IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

(IRINGA DISTRICT REGISTRY)

AT IRINGA

CIVIL APPEAL NO. 08 OF 2021

[Originating from the Judgement and Orders o f the District Court o f Mufindi at Mafinga
before Hon. A. Ringo, Resident Magistrate in Civil Case No. 27 o f 2018]
MUSA MAKWETA MUSA..................................................................APPELLANT
VERSUS
FARAJA CREDIT FINANCE........................................................... RESPONDENT

JUDGEMENT

Date of last order: 24/08/2021

Date of Judgement: 28/10/2021

MLYAMBINA, 3.
In a nutshell, the Court in this appeal will restate the principle to be applied
in determining jurisdiction of the Court in matters involving both normal
contract of a civil in nature and mortgage contract relating to landed
property. The Judgement will proceed to cast light to the negative and
positive impact of the enforceability of the Written Laws (Miscellaneous
Amendment) (No. 3) Act No. 5 o f 2021 that amended the Land Disputes
Courts Act, Cap 216. In so doing, the Court will have to answer three
issues surrounding this appeal. One, whether the District Court of Mufindi
at Mafinga in Civil Case No. 27 o f 2018 had jurisdiction to entertain the
matter at hand. Two, whether there was valid contract between the
parties. Three, whether the herein Respondent (Plaintiff) proved their case
on the required standards during trial. The view point thereof is to answer
the following Appellants six ground of appeal:
One, the Trial Court erred in both law and fact by entertaining a case for
which it had no jurisdiction as the matter involved loaned agreement
secured by mortgage which was supposed to be entertained by Court of
competent jurisdiction to deal with land disputes.
Two, the Trial Court erred in law and fact by making a finding that there
was a valid contract between the Appellant and the Respondent basing on
mere statement by the Respondent that the Appellant had started to pay
part of the purported loan without proof of the same.
Three, the Trial Court erred in law and fact in finding that the Respondent
issued and the Appellant received an amount of TZs 5,000,000/= as a loan
without considering that the Respondent failed to prove how the said
money were issued to and received by the Appellant.
Four, the Trial Court erred both in law and fact as it interfered the freedom
of parties to contract in that; according to loan agreement, parties agreed
that; in case the borrower defaults the lender will resort to seize and sell
the collateral without seeking assistance of the Court, the remedy which

the Respondent never pursued.

Five, the Trial Court erred in law and fact when it made finding that there
was valid loan agreement basing on weak evidence of the Respondent and
ignoring strong evidence of the Appellant.
Six, the Trial Court erred both in law and fact in delivering Judgement in
the Respondent's favour as prayed in the Plaint without taking into
consideration that the Respondent never pursued remedy stipulated and
agreed in the loan agreement to wit seizing and selling the collateral before

instituting the suit in a Court of law.

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During the hearing, both parties were represented vide the legal services
of Mr. Gaspar Kalinga and Mr. Abraham Rupia learned Counsel

respectively.

The appeal was canvassed by the way of written submission. According to

the schedule, the Appellant was to file his submission in chief the latest on
7th September, 2021, the Respondent was to file reply submission by 21st
September, 2021 and rejoinder (if any) was to be filed by 28th September,
2021. It is noteworthy that the Respondent never filed her reply
submissions. This reminds me of the old adage; vigilantibus non
dormientibus jura subveniunt which roughly means, the law helps the
vigilant but not the sluggard. There was no explanation as to why the
Respondent never complied with the Court order.

The non- compliance of the Respondent to the Court order of filing the
written submission in reply is as good as non-appearance when the matter
was fixed for hearing by the Court. It was the wisdom of the Court of
Appeal of Tanzania in the case of Godfrey Kimbe v. Peter Ngonyani,
Civil Appeal No. 41 of 2014 at page 3 that:

We are taking this course because failure to lodge

written submission after being so ordered by the
Court, is tantamount to failure to prosecute or
defend one's case.

The same position was underscored in the case of Abisai Damson

Kidumba v. Anna N. Chamungu and 3 Others, Miscellaneous Land
Application No. 43 of 2020 District Registry of Mbeya at Mbeya

(unreported), in which the Court observed:

...The law is settled to the effect that a case shall face

dismissal for want o f prosecution if a party fails to file his
written submission on the date fixed by the Court...
Consequently\ under the circumstances, I dismiss the
applicant's application with costs for want o fprosecution.

