b4 NIITE YUDA SANGA VS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OFTANZIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 81 OF 2023 (Originating from Application No. 22 of2023 in the District Land and Housing Tribunal of Mbeya at Mbeya) NIITE YUDA SANGA..................................................................... APPELLANT VERSUS 1 JANKEN ASUKILE MWALEGWA............................................ st RESPONDENT INDIA BANDILE MWAKIBABILWA................................. 2nd RESPONDENT JUDGMENT Date of hearing: 14/05/2024 Date ofjudgment: 30/07/2024 NDUNGURU, J. In application No. 22 of 2023, of the District Land and Housing Tribunal for Mbeya at Mbeya, the appellant unsuccessfully sued the respondents over the house situated in plot No. 428 Block "X" Mwakibete area within the City and Region of Mbeya (the disputed house). Brief background of the matter is that, the appellant Niite Yuda Sanga and first respondent Janken Asukile Mwalwega are couples who i had lived for more that eighteen years, blessed with four issues and owned immovable property acquired by joint efforts. Sometimes in December, 2022 the appellant learnt that the disputed house was sold to the second respondent, Indian Bandile Mwakijabilwa at the consideration of Tsh. 55,000,000/=. It was alleged that the appellant was not involved in the sale and when the respondents were asked, they admitted. That the sale was illegal, thus prayed for decree and judgment on reliefs contained in the application. The respondents each filed separate defence, the first respondent in his written statement of defence admitted most of the averments save that the appellant was not involved in the disposition of the disputed house. He added that the disputed house was his personal property acquired by own sweet while living with his family. On part of the second respondent in his written statement of defence disputed the claim. He alleged that the first respondent sworn affidavit of being unmarried when making the transaction. He added that the certificate of title did not indicate that the dispute house was a joint property. Upon full trial, the chairman found that the disputed house was registered in the name of the first respondent alone and therefore held 2 that the appellant failed to prove the case. Consequently, the application was dismissed with costs. The decision aggrieved the appellant who preferred memorandum of appeal containing eight grounds; one, that the trial tribunal grossly erred in law and fact in holding that the appellant failed to prove if she own the disputed land with the first respondent; two, that the trial tribunal erred in law and fact to rule that the appellant failed to prove the case on the standard required; three, that the trial tribunal erred in law and fact to decide in favour of the respondents while the evidence of Sill was contradictory; four, that the trial tribunal erred in law and fact to decide in favour of the respondents while the evidence of SU1 and SU2 contradicted; five, that the trial tribunal erred in law and fact to decide that the appellant failed to prove co-ownership of the disputed land while Sill clearly admitted he agreed with the appellant concerning the need to sale the disputed land; six, that the trial tribunal erred in law and fact to decide in favour of the respondent while SU1 admitted that the appellant didn't give her consent in regard to disposing the disputed land to the second appellant (sic. second respondent); seven, that the trial tribunal erred in law and fact to exnorolate (sic. exonerate) the disputed land as the matrimonial home/property; and eight, that the trial tribunal erred in law and fact by deciding the case without 3 regard the fact that the second defendant bought a property while knows that the property is matrimonial property. When the appeal cane for hearing, for the appellant appeared Mr. Aman Japhet and Mr. Mathayo Iredi Mbilinyi for the second respondent both learned advocates. The first respondent appeared in person. Parties prayed and were granted leave to argue the appeal through written submission. Submission by the appellant is crafted by Mr. Barnabas Pamboma of Liberal Law Chamber. Arguing the first ground that the tribunal erred to hold that the appellant failed to prove the case, Mr. Pamboma stated that the appellant proved her contribution in terms of work, household, bearing and rearing children. He said land interest of spouses is in nature of occupancy in common, the other spouse is only required to show contribution in terms of productivity, upkeeping and improvement of the land. He referred to section 161 of the Land Act [Cap 113 R: E 2019] and the case of Bi Hawa Mohamed vs Seif Ally [1983] TLR 3. It was further submission that the disputed house was a matrimonial home and there was no dispute that the appellant and first respondent used as a residential. 4 Adverting to ground two that the appellant failed to prove the case to the required standard, it was submitted that the appellant proved that he contributed and was involved in building the disputed house. Mr. Pamboma added that even though no certificate of marriage was tendered but it was undisputed that the appellant and first respondent lived together for more than twenty years. Section 114(2)(b) of the Law of Marriage Act [Cap 29 R: E 2019] "the LMA" was cited and argued that the appellant contributed to its acquisition cannot be eliminated even though title was in name of first respondent. In respect of ground three that evidence of DW1 was contradictory, counsel for the appellant submitted that DW1 sworn affidavit that was not married but during hearing admitted to be married to the appellant, he said this contradiction went to the root of the case. In support the case of Africarrier Limited versus Milleniun Logistic Limited, Civil Appeal No. 185 of 2018 (unreported) was cited. In fourth ground that evidence of DW1 and DW2 contradicted, it was submission of Mr. Pamboma that DW1 testified to have involved the appellant on sale of the disputed house but refused but DW2 said he bought the house after DW1 had sworn affidavit that he was not married. Counsel said this was contradiction making their evidence suspicious. 