IN THE HIGH COURT OF TANZANIA

MWANZA DISTICT REGISTRY

ATMWANZA
LAND APPEAL No. 10 OF 2020
(An appeal originating from the Decision of the District Land and Housing tribunal for
Geita at Geita in Application No. 47 of 2018)

NATIONAL MICROFINCE BANK PLC ---------------------------------- APPELLANT

VERSUS
DADU KIDENDEI ------------------------------------------------- 1 ST RESPONDENT
SHADIA SALEHE KANANI --------------------------------------- 2P RESPONDENT

JUDGMENT

24° September & 28° December, 2020

TIGANGA, l

Before the District Land and Housing Tribunal for Geita at Geita,

Dadu Kidendei sued the two Respondents Shadia Salehe Kanani and

National Microfinance Bank PLC @ NMB for an order for discharge of a

house in dispute from being a security for the loan obtained by the 1
respondent from the second Respondent. The trial tribunal granted the

application with costs.

That order aggrieved the appellant; who decided to appeal to this

court by filing five grounds of appeal namely that,

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1. The Honourable trial Chairperson erred in law and fact by her failure

to hold that there was enough evidence that the plot on which the

house was built was bought by the second respondent in her own

names as the sale agreement was tendered and admitted to that

effect.

2. That the Honourable trial Chairperson erred in law by her failure to

give value to an affidavit which was sworn by the second respondent

that she was not married any one.

3. That the Honourable trial Chairperson erred in law by holding that

the first and second respondents were husband and wife while there

was no evidence to that effect.

4. That the Honourable trial Chairperson erred in law by holding that

the suit premise was a matrimonial home while the same was

unfinished.

5. That the Honourable trial Chairperson erred in law by usurping

jurisdiction and holding that the mortgage and loan agreement were

both null and void.

The appellant prayers for the following orders;

 i. The decision of the District Land and Housing Tribunal be
e quashed and set aside.

ii. Costs of this appeal and those incurred by the appellant in the

trial tribunal be borne by the respondent.

iii. Any other relief and orders this honourable court may deem fit

and just to grant.

Hearing of the appeal was done orally, and during the hearing the

appellant was represented by Dr. George Mwaisondola, Advocate while the

1 respondent was represented by Mr. Ernest Makene, Advocate while the

2° respondent was not represented.

Submitting in support of the 1 and 2° grounds of appeal Dr.

Mwaisondola submitted that the plot in dispute was basically owned by the

second respondent Shadia Salehe Kanani and there is evidence for her

being the owner of the mortgaged the property in favour of the appellant.

The first respondent allegation that he did not give consent before

the suit house was mortgaged was not supported by any evidence. He also

submitted that there is no evidence that the said house was a matrimonial

house and neither was it proved that the suit premises belonged to him.

He submitted further that exhibit Dl proved that the owner of the plot was

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 the second respondent, and so was the evidence of PWl that the suit
0 premises was in the name of the second respondent.

He submitted further that section 114 (2) put responsibility on the

part of the Mortgagor to disclose his/her marital status and the mortgagee

will be taken to have discharged his duty if he will ascertain the marital

status. He submitted further that section 114 of the Land Act [Cap 113 R.E

2019] read together with Mortgage Financing Regulations, 2009 GN 355 of

2009. Regulation 4 shows the steps to be followed, which was to require

the applicant to declare by affidavit her marital status.

He submitted that in the case at hand the appellant demanded for

such a declaration and the second respondent actually declared her marital

status. He cited and relied on the decision of the Court Appeal in Hadija

Issah Arelary vs Tanzania Postal Bank, Civil Appeal No. 135 of 2017,

in which it was held that it is a duty of the mortgagor to disclose, his/her

marital status which he did in the affidavit taken by her in support of his

application for loan. As the land in dispute had no right of occupancy, the

ownership was proved by the sale agreement which was tendered as

exhibit and was in the name of the 2° respondent. There is also evidence
 as deposed in the affidavit that the 2° respondent had no husband.
o However the said affidavit was not accorded weight by the trial tribunal.

On the 3° ground, which is to the effect that the chairperson was

wrong to hold that the 1 and 2° respondents were husband and wife, the

1 respondent when he was called up to prove as to whether they were

husband and wife, he said they contracted a customary marriage, therefore

they had no marriage certificate, but instead, he tendered the birth

certificate of the children born out of that relationship. The counsel for the

appellant submitted that, birth certificate of children cannot be proof of

marriage. He advised this court not to condone the reasoning of the

learned chairperson as it will be opening a pandora's box which this court

will be not able to close in future.

Submitting in support of the fourth ground of appeal, the counsel for

the appellant submitted that, it was not correct for the trial chairperson to

hold that the house in dispute was a matrimonial home as the same is

short of qualities envisaged by section 112 (2) of the Land Act. The base of

his argument was that, as it was not a building in which husband and wife

ordinarily resides. He submitted that the house was unfinished when it was

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mortgaged and was not resided into by the husband and wife but by the

care taker. Therefore, it was not a matrimonial home.

The fifth ground is that, the chairperson usurped the jurisdiction by

holding that the mortgage and loan agreement were both null and void.

He submitted that the District Land and Housing Tribunal are

empowered to deal with land disputes only as per section 33 of the Land

Disputes Courts Act [Cap 216 R.E 2019]. In the case at hand the dispute

was on mortgage not on the loan agreement, as the loan agreement is

regulated by the Law of Contract Act. He prayed the appeal to be allowed

as prayed.

Replying to the submission in chief made by the counsel for the

appellant, Mr. Ernest Makene Advocate for the respondent, the submitted

that, the exhibit D1 was witnessed by the Shina leader who is not

recognised in the government structure, therefore it was signed before an

incompetent person at Kalifonia not at Buyaga Mbelele as alleged.

