20011219 TZCA Dar es Salaam

Sc - (2.%: CIVIL APPEAL NO • 51 OF 2000 BET1EEN NBC HOL])ING CORPORATION• . . . . . . APPELLANT AND 1. AGNES MAUMBUK0 a. MV31R,11 METAL & WOOD WORKS LTD. - (By Cy L. ' 3 , NJIWA KAVISHE (Appeal from thc decision of th9 iirt o iD (oJ,) dated the 16th day of March, 1999 in Misc iDQiQflJLO QLi

JUDGMENT RI4LjA.: To put tk 'oyJ. o. ±L wpeUant is now Imown as the Consolidated Balding Cporation ocordin -U& the Written Law (Mice11aneos Axnndments) Act, 2001 (Act No1 10 of 2001). The appellant gave a loan to the second respondent which was guaranteed by Cyril Msoka, the Director, by mortgaging a residential house. Upon failing to pay the loan, the appellants filed a suit, Civil Case No. 3 of 1993, and obtained a consent judnent before MROSO, J. on 27th Nay, 1993, The third respondent bought the house in an auction that was conducted much later. The first respondent filed I4isc, Civil Application No. 43 of 1998 seeking to nullify the sale and that prayer was granted by MUNUO, J. on 16th March, 1999. The learned judge found that the first respondent, as the wife of the Cyril Msoka, had not given her consent to the mortgaging of the matrimonial home. Before us Mr. Apollo John Maruma, learned counsel, represented tt pellant and had a ievn.'ound roandurn of appeal. The fira.t respondent was in person and the director, Cyril Meoka, appeared on bohaif of the second repondont. Mr. Kamara, iearnGd advocate ) rproted the third respondent. 4z-, Narurna made f o}iinc submisesionEr and was ,ported by Mr Kamara who, for obv±us reasons, adopted all that Mr. Maruma had submitted. The first respondent presented to us a written bio and it -ts iuite detiod. Th econd. r6pO1dent, on the other

hand, said practically nothing. However, we do not think that we need to consider all the submissions in order to determine this appeal. Nevertheless, it is imperative that we taka stock of the ictions in tho i1±h Court inrQlving thEse same for parties. There was first Civil Case No. 3 of 1993 before MROSO, J. The appellant sued (1) Msumi Metal & Wood Worhs and (2) Cyril Msoka. The learned judge, by consent, declared that both defendants were liable to repay the loan. The learned judge did not in any way touch on foreclosure. So, foreclosure was not ordered by M}.CSO, J. but was exeëuted in pursuance to the loan agreement. That case, therefore, is not relevant at all to the proceedings leading up to this appeal. .13 Thin there was an attempt of Cyril Msokato have the sale of the mortgaged hQuse set aside in Misca Civil Application No, 67 of 1997. That application was dismissed for want to prosecution. So, that, too, does not concern US here. Thirdly, there was the Misc. Civil Application No. 43 in which the first respondent sought to have the attachment and sale of the matrimonial home nullified. She was suing the appellant, Cyril Msoka and the third respondent. The first respondent also filed Misc. Civil Application No. 1 of 1999 praying for an interim order to restrain the appellant, Cyril Msoka and the third respondent from entering, and interfering with, the matrimonial

home, MUNUO, J. combined Misc 0 Civil Application No. 43 of 1998 1 No 0 1 of 1999 and also No, 3 of 1993- She said: These applications arisç from Civil Case No 3 of 1993 wherein judgment was entered by admission on 27/5/93. As we have already said. Civil Case No. 3 of 1993 did not attach and order the sale of the mortgaged property. That was done under the loaui agrecoent and it was not at all necessary to get a court order for that iale. As we have already said again, that case has nothing to do with this litigation contrary to what the learned judge held. So eisc.Civil Application No, Lf3 of 1998 was misconceiTea and, conseauently, this appeal cannot be exonerated from that ate. They have been instituted on the 'wrong base, Civil Case No. 3 of 1 993- We therefore, strike out the appeal with costs. , That is sufficient to end this appeal but we may as well point I 11 out that this Court dismissed, on merit, Idda Mwakalindile v.

1. N.B.C. Holding Cor porati on&2, Sam Saijen Mwakalindile, Civil Appeal No, 59 of 2000 (unreported) which was on all fours with this case. This Court said: it is beyond dispute that a matrimonial house owned by the wife or husband ought not to be alienated by way of sale, mortgage, lease or gift without the consent of the other spouse. In this case, as Mr. Nwakilasa, learned counsel submitted, the mortgagee, the bank, was not aware that the house was matrimonial property. It was registered in the name of the second respondent and not in the names of both the appellant and the second respondent. For that reason 1 the bank, the first respondent, had no reEson to believe that the house belonged to the ãst respondent.. We agree that the appellant had registerable ithrest in the house, which, as provided under this section Section 59 (1) of the Law of Marriage Act, 19717, could be protected by a caveat, The appellant did not register the caveat with the Registrar of Titles. The caveat, would serve as a warning to the second respondent that the house was matrimonial property. This is the situation in this case and, therefore, even on merit the outcome had to be the seine as in that appeal. Once again the appeal is struck out with costs. DATED at DA ES SALAAM this 19th day of December, 2001. , ,-_ (kT) \

RMADHANI

JUTICOF APPEAL LI 3 • K • LUGAKING IRA

JU TICE OF APPEAL I certify that this ii a truo copy of the original. t . ........ ( F. 1 •K WINJ3ALI ) DEPU 7Y REGISTRAR