messiah livingstone nzowa vs crdb bank plc others 2019 tzhc 15792 22 august 2019

THE UNITED REPUBLIC O* TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA)

AT MBEYA LAND APPEAL NO. 59 OF 2018 (From the District Land and Housing Tribunal for Mbeya at Mbeya in Application No. 206 of 20161 MESSIAH LIVINGSTONE NZOWA...................... ..........APPELLANT

VERSUS CRDB BANK PLC ............................................. .1st RESPONDENT NURU YAHAYA KWIYANGA............................. 2 nd RESPONDENT PROPERTY MASTERS LTD..................................... ,3rd RESPONDENT

JUDGEMENT Date of Last Order : 30/05/2019 Date of Judgement: 22/08/2019 MONGELLA, J. Dissatisfied with the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (DLHT), the Appellant has appealed to this Court for further redress. The facts that gave rise to this appeal are as follows: The 2nd Respondent, Nuru Yahaya Kwiyanga, is claimed to be the husband of the Appellant. In 2014 he secured a loan from CRDB Bank Page 1 of 13 PLC, the 1st Respondent. In the process of obtaining the said loan he was required by the Bank to provide security for the loan. He therefore submitted to the Bank a Certificate of Right of Occupancy on the land in dispute, the Certificate which indicated he was the sole owner of the said house. The Bank officials, including DW1 went to inspect the property and found that it was a semi-finished house with no one living inside. The 2nd Respondent informed the Bank that he was not married and to that effect he furnished the Bank with an affidavit signifying that his marital status was single. The Bank went further to make an official search at the Land Registry whereby it was revealed that there was no encumbrance over the said landed property. A mortgage deed was thereafter executed and duly registered and the 2nd Respondent obtained the loan from the 1st Respondent. The 2nd Respondent failed to fully repay the loan and the 1st

Respondent instructed the 3rd Respondent to auction the mortgaged property to recover its money. At this point the Appellant appeared claiming to be married to the 2nd Respondent. She thus filed a case in the DLHT, that is, Application No. 206 of 2016, against all the three Respondents claiming that, as legal wife of the 2nd Respondent her consent was never procured in mortgaging the house in dispute and thus it cannot be auctioned. She lost the case in the DLHT, hence this appeal. In her Memorandum of Appeal the Appellant raised four grounds of appeal to wit: Page 2 of 13 /. That the trial Tribunal erred in law and facts for not considering the defence of the 2nd Respondent that the Appellant is the wife of the 2nd Respondent and hence her consent was mandatory.

2. That the trial Tribunal erred in law and facts for denying the 2nd Respondent the right to be heard and that the case would proceed with the 1st and 3rd Respondents contrary to the principles of natural justice.

3. That the trial Tribunal proceeding was marred with procedural irregularities and hence the judgment delivered was not good at all in law.

4. That the trial Tribunal erred in law and facts for directing the house in dispute to be sold while the 1st and 3rd Respondents did not prove on the amount taken by the 2nd Respondent and the remaining amount which led to the sale of the house in dispute. In arguing the appeal the Appellant and the 2nd Respondent appeared in person while the 1st and 3rd Respondents were represented by Mr. Mika Mbise, learned Advocate. Both parties prayed to argue the appeal by written submissions and they adhered to the schedules fixed by this Court. In her submissions, the Appellant abandoned the 3rd ground of appeal and submitted on ground 1, 2 and 4. She as well collectively argued on ground 1 and 2. The Appellant submitted that in Land Application No. 206 of 2016 before the DLHT the Appellant sued the 2nd Respondent for Page 3 of 13 mortgaging the disputed house without her consent. She argued that the case would not be properly determined on its merits without the defense of the 2nd Respondent as the parties were the ones who purported to have mortgaged the house in dispute. She referred this Court to page 11 of the typed proceedings of the DLHT whereby the Tribunal made an order that the 2nd Respondent cannot have the right to cross examine the Appellant which means that on the other hand the Appellant had no right to cross examine the 2nd Respondent. She argued that the Tribunal erred

