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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO LAND APPEAL NO.8787 OF 2024 (Arising from the Judgement and Decree of the District Land and Housing Tribunai for Morogoro at Morogoro before Hon. E. Mogasa in Land Application No. 296 of 2017) SOPHIA SAIDI TANDALA APPELLANT VERSUS ADAM A. YATERA RESPONDENT MONICA JOHN MARIRE 2^*° RESPONDENT TANZANIA POSTAL BANK 3^^ RESPONDENT MARK RECOVERIES CO. LTD 4^" RESPONDENT JUDGMENT 04/11/2024 & 18/11/2024 KINYAKA J.; The appellant who was the applicant in Land Application No. 296 of 2017 before the District Land and Housing Tribunal for Morogoro at Morogoro hereinafter the "Tribunal" preferred the present appeal upon his dissatisfaction with the judgement of Tribunal. The appellant's complaint before the Tribunal was the attempted auction of hers and respondent's matrimonial home by the 3'^ and 4^^ respondents. According to the records, the said matrimonial home was offered to the respondent as collateral for the loan extended by the respondent to the 2"^ respondent without the appellant's consent as a spouse. Upon hearing the parties, the Tribunal dismissed the appellant's application with costs for lack of merit based on the reason that the 3"^ respondent took reasonable steps to verify If the respondent had a spouse. The Tribunal articulated that the 3'"^ respondent obtained necessary documents relating to the house which the respondent offered to the 3'^ respondent as collateral to the loan of TZS 10,000,000 taken by the 2"*^ respondent from the 3''^ respondent. The Tribunal further held that the marriage certificate tendered by the appellant did not prove existence of marriage between the appellant and the 1^ respondent for failure to comply with conditions stated under section 55 of the Law of Marriage Act Cap. 29 R.E. 2019. Discontented, the appellant preferred the present appeal advancing three grounds of appeal, namely: 1. That the learned trial Chairperson erred in law and fact by expunging a valid marriage certificate from the record which certify the marriage between the appellant and the 1^ respondent; 2. That the learned trial Chairperson erred in law and fact by failure to analyze the evidence given by the appeiiant and relying on weak evidence adduced by the respondents; and 3. That the iearned trial Chairperson erred in iaw and fact by deiivering a defective judgement. At the hearing of the appeal, the appellant and the respondent appeared In person and unrepresented. The appeal proceeded ex parte against the 2"^ respondent who failed to appear before the court despite being served through the substituted service. The and 4^^ respondents were duly represented by Mr. Abdaliah Makuio, learned state attorney. Before commencement of the oral submissions by the parties, the Court asked the parties to address it on the propriety of the proceedings of the Tribunal in the absence of the 2"^ respondent and an order for ex parte hearing against her. The parties were also asked to address the Court of the propriety of the proceedings of the Tribunal in excluding the then 3'"^ respondent, Neema Minhe in the suit without any order to that effect. The appellant submitted in respect of the issues raised by the Court that she was represented by an advocate at the Tribunal and cannot explain the anomalies as she was not a lawyer. She submitted in support of her appeal 3 that she is the legal wife of the respondent who contracted Islamic marriage in 2006 evidenced by the marriage certificate admitted in evidence by the Tribunal. She argued that she was not aware of any requirement to change the certificate. She submitted that it was indicated in the written statement of defence that 2"^ respondent took two loans but no evidence was adduced to show the collateral that the 2"^ respondent offered for the first loan. She complained that the affidavit of the respondent was typed and was not written by him. On his part, the respondent informed the Court that proper procedure was followed to exclude the 2"^ respondent in the proceedings. He contended that Neema Minhe was joined in the suit but later on the appellant did not have interest to prosecute her. He submitted in support of the appeal that the Tribunal did not record his testimony and some of the questions were not responded by the witness of the 3^^ respondent. He contended that it was wrong for the Tribunal to invalidate his marriage with the appellant. He averred that the appellant highly contributed to the acquisition and construction of the disputed house and is entitled to her share. He claimed not to have been taken a photograph at his house alleged to have been offered as security. He lamented that he was not aware of the loan of TZS A W 5,000,000. He refuted to have seen the affidavit purported to be executed by him for the first time at the Tribunal. He contended that he had never been asked if he had a wife and that the 3^^ respondent neither went to his house nor conducted valuation. He concluded that his rights as the guarantor were infringed and any purported sale of the house couldn't be