NBC VS

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA –SUB REGISTRY AT SHINYANGA LAND APPEAL NO. 14045/2024 CASE REFERENCE NO. 000014045/2024 1. NATIONAL BANK OF COMMERCE PLC ................................... APPELLANT 2. NAMPULA AUCTION MART AND COMP. LTD……………….……APPELLANT Versus 1. LETICIA MALANGWA ELIAS ............................................... RESPONDENT 2. MUSA MAIGE NYONDA ……………………………………..……. RESPONDENT (Appeal from the Judgment of the District Land and Housing Tribunal of Shinyanga at Shinyanga) (Hon. C. Hatson) Dated the 24th April 2024 in Land Application No. 11 of 2021 ………………… JUDGMENT 16 October & 29 November 2024 th th F.H. MAHIMBALI, J,: In the District Land and Housing Tribunal for Shinyanga at Shinyanga (DLHT) in Application No. 11 of 2021, the 1st respondent Leticia Malangwa Elias sued the appellants and the second respondent for a declaration that the mortgaged property is a matrimonial home between the first respondent 1 and the second respondent. That the appellants had no right of sale of the said mortgaged property as the same was not properly mortgaged. The brief facts of the case which led to the institution of Application No. 11 of 2021 before the DLHT are that, the respondents are married spouses. They had a house on Plot No. 4 Block EE with certificate of title No. 5936 L.O No. 122073 Ngokolo – Shinyanga. That in 2007 they had applied for a one-year loan from the first appellant totaling 27,000,000/=. It is alleged that it was dully paid (in 2008). That surprisingly, on 25th June 2021 vide Nipashe and Raia Mwema News Papers, she had seen an advertisement of the NBC PLC proclaiming sale of their house on claim that the second respondent had failed to repay the loan he had borrowed from it and secured by the said mortgaged property. Thus, the basis of the said suit before the DLHT. In essence, it is undisputed that the second respondent had further taken another loan from the first appellant by using the same collateral but in exclusion of the first respondent’s further consent. Consequently, upon default and in accordance with the terms agreed upon, the first appellant exercised her option to sell the said mortgaged property to recover the unpaid loan advanced. It is from this background which prompted the first 2 respondent to rush and seek redress in the DLHT alleging among other things that she being the legal wife of the mortgagor, in law her consent was to be re-sought and obtained as it was for the first loan before embarking on the execution of the mortgage transaction. After the trial, the DLHT declared the mortgaged property as a matrimonial home and restrained it from sale and that the subsequent consent was necessary before it advanced the said subsequent loan. It compelled the 1st appellant to surrender the title deed to the first respondent on the basis that the loan was dully discharged and the second loan was unknown to the spouse - wife. Not amused with the said DLHT’s findings and verdict, the appellants are before this court challenging the said verdict based on three grounds of appeal, namely: 1. That the chairman of the DLHT erred in law and facts by granting the first respondent’s prayer that she did not consent to the mortgage which the second respondent signed in favour of the first appellant, while it is in evidence that the consent which was given by the first respondent was for the mortgage which was a continuing security; 3 2. That the chairperson erred in law and fact by his failure to distinguish facts of this case and the facts of the Court of Appeal’s authorities which he relied upon as the basis of his decision; and 3. That the learned chairperson erred in law and facts by his position that the First Respondent was a guarantor to the loan which was taken by the second respondent while she was not. At the hearing of the appeal, Dr. George Mwaisondola (PhD) represented the appellants; whereas, the both respondents enjoyed the legal services of Mr. Emmanuel Sululu and Geofrey Tuli, learned advocates. On the first ground of appeal, that there was no consent by the 1st respondent to the second respondent for the subsequent loan as ruled by the DLHT, Dr. Mwaisondola disputed that is not true as the first consent issued by the first respondent was a continuing one. It is his submission that where there is a continuing security of mortgage, consent was not further needed as it was continuing mortgage in the circumstances of this case. He further invited this court to see 1st respondent’s own pleadings at the trial tribunal at paragraph 6(a)(i) (Application), as the 1st respondent says that she is the wife of the second respondent as per marriage contracted on 12th Jan 2008 (exhibit M1). But during trial, the 1st respondent 4 in her testimony (page 22 of the typed proceedings) is clear that the house was bought in 2005. Meaning that it was purchased prior to the marriage. The mortgage by the 2nd respondent was done in 2007. Thus, the said house was not a matrimonial home and didn't qualify to be one under section 112(2) of the Land Act. Therefore, to him, the said house was neither a matrimonial home nor a matrimonial property. He said this because the title deed was not produced by the 1st respondent to exhibit that her name is also within the said certificate. And that it was the duty of the 1st Respondent to register a caveat as directed by the Law of Marriage Act (section 59). He also made reference to the Court of Appeal’s decision in the case of Hadija Issa Arebary Vs. Tanzania Postal Bank, Civil Appeal No. 135 of 2017, CAT at Iringa - see pages 9&12 on the importance of one interested spouse to register caveat to the house of the wife or husband. Further reference was made to the case of Rose Nyatega Vs. Yasin Mohamed Ngozi and Another, Misc. Land Application No. 3 of 2021, HC Mwz at page 11 & 12, explained how matrimonial home should be, discussing the details of section 112(2) of the land Act. At pages 18 and 19, the High Court said, it is not sufficient for one only to tender marriage certificate, there must be 5 established a link between the property and the alleged owner or an agent with the vested right. He therefore argued that, as insisted more than once by our Apex Court (the CAT) that, the best solution to the loan is for it being repaid (See the case of The Private Agricultural Support Trust and Another Vs. Kilimanjaro Cooperative Bank LTD, Consolidated Civil Appela No. 171 and 172 of 2019 at pag2 26 and Stanbic Tanzania LTD Vs. Kiribo LTD and 2Others, Misc. Civil Application No.17 of 2023 HC Musoma at page 12 & 13) that the parameters of a loan are quite straight forward. If one borrows, he or she must pay it back. In the second ground of appeal, the grief is, the trial court had erred in placing reliance to the CAT's case of Christopher Paul Chare and 2 Others V. Commercial Bank of Africa (Tanzania) Limited, Civil Appeal No. 452 of 2020 CAT at Tabora (page 9 of the trial tribunal's decision), as the same is distinguishable. In that case, mortgage was not a continuing security, while exhibit U4, the mortgage was a continuing security. Another point of distinction is this, borrower and mortgagor were two different 6 persons but in the present case, the borrower and mortgagor is the same person. On the third ground of appeal, the grief is the trial court had erred that the 1st respondent was a guarantor to the second respondent. The truth is, the first respondent had just signed deed of guarantee (exhibit U5) but the second respondent is the borrower and mortgagor at the same time. Exhibits U3, U6 and U7 are very clear about that fact. Whereas exhibit U4 names the second respondent as mortgagor and the Bank as Mortgagee, the first respondent was just a spouse. The stressing point is, the documents speak for themselves and should not be clarified by words. For this confusion, the trial chairperson had ordered discharge of mortgage as created by the 2nd respondent for want of her consent. But the legal position is, discharge of mortgage is only done when the mortgage has been paid (See section 121(1) of the Land Act). Other modes is only when mortgage has been annulled. With this submission, he humbly prayed that this appeal be allowed, the decision of the trial tribunal be quashed and set aside for arriving at a wrong verdict or misapprehended the facts of the case. 7 Resisting the appeal, Mr. Emmanuel Sululu learned advocate submitted in the first ground of appeal that there was no requirement of consent pursuant to paragraph 6(i)(a) of the 1st Respondent's application at the trial tribunal, he found it as a misplaced ground as the first respondent properly described herself as wife of the 2nd respondent. In consideration of the chronological events: The house was purchased in 2005, Mortgaged in 2007 and the marriage was contracted in 2008. He argued that the learned counsel has confused himself with the dating (see page 21 of the typed proceedings). Apart from purchasing the said house in 2005, the argument that there ought to have been a certificate describing her as also owning that house jointly with the second respondent, it was not the proper position of the law. The law is, a wife becomes a vested owner of the matrimonial property even if her interests are not registered in her name. With the requirement of caveat, he argued that it was not necessary in the circumstances of this case as the 1st respondent had exhibited that she is a spouse of the second respondent. That either it is a matrimonial home or matrimonial property, yet the issue of consent was necessary so long as the mortgage deed involved a matrimonial home/matrimonial property. 