to order that the case should proceed with the 1st and the 3rd Respondents alone while she sued all the three Respondents and their defense would be material to the Appellant if she cross examined the 2nd Respondent to know if the consent of the Appellant was necessary or not. The Appellant is convinced that the evidence of the 2nd Respondent would be necessary to determine the truth of the case in respect of the mortgage on the disputed house, but the Tribunal rushed to determine the case without affording the 2nd Respondent opportunity to be heard even though he filed his defense without opposing the Appellant’s claim (Applicant in the DLHT). To this effect she cited the decision of the Court of Appeal of Tanzania (CAT) in the case of Dishon John Mtoita v. The Director of Public Prosecutions, Criminal Appeal No. 132 of 2004 (unreported) in which the CAT ruled that the decision of the High Court whereby it determined an appeal without according the appellant an opportunity to be heard was a nullity for violating the constitutional right oi " ' ht to be heard. Page 4 of 13 The Appellant further submitted that given the circumstances of the case the denial of the right to be heard to the 2nd Respondent injured the Appellant’s case since she failed to cross examine the 2nd Respondent on the claims over the disputed house. She is of the view that even though the trial Tribunal saw

that the 2nd Respondent was not at issue with the Appellant, the Appellant’s right to cross examination by the Appellant could not be waived by the Tribunal. The Appellant also argued that the trial Tribunal also erred in disregarding the written statement of defence filed by the 2nd Respondent by ruling that it was not at issue with the Appellant without affording him an opportunity to be heard and the Appellant cross examining him. To this effect she cited the cases of Peter Ng'omango v. The Attorney General, Civil Appeal No. 114 of 2011 (Unreported) and that of Halima Hassan Marealle v. PSRC Tanzania Gemstone Industries Limited, Civil Application No. 847 of 1999 (unreported) whereby in both cases the CAT insisted on according the parties the right to be heard. On the 4th ground of appeal the Appellant submitted that the 1st Respondent alleged that he advanced a loan to the 2nd Respondent , however, the 2nd Respondent did not testify to that effect and to the amount claimed by the 1st Respondent’s witness and how much was already paid. The Appellant further argued that there was no evidence adduced to prove that the loan was not paid because the trial chairman did not give the 2nd Respondent an opportunity to defend and the Appellant to cross examine. The Appellant also argued that the trial Tribunal did not give reasons for not considering the evidence of the 2nd Respondent

on claims raised by the Appellant. To this effect she cited the Page 5 of 13 case of Lutter Symphorian Nelson v. The Attorney General and Another (2000) TLR 419. She concluded her arguments by submitting that the trial Tribunal did not go through the records in order to determine the matter on merits because the case could not be determined on merits without the evidence of the 2nd Respondent. Responding to the Appellant’s submissions, the 2nd Respondent basically supported all the claims raised by the Appellant just like he did in the DLHT. He submitted that the DLHT denied him the opportunity to defend and cross examine the Appellant which was contrary to the principles of natural justice. He as well attacked the affidavit on marital status which was presented by the 1st Respondent and denied to have made the same. In his submissions he claimed that the trial Tribunal denied him the opportunity to examine the 1st and 3rd Respondents in respect of the evidence tendered by them. He claimed that the 1st Respondent was the one who made the affidavit to smoothen the process of the loan. He argued that if his defence was considered by the DLHT it would come to realize that the Appellant’s consent was necessary. He argued that the DLHT committed a procedural irregularity for admitting a document before him being given an opportunity to object it. He cited the case of Robinson

Mwanjisi and Three Others v. Republic (2003) TLR 220 whereby the Court ruled that a document must be cleared for admission before being admitted and cleared out otherwise it is difficult for the court not to be seen to have been influenced by the same. On the fourth ground, the 2nd Respondent almost reiterated what the Appellant advanced in her submissions. He also submitted that there was Page 6 of 13 no proof that he was given the loan and did not repay it back to the amount claimed by the 1st Respondent because he was not given the opportunity to defend and to cross examine the 1st and 3rd Respondents. He also concluded that the Tribunal Chairman did not go through the records to determine the matter on merits as the same could not be determined on merits without his defence. The Tribunal as well disregarded his defence in the written statement of defence and never gave reasons thereof. Arguing on the 1st and 2nd grounds of appeal for the 1st and 3rd Respondents, Mr. Mbise submitted that the 1st and 3rd Respondents filed their written statement of defence in which they disputed all the claims advanced by the Appellant. However, on his part, the 2nd Respondent admitted each and every allegation raised by the Appellant in his purported written statement of defence. To this effect he cited section 7(1) of the Land Disputes Courts (The District Land and Housing Tribunal) G.N.