The effect of noncomplying with the Court's order of filling written

submissions was earlier on stated in the case of NIC of Tanzania and
Consolidated Holding Corporation v. Shengana Ltd, Civil Application
No. 20 of 2007 (unreported), the Court of Appeal of Tanzania at Dar es

Salaam, whereby it was held:

The Ist applicant did not file submissions on due date as

ordered. Naturally the Court could not be made important
by a party's inaction. It had to act and it is trite law that
failure to file submissions is tantamount to failure to
prosecute one's case. In this case the supporting
submission was not in place, the Court.

The above being the case, failure of the Respondent to file her reply
submissions amount to her failure to defend her case without the notice on
the day fixed for hearing. The same position was stated in the case of
Patson Matonya v. The Registrar Industrial Court o f Tanzania &
Another, Civil Application No. 90 of 2011 (unreported).
Reverting to the matter under consideration, the Appellant argued the 2nd,
3rd and 5th grounds of appeal jointly; the 4th and 6th grounds of appeal
jointly and the 1st ground in its isolation.

With regards to the first ground of appeal, the Appellant argued that; it is
trite position of law that Magistrate's Court established by the Magistrates
Court Act, 1984 are barred from entertaining matters which are governed
by Land Act, 1999 [ R. E. 2019] and Village Land Act, 1999 [ R. E. 2019] as
expressly provided so under Section 4 (1) the Land Disputes Court Act Cap
216[R.E. 2019]. Section 4 (1) (supra) provides as follows:

Unless otherwise provided by the Land Act, 1999, no

Magistrate's Court established by the Magistrates
Courts Act, 1984 shall have Civil jurisdiction in any
matter under the Land Act,1999 and the Village
Land Act, 1999.
Further, the Appellant submitted that; the subject matter to this appeal
was originally entertained by Mufindi District Court established under
Magistrate's Courts Act, 1984. Thus, according to what was averred in the
Plaint and on the face of terms of the loan agreement which is Annexture
FCF1 to the Plaint and the same was admitted as exhibit PI. In view of the
Appellant, it is apparent that the subject matter of the suit is a matter
falling under the Land Act, Cap 113 [R.E. 2019].

Moreover, the Appellant argued that; under para 6 of the said Plaint, it is
alleged that; in order to secure the loan from the Defendant, the Appellant
pledged a Matrimonial House located at Plot No. 528 Block "M" Ihongole
within Mafinga Township, with Certificate of Right of Occupancy bearing
Title Number 25672, which was attached to the Plaint as annexture FCF2,
and was admitted as exhibit P2. In view of the Appellant, pursuant to the
loan agreement and a Title Deed deposited by the Appellant with the
Respondent, it is clear that; parties created both an informal mortgage and
lien by deposit of documents governed under the Land Act. The Appellant
cited Section 113 (5) (a) & (b) and (6) o f the Land Act Cap 113 [R.E 2019]

which provides that:

(5) Nothing in this section shall operate to prevent a

borrower from offering and a lender from accepting-
(a) a written and witnessed undertaking, the dear
intention o f which is to charge the borrower's land
with the repayment o f money or money's worth
obtained from the lender; or
(b) a deposit o f any o f the following-
(i) a certificate o f a granted right o f occupancy;
(i) N/A
(Hi) N/A
(iy) N/A
fv) N/A
(6) The arrangement specified in paragraph (a) o f
subsection (5) may be referred as an
"Informal mortgage" and a deposit o f documents
specified paragraph (b) o f subsection (5) shall be
 known and referred to as a "Hen by deposit o f
documents.
Furthermore, the Appellant argued that; specifically under clause 5, 6, 7,
10, 11 and 12 of the loan agreement, parties had clearly expressed their
intention to charge the Appellant's land with the repayment of money lent
by the Respondent. Again, Clause 8 of the loan agreement indicates that
the Respondent had kept with him original document of the secured
property. Therefore, the Appellant was of firm stand that; where subject
matter of a suit is a matter falling under the Land Act, District Courts are
precluded from entertaining such matter. To back up the position, the
Appellant cited the case of Abdul Rahim Shadhili as guardian of Miss
Fatuma A. R. Shadhili v. Mandhar Govind Raykar, Civil Appeal No

296 of 2004, (unreported) at page 17.

