LAND APPEAL NO

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 322 OF 2022 (Originating From Application No. 147 of 2019, Ilala District Land and Housing Tribunal) VALENTINA SERAFINI........................................................... APPELLANT VERSUS N.M.B. BANK PLC................................................................................................. 1stRESPON ADILI AUCTION MART LTD................................................................................. 2ndRESPON MASIKA VALERIAN MUSHI................................................................................. 3rdRESPON JUDGMENT 9/08/2024 to 26/09/2024 E.B. LU VAN DA, J At the District land and Housing Tribunal (hereinafter the Tribunal), the Appellant above named sued the First, Second, Third Respondent claiming ownership of the suit premises (matrimonial property) situated at Kitunda Area, Ilala and that she did not consent for it to be mortgaged as collateral for a loan of TZS 20,000,000/= advanced by the First Respondent to the Third Respondent. The Third Respondent asserted that the suit premises was jointly acquired. The First Respondent tendered a sale agreement exhibit DI vindicating that the suit premises was purchased by the Third Respondent. Also tendered a spouse consent exhibit D2 to substantiate that the Appellant had consented for the suit i premises to be mortgaged vide exhibit D4 for a loan in agreement exhibit D3, which was for a tenure of twelve months from 5/11/2018 to 5/10/2019. The Appellant faulted exhibit D2 on account that it was forged document, but owned a signature and name reflected therein. The Third Respondent also asserted that he was lured by the First Respondent who visited at his business at Buguruni, solicited the former to take loan without having enough experience on issues of borrowing or landing, and immediately after disbursement of the loan into his Faidika account number 20910011753, started experiencing difficulties in terms of sales and his business generally. The First Respondent asserted that the Third Respondent only serviced three instalments, thereafter defaulted to discharge his obligation. It is when the First Respondent assigned the Second Respondent to embark on recovery measures, which entailed service of fourteen days notice this was done after the Third Respondent was said to had refused to acknowledge a statutory notice. The Tribunal dismissed the Appellants claim for want of proof, that there is no evidence which was tendered to prove that the Appellant did not consent to the mortgage. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the trial Chairperson erred in law and fact by holding that the Appellant gave spouse consent to the mortgage of the suit matrimonial home by the First 2 and Third Respondent; Two, the trial Chairperson erred in law and fact by dismissing the Appellant's prayers before the Tribunal; Three, the trial Chairperson erred in law and fact by failing to evaluate evidence on record, frame issues so as (sic) answer the said issues thereby failing to reach a sound decision. The Appellant, for the ground number one, submitted that before the Tribunal there were two issues for determination which are one, whether the Appellant gave spousal consent for the matrimonial home to mortgage the loan borrowed by the Third Respondent from the First Respondent, the second issue was to what reliefs are the parties entitled. She submitted that during testimonies of PW1 and PW2 it was testified strongly that the photograph that was put on the consent form was not the face of the Appellant and that even the signature seen on the consent form is not the signature of the Appellant, citing PW1 at page three and PW2 at page four of the impugned judgment, arguing that there was no cross examination on the above facts of the testimonies to contradict them and hence the facts of the testimonies stood as were testified. She submitted that if the photograph belongs to somebody else and not the Appellant who is the wife of the Third Respondent, is as good as there was no spousal consent. She submitted that it was testified also that the signature was not of the Appellant, arguing that there was misrepresentation committed by 3 the Respondents. She submitted further that in the testimonies of witnesses there is nowhere it was stated that the Appellant had opportunity to see the terms of the contract as she was in Moshi on the dates alleged to have signed the spousal consent. For ground number two, the Appellant submitted that Tribunal disregarded Appellants evidence as testified. She submitted that the Appellant having testified that the signature on the spousal consent form is not her signature, the photograph on the spousal consent form is not that of the Appellant and that the Appellant was in Moshi on the date of signing the spousal consent form which was signed in Dar es Salaam, arguing that the Tribunal ought to be given heavy weight in favour of the Appellant. For ground number three, the Appellant submitted that this is the first appeal and hence this Court can re-evaluate evidence on record of all witnesses and all exhibits tendered and find that the Appellant did not sign spousal consent and hence the suit matrimonial home was unlawful mortgaged without following procedure. In reply, Ms. Farida Qatare Farouk learned Counsel for First Respondent submitted that the Appellant herein claims not to have participated in the process of issuing the consent on the mortgaging of their matrimonial home by her husband (Third Respondent) to the First Respondent, for explanation and 4 submission that the photo (picture), names and signature attached at the disputed spouse consent as exhibit D2, are not her real and original ones hence belongs to another person and forged. The learned Counsel submitted that according to page three of the impugned judgment, it was revealed that on the cross examination placed to the Appellant, she testified that, the same photo (picture), names and signature attached at the disputed spouse consent as exhibit D2, are her real ones and belongs to her, but she didn't sign such a document, hence, her signature was forged by someone, arguing that the Appellant contradicts herself. She submitted that the Appellant was not able to tell the Tribunal