omary abubakari pesambili vs aziza iddi sekilo and 4others 2021 tzhcced 10 30 july 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPEAL N0.114 OF 2020 (Arising from the District Land and Housing Tribunal for Temeke at Temeke in Application No.246 of 2015 dated 10"' June, 2020)

OMARI ABUBAKARI PESAMBILI APPELLANT

VERSUS AZIZA IDDI SEKILO ISt RESPONDENT VICTORIA FINANCE 2'''d RESPONDENT KOTI BROTHERS CO LTD 3"° RESPONDENT HAMZA HORERA 4^" RESPONDENT FATUMA MNDELI 5^" RESPONDENT

JUDGMENT Date of Last order: 08.07.2021 Dateof Judgment: 12.07.2021 A.Z.MGEYEKWA. J This is the first appeal. At the centre of controversy between the parties to this appeal is the auction of the appellant's house. The material background facts to the dispute are not difficult to comprehend. I find it fitting to narrate them, albeit briefly, in a bid to appreciate the present appeal. They go thus: The appellant sued the respondents; the 2"^ respondent by instructing the 3^^ respondent to auction his house and the 4^^ respondentfor purchasing his property and the 1®^resporident for being his vendor to the property in dispute. The appellant instituted a case before the District Land and Housing Tribunal for Temeke applying for declaration that the sale of the suit premises to the 4^^^ respondent is unlawful, declaration that he is the lawful owner of the suit premises. The appellant also prayed for the tribunal to permanently restrain the respondents, their agents or any other person working under them from further disturbing the applicant on the disputed premises. The appellant further claimed for compensation in a tune of Tshs. 50,000,000/= as general damages. The District Land and Housing Tribunal for Temeke decided the matter in favour of the respondents. Believing the decision of the District Land and Housing Tribunal for Temeke corhplaint seeking to assail the decision of

the District Land and Housing Tribunal for Temeke. The grounds are as follows:- 1. That the Trial Tribunal erred in law and fact by dismissing the application without regarding that the Appellant ivas a legal owner of the property after lawful purchase from the 7®' Respondent 2. That the Trial Tribunal erred in law and fact by dismissing the application without considering that the property ivas purchased by the Appellant after discharge of Legal Mortgage from NMB Bank.

3. That the Trial Tribunal erred in law and fact by not considering that the property in dispute was legally mortgaged to the NMB Bank, not to the 2"^ Respondent.

4. That the Trial Tribunal erred in iaw and fact by not considering that the mortgage of property in dispute to the 2"^ respondent was illegal as the property was already under legal mortgage to NMB Bank. When the matter was called for hearing before this court on 8^^ March, 2021, the appellant had the legal service of Ms. Leah Kamanga, learned counsel and the 2"^ respondent had the legal service of Mr. Bora NIcholaus, learned counsel. In absence of the 3^^, 4*'^ and 5^^ respondents. The appellant prayed to proceed exparte against the S""^, 4^^ and 5*^ respondents who did not appear even when the matter was at the lower tribunal. By the court order, the appeal was argued by way of written submissions whereas, the appellant's Advocate filed his submission in chief on 15^^ March, 2021 and the 2""^ respondent Advocate fiied his reply on 29^^ March, 2021 and the appeilant's Advocate wave the option to file a rejoinder. it was Ms. Leah Kamanga, learned counsel for the appellant who started her onslaught by submitting on first ground. Ms. Kamanga was brief and straight to the point, she blamed the trial tribunal for dismissing the application without regarding that the appellant was a legal owner of the suit property after purchasing the same from the 1®^ respondent, Aziza Iddi Sekilo. She went on to submit that the said property was under the legal mortgage at the NMB Bank and the

licence was under the NMB custody. Stressing, she argued that the 1®* respondent approached the appellant to assist him to recover the outstanding loan from the NMB with the agreement that after the discharge of the residential licence the property will be sold to the appellant. Submitting oh the second ground that the tribunal erred iri law and fact by dismissing the application without considering that the property was purchased by the appellant after discharge of the legal mortgage from the NMB Bank. She simply argued that the appellant had an agreement with the 1 respondent to clear the whole outstanding loan thus the residential licence was discharged by the NMB Bank on 16*^ October, 2014 and the 1®* respondent handed it to the appellant by sale agreement, party of the purchase price was used to recover the outstanding loan and after the purchase, the appellant transferred the said property and there was no caveat or registered mortgage. On the third ground, Ms. Kamanga is disputing that the tribunal erred in law and fact for failure to consider that the property in dispute was legally mortgaged to the NMB Bank not to the 2^^ respondent. Ms. Kamanga contended that there was no any other institution which entered into mortgage agreement over the same property. She claimed that the mortgage was illegal under the law and no property since the 2"^ respondent who claimed to

