Judgment Niganile Kapologwe vs Mapinduzi Mapunda Others Land Appeal No

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA AT MBEYA MBEYA DISTRICT REGISTRY LAND APPEAL NO. 41 OF 2023 (Arising from the Judgement of the District Land and Housing Tribunal of Mbeya at Mbeya in Land Application No. 40 of 2021) NIGANILE KAPOLOGWE….…………………………………..APPELANT VERSUS MAPINDUZI MAPUNDA………………………………1ST RESPONDENT ZAIDANI AMANI HABIBU…………………………..2ND RESPONDENT NMB BANK PLC………………………………………..3RD RESPONDENT KOTI BROTHERS CO. LTD…………………………..4TH RESPONDENT JUDGMENT Date: 23 October 2023 & 20 November 2023 SINDA, J.: This is an appeal from the decision of the District Land and Housing Tribunal of Mbeya at Mbeya (the DLHT) in Land Application No. 40 of 2021, delivered on 13 April 2023, in favour of the respondents. The brief facts of the case are the appellant sued the respondents at the DLHT opposing the sale of a house on Plot No. 1086, Block ‘Y’, Mwakibete area in Mbeya City (the Mortgaged Property) in order to pay the loan advanced to the first respondent from the third respondent. It is alleged 1 that the appellant cohabited with the first respondent and obtained the Mortgaged Property when they were living together. Afterwards, the appellant and the first respondent parted ways, and the first respondent cohabited with the second respondent. Later, the first respondent obtained a loan from the third respondent and mortgaged the Mortgaged Property. The second respondent gave her consent to the mortgage of the Mortgaged Property. Thereafter, the first respondent defaulted on payment on the loan. As such, the third respondent directed the fourth respondent to sell the Mortgaged Property. The appellant then lodged the application at the DLHT. The DLHT decided in favour of the respondents, hence this appeal. The appellant, being aggrieved with the decision of the DLHT, made this appeal on the following grounds that: 1. The DLHT erred in law and facts when it decided the matter in favour of the respondents without adhering to the contribution of the appellant towards the Mortgaged Property. 2. The DLHT erred in law and facts in holding that the Mortgaged Property belonged to the respondent basing on weak evidence tendered by the respondents and departed with the rule of parties are bound by pleadings but only relying on issues of validity of marriage; 3. The DLHT erred in law and facts when it failed to analyze and consider the weight of evidence adduced by the appellant and the evidence on record hence reached into a bad decision; 4. The DLHT erred in law and facts by relying on unframed issues by raising new issues through importing extraneous matters during preparation of the judgement to wit failure of appellant to claim 2 division of matrimonial properties while no witness in record testified on the same; and 5. The DLHT erred in law and fact when it heard the matter without the presence of wise assessors and without any cogent reasons for the assessors' availability being out of its control. When this appeal came for hearing on 23 October 2023, the appellant was represented by Ms. Joyce Kasebwa, a learned advocate. Mr. Felix Kapinga, a learned advocate, represented the first and second respondents. Mr. Baraka Mbwilo, a learned advocate, represented the third and fourth respondents. In relation to the first ground of appeal, Ms. Kasebwa submitted that the DLHT erred in not considering that the appellant also had rights in the Mortgaged Property. She contended that the appellant and the first respondent lived together as husband and wife from 1998 to 2003 and had two children. They bought a plot that is the Mortgaged Property and constructed the house until it reached the lintel stage. Ms. Kasebwa submitted that court records show that the first and second respondents did not dispute that the appellant and the first respondent built the house up to the lintel stage. She added that the first and the second respondents stated that the Mortgaged Property did not belong to the appellant alone, but the first and second respondents also developed it. 3 Ms. Kasebwa added that the appellant objected to the notion that she did not deserve anything because she did not submit a marriage certificate. This was not an issue before the DLHT because the appellant never said that the respondent was her husband. She objected to the mortgage of the Mortgaged Property being given to the third respondent without her consent. The DLHT said that if the second respondent gave consent as a spouse, then the appellant had no reason to give consent. Ms. Kasebwa stated that the DLHT erred because the appellant clearly explained that the appellant and the first respondent bought the plot and built a house together. The