LETSHEGO JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA LAND APPEAL NO. 26513 OF 2022 (Arising from Land Application No. 16 of 2022 in the District Land and Housing Tribunal for Mwanza at Mwanza) LETSHEGO BANK (T) LTD…………………………………………………APPELLANT

VERSUS MUSTAPHA MUHOGO RAJABU…………………………………...1ST RESPONDENT MUSSA YUSUPH MABAWA………………………………………..2ND RESPONDENT

JUDGMENT 15th & 31st October, 2024 KAMANA, J. This is the first appeal in which Letshego Bank (T) Ltd, the appellant, challenges the decision of the District and Land Housing Tribunal (DLHT) for Mwanza. In the trial, Mr. Mustapha Muhogo Rajab, the first respondent, sued the appellant and Mr. Mussa Yusuph Mabawa, seeking several orders. Amongst the orders was a declaration that the mortgage was void. Further, the first respondent asked the DLHT to order the release of the alleged mortgaged property and an injunction to restrain the appellant from selling the mortgaged property. 1 It is not in dispute that the appellant and the second respondent entered into an agreement in which the former advanced a loan of TZS 45 million to the latter. On the part of the first appellant, it was of the firm position that the loan was secured by the first respondent who mortgaged his house located at Plot No. 321 Block “A” North Buswelu in Mwanza. The first respondent has a different story as he testified that he did not mortgage his property but submitted the certificate of the right of occupancy in respect of the said plot to the bank only for valuation purposes. The DLHT was not afforded the opportunity to hear the second respondent's story as he opted not to appear before it. When the matter was set for a hearing, the DLHT framed two issues. One, whether the first respondent mortgaged his

house located at Plot No. 321 Block “A” North Buswelu in Mwanza to facilitate the issuance of the loan by the appellant to the second respondent. Two, reliefs are entitled to parties. During the trial, the first respondent testified that he was approached by the second respondent who asked him to secure the latter’s loan. He evidenced that the officers from the appellant went to his house to satisfy themselves as to whether the house was under any mortgage. He testified that he did not place his house as a security for 2 the loan as his wife was not involved and he did not know the borrowed sum. He added that he did not sign any document that put his house as collateral for the loan other than the documents that submitted the certificate of occupancy to the appellant for valuation purposes. On cross-examination, the first respondent testified that he submitted the certificate of occupancy to the appellant. He added that he referred the dispute to the Buswelu Ward Tribunal. He tendered the reference letter written by the Tribunal to the DLHT which was admitted as Exh.SMA1. The appellant, through its witness Mr. Ezron Mayasa, testified that the first respondent came to the appellant and signed an agreement to guarantee the repayment of the loan issued to the second respondent. He tendered the agreement which was admitted as SMA-2. On cross- examination, the witness evidenced that

the description of the mortgaged house is shown in annexure 4 of the agreement. Having heard the evidence adduced, the DLHT, after analyzing the evidence, found that the first respondent did not sign any agreement with the appellant that had an effect of placing his property as the security to the loan issued to the second respondent. The DLHT based its findings on the reasons the Exh.SMA-2 which was alleged by the 3 appellant to be the agreement for securing the loan was not signed by the first respondent but the second respondent. The DLHT held the views that it was incumbent on the part of the appellant to tender before it Loan Agreement No. 601-001885 between the appellant and the second respondent which was mentioned in the agreement for securing the loan as a supplement to the said agreement which was signed by the second respondent and the appellant. It was the position of the DLHT that the said loan agreement was necessary to establish whether the first respondent consented to such an agreement. In furtherance of its reasoning, the DLHT held the views that Exh.SMA-2 does not show the description of the alleged mortgaged house. Based on the said reasoning, the DLHT found the application with merits and granted the sought reliefs. The appellant was not satisfied hence this appeal which initially was premised on one ground that the trial tribunal erred for failure to

analyze and evaluate the evidence hence reaching to erroneous judgment. When the matter was set for a hearing, the appellant added another ground of appeal that DLHT erred in law for failure to take into account the opinion of the assessors and failure to give reasons for 4 differing with the assessors’ opinions. As it was during the trial, the matter proceeded to exparte against the second respondent. Arguing for the first ground, Mr. Innocent Michael, learned Counsel for the appellant, contended that the DLHT did not analyze the evidence adduced and did not furnish reasons that led to its erroneous decision. He amplified that the DLHT did not understand Exh.SMA-2 which was an agreement between the appellant and the first respondent as it was signed by them contrary to the DLHT’s views that the agreement was not signed by the first respondent. Mr. Michael argued that it was incorrect for the DLHT to hold that Exh.SMA2 does not show the description of the mortgaged house while the appellant’s witness testified that the description is provided in annexure 4 of the agreement (Exh.SMA-2). The learned Counsel went on to argue that when Exh.SMA-2 was admitted, and the first respondent did not raise any objection, so far as the signatures were concerned. Concerning Exh.SMA-1 which is a reference from the Ward Tribunal to the DLHT, Mr. Edward relied on it as, in his views, the same