as to who forged her signature and how her pictures were procured without her knowledge, the seriousness of the allegation notwithstanding. She submitted that the argument of the Appellant her signature was forged by a fact that she was out of Dar es Salaam from February to June 2019, arguing it does not cure anything for explanation that the mortgage procedures took place during October 2018, whereby, she was still present in Dar es Salaam. She submitted that there is no proof of forgery of signature to the required standard so as to substantiate that the Appellant did not give consent to the particular mortgage. She submitted that the allegation of forgery and fraud in respect of the particular mortgage deed were neither specifically pleaded nor their particulars were stated in the Appellant's 5 application submitted at the Tribunal. She cited the case of NNB Bank Pic vs Mafubilo General Supplies Ltd & Other, Commercial Case No. 93 of 2021, TanzLII at page 19, Judge Agatho, (as he then was) referred to the case of City Coffee Ltd Vs Registered Trustee of Holo Coffee Group, Civil Appeal No 94 of 2018 CAT. She submitted that since the Appellant in this case opted not to call expert witness to give opinion on the disputed signature, the Appellant leaves the case for forged signature hanging on her part and the adverse inference has to be drawn against her that had her called expert witness he might have testified in favor of the Appellant's case. She submitted that the First Respondent has got no ability to identify who is the real spouse of the mortgagor (Third Respondent), arguing therefore that this rests to the mortgagor himself. She submitted that they were expecting to see the Appellant taking further legal action against the person who forged her signature, arguing until today there is no such legal action has been taken. For ground number two and three, the learned Counsel submitted that since the Appellant has submitted on both grounds by repeating on what has been already stated on the ground number one that, since her signature was forged, then the Tribunal ought to have given weight in favor of the Appellant. She submitted that the Appellant has failed to understand that the allegation of fraud must be shown how, when, where and in what way the fraud was 6 committed and not a mere allegation, arguing which fact was not done in this case, hence, a fatal blow to her case. She submitted that the Appellant's claim of signatures being forged lacks any evidence to support it as expounded hereinabove. She submitted that the alleged forgery came as an afterthought as it has never been reported to the police for investigation for explanation that forgery is a serious crime. She submitted that no hand writing signature expert was engaged to examine the signature and supply his report to the court and even appear before the court to give his expert testimony. She submitted that this ground also lacks merit to vitiate the entire proceedings of the Tribunal. Generally speaking, this appeal lack merit. For ground number one, it is in evidence of the record of the Tribunal that when the Appellant (who testified as PW1) was cross examined by Mr. Herry Kauki learned Counsel for First Respondent, was recorded to have stated that, 'The photo picture of the passport size over the mortgage deed and the names are mine. The signature is mine but it is not me who did sign' To my view the argument of the Appellant that exhibit D2 is not her deed, has no bearing at all. To my opinion, having admitted that a signature belong to her there was no way the Appellant can be exonerated from it. Regard, being that, a fact that there was misrepresentation was merely raised at this stage of appeal. The claim of forgery was merely raised at the witness box when PW1 7 was testifying. In her application filed at the Tribunal on 20/05/2019, the Appellant did not plead a fact that her signature was forged or that there was misrepresentation. Therefore, the said misrepresentation and forgery were raised as an afterthought without any base or foundation. Indeed, even in her testimony, PW1 did not state how, who, when and where forgery was committed. In fact, the particulars for forgery and misrepresentation were not pleaded nor proved. A mere fact that Mathei Joseph Mushi (PW2) asserted that since February 2019 to June 2019 the Appellant travelled to Moshi, was not sufficient evidence to prove forgery. Indeed, this fact of travelling to Moshi during this epoch of particular period, was not supported by either PW1 or her spouse the Third Respondent who testified as DW2 at the Tribunal. Above all, as stated by the learned Counsel for the First Respondent that the rule is that facts of forgery must be specifically pleaded and strict proved, regard being forgery borders criminality, therefore standard of proof is normally on the high standard although not necessarily beyond shadow of doubt. In Mafubilo General Supplies Ltd (supra), this Court speaking through Ubena, J commented that, 'Where parties rely on fraud that fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of the pleadings' 8 Again, as alluded by the learned Counsel for First Respondent that while PW2 allege PW1 was in Moshi during a period from February to June 2019, however mortgage deed exhibit D2 suggest was executed by the Appellant on 2/08/2018, therefore the testimony of PW2 missed a target. Regarding an argument by the Appellant that she had no opportunity to see the terms of the contract as she was in Moshi on the dates alleged to have signed the spousal consent. First and foremost, the Appellant did not state as to the law to that effect. Secondly, as stated above the consent were executed on 2/08/2018 and loan agreement and mortgage deed exhibit D3 and D4 respectively were executed on 3/10/2018 when the Appellant was around in Dar es Salaam. Therefore, this argument is unmerited. The adumbration above takes into board, ground number two and three as well, as were repetition to what was argued in ground number one. Ther appeal is dismissed. Each party will bear its costs. 9 Judgment delivered in the presence of the Third Respondent and in the absence of the Appellant who is reported sick by Aloyce Masiki Mushi neighbour, in the absence of the First, Second Respondent. 10