ruling MARRY APPLICATION

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO 74 OF 2023 (Arising from Civil Execution No. 25 of 2020 originating from Land Case No. 17 of 2016) MARRY WILLIAM MAGORANGA ………………………………..….…. APPLICANT VERSUS STANBIC BANK TANZANIA LIMITED ………………….…..….. 1STRESPONDENT UK CONSTRUCTION & GENERAL SUPPLIES LTD …….….. 2ND RESPONDENT PILLY RAMADHANI SHENYE (ADMINISTRATIX OF THE ESTATES OF THE LATE MIRAJI SELEMAN KIGERA) .… 3RD RESPONDENT MUGORE MIRAJI KIGERA …………………………………….…. 4TH RESPONDENT PILLY RAMADHANI SHENYE ……………………….…………… 5th RESPONDENT UDAH MIRAJI KIGERA ……………………………..….……...…. 6th RESPONDENT KASSANGA H. KASANGA T/A ROCK CITY TAKERS LTD ……………………………..…………… 7th RESPONDENT RULING 6th May & August, 30th 2024 CHUMA, J. This court is being moved to investigate and set aside the attachment of the house located at plot No. 14 Block J Mukedo Street in Musoma Municipality (hereinafter the suit property) in Civil Execution No. 25 of 2020 for the reason that it does not belong to the judgment debtors of Land Case No. 17 of 2016. The application is made under order XXI Rule 57 (1) and 59, sections 48 (1) and 68 (e) together with section 95 all of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC). 1 Briefly counted from available records, the applicant alleges to be the wife of the late Selemani Juma Kigera (the deceased). She further alleged that on August, 2022 the 6th respondent went to inspect the suit property which she was notified is liable for public auction. Upon her inquiry, she came to know that one Miraji Selemani Kigera mortgaged the suit property to the first respondent without her consent despite the fact that the same is matrimonial property. She alleges further that, the said Miraji Selemani Kigera was never an administrator of the estates of her late husband therefore he had no authority to mortgage the suit property. That, the 2nd, 3rd, 4th, and 5th respondents signed the mortgaged agreement and benefited from that transaction. He was neither part of Land Case No. 17 of 2016 nor Execution Proceedings No. 25 of 2020 which resulted in attachment of the suit property. I ordered the application to be argued by way of written submissions. The submissions of parties were supposed to be filed on 20th May, 2024, 3rd June 2024, and 10th June, 2024 respectively. Mr. Evance Njau, Learned Advocate filed submission of the applicant. The 2nd to 6th respondents filed no reply. On 31st May, 2024, Dr. George Mwaisondola Advocate filed a letter with Reference No. GLC/LIT/2023/SBTL/2876 notifying this court that he was served with the submission in chief on 2 31.5.2024 at 16:22 hours; and that he believed the submission was filed out of time. In conclusion, he said the following; “As a result, we did not manage to file a reply submission on time. Now since the ruling date is already fixed, we have decided to notify the court about non-compliance with the court order dated 6th May 2024” I will start with this contention of non-compliance with the court’s order. I had time to peruse the online judicial filing system. The submission in chief by Mr. Njau was filed on 20.5.2024. That means they were filed within time. According to his letter, Dr.Mwaisondola received the applicants’ submissions before the expiration of the time scheduled by the court for him to file his submission. Surprisingly he didn’t bother to reply rather than filling a letter here in the above referred which had nothing useful before this court. It is unbecoming and it never expected so to happen. Even assuming that they were filed out of time the counsel for the 1st and 7th respondents were supposed to reply to the submissions in chief regardless or to apply for an extension of time to file his reply submission. Contrary to the order of the court, he chose to remain in assumptions and filed his letter on 31.5.2024 having no useful in court as above stated. 3 Indeed, he has disregarded the order of this court dated 6.5.2024. What steps can this court take in this circumstance? According to Order XLIII Rule 2 of the Civil Procedure Code Cap 33 R.E 2019 (the Code); every application as the instant one is always made by Chamber summons and supported with an affidavit. In the case of OTTU Vs. AG and others, Misc. Civil Application No. 15 of 1997(unreported) the term affidavit was defined by Katiti J (as he then was) in the following words; “The expression, “affidavit”, unfortunately despite it being a lawyer’s everyday tool, is not defined by any statute I could lay my hand on. But the lexicon meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath, or affirmation before an authorized magistrate or officer”. The court of appeal in the case of Dr. A Nkini & Associates Limited Vs. National Housing Corporation, Civil Appeal No. 72 of 2015 (unreported) stated the following regarding submissions on page 20; “We need to restate the fact that submissions by an advocate are not evidence as we have decided in Republic vs. Donatus Dominic @ Ishengoma & 6 Others, Criminal Appeal No. 262 of 2018 and Morandi 4 Rutakyamirwa vs. Petro Joseph [1990] T.L.R 49]. Submissions are arguments based on the available evidence and the governing law” As noted by my brother Hon.Mlyambina J. in the case of Atuwonekye Mwenda Vs. Herzon Mangula, Misc. Land Application No. 5 of 2020 (unreported); the practice of the court has been mainly to dismiss the applications for want of prosecution when the applicant has failed to file a written submission as ordered by the court. On page 21 of the judgment he went on to say; “I don't condone the practice of Advocates acting negligently. The point that I make, as I do distinguish the position in Hashim Madongo's case, is that; in an application made of chamber summons, the matter should not be dismissed for want of prosecution or non-appearance of the Applicant and/ or his Advocate while there is affidavit evidence in record. I further note that, once a Party engages an Advocate, he thinks that his Advocate will appear when the case will be taken up for hearing. But when the Advocate fails