From the above Appellant's submission on the issue of jurisdiction, it must

be noted that, this being a first Appellate Court, the duty of this Court as
prescribed by Section 76 (2) o f the Civii Procedure Code, Cap 33 [R.E
2019] is to reconsider and re-evaluate the evidence in record and draw its
own conclusions taking into account and giving due allowance to the fact
that the trial Court had the advantage of seeing and hearing the witnesses
who testified before it. The dictate of Section 76 (2) (supra) is as follows:

Subject to any conditions and limitations prescribed

under subsection (1), the High Court shall have the
same powers and shall perform, as nearly as may be,
the same duties as are conferred and imposed by this
 Code on Courts o f original jurisdiction in respect o f
suits instituted therein.
With the afore guidelines in mind, and having considered the impugned
records and the Appellant's written submissions in chief, I find there is no
doubt that, the District Court had jurisdiction to entertain Civil Case No 27
o f 2018. The Respondent properly invited the trial Court to determine on
the matter of contract and not on the ownership or matter related to the
land as the Appellant claimed. From the Plaint, it is evident that the Plaintiff

prayed for the following relief (s):

(i) An order for the paymentof Tanzanian Shillings Seventy Four

Million One Hundred and Fifteen Thousand (TZs 74, 115,

000/=) only as per paragraph 3 above.

(ii) Payment of Tanzanian Shillings Fifty Million (TZs

50,000,000/=) only as general damages.

(iii) Interest on special claim above at the rate of 25 per annum

from filling date to the date of Judgement.

(iv) Interest on decretal sum at the Court's rate from the date of
Judgement to the days of fully satisfaction.

(v) Costs of the suit.

(vi) Any other relief (s) that the Courtmay deem just and equitable

to grant.

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It follows, therefore, that there is nowhere the Plaintiff had a prayer of
auctioning the mortgaged landed property. The suit was purely based on a
commercial transaction involving the loan contract.

Another point to note is that; the suit was named as civil case which
implies the Respondent herein (Plaintiff) intended it to be in normal civil
nature. It was not registered as a Land Case. This being the case, the
value claimed by the Respondent during the trial was within the jurisdiction
of the District Court as it is provided under Section 40 (2) o f the
Magistrates Court Act, Cap 11 [R.E. 2019] which states that:

(2) A District Court when held by a civil Magistrate

shall, in addition to the jurisdiction set out in
subsection (1), have and exercise originaljurisdiction
in proceedings o f a civil nature, other than any such
proceedings in respect of which jurisdiction is
conferred by written law exclusively on some other
Court or Courts, but (subject to any express
exception in any other law) such jurisdiction shall be
iimited-
(a) in proceedings for the recovery o f possession o f
immovable property, to proceedings in which the
value o f the property does not exceed three hundred
million shillings; and
(b) in other proceedings where the subject matter is
capable o f being estimated at a money value, to
 proceedings in which the value o f the subject matter
does not exceed two hundred million shillings.
Following the above letter of the law, the Court is of settled mind that the
District Court of Mufindi sitting at Mafinga had jurisdiction while
entertaining Civil Case No 27 o f 2018. The cited case of Abdul Rahim
Shadhili as guardian of Miss Fatuma A. R. Shadhili v. Mandhar
Govind Raykar {supra) is distinguishable to the case at hand because the
latter was talking about sell of landed property. It was not on enforcing
normal civil rights remedies. I will further elucidate this point. First, Section
167 o f the Land Act o f1999 [R. E. 2019] vests with exclusive jurisdiction to
the herein below Courts, to hear and determine all manner of disputes,
actions and proceedings concerning land. A dispute involving mortgage
transaction is one of such manner.

(a) The Court of Appeal of Tanzania.

(b) The High Court of Tanzania

(c) The District Land and Housing Tribunals

(d) Ward Tribunals

(e) Village Land Councils.

The Court is also of the findings that; interpretations of Section 167 (1) of
the Land Act, No. 4 o f 1999 [R.E 2019] and Section 33 (1) o f the Land
Disputes Courts Act No. 2 o f 2002 [R.E. 2019] will give the meaning o f a
land case to cover but not limited to:
(i) Dispute over ownership o f land in its strict sense as defined in
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 Section 2 o f the Land Act, No. 4 o f1999 [R.E. 2019].