justified. Mr. Makulo informed the Court that if there was no ex parte order against the 2"^ respondent, the proceedings are defective. He implored the Court to order retrial if it thinks appropriate. He submitted in respect of the appeal that the allegations of fraud or forgery required strict proof as held by the Court of Appeal in the case of CRDB PLC Limited v> Symbion Power Tanzania Limited, Civil Appeal No. 371 of 2022. He added that the Court of Appeal articulated that he who borrows money must pay, and that no one can benefit from his own wrong despite any irregularity. He prayed for the appeal to be dismissed with costs. In her rejoinder, the appellant prayed for the Court to reserve her house and that if the same is ordered to be sold, the Court be pleased to order the 2"^ respondent's house to be sold first and the remaining balance of the loan be paid bythe 1^ respondent. She prayed to be spared with costs. In determining the instant appeal, I will first decide on the issue raised by the Court on the propriety of the proceedings of the Tribunal for failure to make an ex parte hearing order against the 2"^ respondent and absence of record of the exclusion of Neema Minhe, the then 3^^ respondent in the land application. If need be, I will then decide on each of the appellant's grounds of appeal. The record of the proceedings of the Tribunal reveal that the matter was initially heard before Hon E. Mogassa, Chairperson of the Tribunal. The proceedings Indicate on page 27 of the proceedings that after conclusion of the testimony of PWl, the appellant, the matter was transferred to another Chairperson who presided over the matter on 9^^ November 2022. The then Advocate for the appellant, Mr. Asifiwe Alinanuswe informed the Tribunal of the failure by the 2'^^ respondent to file her written statement of defence and the absence of an ex parte order against her by the Tribunal. Mr. Asifiwe who represented the appellant and Mr. Epaphro Mugo who represented the 3'^ and 4*^ respondents agreed that the file be remitted to the predecessor chairperson for rectification of the error. The successor chairperson granted the prayer and ordered remittance of the file to the predecessor Chairperson. Though the file was returned to the predecessor Chairperson, the Honourable Chairperson proceeded to hear PW2 and the defence witnesses until finalization of the suit without making any rectification. Consequently, it is not on record if the suit was heard exparte against the 2""^ respondent and no such order was made by the Tribunal. I find the anomaly fatal as it not known whether the Tribunal was justified to hear the suit in the absence of the 2"^ respondent whose participation in the proceedings was vital. It should be noted from the pleadings and evidence adduced before the Tribunal that the 2"^ respondent was the borrower who defaulted to repay the loan(s) to the 3"^ respondent culminating to the letter's enforcement of the appellant's and the respondent's house which was offered by the respondent as collateral for the loan. It was crucial for the 2""^ respondent to participate in the proceedings. However, if the 2"^ respondent was not found, it should have been clearly recorded by the Tribunal the basis upon which the Tribunal proceeded with the suit in absence of the 2"^" respondent. Again, the parties to the suit indicated in both the proceeding, judgement and decree of the Tribunal are the appellant, against the 1^, 2"^ 3'^ and 4^^ respondents. However, reading the proceedings and the pleadings, it reveals 7 ^ that before commencement of hearing, Neema Minhe was added to the suit through the appellant's amended application and the 4^^ and 5^^ respondents' (the current 3'"^ and 4^^ respondents') written statement of defence. Despite such joinder, the record is silent on how and when Neema Minhe was removed from the suit that entitled the Tribunal to remain with the parties appearing in the present appeal. In view of the above observations, I find the proceedings of the Tribunal flawed. The same do not depict the true and correct record of what actually transpired before the Tribunal. It does not therefore justify this Court to proceed determining the present appeal with such anomalies. It is crucial that the record be rectified to reflect the true and correct record of the state of affairs that transpired in the proceedings before the Tribunal. With the above findings, I hold that the proceedings of the Tribunal are defective with a consequence that the same are nullified and the resultant judgement and decree are quashed and set aside. I order remittance of the file to the Tribunal for an expedited retrial of the suit before another Honourable Chairperson. Since the issue raised suo motto by the Court has disposed of the entire appeal, I do not deem it necessary to canvass the appellant's grounds of appeal. Considering that the omissions have been occasioned by the Tribunal, I do not make an order for costs. It is so ordered. Right of appeal to the Court of Appeal fully explained. DATED at MOROGORO this 18^^ day of November 2024. H. A. KINY^KA JUDGE 18/11/2024