He submitted further that, the area written on a document and the

one on which parties are litigating, in this dispute are two different areas,

he submitted further that, the area of Buyaga Mbelele Kitongoji No. 589,

while that of Kalifonia is on Kitongoji No. 585, and therefore that the trial

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 court was correct when it held that, the claimed land is different from what
e was mortgaged.

On the second ground of appeal, it was, according to him proved

beyond reasonable doubt that the 2° respondent was his wife and

therefore failure of the 2° respondent to get spousal consent was against

the law.

He referred this court to statutory and dictionary meaning of

marriage by citing Blacks Law Dictionary on the term marriage both

insisting on the term voluntariness between the parties to it. According to

him, the certificate of birth was a result of the customary marriage. He

asked the court to give no weight of the sworn affidavit as it did not say in

its title and content that she had no husband.

He cited the case of Ignasio Mesina vs Willo Investment SPPL,

CAT - DSM in which it was held that the affidavit tainted with untruth is not

an affidavit at all worth a name. He submitted that, the affidavit

complained of was showing the marital status of two years back, that is

why the trial tribunal found it to be lies.

On 3'° ground of appeal which is that, the 1° respondent was not

aware of the fact that the second respondent took a loan. However even

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after discovery that she actually took a loan, the 1 respondent was ready

to pay but the appellant refused.

The counsel for the 1 respondent said that the appellant submitted

that the house was a matrimonial home but to the best of the evidence the

term used was a matrimonial house as opposed to a home. Last he said

the tribunal had jurisdiction to entertain the matter and give the order it

gave.

Dr. George Mwaisondola, Advocate submitted in rejoinder that, the

issue of location of the suit land was not raised at trial; it is therefore new

and asked the court to ignore it.

Regarding ground number 2 of appeal, he submitted that exhibit D2

had value and had to be taken into account, while in respect of ground No.

3 he asked the court to have a look at exhibit Pl which shows who are the

mother and father, but not necessarily that they must be married. While

with regard to ground 4 of the appeal, he submitted that the whole case

based on matrimonial home not a house. That marked the arguments by

the parties, hence this judgment.

Now from the evidence, there is no dispute that the 2° respondent

took a loan from the appellant, the evidence is also clear that she

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 mortgaged as a security for a loan, the house in dispute. It has also been
e proved that house was built on the unsurveyed plot which was purchased

by the 2° respondent.

Further to that, it is evident that the 2nd respondent took an affidavit

proving that she had no husband which facts assured the appellant that

there was no need of consent from any other person. It has also been

proved that, the 2"° respondent failed to pay the loan consequent of which

the appellant decided to proceed against the security.

It is the appellant's act to proceed against the security which

prompted the 1 respondent, who sued the appellant and the 2°

respondent.

The 1 respondent satisfied the trial District Land and Housing

Tribunal that the house in question was matrimonially owned and used,

and that it was mortgaged without the consent of the spouse, that is a

husband.

The record shows that, the 1 respondent sued the bank and the 2°

respondent, but the second respondent did not file written statement of

defence and did not even appear to defend the suit. Following her non
appearance and failure to file written statement of defence, the case

proceeded exparte against her.

That behaviour or somewhat a trend was also exhibited in this appeal

as besides being served with the appeal documents, yet the 2° respondent

did not appear. Following her non appearance and non filing the written

statement of defence before the trial tribunal, the evidence submitted

which is the affidavit affirmed by herself declaring her to be single and

unmarried, the sales agreement showing that she was the one who

purchased the land in exclusion of the 1 respondent, remain intact and

u ncontroverted.

It is true that the law requires where any disposition of land or any

interest therein involving a land which is owned by both husband and wife,

a party so disposing should have the consent sought and obtained from the

other spouse. That is according to section 114 of the Land Act [Cap 114

R.E 2019] as amended by section 8 (2) (3) of the Mortgage Financing

(Special Provisions) Act, 2008 requires a consent to be obtained.

However, while the mortgagee is duty bound to require the

mortgagor to disclose the information of spouse ship and marital status,

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the said law as amended requires the mortgagor to disclose the

information of the spouse and marital status.

As properly interpreted by the Court of Appeal in the case of Hadija

Issah Arelary vs Tanzania Postal Bank (supra) in which it was held

inter alia while citing the provision of section on 8 (2) (3) of the Mortgage

Financing Act (supra) that;

''It shall be the responsibility of the Mortgagor to disclose that

he has a spouse or not and upon such disclosure the
Mortgagee shall be under the responsibility to take reasonable
steps to verify whether the applicant for a mortgage has or
does not have spouse"

Regulation 4 (1) (c) of the Land (Mortgage) Regulations, 2005 which

read;

''If the applicant states that he or she is not married and the
mortgagee has reason to believe that the statement might be
incorrect the mortgagee may require the applicant to produce
an affidavit to the effect that the applicant is not married"

In this case there was a declaration by the 2° respondent that she

has no husband, in the absence of evidence from herself saying that she

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had a husband, there was no ground upon which the 1° respondent could

have been believed.

That being the case, I find the trial tribunal to have erred in its

holding that the 1 respondent was a husband of the 2° respondent and

therefore, the appellant was required to obtain his consent before the

mortgage had became valid. That said, I find the 1 2"° and 3'° grounds

of appeal to have merits they are upheld for the reason given.

Now having upheld the three grounds, I find the rest of the grounds

to have been also covered in the three grounds, consequently, the appeal

is allowed to its entirety, the decision of the District Land and Housing

Tribunal for Geita is reversed, and the orders thereto are set aside with

costs to be paid by the respondent.

It is so ordered.

DATED at MWANZA, this 28" day of December 2020

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J. C. TIGANGA
>
JUDGE
28/12/2020

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