I & M Bank (T) Limited & Yono Auction Mart & Co. Limited vs Jyotika Dilesh Solanki & Others (Civil Appeal No. 209 of 2024) [2025] TZCA 1286 (15 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA, J.A., MASHAKA. 3.A.. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 209 OF 2024 I&M BANK (T) LIMITED ................................................ FIRST APPELLANT YONO AUCTION MART & CO. LIMITED.......................SECOND APPELLANT VERSUS JYOTIKA DILESH SOLANKI ......................................... FIRST RESPONDENT ILA YOGESH........................................................... SECOND RESPONDENT BHAVINI RAVI SOLANKI........................................... THIRD RESPONDENT BHAVINI RAJEN SOLANKI.......................................FOURTH RESPONDENT DILESH KUMAR VITHALDAS SOLANKI ........................ FIFTH RESPONDENT YOGESH AMRATLAL KANJI.........................................SIXTH RESPONDENT RAJEN VITHALDAS SOLANKI ................................. SEVENTH RESPONDENT RAVI VITHALDAS SOLANKI ..................................... EIGHTH RESPONDENT KISHEN ENTERPRISES LIMITED................................NINTH RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Manao. J.’ l dated the 9th day of September 2022 in Land Case No. 41 of 2019 JUDGMENT OF THE COURT 3rd & 15th December, 2025 NDIKA. 3.A.: I&M Bank (T) Limited and Yono Auction Mart & Co. Limited, the first and second appellants respectively, contest the judgment of the High Court of Tanzania, Land Division at Dar es Salaam rendered on 9th i September 2022 in Land Case No. 41 of 2019, which was in favour of the Jyotika Dilesh Solanki, Ila Yogesh, Bhavini Ravi Solanki and Bhavini Rajen Solanki, the first, second, third and fourth respondents respectively. In February 2013, the first appellant extended to Kishen Enterprises Limited, the ninth respondent, an overdraft facility amounting to TZS 3,875,000,000.00 as well as USD 1,353,750.00. The facility was subsequently secured by mortgages over five properties, including a landed property registered under CT No. 18178/19, Plot No. 930, Upanga, Dar es Salaam (the "Upanga property"). The mortgage deed, dated 19th February 2013, was executed by the ninth respondent in conjunction with four siblings, namely, Dilesh Kumar Vithaldas Solanki, Yogesh Amratlal Kanji, Rajen Vithaldas Solanki, and Ravi Vithaldas Solanki, who are the fifth, sixth, seventh, and eighth respondents, respectively. The siblings jointly owned the properties. As joint mortgagors, they each submitted a declaration dated 8th May 2014 to the first appellant, affirming that spousal consent was not necessary for the mortgage, as the properties in question were not matrimonial properties. The first appellant commenced a loan recovery process after the ninth respondent's failure to fulfil its repayment obligations. At that point, the first, second, third, and fourth respondents filed Land Case No. 41 of 2019 in the High Court of Tanzania, Land Division, from which this appeal 2 originates. They initiated legal action against the appellants and the remaining respondents, asserting that they were married to the fifth, sixth, seventh, and eighth respondents respectively, that the mortgaged properties constituted jointly owned matrimonial properties, and that these assets were unlawfully mortgaged without their assent as spouses. They pursued the annulment of the mortgages. For its part, the first appellant contested the claim, asserting that the mortgaged properties were not jointly owned by the first, second, third, and fourth respondents and their purported spouses, nor were they considered matrimonial properties. Conversely, the fifth, sixth, seventh, and eighth respondents acknowledged the claim without any hesitation. They particularly acknowledged that the securities were jointly owned matrimonial properties, and that the assent of their spouses was necessary but not obtained. While the lawsuit was still ongoing, four of the five mortgaged properties were sold. The sole remaining mortgaged property was the Upanga property. Consequently, the matter at the trial was confined to the question of whether spousal assent was necessary for the mortgage over the Upanga property. For their part, the first, second, third, and fourth respondents testified that they were married to the fifth, sixth, seventh, and eighth respondents respectively, and that the Upanga property, where all four families have resided since 2007, was their jointly owned matrimonial home. They claimed that the property was unlawfully mortgaged without their assent. The first appellant fielded its Loan Recovery Manager, Ms. Mwanahamisi Mohamed Pazi, as its sole witness. She stated that the Upanga property is not a matrimonial home. When the mortgage deed for that property was executed, the fifth, sixth, seventh, and eighth respondents submitted declarations (exhibit D2) asserting that spousal consent was not necessary for its execution because the property was not a matrimonial home. In their evidence, the fifth and seventh respondents acknowledged that they mortgaged the property without obtaining their spouses' consent. They did not contest that, while acquiring the property, they obtained a loan from the first appellant, utilising the property as collateral. They consistently asserted that the property was used as a residence for their respective families, a fact confirmed by Ms. Rukia Abdallah, a local official of Kibasila Street. 