have mortgage over the same property which was under NMB Bank. Ms. Kamanga went on to argue that the property was already urider the mortgage to other financial institution thus the 2""^ respondent cannot benefit from its own wrong. Ms. Kamanga went on to state that at all the time the property is under the mortgage thus the mortgagor of the property has no right to transfer the same or to mortgage to another institution until the first mortgage is cleared. ' She continued to claim that the 1®* respondent's right over the property in dispute lost the date when the property was put under the mortgage to NMB until he redeemed it. In her view, whatever transaction happened when the property was under NMB was an illegal transaction. The learned counsel for the appellant did not end there, she argued that once a property is put under the mortgage, the mortgagor loses her rights over the property until the loan Is paid and the property Is redeemed. The learned counsel for the appellant further argued that It was illegal for the collateral which was under the NMB for the 2"^ respondent to use It to grant the loan to the 5^^ respondent through the 1®* respondent's property. Arguing on the fourth ground, the learned counsel was brief, she complained that the trial tribunal faulted Itself by not considering that the mortgage of the.property In dispute to the 2"^ respondent was illegal

as the property was already under legal mortgage to NMB. She went on to state that the property Is dispute was under the mortgage for two years at NMB and it was discharged on 16^^ October, 2014 since It was under NMB for two years while the claimed mortgage by the 2""^ respondent started from February, 2014 and the loan granted to the 5*"^ respondent by using the property In dispute which was still under NMB. On the strength of the above submission, Ms. Kamanga beckoned upon this court to consider the grounds of appeal and allow the appeal with costs. Opposing the appeal, on the first ground, that the appellant Is the legal owner of the disputed property after he purchased It from the 1®* respondent. Mr. Bora NIcholaus, learned counsel for the respondent argued that the process of selling the disputed property to the appellant from the 1®^ respondent was done Intentionally by the 1®^ respondent to mislead or defraud the appellant since the mortgage was before the 2^^ respondent and she placed the same property which she sold to him to secure a loan advanced to the 5^*^ respondent by the 2"^^ respondent. He went on to argue that In course of advancing loan to the 5^^ respondent, the 1®^ respondent as a guarantor to the 5*^ respondent presented to the 2"^ respondent the loan agreement (Exh.CVM7) which was entered between her and William Nyanda. The learned counsel for the

respondent went on to argue that the 2"^ respondent proved that the mortgaged property belonged to her and the local government confirmed to know the 1®* respondent and that the said property subject to mortgage belongs to her. Mr. Nicolaus continued to argue that the Municipal Council was duty- bound to prove the ownership specifically the location where the property Is situated and the title deeds. He added that the 2"^ respondent will conduct a search at the Ministry of Lands and Housing Settlement to know the true owner and if there are any encumbrances to the said property. He went on to state that in the instant case they ended to the locai Government since the document of ownership presented to the 2"*^ respondent was a saie agreement. It was Mr. Nicoiaus's further submission that the ioan advanced to the 5^^ respondent was not the first ioan and the same property was piaced as a security by the 1®* respondent and through the same property the 5^^ respondent secured another loan, it was his view that the tribunal was right to deiicate that the appeliant was not a iega! owner of the said property since the purchase was tainted with fraud. On the second ground, that there was a iegal mortgage at the NMB whereby the 1®^ respondent piaced the property in dispute as security to secure a ioan. He compiained that during the hearing of the case the appeilant did not tender any

