LAND APPEAL NO 17263 SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 17263 OF 2024 (Originating from the Judgment and Decree of the District Land and Housing Tribunal for Hala District, in Land Application No.207 of2022 delivered on 28th June, 2024) RIDHIWANI JOHN MWANGALIMA................................ APPELLANT VERSUS NMB BANK PLC......................................................RESPONDENT JUDGMENT 4th September 2024 & 24th October 2024 L. HEMED, J. The Appellant herein RIDHIWANI JOHN MWANGALIMA, on 25th November, 2021, got a loan of TZS 30,000,000/= from the Respondent herein NMB BANK PLC which was to be paid in equal instalments at a period of 18 months which was to end on 21st February, 2022. The security for the said loan was a landed property located at Kitunda Ward, Mzinga Street-Ilala under the residential licence No. IL7X 029810. The Appellant defaulted payment of the said loan hence the Respondent issued him with a sixty (60) days' notice for payment of the un­ paid balance of TZS 21,089,662.57/=. Following such notice, the Appellant i rushed to the District Land and Housing Tribunal for Hala to challenge the intended sale of the mortgaged property for purposes of recovering the outstanding amount. The Respondent herein who was also the Respondent during the trial of the matter disputed the claims through her written statement of defence stating that, the procedures were observed in recovering the outstanding amount. The Respondent prayed for dismissal of the said suit. The issues for trial before the trial Tribunal were: - 1. Whether the Respondent had intended to sale the suit house without observing the requisite procedure; and 2. To what reliefs are the parties entitled. In his evidence before the trial tribunal, the Appellant confessed to be indebted to the Respondent the amount of TZS 21,000,000/=. According to his evidence his business was not running well that he became broke to service the loan. He prayed the trial Tribunal to give him time to repay the loan in instalment. 2 Evidence from the Respondent was that the Appellant was in default of the loan and that sixty (60) days' notice was issued to the Appellant for him to settle the loan. The testimony of the Respondent's witness was that the process to dispose the suit landed property by sale was not yet commenced. After having scrutinized evidence on record the trial tribunal found no merit in the claims. It proceeded to dismiss the claims without costs. Aggrieved by such decision, the Appellant rushed to this court with an appeal containing the following grounds:- ’7J The Learned Tribunal Chairman erred in Law and in fact for not recording the statement by the Appellant who had said that by the time when he took the matter to the Land Tribunal he was financially broke and that by the time when he was giving his evidence he was now in the better position ofpaying the loan to the Respondent by installments. 2) WHEREFORE, The Appellant prays to this honourable court that he be allowed to pay Tshs. 300,000/= per month in fulfillment of the Loan secured from the Respondent." 3 The appeal was heard by way of written submissions. The Appellant acted in person while the Respondent enjoyed the legal service of Mr. Joseph J. Manzi, learned advocate. Submissions were filed promptly as per the orders of the court. Submitting in support of the appeal, the Appellant asserted that he filed Land Application No. 207 of 2021, praying among other things that the Respondent (NMB) be restrained not to sell the mortgaged property and that he should be given more time to repay the loan. He added that he could not manage to service the loan due to covid 19 and on honest grounds he wrote a letter to the Respondent for restructuring of the loan from the monthly instalment of TZS. 1,950,000/= to TZS. 500,000/=. According to the Appellant, his request met with reply in hard terms that he opted to institute a suit. It was the lamentation of the Appellant that he has now started to grow up in his business and that he is in the position to pay TZS. 300,000/= per month. He ended praying the court to allow the appeal in the manner that the Appellant be given more time to repay the loan at the monthly instalment of TZS.300,000/=. In response thereto, the learned counsel for the Respondent contended that the Appellant has not submitted anything in respect of the 4 1st ground of appeal. In his view, the averment made by the Appellant in his submission are extraneous matters which are not part of the grounds of appeal. He urged the court to find the 1st ground of appeal to be unprosecuted. In regard to the 2nd ground of appeal the learned counsel was of the view that it contravenes the provision of Order XXXIX Rule 1(2) of the Civil Procedure Code, [Cap.33 R.E 2019] which requires the grounds of appeal to contain no arguments or narrative. He submitted that the 2nd ground of appeal is a prayer as opposed to a ground of appeal. The learned counsel for the Appellant submitted in regard to the prayer for extension of time to pay the loan, that the court cannot extend time to the Appellant to repay the loan as this is a contractual obligation which cannot be interfered by the court. Reliance was put in the case of Twaha Kayungilo Kayiku & Another vs. National Microfinance Bank & Another, Land Appeal No.43 of 2021. In ascertaining the merit of the matter at hand, let me start with the 1st ground. The Appellant blames the trial Tribunal for having not recorded the statement that at the time when he took the matter to the Tribunal, he 5 was financially broke and that by the time when he was giving his evidence, he was in the better position of paying the loan to the Respondent by installments. From this ground and the submission made thereof, it is very clear that, the Appellant just instituted the suit at the trial Tribunal just to seek extension of time for him to repay the loan. He wanted the trial Tribunal to direct him to settle the said loan at monthly instalment of TZS 300,000/=. I have also gone through the records of the trial Tribunal and found that the issue which ought to have been proved before the trial Tribunal was on whether the Respondent herein had an intention of selling the mortgaged landed property. Appellant adduced no evidence that proved that the Respondent herein was intended to dispose the mortgaged property by sale. What was revealed during trial was that the Appellant was served with 60 days' notice of default. In the said notice, the Appellant was required to pay the outstanding amount of loan within the period of 60 days. There was no proof that the Respondent had appointed a receiver in terms of section 128(2) of the Land Act, [Cap. 113 RE 2019] to dispose the suit piece of land. Having failed to prove the allegation of intended sale of the suit landed property, the chairman was justified to dismiss the claims. I am holding so because the maxim incumbit probatio qui dicit non qui negat 6 enshrined under section 110(1) of the Evidence Act [Cap.6 RE 2019] imposes the duty to prove upon the party who alleges. In the instant case, the Appellant did not discharge such duty. I have examined the 2nd ground of appeal and found that it is a prayer and not a ground of appeal as correctly submitted by the learned counsel for the Respondent. The Appellant appears to ask this court to vary the loan agreement by giving him extension of time to pay the outstanding amount at the monthly instalment of TZS 300,000/=. Is this court clothed with jurisdiction to alter the terms of the loan agreement? My firm view is that, this court and any other court cannot have jurisdiction to vary or amend the terms of any agreement which was entered out of free will by the parties as such power to vary any term in the agreement is bestowed in the parties themselves. This position was also taken by the Court of Appeal of Tanzania in Uniliver Tanzania Ltd vs Benedict Mkasa Trading as BEMA Enterprises, Civil Appeal No. 41 of 2009, where it observed thus:- "Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which the parties have agreed between themselves. ..It is not the role of the courts to re-draft 7 clauses in agreements but to enforce those clauses where parties are in dispute." In the final analysis I finds no merit in the appeal and proceed to dismiss in its entirety with costs. Order accordingly. 8