Nacky Esther Nyange vs Mihayo Marijani Wilmore & Another (Civil Appeal 207 of 2019) [2022] TZCA 739 (24 November 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARUA. J.A.. SEHEL. J.A. And MASHAKA. J.A.1 CIVIL APPEAL NO. 207 OF 2019 NACKY ESTHER NYANGE APPELLANT VERSUS MIHAYO MARIJANI WILMORE MRS. MARIAM WILMORE ... 1 st RESPONDENT 2nd RESPONDENT [Appeal from the Judgment and Decree of the High Court of Tanzania (Dar es Salaam Registry) at Dar es Salaam] JUDGMENT OF THE COURT 27®September, 2022 & 24* November ,, 2022 MASHAKA. J.A.: In this appeal, the appellant is claiming ownership of Plot No. 361 Block G, Hekima Street, Mbezi Beach Area, Kinondoni Municipality in Dar es Salaam Region, and motor vehicle make Range Rover Evoque with Registration No. T504 DBV from the respondents. The suit commenced at the High Court of Tanzania (Dar es Salaam Registry) on a claim lodged by the second respondent seeking among other reliefs a declaration that she is the legal owner of Plot No. 361 (Maqoiqa. J.) dated the 4th day of June, 2019 in Civil Case No. 155 of 2015 l Block G, Hekima Street, Mbezi Beach Area, Kinondoni Municipality, Dar es Salaam Region (the Mbezi property) and vacant possession by the appellant; and a declaration that she is the lawful owner of the motor vehicle make Range Rover Evoque with registration no. T504 DBV (the motor vehicle). The background of this matter, albeit briefly is as follows: Way back in August, 2004 the second respondent purchased the Mbezi property from one John Ruboyana, at that time the first respondent, her son had graduated from Lincoln University in the USA in 2002. Thereafter the second respondent looked for a building permit and started erecting a wall and gates. The first respondent came back to Tanzania in the year 2004 and she assigned him to supervise the construction. The second respondent seeing that his son was paying a high amount of rent somewhere, she told him to finish the construction of the house and move into the house at the Mbezi property. The appellant and first respondent celebrated their civil marriage in 2006 in the USA and moved into the house in 2008 when the house was semi-finished. It was the contention by the second respondent that she allowed the first respondent and his family to live in the house while they were still looking for their own permanent place. 2 The second respondent claimed further that, in the year 2011, the first respondent approached and requested her to allow him to use the Mbezi property as security to a credit facility from Bank M Limited and that the same would be returned on her demand. Again, the first respondent requested for a second property that is Plot No. 251 Block B, with Certificate of Title No. 88124 at Ras Dege area, Kigamboni, Temeke Municipality in Dar es Salaam Region, to be used as security for a financial obligation related to Telesis Tanzania Limited and that the two of them had an oral agreement that the first respondent shall return the documents with an interest of 12 percent per annum. In relation to the motor vehicle, the second respondent's contention was that in the year 2014, the first respondent gave her as a gift. Come 2015, the second respondent was informed that the appellant had instituted a matrimonial cause before the Kisutu Resident Magistrates' Court. Upon her perusal of the court file, she realised that the Mbezi property and the motor vehicle were also listed among the matrimonial properties subject to division of matrimonial assets. That incident compelled the second respondent to institute a claim before the High Court vide Civil Case No. 155 of 2015 and among other things, she prayed for a declaration that she was the lawful owner of the Mbezi 3 property and that the motor vehicle was given to her by the first respondent as a gift. In her defence, the appellant claimed that the second respondent purchased the Mbezi property while they were still in America, because the first respondent being a non-citizen could not own land in Tanzania and he therefore used the second respondent to purchase the Mbezi property. She further claimed that when they got married, they constructed the house together and in 2008 they moved to the Mbezi property. After a full trial, the trial court decided in favour of the second respondent. It held that, the house on Plot No. 361 Block "G" Hekima Street, Mbezi Beach, Kinondoni Municipality, Dar es Salaam region is the registered property of the second respondent, supported by the contents of exhibit PI, the Certificate of Title which is conclusive proof of ownership in the name of the second respondent. It further held that, there was evidence that the Mbezi property was bought way back in 2004 before the marriage of the appellant and first respondent; and thus, the allegation of matrimonial interest was devoid of merit. On the dispute regarding the motor vehicle, the trial court held