5 On failure to proof co-ownership in ground five, it was submitted that the appellant proved that she contributed in acquisition of the house. The case of Gabriel Nimrod Kurwijia vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 [2020] TZCA 31 (20 February 2020; TanzLII) was cited to support that proof of contribution is necessary in matrimonial property. Counsel added that the tribunal did not consider evidence that the appellant assisted even to pay the loan. Further that the first respondent and appellant being spouses then they had co-ownership and consent was not sought. Submitting in ground six that the disputed house was not declared as matrimonial house, it was submission of counsel for the appellant that the appellant and first respondent lived together and the disputed house was matrimonial home. He stated the appellant contributed, here section 114(3) of the LMA was cited to support that the appellant had right in the property. In ground seven that consent of the appellant was not sought, Mr. Pamboma submitted tat the second respondent bought the disputed house while aware that it was a matrimonial home and the appellant did not consent. From the above prayed the appeal to be allowed. 6 Replying to the above, the first respondent file a six-page submission, however after reading it carefully it supports in every aspect the submission of the appellant, even the provisions of the laws and cases referred are the same. I have therefore found not necessary to paraphrase it here. In his submission Mr. Mbilinyi for the second respondent started his argument with a cardinal principle of law that he who alleges must prove and continued to submit that the appellant did not prove that she was a co-owner with the first respondent. Counsel submitted that the fact that the appellant was a wife of the first respondent could not rely on presumption of marriage as it is not a new form of marriage. This, he said the appellant and first respondent were not married. Replying to the first ground, Mr. Mbilinyi submitted that the law requires a person with interest in the property to register it but the appellant did not do the that. Counsel said title deed was in the name of the first respondent. To support this argument counsel cited the case of Idda Mwakalindile versus NBC Holding Corporation & Another, Civil Appeal No. 51 of 2000 (Unreported). It was further argued that the appellant testified that she contributed without substantiating it taking into account, the first respondent testified that was the sole owner. 7 On contradictory evidence it was argued that sale was done after the first respondent had deponed affidavit that was unmarried, the evidence of which was not objected during hearing. Counsel submitted the appellant was estopped by doctrine of estoppel under section 123 of the Evidence Act. The argument was substantiated by the case of Philimon Vanai Saiteru Mollel versus Willian Titus Mollel & Another, Civil Appeal No. 407 of 2021 [2024] TZCA 157 (5 March 2024; TanzLII). He said that the first respondent was bound by the affidavit he sworn otherwise counsel said there was conspiracy between the appellant and first respondent to obtain money from the second appellant through lies. On whether there was spouse consent, counsel for the second respondent submitted that the same was not necessary after the first affidavit had sworn affidavit that he was not married. He added that blame that the first respondent was advised by the advocate had no chance as the first respondent freely signed the document. Further argument was that the second respondent conducted search and due diligence as to ownership of the disputed house and therefore was a bonafide purchaser. The case of Philimon Vanai Saiteru Mollel (supra) was referred to bolster the point. Rounding up the submission Mr. Mbilinyi categorically stated the appellant did not 8 register caveat to protect her interest and there was affidavit of marital status of the first respondent, therefore, the appellant failed to prove her interest in the disputed house. Finally, counsel for the appellant prayed to dismiss the appeal with costs. During rejoinder, Mr. Pamboma has similar argument save that he dismissed the case of Idda Mwalindile (Supra) relied by the second respondent and said the correct passion of law is that stated under section 161 of the Land Act. Having read rival submissions of parties and considered the record of appeal, some of the matter not in dispute is one, that the appellant and first respondent are spouse and two the disputed house was acquired during substance of their relationship. The only burning issue is whether the disputed property is the matrimonial property for the appellant to be involved, this touches all grounds of appeal as covered in the submission. Before I take steps into the issue, in the determination of the appeal, I shall be guided by some principles, one, being the first appellate court, I am vested with the mandate to re-appraise the evidence on record and draw my own inferences of fact. This was well stated in the case of Registered Trustees of Joy in the Harvest vs 9 Hamza K. Sungura, Civil Appeal No. 149 of 2017 [2021] TZCA 139 (28 April 2021; TanzLII) when the Court stated; 'The law