LAND APPEAL NO

THE JUDICIARY OF TANZANIA w .... 1111 -AS - , , ESRAAsthiSi Ajdo p j k u 0 MT BAJ.'» ES SALAAM LAND APPEAL NO. 000009522 OF 2024 CASE REFERENCE NO. 202404301000009522 (Arising from Land Application No. 87 of 2023 of Temeke District Land and Housmg TmbM^sa!! at: Tameke) REHEMA DHAHABU HiZA........................... APPELLANT VERSUS BOEMEMMS - u . ........ RESPQMDENJT MARBILLY INVESTORS CO. LTD...............................................2nd RESPONDENT F 1 ' J1 A:J□ R=................ ............ ... ..... ...... ......... ,........... .... i ‘ RES - : m. PRO SHARE . । ' L E'A u vi ......................... . ................. ...4th RESPONDENT JOSEPH MKAI KIJANGWA_____ ..................................................... 5™ RESPONDENT JUDGMENT 26thsept. & 9thOctober 2024 GWAE, J The appellant, Rehema Dhahabu Hiza and 5th respondent, Joseph Mkai Kijangwa are wife and husband respectively since 1986. During the subsistence of the marriage between the appellant and 5th respondent, a landed property described as TMK/TNK/MBT/9/35 with parcel Number TMKO42998 located at Tandika Mabatini in Temeke Municipality was acquired. However, the suit property was sold by the 2nd and 4th respondent i to the 3rd respondent herein on 27th day of December 2019. The auction was prefferred following the 1st respondent's default to service loan facility (Tshs. 25, 000, 000/= which he obtained from the 4th respondent and which was guaranteed by the 5th respondent. Hence, leading to an institution of the parties' dispute before Temeke District Land and Housing Tribunal (DLHT") claiming for the following;- 1. Declaratory order that mortgage created by the 5th respondent in favour of the 1st respondent and 4th respondent is void for want for want of spouse consent 2. Declaratory order of the sale made by the 2nd and 4th respondent in favour of the 3rd respondent is void for want of legality 3. Nullification of the sale and mortgage made in favour of the 3rd respondent and 4th respondent 4. Payment of general damages at the tune of Tshs. 30,000, 000/= 5. Costs and 6. Any other reliefs the Court may deem fit and just to grant The 1st and 5th through their joint written statement of defence to the appellant's amended application did not refute the claims. However, the 2nd, 3rd and 4th respondents disputed the appellant's claims. Upon hearing the 2 parties' dispute, the DLHT's chairperson held that, the suit property mortgaged by the 5th respondent to guarantee the loan and the same was lawfully purchased by the 3rd respondent (bonafide purchaser) and that, the appellant was introduced by her husband as Rehema Joseph Kijangwa. The learned chairperson further held that the appellant consented the suit property to secure the loan facility. The appellant's suit was consequently dismissed with costs on 2nd April 2024. Hence, this present appeal consisting of six grounds of appeal to wit;- 1. The trial tribunal erred in law and fact by holding that, the disputed house guaranteed loan facility granted in favour of the respondent 2. The trial tribunal erred in law and fact by holding that, the appellant herein consented the disputed property to guarantee loan facility granted in favour of the 1st respondent 3. The trial tribunal erred in law and fact by affirming the 4th respondent's position that, the mortgage deed executed in October 2017 intended to guarantee loan facility granted in March 2018 3 4. The trial tribunal erred in law and fact by blessing or approving mortgage which was not registered by the relevant authorities 5. The trial tribunal erred in law and fact by allowing the assessors to opine while they have not heard all the evidence 6. The trial tribunal erred in law and fact by failure to assign reason for re-assignment. On 5th September 2024, when this appeal was placed before me for hearing, Mr. Godfrey Francis represented the appellant whereas the 1st and 2nd and 5th respondent appeared in person, unrepresented and Ms. Tatu Ally represented 2nd, 3rd and 4th respondents. Nevertheless, with consensus, the appeal was argued by way of written submission. In his presentation of the submission in chief, Mr. Francis expressly stated to abandon ground number one (1) and consolidated ground number 3 and 4. I shall determine each ground of appeal as raised and argued by the parties. As to the 2nd ground of appeal, the counsel for the appellant stated, the appellant's consent was to be finalised before disbursement of the loan facility. Hence, according to exhibit DI, executed in 2018 when the mortgage 4 Deed was executed in 2017. He cited section 114 of the Land Act, Cap 13, R. E, 2019 and case of TCB Pic vs. Mrs. Sakila Parves and another (Civil Appeal No. 280 of 2020) 2023 TZCA 17794. On the other hand, the counsel for the 2nd, 3rd and 4th respondent herein argued that there was spousal consent by the appellant to the mortgaged of the suit house as established by exhibits DI, D2, D3 and Pl tendered and admitted during trial before