land appeal number 27067

I

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 27067 OF 2023 (Originating from Application No. 81 of 2020, Kinondoni District Land and Housing Tribunal) SOPHIA MOHAMED JUMA..................................................................... APPELLANT

VERSUS NMB BANK PLC.................................................................................................... 1stRESPO NSOMBO & COMPANY LIMITED.......................................................................... 2ndRESPO RAMADHANI JUMA MTUNGUJA.......................................................................... 3rdRESPO

JUDGMENT 21/03/2024 to^.904/2024 E.B. LU VAN DA, J The Appellant named above sued the Respondents challenging the mortgage between the First and Third Respondent created over a house situated at Kilimahewa Juu, Wazo Ward, Kinondoni District within Dar es Salaam region, as a collateral for a loan of Tsh 30,000,000, for reason that it's a matrimonial home for which the Appellant did not consent. The Tribunal dismissed the Appellant's claim for want of merit. In the memorandum of appeal, the Appellant raised two grounds of appeal: One, the trial Court (sic, Tribunal) erred in fact and law when he failed to realize that the house in dispute is a matrimonial home; Two, the trial Court (sic, i Tribunal) erred in fact and law by failing to analyze and evaluate evidence adduced by the Appellant during hearing of the case. The Appellant submitted that the Appellant testified to have contracted marriage with the Third Respondent in 2009 as per marriage certificate exhibit Pl, thereafter acquired and moved into the disputed property in 2017 together with the Third Respondent, where they were currently living with their family. She submitted that the reason for the Appellant failure to tender the original sale agreement is because she asserted to have not been involved in the purchase of the disputed house and faulted the Tribunal for reaching a verdict that the Appellant did not have any

claims on the disputed house. She cited section 2 of the Law of Marriage Act, Cap 29 R.E. 2019 arguing is pari materia with section 112(2) of the Land Act, Cap 113 R.E. 2019 that it defines matrimonial home to mean the building or part of a building in which the husband and wife ordinarily reside together. She submitted that the suit property should be termed as matrimonial home for reason that the spouse ordinarily resides and was the family residence. She cited the case of National Bank of Commerce Limited vs Nurbano Abdallah Mulla, Civil Appeal No. 283 of 2017, CAT; Mary George Mihambo vs Shadrack William Luhwa and Three Others, Land Case No. 398 of 2017. She submitted that it is a rule that properties acquired during subsistence of marriage is a matrimonial 2 property irrespective of whose names appear on title documents. She submitted that during trial, the Appellant testified that the property was obtained in 2017 during substance of their marriage which was contracted in 2009. She faulted the Tribunal for reaching a decision by merely looking at a name appearing on the sale agreement, arguing a sale agreement with the name of one spouse cannot deprive the other the rights towards the property, citing Aisle Ally Said vs Irene Redentha Emmanuel Soka and Another, Civil Appeal No. 80 of 2020 CAT. For ground number two, the Appellant submitted that during hearing among other

exhibits the Appellant tendered exhibit Pl which was a marriage certificate, and the First Respondent tendered an affidavit exhibit D3 which stated that the Third Respondent was single, arguing to her surprise exhibit Pl was never considered as part of the Appellant's evidence, neither were reasons given for why it was left out, arguing the Tribunal relied solely on exhibit D3 to reach its decision. She faulted the Tribunal for holding that exhibit D3 bind the Appellant and prove co-existence of the valid marriage between the two. She submitted that the Tribunal did not consider the possibility of an existing marriage, citing page 13 of the impugned judgment. She attacked exhibit D3 being defective for reason that it comprises untruth facts. She cited the case of Ignazio Messina vs Willow Investment and Another, Civil Appeal No. 105 3 of 1998, regarding effects of untruth affidavit. Also cited section 114(4) of Cap 113 (supra), regarding false information in the affidavit and consequences being amounting to committing an offence. She submitted that the Appellant'in proving that the mortgage was created without her consent on a matrimonial property, she established and proved her relation with the Third Respondent and that the suit property was a matrimonial home, living with her children there since 2017 to date. She submitted that the suit property being a matrimonial

property, the Appellant consent to the mortgage was mandatory, citing section 59 Cap 29 (supra), section 114 Cap 113 (supra). She submitted that the mortgage deed between the First and Third Respondent is void for want of spouse consent. She submitted that the mortgagee was required to take extra step to inquire on the marital status of the mortgagor before executing the mortgage deed. She faulted the Tribunal for relying in Hadija Issa Arerary vs TPB, Civil Appeal No. 135 of 2017, arguing lodging a caveat is no longer a requirement of the law. In reply, Mr. David Shadrack Pongolela learned Counsel for First Respondent submitted that the Tribunal rightly held that the Third Respondent is the sole owner of the suit property, for reason that the evidence presented vide exhibit D2 and D3 proved that the Third Respondent was a sole owner at the time of applying the loan. He submitted that the Appellant failed to establish her 4 r , : -------------------- ownership interest to rebut the presumption under section 60(a) Cap 29 (supra). He submitted that a fact that the Appellant is the wife of the Third (B Respondent as alleged, does not automatically cloth the Appellant with ownership interest over the suit property. He submitted that subsistence of marriage is not the only factor for the property to be a matrimonial property, arguing that the case of Mary George Mihambo (supra) is

