land Appeal 12932

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 12932 OF 2024 CASE REFERENCE NO. 202406031000012932 ZAINABU DIWANI BUNGIRE..................................................... APPELLANT VERSUS NATIONAL MICROFINANCE BANK...................................... 1st RESPONDENT MANYARA LOAF COMPANY LIMITED.................................. 2nd REPONDENT NKWABI M. MWANDA........................................................... 3rd RESPONDENT JUDGMENT 10/10/2024 & 17/12/2024 GWAE, J Before District Land and Housing Tribunal of Kinondoni (herein the trial tribunal), the appellant, Zainabu Diwani Bungire lodged the dispute against the respondents named above. Her prayers before the trial tribunal were inter alia; a waiver of default notice issued by the 1st respondent, declaration that, the Mortgaged Deed over Plot No. 141, Block "40" CT No. 145304 located at Kinondoni-Hananasif area in Dar es salaam Region is null and void and costs of the application. Both sides were heard except the 2nd i and 3rd respondent who neither filed their written statement of defence nor entered their necessary appearance. The facts giving rise to the dispute between the parties are brief as follows:- That, in the year 2017 the 1st respondent, National Microfinance Bank PLC gave the 2nd respondent an overdraft facility at the tune of Tshs. 200,000,000/=. That, said loan facility was secured by three (3) securities including the landed property described as Plot No. 141 Block "40" Hananasif area- Kinondoni Municipality in Dar-es salaam, with CT No. 145304 L.O No. 605992 (herein suit property). However, that, the 2nd respondent defaulted repayment leading to the 1st respondent's issuance of default notice dated 28th January 2019. On the other hand, it is the appellant's version that, on 22nd July 2015 she handed over the 3rd respondent the certificate of title of the suit property in writing so that, he could replace it with new in the land offices. That, the 3rd respondent has not returned the CT bearing the name of one Abraham Isaac Mdamo (the appellant's late husband who died in 1998) despite of repeated demands. Thus, the appellant seriously refuted the 1st respondent's contention that, the suit property was mortgaged in order to secure the loan in favour of the 2nd respondent. 2 The Trial Tribunal, through its judgment and decree dated 18th April 2024, dismissed the appellant's application with costs for lack of merit and proceeded holding that, the appellant as guarantor liable for the outstanding loan after the 3rd respondent, Manyara Loaf Company Limited had failed to repay the same. Aggrieved by the trial tribunal's decision the appellant has knocked the doors of the Court armed with the following grounds of the appeal;- 1. That, the learned trial chairperson erred in law and fact by holding that, the appellant guaranteed the loan given by the 1st respondent to the 2nd respondent 2. That, the learned trial Chairperson erred in law and fact for failure to evaluate evidence tendered by both parties 3. That, the learned trial Chairperson erred in law and fact for failing to evaluate evidence of each witness and his or her credibility so as to make trial tribunal own finding on the contested facts in issue. Hence leaving the contested material facts and law unresolved Before this court, Mr. Adrian Mhina and Mr. Dennis B. Mganga, the learned advocates appeared representing the appellant and 1st respondent respectively. However, the 2nd and 3rd respondents never entered appearance despite the fact that they were duly served through Mwananchi Newspapers 3 dated 24th Sept. 2024. Thus, the hearing of the appeal proceeded ex-parte against the 2nd and 3rd respondents. The hearing of the appeal proceeded by way of written submission. In his submission in chief, the appellant's counsel combined all the three grounds of appeal herein. He therefore argued them jointly. Mr. Mhina submitted that, this court being the 1st appellate court has an obligation of stepping into the shoes of the trial tribunal and re-evaluate the evidence adduced before that tribunal. He invited the court to the case of Associated Motor Boat Co. (1968) EA 123. The appellant's advocate went on arguing that, the signature appearing in the Mortgage Deed (DE3) purporting to be of the appellant is forged as denied by the appellant and her sons who appeared as PW2 and PW3 as well as PW4 whom he stated to be conversant with the same as used to appear in course of her normal doings. It is the submission by Mr. Mhina that, the appellant and her witnesses managed to prove that the signature appearing in exhibit D3 is not hers (forged) that is why the matter was reported to Oysterbay Police Station and hearing before trial tribunal and this court on appeal proceeded ex-parte. Bolstering his argument, Mr. 4 Mhina referred to the case of Ratilal Gordhanbhai vs. Lalji Mkanji (1957) E.A 314 where it was held; "Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt. Something more than a mere balance ofprobabilities is required." Challenging the weight of the evidence adduced before the tribunal by the 1st respondent's sole witness (DW1), Mr. Mhina stated that, DW1' s evidence is nothing but hearsay, which ought not to given any weight as she neither personally witness the appellant signing the mortgage deed nor she visited the disputed property before disbursement of loan facility. He then urged the Court to refer to Vumi Liapenda vs. Republic, Criminal Appeal No. 327 of 2016, available on Tanzlii. In his response submission, Mr. Mganga submitted as the appellant alleged forgery, she bore a duty of proof of such allegation. It is further his submission that, the appellant had neither pleaded fraud nor did he give particulars of fraud as required by the law. He invited the Court to the case of City Coffee Limited vs. Registered Trustees of Holo Coffee Group, Civil Appeal No. 94 of 2018 (2019) TZCA 645 (1 November 2019 where the 5 Court quoted with approval that where the party relies on fraud must be specifically pleaded and that particulars of fraud alleged must be stated o the face of pleadings. I have keenly examined the trial tribunal records especially, the appellant's Application before it and other documents allegedly signed by her