is well settled that on first appeal, the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand...' Another principle is that of burden of proof, it is a cherished principle of law that, generally, in civil cases, the burden of proof lies on the party who alleges anything in his favour in terms of sections 110 and 111 of the Law of Evidence Act [Cap 6 R.E. 2022]. In that regard the Court is required to sustain such evidence which is more credible than the other on a particular fact to be proved. See: Nuru Finance & Business Services Co. Ltd vs Benjamin Adamson Masuba, Civil Appeal No. 284 of 2020 [2024] TZCA 169 (8 March 2024; TanzLII) and Stanslaus Rugaba Kasusura and Another vs Phares Kabuye [1982] TLR 338. And the third principle is the rule of pleadings, it is the position of the law that parties are bound by their pleadings and they cannot be allowed to raise new issues which are not backed by their pleadings unless by way of amendment. See Ernest Sebastian Mbele vs io Sebastian Sebastian Mbele & Others, Civil Appeal No. 66 of 2019 [2021] TZCA 168 [ [2021] TZCA 168 (4 May 2021; TanzLII). In this appeal, counsel for the appellant in his submission discussed almost in all grounds that the appellant contributed to the acquisition of the disputed house and therefore it was matrimonial home. The second respondent had a different view. I have perused the record and evidence paraded in the tribunal, issue of the disputed house being matrimonial home is nowhere to be seen in pleading or evidence of the appellant. What the appellant pleaded and testified is that the disputed house was a joint house together with the first respondent. The matter which was serious disputed by the first respondent in his written statement of defence and evidence. The law has made distinction between matrimonial home and matrimonial property, the former is defined under section 112(2) of the Land Act that; 'Matrimonial home means the building or part of a building in which the husband and wife ordinarily reside together and includes (a) where a building and its cartilage are occupied for residential purposes only that cartilage and any outbuildings thereon; and ii (b) where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by the husband or the wife, as the case may be, to his or her spouse for her or his exclusive use.' On the other hand, matrimonial property or asset it not defined by statutes but case law, these are assets which were acquired by one or the other spouse before or during their marriage, with intention that there should be continuing provisions for them and their children during their joint lives. The law says that, they include assets which may have been owned by one party prior to the marriage but improved by the other party during the marriage on their joint efforts. See Gabriel Nimrod Kurwijila (supra). In Bi Hawa Mohamed v Ally Sefu [1983] TLR, 32, the court stated; the assets envisaged thereat must firstly be matrimonial assets; and secondly, they must have been acquired by them during the marriage by their joint efforts." (Emphasis supplied). From the above, what was pleaded was joint property as also seen from the nature of relief sought under paragraph 8(i) of the application, the appellant was therefore required to prove that averment. The law recognises separate property ownership under section 60(a) of the LMA, it provides; 12 'Where during the subsistence of a marriage, any property is acquired- fa) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse/ The presumption of separate property under section 60 of the LMA lies with matrimonial assets as opposed to matrimonial home on which counsel for the appellant submitted intensively. The appellant did not plead that the disputed house was a matrimonial house, thus estopped from raising the issue in appeal. It is a cardinal principle of the law of civil procedure founded upon prudence that parties are bound by their pleadings and thus, no party is allowed to depart or present a case contrary to the pleadings. See Martin Fredrick Rajab v. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019 [2022] TZCA 434 (18 July 2022; TanzLII) Therefore, argument that the disputed house is matrimonial home is ignored for not being pleaded or borne out of evidence. Assuming that it was matrimonial home there is no evidence to the effect it was used as a residential house. Connecting from the above, the is dispute that the disputed house was not matrimonial property. Whether the property is matrimonial or 13 not one will have to look on the system of registration of land titles. It is the law that the person with a certificate will always be taken to be a lawful owner unless it is proved that the certificate was not lawfully obtained. In the case of the court Amina Maulid Ambali & Others vs Ramadhani Juma, Civil Appeal No. 35 of 2019 [2020] TZCA 19 (25 February 2020; TanzLII) approved the observation made by Dr. R.W. Tenga and Dr. S.J. Mramba in their book bearing the title Conveyancing and Disposition of Land in Tanzania: Law and Procedure, Law Africa, Dar es Salaam, 2017, at page 330: the registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership of, or a legal interest in, a parcel of land. The act of registration confirms transaction that confer, affect or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the title.' [See also; Athumani Amiri vs Hamza Amiri & Another, Civil Appeal No. 8 of 2020) [2022] TZCA 772 (6 December 2022; TanzLII) and Leopold Mutembei vs Principle Assistant Registrar of Titles, ministry of Lands Housing and Urban Development & Another, 14 Civil Appeal No. 57 of 2017 [2018] 7ZCA 213 (11 October 2018; TANZLII)]. In this case as stated elsewhere, the first respondent denied the disputed