Land Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL NO. 11352 OF 2024 fOriginating from the Decision of the District Land and Housing Tribunal for Ua/a at the Ministry of Land Bui/ding-Kivukoni in Land Application No 31 of2018) ZUBEDA KIANGO PAZIA.................................................. APPELLANT VERSUS MWANGA HAKIKA MICROFINANCE BANK LIMITED ...1st RESPONDENT STEAM GENERATION RECOVERIES....................... 2nd RESPONDENT JUDGMENT Date of last Order: 15/10/2024 Date ofJudgment: 28/10/2024 LALTAIKA, J. The Appellant, ZUBEDA KIANGO PAZIA is dissatisfied with the decision of the District Land and Housing Tribunal for llala at the Ministry of Land Building-Kivukoni in Land Application No 31 of 2018. She has appealed to this Court by way of a Petition of Appeal containing the following grounds: 1. That the learned Chairman erred in law and fact by determining Land Application No 31 of 2018 without considering the evidence given by the Appellant. Page 1 of 14 2. That the /earned Chairman erred in law and fact by denying the Appellant's Application in Land Application No 31 of 2018 despite the discrepancies in the Loan Agreements between the Appellant and the 1st Respondent. 3. That the learned Chairman erred in law and in fact when he neglected the reliable evidence of the Appellant on the letter that the 1st Respondent replied to acknowledge that the Appellant had no any outstanding loan and that they would refund the money that exceeded in the payment of loan. 4. That the learned Chairman erred in law and in fact for failure to realize that the Appellant has no any left dept to the 1st Respondent concerning the Loan and that the 1st Respondent had responsibility to refund the Appellant. 5. In all the circumstances of the case, the findings of the learned Chairperson are insupportable in Law or on the basis of the evidence adduced. Parties agreed to dispose of this appeal by way of written submissions. Whereas the Appellant appeared in person, unrepresented, the Respondent enjoyed the legal services of Mr. A schedule to that effect was ordered accordingly. The next part of this Judgment is a summary of submissions by both parties, my analysis and the consequential verdict. The Appellant argued that the learned Chairman had erred in law and fact by deciding on Land Application No. 31 of 2018 without taking her evidence into account. She emphasized a well-established principle in law: parties to a case or their advocates are permitted, during the hearing, to call witnesses to produce evidence and submit final arguments either orally or in writing, as provided under Regulation 14 of the Land Disputes Courts (District Land and Housing Tribunal) Regulation, GN No. 174 of 2003. This regulation, she asserted, ensures that parties have an Page 2 of 14 opportunity to present evidence supporting their case, following which the Chairman must consider this evidence and any submissions before rendering judgment, as required by Regulation 19(1) of the same regulation. In her application, No. 31 of 2018, before the District Land and Housing Tribunal for Ilala, the Appellant narrated, she submitted evidence as PW1. However, she claimed, the Chairperson disregarded her testimony, contrary to the legal requirements. She underscored that it is a settled legal principle that all evidence from both parties must be reviewed, evaluated, and addressed within the judgment, as upheld in National Microfinance Bank v. Chama Cha Kutetea Haki Na Maslahi Ya Walimu Tanzania (Chakamwata) (Civil Appeal 17 of 2019) [2020] TZHC 2305, Page 11 (28 August 2020), which mandated a balanced consideration of the parties' evidence. Further, the Appellant argued that her default on the loan, despite her belief she had made the correct payments, led to her house being mistakenly subject to sale as mortgage security. She referenced a letter dated 11/10/2016 as proof that the 2nd Respondent's intended sale was unlawful. She argued that the Chairperson's decision to overlook this letter Page 3 of 14 was against the law and that the Tribunal’s decision should, therefore, be quashed. The Appellant also challenged the Chairman's handling of discrepancies in the loan agreements between herself and the 1st Respondent, stating that she had never received the full amount requested. Instead, she asserted, she was given a lesser amount, though she was expected to repay the initially requested sum. This discrepancy, she averred, was evident in the 1st Respondent's letter dated 11/10/2016, which confirmed she was given TZS 5,272,182.77 instead of TZS 25,000,000, which conflicted with amounts listed in payment schedules and cited by the 1st Respondent in court. The Appellant contended that these inconsistencies indicated an attempt by the 1st Respondent to manipulate her rights to her property unjustly. The appellant further noted that DWl's testimony that she "topped up" loans before clearing previous ones was inaccurate. Despite these inconsistencies, appellant claimed, the Chairman based his judgment solely on the 1st Respondent's evidence, ultimately rejecting her application. Page 4 of 14 The Appellant also argued that the Chairman disregarded reliable evidence, particularly a letter from the 1st Respondent, acknowledging that she had no outstanding loan and that any excess payment would be refunded. She submitted that her evidence, intended to demonstrate this acknowledgment, was dismissed during the hearing of Application No. 31 of 2018, in violation of the procedure outlined under Regulation 19(1) of the 2003 regulations. This, she argued, further