DLHT only said that the appellant did not show the marriage certificate. We see that there was no marital dispute because, at that time, the first respondent had already married the second respondent. Ms. Kasebwa further submitted that it was the testimony of the first respondent on page 32 of the typed proceedings of the DLHT (the Proceedings) that the first respondent started building the house in 2003, and when it came to the lintel stage, he parted ways with the appellant and married the second respondent. She further submitted that it is also the evidence of the first respondent on page 3 of the Proceedings, he stated that when he was living with the appellant, he did not manage to get anything other than the Mortgaged Property. 4 Ms. Kasebwa further stated that on page 34 of the Proceedings, the first respondent explained to the DLHT that when he got married to the second respondent, the house had reached the lintel stage, and he stated that he never shared with the appellant anything related to the loan and mortgage. Ms Kasebwa contended that on page 55 of the Proceedings, the witness of the third respondent said that the first respondent lied to the bank that he had one wife but had two and continued to say that if a couple is divorced, they need the consent of the other partner. Further, on page 58 of the Proceedings, the third respondent witness said that the first respondent did not say whether the Mortgaged Property had co-owners. The DLHT erred in saying that the Mortgaged Property is the legal house of the first and second respondents. We ask the court to accept this ground of appeal because the DLHT misdirected itself to say that the appellant did not have a marriage certificate when the second appellant did not have a marriage certificate as well. Submitting on the second ground of appeal, Ms. Kasebwa argued that the DHLT erred both in law and facts in holding that the Mortgaged Property belongs to the first and second respondents because the evidence provided was weak and that the DLHT did not consider the pleadings, especially the written statement of defence filed by the first and second respondents. 5 Ms Kasebwa stated that the DLHT did not consider the evidence of the first and second appellants, who agreed in their defence on pages 7 and 18 of the Proceedings that it was true that the appellant's claims were valid because she had a contribution to the Mortgaged Property. She referred to the case of Makori J.B Wassaga vs. Joshua Mwaikambo and Another [1987] TLR 88, were the Court observed that parties are bound by their pleadings. Submitting on the third ground of appeal, Ms. Kasebwa contended that the DLHT did not analyze and evaluate the appellant's evidence, so it reached an unfair decision. In relation to the fourth ground of appeal, Ms. Kasebwa stated that DLHT misdirected itself by bringing up new issues when writing judgments without giving the parties a chance to explain themselves. The DLHT judgment stated that the appellant failed to claim the division of matrimonial assets before approaching the DLHT. As such, she had no right to the Mortgaged Property. She referred to the case of Shule ya Sekondari Mwilamvya vs Kaemba Katumbu Civil Appeal No. 323 of 2021 (CAT at Kigoma, unreported) to support her argument. Submitting on the fifth ground of appeal that the DLHT erred in law and facts when it proceeded to hear the matter without the presence of the assessors and without any reasons for their absence. Ms. Kasebwa submitted that on 3 May 2021, 20 January 2022 and 3 February 2022, the 6 DHLT had two assessors. When the case started one assessor was not attending the case. On 29 August 2022, there were changes to the assessors. On 30 August 2023, all the assessors were absent, and the records were silent about why the assessors were absent. She submitted that in accordance with section 23(3) of the Land Courts Dispute Act Cap 216 R.E 2019 (the LCDA), in the course of any proceedings before the DHLT, either or both members of the DLHT who were present at the commencement of proceedings is or are absent, the Chairman and the remaining member, if any, may continue and conclude the proceedings notwithstanding such absence. Replying to the first ground of appeal, Mr. Kapinga submitted that on page 3 of the judgment of the DLHT, there were five issues, and none among them was in relation to the contribution of the appellant in the Mortgaged Property. He referred to the case of Bertha Gilbert vs. Mark Machibula Land Appeal No. 13 of 2022, where the court referred to the case of Mzee Omari Mzee vs Mwanamvua Rashid Kilindi, Civil Appeal No. 301 of 2021( the Court of Appeal of Tanzania (CAT) at Zanzibar, unreported) the CAT at Zanzibar observed that division of matrimonial assets should be dealt by the court having jurisdiction on matrimonial cause. Mr. Kapinga further stated that when the court makes a decision, it does so according to the argument and in this case, there were 5 issues which are on the 3rd page of the judgment of the council. In these issues, there 7 was no issue involving the contribution of the appellant in the Mortgaged Property. Mr. Kapinga submitted that in the case of Bertha Gilbert v. Mark Machibuka Land Appeal No 13 of of 2022 when this court encountered a challenge like this, the Judge referred to the case of Mzee Omari Mzee vs. Mwanamvua Rashid kilindi, Civil Appeal No. 301 of 2021 (CAT at Zanzibar) the CAT observed that the division of matrimonial assets should be dealt at the court dealing with matrimonial causes. Mr. Kapinga added that since this matter was taken to the DLHT, it was correct for the DLHT not to consider the contribution of the parties in the matter because the DLHT does not deal with marriage issues. On the second ground of appeal, Mr Kapinga argued that the ground had no merit because the DLHT did not declare that the house in dispute was the property of the first and second appellants. The DLHT was correct that the appellant was not required to issue consent because she was not the wife of the first respondent, but they lived together and later parted ways. Mr. Kapinga argued that section 114 of the Land Act Cap 113, R.E 2019 (the Land Act) provides for financial institutions to obtain spouse consent on mortgage of a matrimonial property. He argued that in this case, the loan was issued in 2020. The bank could not call the appellant to issue 8 her consent as she parted ways with the first respondent in 2003. There is a legal wife who gave consent, which seems to be genuine. Mr. Kapinga further submitted that parties are bound by their pleadings. He added that the first and second respondents have never departed from their pleadings. He contended that the parties explained how the Mortgaged Property was obtained. That is why the DLHT said that if the appellant had an interest in it, she should follow the procedures in the appropriate court. He added that the appellant did not put a caveat on the Mortgaged Property. The DLHT was right to say that consent was not required. On the third ground of appeal, Mr. Kapinga argued that the ground has no merit because the DLHT analyzed the evidence and found that the appellant failed to prove her claims as required by law. He argued that since this is the first appellant court, it has the authority to analyze the evidence and make decisions as it sees fit. Submitting on the fourth ground of appeal, that the DLHT brought extraneous matters in the judgment. Mr. Kapinga contended that the argument has no basis. He argued that the DLHT did not bring anything new. The DLHT only stated that the claimant did not prove that he got married and did not follow up on the division of property from 2003. It is clear that the DLHT did not bring any extraneous matters but was analyzing the evidence to be able to decide the matter. 9 In relation to the fifth ground of appeal on assessors, Mr. Kapinga stated that the ground has no merit. He mentioned that on 29 August 2022, the assessors were not there, as shown on page 29 of the Proceedings. The matter was adjourned to 30 August 2022; the assessors were not present again, as shown on page 30 of the Proceedings. He added that the advocates for both parties were present. They were told about the challenges of the assessors. The appellant counsel did not object. She said that she was ready to proceed with the matter. The DLHT has the authority to proceed with the matter without assessors as per section 23 (3) Land Disputes Courts Act Cap 216 R.E 2019. The section does not state that the DLHT must give reasons to proceed with the matter without assessors. He added the parties agreed to proceed without assessors. The counsel for the third and fourth respondents, Mr. Baraka Mbwilo opposed the appeal. He argued that the first ground of appeal has no basis because the dispute at the DLHT was on consent by the appellant. He argued that the issue of consent is a statutory requirement, and the third respondent followed all the procedures to mortgage the Mortgaged Property. He added that there was an affidavit of marriage of the first respondent and at the time of taking the loan it was proved that the first and second respondents are spouses. There was no any evidence that could prevent the third respondent from issuing the loan. 10 Mr. Mbwilo further stated that the first ground on contribution is not reflected in the DLHT Proceedings. He contended that the appellant did not plead that she contributed to