that, the exhibit P2 the motor vehicle registration card proves that it was solely owned by the second respondent. It therefore ordered the appellant to peacefully vacate the house on Plot No 361 Block "G" Hekima Street, Mbezi Beach, Kinondoni Municipality, Dar es Salaam Region. Dissatisfied, the appellant preferred the present appeal basing her complaints on the following grounds: 1. That the trial court erred to not find collusion between the respondents to deprive the appellant the interest/right over Plot No. 361, Block G, Hekima Street as the appellant had matrimonial interest in it 2. That the trial court erred in law and fact in not holding that the plaintiff failed to prove on balance of probabilities her ownership over Plot No. 361, Block G, Hekima Street and that the 2n d defendant had matrimonial interest. 3. That the trial court erred in law and fact in not considering that gift inter vivos has to be proved by deed o f gift and that the motor vehicle with Registration No. T504DBV remained matrimonial property and title did not pass to the first respondent 4. The trial court erred in law by neglecting the contribution o f the appellant to the acquisition of the motor vehicle thereby acquiring matrimonial interests. 5. That the trial court erred in law in not holding that what was given during good times cannot be taken back during bad times and that 5 the house in Plot No. 361 Block G, House No. 30, Hekima Street, Mbezi Beach Area in Dar es Salaam remains to be matrimonial home. 6. That the trial court erred in law and fact in not holding that the appellant has contributed to the acquisition and development o f Plot No. 361, Block G, Hekima Street, Mbezi Beach area thereby acquiring matrimonial interests. 7. That the trial court erred in law and fact for failure to evaluate evidence tendered by the appellant in acquiring and developing of the matrimonial home located at Plot No. 361 Block G, House No. 30, Hekima Street Mbezi Beach Area, Dar es Salaam while ignoring the collusion plea between the respondents herein. 8. That the High Court erred in law ordering eviction o f the appellant within one month. On 2n d June, 2022, the second respondent raised a notice of preliminary objection and for the reasons which will shortly come to light we find no need to recite the points thereof. When the appeal was placed before us for hearing on 27th September, 2022 the appellant was represented by Mr. Ally Hamza, learned counsel, whereas the first and second respondents were represented by Ms. Raya Said Nassir and Mrs. Crescencia Rwechungura, learned advocates respectively. At the onset, Mrs. Rwechungura abandoned the notice of preliminary objection and prayed for hearing of 6 the appeal to proceed. Consequently, the notice of preliminary objection was marked withdrawn. Mr. Hamza commenced by adopting the contents of his written submission and prayed to abandon ground 5, and to argue grounds one and two separately, three and four, and six and seven conjointly. Beginning with ground one, Mr. Hamza submitted that, the first respondent and the appellant were husband and wife respectively and were living at the Mbezi property. When the second respondent became aware that the appellant initiated divorce petition and included the Mbezi property as a matrimonial asset subject to division, she immediately commenced a backdoor procedure colluding with the land officer to procure a Certificate of Title with respect to the said property in her name. He thus argued that there were no any correspondences between the land officer and second respondent which were tendered during the trial to prove that she commenced the process of getting a title deed prior to the petition of divorce. He concluded his argument on this ground with the principle of equity that who comes to seek equity must come with clean hands and the second respondent had dirty hands as she colluded with the land officer to defeat the appellant's interest in the Mbezi property. Mr. Hamza submitted on ground two that, the second respondent completely failed to discharge her burden of proof as required by the law. That she was required to prove not only that the title deed was in her name but how she obtained the same, bolstering his position with the case of Africarriers Limited v. Millenium Logistics Limited, Civil Appeal No. 185 of 2018 (unreported). However, Mr. Hamza conceded that title in land is prima facie evidence of ownership but only when there is no allegation of fraud or collusion, that was in line with section 33(1) of the Land Registration Act, [Cap 334 R.E 2002]. He further claimed that in obtaining the title deed there was fraud and collusion between the second respondent and the first respondent, supporting his assertion with the case of Leopold Mutembei v. Principal Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development and Another, Civil Appeal No. 57 of 2017 (unreported). Arguing in support of grounds three and four, Mr. Hamza contended that the first respondent testified that he gave the motor vehicle to the second respondent as a gift and therefore it belonged to her, while the motor vehicle was acquired during the subsistence of the marriage and it was purchased using family funds. Therefore, he 8 reasoned that the first respondent could not transfer it to the second respondent without involving the appellant. In addition, he submitted that there was no documentary evidence conferring the gift. With regard to the evidence of the second respondent that her son wrote a letter informing her that he gave her a motor vehicle as a gift, the learned counsel challenged that evidence contending that the said letter was never tendered during trial. He referred us to the case of Wayi Atilio and Another v. Elvira Ojali, Civil Appeal No. 023 of 2009 (unreported) that oral words coupled with delivery and gift by deed are the only modes available at common law for an inter vivos grant of a gift. Thus, he faulted the trial court for failing to hold that the appellant had matrimonial interest in the motor vehicle. Submitting on grounds six and seven, Mr. Hamza argued that the first respondent and the appellant solemnized their civil marriage in 2006 and thereafter commenced construction and moved to the Mbezi property in 2008. The appellant contributed to the development of the matrimonial house as evidenced by DW2 and exhibits Dl, D2, D3, D4 and D5, the receipts for the purchase of building materials. He contended that this evidence was never cross examined by the respondents, supporting his contention with the cases of Kilanya General Supplies and Exaud Augustino Kwayu v. CRDB Bank Limited & Two Others, Civil Appeal No. 1 of 2018 and Nelson Onyango v. Republic, Criminal Appeal No. 49 of 2017 (both unreported). He argued further that in line with the principle in Bi. Hawa Mohamed v. Ally Sefu [1983] T.L.R 32 that the appellant being the legal wife of the first respondent when the Mbezi property was constructed, she has morally and materially contributed. On ground eight, Mr. Hamza submitted that, the trial court failed to consider the welfare of the children when it ordered for the vacant possession of the appellant and issuance of one-month eviction notice which was patently unjust. He, thus prayed the appeal to be allowed and the decision of the trial court be reversed. In reply, Ms. Nassir commenced by defining the term collusion in respect of ground one, referring the Black's Law Dictionary, Sixth Edition and the case of Twazihirwa Abraham Mgena v. James Christian Basil (As administrator of the Estate of the Late Christian Basil, Kiria, Deceased), Civil Appeal No. 229 of 2018 (unreported) that the allegation of fraud has to be pleaded and proved on a higher degree of probability than that required in normal civil cases. She argued that the alleged collusion brings confusion as it is not clear if it was between both respondents or the second respondent and the land officer. On ground two, Ms. Nassir submitted that the appellant knew the second respondent was the lawful owner of the Mbezi property as the same was purchased before her marriage to the first respondent. In addition to that, it was registered in the name of the second respondent and the certificate of title conferred ownership. She supported her argument with the case of Leopold Mutembei (supra). She concluded that the appellant failed to put forward evidence to prove that the Mbezi property was indeed a matrimonial property citing the case of Habiba Ahmadi Nangulukuta and Two Others v. Hassan Ausi Mchopa and Another, Civil Appeal No. 10 of 2022 (unreported) that matrimonial assets are those properties acquired by one or other spouse before or during their marriage, with the intention that there should be continuing provisions for them and their children during their joint lives. On ground three and four, Ms Nassir referred us to pages 571 - 572 of the record of appeal that the said motor vehicle was registered in the name of the second respondent as she was given a gift by the first respondent. She argued that, there is no law that a gift must be proved by a deed and in terms of section 60 of the Law of Marriage Act, that li where any of the property is in the name of either spouse there is a rebuttable presumption that property belongs to him/her, and the appellant stated that she did not have any proof that the said motor vehicle was registered in the name of the second respondent, claiming that the motor vehicle was bought through the family account, though there was no proof to establish the existence of such an account. Ms. Nassir, thus subscribed to the finding of the trial court that there was no any contribution of the appellant towards the acquisition of the motor vehicle. She distinguished the case of Bi. Hawa Mohamed (supra) with the present appeal and prayed to the Court to consider the case of Gabriel Nimrod Kuijwila v. Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 (unreported). On grounds six and seven, Ms Nassir argued that the second respondent stated that she assigned the first respondent to supervise the construction of Mbezi property. Though DW3 testified that he was hired by the appellant and first respondent who were living in the said house, she argued that living there was not conclusive proof of ownership of the said Mbezi property. She concluded that, the second respondent only allowed the appellant and first respondent to reside in 12 that house and make any necessary improvements to make the place more comfortable for their stay. In respect of ground eight concerning the order of eviction, Ms Nassir submitted that the trial court correctly ordered vacant possession after thirty days as it was proved that the appellant was a trespasser, reinforcing her argument with the case of Avit Thadeus Massawe v. Isidory Assenga, Civil Appeal No. 6 of 2017 (unreported). Therefore, she urged the Court to dismiss the appeal for lack of merit. In reply to ground one, Ms. Rwechungura submitted that in her defence, the appellant did not mention any conspiracy, fraud or collusion by the second respondent to deny her the right to own the property in dispute. Further, she argued that during trial, the trial court framed five issues and there was no issue regarding collusion and fraud, hence ground one being a new ground, she implored the Court that the same be disregarded. More so, she maintained that, it is correct the certificate of title was obtained after the petition of divorced was filed, but the appellant admitted that the Mbezi property was registered in the name of the second respondent. Also, she claimed that the receipts tendered were in the name of the second respondent and in terms of IB section 40 of the Land Act, the second respondent is deemed to be the owner of the property. In ground two, Ms. Rwechungura claimed that, the second respondent proved on balance of probabilities that she was the owner of the Mbezi property by the certificate of title which is conclusive proof of ownership. Ms. Rwechungura further submitted on grounds three and four, that the first respondent is the biological son of the second respondent and he transferred the motor vehicle to his mother as a gift. Section 15 of the Road Traffic Act provides that the names appearing on the registration card is a proof of ownership of the motor vehicle. She further argued that the appellant failed to prove how the motor vehicle was purchased by the money from the family account; taking into account section 60 of the Law of Marriage Act that there is a rebuttable presumption of the property owned by either spouse. On grounds six and seven, Ms. Rwechungura contended that, the appellant in Civil Appeal No. 169 of 2019 (unreported) between Nacky Esther Nyange v. Mihayo Marijani Wilmore, she lost her appeal as she failed to prove her contributions on the acquisition of the Mbezi property and whether it was a matrimonial home. 14 Ms. Rwechungura supported the order of the trial court in ground eight, and argued that the appellant and the first respondent were divorced, not living together and therefore she was properly ordered to vacate the house in dispute. In a brief rejoinder, Mr Hamza claimed that the issue of collusion and fraud was raised by the appellant in her pleadings in paragraphs 15 and 16 of the written statement of defence of the appellant and hence this ground should not be disregarded. On the issue of procuring the certificate of title, Mr. Hamza argued that the same was procured after the institution of the petition of divorce. He reiterated his submission and prayed the appeal to be allowed with costs. Having considering the rival arguments and submissions of the proficient legal minds, it is worthy to note from the outset that this appeal originated from the dispute over ownership of the Mbezi property and the motor vehicle. We will thus confine our deliberations on the issue of ownership which is the essence of this appeal and not on the matrimonial interests and contribution of spouses towards the acquisition of the said properties. As the issue of matrimonial and division of assets acquired during subsistence of marriage was properly dealt with in Nacky Esther Nyange v. Mihayo Marijani Wilmore 15 (supra). It is our stance that the appeal is not centred on the contribution and development of the alleged disputed properties. In determining the grounds of appeal, the complaint in ground one, is whether there was collusion in obtaining the Certificate of Title in respect of the Mbezi property. Having revisited the record of appeal, there is no doubt that the appellant in her written statement of defence raised the issue of collusion between the first respondent and second respondent with