CRDB Bank Plc & Another vs Mihalis Kalogeries & Others (Civil Appeal No. 261 of 2024) [2025] TZCA 1101 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA ( CORAM: MWANPAMBO J.A.. MAIGE, J.A. And MANSOOR, J.A.l CIVIL APPEAL NO. 261 OF 2024 CRDB BANK PLC ..... ..... .................................................. 1 st APPELLANT COMRADE AUCTION MART ...... ..... ............. 2N D APPELLANT VERSUS MIHALIS KALOGERIES (As Administrator of the Estate of the Late Kyriacos Kalogeries) ...... 1st RESPONDENT PII FARM LIMITED ...» ............................... .................... 2N D RESPONDENT (Appeal from the Decision of the High Cburt of Tanzania at Iringa) fKalunde, 3.10656182232 dated the 25th day of January, 2023 in Land Case No. 02 of 2021 JUDGMENT OF THE COURT 13th & 15th October, 2025 MAIGE, 3.A.: The first respondent instituted a suit at the High Court of Tanzania (the trial court) against the appellants and the second respondent for: nullification of the mortgage charged on the landed property with Certificate of Title No. 11367 located at Nzihi, Kidamali, Iringa Rural District in Iringa Region (the suit property) and which is registered in the name of Kyriacos Kalogeries; nullification of the intended sale of the same to 1 the second respondent; declaration that the suit property was the lawful property of the deceased; and permanent injunction restraining the appellants and second respondent from interfering with the first respondent's possessory right thereto. For the reason of nonappearance of the second respondent, the trial proceeded in her absence and, upon examination of the evidence of the first respondent (PW1) who also tendered the valuation report (exhibit PI) and of his mother, Neema Mlagala Kyriacos Kalogeries (PW2) as compared to that of the appellant through her quality assurance officer one Ludovick Rimisho (DW1) who also tendered the loan agreement (exhibit Dl) and the spousal consent (exhibit D2), the trial court found that the case had been proved on the required standard and, therefore, pronounced a judgmentin favour of the first respondent as prayed against which, the appellants have been aggrieved and hence the current appeal. At this particular juncture, it may be desirable to note that, the first respondent initiated the suit at the trial court under representative capacity as the administrator of the deceased estate of the late Kyriacos Kalogeries (the deceased). In that respect, the appellant pleaded letters of administration granted by Boma Primary Court at Iringa accompanied with a death certificate purporting to have been issued by a foreign authority to the effect that, the deceased expired at Strovolos, Lefkosia (Nicosia) on 19th September, 2019 (annexure MK1, collectively). However, despite his appointment as administrator being doubted in the appellants' written statement of defence, neither the death certificate nor the letters of administration were tendered in evidence. In essence, the dispute in question revolved around the legality or otherwise of the mortgage allegedly created on the deceased's landed property with Certificate of Title No. 11367 located at Nzihi, Kidamali, Iringa Rural District in Iringa Region (the suit property) and the intended sale of the same to the second respondent. The mortgage purported to secure an overdraft facility of USD 300,000 extended to the deceased in 2016 (exhibit Dl), in the default of payment of which, the first appellant attempted to, through the second appellant, sell the property. In a bid to rescue her alleged interest thereon, PW2, claiming to be the lawful wife of the deceased, commenced a complaint at the District Land and Housing Tribunal of Iringa (the tribunal). However, while the matter at the tribunal was still pending, the deceased faced his death subsequent to which, the first respondent sought and obtained letters of administration after which, he commenced the suit at the trial court alleging that, the mortgage in question was procured fraudulently, giving two main particulars of the fraud. 3 The first particular which was, however, found to be inconsequential, pertained to variance between the certificate of title and valuation report (exhibit PI) as regards the size of the suit property. The second one which was found valid, was in respect of legality of the spousal consent (exhibit D2). In effect, it has two aspects. First, while the mortgage was executed in 1994, the consent was issued in 2016. Second, the consent was issued by Mrs. Maroula Kyriacos Kalogeries who was not the lawful wife of the deceased as the only lawful wife was PW2. In their written statement of defence, the appellants denied the alleged fraud and pleaded that: the mortgage was lawfully created; the said Mrs. Maroula was the only lawful spouse of the deceased as per their record; and PW2 had never been the wife of the deceased. That aside, the existence or otherwise of the marriage between the deceased and PW2 was not framed as an issue. The only issue framed in respect of such complaint was " whether there was spousal consent" which was answered affirmatively for the reason of the failure of the appellants to tender the relevant marriage certificate. That is so, notwithstanding that, the first respondent neither pleaded nor tendered any certificate establishing existence of marriage between the deceased and PW2. From the foregoing factual background, therefore, it did not come as a surprise when the correctness of the decision of the trial court was challenged in the first two grounds of appeal for: determining the merit of the case without the disputed letters of administration which was the basis of the first appellant's standing, being produced in evidence- and shifting the burden of proof to the first appellant without assigning any reason therefor. The appellants were, at the hearing, represented by Mr. Benard A. Chuwa, the first respondent by Mr. Barnabas Nyalusi, and second respondent by Mr. Faraja Msuya, all learned advocates. In address of the first ground of appeal, Mr. Chuwa submitted that while the first respondent sued as the administrator of the deceased's estate, he did not produce the death certificate and letters of administration despite that his appointment as the administrator was disputed in the pleadings. He submitted, making reference to the case of Crescent Impex (T) Limited v. Mtibwa Sugar Estates Limited (Civil Appeal No. 455 of 2020) [2023] TZCA 17501, TANZLII that, as the said documents were not admitted in evidence, they did not form part of the record as to be used to establish existence of the same. He submitted further that, letters of administration being an instrument on the