mwanga hakika microfinance bank ltd v tina john shirima another 2024 tzhclandd 30 22 february 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 331 OF 2023 (Originating from Land Application No. 302 of 2020, District Land and Housing Tribunal for Ubungo) MWANGA HA KI KA MICROFINANCE BANK LTD............................... APPELLANT

VERSUS TINA JOHN SHIRIMA..............................................................1st RESPONDENT MAPENDO ELLIA GEORGE...................................................... 2nd RESPONDENT

JUDGMENT 30/01/2024 to 22/02/2024 E.B. LU VANDA, J The Appellant named above is aggrieved by the decision of the Tribunal decreeing the First Respondent above named, as the lawful owner of a house located at Kimara Michungwani, Ubungo Municipality (suit house) and invalidated the mortgage between the Appellant and Second Respondent above, over the suit house. In the petition of appeal, the Appellant raised four grounds of appeal. However during the hearing, the Appellant abandoned the first ground of appeal and retained the following grounds; One, the trial Tribunal erred in law and facts to declare the First Respondent as the lawful owner of the suit property while she i failed to prove that she made a due diligence prior purchasing the suit property; Two, the trial Chairperson erred in law and facts to disregard the evidence of the Appellant which prove that the suit property located at Kimara Matangani was mortgaged by the Second Respondent after submitting the sales agreement dated 26/10/2008 and introduction letters from local government authority to prove ownership of the suit property; Three, the trial Chairperson erred in law and facts to declare the First Respondent as the lawful owner of the suit property while she failed to prove how the title passed from the Second Respondent to the First Respondent. The appeal proceeded in absence of the Second Appellant. Mr.

Cleophace James the learned Advocate for the Appellant combined all three grounds of appeal and argued jointly that the trial Tribunal failed to evaluate how the Second Respondent passed her (sic) title to the First Respondent. He submitted that the trial Chairman relied on the principle that who comes first to prove the ownership of the disputed premises, arguing the trial Tribunal failed to realize that the sale transaction between the First and Second Respondent conducted on 10/04/20144 (exhibit Pl) was not complete for reason that the Second Respondent did not hand over to the First Respondent the original title deed dated 26/10/2008 (exhibit DI). He cited the case of Pendo Fulgence Nkwenge vs. Dr. Wahida Shangali, Civil Appeal No. 368/2020 CAT. He 2 submitted that exhibit DI was mortgaged to the Appellant by the Second Respondent, argued in total disregard the trial Chairman relief on exhibit Pl to prove that the First Respondent was the owner without considering that exhibit DI was not surrendered to the First Respondent and the same was mortgage to the Appellant by the Second Respondent. He submitted that the First Respondent ought to have done due diligence to confirm the original title deed (exhibit DI) before purchasing the disputed land. He queried as to why the Second Respondent did not surrender exhibit DI, if at all there was sale between the First and Second

Respondent. He submitted that there was no proof of payment of Tshs 50,000,000/= as purchase price of the disputed property arguing this prove that the First Respondent had no title over the suit property, for reason that she failed to tender payment slip. He cited a case of Farah Mohamed vs. Fatuma Abdallah [1992] TLR 205, for a proposition that anyone who has no legal title to (sic), land cannot pass good title to another. Also cited Martin Fredrick Rajab vs. Ilemela Municipal Council, Civil Appeal No. 197 of 2020 CAT. He submitted that the First Respondent did not act with due diligence under the rule of caveat emptor (buyer be aware), arguing she failed to establish if she made due diligence through local government authorities or neighbors. 3 Mr. M. R. Kiondo learned Counsel for First Respondent submitted that the decision of the trial Tribunal correctly based on the weight of evidence both oral and documentary exhibit Pl, adduced by the First Respondent corroborated by PW2, PW3, PW4, arguing her evidence was heavier than that of the Appellant, thus succeeded to prove her case on the balance of probability, citing sections 110, 112, 119 of the Evidence Act, Cap 6 R. E. 2019, Hemed Said vs. Mohamed Mbilu [1984] TLR 113. He submitted that the Second Respondent mortgaged the suit land in favour of the Appellant on 25/11/2016 having disposed the same on 10/04/2014, arguing the

Second Respondent had no title to pass, hence the transaction of mortgage was void abinitio. He cited the case of Farah Mohamed (supra); Mel- Mbaga & Another, Civil Appeal No. 57/2018 CAT. He submitted that there is no law which require that once the seller disposes the piece of unsurveyed land he must hand over (surrender the sale agreement he/she previously transacted, arguing there is no title deed in the unsurveyed suit land. He cited the case of Barelia Karangirangi vs. Asteria Nyalwambwa, Civil Appeal No. 237/2017 CAT for a proposition that the standard of proof in civil cases is on the balance of probability. He reiterated that the evidence of the First Respondent was heavier than that of the Appellant proving that the First Respondent is the lawful owner of the disputed land. He submitted that the Appellant failed to establish compelling circumstances for 4 this appellate Tribunal (sic, Court), to interfere with the matters of evidence determined during trial. On rejoinder, the learned Counsel for Appellant submitted that the Counsel for First Respondent conceded that his client was not given exhibit DI, by the Second Respondent queried as to why the First Respondent was not in actual possession of the suit property and why failed to provide evidence for payment of Tshs 50,000,000. He submitted that introductory letters exhibit D3 and D4 identified the Second Respondent

