IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB-REGISTRY OF MWANZA

AT MWANZA

LAND APPEAL NO. 47 OF 2022

(Originating from Application No. 446 of 2016 of the District Land and Housing Tribunal for Mwanza at
Mwanza)

ACCESS BANK TANZANIA LIMITED………………………………….…….APPELLANT

VERSUS
COLLENS BUTAMBALA…………………………………………………1ST RESPONDENT
LOLO INVESTMENT…………………………………………………….2ND RESPONDENT

JUDGMENT
23rd June & 08th September 2023

Kilekamajenga, J.

The first respondent filed application No. 446 of 2016 in the District Land and

Housing Tribunal at Mwanza against the appellant and the second respondent. In

the application, the first respondent sought redemption of his certificate of title

on Plot No. 189 Block M at Pasiansi which he deposited with the appellant as a

security for a loan facility of Tshs. 50,000,000/=. He also prayed for Tshs.

20,000,000/= as compensation and costs of the case. In his case, the first

respondent was backed up with the testimonies of two witnesses. Testifying for

the first respondent, PW1 (James Singu) knew the first respondent as his

neighbour who issued his title deed for Mr. Mollel’s secured loan. Mr. Mollel is

married to Clesencia Joseph Shayo who is also the sister-in-law of PW1. At some

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point, Mr. Mollel failed to service the loan and Clesencia offered her Toyota

Prado which was valued above Tshs. 40,000,000/= to cover the outstanding

loan. PW1 testified to have received the original registration card and

accompanied the first respondent to the appellant’s office where they met the

loan officer, Mr. Dioniz. They presented the car to the bank in writing. The

document evidencing the handing of the car to the bank was admitted as exhibit

1. He insisted that, they handed over the car to Mr. Dioniz under the agreement

that the first respondent will be discharged from the loan obligation. PW2

(Collens Butambala) testified to have known Lolo Investment being manned by

Losenyali Mollel. PW2 was the guarantor of the second respondent’s loan facility

of Tshs. 50,000,000/= from the appellant. The second respondent continued to

service the loan. He finally approached the bank with the view of clearing the

loan. Mr. Mollel’s wife (Clesencia Joseph Shayo) was willing to offer her Toyota

Prado with registration No. T259 CAQ to the appellant in order to clear the

remaining loan balance of Tshs. 12 Million. At that time, the second respondent

had already served the loan to the tune of Tshs. 51,789,081.59/=. According to

PW2, the car was valued at Tshs. 42,000,000/=. However, despite the handing

over the car, the appellant refused to discharge the title deed hence this case.

On the other hand, DW1 (Frolian Asenga) told the tribunal that, the first

respondent was the guarantor of the second respondent (Lolo Investment). The
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second respondent secured a loan of Tshs. 50,000,000/= from the appellant.

The loan was to be serviced within 18 months with an interest of Tshs.

14,958,129.47/= hence the second respondent was obliged to pay a total of

Tshs. 64,958,129.47/=. The second respondent paid 11 out of 18 instalments

and the loan ballooned to Tshs. 48,475,682.66/=. DW1 was not aware whether

Toyota Prado was handed over to Dioniz. DW2 cemented further that, the first

respondent guaranteed the second respondent for a loan from the appellant by

depositing a title deed number 48057.

The trial of the case led to the decision in favour of the first respondent hence

this appeal. The appellant coined five grounds to challenge the decision of the

trial tribunal thus:

1. That, the Honourable trial chairperson grossly erred in law by entertaining

the matter without having jurisdiction in terms of the subject matter.
2. That, the Honourable trial chairperson erred in law and in fact by ordering
the appellant to release with immediate effect the 1st respondent’s
certificate of title No. 48057 in respect of plot No. 189 Block ‘M’ Pasiansi,
Mwanza pledged as security to the appellant while the outstanding loan is
marked unpaid.
3. That, the Honourable trial chairperson erred in law and in fact to
exonerate the 1st respondent from his obligations of undertaking payment
of the outstanding loan amount by relying on exhibit P1 in which its
validity is questionable.

