khadija selemani vs muhibu juma others 2018 tzhclandd 379 18 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.193 of 2017 KHADIJA SELEMANI APPELLANT VERSUS MUHIBU JUMA............. .1st RESPONDENT WINFRIDA KUNDAUPO. 2 nd RESPONDENT EQUITY BANK............... 3rd RESPONDENT YONO AUCTION MART ,4th RESPONDENT Date of Last Order: 09.05.2018 Date of Ruling: 18.06.2018 JUDGMENT S.A.N WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal of Temeke in Land Application No. 266 of 2013, the appellant Khadija Selemani filed five grounds of appeal being;- 1. That the trial Chairman erred in law by delivering a decision without any legal justification or support toward such decision. 2. That the trial Chairman erred in law and fact by not giving reasons as why he reached such decision as it is required by the principles of natural justice. 3. That the trial Chairman erred in law and fact by providing an erroneous decision that the consent of the applicant in mortgage contract was freely, rightly and legally obtained while in fact was fraudulently and illegally obtained through conspiracy of the husband with the 2nd and 3rd respondents. 4. That the Honourable tribunal erred in law and fact to rule that as the matrimonial house was legally mortgaged hence should be auctioned by the 3rd and 4th respondents while fraud involved in the mortgage transaction was a bar to the legal mortgage. 5. That the Honourable tribunal erred in law and facts by delivering such erroneous decision by upholding the evidence of the 3rd respondent which failed to relate the value of the loan to that of the mortgaged house which is quite very little denoting fraud involved. She thus prayed that the said decision be quashed and the appeal be upheld with costs. The respondents Winfrida Kundaupo 2nd respondent, Equity Bank 3rd respondent and Yono Auction Mart 4th respondent challenged the appeal and prayed for the dismissal of the appeal with costs while Muhibu Juma 1st respondent supported the appeal by admitting that he did not involve his wife (the appellant) when he mortgaged the property. 2 In order to understand the decision to be issued herein I believe there is a need of adducing a brief historical background of this appeal. The appellant herein instituted a suit against the respondents seeking a declaration that the intended sale was null and void as the mortgage transaction was void obinitio for lack of a valid consent of the spouse. She further prayed for the tribunal to issue permanent injunction to restrain the respondents from disposing off the mortgaged property. The 3rd respondent only denied all the appellant's claims and prayed for the dismissal of the application with costs. During the hearing of the suit, three issues were framed, namely; /. Whether the suit house is matrimonial property between the applicant and the first respondent legally mortgaged to the third respondent by the second respondent. 2. Whether the first and third respondents fraudulently obtained the applicant’s consent to the mortgaged property. 3. If issues number I and 2 are answered in affirmative as to what reliefs are parties entitled to. Having heard both parties, the District Land and Housing Tribunal found in favour of the 3rd respondent. It held that the appellant freely consented to the mortgage of their matrimonial house and that since the loan had not been re-paid, the mortgaged house should be auctioned to enable the third respondent recover the loan secured by a suit property. Aggrieved the appellant has now appealed to this Court. The appellant was represented by Mr. Francis learned Counsel whereas the 3rd and 4th respondents enjoyed the legal services of Mr. E. Swai Advocate, and the 2nd respondent appeared in person unrepresented. At the hearing of the appeal, Mr. Francis prayed to abandon the 1st, 2nd, 4th, and 5th grounds of appeal and submitted only on the 3rd ground of appeal. He argued that in mortgaging a matrimonial property, the spouse has to consent to the contract as per Section 114 (1) (a) of the Land Act. He stated that the appellant and the 1st respondent had a dispute and the appellant wanted her name to be added in the title of the disputed house. That without knowing she signed the consent paper believing that the document was for including her name in the title deed. That the appellant issued her consent by fraud which is not proper in law. He thus averred that it was wrong for the District Land and Housing Tribunal to hold that the consent was freely issued instead of nullifying the same. He therefore prayed for the appeal to be allowed. In response the 1st respondent admitted that he did not involve the appellant in the mortgage because they had a dispute. He stated that he conspired with the 2nd respondent by lying to the appellant that the document she was signing was for her to become the owner of the property. He further submitted that the appellant became aware of the same when the 3rd respondent wanted to sell the house. She thus filed the suit. 5 Mr. Swai learned counsel for the 3rd respondent contended that the allegations by the appellant and the 1st respondent were not true because the appellant signed the document on 10/10/2012 in front of the Advocate one Allan Mwakyoma. He averred that the issue of fraud is just an afterthought because there is no criminal case filed by the appellant in respect of the fraud. That the appellant and her husband wanted to avoid paying the debt and save their house from being disposed of. He thus prayed to the court to uphold the decision of the trial tribunal and dismiss the appeal with costs. In reply, Mr. Francis submitted that since the 1st respondent admitted that the consent was fraudulently acquired, then this court should nullify the said mortgage and allow the appeal with costs. According to the evidence on record, the appellant does not dispute the fact that she signed the consent document. What she is challenging is that the said consent was fraudulently acquired because she did not know English, and that she believed she was 6 signing a document so as to add her name as the owner on the title deed. On the other hand the 1st respondent admitted that he fraudulently acquired the appellant’s consent by lying to her that she was signing the ownership document. Upon careful perusal of the court record, there is no doubt that the appellant signed the consent document to mortgage the matrimonial house, but only that the consent was acquired by way of fraud. This is because the appellant is allegating that she was not aware of what she was signing. It is a trite law that when the question as to whether someone has committed a crime is raised in civil proceedings that allegation needs to be established on a higher degree of probability than that which is required in ordinary civil cases. In the case of OMARI YUSUF VS RAHMA AHMED ABDULKADIR (1987) TLR 169 the Court of Appeal of Tanzania held that; “/ think it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases, the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of proof..." It is my belief that under the circumstances of that matter the appellant has failed to prove that her consent was fraudulently obtained. It is a mere allegation which has not been proved. It is most likely that the appellant consent was fraudulently acquired. But as submitted by Mr. Swai, the appellant and the 1st respondent could also conspire to state that consent was fraudulently acquired so as to avoid paying the debt and save their house from being disposed of by the 3rd respondent. This is because the 1st respondent appears to be changing according to the circumstances. It is thus difficult to believe such a person. I thus find that the trial Tribunal properly evaluated the evidence before issuing an Order to the 3rd respondent to auction the mortgaged house so as to recover the loan secured. 8 Having said that, this court finds no justifiable reason to disturb the finding of facts of the Lower Tribunal. The decision of the District Land and Housing Tribunal of Temeke in Land Application No. 266 of 2013 is upheld. The appeal is accordingly dismissed with costs. JUDGE 18.06.2018