to appear, normally, a Party should not suffer on account of default or non-appearance of the Advocate. The Court should proceed to determine the application based on the available affidavit evidence.” (emphasis added) 5 Subscribing to the above reasoning by Hon. Mlyambina J, I will therefore decide this application based on the affidavits and submission in chief. In support of the application, Mr. Njau submitted that the applicant is the lawful wife of the late Selemani Juma Kigera who died on 2nd April, 2019. The deceased was the rightful owner upon gifted by his late father Selaman Kigera hence the applicant became a beneficiary of the suit house with a certificate of Title No. 13269. The applicant has been living peacefully in the suit house until recently when the dispute arose. The applicant has no other premise to live in if the respondents will be allowed to evict her from her matrimonial home as she is now a widow. That, the proclamation of sale issued by this court referred to labour case (CMA/MZ/NYAM/273/2020). Further, the said proclamation was never issued with notice to the applicant as she is the one living in the suit house. that, the applicant upon inquiry discovered that one Miraji Seleman Kigera Mortgaged her matrimonial House claiming to be the personal legal representative of Selemani Kigera while the suit property belonged to her late husband the late Seleman Juma Kigera. without her consultation or any of her involvement. Your Lordship The suit house is not the property of the 2nd, 3rd, 4th, 5th, or 6th respondents and the said mortgage was 6 unlawful due to the following; a) The suit property is a matrimonial home of the applicant and belongs to the deceased estate subject to the interests of the heirs. Section 112(2) of the Land Act Cap 113 R.E 2019 defines a matrimonial home as a building in which the husband and wife ordinarily reside together. Further, according to Section 114(2) of Cap 113, the mortgage to the 1st respondent was void. That, the power of any administrator or personal legal representative in the administration of the estate of the deceased is limited to the interests of the deceased estate and its heirs only. The mortgage was made in the interest of the 2nd respondent which is a company (UK Construction and General Supplies Limited) therefore illegal. That, the deceased may be mortgaged for the interests of beneficiaries/heirs and not in the interest of strangers. He prayed for the application to be considered. The 1st and 7th respondents filed the counter affidavit to the effect that the owner of the suit House was Miraji Seleman Kigera as he was registered as personal representative of the late Selemani Kigera and he has the legal capacity to mortgage the same to the 1st respondent. The 2nd to 6th respondents filed neither counter affidavits nor submissions. Having considered the submissions for the applicant I will now determine this application. As I have stated hereinabove, this application 7 aims to investigate the suit house for the reason that it does not belong to the judgment debtor. That the same belongs to the estates of the late Seleman Juma Kigera. The affidavit, tells nothing on how the deceased came into ownership of the suit house. In the submissions the counsel for the applicant submitted that the deceased was gifted with the suit house by his late father Selaman Kigera however, I will ignore this submission because it came from the bar. Submissions are not evidence they are just meant to sum up the evidence already adduced (orally or in an affidavit) with reference to the applicable law. See the case of Rosemary Stella Chambejairo Vs. David Kitundu Jairo, Civil Reference No. 6 of 2018, Ison BPO Tanzania Limited Vs. Mohamed Aslam, Civil Application No 367/18 of 2021; and The Registered Trustees of Archdiocese of Dar es Salaam Vs. The Chairman Bunju Village Court and eleven others, Civil Appeal No.147 of 2006 (all unreported). The certificate of Title No. 13269 of the plot comprising the suit house shows that Seleman Kigera was the original owner from the 20th day of August 1959. Records further show that on 22/9/1987 one Miraji Selemani Kigera was registered as a personal legal representative of the Seleman Kigera deceased. Presumably, the said Selemani Kigera died. Records further show that the certificate of title was pledged to 8 secure a mortgage on 15.12.2009 at CRDB Bank PLC which was later discharged. On 2.5.2014 another mortgage was created against the same Certificate of Title in favor of the 1st respondent herein. Annextures GLC- D to the counter affidavit of the 1st and 7th respondent further shows that the 4th to 6th respondents as a legal heir of the late Selemani Kigera registered their consent to the 3rd respondent to mortgage the suit house for the loan granted to the 2nd respondent by the 1st respondent. The settled law is that the owner of the certificate of title owns the land. See the case of Bilali Ally Kinguti Vs. Ahadi Lulela Said and 4 others, Civil Appeal No. 500 of 2021; Nacky Esther Nyange Vs. Mihayo Marijani Wilmore and another, Civil Appeal No. 207 of 2019. (both unreported). From the records of the certificate of title, the late Selemani Juma Kigera was never registered as the owner of the plot comprising the suit house. all transactions on the certificate of title were made while he was alive (according to annexure M1 to the affidavit he died on 2.9.2019) but never objected to the transfer of mortgage against the title. In my final analysis, plot No. 14 Block J Mukedo Street in Musoma Municipality (hereinafter the suit property does not belong to the late Selemani Juma Kigera. The application is therefore devoid of 9 merit. I proceed to dismiss it. Considering the nature of this matter, I desist from making an order for cost. It is so ordered DATED at MWANZA this 30th day of August 2024. W. M. CHUMA JUDGE 10 Ruling delivered virtually in court in attendance of Dr. Mwaisondola Learned counsel for the respondents in absence of the applicant this 30th day of August 2024. C. KISONGO DEPUTY REGISTRAR 11