as the owner and in actual occupation of the suit property as of 18/11/2016, arguing this evidence has never been objected or contradicted for by the First Respondent. He cited the case of Makubi Degani vs. Ngodongo Maganga, Civil Appeal No. 78/2019 CAT Shinyanga. He submitted that clause 4.0 of exhibit Pl requires the Second Respondent to handover all necessary documents to the First Respondent, arguing the First Respondent failed to avail reasons as to why she was not handled over with exhibit DI. Essentially, the learned Counsel faulted the findings of the trial Tribunal for not holding that the sale in exhibit Pl was not complete for reason that the Second Respondent did not handover exhibit DI to the First Respondent and accused the latter for being negligent for failure to make due diligent during purchasing, also argued there was not proof of payment of Tshs. 50,000,000/=. 5 To my view, the argument of the learned Counsel for Appellant is without substance. It is in record of the trial Tribunal that the First Respondent made it clear on her examination in chief that before purchasing she visited at the hamlet council office and also met with neigbours including Mzee Masawe and Mama Teya, inquired them as to who is the lawful owner, who confirmed to her that the Second Respondent being the owner of the suit house and told her there was no any dispute. This fact was

supported by Ancet Sebastian Masae (PW3) whose name appear as a neigbour in exhibit D5, who put that prior proceedings to the advocate to execute sale agreement, PW3 and First Respondent visited at the hamlet council to verify ownership. Therefore the argument that the First Respondent acted negligently for not conducting diligence, is unfounded. Admittedly, when the First Respondent was cross examined by the learned Counsel for Appellant she conceded a fact that she did not ask the Second Respondent as to where he procured or acquired the suit property. However, the First Respondent stated that she was shown the original document by the Second Respondent. To my view a fact that the First Respondent did not have it or tender it, on itself cannot negate or invalidate sale in exhibit Pl. To my view the rule as to who comes in, still favour the First Respondent to had acquired a good title over a suit land. Regarding proof of payment of Tshs 50,000,000 as the same was proved by oral evidence of the 6 First Respondent, Vincent Peter Mpwaya (PW2), who acted as a broker PW3, Living Raphael Kimaro (PW4) who was attesting officer for exhibit Pl, all testified on similar accounts of fact that payment was made vide bank. Indeed PW2 confirmed to have been paid his commission a sum of Tshs 4,050,000/= The learned Counsel for Appellant defended a mortgage alleged it was supported by an

original title deed exhibit DI and introductory letters from hamlet council exhibit D3 and D4 alleged vindicated that the Second Respondent was a proprietor of a suit property and was in actual occupation. However, during cross examination, the First Respondent said she rented a suit house to a tenant who informed her regarding a fact that the Appellant was intending to auction a suit house. The alleged exhibit DI, D2, D3, D4 and D5 are at variancy and full of discrepancy and some documents or exhibits suggest were doctored which render their authenticity to be highly at stake. Instance a mortgage deed, exhibit DI depict a mortgaged house is located at Kimara Matangini, while the purported original title deed (sale agreement dated 26/10/2008) exhibit D2 which the Second Respondent mortgaged to the Appellant, depict a house is located at Kimara/Michungwani. An introduction letter for confirmation on of residence exhibit D3 suggest that the Second Respondent is living Second Respondent is living at Matangini Street Saranga Ward. Another introduction 7 letter for confirmation of residence, exhibit D4 suggest an introduction letter of the Second Respondent was signed by the hamlet chairman at Kimara Matangini. Exhibit D2, was also doctored at a section of services subject for a request, initially was recorded "maombiya mkopo"but there is a fresh ink of additional wordings to thee

effects "namfahamu ni wa mtaa wangupia anabiashara ya Gest House hapo Michungwani". As I have said exhibit D4 was signed by the hamlet chairman of Kimara Matangini, now he is saying the Second Respondent is trading on guest house at Michungwani. These additional wordings, were supplemented later, to align or harmonize it with a sale agreement exhibit D2. Another document, a pledge for a house as collateral, exhibit D5, depict a house is located at Matangini Kimara. Inview of these discrepancy, inconsistence and doctoring of contents of documents, it cannot be said a transaction of mortgaging a suit house was done with due care. In fact the Appellant did not discharge their duty under acronym K.Y.C. that is Know Your Customer. Had the Appellant made due diligent to scrutinize documentations submitted to wit exhibit D2, D,3, D4, D5 along exhibit DI, they could had realized that they were dealing with a rogue or conman the Second Respondent. The appeal is without merit. I uphold a verdict by the trial Tribunal. 8 The appeal is dismissed with costs. E. B. LUVANDA

JUDGE 22^)2/2024 Judgment delivered in absencq/of Mr. Cleophas James learned Counsel for Appellant and Mr. M. R. Kiondo learned Counsel for Respondent. 9