exhibits that the first respondent agreed to place his house as a security for the loan issued to the second respondent. The learned Counsel added that during the cross-examination the appellant agreed that he referred the 5 matter to the Ward Tribunal where he admitted to having secured the loan that was advanced to the second appellant. On the second ground, Mr. Michael contended that the DLHT erred in failure to take into account the opinion of the assessors and to give reasons for differing from their opinions. He asserted that the assessors thought that the first respondent guaranteed the loan and hence he was responsible. The learned Counsel held the view that it was incumbent on the DLHT to assign reasons for departing from the assessors’ opinion as per section section24 of the Land Disputes Courts Act, Cap. 216 [RE.2019]. In this regard, he relied on the case of Jasmine Ayoub Ally Mosha v. Ramadhani Ally Mosha, Civil Appeal No. 197 of 2020- CAT (Unreported). Responding to the first ground of appeal, Mr. Arnold Katunzi, learned Counsel for the first respondent held the view that what was submitted by his counterpart does not reflect the ground of appeal. He argued that Mr. Michael did not submit on the failure to analyze the evidence. He amplified that regulation 20(1)(b) of Land Disputes Courts Regulations, 2003 requires the judgment to contain findings on the issues.

That being the position, Mr. Katunzi maintained that when there 6 are findings on the issues as it was in the impugned judgment, one cannot complain that there was no analysis. He argued that what was submitted by Mr. Michael contravenes Order 39 Rule 2 of the Civil Procedure Code, Cap.33 [RE.2019] which requires arguments to be on the grounds of appeal. Alternatively, Mr. Katunzi contended that the appellant was under the duty to prove that the first respondent mortgaged his property as a security for the loan taken by the second respondent. He added that as per section 64(1)(a) of the Land Act, Cap. 113 [Re.2019], a contract for the disposition of interests in land is enforceable when it is in writing. Given that, he held the view that to prove the existence of the mortgage, only documents should be consulted and not the evidence adduced by the witnesses. Mr. Katunzi assailed Exh.SMA-2 for not being attested contrary to section 63(1) of Cap.

113. He added that the said exhibit did not mention the mortgaged property. Further, he contended that annexure 4 which is argued to contain the description of the house was not tendered in evidence. 7 On the second ground, Mr. Katunzi was brief. He argued that as per section 45 of Cap. 216, no revision or appeal is allowed to quash the DLHT’s decision unless there is a miscarriage of justice. I have given considerable thought to the facts of the case and arguments by the legal minds. In determining the grounds of appeal, I will exercise my powers as the first appellate court which requires me to analyze the evidence adduced and come to my conclusion. See. Rashid Abiki Nguwa v. Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 of 2020. With respect to the first ground of appeal, Mr. Michael, learned Counsel for the appellant, held the view that the DLHT failed to analyze the evidence which led to its erroneous decision. Mr. Katunzi had the opposite view. I have perused the DLHT’s Ruling and found that it analyzed the evidence adduced and was satisfied that the first respondent did not mortgage his property to secure the loan. According to pages 7 and 8 of the DLHT’s Ruling, the presiding Chairman (Hon. Lekamoi) had this to state: ‘…..kielelezo SMA-2 katika jurat of attestation kinaonyesha kuwa aliyesaini Mkataba wa mdhamini wa mkopo ni 8 mkopaji na sio mdhamini.

Kielelezo SMA-2 kina maelezo kuwa ni nyongeza ya mkataba wa mkopo namba 601- 001885 lakini mkataba huo haujawasilishwa Barazani ili kubaini endapo mwombaji aliridhia makubaliano hayo ili Baraza lione masharti ya mkataba huo. Aidha kielelezo SAM-A2 kilitakiwa kizungumze chenyewe (Rejea kifungu cha 100(1) cha sheria ya Ushahidi sura ya 6 rejeo la 2019, aidha ni wazi kuwa mwombaji alihusika kwenye mkataba wa mwaka 2000, hivyo makubaliano ya wajibu maombi baada ya yale ya 2000 hayamhusu mwombaji hivyo nyumba yake ipo huru kama ilivyoamriwa katika shauri la …………………….’ In my view, that was the evaluation of the evidence which led to the conclusion that Mr. Michael took it to be erroneous. As the first appellate court, I agree with the conclusion that was reached by the DLHT though I do not agree that the first respondent did not sign Exh.SAM-2. This is because it is evident that the first respondent signed as a party to the agreement witnessed by the second defendant. In his evidence during the trial, the first respondent testified that his wife was not involved when he handed over the certificate of 9 occupancy to the appellant. This evidence was not cross-examined by Mr. Michael. The established principle of law is that when a certain fact is not subjected to cross-examination, it is considered that the adverse party admits that the testified fact is the truth. See: Issa Reji

