abubakar abdulrahman gurnah and 3 others vs abdulsalam abdulrahman gurnah and 2 others 2023 tzhc 16608 31 march 2023

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM LAND CASE NO. 36 OF 2014 ABUBAKAR ABDULRAHMAN GURNAH ..……. 1ST PLAINTIFF AMISA ABDULRAHMAN GURNAH …....…...... 2ND PLAINTIFF LATIFA ABDULRAHMAN GURNAH …..…….… 3RD PLAINTIFF ABDULAKIM ABDULRAHMAN GURNAH ……. 4TH PLAINTIFF VERSUS ABDULSALAM ABDULRAHMAN GURNAH…. 1ST DEFENDANT SALEH ABDULRAHMAN GURNAH ……..….. 2ND DEFENDANT MOHAMED ENTERPRISES (T) LIMITED …. 3RD DEFENDANT JUDGMENT Date of last Order: 24/11/2022 Date of Judgment: 31/3/2023 MGONYA, J. In a Plaint dated 5th June 2014 and filed in court on the 10th June 2014, the Plaintiffs ABUBAKAR ABDULRAHMAN GURNAH, AMISA ABDULRAHMAN GURNAH, LATIFA ABDULRAHMAN GURNAH and ABDULAKIM ABDULRAHMAN GURNAH are seeking Judgment against the Defendants ABDULSALAM ABDULRAHMAN GURNAH, SALEH 1 ABDULRAHMAN GURNAH and MOHAMED ENTERPRISES (T) LIMITED. It is alleged that the Plaintiffs co-own the suit property which is located on Plot No. 18, Block 8, Magomeni Area, Dar es Salaam by virtue of inheriting it from their Late father ABDULRAHMAN GURNAH. It is the Plaintiffs case that upon demise of their Late father, it was agreed that the suit property whose offer was in the names of their Late father and uncle, ABUBAKAR GURNAH should be inherited by all the heirs of the Late Abdulrahman Gurnah, the heirs who are the Plaintiffs and the 1 st and 2nd Defendants. Transfer process was initiated by the Plaintiffs to transfer the suit property from their Late father and Uncle’s name to the heirs names; and on 20th August 2004 Certificate of Title No. 56142 was issued in the names of the Plaintiffs, 1st Defendant and 2nd Defendant. It is the Plaintiffs case that later on they came to find out that the 1st and 2nd Defendants fraudulently misrepresented themselves as sole owners of the suit property and entered into Loan Agreement with the 3rd Defendant for the sum of TZS 47,250,800 and placed the suit property as a collateral to the said Loan Agreement. The Plaintiffs argue that the 1st and 2nd Defendants fraudulently entered into this Loan Agreement and secured it with the suit property without seeking Plaintiffs’ consent while knowing 2 that they are not the sole owners of the suit property. The alleged facts above provoked the Plaintiffs hence seek for the following reliefs: a) Declaration that the Plaintiffs and the 1st and 2nd Defendants are lawful co-owners in equal shares of the property; b) Declaration that the 1st and 2nd Defendants had no power to pledge the property as security to the 3rd Defendant without the Plaintiffs’ consent; c) Declaration that the Defendants fraudulently and unlawfully pledged the property as security and the pledge is illegal and of no effect; d) Eviction of 3rd Defendant and vacant possession from Plot No. 18, Block 8, Magomeni Area; e) Mesne profits the 3rd Defendant’s occupation of the property at the rate of TZS 1,200,000/= per month; f) General damages; g) Interest on (c) above at 20% per annum from date of judgment to date of payment in full; h) Interest on (d) above at the rate of 20% per annum from March 2003 to the date of payment in full; i) Costs of the suit; 3 j) Any other or further relief this court deems fit and just. In their Written Statements of Defence, all the Defendants have denied allegations made by the Plaintiffs. The 1st and 2nd Defendants were very adamant that the 1st Defendant in his capacity as Administrator of Estate of his Late father had capacity to enter into an agreement with the 3rd Defendant in respect of the suit property. They further stated in their defense that they placed the suit property under collateral but they intended to pay the outstanding amount to the 3rd Defendant before the expiry of time provided in the contract. Unfortunately, due to some difficulties in the business they failed to pay the outstanding amount hence the 3rd Defendant took possession of the suit property. On its part the 3rd Defendant denied the allegations by the Plaintiffs and went ahead to state that by virtue of Agreement between the 1st and 2nd Defendants and itself, the suit property was pledged as a collateral and that since the 1 st and 2nd Defendants failed to pay the outstanding amount as indicated in the Agreement within the prescribed time, the 3rd Defendant is now the owner and thus is in rightful possession of the suit property. 