the tribunal. He added that the appellant is estopped from denying her own documents taking into account that she signed and that she did not report any allegation of forgery to police if at all, her signatures were forged. To buttress her submission, she referred to the case of Japan International Corporation Agency vs. Khaki Complex Limited (2006) TLR 343 as well as that TCB Pic cited by the appellant's counsel. Now to the court's determination of the 2nd ground of appeal, I have diligently examined the evidence on record including but not limited, a mortgage of a matrimonial property made under section 114 of the Land dated 31st October 2018 (DEI), introduction letter of the appellant dated 9th March 2018 (DE2). I have further examined the application form for the loan and 4th respondent's bank statement dated 9th March 2018 (DE4), indicative 5 that Tshs. 25,000,000/= was deposited into account No. 23110003949 as well as Mortgage Deed (DE5). I am in agreement with the appellant's stance that, her consent of the wife of the mortgagor of the house in question ought to be sought and obtained in compliance with the law when such property is the matrimonial property. This legal requirement is governed by section 114 of the Land Act (supra) and section 59 (1) of the Law of Marriage Act, Cap 89, R. E, 2019. Provisions of section 114 of the Act read and I quote;- "114 (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 spouse or spouses of the mortgagor living in that matrimonial home; or (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 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 6 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 deciares that there were spouse or any other third party holding interest in the mortgaged land." (Emphasis added) In our instant dispute, according to the evidence on record, it is satisfactorily established that, the mortgaged property was a matrimonial property. Hence, the requirement of spouse consent by the 5th respondent's wife for the loan facility obtained by the 1st respondent securing the loan. However, I have looked at the impugned Mortgage Deed entered between the 4th and 5th respondent and noted that, the same was executed on 31st day of October 2018 and not in the year 2017 as purportedly argued by the appellant's counsel. As rightly argued by the appellant's advocate that, the mortgagee now 4th respondent ought to have discharged her duty before disbursing the loan facility in favour of the 1st respondent including but not limited the appellant's consent. This position was clearly stated by the Court of Appeal 7 in PLC vs Mrs. Shakila Parves & Another (Civil Appeal No. 280 of 2020) [2023] TZCA 17794 (7 November 2023), with approval of its decision in National Bank of Commerce Limited vs. Nurbano Abdallah Mulla (Civil Appeal 283 of 2017) [2020] TZCA 238 (8 April 2020) (unreported) stated; - "In that case, the Court, apart from stating that the second overdraft facility required a new consent, also stated that the obligation of the mortgagee before finalizing the loan issuance procedure, was to take reasonable steps to ascertain whether the application for the mortgage has the spousal consent as required by the law. It was also stated that, the obligation is not cast upon the mortgagee only but also upon the mortgagor who has a reciprocal duty to disclose that he has the consent of his spouse or spouses as the case may be. "(Emphasis supplied) Guided by the above judicial precedent, binding upon the Court, I find the mortgage deed executed on 31st October 2018 was an afterthought on the part of the mortgagee since the loan was issued in favour of the 1st respondent on 9th March 2018. Nevertheless, in my considered view, there is the appellant's consent that was obtained on 9th March 2018 through exhibit D2 despite the fact that, the Mortgage Deed of the matrimonial property was executed on 31st 8 the part of the mortgagee since the loan was issued in favour of the 1st respondent on 9th March 2018. Nevertheless, in my considered view, there is the appellant's consent that was obtained on 9th March 2018 through exhibit D2 despite the fact that, the Mortgage Deed of the matrimonial property was executed on 31st October 2018. I hold that view for an obvious reason that, it is evidently clear that, after the mortgagor, 5th respondent had disclosed his marital status to the mortgagee, 4th respondent as required under sub-rule (2) of section 114 of the Land Act (supra), the 4th respondent similarly discharged his contractual obligation. The 5th respondent's disclosure of his marital status followed by the letter dated 9th March 2018 addressed to the 4th respondent's manager (DE2) from the Street Executive Officer introducing the appellant as well as expressing her consent to have the loan given to the 1st respondent secured by the disputed house/matrimonial property. The said letter is indicative that the 4th respondent had discharged her obligation as the same is written, lucidly