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 4. That, the Honourable trial chairperson grossly misdirected himself in law
and in fact for failure to analyse and evaluate properly the testimonies of
the appellant’s witnesses and documentary evidence.
5. That, the Honourable trial chairperson erred in law for failing to apply the
correct principles of law in awarding amount of TZS 15,000,000/= as
general damages hence the awarded amount is unreasonable and
unjustified.

Before this court, the appeal was argued by way of written submissions. When

addressing the first ground, the appellant’s counsel, Mr. Patrick Suluba Kinyerero,

was of the view that, the issue of jurisdiction may be raised at any stage of the

proceedings. He fortified his argument with the case of M/S Tanzania –China

Friendship Textile Co. Limited v. Our Lady of the Usambara Sisters

[2006] TLR 70; Mandavia v. Singh (1965) EA 118 and John v. R 18 EACA. In

addressing this point, the counsel referred to section 167(1) of the Land Act,

Cap. 113 RE 2019, Section 62 of the Village Land Act, Cap. 114 RE 2019 and

Section 3(1) of the Land Disputes Courts Act, Cap. 216, RE 2019. He further

submitted that, the dispute leading to this dispute is hinged on the release of

certificate of title on Plot No. 189 Block M at Pasiansi Mwanza which was pledged

as a security by the first respondent to the appellant in favour of the 2 nd

respondent’s loan facility of Tshs. 50,000,000/=. However, in this case, there is

no claim of right or interest over the mortgaged security but the dispute is on the

first respondent’s failure to fulfil the guarantor’s obligation. The case is purely
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based on the breach of terms of contract and not on ownership of land or

anything attached to land. In view of the case of Charles Rick Mulaki v.

William Jackson Magero, HC Civil Appeal No. 69 of 2017 and the reliefs

prayed by the first respondent, the dispute lacked the qualities of being

christened as a land matter to be determined by the District Land and Housing

Tribunal. The counsel stressed that, the dispute was a commercial transaction

and the trial tribunal was not clothed with jurisdiction to entertain the matter

hence the decision thereof was a nullity for want of jurisdiction.

The counsel simultaneously argued the second, third and fourth grounds by

assailing the decision of the trial tribunal which ordered the discharge of the

certificate of title whereas the outstanding loan remained unpaid. He further

blamed the trial tribunal for failing to analyse and evaluate the testimonies of the

appellant’s witnesses and documentary evidence. The testimony of DW1

portrayed how the second respondent paid 11 out of 18 instalments; failure to

pay even a single instalment amounts to breach of the loan agreement. He

supported the argument with the case of National Bank of Commerce

Limited v. Stephen Kyando T/A Asky Intertrade, Civil Appeal No. 162 of

2019 (unreported). The obligation of the guarantor is to ensure that the

borrower timely pays the loan and upon failure, the guarantor stands liable to

pay the loan. In this case, the first respondent was the guarantor of the loan
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advanced to the second respondent. Therefore, the first respondent cannot deny

liability in case of default. The exhibit D3 proved the existence of the unpaid

loan. The allegation that the first respondent surrendered a motor vehicle to the

appellant officer one Dioniz Mzee in order to clear the unpaid loan is

questionable. The surrender of the motor vehicle was not witnessed by the

branch manager and the appellant was not involved in that agreement.

On the fifth ground, the counsel assailed the trial tribunal for failing to apply the

correct principle of the law leading to the award of Tshs. 15,000,000/= as

general damages. In his view, there was no justification for awarding the stated

general damages; the first respondent was not entitled to the general damages

because the appellant was right in retaining the title deed.

On the other hand, the learned advovate, Mr. Melkizedeck Francis Gunda for the

first respondent argued that, since the cause of action is hinged on the discharge

of a third party mortgage entered between the appellant and the first respondent

in favour of the 2nd respondent, the trial tribunal was vested with jurisdiction to

try the case. He emphasised that the dispute was a land matter triable by the

tribunal as the mortgage intends to deprive the first respondent from the

possession of the land. In response to the second, third and fourth ground, the

counsel was emphatic that the first respondent surrendered the motor vehicle
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which the appellant took and sold it in order to settle the outstanding loan. He

further queried on the failure to summon Dioniz Mzee for the testimony in this

case who could prove or disprove on the validity of exhibit PE1. On the fifth

ground, the counsel referred the court to the case of Cooper Motor

Corporation LTD v. Moshi/Arusha Group Occupational Health Services

[1990] TLR 96 and further urged the court to step into the shoes of the trial

tribunal and grant justice.