4 The Plaintiffs enjoyed the services of Ms. Raya S. Nassir Learned Counsel and the 1st and 2nd Defendants were represented by Simon Mkwizu Learned Advocate; and the 3rd Defendant enjoyed the services of the Late Dr. Masumbuko Lamwai who after his demise Roman Selasini Lamwai and Ms. Neema Mahunga Learned Advocates took over. The case was unable to be resolved at Mediation session. It is after that failure; the file was remitted to the trial court where parties in collaboration with the Court, framed the following issues for determination: 1. Whether the Plaintiffs, the 1st and 2nd Defendants are lawful co-owners of Plot No. 18, Block 8 Magomeni Area, Dar es Salaam?; 2. Whether Plot No. 18, Block 8 Magomeni Area, Dar es Salaam was lawfully given as security under the loan Agreement between the 3rd Defendant and the 1st and 2nd Defendants?; 3. Whether the 3rd Defendant’s occupation of Plot No. 18, Block 8 Magomeni Area Dar es Salaam is lawful? and 4. What reliefs are the parties entitled? 5 On the 2nd September, 2019 trial of the case commenced PW1 was one ABUBAKAR ABDULRAHMAN GURNAH. PW1 testified to the effect that following the death of their Late father Abdulrahman Abdallah Gurnah who died on 31st June 1996, PW1 and his siblings, who are the Plaintiffs, 1st and 2nd Defendants herein appointed their brother ABDULSALAM ABDULRAHMAN GURNAH, the 1st Defendant herein as the Administrator of Estate of their Late father. Upon such appointment, the 1st Defendant filed an application for Letters of Administration at Kariakoo Primary Court and the 1st Defendant was then appointed as Administrator of Estate of their late father. It is PW1 testified that their late father’s estate among other things included a property which is on Plot No. 18, Block 8, Magomeni Mapipa - Dar es Salaam. It was agreed between the heirs that the property should be co-owned by all six children of their late father in equal shares and that the suit property shall not be mortgaged or be placed as a security by any of the heirs. It was further agreed that any of the heir may conduct business at the suit property or build any structure in the suit property; and that the 1st Defendant in his capacity as Administrator of Estate of their late father shall transfer the property into the names of the heirs. 6 The 1st Defendant initiated transfer process of the suit property to the heirs’ names in 1997 at the Ministry of Land. PW1 testified further that they were issued Certificate of Title over the suit property in 2004 which was in the names of Plaintiffs, the 1st Defendant and 2nd Defendant. PW1 tendered a copy of the Title Deed which is in the names of all Plaintiffs, 1st Defendant and 2nd Defendant. The same was admitted as Exhibit P1. PW1 testified that the 1st Defendant and 2nd Defendant were conducting their business at the suit property without paying any rent as it was agreed by all heirs. It is PW1 testimony that he came to know about the loan Agreement which was entered between the Defendants in 2013 when PW1 wished to construct a building at the suit property. PW1 testified that he was informed by the 1st Defendant that the construction cannot take place as the suit property was under the 3rd Defendant because the 1st and 2nd Defendants defaulted to pay the outstanding balance hence the suit property was used as collateral. The 1st Defendant informed PW1 that there was an agreement between the Defendants in which the 1st and 2nd Defendants used the suit property as collateral to secure the loan. PW1 proceeded to tender Loan Agreement dated 04th June 2003 between the Defendants which was admitted as Exhibit P2. 7 PW1 testified that the 1st and 2nd Defendants did not ask for consent of Plaintiffs to use the suit property as collateral. The Plaintiffs instructed the 1st and 2nd Defendants to pay the outstanding balance under Exhibit P2 to the 3rd Defendant. It is PW1’s testimony that the Plaintiffs were later informed by the 1 st Defendant that the 3rd Defendant had rejected the 1st and 2nd Defendants proposal to settle the debt under Exhibit P2 and vacate the suit property as requested by 1st Defendant. PW1 said that upon the 3rd Defendant rejection, the Plaintiffs decided to send the 3rd Defendant a demand note through their lawyer demanding for mesne profit and vacate possession of the suit property. PW1 testified that the suit property is in possession of the 3rd Defendant to date. Concluding his testimony, PW1 prayed the court to order Judgment and Decree as prayed in the Plaint filed in court and that the Plaintiffs, 1st and 2nd Defendants should be declared the rightful owners of the suit property. During cross examination, PW1 informed the court that the Plaintiffs were not aware that the suit property was under 3 rd Defendant’s possession until 2013 when PW1 wanted to construct in the suit property. The witness further informed the court that, 8 1st Defendant further testified that Exhibit