8 That there was no need of consent as submitted by Dr. Mwaisondola, it is a laughable argument, submitted Mr. Sululu. Since it is the same bank officials that issued the said contractual forms involving the first respondent as spouse, yet it is them again who are now denouncing the spouse's consent apart from pressing it previously, wondered Mr. Sululu. On continuity security of mortgage, he argued it as being a new phenomenon developed by the appellants' counsel. There cannot be a continuous security nor continuous consent. Reading the typed version of the trial tribunal's proceedings at page 47, when SU2 was examined, he replied that of all the three loans he had taken, he just signed one. The guarantor ought to have been notified the progress of the loan she had guaranteed. If the first loan of 27,000,000/= was not paid in full, how did they dare to give him more loans fatter than the former, how was it possible? He fortified that the CAT in the case of National Bank of Commerce V. Nurbano AbadallahMulla, Civil Appeal No. 283 of 2017, considered the similar situation and directed that subsequent consent is necessary (see page 10 - 14). He persuaded this Court to be well guided by that finding. 9 With the second ground of appeal, his reply is; there is no any error committed by the trial tribunal in pressing reliance to the cited case Christopher Paul Charles and Others as the trial chairperson applied it perfectly in the circumstances of this case. To the third ground of appeal, he submitted that the position of the first respondent as guarantor was supposed to be considered. As she had discharged that duty of paying 27,000,000/=, the trial chairperson was right to order discharge of that mortgage as per evidence in record that the loan was paid all and in full. It is astonishing to the Bank as well, as they even don't know at all what was the balance of the loan (See cross examination of SU2). With the fact that the lasting solution of a loan is repayment, he too subscribed to it. But it is supposed to be known what is exactly the said loan. That is missing from the facts of the current case. In the circumstances, they considered the appeal as unmeritorious, thus ought to be dismissed with costs. On his part, Mr. Tuli learned advocate, subscribed on what has been submitted by Mr. Sululu, and added on the first ground of appeal that, it is not necessary for a matrimonial property to have a name of both spouses 10 for the other to establish interests over it. In the case of Hadija Issa Arebary Vs. Tanzania Postal Bank, Civil Appeal No. 135 of 2017 at page 4-8, the CAT emphasized that so long as the said property has been attained during the subsistence of their marriage, it qualifies to be a matrimonial home regardless the mode of registration. With the continuing security, he submitted that section 114 of the Land Act is the governing provision of law. According to that law, it imposes a mandatory duty that if the borrower is the spouse, then the other spouse must consent for one to mortgage. He compared the situation in the case of National Bank of Commerce V. Nurbano Abadallah Mulla as resembling with the current facts. That the borrower after had obtained the first loan upon being consented by his spouse, when he took the subsequent loan, the CAT emphasized that under section 114 of the Land Act, the second mortgage as well needed another consent. It was his emphasis that, with the second and third loans taken by the 2nd respondent, SU1 in his testimony testified that it was motor vehicles' loan. That in the said loans, the securities were the vehicles themselves and their registered cards. That evidence was corroborated by SU2 (see page 48 of the typed proceedings). As per this evidence, the securities for the second and third loans was no longer a house 11 but the vehicles themselves and their cards. On that basis, he considered this appeal being unmerited, and it be dismissed with costs. In his rejoinder submission, Dr. Mwaisondola (PhD), mainly reiterated his submission in chief. But with continuity security, he maintained his stand that as provided under exhibit U5 paragraph 11 and paragraph 6 of exhibit U4 exhibit and that the loan facility was between the mortgagor and mortgagee (i.e 1st appellant and 2nd respondent). Thus, since the parties had signed so, who is an advocate to resist? As regards to the names of the alleged spouses not featuring in the title deed, he kept on insisting that the stated position in the case of Hadija Issa Arebary Vs. Tanzania Postal Bank, Civil Appeal No. 135 of 2017 though is the guiding authority, however it is distinguishable from the facts in the current case. In the current case it is the husband who has mortgaged his property thus does need a spouses' consent. Further, this is a continuing security and not otherwise. With the second and third loans, the language used in the contract, the said vehicles and cards are just part of securities and in totality of the said house. 