document to prove that the property in dispute was mortgaged by the 1®^ respondent. He added that there was no proof that the existence of the said sale agreement to clear that the advanced loan to the 1®* respondent by NMB, instead, the appellant produced a discharge which had a lot of discrepancies of the mortgage from the bank. Mr. Nicoiaus urged this court to disregard the second ground of appeal. Submitting on the third ground, the iearned counsel stated that the record reveal that the 2"'' respondent proved before the tribunal that the disputed property was under mortgage since 12"^ March, 2014 and DW1 testified that the loan agreement between the 5"^ respondent and the 2""^ respondent was signed on 12"^ March, 2014 and the 1®' respondent was a guarantor whereas she placed the property in dispute as security. He went on to state that the 2"^* respondent also proved that issued a loan to the 5"^ respondent before NMB Bank had entered into a mortgage with the 1®' respondent. Mr. Nicolaus lamented that there was no evidence tendered in court to prove that there was mortgage arrangements by the 1=' respondent and NMB Bank. He went on lamenting that the appellant was required to prove his allegations. To fortify his position he referred this court to section 110 of the Evidence Act, Gap.6 [R.E 2019]. On the last ground, the learned counsel for the 2"'' respondent argued that

all the assurhptions concerning the mortgage with NMB Bank are not proved since the appellant insisted that he was informed by the 1®' respondent concerning the existence of such mortgage which showing any proof on its existence. He went on to state that the records reveal that a legal loan agreement between the 1®'respondent and the 5"^ respondent was in place. He added that when 5^^ respondent default to pay the loan then the 2"^ respondent had the right to attach, auction and sell the mortgaged property. To support his position he referred this court to section 126 (d) of the Land Act, Cap. 113[R.E 2019]. On the strength of the above submission, Mr. Nicolaus urged this court to dismiss the appeal with costs and uphold the decision of the District Land and Housing Tribunal dated 10^^ June, 2020. After a careful perusal of the record of the case and the final submissions made by both parties, I should state at the outset that, in the course of determining this case I will be guided by the principle set forth in the case of Hemedi Said v Mohamedi Mbllu (1984) TLR 113, which; requires, "the person whose evidence is heavier than that of the other is the one who must win". In determining the appeal, the central issue is whether the appellant had sufficient advanced reasons to warrant this court to overrule the findings of the District Land and Housing Tribunal for Temeke. In my

determination, I will consolidate the third and fourth grounds because they are intertwined. The first and second grounds will be argued separately. On the first ground, the appellant is complaining that the 10 tribunal faulted itself by dismissing the application without regarding that the appellant was the lawful owner of the disputed house which she bought from the 1®^ respondent. The record reveals that the appellant testified to the effect that he was the lawful owner of the disputed property and he conducts a search which proved that the property belonged to the 1®^ respondent. To substantiate his claims the appellant tendered a copy of the search from Temeke Municipal Council (Exh. I) and a Sale Agreement(Exh. II) dated 13^^ November, 2014 and Residential Licence (Exh. III). On the other side the DW2, a branch manager of NMB Bank testified that they did not force Aziza Iddi Sekilo( he 1®* respondent) to mortgage the house and DW2 stated that Fatma Mndeli (the 5^^ respondent) was their client who took loans from their bank and the 1®* respondent house was secured as a mortgage. Reading the record, there is no dispute that the appellant once entered: into a sale of agreement with the 1®^ respondent on 13^^ November, 2014 and he purchased the same from the 1®* respondent after discharging the 1®* respondent loan from NMB (Annexure LK 7) that means after purchasing the said

house the appellant claimed ownership over the suit house. However, the records reveal that on 10^*^ February, 2014, the 1®* respondent mortgaged her house to the 5*^ respondent to secure a loan 11 from the 2"^ respondent. To substantiate her claims the appellant tendered a sale agreement (Exh.ill). The 1®^ respondent by that time was in his knowledge that the same house had been mortgaged to secure a loan by the 5*^ respondent from the 2"^ respondent. That means in 2014 when the appellant bought the disputed house the same was already mortgaged. The 1®* respondent had no legal title to the disputed property he was not in position to pass good title over the same to another. This is ascertained in the case of Farah Mohamad v Fatuma Abdalla [1992] TLR 205 where it was held that: "He who has no legal title to the land cannot pass good title over the same to another^' In the present case there is no good title from the 1®^ respondent to the appellant. Nevertheless, the appellant had no any cogent documentary evidence to prove his allegations. Therefore the issue of ownership cannot arise since the disputed house was already been mortgaged. As to the second ground, the appellant complains that the tribunal faulted itself for not considering that the property was purchased by the appellant after discharge of legal mortgage from the NMB. I have gone through the court record, it is