house to be the patrimonial property through pleading and in his testimony. But in this appeal has turned hostile in favour of the appellant, aware that submissions are not evidence I will confine to what he pleaded and stated in his evidence in the tribunal. On part on the second respondent through his written statement of defence stated that title deed is in the name of the first respondent and in this appeal, it has been argued by Mr. Mbilinyi that they did search with purpose of satisfying with ownership of the disputed house. On my part, I agree that the title of the disputed house being in the name of the first appellant alone, is conclusive evidence that it is owned by him separately and does not follow under the category of matrimonial property. The appellant's counsel relied on section 161(2) of the Land Act which provides '161-(I) N/A (2) Where land held for a right of occupancy is held in the name of one spouse only but the other spouse or spouses contribute by their labour to the productivity, upkeep and improvement of the land, that spouse or those spouses shall be 15 deemed by virtue of that labour to have acquired an interest in that land in the nature of an occupancy in common of that land with the spouse in whose name the certificate of occupancy or customary certificate of occupancy has been registered/ The argument of contribution was not testified by the appellant, it has surfaced in submission filed which cannot be considered in lieu of oral evidence adduced. In Jao Oliveira & Another vs It Started in Africa Limited & Another, Civil Appeal No. 186 of 2020 [2023] TZCA 7 [8th February 2023; TanzLII] the court stated; whatever point which was canvassed by counsel it was made in their submission and not on evidence and therefore, one cannot evaluate submissions but rather evaluation has to be done on the evidence on record. It is now settled that as a matter of general principle submissions by counsel are not evidence.... written submissions by the appellants however convincing they are, because submissions are not a substitute for evidence/ As the appellant did not parade any evidence of contribution to prove interest in tandem with section 161(2) of the Land Act, it follows that she failed to rebut presumption that from the contribution she made in the disputed house acquired interest and ownership together with the first respondent and the title became occupancy in common. 16 There is argument from Mr. Mbilinyi that the appellant did not register caveat on title of the first respondent, the appellant's counsel replied being wife was only enough. Under section 59(1)(2) of the LMA requires a spouse to register caveat to protect her interest in matrimonial home as opposed to matrimonial asset or property. The appellant may be protected under section 161(3)(b) of the Land Act, but as stated elsewhere in this judgment there was no evidence of her contribution in form of labour to the productivity, upkeep and improvement of the disputed house. From the record, the first respondent swore an affidavit that she was not marriage for consent of spouse to be given, exhibit DI. By having affidavit of marriage status, the second respondent complied with section 161(3) of the Land Act bearing that there was no registrable interest by the appellant with the land authorities on the title of the first respondent. Exhibit DI is enough to exonerate the second respondent from any fault and in my view nothing more the second respondent could have done. In the case of Hadija Issa Arerary vs Tanzania Postal Bank, Civil Appeal 135 of 2017 [2020] TZCA 217 (TANZLII) the court stated; 'Since it was sufficiently proved that the mortgagor was not married and there was no any caveat whatsoever registered, 17 then the appellant cannot benefit from the provisions of section 59(2) of the LMA and section 161 of the Land Act on account of the fact that she did not have a registrable interest in the mortgaged property. Although the case above was with regard to mortgage, the principle applies to the case at hand that inquiry as to marriage status and checking if there is any registrable interest on the property subject of transaction is of the foremost importance. The second respondent in this case complied with the law. The appellant pleaded to have communicated with the purchaser before transaction and there is no evidence that it was the second respondent. The appellant testified; '... kuna siku akaniambia amepta mteja wa nuymba akanipa niongee naye. Hikuwas Novemba mwishoni. Tarehe sikumbuki niliongea naye akasema mume wangu anataka kuniuzia nyumba kwa shiling 50,000,000/= kikakataa na kusema fedha hiyo haitoshi kumaliza matatizo yetu.' Literally translated; there is a day told me had got a customer of house, I spoke with. It was at the end of November. I don't remember a date. I spoke with him told me that my husband wanted to sell to 18 him house at shillings 50,000,00/= I refused and said that money was not enough to solve our problems../ The above evidence do not refers to the second respondent. Things became more complicated after the second respondent in his pleading and evidence denied to know the appellant and to communicate with her. Absence of evidence that the second respondent had knowledge that the first respondent was married or that the first respondent deliberately misled the second respondent, the sale cannot be easily challenged as the appellant and first respondent are trying to do here. From the discussion above, I find no reason to disturb the findings of the chairman, the appellant failed to prove her case on balance of probabilities, the appeal is therefore dismissed with costs to the second respondent. It is so ordered. D.B. NDUNGURU JUDGE 30/07/2024 19