(ii) Leases as covered under Part IX o f the Land Act, No. 4 o f 1999
[R.E. 2019].
(Hi) Mortgages and Security as Covered under Part X o f the Land
Act, No. 4 o f 1999 [R.E. 2019] and been amended from time to
time.
(iv) Easements and analogous rights as covered under Part XI of
the Land Act, No. 4 o f1999 [R.E. 2019].
In any event, mortgage matters can attract either commercial
litigation based on the contract itself or land litigation based on
disposal of the mortgaged landed property. The Court in that
circumstances has to apply the decisive controlling rule in
assessing whether it has jurisdictional powers to entertain such

matter.

I may expand further, when the Court is faced with an issue;

whether the sale o f the mortgaged land in issue is/was proper in
recovery o f the loan, then the Court must get satisfied on the
decisive controlling factor in that dispute. If the Plaintiff/ Applicant
wants to enforce mortgage rights, then the Land Courts as
established under Section 167 (i) o f the Land Act No. 4 o f 1999 (R.E.
2019) would be the proper Court to determine the dispute. In that
respect the decisive controlling aspect is a landed matter. The
herein below are my nine reasons to expound such position:

ii
One, Section 4 (1) the Land Disputes Court Act Cap 216 [R. E. 2019]
expressly prohibits Magistrate's Court established by the Magistrates Court
Act, 1984 from entertaining matters which are governed by Land Act, 1999
and Village Land Act, 1999.

Two, the Court is of views that; while determining jurisdictional point of

which Court is competent to adjudicate matters arising out of mortgage,
one must go back to the land policy tenets. The 1997 second version of the

National Land Policy re-emphasized that:

There is a need to have well established land disputes

settlement machinery. Therefore, existing quasi-judicial
bodies should be strengthened to deal with such disputes.
Such bodies shall start from Mabaraza ya wazee ya ardhi
to quasi-judicial bodies at the district, regional and
national level with appeal to High Court on point o f law
(See page 20 o f the revised policy).
Mortgage has never ceased to be a land matter capable of being dealt with
by land Courts as anticipated by the National Land Policy.
Three, with an exception of the Village Councils as per Section 7 (c) o f the
Land Disputes Courts Act, Cap 216 [R.E. 2019] and Ward Tribunals as per
Section 45 (4) read together with Section 46 o f the Written Laws
(Miscellaneous Amendment Act (No. 3) Act No. 5 o f 2021 that amended
Section 13 and repealed Section 15 and 16 respectively o f the Land
Disputes Courts Act, the District Land and Housing Tribunal have
jurisdiction to determine land disputes arising out of mortgage contracts.

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The current Section 13 o f the Land Disputes Courts Act (supra) provides:
Notwithstanding subsection (1), the District Land and
Housing Tribunal shall not hear any proceedings
affecting the title to or any interest in land unless the
Ward Tribunal has certified that it has failed to settle the

matter amicably;
Provided that, where the Ward Tribunal fails to
sett/e a land dispute within thirty days from the
date the matter was instituted, the aggrieved party
may proceed to institute the land dispute without
the certificate from the Ward Tribunal.
[Emphasis added].
A reading of the above Section 13 o f the Land Disputes Courts Act as
amended in 2021, will give a meaning that every dispute affecting title or
any interest thereon including mortgage cases must be referred to the

Ward Tribunal for amicable settlement.

It is the humble view of this Court that the word "any proceedings"
under Section 13 o f the Land Disputes Courts Act as amended in 2021
should be qualified or be given exceptions especially on inter alia registered
formal mortgages. In alternative, there are should be a specialized
mechanism of reconciliation on matters involving mortgages. I have seven

reasons:

(i) The Ward Tribunal System is not stable due to its set up. The
Members who forms composition are lay persons, mostly not

13
 trained in mortgage matters which are technical.
(ii) The intention of the legislature of reconciling parties to any
proceedings that affects title of lands and interests thereon will
not be achieved due to likelihood of flooding Ward Tribunals
with mushroom of cases. Indeed, if not closely supervised,
there are possibilities of reconciliation certificates to be issued
on unknown procedures as it sometimes happens in marriage

reconciliation bodies.
(iii) The tenure of Ward Tribunal members is periodic. Sometimes
their renewal takes time. If Section 13 (supra) is retained at a
mandatory tune that "any proceedings involving title or rights
on land must be initiated at Ward Tribunal for reconciliation",
the economy of the Country especially on registered formal
mortgaged properties is likely to be paralysed. There will be no
trial of mortgaged land disputes to the competent Land Courts
due to non-securing of reconciliation certificates occasioned by

