KCB Bank Tanzania Limited vs Rosemary Homanje and Others (Civil Appeal No. 20 of 2023) [2025] TZCA 859 (14 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM; NDIKA, 3.A., KENTE, J.A., And MANSQQR, XAA CIVIL APPEAL NO. 20 OF 2023 KCB BANK TANZANIA LIMITED ....................................................... APPELLANT VERSUS ROSEMARY HOMANJE................................................................. 1 st RESPONDENT PHILEMON DAUD HOMANJE...................................................... 2 nd RESPONDENT REMMYAUGUSTINO KWAYU ............ ...................................... 3 rd RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Dar es Salaam) (Kutita, 3.) dated the 22 nd day of October, 2020 in Land Case Np. 44 of 201$ JUDGMENT OF THE COURT 28th July & 14th August,2025 RENTE, J.A: This appeal arises from the judgment and decree of the High Court of Tanzania sitting at Dar es Salaam, in Civil Case No. 44 of 2015 dated 22n d October 2020, which was in favour of the first respondent Rosemary Homanje. She was acting as administratrix of the estate of her deceased husband the late Joel Mshamu Homanje (the deceased) who died intestate in 2009. The second respondent is her co-administrator. At the centre of the dispute between the parties to this appeal, is a parcel of land known and described as Plot No. 1729 Block "B" Kinyerezi area within the Municipality of Ilala in Dar es Salaam Region (hereinafter

alternatively referred to as "the disputed property", "the disputed piece of land", or "the suit property"). The factual context giving rise to this appeal, may be stated briefly as follows: On 20th May, 2015 the first and second respondents jointly acting respectively as administratrix and administrator of the estate of the deceased, sued the third respondent and the appellant in the High Court wherein the first respondent sought to be declared the lawful owner of the suit property and prayed for an order requiring the appellant to release the certificate of title over the suit property from mortgage and substitute it with any other certificate either for Plots. No. 1726 or 1727 which belonged to the third respondent. In support of their claim, it was pleaded that the suit property was part of a larger piece of land owned by Exaud Augustino Kwayu (PW4) who had allegedly given it to the deceased in appreciation of his good service as his employee. It was further particularized that, after being given the disputed piece of land, the deceased together with the first respondent went on and constructed their matrimonial house on the said plot and moved into the said house in 1999. That, they lived there hapilly until 2009 when her husband passed away. After his demise, the first respondent went on living there undisturbed until in 2014 when she was served with a notice informing her that the suit property was due for sale by public auction. Upon inquiry,

she found that the third respondent had secured a loan facility from the appellant and that the suit property had been furnished as collateral to secure the said loan. It was further alleged that, the third respondent had fraudulently managed to register the suit property with the Land Registry and he was subsequently issued with a Certificate of Title No. 59888 in his name in the year 2006. That in reality, the third respondent owns Plot No. 1726 and 1727 which are adjacent to the suit property which is Plot No. 1729. The first and second respondents' claim, against the appellant was that, being a financial institution, it had failed to exercise due diligence to satisfy itself with the genuineness or otherwise of the ownership of the suit property by the third respondent. That, before granting the loan, the appellant ought to have made sure that the first respondent who was living in the house erected on the suit property, had the knowledge of the loan in relation of which the suit property was furnished as collateral. In reply, the appellant refuted the claim by averring that, it had discharged the duty of ascertaining the real owner of the suit property. The appellant contended that, the property was mortgaged to Akiba Commercial Bank from 2007 up to 2009 when the appellant took over the said loan and that, due diligence was exercised by which it was established that the certificate of title was in the name of the third respondent who was the 3

guarantor. According to the appellant, from that time onwards, there was no any dispute over the ownership or the legality of the third respondent's documents. The appellant further averred that, upon the third respondent's default to repay the loan, it instituted Commercial Case No. 39 of 2013 in the Commercial Division of the High Court for payment of the outstanding balance of the loan against the third respondent and one Conrad Shija Faransa. That, having heard the parties, the High Court ordered repayment of the whole balance of the loan facility together with interest and, upon default, the suit property was sold in the execution process through the appointed court broker. The appellant pleaded that, there was neither a caveat nor objection proceedings filed by the first and second respondents as legal representatives of the deceased to resist the intended sale. During the trial, the High Court identified the following issues that called for determination, one, whether the deceased had acquired the suit property as a gift from Exaud Kwayu (PW4); two, whether the first respondent is the rightful owner of the suit property; three, whether the third respondent had trespassed upon the suit property; four, whether by accepting the suit property as collateral for a mortgage transaction between the third respondent and the appellant, the appellant had done its due diligence to establish the identity of the rightful owner of the suit property, and five, the reliefs to which parties were entitled.