signed and witnessed as required under subsection (3) of section 114 of the Land Act (supra) constituting legal consent from the appellant for the mortgage of the matrimonial property, the letter reads; 9 "Ofisi yangu inamleta mbele ya Ofisi yako Hi asaidiwe shida yake ya udhamini mkopo kwa kuweka dhamana ya had ya makazi, iesseni ya makazi, pia nathibidsha kuwa nyumba hiyo haina mgogoro wowote uie uwe was familia au serfkali." E. J.TEMBA AFISA MTENDAJI Looking at the wordings of the said letter, the appellant is found to have consented to the said mortgage of the suit property. Hence, the submission by the 1st and 5th respondent that, there were mortgage procedures that were skipped or not followed, in my view, is nothing but a total misdirection. Coming to the 3fd and 4h ground of appeal, on the execution of Deed of Mortgage on 31st October 2018. As earlier stated, the learned counsel for the appellant wrongly argued that the same was executed in 2017 instead of 2018. More so, the weigh or otherwise of the Mortgage Dee has been demonstrated while determining the 2nd ground of appeal. Thus, execution of the Deed of Mortgage on 31st October 2018 while the loan was disbursed on 9th March 2018 tantamount to absence of the same. However, the letter dated 9th March 2018 from the local government (DE2) has substituted the requirement of the requisite spousal consent. It is perhaps worthy noting io "A/so worth noting is the fact that, non-payment of loans does not only amount to breach of contract between lenders and borrowers but it is against public policy that require loans to be repaid timely". In instant dispute, it was the duty of the 1st respondent to regularly service the loan facility guaranteed by the 5th respondent and upon failure to repay, the mortgage/lender now 4th respondent is entitled to step into mortgaged property to recovery her money. Having deliberated as herein, the 2nd ground is partly dismissed and party allowed. Now to the 5th ground of appeal, it is the submission of Mr. Francis that, it was wrong on the part of the trial tribunal's chairperson, to allow the assessors to opine while they did not participate during hearing as required under section 23 (1) and (2) of the Land Disputes Courts Act, Cap 216, Revised Edition, 2019. On the other hand, it is the submission by the counsel for the 2nd, 3rd and 4th respondent that, both assessors were present during hearing of the parties' dispute equally, on 29th August 2023. However, on 29th August 2023 and 12th October 2023, the names of assessors were not indicated in Coram but their questions for clarifications are indicated denoting that they were present on those days. ii Upon my perusal of the records and judgment, I have noted that, it is plainly clear that at page 9 of the impugned judgment the chairperson of the trial tribunal, though not in affirmative, considered the opinion of the tribunal assessors namely; Ignasia Makota and Joseph Mwaisengela. Fortunately, the hearing commenced on 10th November 2022 in the presence of Hon. P. Chinyela and the said tribunal assessors. However, on 20th November 2022 there was no hearing that was conducted as opposed to the assertion by Mr. Francis. Similarly, I have further looked the hand written proceedings and it is revealed that, on 20th March 2023, the same assessors were present and hearing proceeded. In the last ground ofAppeal, it is trite law that, once a magistrate or judge or any other adjudicator is assigned with a case, such case must continue before such particular Judge or Magistrate or any other person clothed with power to adjudicate to its final conclusion, unless there are good reasons for doing otherwise. It follows therefore, failure of which may render subsequent proceedings and its resultant decision a nullity. (See Circular No. 3 14 of 1993 (the Circular), Fahari Bottlers Limited and Another v. Registrar of Companies and Another [2000] T.L.R. 102 and Mirage 12 Lite Limited v. Best Tigra Industries Limited (Civil Appeal No. 78 of 2016) [2019] TZCA 332 (20 September 2019. According to the records, the matter was assigned to Hon. Chinyele who commenced hearing on 10th November 2022 until 5th December 2022 when the case file was re-assigned Hon. Kiiza and reason for re-assignment was given in the absence of the parties. Nonetheless, on 16th February 2023 the matter was further re-assigned to Hon. K.A Sosthenes who concluded the hearing and determined the matter on merit and reason for re­ assignment was given in the presence of the parties' advocates (Ms. Teresia Kuhanga for the 1st and 5th respondent and advocate Mwabugu for the appellant). Therefore, the 5th ground of appeal also lacks merit and it is dismissed accordingly. That said done and done, the appellant's appeal is dismissed. In the circumstances of this case, I hereby refrain from making orders as to costs of the appeal and those before trial tribunal. Ordered accordingly DATED and DELIVERED at dar ES salaam, this 9th October 2024