lack of quorum.
(iv) The Land Disputes Courts amendment of 2021 does not tell on
whether land matters whose original jurisdiction lies to the
High Court should secure reconciliation certificates from the
Ward Tribunal or not. The law has assumed all land matters
originates from District Land and Housing Tribunals.
(v) Section 54 (4) of the Written Laws (Miscellaneous
Amendments) (No. 3) Act No. 5 o f 2021 amended Section 33
o f the Magistrates Courts Act, Cap 11 by adding immediately
 after subsection (3), the following:
(4) Notwithstanding the provisions of this section, an
advocate may appear or act for any party in a
primary Court presided over by a Resident

Magistrate.
However, appearance of Advocates before the Ward Tribunal is
still prohibited. The retained Section 18 (1) o f the Land
Disputes Courts Act, Cap 216 (R.E. 2019) read:
No advocate as such may appear and act for
any party before the Ward Tribunal.

Even if the new law would be amended by repealing Section 18

(1) (supra) and allow appearance of Advocates before the Ward
Tribunals, unlike the Primary Courts which are manned by
Resident Magistrates, the Ward Tribunals are not composed of
lawyers. As such, reconciliation on matters represented by
lawyers is likely to be mostly complicated, which may lead to its

failure and wastage of time.

(vi) The Ward Tribunals have no infrastructure. They are mostly
accommodated in Ward Executives buildings which are
relatively small. Subjecting all manner of land disputes to the
Ward Tribunals for settlement is likely to cause havoc especially

in Cities, Municipalities and Township.

(vii) Worse indeed, the mortgagee or any person who have an
interest in the mortgaged land will not be timely entitled to

15
 challenge auction of the landed property by the Lender till
he/she secures reconciliation certificate from the Ward
Tribunal. If the lender exercises her rights mal-scrupulously,

most of borrowers will be rendered homeless.

Needless, the afore negative repercussion, there are other positive
repercussion on the part of the Banks which includes ability of Banks to
recover their loans through auction without facing obstruction from
mushroom of interim injunctions issued by District Land and Housing
Tribunals. However, in return, Land Courts will be flooded with cases aimed
to restrain transfer of titles to the purchasers of mortgaged land.

Four, Part X o f the Land Act No. 4 of 1999 [R. E. 2019] covers Mortgage
and Security. The apparent stated scope and purpose of the Land Act No.4
of 1999 [R. E. 2019], in particular in its Part X which covers Mortgage and
Security, was to make the dispute involving sale of a mortgaged land to be
the land issue. As such, the decisive controlling factor is a land and not the
commercial aspect. It is a position here that, neither land nor advancement

of a loan in that aspect.

Five, Section 33-(l) o f the Land Disputes Courts Act No.2 o f 2002 (R. E.
2019) empowers District Land and Housing Tribunals to deal with all
matters arising out of the Land Act No.4 o f 1999 [R. E. 2019] including

matters arising out of mortgage transaction.

Sixth, the Land Act No. 4 o f 1999 [R. F. 2019] does not only cover formal
mortgages. It also covers informal mortgage under Section 113 (2) o f the
Land Act [R. F. 2019]. Section 117 (2) o f the Land Act (supra) goes further
16
to rank informal mortgage according to their date of creation. It provides:

Informal mortgages shall rank according to their order in

which they are made provided that where an informal
mortgage is registered under section 11 o f the
Registration o f Documents Act, it shall take priority over
the unregistered informal mortgage.
Seven, Land is the source of Commerce and not to the contrary. Principles
of Commerce has never laid down that Commerce is the source of land.
Indeed, land is deemed to be one of the four pillars of Tanzanian
development philosophy. The other three being; people, good policies and
good leadership. (See National Land Policy o f Tanzania, 1995). If Land is
the source of commerce as per the commercial principles and philosophy
and is the one pillar of our national development, then, any dispute
involving sale or trespass or any interference of a mortgaged landed
property shall be dissolved by the specialized Land and Housing Tribunals
and other Courts as established under Section 167 (1) o f the Land Act.

No. 4 o f1999 as amended.

If the decisive controlling factor in a loan disputes involving mortgaging of

a land shall be the loan itself, I'm compelled with my mind to observe that,
it will be overturning the basic Commercial principle and philosophy that
Land is the source of Commerce. The new Commercial principle and
philosophy will be Commerce is the source of Land. I understand that there
is no permanent position in this World, however, such overturn of
Commercial principle and philosophy will work at the peril of our people.