invalidated the Tribunal's decision. Additionally, she argued that the Tribunal erred in failing to recognize that she owed no remaining debt to the 1st Respondent, who had a duty to refund her for overpayments. Again, citing Regulation 19(1), the Appellant stated that the Chairman was required to accept evidence presented by both parties before rendering judgment, which he failed to do in her case. In conclusion, the Appellant asserted that the learned Chairperson's findings lacked a lawful basis and failed to consider the presented evidence. Referring once more to National Microfinance Bank v. Chakamwata, (supra) she highlighted the court's duty to thoroughly assess and reason each party's evidence in its judgments. She argued that the Chairman's Page 5 of 14 disregard for her evidence denied her justice and warranted quashing the decision in Application No. 31 of 2018. Accordingly, she prayed that her appeal be allowed with costs. Counsel for the Respondents, Mr. Mayombo argued that the 1st, 2nd, 3rd, 4th, and 5th grounds of appeal, which were presented together by the Appellant, lacked merit. According to him, the trial Chairperson had thoroughly evaluated the evidence on record and delivered a fair judgment. Mr. Mayombo contended that the Appellant bore the responsibility to prove her claim that she had fully repaid the loan, particularly by providing payment slips, which she had not done. He emphasized the legal principle that the burden of proof lies with the party who asserts a claim, referencing Section 110 of the Law of Evidence Act, Cap. 6 R.E. 2019, and supporting his point with Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 [2019] TZCA 453: TANZLII. Mr. Mayombo further argued that the Appellant, in her pleadings, specifically at paragraph 6(i) of the application, had admitted to taking out a loan from the 1st Respondent and mortgaging her residential property as collateral, subsequently defaulting on repayment. Mr. Mayombo asserted Page 6 of 14 that the Appellant was bound by these pleadings, and he argued that the 1st Respondent had the right to exercise its power of sale under the mortgage agreement, citing Section 134 of the Land Act, Cap. 113 R.E. 2019. He also referenced National Bank of Commerce v. Dar es Salaam Education and Office Stationery, [1995] TLR 272, in which it was held that a court cannot interfere with a mortgagee's exercise of the power of sale unless there is evidence of corruption or collusion with the purchaser. Mr. Mayombo pointed out that the Appellant had been duly served with all necessary notices, including a sixty-day notice, as shown in Exhibit KU-5, and she was aware of her default. He referred to the case of Edward Nyalusye v. NBC (1997) Ltd & Abubakar Ali Hamid, where Justice Manento stated, "People should borrow and pay, or else they suffer the consequences." Addressing the Appellant's claim regarding loan discrepancies, Mr. Mayombo noted that she had acknowledged during the trial that she had topped up her loan three times to expand her business. He directed attention to the loan agreements marked as Exhibits KU-1, KU-2, KU-3, and KU-4, and argued that the Appellant failed to prove that she had discharged her debt Page 7 of 14 to the bank. Exhibit KU-2, a bank statement, revealed the Appellant's payment trend from 30/07/2015, which did not align with the monthly instalment schedule requiring TZS 1,149,541.82. Furthermore, Mr. Mayombo argued that the Appellant's assertion that the Respondent had acknowledged her full discharge of the loan was unsubstantiated, as she had not provided any supporting evidence. In conclusion, Mr. Mayombo submitted that, based on the arguments and cited authorities, the appeal was entirely without merit and should be dismissed with costs. In her rejoinder submission, the Appellant clarified that she did not deny taking a loan from the 1st Respondent but asserted that she had repaid all amounts taken at different times. She further argued that a reasonable observer would conclude that the 1st Respondent was conducting business with false and misleading information aimed at unlawfully acquiring properties placed as collateral. She highlighted discrepancies between the loan agreements, noting differences in the amounts borrowed versus the actual sums given to her as a loan, and claimed that she had consistently been forced to repay the full amount borrowed rather than the amount she had received. Page 8 of 14 The Appellant identified two main issues raised by the Respondents in their reply: the burden of proof and the mortgagee's power of sale. She contended that the Respondents' counsel had wrongly cited Section 110 of the Evidence Act, Cap. 6 R.E. 2019, as this was an outdated reference; the current law was the Evidence Act, Cap. 6 R.E. 2022. Citing Awadhi Ibrahim Msuya v. Jamila Salehe Kiluwasha and Another, Mi sc. Land Application No. 498 of 2022, she argued that incorrect citations render a case incompetent and liable for dismissal. Therefore, she contended, the Respondents' issue on the burden of proof, based on the non-existent law, should not be considered. For clarity and fairness, the Appellant reminded the Court that as the Applicant in Application No. 31 of 2018 before the District Land and Housing Tribunal of Ilala, she had proven her loan repayments to the extent of the actual amount received, rather than the total sum originally borrowed. She maintained that she had never received the full amount requested in the loan and had instead been given a lesser sum, which she was still required to repay in full. She