revealed that the appellant purchased the 12 property on 13^*^ November, 2014. As pointed earlier to prove his case he tendered a sale agreement(Exh. ill). But later the appellant realized that the purchased property is in dispute when the 3^^ respondent notified him that the 5^^ respondent had mortgaged the house and defaulted to pay the loan therefore the disputed property was mortgaged with the 2"^ respondent. The 5^^ respondent documents were issued in 2013 before the appellant bought the said disputed property. Therefore, the 5^^ respondent was the first one to place the disputed property as security since 2013. The 5*^ respondent proved her case after tendering exhibit CMV1 (Mortgaged)dated 01®^ July, 2013 and the loan was issued on 12^^ March, 2014. Claiming that there was no any registered mortgage is untrue because the mortgage was registered in 2013 at NMB. Therefore, the 2"*^ respondent had the right to proceed to auction the mortgaged property after the 5*^ respondent failed to service the loan. Therefore, I do differ with the appellant's Advocate that the tribunal did not considering that the property was purchased by the appellant after discharge of legal mortgage from the NMB. 1 am in accord with learned counsel for the 2"^ respondent that the appellant claims are mere words the same was not supported by any 13 documentary evidence to prove that the property in

dispute was mortgaged by the appellant. It is worth noting that mere words of the appellant in a situation of conflict, cannot be the base for giving justice. The appellant might have purchased the property but the same was required to be proved. Therefore this ground Is demerit. On the third and fourth grounds, the appellant complaints that the tribunal erred in law and fact by not considering that the property in dispute was legally mortgaged to the NMB Bank and not the 2"^ respondent. He further claimed that the mortgaged property to the 2"^ respondent was illegal as the same was under legal mortgage to NMB Bank. It was upon the appellant to prove his case that the disputed property was legally mortgaged to the NMB Bank not anywhere else. To the contrary the appellant was not able to prove his case that there was a mortgage arrangement between the 1®^ respondent and the NMB. On the other side, DW1 proved that the loan agreement between the 5^^ respondent and the respondent was signed on 12^^ March, 2014 and the same was under mortgage since 12*^ March, 2014 while the appellant entered into a sale agreement with the 1®* respondent later in November, 2014. Therefore, I do differ with Ms. Leah that the mortgaged property to the 2"^ respondent was illegal since there is no evidence on 14 record to prove his claims. The 2"^ respondent testified to the effect that there is a legal

loan agreement between the 2"^ respondent and the 5^^ respondent and the 2"^ respondent followed all the procedures in » i registering the said mortgage and the respondent placed the same as security. The legal terms between the two parties were clear that in case the 5^^ respondent defaults to repay the loan then the 2"^^ respondent will have the right to attach, auction, or sell the mortgaged property in accordance with section 126( d) of the Land Act, Cap. 113[R.E 2019]. Therefore as long as the mortgage was already been created before the appellant's bought the disputed property the bank was entitled to proceed with the sell of the 5^^ respondent's property. All be said, it is my considered view that the appellant failed to prove if the mortgaged property to the 2"*^ respondent was illegal, the appellant was duty-bound to prove that allegation. That is in accordance with the elementary principle of he who alleges must prove as embodied in the provisions of section 110(1) of the Evidence Act, Cap. 6 [R.E. 2019] and as stated In the case of Abdul Karim Haji v Raymond Nchimbi Alois 15 and Another, Civil Appeal No. 99 of 2004 (unreported) the Court of Appeal of Tanzania held that:- "...itisan elementaryprinciple thathe who allegesis the one responsible to prove his allegations. Applying the above authority of the iaw to the instant case, it is clear that the appellant has not

proved his case. In consequence, I find that there is no merit in these grounds of grievance. That said and done, I hold that in instant appeal there are no extraordinary circumstances that require me to interfere the findings of the District Land and Housing Tribunal for Temeke. Therefore, I proceed to dismiss the appeal without costs. Order accordingly. Dated at Dar es Salaam this date 12^^ July, 2021. it A.Z.MGEYEKWA

JUDGE 12.07.2021 16 Judgment delivered on le'*" July, 2021in the presence of Ms. Leah Kamangwa, learned counsel for the appellant, and Mr. Bora Nicholaus, learned counsel for the 2""* respondent. A.Z.MGEYEKWA P; .1 rv- \ ■/'!%,. /( i JUDGE 12.07.2021 Right of Appeal fully explained 17