17
Eight, there has never been any amendment to Section 33-(l) o f the Act
No.2 [R.E. 2019] which disentitles the District Land and Housing Tribunal
with exclusive jurisdiction in all proceedings under the Land Act, 1999 and
in all such other proceedings relating to land under any written law.

Nine, the question whether Land Tribunals have jurisdiction to adjudicate

dispute over matters arising out of a loan facility involving mortgage of a
landed property has been settled by the Court of Appeal of Tanzania. In
the case of Olam Tanzania Limited, Property International,
National Housing Corporation and Faraji Rukwanja v. Selemani,
Baraka Nkondola, Chihako M. Saidi, Joseph Mpanda and T.E.D
Lindi Town Council, Consolidated Civil Revisions No.2, 3, 4, 5, and 6 of
2010, Court of Appeal of Tanzania full bench (Mbarouk J.A, Bwana J.A and
Massati J.A, as they then were) at Mtwara (un-reported) the Court made a
settled position in its ruling dated 6th and 12thOctober, 2010 at page 15-18.

At page 16 the Court held:

So with respect, if by "registered land" the learned judge

was referring to the mortgaged land, the District Land and
Housing Tribunal has jurisdiction to handle mortgage
(subject to its pecuniary limits) and that is the kind o f
dispute that falls squarely within section 33 (1) (a) o f the
Land Disputes Courts Act, because it is a dispute under
the Land Act. And since we do not see how else the
learned judge brought up the application of the Land
Registration Act (Cap 334- R.E.2002) in the scene and
18
 since none of the provisions of the statutes she cited
specifically bars District Land and Housing Tribunals from
taking cognizance of disputes over registered land, and
since the subject matter in the present application are
disputes under the Land Act, we think the learned judge
misapplied those provisions and came to the wrong
conclusions... [Emphasis added].

The afore said, I will proceed to determine the 1st, 3rd and 5th grounds of
appeal. The Appellant generally faults the trial Court for reaching its
decision in favour of the Respondent despite the fact that the Respondent
failed to prove his case at the required standard. He informed this Court
that; the trial Court was in default when it observed that there was a valid
contract between the parties by relying on the mere statement of the
Respondent that the Appellant had already started to perform the contract
by paying TZs 635,000/= the facts which were not proved by any
document to evidence receipt of the said amount. Thus, the trial Magistrate
shifted the burden to the Appellant when she said at page 5 of the
Judgement "the Appellant did not dispute this piece o f evidence during

Plaintiffs' case" as he failed to cross examine for the same.

The Appellant insisted that; it is a trite position of law, if the Plaintiff fails to
prove his case to the required standard, the said case automatically will fail
without a need to call the Defendant to defend it. The Appellant cited the
case of The Registered Trustees of joy in The Harvest v. Hamza K.
Sungura, Civil Appeal No 149 of 2017, (unreported) at page 18.

19
Also, the Appellant faulted the trial Court when it observed and concluded
that; the Respondent issued and the Appellant received the loan money
amounting to TZs. 65,000,000/= without prove on the modus how the said
money was given to the Appellant. It was the Appellant's considered view
that; in the trial Court, the Respondent failed to prove the case at the
required standard of proof in civil litigations, as it is obvious that the
burden of proof lies on a person who positively asserts existence of certain

facts.

On the issue of standard of proof, all lawyers know that the standard of
proving civil case is on the balance of probability or on balance of
preponderance. However, that standard does not waive the duty of the one
who alleges to prove as per Section 110 (1) o f the Evidence Act (supra)

which states that:

Whoever desires any Court to give Judgement as to

any legal right or liability dependent on the existence
o f facts which he asserts must prove that those facts
exist.
The afore stated implies that even in civil cases someone should not rely
on the weakness of other for him to secure verdict in his or her favour.
However, in the case before the Court, even if the evidence of the
Appellant was weak, the evidence of the Respondent was untrustworthy to
the extent of not been depended upon as it was said in the case of
Browne v. Dunn (1893) 6 R. 67 HL in which it was held that:

20
 a decision of not to close examine at all or a
particular point is tantamount to an acceptance of
the unchallenged evidence as accurate unless the
testimony o f the witness is incredible or there has
been a dear prior notice o f the intention to impeach
the relevant testimony. [Emphasis added]

The afore being the case, I agree with the Appellant that the Respondent
did not prove his case to the required standard so as to secure victory at
the trial. The victory achieved was questionable in the eyes of law and
evidences. It was a spurious evidence legally incapable of proving the

claims on balance of preponderance.