In an endeavour to prove their claim before the trial court, the first and second respondents', side had four witnesses, namely Rosemary Joel Homanje (the first respondent as PW1) who also tendered letters of administration of the deceased's estate issued by the Kariakoo Primary Court in Probate Cause No. 125 of 2012 (Exhibit PI collectively); Burton Rutta, a Land Officer who testified as PW2, a Local Leader for Kinyerezi area namely Abdallah Said Kafunya who appeared as PW3 and Exaud Augustino Kwayu (PW4). On the other hand, the third respondent testified on his own and tendered two certificates of title for Plots No. 1727 and 1729 (Exhibit D1 and D2 respectively). For its part, the appellant testified through its Head of the Loans Recovery Department one Hilorims Mayombo (DW2) who also tendered Exhibits D3 and D4 respectively, being the High Court's decree in Commercial Case No. 39 of 2013 and a proclamation of sale in execution of the decree in the same Commercial Case No. 39 of 2013. After hearing the parties, their witnesses and, having examined the admitted documentary exhibits, the trial court decided in favour of the first respondent holding that, she had satisfied the court on a balance of probabilities that, her deceased husband was the lawful owner of the suit property having acquired it by way of a gift from PW4. The first respondent as administratrix of the estate of her late husband, was subsequently declared the lawful owner of the suit property. The court further ordered 5

the Certificate of title for the property in question to be rectified so as to reflect the names of Rosemary Homanje, the first respondent herein as the owner of the suit property. Moreover, the lower court held that, the sale of the suit property by way of public auction was unlawful and thus the proceeds thereof should be remitted to the purchaser. For the purpose of recovering the unpaid loan balance, the appellant was advised to attach and sell the properties which were lawfully owned by the third respondent. The above decision by which the appellant is deeply aggrieved, is being assailed on four grounds formulated in the following terms, thus:

1. The proceedings were a nullity fo r failuire to give reasons by the succeeding Judge when taking over the tria l o f the case from his predecessor on 5th Septem ber 2018;
2. The tria l court erred in making adverse finding on m aterial issues which were not founded on the evidence on record;
3. The tria l court erred in granting reliefs which were not prayed fo r by the 1st and 2nd respondents.
4. The tria l court failed to consider fin al subm issions by the appellant without giving reasons. During the hearing of the appeal, Mr. Rugambwa Cyril Pesha, learned Advocate who appeared for the appellant, commenced his short address to the Court by praying to adopt the appellant's written submissions filed on 21st March 2023. He then told us that, he did not have much to add in clarification. Following the same route, Mr. Zedadi Mikidadi learned

Advocate representing the first and second respondents, adopted their written submissions already filed in the Registry of the Court on 27th April 2023 and prayed for the appeal to be dismissed. As to the third respondent who appeared in person, with no legal presentation, the garmut and premise of his brief submission is that, the trial court made a finding of fact which was perverse as the evidence on record contradicted the pleadings by the first and second respondent. The third respondent's position is that, PW4 is his full brother and that contrary to what was pleaded by the first and second respondents, the deceased and his wife were mere invitees on the suit property which they had never owned. We have considered the submissions by parties both written and oral and concisely gone through the impugned judgment. We will start by addressing the first ground of appeal. The complaint therein is premised on the fact that, from the initial stages of the case, the learned presiding Judge, had the conduct of the matter up to hearing all the witnesses from the plaintiffs' side. The case was thereafter adjourned for hearing of the defence witnesses. However, when the matter was called for continuation of hearing, Mugeta J, took over the hearing and, according to the appellant, there were no reasons for the successor Judge taking over the proceedings from his predecessor.