12 To the third ground of appeal, his insistence is this, parties to the contract (U3) are the 1st appellant and second respondent. As the borrower admits defaulting loan repayment, then it is not the first respondent to argue it. She is just a stranger to the mortgage. With all this, Dr. Mwasondola (PhD) humbly prayed that this appeal be allowed on the strength of his submission as done. That's all. Having heard the submissions from both sides and having critically scanned the trial tribunal’s records, the vital issue for determination is whether this appeal is meritorious. In arriving at that end, the questions this Court is going to consider are mainly two: one, when is the spouse consent in mortgage facility by a married man or woman necessary. Two, whether the law recognizes the continuity security in mortgage facility upon expiration of the loan earlier taken secured by the mortgage facility. It is settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract. That is, there should be a sanctity of the contract as lucidly stated in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 at page 289 thus: 13 “The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement" With the same spirit of the principle of sanctity of contract, when the contract entered between the parties embodies all attributes of a valid contract such that it was not prohibited by the public policy, none complains about his consent to the agreement being obtained by coercion, undue influence, fraud or misrepresentation in order to make it voidable in terms of the provisions of section 19 (1) of the Law of Contract Act, Cap. 345 R.E 2002, it remains a valid contract and enforceable in the eyes of the law (See also Simon Kichele Chacha V. Aveline M. Kilawe, Civil Appeal No. 160 of 2018, CAT at Mwanza). In reading exhibits “U4” and “U5” of the case (at the trial tribunal), it is undisputed that in 2007 the second respondent had taken a bank loan from the 1st appellant and the 1st respondent acted double roles: guarantor and spouse. In the both covenants there was a clause of “Continuing Security”. The clause 11 of exhibit U5 by the 1st Respondent (wife) says: 14 “This guarantee shall be a continuing covering security notwithstanding any intermediate settlement of the amount owing and notwithstanding my/our death of legal of incapacity until the bank has received notice in writing from me/us or my/our executor, trustee or other legal representative as the case may be, terminating the same, and until the account owing in terms of this guarantee at the date of receipt of such notice plus interest and costs until date of payment, has been paid, provided that such notice shall have no force or effect and shall not terminate this guarantee unless it is accompanied by a copy of a notice addressed by me/us to the Debtor in terms of which the debtor is advised of the termination of this guaranty”. Clause 6 of exhibit U4 which is the Mortgage of Right of Occupancy dully signed by the borrower (2nd respondent), Bank and the spouse (1st Respondent) on the duration of the mortgage has the following wording as far as the continuity of security is concerned, it reads: “This mortgage shall remain in force as continuing security covering for the principal amount, interest thereon and any 15 additional amount that may be granted to the borrower by the lender, notwithstanding any intermediate settlements, and, this mortgage shall be and remain of full force, virtue and effect as continuing security and covering mortgage on each and every sum in which the mortgagor may now or hereafter become indebted to the Mortgagee from any cause whatsoever to the amount of the principal amount, interest thereon and the additional amount”. My interpretation as far as this continuing security is concerned, is as long as the Debtor remained indebted to the Lender to the Overdraft Facility of TZS: 27,000,000/= dated 8th January 2007 in his favour which had to expire on 31st December 2007, this was the loan as far as the said mortgage, guaranty and spouse consent is concerned. At clause 4 of the Overdraft facility, says the said overdraft facility to be secured by: (a) certificate of occupancy with title No. 5936 LR Mwanza, Plot No. 4, Block “EE” Ngokolo Area, Shinyanga Municipality, (b) Spouse (s) consents to create L/M over certificate of occupancy with title No. 5936 LR Mwanza, Plot No. 4, Block “EE” Ngokolo Area, Shinyanga Municipality, (c) Spouse guarantee supported by L/M over certificate of occupancy with title No. 5936 LR Mwanza, Plot No. 4, Block “EE” Ngokolo Area, 16 Shinyanga Municipality, (d) Credit Life Insurance, (e) Confirmation of the guarantees by the respective guarantors to be effected annually on renewal of the facility. So, as far as the first respondent’s guaranty to the second respondent is concerned is a double role: as spouse and business guarantor. Being a spouse, Dr. Mwaisondora (PhD), is of the firm view that since the said first respondent was not a wife to the second respondent by 2007, her consent was not necessary. I agree with him, though unfortunately it was procured. I wonder as to why that had happened, but I think Dr. Mwaisondora might have good answers to that. So, as long as she was in 2007 recognized as spouse to the second respondent as borrower, it was not unlawful to recognize her as spouse in a subsequent borrowing as in the subsequent borrowing she had a valid certificate. By the way, one does not become a spouse by certificate only but even customarily. As far as the status of a spouse in banking transaction is concerned, the cited case of National Bank of Commerce V. Nurbano Abadallah Mulla says it all. The above case well considered the two contentious issues in this appeal. One, whether the mortgaged property was a matrimonial home and two, 17 whether consent was required in the subsequent overdraft facilities extended to the second respondent. The phrase matrimonial home is defined under section 2 of the Law of Marriage Act, Cap. 29, R.E. 2002 and the said section is in pari material with section 112 (2) of the Land Act, which provides that; "Matrimonial home means the building or part of a building in which the husband and wife ordinarily resides together” From the above provision, it is clear that a property will be termed a matrimonial home when the spouses ordinarily occupy it as their family residence. On the other hand, the phrase matrimonial property has a similar meaning to what is referred as matrimonial asset and it includes a matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage (See Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018, National Bank of Commerce V. Nurbano AbadallahMulla, Civil Appeal No. 283 of 2017 (unreported). For that reason, it is vital clear that not all real properties acquired by the spouses during the subsistence of the marriage are matrimonial homes. The phrase matrimonial home therefore should confine to the house where the spouses ordinarily reside. However, in the current matter, 18 it is not clear whether the said house is a matrimonial home or not; as both, the pleadings and evidence are silent on that. But what is abundantly clear is the fact that the said property even if is not a matrimonial home, qualifies to be a matrimonial property as per the following evidence (at page 20-21 of the typed proceedings of the trial tribunal): Mdaiwa wa kwanza ni mume wangu wa ndoa. … Mume wangu tumeanza kuishi pamoja toka mwaka 1997 kwa ndoa ya kawaida na mwaka 2008 tulibariki ndoa yetu……Nyumba ya mgogoro ni nyumba Na.4 Kitalu EE Ngokolo Shinyanga. Nyumba tuliinunua mwaka 2005 toka kwa mtu ambaye jina nimelisahau. Leo nipo hapa kwasababu nimefungua kesi dhidi ya mume wangu na Benki NBC na Madalali wawili Nampula na Santana……. Therefore, it is a matrimonial property as per similar meaning to what is referred as matrimonial asset as it includes a matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage (See Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018, National Bank of 19 Commerce V. Nurbano Abadallah Mulla, Civil Appeal No. 283 of 2017 (unreported). Additionally, the same is a matrimonial property having been acquired during the subsistence of their marriage. Since this was a land case and the main issue was on a mortgage and not a petition for divorce and the distribution of matrimonial properties then the issue of extent of contribution on the side of the respondent is of no essence. As to the second issue as to whether the 1st respondent had consented to the subsequent overdraft facilities of 126,000,000/= or the third one? As could be revealed from the record, the 1st overdraft facility was signed in January 2007 for it to lapse on 31st December 2007. The 1st respondent in her testimony says that they had paid it all, though there was no any evidence adduced for that substantiation. That notwithstanding, the subsequent overdraft facility dated 2nd May 2008 recognizes that the first overdraft facility was unpaid and extended up to 21st October 2008 (See U2 exhibit). However, it was that second overdraft facility of 126,000,000/= which coupled with the first overdraft of 27,000,000/= and made a total overdraft facility to be 153,000,000/= the same was payable in 36 months. That in my considered 20 view, though is a second overdraft facility but it was a continuous one in terms of clause 11 of exhibit U5 and clause 6 of exhibit U4. Though in the case of National Bank of Commerce V. Nurbano AbadallahMulla considered the subsequent overdraft as a new contract requiring a new spouse consent, in the current case the facts are distinguishable in the sense that as per signed contracts, there is a continuing security dully signed by both the spouse and the borrower, thus, that amounted to a continuing spouse consent as well authorizing subsequent borrowing on the same mortgage facility. Had the first overdraft been dully discharged, the 1st respondent’s claims would hold water. In essence, I am very aware of the mandatory legal requirements imposed by section 114 (1) (a) of the Land Act, which provides that; "A mortgage of a matrimonial home including a customary mortgage of a matrimonial home shall be valid only if, (a) any document or form used in applying for such a mortgage home is signed by/ or there is evidence from the document that it has been assented to by the mortgagor 21 and the spouse or spouses of the mortgagor living in that matrimonial home. . . " [emphasis mine) From the wording of section 114 (1) (a) of the Land Act, the word shall imply that consent from a spouse or spouses is a mandatory requirement when one or the spouses intends to mortgage a matrimonial home. As pointed out earlier, it is an undisputed fact that the consent of the respondent over the mortgaged property was obtained and preceded the issuance of the first overdraft facility of Tshs. 27,000,000/=. However, the situation was not the same on the second overdraft facility of Tshs. 126,000,000/= when the 2nd respondent mortgaged the same property without obtaining/seeking her consent. I think that, unlike the situation in the first arrangement as per National Bank of Commerce V. Nurbano AbadallahMulla, before finalizing the loan issuance procedures, since there is a continuity security and since the first overdraft facility was not discharged as alleged by her, there was no hard rule of seeking her subsequent consent as she had not made efforts of making follow up if the first overdraft was fully discharged. Otherwise I agree with the respondents’ counsel view coached in the case of National Bank of Commerce V. Nurbano AbadallahMulla that, in subsequent overdraft facilities, there ought to be subsequent consent as well. 22 However, the current case facts are slightly different on significant aspect, and in consideration of the fact that the said subsequent borrowing is undisputed by the both respondents, it is the good spirit and the law has taken heed of it that borrowers must make sure that they repay the loans as per facility terms. I am afraid that I cannot be a shield or an umbrella of loan defaulters. There must be discipline of loan borrowers. The settled law is, that parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract. That is, there should be a sanctity of the contract as lucidly stated in Abualy Alibhai Azizi (Supra). The clear covenants in clause 6 and 11 of the U4 and U5 exhibits for the 1st and 2nd respondents respectively take precedence. Having reasoned that much, I find the first two grounds of appeal as jointly responded accordingly that the first respondent was a competent spouse to consent and she accordingly consented to the said mortgage and that her consent was continuous as per facts and the clauses in the covenant. Therefore, the DLHT’s chairperson wrongly interpreted the said principle as per facts in this case. 23 With the third ground of appeal, it is true that the 1st respondent had signed as guarantor and spouse to the 2nd respondent. However, it is true that the second respondent acted as both borrower and mortgagor to the loan (U3 and U4 and U7 exhibits), but this perse didn’t not extinguish the 1st respondent from consenting in terms of the mandatory provision of section 114 (1) (a) of the Land Act read together with section 59(1) of the Law of Marriage Act, Cap 29, R.E 2019 as far as mortgage instrument is concerned that where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds. In the absence of rebut of the 1st Respondent’s interests over the said estate, the banker cannot somersault and turn a blind eye at a well- established principle of law that while the marriage subsists and without the consent of the other spouse, no alienation is effective by way of sale, gift, lease, mortgage or otherwise. However, narrowing the facts in the current matter, I am fully convinced that the 1st respondent had fully provided her 24 continuing consent security in the subsequent loaning as per clear covenants in clause 6 and 11 of the U4 and U5 exhibits for the 1st and 2nd respondents respectively which take precedence and she is thus bound jointly with her spouse on the agreements they freely entered into and this is the cardinal principle of the law of contract. All this said and considered, the appeal is meritorious and is hereby allowed. The first appellant is hereby authorized to exercise her power of sale as per default of the said loan repayment as per law unless it is sooner and fully repaid. The court of law cannot be a shield to defaulting borrowers under the good umbrella of spouse consent in the situation of the current facts. To condone it, is to make the country’s growing economy at a high risk of jeopardy at the pleasure of defaulting bank borrowers who now and then enjoy bank loans and squander their uses and the consenting spouses remain relaxed and seated. As she relaxed, and did not make follow-up of their discharge, the spouse cannot be a rescuing agent as per circumstances of this case. I consider it as a lottery game in which I am not its rider. The best solution to the loan is for it being repaid (See The Private Agricultural Support Trust and Another Vs. Kilimanjaro Cooperative Bank LTD, Consolidated Civil Appela No. 171 and 172 of 2019, The Stanbic Tanzania LTD Vs. Kiribo LTD and 25 2Others, Misc. Civil Application No.17 of 2023 HC Musoma at page 12 & 13). As to the circumstances of this case, parties shall bear their own costs. It is so ordered. DATED at SHINYANGA this 29th November, 2024. F.H. Mahimbali Judge 26