TEBELO JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA LAND APPEAL NO. 26512 OF 2023 (Arising from Land Application No.529 of 2018 in the District Land and Housing Tribunal for Mwanza at Mwanza) NATIONAL INDUSTRIAL AND COMMERCIAL BANK…………………………………………………APPELLANT VERSUS GETRUDA MUSSA TEBELO…………………………………………1ST RESPONDENT STEVEN MGINYA MALIGA………………………………………..2ND RESPONDENT JUDGMENT 10th December, 2024 & 21st February, 2025 KAMANA, J. This is a first appeal by the National Industrial and Commercial Bank, the appellant. The appeal originates from the District Land and Housing Tribunal (DLHT) for Mwanza which decided in favour of Getruda Mussa Tebelo, the first respondent. Before the DLHT, the first respondent craved the declarations that the house on Plot No. 77 Block H with CT No. 632777 is a matrimonial property; her consent to mortgage the house was never issued, and hence the house was not mortgaged; and permanent injunction that 1 restrains the appellant and Steven Mginya Maliga, the second respondent, from attaching and disposing the suit property. At the trial which was conducted ex parte against the second respondent, the first respondent testified that she and the second respondent contracted marriage under customary law rites. To prove that she and the second respondent contracted marriage, the witness tendered a letter dated 27th December, 2002 authored by a Street Chairman for AIC Street. According to the letter, which was admitted as Exh.P1, the Street Chairman introduced the first and second respondents as husband and wife and residents of AIC Street. She evidenced that during their union, they jointly acquired the house in question and used it as their matrimonial home. She testified that the appellant was about to auction their matrimonial home following the second respondent’s failure to service the loan of Tshs.40,000,000/- advanced to him by the appellant. She stated that the spousal consent to the mortgage of the house in question was not hers. Amplifying, the witness stated that her name is Getruda Mussa Tebelo and not Jenipher Mussa that is appearing in the spousal consent. She tendered his National Identity Card which was admitted as Exh.P2. She testified that she is the only wife of the second respondent. 2 In defence, the appellant fielded Leonard John Isoma (DW1). In his defence, DW1 testified that the second respondent borrowed Tshs. 40,000,000/- from the appellant through a loan agreement which was admitted as Exh.D1. According to the witness, the loan was secured by a mortgage of the disputed house whereby the second respondent surrendered the Certificate of Occupancy of the disputed house which was admitted as Exh.D2. DW1 evidenced that the mortgage was effected through a mortgage agreement entered by the appellant and the second respondent. The mortgage agreement was admitted as Exh.D3. He further testified that the appellant received a spousal consent which was admitted as Exh.D4. He amplified that in the said spousal consent, the second respondent introduced his spouse as Jenipher Mussa. Upon gauging evidence adduced by both parties, the trial Tribunal was satisfied that the first respondent was the second respondent’s wife and she did not consent to the mortgage. Given that, the trial Tribunal held that the disputed property is a matrimonial home; the loan agreement between the appellant and the second respondent was void; and the appellant and its agents were permanently precluded from entering into or taking any action concerning the disputed house. 3 Aggrieved by such holding, the appellant preferred this appeal which is premised on 14 grounds. However, in this judgment, I will consider the second and the twelfth grounds as they dispose of the appeal. The grounds are: 2. That the trial Tribunal erred in law and fact by declaring that there is a lawful, valid and legal marriage between the first respondent and the second respondent. 12. That the trial Tribunal erred in law and fact for failure to consider the material contradiction between the first respondent’s application and her testimony. In the determination of this appeal, I am alive at the established principle that the one who alleges the existence of a certain fact bears the burden to prove the same. The principle is well reflected in the provisions of section 110 (1) and (2) of the Evidence Act, Cap.6 R.E. 2019] which provides that: ‘(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 4 (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.’ See: The Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017-CAT (Unreported). I am further aware that in a civil suit like this one, the standard of proof is on the balance of probabilities in the sense that the one who alleges the existence of a certain fact must convince the court that on the balance of probabilities such facts exist and not otherwise. Lord Denning (MR) in Miller v. Minister of Pension [1947] 2 ALL ER 372 had this to state concerning proof on the balance of probability: ‘…it must carry a reasonable degree of probability but not so high as required in Criminal Case. If the evidence is such that the Tribunal can say he thinks it is more probably than not the burden of proof has been discharged, but if the probabilities are equal it is not.’ Submitting on the second and twelfth grounds, Mr. Godfrey Goyayi, learned Counsel for the appellant, contended that the trial Tribunal misdirected itself in concluding that the first respondent is the second respondent’s wife. He amplified that the first respondent had the burden to prove that she was the second respondent’s spouse which she 5 failed. The learned Counsel contended that Exh.P1 which is a letter from the Street Chairman is not proof that the first and second respondents were legally married to each other. He added that the said letter is not among the proofs of marriage as per section 55 of the Law of Marriage Act, Cap. 29 [RE.2019]. Mr. Goyayi contended that there was a contradiction between the application filed by the second respondent and her testimony during the trial. He explained that while in the application the first respondent stated that she and the second respondent contracted marriage under Christian rites, she testified to contract marriage under customary rites. Given that, the learned Counsel held the view that the trial Tribunal was bound to conclude that the first respondent was not the second respondent’s spouse. Responding to the two grounds, Mr. Mdimi Ilanga, learned Counsel for the first and second respondents, contended that the issue as to whether the respondents contracted a marriage under Christian or customary rites was not among the framed issues. He argued that the first respondent proved to the satisfaction of the trial Tribunal that she is the second respondent’s legal wife and jointly they acquired the matrimonial home. 6 Mr. Ilanga contended further that the letter from the Street Chairman which introduced the respondents as spouses was admitted without any objection. Given that, he held the view that it was improper for the learned Counsel to challenge the same at this stage. This being the first appellate court, this court is bound to analyze the evidence adduced by the witnesses during the trial and form its opinion on the contentious issues. See: Rashidi Abiki Nguwa v. Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 of 2020-CAT (Unreported). Starting with the complaint that the trial Tribunal erred in concluding that the respondents were lawfully married, Mr. Goyayi, learned Counsel for the appellant held the view that there was no marriage between the respondents. Mr. Ilanga had a different view as he contended that there was no framed issue about the existence of marriage between the parties. He also argued that the first respondent proved that she was the second respondent’s legal wife. In determining this complaint, I hasten to agree with Mr. Ilanga that the trial Tribunal did not frame any issue as to whether the first respondent was the second respondent’s spouse. However, in my view, for the spousal consent to be discussed in the context of this matter, the 7 first respondent was obliged to prove that she was the second respondent’s spouse. In my view, proving the existence of marriage is a stepping stone to prove whether the spousal consent was given or not. In other words, the proof of marriage is incidental to issues relating to spousal consent. Reverting to the matter at hand, it is my considered view that the first respondent failed to prove that she was the second respondent’s wife. This is because, as rightly argued by Mr. Goyayi, the first respondent did not tender cogent evidence that established her marriage with the second respondent. Exh. P1 which was the letter from the Street Chairman introducing the respondents as husband and wife, in my view, is not proof of marriage as it does not fall within the evidence of marriage as stated under section 55 of the Law of Marriage Act. Marriage is a sanctity institution that ought to be proved by cogent evidence. Accepting letters of the kind exhibited in Exh.P1 would lead to the opening of a floodgate for unscrupulous litigants to institute suits of this kind and defraud banks and other financial institutions. Concerning Mr. Ilanga’s argument that issues relating to Exh.P1 have no way at the appellate stage since the exhibit was not objected 8 to, with due respect to him, that is not the position of the law. Trite law is that admission of the exhibit is one thing and the consideration of its weight is another aspect. That being the position, this court sitting as the first appellate court is not precluded from weighing the exhibit which was admitted without objection at the trial. On the complaint relating to the contradiction between the first respondent’s application and her evidence, without repeating the arguments of the learned advocates, I am of the considered view that she contradicted herself. While in the application, she asserted that she contacted a Christian marriage, the first respondent testified that she contracted customary marriage. The law is settled that the parties to a suit are bound by their pleadings and in that case, they are expected to lead evidence that proves what is contained in their pleadings. Otherwise, a party is considered to set up a new case. This concept was broadly expounded by the Court of Appeal in the case of Martin Fredrick Rajab v. Ilemela Municipal Council and Another, Civil Appeal No. 197 of 2019-CAT (Unreported) where it was stated: ‘It is a cardinal principle of the law of civil procedure founded upon prudence that parties are bound by their 9 pleadings and thus, no party is allowed to present a case contrary to the pleadings. At this juncture, we deem it pertinent to borrow a leaf from the case of DAVID SIRONGA VS FRANCIS ARAP MUGE AND TWO OTHERS [2014] Eklr, the Court of Appeal of Kenya emphasized as follows: ‘It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it Is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other's case is as pleaded. The purpose of the 10 rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.’ That being the position of the law, the first respondent was obliged to lead evidence that supports her pleading and not to depart from such pleading in respect of the kind of marriage he contracted with the second respondent. By testifying that they contracted customary marriage and not Christian marriage, her evidence is unsatisfactory as she failed to prove her case on the balance of probabilities that she is the second respondent’s spouse. In the final analysis, I allow the appeal with costs. The trial Tribunal’s judgment and decree are hereby quashed and set aside. Right To Appeal Explained. It is so ordered. DATED at MWANZA this 21st February, 2025. KS KAMANA 11