In the rejoinder, the appellant’s counsel reiterated that the cause of action in this

case neither touches the issue of possession nor ownership rather on the claim

of certificate of title hence the dispute is not a land matter. When responding on

the second, third and fourth ground, the counsel insisted on the payment of the

full amount before the discharge of the title deed. The alleged motor vehicle was

not pledged as a security hence the appellant had no capacity to sell it to cover

the outstanding loan.

The determination of the instant appeal obliges this court to revisit the grounds

of appeal advanced and later argued by the parties. On the first ground, the

appellant impugned the decision arguing that the trial tribunal was not clothed

with jurisdiction to determine the dispute. In the view of the appellant’s counsel,

the dispute was not a land dispute to fall within the jurisdiction of the District
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Land and Housing Tribunal. It was a dispute on the recovery of title deed rather

than a land dispute. The appellant’s counsel invited the court on several

authorities proving that the matter was on breach of contract and not a land

dispute. Specifically, the counsel cited section 167 of the Land Act; section 62 of

the Village Land Act and section 3(1) of the Land Disputes Courts Act. On the

other hand, the respondents’ counsel vehemently objected this argument with a

view that the dispute was on a third party mortgage which, if not resolved, will

deprive the first respondent from ownership of the mortgaged property. In his

view, the dispute is purely a land dispute triable by the District Land and Housing

Tribunal.

I am aware, when jurisdiction comes into question, it may be raised at any stage

of the case even at appellate level because it is a matter of law. See, Babito

Limited vs Freight Africa NV-Belgium & 2 Others, Civil Appeal No. 355 of

2020; Richard Julius Rukambura vs Issack Ntwa Mwakanjila & Another

[2007] TLR 91; TRA vs. Kotra Company Ltd, Civil Appeal No. 12 of 2009 and

TRA vs. New Musoma Textile Ltd, Civil Appeal No. 93 of 2009. Also, in the

case of B.9532 CPL Edward Malima v. the Republic, Criminal Appeal No.

15 of 1989, CAT at Mwanza (unreported), the Court of Appeal stated that:

‘…we are satisfied that it is elementary law that an appellate court is duty
bound to take judicial notice of matters of law relevant to the case even if
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 such matters are not raised in the notice of appeal or in the memorandum
of appeal. This is so because such court is a court of law and not a court
of parties.’

In the instant case, I wish to recap the facts leading to the dispute. The first

respondent guaranteed the second respondent for a loan of Tshs. 50,000,000/=

from the appellant. As the guarantor, the first respondent deposited his title

deed on plot No. 189 Block M at Pasiansi within Mwanza city. However, the

second respondent defaulted; only 11 out of 18 instalments were paid. In an

effort to settle the loan, the first respondent approached somebody called

Clesensia who is the wife of the second respondent’s managing director. It is

alleged that, Clesensia agreed to surrender the registration certificate of a

vehicle (Toyota Prado) which could be sold and settle the loan. The first

respondent alleged to have handed over the vehicle to one Dioniz who was the

senior loan officer from the appellant. As there was an agreement to release the

title deed after the sale of the vehicle, the first respondent filed this case

claiming for the discharge of the title deed which is still held by the appellant

despite the handing over of the vehicle. In my view, the whole dispute revolves

around a mortgage; there is no mortgage without an attachment or association

with a real property (land).

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The District Land and Housing Tribunal is vested with jurisdiction to determine

disputes involving land. Specifically, I wish to refer to section 3(1) of the Land

Disputes Courts Act which provides that:

“3.-(1) Subject to section 167 of the Land Act and section 62 of the Village
Land Act, every dispute or complaint concerning land shall be
instituted in the Court having jurisdiction to determine land disputes in a
given area.”

Without citing section 167 (1) of the Land Act and section 62 of the Village Land

Act which do not directly provided relevant information in the case, in my view,

the claim for recovery of the title deed was obviously a claim founded on the

land. I cannot separate the claimed of title deed with the first respondent’s

landed property. I find the argument, that the trial tribunal lacked jurisdiction,

baseless.

