Mrs. Magembe Cheyo vs Furaha Finance Ltd and Others (Commercial Case No. 15 OF 2000) [2000] TZHC 316 (12 July 2000)

S. /• i - Coll S IN THE HIGH COURT OF TANZANIA (Commercial Division) AT DAR ES SALAAM COM. CASE NO. 15 OF 2000 Mrs. EVELYNE MAGEMBE CHEYO......APPLICANT Versus FURAHA FINANCE Ltd................FIRST RESPONDENT SUMAYI INVESTMENT INT.Ltd. . . .SECOND RESPONDENT Mr. MAGEMBE CHEYO...............THIRD RESPONDENT Counsel: Mr. K. M Fungamtama for the Applicant Mr. Mwandarnbo for First Respondent Mr. Tenga for the Second and Third Respondent RULING BWANA, J. This matter has a chequered history. On 12 May 2000, Commercial Case No. 15/2000 was filed thus setting in motion issues and matters that have led to the present application. The current respondents are parties in the main suit categorised as follows. The first respondent is the plaintiff. The second respondent is the first defendant while the third respondent is the second defendant. In a Ruling dated 12 June 2000, this court dismissed (with costs) an earlier application raised as a plea in Limine litis in the defendants' written statement of defence thus: 1

"This honourable court cannot entertain a suit founded on a mortgage deed between the plaintiff and the second defendant dated 9 June 1997 in respect of certificate of title No.36992 over plot No.88 Bahari Beach, Dar es Salaam as the same is substantively in issue between the same parties herein in Misc.Civil Appl. No.193/99 at Kisutu RM's Court". For purposes of clarity, the said RIIV1's Court case concerns a divorce petition filed by the now Applicant against her husband, the third respondent in this Application, Magembe Cheyo. In dismissing that plea in Limine litis, this court stated, inter alia:- "However, the matter is neither directly nor substantively the same. In the application before the RM's court.. the issue seems to be protection of an alleged "matrimonial property". In the case before this court, the subject matter is recovery of money advanced to the first defendant by the plaintiff, governed by a loan Agreement. . Subsequent to that Ruling, Mrs. Evelyne Magembe Cheyo filed the current application requesting this Court to grant her leave to Intervene in the main proceedings and appear as an Intervenor in order to protect her interests in the suit. The Application was made, under section 95 of the CPC and "any other enabling provisions of the law". The latter part of that heading, as 2

• underlined, appears to me not to be compatible with existing practice - to say the least. The Applicant shows in the accompanying Affidavit that she would like to appear as an intervenor so as to protect her interest in the mortgaged "matrimonial property" sought to be sold, as she is not a party to the suit pending before this court. If leave is not granted to intervene, she is likely to be deprived of her legal and equitable rights in the "matrimonial property" and will suffer irreparable loss. She further cites various incidents that have led to the derailment of her marriage. it is further stated: "For the reasons aforesaid, the Applicant intends to move the court to interfere and nullify the mortgage transaction with further directions that the 1 st respondent should recover its money from the third respondent in any manner howsoever other than by way of sale of the said illegally mortgaged matrimonial property." (emphasis mine) Elsewhere, the Applicant claims that Magembe Cheyo obtained the required
• consent through fraud, hence the assertion of "illegally mortgaged matrimonial property." In his lengthy submission in support of the Application, Mr. Fungamtama seems to elaborate more on the issues raised in the said Affidavit. 3

A counter-affidavit filed and argued by Mr. Mwandambo on behalf of the first respondent, avers that there is no evidence whatsoever that the Applicant has any interest in the mortgaged property, as supported by a report on the Official Search (FF-A). Further, it is averred that. . . ."the application is misconceived and an abuse of the process of the court as the t o Applicant is a stranger to the Agreement and mortgage deed upon which the suit is grounded and as such she can not be joined as a defendant nor as an intervenor." Both Counsel cited Mulla (Commentary on the Civil Procedure- 3th Ed. Pp.576 and 631. Both Counsel also rely on the provisions of Order I R 10(2) of the CPC which states: "The court may at any stage of the proceedings, either upon or without the application of either party..... order that the name of any party improperly joined, whether as a plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as a plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added" While Mr. Fungamtama submitted that the foregoing provision of the law supports his application, Mr. Mwandambo on his part argued that it does not cover a person who is not a party and who has not been pleaded by the plaintiff. The court cannot join such a person.