per in curium. The learned Counsel submitted that the Appellant failed to prove that the suit property is a matrimonial home apart from saying she reside in the premises with her three children. He submitted that the Appellant failed to mention the names of the alleged children or even call a neighbour or local leader to prove that she actually resides in the suit property. He submitted that the Appellant ought to have protected her interest by caveat, caution or otherwise under the Registration of Documents Act, Cap 117, citing Mwakalindile vs NBC Holding Corporation [200] (sic) 1 EA 143. He distinguished Mary Agness Mpelumbe (supra) and Asile Ally Said (supra), arguing therein (former) the husband and wife agreed the property to be registered in the First Defendant's name; and in latter the Appellant knew that the Second Respondent was married to the First Respondent; while herein the Appellant in unknown to the First Respondent. For ground number two, the learned Counsel submitted that the submission that the Tribunal did not consider exhibit Pl, is misleading, arguing the Tribunal 5 I . considered it and found it to be irrelevant, for reason that the Third Respondent swore affidavit stating that he is unmarried and the property is his. He submitted ® that it could be absurd for the Tribunal to rule on the issue of marriage while it was not part of the dispute and the Third

Respondent had already denounced the marriage. He submitted that the bid of the Appellant to challenge the validity of affidavit at this stage through statements from the bar is barren and ineffectual, for reason that the Third Respondent who swore the affidavit never denounced it. He submitted that the Tribunal rightly relied in the case of Hadija Issa Arerary (supra) for reason that the mortgagor provided an affidavit proving that he was single. On rejoinder, the Appellant submitted that the Appellant showed interest on the suit property by showing that she is a legal wife of the Third Respondent since 2009 where she tendered exhibit Pl. She submitted that the Appellant testified further that the house was acquired during the subsistence of their marriage and they later moved into and it is where they reside to date. She submitted that the Appellant asserted that she did not sign or physically participated in the actual sale and that is why the agreement was in the name of the Third Respondent, arguing that could not defeat her claims for reason that the house was bought through joint efforts during existence of their marriage and its where the whole family resides together. She submitted that section 60(a) Cap 6 29 is not absolute and it can be rebutted if there is evidence to prove otherwise, arguing herein the Appellant tendered exhibit Pl that she was a wife to the O

Third Respondent and the property was a matrimonial home. For ground number two, the Appellant submitted that nowhere the Tribunal used exhibit Pl on its judgment, arguing the Tribunal only referred to exhibit D2. She submitted that if the Tribunal had considered the evidence of the Appellant, it would be inevitable to see that the Third Respondent was married at the time the mortgage was created on the suit property that was obtained during his marriage and where his family reside as he intended it to be a matrimonial home, arguing the Third Respondent provided false information to the First Respondent to enable him secure the loan. I will start with ground number one. It is true that at the Tribunal the Appellant testified to have contracted marriage with the Third Respondent in 2009 and tendered a marriage certificate exhibit Pl. The Appellant also asserted that they acquired (built) and moved into the suit property in 2017 where they were currently living with their family. According to the certificate of marriage exhibit Pl suggest the Appellant and the Third Respondent contracted marriage according to Islamic rite on 16/06/2009. However, exhibit Pl suggest was signed on 29/01/2020 by Kadhi II who is Sheikh Omar Samata holding Qadhi Licence No. 9043, where the Third 7 Respondent along the Appellant also reflect they appended signature therein. Basically, exhibit Pl pose

two significant doubts: for one thing it contains three different dates to wit a date of marriage on 16/06/2009; date and source of information of particulars on 25/05/2009 and date when the Kadhi signed on 29/01/2020. For another thing, the Appellant who testified as PW1 at the Tribunal asserted under oath that sometimes in June 2019 the First Respondent disappeared and went at large todate, where the Appellant reported to his sibling who advised her to report the matter to the Police and reported there on 27/06/2019 where she alleged to have issued with RB for tracing her husband. There is no explanation as to how the Third Respondent resurfaced from the hide on 29/01/2020 to sign exhibit Pl before the Kadhi. Another dot to connect with the above entanglement and serious doubt, is a fact that the disputed mortgage deed, affidavit denouncing marriage and proclaiming bachelor/single by the Third Respondent all documents forming a bundle in exhibit D2, and a loan agreement (exhibit DI) were executed on 29/05/2019 and 20/06/2019, respectively. When PW1 was cross examined by Zilahulula Advocate for the First Respondent, she was recorded to had said, 'By May 20191 travelled to Singida as my mother was sick. I came back dates of early June 2019' One could ask how such a coincident for the Third Respondent to swear an affidavit suggesting he is a bachelor at the age of thirty-four