On the second, third and fourth ground, the appellant is challenging the decision

of the trial tribunal for failing to evaluate the evidence. The appellant’s counsel

went further impugning the allegation that the loan was settled with the

reception of the vehicle. In the appellant’s view, the first respondent failed to

discharge the guarantor’s obligations. On the other hand, the respondents’

counsel believed, the sale of the vehicle settled the outstanding loan hence the

appellant was duty bound to discharge the title deed. On this point, I find no
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reason to revisit the above portrayed evidence because I have already done so.

The major contention is whether the outstanding loan was settled after the

presentation of the vehicle. The evidence at hand does not leave any doubt that

the loan was not paid to the fullest leading to the contested agreement between

the first respondent and the loan officer of the appellant. In his evidence, the

first respondent tendered what was believed to be a contract which settled the

outstanding loan by handing over the vehicle to the bank instead of paying the

remaining instalments.

The perusal of the record leads me to the hand written agreement for the

handing over of the vehicle. For the discussion, I wish to reproduce the contract

thus:

“27-06-2016

YAH: MAKABIDHIANO YA KADI YA GARI

MIMI JAMES SINGU NINAKABIDHI KADI HALISI YA GARI AINA YA PRADO NO. T
259 CAQ, MAKE TOYOTA MODEL NUMBER RZJ95 NDG DIONIZ MZEE AMBAYE NI
SME SENIOUR LOAN OFFICER BANK YA ACCESS TAWI LA MWANZA
NINAMKABIDHI KWA NIABA YA MMILIKI NDG CRESCENCIA JOSEPH SHAYO ILI
ABADILI TITLE HOLDER DETAILS, BANK IWEZE KULITAFUTA GARI HILO NA
KULIKAMATA ILI IWEZE KUUZWA KUFIDIA DENI LA LOLO INVESTMENT BAADA
YA KUBADILI TITLE HOLDER DETAILS ORIGINAL CARD ITAREJESHWA
MIKONONI MWA MMILIKI.

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SAHIHI YA MKABIDHI KADI SAHIHI YA SHAHIDI
JAMES SINGU COLLINS BUTAMBALA

SAHIHI YA MKABIDHIWA KADI

DIONIZ MZEE”

However, the hard look on the said document may trigger reservations. First,

whereas the loan agreement was typed, the contested addendum was hand

written. Second, whereas the loan agreement was endorsed by the appellant’s

branch manager, the contested contract was entered between the first

respondent and the so called Dioniz. Third, while the first respondent alleged to

have handed over the vehicle to Dioniz, the contents of the contract clearly

shows that, Dioniz was given the vehicle’s registration card with the view of

changing owner’s details and later arrest the vehicle for sale. Fourth, the

contested contract required the appellant to return the original registration card

after the change of owner’s details.

Therefore, according to contested contract, the first respondent never

surrendered any vehicle to the appellant nor Dioniz. What Dioniz might have

received, if any, was a registration card. Furthermore, it is not clear whether the

vehicle was ever arrested and sold to settle the outstanding loan. Even if it was

received by Dioniz, this agreement which intended to alter the loan agreement
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did not involve the appellant. The arrangements between the first appellant and

Dioniz without approval from the institution cannot bind the appellant. Moreover,

the new agreement contravened item 8.6 of the land agreement which required

any alteration to the loan agreement to be made in writing and be approved by

officers authorized by the appellant.

In my view, in case the first respondent was conned by Dioniz in their private

arrangements, the appellant cannot be held responsible. The appellant could not

have altered a loan agreement with such as flippant note. On this point, I find

the first respondent to have not proved his case hence I find no reason to draw

adverse inference against the appellant for failing to summon Dioniz. On this

major point, I find merit in the appeal and set aside the decision of the trial

tribunal. The second respondent should pay the outstanding loan balance or else

the guarantor should be held responsible including disposing-of the security to

settle the outstanding loan. The respondents should pay the costs of this case. It

is so ordered.

DATED at Mwanza this 08th day of September, 2023.

Ntemi N. Kilekamajenga
JUDGE
08/09/2023
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Court:

Judgment delivered this 8th September of 2023 in the presence of Ms. Happiness

Mwangoyi, learned advocate for the appellant and in absence of respondents.

Ntemi N. Kilekamajenga
JUDGE
08/09/2023

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