basis of which, the first appellant justified his standing to pursue the claim on behalf of the deceased, was the essential document whose absence in the record rendered the disputed standing of the first respondent unproven. To cement his contention, the learned counsel referred us to our decision in Ramadhani Omary Mbuguni (Legal Representative of the Late Rukia Ndaro v. Ally Ramadhani Asia Ramadhani (Civil Appeal No. 173 of 2021 [2022] TZCA 267, TANZLII in support of the proposition that, letters of administration is an essential element in a suit instituted on behalf of the deceased in the absence of which, the claimant lacks the necessary standing. In his contention, therefore, as the first respondent lacked locus standi to pursue the case against the appellants, the trial court embarked on a nullity to entertain and determine the same. His submission was riot without authority. He referred us to the case of the Registered Trustees of Sos Children's Villages Tanzania v. Igenge Charles @ 9 Others (Civil Application No. 426/08 of 2018 [2022] TZCA 428, TANZLII, where we held, the approach which Mr. Chuwa would like us to take, that: "Equally so, the 1st respondent's locus standi was a crucial m atter on first appeal and it ought to have been considered by the High Court. However, it m issed the eye o f the High Court which also fe ll prey having embarked on a nullity to entertain Land Appeal No. 55 o f 2009 whose proceedings and judgm ent cannot be spared and they stem on a nullproceeding o f the Tribunal and 6 thus, the two courts below lacked jurisdiction to deaf with the 1st respondent's case and appeal." Having heard him on the first ground, and upon noting that the same was capable of disposing of the appeal, we wanted Mr. Chuwa to, instead of the second and other three grounds of appeal, address us on two issues namely; whether the fact that PW2 was the lawful wife of the deceased which was seriously disputed in pleadings, was properly dealt with by the trial court, and, whether the plaint insofar as it did not disclose the value of the suit property for the purpose of jurisdiction, was maintainable. In respect to the issue of marital status of PW2, he submitted that because it was seriously contested and, it being the essential component of the complaint as to lack of spousal consent, ought to, which was not, framed as an issue. He submitted that, as a result of such an omission, absence of such an obvious issue created a confusion such that, the trial court found itself shifting the burden of proof to the appellants as if they were the plaintiff. That, he submitted, created an injustice. On the issue of the missing of valuation clause in the plaint, he submitted, that was a fatal irregularity because, aside from determination of the amount of filing fees, without such a clause, it was difficult to ascertain if the trial court had jurisdiction. While such defect could be cured by amendment, he submitted, it cannot be possible at this stage and, in any event, the first ground of appeal if sustained, renders the whole proceedings, including the plaint, a nullity. He prayed, therefore that, the appeal be allowed with costs and the judgment and proceedings of the trial court nullified. Though initially he was prepared to contest the appeal and had indicated so in his written submission, after we had a dialogue with him, Mr. Nyalusi conceded to the first ground of appeal and concurred with Mr. Chuwa in his submission on the two issues raised by the Court suo motu. He prayed, however, which was conceded to by Mr. Chuwa in his brief rejoinder submission, that the appeal be allowed without costs. A similar prayer, which was also not disputed by Mr. Chuwa, Was made by Mr. Msuya after he had shown his full support of the appeal. We have closely followed the concurrent submissions of the counsel on the first ground of appeal and the two additional issues and in line thereto, critically examined the record. With respect, we are in agreement with them. As clearly shown in the record, the first respondent sued on the deceased's property alleging to be the administrator of his estate. He pleaded both the death certificate and his appointment letters as the administrator of the estate. However, as correctly submitted by Mr. Chuwa, and we noted so from the record, such appointment was expressly doubted in the appellants' written statement of defence. With such refutation, the existence or otherwise of his appointment became a subject of contention and, him being the one who was alleging existence of the appointment was obliged to tender in evidence both the death certificate and letters of administration. Quite unusually, the first respondent, opted, for the reason better known to himself, not to produce them and, instead, relied on verbal evidence to establish such fact. That was a fatal error. This is because, as we held in Ramadhani Omary Mbuguni v. Ally Ramadhani (supra), letters of administration being an instrument through which the first respondent traced his focus standi to litigate on behalf of the deceased, was an essential fact which must have been established in order that, the first respondent could prove suable interest on the suit property. The existence of the same being in dispute, it could not be proved by mere annexures to the plaint. For, as we observed in, among others, the case of Crescent Impex (T) Limited v. Mtibwa Sugar Estates Limited (supra), unless admitted in evidence, an annexure does not form part of the record as to be capable of being relied upon to determine existence or nonexistence of a fact in issue. It follows, therefore that, since the first respondent's standing to pursue the claim on behalf of the deceased was not established, the trial court had, as per the principle in Registered Trustees of Sos Children's Villages Tanzania v. Igenge Charles @ 9 Others (supra), no jurisdiction to determine the suit and, therefore, the judgment and the proceedings thereof were a nullity. In view of the foregoing, therefore, and without necessarily addressing the two issues we raised in our own motion, we find the appeal with merit to the extent of the first ground of appeal and we allow it without costs. Consequently, we quash the judgment of the trial court and nullify the whole proceedings thereof. Whoever desires may, subject to the law of limitation, commence a fresh suit. DATED at IRINGA this 14th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of Mr. Jonas Burton Kajiba, holding brief for Mr. Benard Chuwa, learned advocate for the Appellants, Mr. Clever Adrof Kapinga, learned Advocate for the Respondents and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL