Anitha Muhidini Mboya vs Joseph Nemes Makoi & Others (Civil Appeal No. 117 of 2021) [2026] TZCA 392 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. 3.A.. KENTE. J.A. And MWAMPASHI, J.A.) CIVIL APPEAL NO. 117 OF 2021 ANITHA MUHIDINI MBOYA ............................... . ....................... . APPELLANT VERSUS JOSEPH NEMES MAKOI .......... . ............................................. *S T RESPONDENT STANDARD CHARTED BANK TANZANIA LIMITED ................. 2 nd RESPONDENT YONO AUCTION MART & CO. LTD . ........................................3 rd RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar Es Salaam) ( Rwizile, J.) dated the 11th day of February, 2021 in Civil Case No. 95 of 2017 JUDGMENT OF THE COURT 13th November, 2025 & 10th April, 2026 LILA. J.A.: The central issue before the High Court (trial court) and in this appeal is a narrow one. It is, whether the appellant consented to the deposit, as security, a house on Plot No. 1289 Block B at Ubungo Kibangu with Certificate of Title No. 85482, matrimonial house (suit house), to secure a i loan that was advanced by the 2n d Respondent to the 1s t Respondent. The appellant had instituted a suit before the trial court challenging sale by auction of such house by the 3r d respondent on account of the 1s t respondent's failure to service the loan as was agreed in the loan agreement. The trial court found against the appellant, hence the present appeal. From the pleadings and evidence by witnesses for both sides, these facts were not disputed. That the appellant and the 1s t appellant are wife and husband having contracted their marriage since 2004 but solemnized it as a Christian marriage on 29.5.2010. That, the suit house was acquired during the subsistence of such marriage hence is a matrimonial property. That, the 1s t respondent secured a loan from the 2n d respondent and the suit house was pledged as collateral to secure the loan. That, there was breach of the terms and conditions of the loan agreement by the 1st respondent as he defaulted to pay back the loan to the 2n d respondent. That, to recover the loan amount, the 2n d respondent exercised her right under section 127 of the Land Act by issuing a statutory notice of default to the 1s t respondent and later engaged the 3r d respondent company to dispose of the suit house, which, on 18/11/2017, sold the suit house by public auction followed by an order for the 1s t respondent and his family to vacate from the house. This action triggered the institution of the suit by the appellant in the High Court alleging being not aware of the loan and having neither given her consent nor acknowledged the 1s t respondent's action to obtain the loan from the 2n d respondent and use the suit house as collateral. At the trial, Rajabu Sarumbo (DW1), the Relationship Manager with the 2n d respondent and the sole defence witness, explained that the appellant gave her spouse consent and had full knowledge of the existence of the loan facilities and he tendered in court, the two term loan facilities dated 11/5/2012 and the first deed of variation which were admitted and marked as exhibits D1 and D2 respectively which had the plaintiffs consent documents. On her side, the appellant (PW1) and 1s t respondent who testified as the appellant's witness (PW2) after the suit was dismissed by the trial court following the appellant's failure to serve him with the suit, refuted the respondent's assertions. The appellant disowned the signatures appearing in consent documents as not being hers as well as the photographs thereon and, like PW2, wondered how the same found their way on the documents which were with the 2n d respondent. For his part, PW2 claimed that he was not told by the 2n d respondent if it was the requirement precedent to produce a spouse consent or bring her to the bank 3 before being advanced the loan and he did not produce one. Both PW1 and PW2 urged the trial court to investigate on the matter that the consent documents were a forgery and they promised to offer the necessary cooperation. Upon an analysis of the evidence, the trial Judge found the appellant to have failed to prove her claims and dismissed the suit with costs. His finding was grounded on his finding after comparing the signatures of the appellant in terms of section 75(1) of the Evidence Act. His finding, as found on page 402 of the record of appeal was that: - "In my comparison , the disputed signatures in the documents iook very similar even though they were executed years after each other. I also compared the same signatures with the one that appears in the plaint signed by the plaintiff. There are similarities with the disputed ones. But still, I found a great variation between the disputed signature and that which appears in the marriage certificate (PI). This variation o f the compared signatures, confirms the statement by the plaintiff that she has two types o f signatures used in tandem." The learned trail Judge then concluded, at page 403 of the record of appeal, that: - 7 think, there is no reason to suppose that the two consents available in D1 and D2 were forged. I am also tempted to believe that if indeed the plaintiffdid not send the same to the bank , , then her husband did. There is therefore no evidence she was not aware o f the transactions. I do not see the possibility, in this case for DW1 who has been in constant business o f banking for about 14 years to move on his own, forge plaintiff's signature, crop her photos and attest the same before the lawyer, who also without question attests the same, then place it in the mortgage deed, bind the same, approve it in order to advance the loan to Joseph withoutJoseph's knowledge or his wife. This, in my view, does not appeal in the normal course o f doing things. It is also not true that the plaintiff was not aware o f the deal. To prove so, I have shown previously that the plaintifffailed to trace the address o f his husband for the purpose o f service, until the case against him was dismissed, that is when he surfaced. In his testimony, Joseph who testified for the plaintiff said he was not served with a summons by his wife because they were not in good terms and had relocated to Moshi. AH this, in my view, is not the truth..." The appellant was aggrieved and is before the Court vying to impugn the trial court's decision upon two grounds as reflected in the memorandum of appeal lodged in Court on 9/4/2021. They run thus: - ”1. That, the Trial Court erred in iaw upon making comparison o f the signatures o f the appellant itself despite the fact that it had detected great variations between the disputed signatures and that which appears on the marriage certificate. 2. That, the Trial Court erred in iaw and fact upon failing to evaluate the totality o f the evidence before it withjudicial objectivity but instead based its findings on the evidence adduced by the respondents only." The hearing of the appeal before the Court, proceeded in the appellant's absence as she did not enter appearance despite being notified- of the hearing date through publication in the Mwananchi Newspaper dated 21/10/2025 a copy of which was produced and formed part of the record of appeal. She had, however, under rule 106(7) of the Tanzania Court of Appeal Rules, 2009, (the Rules), lodged written submissions in support of the appeal which, in terms of rule 112(4) of the Rules, shall be considered in the 6 determination of this appeal. The 1s t respondent's absence was by operation of taw that he ought not to have been a party to this appeal as the suit against him was dismissed by the trial court, as stated above, for want of service on him under Order IX rule 5(1) of the Civil Procedure Code, Cap. 33 (R.E. 2002) only that, as the learned trial Judge noted, the pleadings were not thereafter amended to reflect so until the trial court's judgement was rendered. For the 2n d and 3r d respondents, Mr. Emanuel Daniel Saghan, learned Advocate appeared. In her written submissions, the appellants main contention in respect of both grounds which she opted to jointly submit on having realized that they raise the same issue, is that the trial Judge was that the learned trial Judge was in error to rely on his own comparison of the appellant's signatures without seeking opinion of handwriting experts. She cited the persuasive decisions in the Indian case of Bissewar Poddar vs Nabadwip Poddar and Another, AIR 1961 Cal 300 which was interpreting section 73(1) of the Indian Evidence Act which is in parimateria with our section 75(1) of the Evidence Act and cited by the Court in the case of Thabitha Muhondwa vs Mwango Ramadhani Maimbo and Another, Civil Appeal No. 28 of 2012 (unreported), that comparison is by its nature inconclusive and hazardous. She also relied on the commentary in the Book of SARKAR ON EVIDENCE 15th EDITION, 2004 at page 1166 that, it is not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. She beseeched the Court to follow the same course taken by the Court in its previous decision in the case of Khalife Mohamed Vs Aziz Khalife and Another, Civil Appeal No. 97 of 2018 (unreported) in which the Court accepted as being credible the evidence of a hand writing expert who examined the authenticity of the sale agreements. She relied on yet another case of Abinger Ltd vs Ashton [1873] 17 EQUITY 373-4 to support a point that, it is dangerous and unwise for the Judge to use his own eyes without the evidence of a hand writing expert. In conclusion, she was of the view that as the appellant disputed the signatures in exhibits D1 and D2 not to be hers, it was a non-direction for the learned trial Judge to hold as he did and that the Court is entitled to re-evaluate the evidence and make its own finding of fact as it did in the case of Deemay Daat and Another vs R [2005] TLR 132 and in Peters vs Sunday Post [1958] EA 429. 8 In response to the appellant's arguments in both the written reply submissions by Mr. Edward Nelson Mwakingwe, learned advocate, and arguments before the Court by Mr. Saghan, learned counsel for the 2n d and 3r d respondents, in essence, joined hands with the learned trial judge's finding and his invocation of the provisions of section 75(1) of the Evidence Act to personally compare the disputed signatures of the appellant with other admitted signatures so as to ascertain whether the signatures in the consent documents in exhibits D1 and D2 were of the appellant. The Court's decision in the case of Thabitha Muhondwa vs Mwango Ramadhani Maindo and Another (supra) which was also cited in Afriscan Group (T) Ltd vs Said Msangi, Commercial Case No. 87 of 2013 (unreported) to fortify the legal stance that, one of the methods of proving a signature of a person is by comparing it with his other signatures. In their further submissions, the 2n d and 3r d respondents contended that the appellant admitted during cross- examination that the signatures in exhibits D1 and D2 are the same as those in the plaint as reflected at page 225 of the record of appeal and that she had two different signatures which she uses interchangeably. That, the allegation of forgery of the consent documents in exhibits D1 and D2 having been raised by the appellant, she was duty bound to prove the same in terms of section 110 (1) and (2) of the Law of Evidence Act on the balance of probabilities which thing she failed to do citing the case of Mathias Erasto Manga vs Simon Group (T) Limited, Civil Appeal No. 43 of 2013 (unreported). Accordingly, they argued, following breach by the 1s t appellant to service the loan, the 2n d respondent is entitled to exercise the right of sale by public auction the suit house to recover the loan amount citing the case of General Tyre East Africa Ltd vs HSB Bank PLC [2006] TLR 60 to support the contention. From the appellant's submissions, it appears that the appellant is faulting the learned trial Judge for relying on his own comparison of the appellant's signatures to arrive at the conclusion that she prepared and signed the consent documents in exhibits D1 and D2 hence complying with the legal requirements under sections 114(l)(a) of the Land Act as amended by section 8(3) of the Mortgage Financing Act and section 59(1) of the Law of Marriage Act which emphasize on obtaining a spouse consent before creating a legal mortgage over a matrimonial property. According to the appellant, an expert opinion was required to assist the learned trial Judge to arrive at the conclusion he reached instead of relying on his own eyes alone. Conversely, the respondent is of the different view that, under section 75(1) of the evidence Act, the trial Judge is entitled to use his own eyes to compare 10 the signatures and make a conclusion without a need for an expert. The question then that arises for consideration and determination is whether or not the learned trial Judge was obliged to seek for expert opinion in order to ascertain if the signatures in the consent documents in exhibits D1 and D2 were of the appellant. We have examined the cases cited by the appellant. Apart from some of them being of a persuasive nature, others, read closely, are advisory by nature to the trial Judges. In neither of them, the Court explicitly stated that in the absence of an expert opinion, the findings made by a trial judge after invoking the provisions of section 75(1) of the Evidence would be ineffective. Instead, the expert opinions were taken to be of assistance to the trial Judge. A clear example is that in the case of S vs Palirama (supra) where the court treated it as the " prudent course to obtain the handwriting expert opinion and assistance o f an expert" In Khalife Mohamed vs Aziz Khalife and Another (supra), the Court was just considering the credibility of an expert (CW1) who had testified, hence whether or not to call an expert was not an issue before it. While we acknowledge the caution to the courts in the case of Abinger Ltd vs Aston (supra), that decision has only a persuasive affect in our jurisdiction as the law on expert opinion is well settled that courts are 11 not bound by expert opinions, but where there is one, a departure from it require reasons be stated (see a persuasive decision in Saidi Mwamwindi vs R [1972] HCD n. 212 cited by the Court with approval in the unreported case of Marwa Chacha Gekondo vs The Republic, Criminal Appeal No. 463 of 2020). And on this, we start by expounding the role of an expert opinion which is a creature of sections 47, 49 and 75 which provide for three different modes of identifying handwritings as were stated in the case of The D.P.P. vs Shida Manyama @ Seleman Mabuba, Criminal appeal No. 285 of 2012 (unreported) as being opinions of handwriting experts (s. 47), evidence of persons who are familiar with the writing of a person who is said to have written a particular writing (s. 49) and the third mode of proof being that provided under s. 75 which is relevant in the instant appeal, that is, comparison by the court of disputed writings with the admitted or proved writings or signatures of the person. The sections provide as follows: - " 47-When a court has to form an opinion upon a point o f foreign law, or o f science or art, or as to identity o fhandwriting or finger or other impressions, the opinion, upon that point o f persons (generally called experts) possessing special knowledge, skill, 12 experience or training in such foreign law, science or art or question as to identity o f handwriting or finger or other impressions are relevant facts. 