4 In her judgment, the learned trial judge found it established that the third and fourth respondents were, respectively, married to the seventh and eighth respondents, but that there was no evidence to support the alleged marriages of the first and second respondents to the fifth and sixth respondents, respectively. On that basis, she swiftly rejected the claims made by the first and second respondents. In doing so, she also considered that their purported spouses (the fifth and sixth respondents) had submitted to the first appellant valid declarations indicating that the property in question did not require spousal assent for the mortgage. Citing Hadija Issa Arerary v. Tanzania Postal Bank [2020] TZCA 217, she held that the declarations submitted by the fifth and sixth respondents asserting that spousal consent was unnecessary constituted sufficient evidence to establish their marital status as mortgagors. Admittedly, the impugned judgment is somewhat unclear concerning the assessment of the claim asserted by the third and fourth respondents. We understood the learned trial judge to have determined that the declarations made by the seventh and eighth respondents were insufficient due to the absence of the rubber stamp of the Commissioner for Oaths who administered them. These declarations were unlike those made by the fifth and sixth respondents, which she deemed complete and 5 valid. Based on this reasoning, she concluded that the declarations were invalid, implying that the mortgage concerning the Upanga property was executed by the seventh and eighth respondents without the consent of the third and fourth respondents. Ultimately, she voided the mortgage and directed the discharge of the property to safeguard the rights and interests of the third and fourth respondents. The appellants challenge the foregoing decision on four grounds of appeal, which can be succinctly summarised as the assertion that the trial court erred in law in deciding that the declarations made by the seventh and eighth respondents were invalid due to the absence of the official stamp of the attesting Commissioner for Oaths. It is common ground that the Upanga property constituted the residence of the families of, among others, the third and fourth respondents and their respective husbands. Quite understandably, it was not disputed that for all intents and purposes, the said property constituted a matrimonial home. It is, therefore, pertinent that we quote section 118 of the Land Act, Cap. 113 R.E. 2023 ("the Land Act") regulating mortgages of matrimonial homes: "118.-(1) A mortgage o f a matrimonial home including a customary mortgage o f a matrimonial home shall be valid only if- (a) any document or form used in applying for such a mortgage is signed by, or there is evidence from the document that it has been assented to by the mortgagor and the spouse or spouses of the mortgagor living in that matrimonial home; or (b) any document or form used to grant the mortgage is signed by or there is evidence that it has been assented to by the mortgagor and the spouse or spouses living in that matrimonial home. (2) For the purpose o f subsection (1), it shall be the responsibility of a 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 a spouse. (3) A mortgagee shall be deemed to have discharged the responsibility for ascertaining the marital status o f the applicant and any spouse identified by the applicant if, by an affidavit or written and witnessed document, the applicant declares that there were (sic) spouse or any other third party holding interest in the mortgaged land." [Emphasis added] In accordance with section 118 (1) (a) and (b) above, a mortgage over a matrimonial home shall only be valid if the mortgagor and their spouses residing in the property have executed the appropriate application form or mortgage document to signify their consent to the mortgage. While subsection (2) above assigns the responsibility to the mortgagor to disclose whether he has a spouse and mandates that the mortgagee take reasonable measures to verify the applicant's marital status, subsection (3) delineates the procedure by which the mortgagee may fulfil his obligation to confirm the intended mortgagor's marital status. If the applicant provides an affidavit or a written, duly witnessed document stating either the existence or absence of a spouse or other third-party holding an interest in the mortgaged land, the mortgagee is relieved from the obligation of verifying the applicant's marital status and any spouse identified by the applicant - refer, for example, to Hadija Issa Arerary {supra). In the present case, in addition to the declarations submitted to the first appellant by the fifth and sixth respondents, which the High Court found to be valid, the seventh and eighth respondents submitted two declarations that the High Court invalidated on the ground that they 8 lacked the official rubber stamp of the attesting Commissioner for Oaths, Mr. Magusu Mugoka. Submitting on the matter before the Court, Mr. Godwin Nyaisa, the erudite counsel for the appellants, contended that the two unstamped declarations satisfied the requirements set forth in sections 10 and 11 of the Oaths and Statutory Declarations Act, Cap. 34 R.E. 2019 ("the Oaths and Statutory Declarations Act"), as well as section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12 R.E. 2019 ("the Notaries Public and Commissioners for Oaths Act"). Given that the attesting officer included his name and signature and specified the location and date of each declaration, both declarations remain valid despite the absence of a rubber stamp. He cited Felix Francis Mkosamali v. Jamal A. Tamim [2013] TZCA 280 to support the proposition that an attesting officer's rubber seal does not constitute a component of the jurat of attestation. Mr. Imam Daffa, learned counsel representing the respondents, vigorously opposed the appeal. His argument was primarily that the two declarations in question are not only invalid due to the absence of the attesting officer's official stamp but also inconsequential because, in terms of their content, they do not constitute declarations regarding the marital status of the makers in