Mafita v. Republic, Criminal Appeal No. 337 “B” of 2020. However, in his evidence, the first respondent did not testify that the house in dispute is the matrimonial home. It is an established principle that a matrimonial home cannot be disposed of in any way, including by way of mortgage without the spousal consent. See: National Bank of Commerce Limited v. Nurbano Abdallah Mulla, Civil Appeal No. 283 of 2017. That being the position, the assertion by the first respondent that his wife was not involved when he submitted the certificate of occupancy for valuation purposes holds no water as there was no evidence that the property was a matrimonial home. As to whether Plot No. 321 Block “A” Buswelu, Mwanza was placed as the security, the first respondent evidenced that he submitted the certificate of occupancy to the appellant for valuation purposes and that he did not sign the agreement that placed the said house as the security for the loan. The appellant maintained that Exh.SMA-2 was signed by the first respondent to place the said house as a security for the loan. 10 I have gone through Exh.SMA-2 and found nothing that suggests that Plot No.321 Block “A” Buswelu in Mwanza was placed by the first appellant as the security for the loan taken by the second respondent. What can be gleaned from Exh.SMA-2 is the provision that annexure 4 to the agreement provides for the property

that has been put as the security for the loan. From the records, annexure 4 was not tendered in evidence. This is evidenced by the appellant’s witness that annexure 4 was not part of Exh.SMA-2. Given that, there was no evidence before the trial court that the house located on Plot 321 Block “M” Buswelu in Mwanza was placed as security for the loan issued to the second respondent. Strangely, the appellant, in his evidence, failed to tender the loan agreement that is termed to be the principal agreement to Exh.SMA-2. With such evidence, it is not clear whether or not the house in question was placed as the security. As regards Exh.SMA-1, I hasten to differ with Mr. Michael that the exhibit proves that the first respondent secured the loan. The said exhibit is a reference from the Ward Tribunal to the DLHT which contains no evidential value other than evidencing that the matter was filed in the 11 Ward Tribunal for mediation. For those reasons, the first ground crumbles. Concerning the second ground, Mr. Michael argued that the presiding Chairman erred by failing to assign reasons for departing from the assessors’ opinion. Mr. Katunzi brushed off the argument by contending that no appeal or revision is capable of quashing the DLHT’s ruling if there is no miscarriage of justice. I hasten to state that as per section 24 of Cap. 216, when the presiding Chairman held a different

opinion from the assessors, he is duty-bound to furnish his reasons for such departure. In this, I disagree with Mr. Michael that the presiding Chairman did not assign reasons for departing with the assessors' opinion. According to page 8 of the DLHT’s Ruling, the presiding Chairman, after analyzing the evidence as quoted hereinabove, went on to state the following: ‘Kwa maelezo tajwa hapo juu ni wazi kuwa mwombaji ameweza kuthibitisha dai lake hivyo sikubaliani na maoni ya wajumbe wa Baraza……………………’ Deducing from the recently quoted passage when read together with the passage relating to the analysis of the evidence adduced, it is clear as crystal that the presiding Chairman assigned reasons when 12 departing from the assessors’ opinion. This is because after reproducing the assessors' opinion which was in favour of the appellant, the presiding Chairman analyzed the evidence adduced by the parties which led him to conclude differently from the assessors’ opinion. In taking that position, I am inspired by the views of my learned brother Luvanda, J in the case of Mkama Stephano and Another v. Florence Paschal and 2 Others, Land Appeal No. 14710 of 2024 where he observed: ‘To my view, the style of the learned Chairman depicting what are the opinion by members of the Tribunal, thereafter embarking into demonstrating reasons which invariably form departure to the opinion by assessors, were sufficient for the purpose of compliance to the requirement of the law.’ The ground is devoid of merits. From the analysis, I dismiss the appeal with costs. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 31st of October, 2024. 13

KS KAMANA

JUDGE 14