We have gone through the whole record of appeal, and satisfied ourselves that, on 5th September 2018 when the case was due for defence hearing, some of the parties were not in attendance. On that day, the appellant who was the second defendant, was represented by Advocate Jovison Kagirwa who prayed for deferment of the hearing since the second plaintiff and the first defendant were absent. The first plaintiff (the first respondent herein), is on record as having informed the court on that day, that she had made a follow up to get a notice of hearing from the Bench clerk but she was told that the presiding Judge had been transferred and that the case was to be reassigned to another Judge and thus, a notice of hearing could not be issued to the first defendant unless and until the reassigned judge gets the conduct of the case. Later on Mugeta, J who had taken over the conduct of the matter, made an order for service of a notice of hearing on the first defendant. We start from the premise that, in civil proceedings, Order XVIII rule 10 of the Civil Procedure Code [Cap 33 R.E.2019], allows a magistrate or Judge to deal with evidence taken by another Magistrate or Judge who either by reason of death, incapacity or transfer to another duty station, was unable to conclude the trial. However, the law requires the successor Magistrate or Judge to give reasons for taking over the conduct of the case from his or her predecessor. The rationale behind this requirement is to

enable the court to hear and assess the witnesses' credibility and to preserve the integrity and transparency of judicial proceedings. The record in the present case is quite dear that the reasons for taking over the conduct of the proceedings by Mugeta, J were well known to the appellant and there was no indication of any prejudice to either party. In these circumstances, it is our conviction that the irregularity complained of, if any, cannot be said to have been fatal as to vitiate the proceedings. The first ground of appeal is devoid of merit. We dismiss it. With regard to the appellant's complaint on the alleged failure by the trial court to consider the- parties' final submissions, we wonder what, in essence was the effect of failure to do so! This is so because, authorities abound on the stance of the law that, the submissions by parties are not intended to substitute the evidence tendered by them in the course of trial. In this regard, we make reference to our earlier decision in the case of The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government and Others (Civil Appeal No. 147 of 2006) [2007] TZCA 2491(24 October 2007) where we stated categorically that: "Subm issions are not evidence . Subm issions are generally m eant to reflect the general features o f a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain argum ents on the 9

applicable law. They are not intended to be a substitute for evidence." Besides, the appellant has not elaborated what was not considered by the trial court that was very crucial and was canvassed in its written submissions. As a matter of law, a trial court is required to consider the evidence presented by the parties during trial and not necesarily what was canvassed in their submissions. For the above reasons, we find the first ground to have no merit and proceed to dismiss it. We now turn to the second ground of appeal on which we take cognizance of the principle that, in any legal proceedings, parties are generally bound by the facts and claims they present in their respective pleadings. This simply translates into the position of the law that, in the absence of amendments, parties to a civil suit are required not to present evidence which contradicts what they have stated in their respective pleadings. In the same token, it is very elementary that in any litigation, whoever alleges the existence of a fact, has a duty to prove it. This is the position obtaining under section 110 (1), (2) and 112 of the Evidence Act, Cap. 6 R.E. 2019. (See also the case of Anthony M. Masanga v. Penina (Mama Mgesi) & Lucia (Mama Anna), Civil Appeal No. 118 of 2014 in which we stated, that; 10

"generally, in civ il cases, the burden o f p roof lie s on the party who alleges anything in his favour." We have gone through the pleadings, the evidence on record, together with the judgment of the court below and the submissions made by parties. Our task is to determine whether, on the basis of the evidence presented, we can reverse the findings of fact by the trial court. In this connection, we wish to observe very briefly that, we are mindful that, a higher court like ours can only interfere with the lower court's findings of fact in limited circumstances such as where, among other things, the trial court's findings are unsupported by the evidence. At the core of this appeal, is the finding by the trial court that, the first respondent had proved on a balance of probabilities that the suit property belonged to her deceased husband. That in essence is what has so beleaguered the appellant that, it has now taken up the cudgels on appeal to this Court. Obviously, since it was the first and second respondents who had alleged that the deceased was given the suit property by PW4, the legal and evidential burden to prove that allegation on the balance of probabilities rested on them, and the follow uip question, is whether they had successfully discharged that burden. For ease of reference, we find it appropriate at this 11