No. 174 of 2003 in which the law puts it very clear that it is only where the Respondent is contesting the allegations in the application when he should file the written statement of defence within 21 days. He argued that it does not make sense for one who admits all the claims to file a written statement of defence while he is not defending anything, but rather supporting the Applicant on everything. Mr. Mbise in addition argued that since G.N. No. 174 of 2003 does not provide for a situation whereby the Respondent in his written statement of defence admits the claim, then the way forward is to resort to the Civil Procedure Code, Cap 33 R.E. 2002 (CPC) whereby answei r und Page 7 of 13 under Order XV of the Code. Order XV Rule 1 clearly states that where at first hearing of a suit it appears that the parties are not at issue on any question of law or fact, the court may at once pronounce judgment. Where there is more than one defendant and any of them is not at issue with the plaintiff, judgement may be issued at once. He also cited Order XII Rule 4 of the CPC which provides that judgement by admission can be passed where in the pleadings the defendant admits the claim. Mr. Mbise further argued that the 2nd Respondent was not at all in issue on anything with the Appellant, meaning there were no triable issues necessitating him to defend as a Respondent. He found it strange for

the Appellant to raise the same in her appeal complaining that the 2nd Respondent was denied the right to be heard while he took side with her in writing his written statement of defence. Mr. Mbise wondered how could the plaintiff champion interests of the defendant better than the defendant himself in the same case. He also argued that he finds strange the argument that the 2nd Respondent should have testified so as to be cross examined and to cross examine others. He submitted that a party cannot cross examine the opposite if they are not at issue as cross examination will have no meaning. The same would amount to examination and not cross examination and a party cannot examine the opposite party, but only cross examine him. On the 4th ground of appeal, Mr. Mbise submitted that the ground cannot be raised as a ground of appeal because it did not feature anywhere or at any stage of the proceedings before the DLHT. He argued that the Appellant was present at the trial and never raised the argument that the Page 8 of 13 2nd Respondent was not indebted to CRDB Bank PLC, the 1st Respondent. The same was not her case either and she never cross examined DW1, one Stephen Mwaipopo who came to testify on behalf of the Bank on this aspect. Mr. Mbise argued that at all times; the Appellant’s case was that she is the wife of the 2nd Respondent and was the wife at the time the house in

dispute was mortgaged. He said the Respondents directed their minds on those issues and nothing else. Mr. Mbise referred this Court to the written statement of defence filed by the 2nd Respondent in which he admitted to be indebted and said he was sorting the same with the Appellant. He argued that this is a pleading and the object of pleadings is to inform the other side on the nature of the case he/she shall be facing. Mr. Mbise concluded by saying that the law is very clear on Bank- Customer relationships, thus the balance in customers’ accounts and other transactions are secrets between the Bank and the customer. The Appellant is not the one who obtained the loan, she was not even the guarantor and therefore she could not have been involved in the arithmetic transactions in the loan account. In rejoinder the Appellant in fact reiterated what she submitted in her main submission so I will not dwell much on that because after reading the same I find there is nothing new from what has already been submitted by her. I have carefully considered the arguments by parties from both sides and I observe as follows: Page 9 of 13 The Appellant claims that the 2nd Respondent was denied the opportunity to defend and that prejudiced her case. The 2nd Respondent admitted all the facts in his Written Statement of Defence and thus in my view, there was nothing do defend regarding his case

against the Appellant. The law is very clear that proof of allegations is only on matters that are in dispute. There were no matters in dispute between the Appellant and the 2nd Respondent necessitating the 2nd Respondent to defend himself on the facts he has already admitted and to be cross examined on the same admitted facts. If the 2nd Respondent’s right to be heard was really violated, he should have been the one to bring the matter to Court and not for the Appellant to present a case on behalf of the 2nd Respondent. The Appellant claims that her case was ruined because the 2nd Respondent did not defend. I find this argument rather strange. The law is very clear that “the one who alleges must prove.” So the Appellant had the sole duty of proving her claims in the DLHT without depending on the weakness or strength of the opponent’s case. The fact that the 2nd Respondent admitted all the claims advanced by the Appellant should have been used to the advantage of the Appellant in proving her case, especially against the 2nd Respondent who admitted all the facts. The Appellant relied on a number of cases to prove her point, namely: Dishon John Mtaita (supra), Peter Ng’omango (supra) and Halima Hassan Marealle (supra), which insist on the right to be heard. I have gone through these cases and find them irrelevant to the case at hand. In all these cases there was no admission of