an intent to deprive her rights to the division of matrimonial assets as correctly argued by Mr. Hamza. On the other side, Ms. Rwechungura maintained that the issue of collusion is a new ground as it was not one of the issues framed by the trial court. Despite the fact that the issue of collusion was not among the framed issues, this Court being the first appellate court is entitled to re-evaluate the evidence and give its own findings - see Future Century Limited v. TANESCO, Civil Appeal No. 5 of 2009 (unreported). The next question is, whether the procurement of the Certificate of Title was through collusion of the second respondent and the first respondent or the second respondent and the land officer as argued by Mr. Hamza. As correctly submitted by Ms. Nassir, the term collusion is defined under the Black's Law Dictionary, Sixth Edition as follows: 16 "An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment o f fraudulent means, or o f lawful means for the accomplishment of unlawful purpose." In that context for the allegation of collusion to stand, fraud must beproved. Referring to the case cited by Ms. Nassir, Twazihirwa Abraham Mgena v. James Christian Basil (As administrator of the Estate of the Late Christian Basil Kiria, Deceased) (supra), the Court held that; "This is a pure allegation of fraud which in civil proceedings ought to be specifically pleaded and proved on a higher degree o f probability than that which is required in ordinary civil cases." In the light of the above stand, the appellant was required to prove the allegation of fraud on a higher degree of probability. Looking through the evidence of the appellant during trial, she failed to prove the serious allegations against the respondents on a higher degree of probability than a balance of probabilities which is normally applied in civil cases. We find that the appellant failed to prove collusion thus this ground fails. 17 On ground two, the complaint is whether the ownership of Mbezi property was proved on balance of probabilities. It is trite law and indeed straightforward that he who alleges carries the burden to prove as stipulated in section 110 of the Evidence Act, Cap. 6. The second respondent maintained that she was the lawful owner of the Mbezi property while the appellant alleged that the said property was a matrimonial asset. In the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 (unreported), this Court held that; "It is equally elementary that since the dispute was in civil case, the standard o f proof was on a balance o f probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved." On the strength of our position above, the second respondent tendered a Certificate of Title which was admitted in evidence as exhibit PI. Both learned advocates had a consensus that the Certificate of Title is conclusive proof of ownership of land. We, equally subscribe to that position, supported by Leopold Mutembei v. Principal Assistant Registrar of Titles and Two Others (supra) cited with approval the following excerpt from the book titled "Conveyancing and Disposition of Land in Tanzania" by Dr. R. W Tenga and Dr. S. J Mramba, Law Africa, Dar es Salaam, 2017 at page 330 that:- "...the registration under a land titles system is more than mere entry in a public register; it is authentication o f the ownership of, or a legal interest in, a parcel of land. The act o f registration confirms transaction that confer, affect or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain o f titles to the property, for the register itself is conclusive proof o f the title ." With the present appeal, apart from the exhibit PI, the second respondent adduced evidence that she purchased the Mbezi property from John Ruboyana, on the 16th August, 2004 and even the appellant agreed that the said property was purchased by the second respondent before her marriage to the first respondent. Further to that, Mr. Hamza challenges ownership of the second respondent on the claim that, the property at hand was the matrimonial property. In Agatha Mshote v. Edson Emmanuel and Ten Others, Civil Appeal No. 121 of 2019 (unreported), we had this to say: - "On this, we have considered that the success of the appellant's case did not depend on the 19 credibility o f the respondents and instead the burden o f proof never shifts to the adverse party until the party on whom the onus lies, discharges the burden. It does not cease on account o f the weakness o f the case o f the adverse party . " On the strength of the above extract, the onus of proof lies on the one who alleges. Since the appellant alleged that the Mbezi property was a matrimonial property then she had a burden to prove that fact. Matrimonial properties are those acquired by one spouse or the other or both spouses with the intention that there should be a continuing provision for them and their children during their joint lives - see Bi Hawa Mohamed v. Ally Seif (supra) and Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, (supra). Since the appellant alleged that the said house is a matrimonial asset, she ought to have proved that the said plot was acquired by herself or the first respondent or both with the intention that the same should provide for their family during their joint life. It is evidenced from the record that, the appellant alleged that the said plot was bought by her husband, the first respondent and registered in the name of the second respondent as he was not a citizen of Tanzania capable of owning land in Tanzania. However, the said assertions were mere allegations since she has not backed up with any evidence. Furthermore, the Mbezi property was bought before the appellant and the first respondent got married. Thus, it cannot qualify to be a matrimonial property as correctly argued by Ms. Nassir and Ms. Rwechungura that the appellant failed to prove that the Mbezi property was a matrimonial property and we find that there is no valid reason whatsoever to disturb the findings of the trial court. In respect of grounds three and four whether the motor vehicle was a matrimonial asset, the trial court held that, the said vehicle was registered in the name of the second respondent who testified that the said motor vehicle was given to her, as a gift by her son the first respondent. We find that exhibit P2 speaks so loud and clear. The argument and evidence of the appellant that the said motor vehicle is matrimonial property which was registered in the name of the first defendant is devoid of merit. Mr. Hamza questioned the findings of the trial court arguing that the motor vehicle was matrimonial property and that the transfer of the motor vehicle registration card to the name of the second respondent was meant to deprive the appellant her rights in the said motor vehicle. While Ms. Nassir contended that there is no law which provides that gift inter vivos has to be proved by presence of a 21 deed and Ms. Rwechungura cemented that the registration card is conclusive evidence of ownership. In line with the submissions of Ms. Nassir and Ms. Rwechungura, we find with no doubt that exhibit P2, the registration card of the motor vehicle proved that the second respondent was the registered owner of the said motor vehicle as stipulated in section 15 of the Tanzania Road Traffic Act which states that: - "The person in whose name a motor vehicle or trailer is registered shall, unless the contrary is proved, be presumed to be the owner o f the motor vehicle ." On the issue of gift inter vivos, since the said motor vehicle had already been registered in the name of the second respondent, the deed of gift inter vivos would have no evidential value when compared to the registration card as per section 15 of the Road Traffic Act. In addition, there was no evidence adduced by the appellant to prove that the said motor vehicle was purchased through the family funds let alone prove the existence of the family account. We, therefore have no reason to fault the findings of the trial court. This ground also is unfounded. Concluding with ground eight on the legality of the eviction order, the trial court ordered the appellant to peacefully vacate the Mbezi property within a month from the date of the judgement Mr. Hamza faulted the order as unfair while Ms. Nassir reasoned that the order was justified as the appellant was a trespasser. Ms. Nassir cited the case of Avit Thadeus Massawe v. Isidory Assenga, (supra) where, the Court held that: - "Lastly, it is obvious that the immediate remedy available to a successful party who has been unjustifiable dispossessed o f a certain property is to recover it back so as to enable him have a peaceful enjoyment of it That is not achievable unless the trespasser is evicted or ejected from the property..." Based on the above excerpt, the trial court" was justified to order immediate eviction from the Mbezi property as the appellant was not the owner of the said property. We earlier stated that this appeal originated from the suit challenging ownership. Having been proved that she was a trespasser, the appellant cannot seek refuge behind the welfare of the children to continue living at Mbezi property. In that regard, the trial court correctly ordered eviction within one month from the date of the judgment to the appellant. We find this ground is meritless. 23 In fine, this appeal is devoid of merit and accordingly dismissed with costs. DATED at DAR ES SALAAM, this 22n d day of November, 2022. A. G. MWARUA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Ttie Judgment delivered this 24t h day of November, 2022 in the presence of Mr. Reuben Robert learned counsel for the Appellant, Ms. Raya Nasir, learned counsel for the 1s t Respondent and in the presence of the 2n d Respondent, is hereby certified as a true copy of the original. 24