P1 came after Exhibit P2 was signed by the Defendants and that the 1st and 2nd Defendants were conducting their business in the suit property hence had exclusive use of the suit property. PW2 AMISA ABDULRAHMAN GURNAH and PW3 LATIFA ABDULRAHMAN GURNAH testimonies were the same to all that was testified by PW1. All Plaintiffs’ witnesses cemented on the fact that the Plaintiffs had agreed that the suit property shall not be sold or used as security for any loan by any of the heirs hence the act of the 1st and 2nd Defendants to use the suit property as collateral is void ab initio. Both PW2 and PW3 during cross examination by Ms. Robi and the Late Dr. Lamwai, Advocates for the Defendants respectively did not tender any document to evidence the agreement between siblings that either of the heir should not use the suit property as a security for any loan or lease the suit property to other person. It is after the PW3’s testimony, the Plaintiffs prayed to close their case; the prayer which was accordingly granted. There was no testimony recorded on behalf of 4th Plaintiff who didn’t turn before the court. 9 On the contrary, the 1st Defense witness (DW1) was ABDULSALAM ABDULRAHMAN GURNAH, businessman who lives in Kariakoo – Dar es Salaam and the 1st Defendant. He testified as the sole witness for the 1st Defendant’s case. DW1 admitted that he pledged the suit property to the 3rd Defendant as a collateral for a debt of TZS 47,250,800 being the outstanding balance from various goods supplied to the 1st and 2nd Defendants by the 3rd Defendant. It is DW1’s testimony that as Administrator of Estate of their late father, he had capacity to pledge the suit property as collateral. DW1 informed the court that he did not intend to default payment of the monies under Exhibit P2 but due to some problems in his business hence he could not pay the outstanding amount within the agreed time. DW1 testified further that upon failure to honor the terms of the Agreement with the 3rd Defendant, on 1st September 2005 around 08:00 hours two Indians visited the suit property and broke into the house. The visitors informed DW1 that they were working with the 3rd Defendant and that they were instructed by one GULAM DEWJI to take over the suit property. It is DW1 testimony that there was no document allowing the two Indians to break into the suit property and prevent the 1st and 2nd Defendants from continuing doing business in the suit property. 10 The witness testified to the effect that at the time of execution of Exhibit P2, the 3rd Defendant was informed that the Letter of Offer (Exhibit D2) was not in the names of the 1st and 2nd Defendants rather their late father and uncle; Abdulrahman Abdallah Gurnah and Abubakar Abdallah Gurnah. DW1 stated that he did not involve his siblings – the Plaintiffs, when he was pledging the suit property to the 3rd Defendant though the suit property is co-owned. DW1 admitted that by not seeking consent from other co-owners, DW1 and DW2 were wrong. It is DW1 testimony that the 3rd Defendant should pay rent for all the period that they stayed in the suit property. Concluding his evidence, the witness prayed the court to declare the Plaintiffs, 1st and 2nd Defendants as lawful owners to the suit property as the same was inherited by them from their late father’s estate. Cross examined by the Late Dr. Lamwai the then Advocate for the 3rd Defendant, if there was any police complaint filed for the alleged invasion by the 3rd Defendant, DW1 answered they did not file any police complaint. The witness further said that between Exhibit P1 and P2, Exhibit P2 came first and that in the Letter of Offer (Exhibit D2) it does not show the names of their late father 11 as alleged earlier by the witness. The witness further admitted that at the time when he was signing Exhibit P2, he has already started the process of transferring the suit property to the Plaintiffs and himself at the Land Registry, and that he did not have good title to transfer but he misrepresented that fact to the 3rd Defendant. DW2 was SALEHE ABDULRAHMAN GURNAH a businessman who testified to the effect that he entered into loan agreement (Exhibit P2) with the 3rd Defendant for the outstanding balance for various goods which were supplied to the 1st and 2nd Defendants for their business. The witness informed the court that he pledged the suit property as a security to the Loan Agreement and that he intended to repay the debt amount but he failed due to business problems. DW2 further informed the court he pledged the property without informing his siblings and that the 1st Defendant had already surrendered Letter of Offer to the Land Office at the time when they pledged