49 - (1) When a court has to form an opinion regarding the person by whom\ any document was written or signed, the opinion o f any person acquainted with the handwriting o f the person by whom it is supposed to be written or signed that it was or was not written or signed by thatperson, is a relevant fact. (2) For the purposes of subsection (1) a person is said to be acquainted with the handwriting o f anotherperson when he has seen that person write, or when he has received documentspurporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or when, in the ordinary course o f business, documents purporting to be written by that person have been habitually submitted to him. 75-(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction o f the court to have been written or 13 made by thatperson, may be compared with the one which is to be proved, although that signature, writing or sea! has not been produced or proved for any other purpose. In the light of the quoted provisions, it is undisputable that; one, expert opinion is of essence in assisting the court to determine the originality of the disputed handwritings or signatures and two; that comparison of signatures by a trial judge or magistrate is one of the ways that can be invoked to ascertain the author of the disputed handwriting or signature. In the former case, the duty of a handwriting expert, as was explained in the case of Davie v. Edinburgh Magistrates, 1953 S.C. at page 40, cited with approval by the Court in the case of The D.P.P. vs Shida Manyama @ Seleman Mabuba (supra), is: "To furnish the court with the necessary scientific criteria for testing the accuracy o f their conclusion so as to enable the court to form its own independent judgment by the application o f these criteria to the facts proven in evidence." Then the Court went further to insist that: "It must be kept in mind that an expert is not a witness o f fact and as such his evidence is 14 really o f advisory character. It is not within his province to act as a judge, assessor orjury. His real function is put before the court aii materials, together with reasons which induced him to reach that conclusion. It is from this data, material, reasons, etc., that the court, though not an expert, may form its own judgment by its own observation o f those m aterials "(emphasis added) It becomes obvious therefore that, even if there be an expert opinion, the duty to ascertain whether or not the disputed signature is of the person alleged to have signed it tenuously rests on the court. By invoking the provisions of section 75(1) of the Evidence Act and applying his mind on the signatures placed before him to ascertain whether the signatures in the exhibits D1 and D2 were of the appellant without seeking for an expert opinion, the learned trial Judge committed no error and cannot therefore be faulted. We, hasten to hold that, similarly, his finding that the signatures in exhibits D1 and D2 were of the appellant was sound in law and the appellant therefore duly consented to the matrimonial house (the suit house) be mortgaged by the 1s t respondent (then 1s t defendant) to secure the loan. We now turn to the issue of burden of proof. In his judgment, the learned trial Judge, held that the appellant failed to discharge her duty of 15 proving her allegation. At the trial, the appellant denied the signatures in exhibits D1 and D2 to be hers and claimed that both the signatures and photographs were forged. Before the Court, it was argued by the appellant that it was upon the 2n d respondent to prove that signatures in exhibits D1 and D2 were her signatures by calling forensic experts as witnesses. The 2n d respondent was of a different view. Luckily, both parties acknowledged the law as stated under section 110(1) and (2) of the Evidence Act, that, he who alleges the existence of any material fact has to prove it and the standard of proof in civil cases is at the balance of probabilities (See Daniel Apael Urio vs Exim CT) Bank, Civil Appeal No. 185 of 2019 (unreported). We disagree with the appellant's contention for, if we are to agree with him, that will amount to improperly shifting the burden of proof to the 2n d respondent. The reason is that, the suit before the High Court was instituted by the appellant and it is in her pleadings that she disowned the signatures in exhibits D1 and D2. She as well, denied availing the 2n d respondent with her photographs which were affixed in the consent documents. The assertion of forgery came after the 2n d respondent had explained, in the 2n d and 3r d respondents'joint written statement of defence that the appellant duly signed the consent documents and attached them with her photographs. The fact that the assertion of forgery was pleaded by the appellant is evident in paragraph 3 16 of the appellant's reply to the joint written statement of defence found at page 121 of the record of appeal. In that paragraph, she categorically alleged that: - "3. That, the contents o f paragraph 4 o f the Defendants written statement o f defence are strictiy disputed, the P/aintiffstiii hold her position as stated at paragraph 6 and 7 o f the piaintiff's