anos on 8 29/05/2019 as per affidavit part of exhibit D2, at the same time the Appellant planning to travel to her place of domicile at Singida to nurse her ill mother and come back around the dates when the whole process of obtaining loan was complete. To my opinion, these doubt and facts carry forward and support the case and explanation by Joseph Frederick (DW1) who asserted that after the Third Respondent had sworn an affidavit, they took further step to visit at the suit property where they took picture of the Third Respondent stood in front of the suit property as per exhibit D3, met the biological father of the Third Respondent, neighbours who all confirmed that the Third Respondent is a sole proprietor of the suit house, not married. According to DW1 they inspected house rooms only to see no signs of children. To my view, the First Respondent did all she ought to do to satisfy the requirement of know your customer (KYC) prior executing mortgage and believing an affidavit affirmed by the Third Respondent denouncing marriage and proclaiming as a bachelor and sole proprietor of the suit property. To my opinion the Appellant failed miserably to prove that the suit property is a matrimonial home, I explain. The Appellant merely tendered birth certificates exhibit P2 collectively for her children namely: Juma Ramadhani Juma Mtunguja born on 28/07/2011; Hudhaifa Ramadhani Juma

Mtunguja born on 17/09/2013; 9 J Yunusi Ramadhani Juma born on 19/05/2016. But the Appellant could not summon a single neighbour, ten cell leader or hamlet chairperson to support her argument that she has been living with her family at the suit property as from 2017 todate, as alleged. My undertaking for call of corroboration, is grounded on the fact that PW1 at a trial asserted that, 'In our marriage we succeeded to get 3 houses. First house was buiit 2010. 2nd house was built 2011. 3id house was built 2017. It is a 3td house of2017 is in dispute in this matter... Other two houses have been sold by my husband. I now live at Saiasaia Kiiimahewa into a house we buiit in 2017' Therefore, in the circumstances where the Appellant asserted to have other houses, it was imperative for her to call other material witness to support her tale tell. This is particular so, in the circumstances where PW1 was made aware vide a written statement of defence of the First Respondent who attached an affidavit (annexure NMB-1) depicting the Third Respondent had affirmed facts denouncing their marriage, children and declaring himself as sole proprietor of the suit property. For another thing, the Appellant did not summon even witness to support a fact that the two other houses were disposed by the Appellant. The Appellant submitted that failure to tender the original sale agreement is because she

asserted to have not been involved in the purchase of the disputed io house. To my view, the Tribunal was justified to rule that the Appellant is bound by her pleading where she pleaded that she is still in possession of the original sale agreement. Regarding ground number two, the Appellant complained exhibit Pl was never considered as part of the Appellant's evidence, neither were reasons for why it was left out, arguing the Tribunal relied solely on exhibit D3 to reach its decision. It is true that the Tribunal did not deliberate and rule on exhibit Pl. However, my adumbration hereinabove say it all. To my view no weight can be accorded to it for it was marred with serious doubt on the face of it. My undertaking is grounded on a fact that exhibit Pl was issued on 29/01/2020 and the application (plaint) was presented for filing on 20/02/2020 being less than a month counting from when exhibit Pl was issued. In other words, it was procured and calculated in furtherance of pursuing the claim and suit at the Tribunal. No wonder even a signature of the First Respondent appearing in exhibit Pl differs materially with signatures of the Third Respondent appearing in the sale agreement dated 20/07/2011, affidavit dated 29/05/2019, mortgage deed dated 20/06/2019 all forming a bundle in exhibit D2 and loan agreement exhibit DI. To be more precises signatures of the Third Respondent in

exhibit DI and D2 are similar and resemble, but completely differ with a signature in exhibit li Pl. That is why I have ruled that exhibit Pl is tainted with serious doubts on its authenticity and therefore impacting its reliability. In view of the above, the argument of the Appellant that the mortgage was created without her consent on a matrimonial property, is legally untenable. This is because the Appellant failed to prove that there is a subsisting marriage between her and the Third Respondent at the time when mortgage was created and failed totally to prove that the suit property is a matrimonial home. Regarding the preliminary objection raised by the learned Counsel for Respondent that the previous appeal that is Extended Land Appeal No. 159 of 2022 was withdraw without leave to refile the instant appeal. I go along the argument of the Appellant that in so far the First Respondent did not attach a copy of the impugned order for Court appraisal, her objection cannot be entertained. The same is accordingly overruled. As per the adumbration above, the appeal is unmerited. The decision of the Tribunal is upheld. The appeal is dismissed. However, the Appellant is spared costs for reason that 12