the Court looks for quality, not the quantity of the evidence placed before it. The best test for the quality of any evidence is its credibility.” Unfortunately, the respondents' and their witnesses’ evidence was not watertight and, in one way or another, confirmed what the appellant stated. 12 However, the appellant is not entirely exempted from liability since she is, in fact, the guarantor of the loan. Thus, the failure of the borrower to pay the loan impacts her as well, as will be evident shortly. Consequently, I find merit in the third and fourth grounds of appeal. With that, I will not embark on discussing the remaining grounds. In the upshot, the appeal is allowed to an extent. I nullify the DLHT orders that directed the sale of the Disputed Property. Having found that the first respondent was the borrower, I direct the second respondent to sell the first respondent's shop. If the sale is insufficient to recover the loan, then proceed to sell the Disputed Property. No order as to costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 5 Day of March 2025. A. A. SINDA JUDGE 13