it as security to the 3 rd Defendant. DW2 testified to the effect that the 3rd Defendant invaded the suit property sometime in September 2005 and that to date the 3rd Defendant is still in possession of the suit property. The witness informed the court that they have tried to approach Mr. GULAM DEWJI from the 3rd Defendant’s company to try to pay 12 the outstanding debt, but the said Gulam Dewji had refused to meet with the 1st and 2nd Defendants. Concluding his testimony, the witness averred that, indeed the suit property is owned in equal shares between the Plaintiffs, 1st and 2nd Defendants and that the 3rd Defendant is wrongly in possession of the suit property. During cross examination by 3rd Defendant’s Counsel Advocate Roman Selasini Lamwai, the witness informed the court that there was no police report lodged against the 3rd Defendant for the alleged invasion to the suit property by the 3rd Defendant. The witness also confirmed that at the time of execution of the agreement, they were already in process of transferring the suit property into their names, and that they indeed misrepresented to the 3rd Defendant about the ownership of the suit property. DW3 was MOHAMED ZULFIKAR LAKHA, Sales Executive of the 3rd Defendant for 20 years upon examined in chief by his Advocate, testified to the effect that he knows the 1 st and 2nd Defendants as former customers of the 3rd Defendant who used to purchase various products from the 3rd Defendant. DW3 informed the court that the 3rd Defendant supplied the 1st and 2nd Defendants with various goods such as wheat flour and cooking oil on credit 13 for which they were supposed to pay for the goods within 15 days after the date of invoice. The witness informed the court that the 1st and 2nd Defendants paid the credited amount but there was an outstanding balance of TZS 47,250,800. DW3 informed the court that as sales person, he communicated with the 1st and 2nd Defendants who agreed to enter into an Agreement with the 3rd Defendant committing themselves to pay the outstanding debt within a period as seen in Exhibit P2. The witness further informed the court that the 1st and 2nd Defendants pledged the suit property as collateral to the outstanding amount and that it was agreed under Clause 5 of Exhibit P2 that in case of default, the 3rd Defendant can take over possession of the suit property and use it to recover the outstanding debt. DW3 testified that at the time of execution of Exhibit P2, the 1st and 2nd Defendants handed over to the 3rd Defendant a certified Letter of Offer. The witness proceeded to tender the Letter of Offer which was pledged to the 3 rd Defendant by the 1st and 2nd Defendants as Exhibit D1. DW3 informed the court that the 1st and 2nd Defendants informed the 3rd Defendant that they did not have the original Letter of Offer because it was lost and that the 1st and 2nd Defendants informed the 3rd 14 Defendant that the suit property was theirs hence they have power to pledge it. DW1 further informed the court that, at no material time did the 1st and 2nd Defendants acted in a way which suggests that the suit property does not belong to them or it is in their late Father’s name as they alleged later. Since they had good business relationship with the Defendants. DW3 informed the court that the 3rd Defendant believed that assertion. DW3 informed the court further that the 1st and 2nd Defendants failed to pay the debt within the agreed time. However, upon failure to pay the outstanding debt, they held a meeting with the Defendants and agreed that the 3rd Defendant should transfer the suit property to itself as a recovery of the outstanding amount with interest. The 1st and 2nd Defendants handed over the suit property to the 3rd Defendant and that the 3rd Defendant is in the possession of the suit property from that time to date. DW3 proceeded to tender letter dated 07th November 2005 which was admitted as Exhibit D3. Upon testifying, witness informed the court that the 3rd Defendant later received a demand from the Plaintiffs, 1st Defendant and 2nd Defendant demanding vacant possession of the 15 suit property on the reasons that the 3rd Defendant is illegally occupying the suit property. The witness proceeded to tender letter dated 2nd December 2013 which was admitted as Exhibit D2. DW3 said that through their lawyer, they refuted the allegations of the demand and that they proceeded to advise the Plaintiffs to take any legal action as they were entitled to ownership of the suit property (Exhibit D4). Cross examined by Advocate Simon Mkwizu for the 1st and 2nd Defendants, the witness said that they did not visit Land Office to find on the authenticity of the Letter of Offer and they did not enquire on the history of ownership of the suit property from the Local Government office. When cross examined by Advocate Raya for the Plaintiffs he informed the court that the 1st and 2nd Defendants pledged the suit property as security when they defaulted to pay the credit amount for the goods supplied which resulted to outstanding of TZS 47,250,800. The witness further informed the court that though he did not search the land registry about the authenticity of Exhibit D1 but he believed the information he received from the 1st and 2nd Defendants. DW3 further testified that though there are six names in Exhibit P1 but the 3rd Defendant is still entitled to the suit 16 property and that the 3rd Defendant is a victim in the transaction hence it should not be punished for misrepresentations by the 1 st and 2nd Defendants. Concluding his evidence, the witness prayed the court to declare the 3rd Defendant as a bonafide owner of the suit property and dismiss the Plaintiffs’ claim. DW4 was ADELFRIDA KAMILIUS LEKULE a Land Officer from Commissioner for Lands – Dar es Salaam. The witness testified to the effect that according to Certificate of Title (Exhibit P1), the suit property is currently owned by six individuals in equal shares. The witness proceeded to name the owners of the suit property to be the Plaintiffs, the 1st Defendant and 2nd Defendant. DW4 informed the court as per the records available to the Commissioner’s office, the suit property was previously owned by Abdulrahman Abdallah Gurnah and Abubakar Abdallah Gurnah. The witness stated that on 16th July 1997, the Commissioner received an application for transfer of ownership from the 1st Defendant who informed the Commissioner that, as an administrator of the estates of their late father and one of the owners of the suit property, Abdulrahman Abdallah Gurnah, he is applying to transfer the suit property into the names of the heirs of the deceased. DW4 17 proceeded to tender application for transfer of the suit property from the 1st Defendant dated 16th July 1997 which was admitted as Exhibit D5. The witness informed the court that Exhibit D5 was accompanied with transfer form and an affidavit that one Abdulsalam Abdulrahman Gurnah, the 1st Defendant herein is an Administrator of Estate of the Late Abdulrahman Abdallah Gurnah. DW4 informed the Court upon receiving Exhibit D5, vide Commissioner’s Letter dated 13th October 1997 the Commissioner informed the 1st Defendant to submit Original Letter of Offer and Letter of Administrations of the estate of the late Abdulrahman Abdallah Gurnah. The witness proceeded to show Commissioner’s Letter dated 13th October 1997, original Letter of Offer, application for transfer of suit property, transfer document and Affidavit attesting the 1st Defendant as Administrator of Estate of his father which were admitted as Exhibit D6 Collectively. DW4 further informed the court that though the Commissioner vide his letter dated 13th October 1997 among other documents requested the 1st Defendant to submit Letter of Administration of the estate of the Late Abdulrahman Abdallah Gurnah, looking at the documents which were submitted, there is no Letter of Administration submitted. Instead there is a document 18 which is an Affidavit attesting the death of the deceased affirmed by the 1st Defendant and dated 04th February 1997 from Kariakoo Primary Court which does not qualify as Letter of Administrations or be used to substitute as a letter of Administrations to allow the Commissioner to use it in transfer of this nature. The witness informed the court further that if it is proved that the documents which were used to transfer ownership of land were not proper and therefore, the ownership of the land reverts back to the former owners of the property. DW4 testified further that the Commissioner received a letter dated 1st September 2003 from Kinondoni Municipal Council which requested for relevant documents concerning the suit property to enable the Municipal Council to transfer the suit property. The Commissioner vide his letter dated 25th September 2003 supplied the Municipal Council with all relevant documents required in transferring the suit property. The witness proceeded to tender letters dated 1 st September 2003 and 25th September 2003 which were admitted as Exhibit D7 Collectively. DW4 informed the court that as per the Commissioner’s records, the original Letter of Offer was submitted to the Commissioner on 26th November 1997. However, the record does 19 not provide the name of the person who submitted it. DW4 informed the court further that in case it is found that there is any error which occurred at the