especially letters of administration granted to the appellant (PE2), Mortgage Deed duly signed on 18th November 2016 (DE3) and Default Notice dated 28th January 2019 (PE4) as well as her application received on 21st day of May 2019. However, I am persuaded that, once an allegation of fraud is raised, such allegation must be proven to a higher standard than ordinary proof in the balance of probabilities though not beyond reasonable doubt as used to be in the criminal cases. (See the case of Twazihirwa Abraham Mgema vs James Chistian Basil (as administrator of the estate of the late Christian Basil Kiria, Deceased person), Civil Appeal No. 229 of 2018 (unreported- CAT). Nevertheless, I have carefully examined the copy of the certificate of title in respect of the mortgaged property (DEI) and observed that, the same was initially registered in the name of the late Abraham Isaac Mdamo on 5th February 2016 (DEI) and the stamp duty was paid on 27th October 2015. 6 Further to that, DEI it is indicative that, the appellant handed over the certificate of title (DEI) to 3rd respondent on 22nd July 2015 (PE3). I have also noted that, subsequent to the said handing over of the certificate of title, the 3rd respondent is indicated therein to have been given a power of attorney to act on behalf of the late Mdamo. For easy of reference parts of the CT is reproduced 4 the within named ABRAHAM ISAAC MDAMO hereby accept the terms and conditions contained in the foregoing Certificate of Occupancy SIGNED and DELIVERED by the said NKWABI MICHAEL MWENDA under special power of Attorney registered under folio 1/.82425of16th October 2015....................... " According to the Copy of the Certificate of Occupancy (DEI), the one who signed the same is the 3rd defendant whilst according to letters of administration and evidence adduced before the trial tribunal, the appellants late husband met his demise on the 25th March 1998. As there is serious allegation as to the creation of mortgage of the suit property and the one who made approval of the same and who is actually the custodian of all documents of registered pieces of land is the Senior Registrar of Titles and since DEI does not have any other documents authorizing the 3rd respondent to act on behalf of either the deceased person or the appellant. It follows 7 therefore, the Land Commissioner or Registrar of Titles and Attorney General were necessary parties. These persons, in my firm view, would assist the process of resolution the parties7 dispute. That, being the court's observations, I was therefore compelled to entertain the parties to address the court on whether the Registrar of Titles and or Land Commission or both and Attorney General were necessary parties to the dispute between the parties. According to the appellant's advocate, there was serious need to join the Registrar of Titles since mortgage transactions of the disputed property are questionable and the power of attorney allegedly made by the deceased raises serious doubts On the 1st respondent's counsel was, of the view that not all mortgages require joining of Registrar of Titles. Alternatively, the counsel for the first respondent argued that, it is more apposite if additional evidence is recorded by this court as first appellate court under section 42 of the LDCA by calling Land Commissioner or Registrar of Titles. Initially that is on 25th September 2024, I opted to have the evidence of the Registrar of Titles pertaining the suit land recorded as the court witness by virtue of Order XVI Rule 14 of the CPC. 8 Basing on the evidence adduced before the trial tribunal, it is imperative to subscribe to the decision of the Court of Appeal of Tanzania in Godfrey Nzowa vs Selemani Kova & Another (Civil Appeal No. 183 of 2019) [2021] 7ZCA 674 with approval of its decision in Abdulatif Mohamed Hamis vs. Mehboob Yusuf Osman and Another, Civil Revision No. 6 of 2017 (unreported) stated: "... on the other hand, under Rule 3 of-Order 1, all persons may be joined as a defendant against whom any right to relief which is alleged to exist against them arises out of the same act of transaction; and the case is of such a character that; if separate suits were brought against such a person, any common question of law or fact would arise." The Court proceeded further and discussed what a misjoinder or non joinder ofparties in the suit.......................................... : ........Suffice to say, while considering the arguments by the counsel for the appellant, the provision of Order 1 Rule 1 of the CPC that all parties who are necessary must be joined to the suit, cannot be ignored" See also Beatrice Greyson vs. Ongujo Wakibara Nyamarwa, Civil Appeal No. 122 of 2021 (unreported), whose judgment was delivered on 20th February 2024 where non-joinder rendered the suit unmaintainable 9 as there was contentious issue on whether the compensation was paid by the authority to the original owner. In this case, it is clear that, the CT of the disputed property was registered on 5th February 2016 where the appellants late husband passed away on 25th March 1998. Furthermore I have taken into account that, the power of attorney as depicted in the CT purporting to have been given to the 3rd respondent does not form part of evidence adduced before the trial tribunal and the 3rd respondent's signature dated 9th November 2015, in my view, raise a lot to be desired and a need to have evidence from the office of the Registrar of Titles who has elected not to comply with the court's summons requesting him to enter appearance for the purpose of taking an additional evidence aimed at assisting the court to timely occasion justice in this case. For foregoing reasons and the interest of justice and, the proceedings, judgment, decree and any ancillary orders made by the District Land and Housing Tribunal are hereby nullified. The appellant or any other interested party has to initiate a fresh proceedings before this Court by virtue of section 7 of the Government Proceeding Act, Cap 5, Revised Edition, 2019 by joining io the necessary parties. Each party shall bear his or her cost since the legal issue was raised by the Court suo moto. It is so ordered. DATED and Delivered at DAR ES SALAAM this 17th December 2024 /t A k » 11