also refuted the Respondents' claim that she had made additional loan top-ups. Page 9 of 14 According to the Appellant, the trial Chairperson had failed to consider these discrepancies in the loan agreements, which resulted in an unjust judgment. Regarding the mortgagee's power of sale, she acknowledged that this power is lawful but argued that it must be exercised legally and not based on false information at the time of forming the loan agreement. She reiterated that any reasonable observer would conclude that the 1st Respondent had used misleading information to unlawfully claim properties placed as collateral. She also argued that the Court should end this alleged practice of seizing collateral unlawfully. In her conclusion, the Appellant requested that the Court allow her appeal with costs and quash the decision of the District Land and Housing Tribunal for Ilala in Application No. 31 of 2018, based on her arguments, cited laws, and case references. I have dispassionately considered the rival submissions in the light of the grounds of appeal. I have also keenly examined the trial Tribunal's records. The matter before this Court arises from an appeal filed by the Appellant challenging the decision of the District Land and Housing Tribunal for Ilala in Application No. 31 of 2018. In her submissions, the Appellant argues that the tribunal's judgment is marred by various errors, Page 10 of 14 particularly concerning loan repayments, discrepancies in loan agreements, and alleged misrepresentations by the 1st Respondent. The Appellant contends that these errors resulted in an unjust decision. Upon review, the Court has carefully considered the submissions by both parties, with the Respondents opposing the appeal, maintaining that the tribunal reached a fair decision after a thorough evaluation of the evidence. The Respondents argue that the Appellant's claims are unsupported, emphasizing that the Appellant failed to provide concrete proof of loan repayments. The following key issues arise for determination: 1. Whether the Appellant had satisfactorily proven her loan repayments as alleged. 2. Whether the 1st Respondent's exercise of mortgagee power of sale was lawful. 3. Whether the reference to an outdated provision by the Respondents' counsel has any bearing on the competency of the case. Issue 1: Proof of Loan Repayments The Appellant asserts that she repaid her loan in full and that discrepancies exist between the amounts borrowed and the actual sums received. She further alleges that she was consistently required to repay the total borrowed amount, rather than the amount actually given to her. Page 11 of 14 However, the Court notes that under Section 110 of the Evidence Act, Cap. 6 R.E. 2022, the burden of proof rests on the party asserting a fact. This principle is underscored in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, (supra) where the court held that "the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue." The Appellant, therefore, bore the responsibility to substantiate her claims regarding the discrepancy in loan amounts and to provide evidence of repayment. Her failure to present receipts, payment slips, or any other substantive evidence weakens her position. Accordingly, I find that the Appellant has not met the burden of proof to establish that she fully discharged her loan obligations or that discrepancies exist in the amounts loaned versus the amounts received. Coming to the second issue, the Respondents argue that the mortgagee's power of sale was validly exercised in this matter. Under Section 134 of the Land Act, Cap. 113 R.E. 2019, a mortgagee is empowered to sell mortgaged property upon default. In support of this, the Respondents cited Page 12 of 14 National Bank of Commerce v. Dar es Salaam Education and Office Stationery, (supra) This Court finds no credible evidence of corruption or collusion by the 1st Respondent in exercising the power of sale. The Appellant's claims of alleged misrepresentations by the 1st Respondent, unsupported by evidence, do not reach the threshold required to challenge the mortgagee's lawful exercise of sale. Thus, I see no basis to interfere with the 1st Respondent's mortgagee rights as upheld by the cited case law. On alleged reference to outdated provision by Respondents' Counsel, the Appellant argues that the Respondents' reliance on an outdated citation, specifically Section 110 of the Evidence Act, Cap. 6 R.E. 2019, renders the Respondents' submission incompetent. The Appellant references Awadhi Ibrahim Msuya v. Jamila Salehe Kiluwasha and Another, (supra), to contend that incorrect citation renders a matter incompetent. However, this principle applies when an incorrect citation leads to substantial injustice or confusion about the applicable legal principles. In the present case, the incorrect citation does not materially affect the substantive issues at hand or mislead the Court. The essence of Section Page 13 of 14 110 of the Evidence Act, regardless of the cited revision, remains unaltered in terms of the burden of proof principle. Therefore, this Court does not find the Respondents' incorrect citation sufficient to undermine the integrity of their argument or the outcome of the case. In the upshot, the appeal lacks merit and is hereby dismissed in its entirety. I make no orders as to costs. It is so ordered^. Ruling delivered this 28th day of October 2024 in the presence of the Appellant who has appeared in person, unrepresented and in the absence of the Respondents. j Ie.i. laltaika JUDGE 28/10/2024 s>.6r»'--- - 4- Page 14 of 14