As regards the 4th and 6th grounds of appeal, the Appellant faults the trial
Court for interfering the freedom of parties to contract. It is common
knowledge that parties to the contract are bound by the terms of their
contract. The Appellant cited the case of Unilever Tanzania Ltd v.
Benedict Mkasa trading as BEMA Enterprises, Civil Appeal No 41 of
2009 (unreported) Philipo Joseph Lukonde v. Faraji Ally Said, Civil
Appeal No 74 of 2019 (unreported), Simon Kichele Chaha v. Aveline M.
Kilawe, Civil Appeal No 160 of 2018 (unreported) and Lulu Victor
Kayombo v. Oceanic Bay Lim ited and Mchinga Bay Limited,
Consolidated Civil Appeal No 22 and 155 of 2020 (unreported).

The Appellant insisted that; pursuant to the terms of clause 6 of loan

agreement it is apparent that in securing the loan the Appellant mortgaged
matrimonial house. According to terms of clause 7 and 11 of the loan
21
agreement parties had agreed that in case the Appellant defaults to repay
the debt, the Respondent shall have right to sale the mortgaged property.
As such, upon failure by the Appellant to repay the loan, the Respondent
was entitled to enforce parties' agreement in particular selling of the
mortgaged house.

Moreover, it was the Appellant's considered view the trial Court ought to
have enforced what the parties' agreed by ordering them to stick to what
they had freely agreed, particularly the order that the Respondent had to
recover her money by selling the mortgaged property upon failure by the
Appellant to repay the loaned money agreed in the loan agreement. To
bolster up the argument, the Appellant cited the case of Lulu Victor
Kayombo v. Oceanic Bay Limited and Mchinga Bay Limited, {supra)
at pages 11-12.

The Appellant, therefore, prayed for this appeal be allowed with cost, the
decision, Judgement and all consequent orders of the trial Court be

reversed.

At this juncture, I find the root of the case is; whether there was a loan
contract between the parties. It was the verdict of the trial Magistrate that;
there was valid contract between the parties as per Section 10 o f the Law
o f Contract Act, Cap 345 [R.E. 2019]. With due respect, there is a big
doubt if real there was a valid contract between the parties in relation to
TZs 65,000,000/=. This is due to the following reasons:

22
First, the contract which was submitted and admitted in the trial Court was
neither original nor certified to be the true copy of the original, thus its
authenticity is questionable. Even the signature and thumb print of the
spouse of the Appellant are not original as the trial Magistrate claimed at
page 5 of her Judgement. This was contrary to the provisions of Section 65
o f the Evidence Act, Cap 6 [R. E. 2019].

Second, there is no any evidence which show that the Appellant signified
his acceptance by starting to pay the purported loan of TZs 65,000,000/=.
This is due to the fact that; the trial Magistrate insisted the same by mere
words without backup of any piece of evidence which state that at certain
date the Appellant paid TZs 635,000/= as part of his purported loan. In
real sense, this Court is not made aware as to why it was observed so by
the trial Magistrate. Even there is no any evidence to prove that the
Respondent deposited TZs; 65,000,000/= to the account of the Appellant

at certain time.

The Court is of observation that; since the Appellant was the normal client
of the Respondent, the latter took advantage of the enough information
she had relating to the Appellant's former loans transactions. There is no
good reason to tell as to why all documents tendered before the Court
were not original but uncertified copies. There is no good tell as to why the
crisis started when the Appellant demanded his Certificate of Title which
was deposited as security to his certain loan.

Therefore, it is the observation of this Court that, there is no trite evidence

to prove that the Appellant and the Respondent had a valid loan
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agreement of TZs 65,000,000/= as purported by the Respondent. Hence,
the whole case before the trial Court was devoid of merits as against the

Appellant herein.

In view of the above findings, the Court do hereby allow the appeal in its

entirety with costs as prayed.

COURT
Judgement pronounced and dated 28th October, 2021 before Counsel
Gaspar Kalinga and Miniva Nyakunga for the Appellant and in the absence

of the Respondent.

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