In the course of their submissions both Counsel seem to be evasive in defining who an intervenor is. But the law is clear on this aspect. An intervenor is a person who has an interest in a pending suit. He or she may then apply to the court - by way of a motion supported by an affidavit - to be joined in order to maintain his or her rights. It is preferable that such an application to intervene is made before all parties to the suit have closed their cases. The affidavit so filed should contain the grounds on which the applicant relies in support thereof. I will, therefore, at a later stage, examine the grounds advanced by the Applicant. Again, at this early stage, I find myself duty bound to point out another issue, in passing. That is the issue of "matrimonial property". Both affidavits and counter affidavits make reference to the material house as being "matrimonial property". It is suffice to note that the Law of Marriage (S.2.(1)) refers to matrimonial home. Property rights and interests, as referred to in Part IV of the said Act, cannot be referred to as matrimonial property. The term "matrimonial property" therefore is a misnorm. To come back to the natty gritty of this Application, it is claimed that Evelyne Magembe Cheyo would like to be joined as an intervenor so as to protect her interest in the property concerned. It is not shown that the said property is the matrimonial home. What can be gathered from the pleadings is that following the derailing of their marriage, the parties are living separate. That fact notwithstanding, it would not affect her interests or rights if any, in a matrimonial home. Perhaps that point will be argued conclusively in the cases pending before the RM's Court.

However, the argument is presented before this court ostensibly as an outcome of what is believed to be the meaning attributable to section 59(1) of the Law of Marriage. The relevant part of section 59 provides - "Where any estate or interest in the matrimonial house is owned by the husband or by the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or, otherwise under any law for the time being in force relating to the registration of title to land or of deeds.. ." (emphasis mine) In the instant application, the following matters are not in dispute. Plot No.88 is registered solely in the name of Magembe Cheyo (1 717 .2). The said property was mortgaged during the subsistence of the parties' marriage. There is no caveat or caution registered in the relevant Registry in favour of the Applicant. Therefore the contents of the Certificate of official Search are not disputed. The only conditions/reservation found are those "contained in the certificate of occupancy". In cumbrance: "mortgage to Furaha Finance Limited of P. 0. Box 6035, D'Salaarn" (FF.1).

By the weight of the three above affirmations, it is apparent that the Applicant's interests in Plot No.8 8 can but only be deemed. A raft of authorities have amplified this point of law, as shown hereunder. In Mtumwa Rashid vs Abdallah Iddi & Anthr (C.A. No.22/93) the Court of Appeal of Tanzania held and I quote (referring to s.59(1) of the Law of Marriage):- "Upon a true construction of this provision, we think that it applies only to cases where the matrimonial home is owned wholly by the spouse who is contemplating to alienate it. . . .if the matrimonial home is alienated without the consent of the other spouse, then the non consenting spouse shall be deemed to have an interest therein capable of being protected by caveat or caution ..." (emphasis mine) It is stated above that there is no caveat or caution in favour of the Applicant. But, as rightly stated by Lugakingira, J (as he then was) in Hadija Mwene vs Ally Mbaga & Athr. (HC Civil Appeal No.40/95 at Mwanza: "..a prudent spouse would seek to protect that interest by actually causing a caveat to be registered ... in other words sub-sect. (1) should not be read in isolation but in conjunction with any law for the time being in force relating to the registration of title to land or of deeds... In accordance with the provisions of S.33(l) (a) of the Land Registration Ord; Cap 334, the owner of any estate holds 7

.4 4 the same free from all estates and interests.....other than incumbrances registered... A bare interest in an estate would not operate to prevent its alienation where registered land is involved. It is therefore incorrect to think that the mere existence of S.59(1) is sufficient to prevent an estate from being sold... or mortgaged "(emphasis mine) I hold the above discourse of the law to be correct and relevant to this Application. As the pleadings show, the relevant land was mortgaged in 1997. It would appear that the Applicant knew of the same sometime around that time but up to the time of the official Search, that is, on 30 May, 2000 she had not taken steps to protect her "deemed interests" by way as suggested by Lugakingira, J (supra). A mere existence of section 59 (1) is not sufficient to prevent the alienation". A deemed interest would allow an applicant to register and/or protect the said interest by a caveat, or caution, thus creating an incumbrance over the said property. Less than that, in my opinion, the Applicant would not succeed in obtaining the legal protection sought. Therefore she cannot be joined as an intervenor. The above said, I will now consider the issue of whether the main case (CC No.15/2000) before this court is similar to the one at the RM's Court. It is suffice to state that the latter suit concerns matrimonial issues while the instant one is purely a product of commercial transactions which are within the jurisdiction of this court. Even the parties are different. The relief sought is also different. Therefore the two cases are different. LIV

: , The issue of fraud has been raised and the intention of the Applicant / to ask this court to nullify the mortgage transaction expressed. Such a matter ( of claims of fraud) should be adjudicated in a separate suit in a court of competent jurisdiction. The pleadings so far do show that there was no likelihood, on the part of the plaintiff, in the main suit, of having notice of those serious claims and as Lugakingira, J. states (supra): "the (application)would fail if the person acquiring the property can satisfy the court that he had no notice of the interest of the other spouse and could not by the exercise of reasonable diligence, have become aware of it.. Mr. Mwandambo argued this point very well and I do concur with his views. Therefore, all the above views considered, this Application has no merit. It is refused and dismissed with costs. Sgd: S. J. Bwana JUDGE 12/7/2000