facts by the defendants/respondents and thus they are not applicable in the matter at hand. In my view, the 2nd Respondent exercised his right to be heard Page 10 of 13 when he admitted all the facts alleged by the Appellant without any hunch of reservation in his written statement of defence. In fact under Section 7(1) of the Land Disputes Courts (The District Land and Housing Tribunal) G.N. No. 174 of 2003, as pointed by Mr. Mbise, he was not even supposed to file the written statement of defence. The Appellant claims that the evidence of the 2nd Respondent was disregarded by the DLHT, especially the allegation that the Appellant and the 2nd Respondent are legally married. I have gone through the records of the DLHT, especially the judgement and found nothing of that sort. The DLHT took into account the admissions made by the 2nd Respondent and decided the case accordingly taking into account the evidence adduced by both parties and the provisions of the law. It is clear on record that the DLHT invoked provisions of the Mortgage Financing (Special provisions) Act, No. 17 of 2008, which discharges the responsibility of the mortgagee in ascertaining the marital status of the applicant by proof through affidavit, among other things. On the allegation that the Appellant and the 2nd Respondent were legally married, the Appellant claimed that they married through customary rights.

The DLHT addressed this issue and came to a finding that there was no proof of such marriage as the Appellant and the 2nd Respondent failed to produce a marriage certificate to that effect. The DLHT also addressed the evidence adduced by the Appellants witnesses and came to a conclusion that the said witnesses did not testify into existence of the marriage and what they adduced was hearsay evidence. I also find that the findings made by the DLHT on this issue were correct. Page 11 of 13 The Appellant also claims that there was no proof on whether the 2nd Respondent did take the loan and failed to repay. This was also supported by the 2nd Respondent in his submissions. I must say I also find this argument rather strange. First of all I agree with Mr. Mbise that the same was not an issue in the DLHT and thus cannot be brought up at this appellate stage, because it is a matter of fact and not law. Both, the Appellant and the 2nd Respondent, claim in their submissions that the same could not be proved because the 2nd Respondent was denied a chance to defend. I have gone through the records and found that the 2nd Respondent admitted several times that he took the said loan. First in his written statement of defence and then in the proceedings, particularly at page 8 of proceedings whereby he told the DLHT that he was convincing the Appellant to sell the house so that he repays the

loan he took from the 1st Respondent. The 2nd Respondent also claimed that he was denied the chance to cross examine the other Respondents and to react on the documentary evidence tendered by the 1st Respondent, which was the Affidavit on marital status. This can only happen where a fellow respondent has given implicating evidence against the other respondent, but leave must be sought. The 2nd Respondent herein denied to have taken the loan and to have made the said affidavit. However, there is nothing on the record of the DLHT indicating that he sought leave of the DLHT to cross examine the 1st Respondent’s witness when such evidence was adduced and that the DLHT denied to avail such a chance. I find this allegation to be an afterthought and wrongly brought up at this appellate staae. This Court Page 12 of 13 cannot entertain such an issue at this stage as it is an issue of fact and not law. Following the observations I have made above, it is my finding that this appeal is devoid of merits and I dismiss it with costs. Dated at Mbeya this 22nd day of August 2019. L. M. MONGELLA

JUDGE 22/08/2019 Court: Judgement delivered in Mbeya in Chambers on this 22nd day of August 2019 in the presence of the Appellant appearing in person, the 2nd Respondent appearing in person and Mr. Fortunatus Mwandu, learned Advocate holding brief for Mr. Mika Mbise, learned Advocate representing the 1st and 3rd Respondents. L. M. MONGELLA

JUDGE 22/08/2019 Right of appeal to the Court of Appeal has been duly explained.

JUDGE 22/08/2019 Page 13 of 13