accordance with section 118 (3) of the Land Act. 9 He further argued that the affidavits in question do not specify within the jurat of attestation the location where they were executed. Addressing the applicability of Felix Francis Mkosamali {supra) cited by Mr. Nyaisa, Mr. Daffa argued that the case is distinguishable from the present matter because it involved the omission of the attesting officer's name in the jurat of attestation, despite the officer's embossed rubber stamp being present. He then questioned as to why the appellants did not present the attesting officer as their witness to support their cause. All four declarations in this matter affirm that they were executed on 8th May 2014 in accordance with the provisions of the Oaths and Statutory Declarations Act. Section 10 of that Act mandates that all declarations under it be executed in the form specified by the schedule to that Act. As correctly submitted by Mr. Nyaisa, the prescribed form mandates that the declarant affix his signature in the presence of the attesting officer, who must then sign, indicate his qualification, and provide his address. We believe that the above provision should be interpreted in conjunction with section 8 of the Notaries Public and Commissioners for Oaths Act, which, prior to its amendment in 2016 through section 47 of Act No. 4 of 2016, stipulated that: 10 "Every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat o f attestation at what place and on what date the oath or affidavit is taken or made." In addition to the requirements specified in section 10 of the Oaths and Statutory Declarations Act, each declaration, at the material time, was required to include in the jurat of attestation the name of the location and the date on which it was executed. Although we acknowledge the commendable practice of affixing rubber stamps to affidavits or statutory declarations for authentication purposes, we are compelled to adhere to the stance previously articulated in Felix Francis Mkosamali {supra). In that case, following D.P. Shapriya & Co. Ltd v. Bish International BV [2002] E.A. 47, which was cited in Wilfred Muganyizi Rwakatare v. Hamis Sued Kagasheki & Another [2009] TZCA 62, we concluded that a rubber stamp of the attesting officer is not a statutory component of the jurat of attestation. We recall that Mr. Daffa attempted to differentiate Felix Francis Mkosamali {supra) on the ground that it solely involved the omission of the attesting officer's name in the jurat of attestation. With all due respect, we find ourselves in disagreement. We believe that decision is an impeccable authority for the principle that the attesting officer's rubber li stamp is not an indispensable component of the jurat of attestation, implying that its omission from a declaration under the Oaths and Statutory Declarations Act is not necessarily fatal. On this basis, we are convinced that the learned trial judge erred significantly in holding that the two challenged declarations were invalid due to the lack of an affixed rubber stamp by the attesting officer. We should emphasise here that, contrary to Mr. Daffa's assertion, the disputed declarations include in the jurat of attestation not only the name of the place and the date of execution but also the signature of the declarant, as well as the signature, qualification, and address of the attesting officer. We now address Mr. Daffa's contention that the contested declarations were hollow, as their substance did not constitute declarations regarding the marital status of the declarants in accordance with section 118 (3) of the Land Act. As previously stated, under section 118 (3) of the Land Act, the mortgagee may fulfil their obligation to verify the marital status of the prospective mortgagor and any spouse identified if, through an affidavit or a written and witnessed document, the applicant declares the existence of a spouse or any other third party holding an interest in the mortgaged land. The documents submitted by the four siblings to the first appellant were designated as "statutory declarations," but in substance, they were 12 equivalent to affidavits or written and attested statements. The declarations made under oath or affirmation regarding the declarants' marital status complied fully with the letter and spirit of section 118 (3) of the Land Act. As previously indicated, Mr. Daffa argued that the declarations were superficial, merely affirming that "no spousal consent is required as the property does not constitute matrimonial property." That through such declarations, the declarants did not reveal their marital statuses. In our considered opinion, this issue primarily pertains to semantics rather than substance. By asserting that "no spousal consent is required as the property does not constitute matrimonial property," the declarants must be regarded as having communicated to the first appellant that no third party, whether a wife or another individual, possessed a protectable interest in the property, which could not be classified as matrimonial home. In the premises, we are persuaded that the trial court committed a profound error in dismissing the declarations provided by the seventh and eighth respondents. These documents are valid under section 118 (3) of the Land Act, and the first appellant was entitled to rely on them to 13 proceed with the creation of the contested mortgage over the Upanga property. We ultimately find merit in the appeal, which we hereby allow with costs. Consequently, we vacate the trial court's judgment and decree. DATED at DAR ES SALAAM this 15th day of December 2025. G. A. M. NDIKA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered virtually, this 15th day of December, 2025 in the presence of Mr. Imam Daffa, learned counsel for the Respondents, Ms. DEPUTY REGISTRAR COURT OF APPEAL 14