plaint What is stated at paragraphs 4.1 , 4.2, 4,3 o f the 2n d and J d defendants jointly written statement o f defence are manifestation o f bad game played by 1st and 2n d defendants respectively, all annexed documents involved in the event in issue at paragraphs 3 and 4 o f the 2n d and J d defendants' jointly written statement o f defence are forged one, the 2n dand 3rd Defendants will therefore put to strict proof." The burden to prove forgery could not be shifted to the 2n d respondent by the appellant. Since the allegation of forgery was raised/pleaded by the appellant, it was incumbent, in terms of section 110(1) and (2) of the Evidence Act, upon her to prove so evidentially. On the subject, we recall, for the benefit of the parties, that in the case of Paulina samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), the Court reproduced the passage from Sarkar’s Laws of 17 Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and P. C. Sarkar, published by Lexis Nexis as below: - '...the burden o f proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable o f proof It is ancient rule founded on consideration o fgood sense and should not be departed from without strong reason.. ..Until such burden is discharged the otherparty is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden . Until he arrives at such a conclusion\ he cannot proceed on the basis o f weakness o f the other party.... "(At page 1896) [Emphasis added] It is unfortunate, the record bears out, that the appellant did not discharge her legal duty to prove her assertion of forgery. Instead, she appears to even blame the trial court for not taking the initiative to engage handwriting experts. This view is definitely misplaced as the court, being a fountain of justice, cannot step into the shoes of either party in the case and assist it avail the court with material evidence either proving or disproving any allegation of fact. Any such attempt or purported act by the trial Judge 18 to so do, so as to establish any finding of fact, will expose the court to a critique of being biased and that will amount to an unfair trial resulting in a nullity decision. This complaint is, therefore, without basis and we dismiss it. Conversely, we are satisfied, upon our examination of the evidence on record and the judgment, that the evidence by both sides was duly evaluated and dutifully weighed by the learned trial judge before he arrived at the conclusions. The complaints in both grounds of appeal are therefore unmerited. Following our above deliberations, we should hasten to point out here that, we feel it expedient to record, as did the learned trial Judge, our disappointment with the conduct exhibited by the appellant and her husband (the 1s t respondent) for the former allegedly failing to effect service on the 1s t respondent, her husband only to resurface as her witness (PW2) after the case was dismissed by the court against him (1s t respondent). The reason advanced by the appellant and the 1s t respondent that their relationship was at the material time sour and were separated making it difficult for the appellant to trace the 1s t respondent, in the circumstances, was unacceptable and was definitely a deliberate and calculated move to disable the 2n d respondent to exercise the right of sale of the security so as to recover the 19 unpaid loan. It must be kept in mind that the banks are just custodian of moneys deposited by people (clients) and they survive out of the profit they earn after lending such money with interest. Unless the borrowed money is paid back with interest by clients, not only will the banks collapse but clients stand to suffer most. Mindful of this plain truth, in the case of The Private Agricultural Sector Support Trust and Another vs Kilimanjaro Cooperative Bank Limited, Civil Appeals nos. 171 and 172 of 2019 (unreported), the Court remarked that: - "The parameters o fa loan are pretty straightforward I f you borrow money, you must ultimately pay it back, in most cases with interest There is no shortcut../' Since in the present case, it is undisputed that the 1st respondent took out a loan facility from the 2n d respondent, that the suit house was used as collateral to secure the loan to which the appellant duly consented and that the 1s t respondent defaulted on the loan payment, then there is no justification for the court to restrain the 2n d respondent from exercising the right of sale of the suit house to realize the loan amount. We, accordingly, endorse the action taken by the 2n d respondent so as to realize the loan 20 amount. In the event the sale was completed, the appellant and her family have to give vacant possession to the lawful buyer instantly. In fine, the appeal fails and is dismissed with costs. DATED at DODOMA this 31s t day of March, 2026. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Judgment delivered this 10th day of April, 2026 via virtual Court in the presence of Mr. Evance Williams, learned counsel for the 2n d & 3r d respondents, Mr. Julias Kilimba, Court Clerk whereas in the absence of the appellant and 1s t respondent; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 21