moment to paraphrase the gist of what was pleaded in paragraph 5 (a) (ii) of the plaint, that: "Before his death , the late Joel Mshamu Jom anje was em ployed and worked fo r Exaud Augustino Kwayu in Dar es Salaam from 1988 to 2009. Further that, in the course o f his employment and in appreciation o f his good work and character, in 1997 his em ployer gave him by way o f a g ift an undeveloped piece o f land which is Plot No. 1729 Block B located a t Kinyerezi, Ilala, Dar es Saiaaam ." From what was pleaded by the first and second respondents, it is certainly clear that, their position both in this Court and the court below, is that, the suit property passed to the deceased as a gift from PW4. However, on the contrary, in his testimony, PW4 is recorded to have told the deceased and other two persons who were his employees that, the suit property had been surveyed and was due for allocation and further that, if they wished, they could go to the Ministry of Lands and make a follow up on their own. For all purposes and intents, PW4 did not testify as having given the disputed land to the deceased. To put it in specific terms, his line of testimony as appearing on page 106 of the record of appeal, was simply that he did not. To quote him verbatim, PW4 is on record as having told the trial court, thus: 12

7 did not donate the plots to my employees but inform ed them that the plots had been issued in names other than mine or m y children's. So I told them to struggle to acquire some, (wakapambane)." Obviously, the above oral account in respect of the land in dispute as testified by PW4, contradicts what was testified Iby the first and second respondents. Needless to say, the first and second respondents were required to lead evidence supporting what was pleaded and not to bring a witness who went on to differ with what was stated in their pleadings. There can be no question that, since the parties to a civil suit are bound by their respective pleadings, where the evidence adduced by the plaintiff is inconsistent with the averments in their pleadings, the claim must fail. Given the fact that the records in the Land Registry together with the certificate of title, were in the names of the third respondent who testified to have been allocated the said piece of land by the Ministry of Lands, it is our position that, had the Judge considered this evidence and properly guided himself, he would have certainly ruled in favour of the third respondent as the lawful owner of the suit property. We base this finding on the reknown principle that, in the absence of proof that a certificate of title was obtained fraudulently, the holder of it is deemed to be the lawful owner of the disputed property. (See the case of Leopold Mlutembei v. 13

Principle Assistant Registrar of Titles, Ministry of Lands Housing and Urban Development &Another (Civil Appeal No. 57 of 2017) [2018] TZCA 213 (11 October 2018). In that case, we 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:- "...the registration under a land titles system is more than the mere entry in a public register. It is authentication o f the ownership of, o r a legal interest in, a parcel o f land. The act o f registration confirm s transactions that confer, affect or term inate that ownership or interest Once the registration process is completed, no search behind the register is needed to establish a chain o f title to the property, fo r the register itse lf is conclusive proof o f the title ." We thus hold, in the circumstances of this case that, in the absence of evidence from the first and second respondents or the Land Registry, showing that the registration and issuance of the Certificate of title to the suit property in the name of the third respondent, was procured fraudulently, and as such, we have not found any iota of falsehood or concoction in the third respondent's Certificate of title, we are satisfied that he was the lawfui owner of that property. Consequently, we find merit in the second ground of appeal which we accordingly allow. Put in other words, 14

on the basis of the evidence on record, we do not agree with the learned trial Judge's finding that the suit property was given to the first respondent's deceased husband by PW4. We set aside that finding. In the totality of what we have discussed throughout this judgment, we find merit in this appeal which succeeds and is accordingly allowed. We set aside the judgment and decree of the trial court in its entirety. The appellant shall have its costs here and in the court below. DATED at DAR ES SALAAM this 14th day of August, 2025. Judgment delivered this 14th day of August, 2025 in the presence of Mr. Zidadi Mikidadi holding brief for Mr. Pesha, learned counsel for the Appellant and Mr. Zidadi Mikidadi, learned counsel for the 1st and 2n d respondent, 3rd respondent is present in person, unrepresented is hereby G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL certifiec 15