LAND APPEAL NO 15937

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ; AT PAR ES SALAAM LAND APPEAL NO. 15937 OF 2024 ) (Originating From Application No. 10 of 2023, Temeke District Land and Housing Tribunal) HANIFA YASIN KABEREGE.................................................................... APPELLANT VERSUS MAISARA AMIRI MATAKA............................................................1st RESPONDENT MAISARA AMIRI MATAKA t/a ; MAZIPRO TRADERS................................................................... 2nd RESPONDENT STANBIC BANK (T) LTD.............................................................. 3rd RESPONDENT SARASELISTEMBA.................................................................... 4th RESPONDENT JUDGMENT 2nd to 18th September, 2024 E.B. LU VAN DA, J In this appeal the Appellant is challenging the decision of the Tribunal dismissing her suit and granting a counter claim by the Third Respondent. At the Tribunal the Appellant sued the First, Second and Third Respondent mentioned above for creating mortgage over the matrimonial properties to wit Plot No. 2025 Block "Y" Majimatitu Vikindu Dar es Salaam City; Plot No. 2840 Block "Y" Mbagala Majimatitu Area Temeke Municipality and Plot No. 9 Block "L" Rujewa Urban Area, without her consent. The Appellant tendered a marriage certificate exhibit Pl depicting she contracted marriage with the First Respondent under Islamic rites on 16/02/2012. | i Meanwhile, the Third Respondent raised a counter claim against the First Respondent, Second Respondent, Appellant also impleaded the Fourth Respondent as the one who consented for the above suits properties to be mortgaged for a loan of TZS 220,000,000/=, as per the mortgage of right of occupancy exhibit DI and spouse consent exhibit D2. The Appellant on the other hand, was challenging the mortgage exhibit DI for ground that it was created over her matrimonial properties without her consent or involvement. The Tribunal disbelieved the testimony of the Appellant with eventuality of dismissing her claim, in lieu thereof believed a story by the Third Respondent by decreeing that the suit properties were legally mortgaged and ordered the First Respondent to pay a debt of TZS 166,027,702.43. Also ordered the Appellant along the Appellant along the First, Secon and Fourth Respondent to pay the Third Respondent general damages of TZS 3,000,000/= each. The Appellant was aggrieved, hence this appeal. In the memorandum of appeal, the Appellant grounded that: One, the Tribunal erred in law and fact for failure to consider the necessity of procuring the consent of the Appellant as the legal wife of the First Respondent before executing a mortgage deed involving a matrimonial home; Two, the Tribunal erred in law and fact in holding that the First Respondent assured the Bank (Third Respondent) that the Fourth Respondent is the only one and/or legal wife of the First Respondent while in 2 absence of any proof to that effect; Three, the Tribunal erred in law and facts for ordering general damages of TZS 3,000,000/= to the Appellant without the reasons for so doing. Mr. John Lingopola learned Counsel, arguing for first ground of appeal; the learned Counsel submitted that the Appellant in her testimony clearly stated that she is the only wife of the First Respondent whose marriage was celebrated under Islamic laws on 16/06/2012, as per exhibit Pl. He submitted that it was the testimony of the Appellant that during substance of their marriage they acquired landed properties mentioned above, which are matrimonial home where the Appellant and her children reside. He submitted that it is trite law that for a matrimonial property to be mortgaged the spouse living in that matrimonial home must consent, citing sections 114(1) and 161(3)(a) and (b) of the Land Act, Cap 113 of 2019, section 59(1) of the Law of Marriage Act, Cap 29 R.E. 2019. He submitted that the Appellant consent was not obtained and she was not involved before the creation of the mortgage over the suit properties between the First and Third Respondent, arguing it is avoidable at the option of the Appellant as the only spouse of the First Respondent living in the suit properties. He cited National Bank of Commerce Limited vs Nurbano Abdallah Mulla, Civil Appeal No. 283 of 2017. He submitted that the Third Respondent had an obligation and responsibility to ascertain the 3 marital status of the First Respondent, arguing the same applies to the First Respondent had the reciprocal duty to disclose information of his spouse as stated under section 114(2) and (3) of Cap 113 (supra), National Bank of i Commerce Limited vs Nurbano Abdallah Mulla, Civil Appeal No. 283 of 2017 For ground number two, the learned Counsel submitted that the Tribunal holding to the effect that the Fourth Respondent is the legal wife of the First Respondent is wanting for want of proof, citing section 110(1) of the Evidence Act, Cap 6 R.E. 2019. He submitted that it was only the Appellant who tendered a marriage certificate exhibit Pl, arguing it was expected for Respondent to tender either affidavit or marriage certificate which were not tendered. He submitted that even if the Fourth Respondent is another wife of the First Respondent, arguing it does not eliminate the fact that the Appellant is the only wife of the First Respondent who resides in the disputed area with her children and therefore her consent was necessary to be obtained before the properties were mortgaged. For ground number three, the learned Counsel submitted that it is well known that when the Court award general damages it has to assign reasons for doing so. He submitted that the Tribunal awarded general damages of TZS 3,000,000/= to the Third Respondent without assigning any reason for 4 awarding the same. He cited Antony Ngoo and Another vs Kitinda Kimaro, Civil Appeal No. 25 of 2014, Reliance Insurance Company (T) Ltd and Two Others vs Festo Mgomapayo, Civil Appeal No. 23 of 2019, CAT. In reply, Mr. Fredrick Mbise learned Counsel for the Third Respondent; for ground number one, he submitted that this ground was not an issue for determination before the Tribunal, argued it cannot be a ground of appeal for explanation that the Tribunal did not determine the issue of necessity of procuring consent from the Appellant as the legal wife of the First Respondent. He submitted that the issue was whether there was a legal spouse consent issued in accordance to the law, arguing which was answered in affirmative, citing page nine of the impugned judgment. He submitted that the evidence of the First Respondent who acknowledged that the Fourth Respondent is his wife and he is the one who introduced her to the Babk as his wife or spouse, arguing that as a result proper spouse consent was obtained prior to entering mortgage. He submitted that the Fourth Respondent proceeded to issue spouse consent, as per exhibit D2. He submitted that the issue of consent from the Appellant was not raised as an issue and was not determined, arguing therefore that cannot be argued during the appeal for reason that there was no witness or evidence tendered to determine that issue. He submitted that the Third Respondent fulfilled the requirement of section 114(l)(a) Cap 113 (supra) by 5 I making sure the Fourth Respondent who is the wife of the mortgagor signed a spouse consent. j For ground number two, the learned Counsel submitted that the First Respondent testified that the Fourth Respondent is his wife, arguing that there was no objection to the effect that she is not his wife, citing Goodluck Kyando vs Republic [2006] TLR 363. He submitted that the law provides that any document signed by spouse and mortgagor in creating mortgage makes that mortgage a valid mortgage, citing section 114(1) of Cap 113 (supra). He submitted that the Fourth Respondent signed spouse consent in creating mortgage, making the mortgage created as valid. He submitted that section 114(2) Cap 113 (supra), it protects both the spouse of the mortgagor and the lander of the money which is secured by the mortgaged property. He submitted that once the mortgagor has disclosed that he has a spouse and that spouse signs that spouse consent form, arguing that the mortgagee has no responsibility to investigate further, as the spouse has already been disclosed and has signed the spouse consent. For ground number three, the learned Counsel submitted that the Tribunal did give reason to why it granted general damages, citing page eleven of the impugned judgment. He submitted that general damages were granted due to presence of the application before the Tribunal which cause the Bank not to be 6 able to sale the mortgaged properties and recover the loan on time. He cited Vidoba Freight Co. Limited vs Emirates Shipping Agency (T) Ltd and Another, Civil Appeal No. 12 of 2019, CAT. On rejoinder, the learned Counsel for Appellant submitted that the Appellant claims from the beginning were basically basing on a fact that she is the First Respondent wife (as per exhibit Pl) living in the disputed area and yet she was not informed neither involved nor consented in the creation of the mortgage which could not have been created without her consent, for explanation that the property in dispute is a matrimonial home where the Appellant and her children reside. He submitted that this can not be a new issue for explanation that the Appellant pleaded the same fact in her application at the Tribunal, arguing parties are bound by their pleadings, citing Maria Amandus Kavishe vs Norah Waziri Mzeru and Another, Civil Appeal No. 365 of 2019, CAT, page sixteen. He submitted that the Appellant right to consent over the the mortgage as a legal wife of the First Respondent living in that matrimonial property in dispute with her children could never be excluded or washed away simply because someone else whom is assumed to be the wife of the First Respondent consented to the mortgage. For ground number two, the learned Counsel submitted that any matrimonial home acquired jointly by a couple cannot be disposed of in the absence of 7 spouse consent and equally in mortgage transactions spouse consent is very crucial and is a requirement of the law, citing section 114(l)(a) and (2) Cap 113 (supra). He submitted that the lender ought to take reasonable steps to verify spouse consent in the mortgage and to determine whether the mortgagor (First Respondent) has or does nota have a spouse, citing Hellena Kususya vs Dennis Mathew Mabuba and Two Others, Land Case 432 of 2020. He submitted that the mortgagee (Third Respondent) was satisfied with the spouse consent which was merely presented and no further diligent and reasonable steps were taken to ascertain the Appellant was the wife of the First Respondent or if the latter had another wife. He submitted that the Third Respondent had obligation and responsibility to ascertain the marital status of the First Respondent, arguing that no evidence by way of affidavit or written document that was tendered by the Third Respondent on proving that they made efforts to inquire the First Respondent if Sara was true and the only wife taking into consideration that Sara has no certificate of marriage. For ground number three, the learned Counsel submitted that court when exercising it's discretion to award general damages, must assign reasons in awarding the same, citing Reliance Insurance Company (supra). On my part, for ground number one which goes thus, the Tribunal erred in law and fact for failure to consider the necessity of procuring the consent of the 8 Appellant as the legal wife of the First Respondent before executing a mortgage deed involving a matrimonial home, I am not seeing any merit on this ground. As alluded by the learned Counsel for the Third Respondent, the question of failure to consider the necessity of procuring the consent of the Appellant, was not among the issues framed. The issue before the Tribunal was whether there was a valid spouse consent. In her testimony, the Appellant asserted that she ought to have been involved and her consent obtained, nowhere she imported the issue of necessity of procuring her consent. In her testimony in chief, the Appellant stated that, 'Mume wangu ana mke mmoja tu ambaye ni mimi hapa. Sara Sells Temba mimi simjui. Dini inaruhusu kuoa mke zaidi ya mmoja iakini mume... kunishirikisha mke wake au ndugu. Hivyo hakuna anaye mfahamu' The First Respondent, when was cross-examined by the learned Counsel for Third Respondent, she stated that, 'Mimi sikumtambuiisha Sarah Ha waiikuja dukani kunisainisha mkataba wa mkopo. NiiiuHzwa kama Sarah ni mke wangu na niliwaeleza kuwa Sarah ni mke wangu' In testimony in chief, the First Respondent asserted that, Sara nimeanza kuishi naye mwaka 2018. Huyu Sarah tuiianzisha duka ia pamoja iia hatujajenga naye nyumba' Zahirina Daud Mushi (DW2) who testified for the Third Respondent, when was cross-examined by the learned Counsel for the Appellant stated that, 9 'Cheti cha ndoa ndio uthibitisho. Aiiapa na sisi tuliamini ni mke wake. Hicho kiapo kwamba Sarah ni mke wa ndoa sijatoa Barazani' I In view, of the foregoing, the argument that there was a necessity of procuring the consent of the Appellant, or that the Appellant was not involved or that affidavit or marriage certificate were not tendered to prove marriage between the First and Fourth Respondent, is immaterial. This is because, the First Respondent recognized the Fourth Respondent as his wife. Indeed, the Appellant conceded a fact that her marriage was polygamous. Importantly, as per the testimony of the First Respondent that the Third Respondent took steps to visit at the First Respondent's shop, where the latter introduced Sarah as his wife. To my view, the argument of the learned Counsel for Appellant that that the Third Respondent had an obligation to search and establish if the First Respondent had only one wife, is overstretching and going beyond the requirement of the law. Above all, the purported matrimonial properties, the First Respondent stated that he acquired them prior contracting marriage with the Appellant, to wit Plot No. 2025 Block "Y" Majimatitu Vikindu Dar es Salaam City was acquired on 7/12/2009; Plot No. 2840 Block "Y" Mbagala Majimatitu Area Temeke Municipality was acquired on 20/05/2011 and Plot No. 9 Block "L" Rujewa Urban io Area was acquired on 7/11/2011, while exhibit Pl depict the Appellant and First Respondent contracted marriage on 16/06/2012. | Again, in her pleading (application) the Appellant asserted that the three above mentioned properties are family home. In her testimony the Appellant asserted that they are living in one of the three houses, one is rented and the one at Mbarali they use it for holiday visit. The First Respondent stated that one house is for residence, a house at Mbagala is leased and a house at Mbarali Mbeya is a godown. Therefore, there is no evidence that all the three properties are indeed used as matrimonial home. This findings take into board ground number two as well. For ground number three, that the Tribunal erred in law and facts for ordering general damages of TZS 3,000,000/= to the Appellant without the reasons for so doing. In the impugned judgment, specifically at page eleven, at the bottom extreme last line, the Tribunal ruled, 'Pia, Benki inastihiii kulipwa fidia ya hasara ya ujumla kwani uwepo wa shauri hili umetokana na matendo ya inayoiaiamikia Benki. Hivyo Mieta maombi, Mkopaji na Sara kiia mmoja a/ipe Benki gharama kiasi cha Tshs 3,000,000/=' The alleged acts for which the Third Respondent alleged is complaining for, were not disclosed (unknown). The learned Counsel for Third Respondent li submitted that general damages were granted due to presence of the application before the Tribunal which cause the Bank not to be able to sale the mortgaged properties and recover the loan on time. I totally disagree with this proposition, for it is facts neither born out of pleadings or evidence and are even missing in the impugned judgement. This is because in the counter claim the Third Respondent pleaded for general damages, but the Tribunal awarded costs at a tune of TZS 3,000,000/=. To my view, this amount is unjustifiable and no reason were attached to it is award. Therefore, the said award is set aside against the Appellant. Judgment delivered in the presence'of Jackline Paulo Makundi legal officer from Jeris Law Chamber Advocate fon Appellant, Mr. Fredrick Mbise Advocate for Third Respondent, in the absence^f the First, Second and Fourth Respondent. H OWE-B^VAND. S1M O/2024 Ira ^S^ 12