the Mortgaged Property. He referred to the case of Hadija Issa Arerary v. Tanzania Postal Bank, Civil Appeal No. 135 of 2017 (CAT at Iringa) unreported to support his argument. Arguing on the second ground of appeal, Mr. Mbwilo submitted that the evidence before the DLHT, especially the DW1 defence, proved that the Mortgaged Property has a certificate of occupancy which bears the name of the first respondent. Therefore, it was the evidence from DW1 that they were satisfied by the evidence of the first respondent regarding the Mortgaged Property. Also, the affidavit of marriage and spouse consent, which were tendered before the DLHT, cannot be termed as weak evidence. Mr. Mbwilo further argued that the third and fourth respondents did not part from the pleading because what is stated in the written statement of defence is what was testified by DW3 and DW4. He added the dispute was on consent. The documentary evidence tendered before the DLHT, and all evidence proved that the mortgage was proper and the DLHT was right to decide against the appellant. On the third ground of appeal, Mr. Mbwilo prayed to adopt the submission of the first and second respondents. He insisted that the evidence is 11 regarding consent by the appellant with respect to the Mortgaged Property and not on contribution. In relation to the fourth ground of appeal, Mr. Mbwilo submitted that what is complained about is not a new issue but the reasoning of the DLHT chairman. Mr. Mbwilo submitted that the judgement does not mention anywhere the DLHT chairman raised an issue, analysed it and made a decision on it. He stated that the DLHT chairman reasoned that if the appellant has an interest in the Mortgaged Property, she should file a case on distribution of matrimonial property, the reasoning which he concurs. In relation to the fifth ground, Mr. Mbwilo submitted that the DLHT did not proceed with the hearing on 3 February 2022 and 13 May 2022 because of lack of coram. Since no hearing was done, no complaint can be raised from it. He added that the composition stipulated under 23(3) of the LCDA is on hearing of disputes. Mr. Mbwilo further argued that regarding the proceedings of 30 August 2022 which proceeded with the Hon. Chairman and without the assessors, the law allows, and the parties were addressed on this instance. He stated that this is shown on page 30 of the Proceedings. The chairman informed the parties that one assessor was absent, and the parties agreed to proceed only with the Chairman. 12 Mr. Mbwilo contended that, the counsel for the appellant failed to submit before this court how the appellant is affected when the DLHT chairman proceeded with the hearing by consent of all the parties. Mr. Mbwilo further argued that the case cited by the counsel of appellant i.e. Shule ya Sekondari Mwilamvya (supra) is quite distinguishable from the facts on this case because the CAT noted that the CMA raised the issue of time limitation and answered that issue without inviting the parties to address on that issue. He argued that this is not a relevant case in the circumstances of this case. Mr. Mbwilo maintained that the case of Makori J.B Wassanga (supra) is quite distinguishable from the facts of this case because the third and fourth respondents did not depart from their pleadings. Mr. Mbwilo further argued that the complaint by the appellant in this appeal is in relation to her contribution to the matrimonial property which results in co-ownership. At the same time, the counsel for the appellant submitted an existing marriage between the appellant and the first respondent from 1998 to 2003. The prayer by the counsel of the appellant is that this court declare the appellant has a contribution to the Mortgaged Property. 13 It is Mr. Mbwilo's submission that this court and the DLHT cannot decide on the division of matrimonial property or the extent of contribution by one spouse on the matrimonial property because that issue can be decided by the court determining matrimonial matters. He further argued that a division of matrimonial property is done after an order of divorce and that divorce can be proven when there is a marriage or presumption of marriage. He insisted that the issue to be determined at the DLHT was on consent. He prayed the appeal to be dismissed with costs. In rejoinder, Ms. Kasebwa maintained her submission in chief that the DLHT erred by failing to look at the appellant's interests. She insisted that the appellant built the house until the lintel stage. She had the right to give consent on the Mortgaged Property. Ms. Kasebwa further stated that, the respondents do not dispute that there must be a spouse consent as required under section 114 of the Land Act. She stated that it is not proper to say that the appellant left 17 years ago and, therefore, she did not deserve to issue the spouse consent. Ms. Kasebwa further rejoined that the respondents have agreed that this court should re analyze the evidence. 14 Ms. Kasebwa further rejoined that the respondents stated that there are no extraneous matters in the reasoning of the DLHT chairman. She insisted that the DLHT was wrong to bring up extraneous matters which were not part of the witnesses' testimony. She further stated that if the DLHT wanted to give a good reasoning, it would have called the witnesses to ask why they failed to distribute the properties prior. Ms. Kasebwa further stated that the respondents’ advocates said that all the parties agreed to continue without assessors. She added it is not true that she agreed. She stated the records are not correct. The advocate for the third and fourth respondents stated that assessors are only required during hearing stage. She added he did not cite the law therefore the litigants were denied their rights to hear the case with the assessors. Ms. Kasebwa maintained that the DLHT state the Mortgaged house belongs to the first and second respondents and left the appellant out of it. Ms. Kasebwa added that the counsel for the third and fourth respondents said the only issue in dispute is consent, and she insisted that the appellant was to give her consent as a co-owner of the house as she had interests in it. She added that the DLHT said the appellant did not have a marriage certificate. She argued a marriage certificate does not prove 15 ownership. The DLHT had no right to demand a marriage certificate because the case was not on the issue of marriage. I have considered the instant appeal, the grounds in support thereof, the submissions of both sides, the record of this appeal and the law. The crucial issue to decide is whether the mortgage of the Mortgaged Property wad proper in law. In responding to the issue, I will combine all the grounds of appeal and discuss them together. The appellant's main complaint is that she contributed to the construction of the Mortgaged Property, and therefore, her consent was to be sought and obtained. Section 114 of the Land Act stipulates the procedure for mortgaging a matrimonial home as follows: (1) 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 is signed by, or there is evidence from the document that it has been assented to by the mortgagor and the spouses or spouses of the mortgagor living in that matrimonial home; or 16 (b) any document or form used to grant the mortgage is signed by or there is evidence that it has been assented to by the mortgagor and the spouse or spouses living in that matrimonial home. (2) For the purpose of subsection (1), it shall be the responsibility of a mortgagor to disclose that he has a spouse or not and upon such disclosure the mortgagee shall be under the responsibility to take reasonable steps to verify whether the applicant for a mortgage has or does not have a spouse. (3) A mortgagee shall be deemed to have discharged the responsibility for ascertaining the marital status of the applicant and any spouse identified by the applicant if, by an affidavit or written and witnessed document, the applicant declares that there were spouse or any other third party holding interest in the mortgaged land. (4) An applicant commits an offence who, by an affidavit or a written and witnessed document, knowingly gives false information to the mortgagee in relation to existence of a spouse or any other third party and, upon conviction shall be liable to a fine of not less than one half of the value of the loan money or to imprisonment for a term of not less than twelve months. That is the position of the law in relation to mortgage of a matrimonial home. In the instant case, it is undisputed that the first respondent provided an affidavit proving that he was married to the second respondent. The second respondent gave her consent to the mortgage of the Mortgaged Property. It is on the strength of the above information 17 that the third respondent believed it to be true and disbursed the loan to the first respondent. See: Hadija Issa Arerary vs Tanzania Postal Bank, Civil Appeal No. 135 of 2017 (CAT at Iringa). I believe that the third respondent was correct in disbursing the loan, believing that the second respondent was the legal wife of the first respondent and had an interest in the Mortgaged Property. Therefore, the second respondent's consent was valid, and the appellant's consent was not required. The appeal us without merit and is hereby dismissed in its entirety with costs. The right of appeal was explained. Dated at Mbeya on this 20 day of November 2023. A. A. SINDA JUDGE 18