time of transfer of the suit property, the Commissioner may apply to the Registrar of Title to rectify the said error under Section 99 of the Land Registration Act. But if Commissioner finds that the documents which were used to transfer the landed property are not proper then the Commissioner shall revert ownership of the said land property to the original owners. DW4 testified that in the present case, in absence of Letter of Administrations of the late Abdulrahman Abdallah Gurnah, then the whole process of transfer is void and the suit property shall revert to the original owners under the Letter of Offer. During cross examination, DW4 informed the court that though the Commissioner proceeded to transfer the suit property to the current owners at that time, that does not validate the process if it is now found that there was no Letter of Administrations which empowered the Commissioner to transfer the suit property. The witness testified that the only remedy now is to revert the ownership to the original owners and for the heirs of the late Abdulrahman Abdallah Gurnah to initiate transfer of the suit properly upon obtaining a Letters of Administration. 20 The last Defense witness was DW5 – GULAMABBAS HASSANALI FAZAL DEWJI a businessman and Chairman of the 3rd Defendant. It is his testimony that he signed the contract between the 3rd Defendant and the 1st and 2nd Defendants. DW5 informed the court that the said contract was a result of default by the 1st and 2nd Defendants for the outstanding balance for various products supplied to the 1st and 2nd Defendants. DW5 stated that his role ended by signing the contract (Exhibit P2) and that he did not know anything which was going on as once he signs the contract, all issues arising in respect of any contract is handled by the 3rd Defendant’s Legal Department. The witness informed the court that the 1st and 2nd Defendants have never approached him with a proposal of paying the outstanding debt and interests if any. DW5 stated that as a businessman, if the 1st and 2nd Defendant had approached him with intention to pay, he would have accepted the money. DW5 further informed the court that the 1st and 2nd Defendants have never approached his office with intention to make appointment to meet him and that the witness had never sent two Indians to the suit property as alleged by the 1st Defendant when testifying to the court. 21 During cross examination, DW5 testified that it is not his job to conduct search to the land registry to establish the authenticity of the documents and that is the job of the legal Department. DW5 further informed the Court that he does not know the owners of the suit property and that the witness has never visited the suit property. Cross examined by Advocate Mkwizu for the 1st and 2nd Defendants, witness informed the court that the 1st and 2nd Defendants intentionally misrepresented the 3rd Defendant by submitting a Certified Copy of the Letter of Offer while knowing that they do not have good title over the suit property. Witness further testified that there has never been a complaint from the 1st and 2nd Defendants on possession by the 3rd Defendant because the 1st and 2nd Defendants handed over the suit property to the 3rd Defendant. Concluding his testimony, DW5 prayed to the court to dismiss the Plaintiffs case since the 1st and 2nd Defendants misrepresented to the 3rd Defendant about the ownership of the suit property intentionally knowing that the suit property is co-owned with their siblings; and that the 3rd Defendant should not suffer in this misrepresentation. Hence DW5 prayed for the court to declare the 3rd Defendant as a rightful owner. 22 It is after DW5th testimony, Defendants closed their case respectively whereby the court ordered parties to file their respective final submissions. It is after that order I now determine this matter which took almost seven years of litigation. I have with keen attention, sensibly and significantly considered the evidence adduced by all parties, and to a great extent the reasoned final submission of Learned Advocates, that is Counsel for the Plaintiffs Ms. Raya Nassir, Mr. Simon Mkwizu Counsel for the 1st and 2nd Defendants; and Mr. Roman Selasini Lamwai Counsel for the 3rd Defendant. I am grateful for their respective final submissions of which have assisted in my better understanding of their cases. In due determination of the issues, I shall first restate the legal principles guiding this court it deciding civil matter. It in the settled law that he who alleges must prove. This principle is founded in Section 110(1), (2), 111, 112 and 113 of the Evidence Act, Cap 6 [R.E 2019] which provides: “110. (1) whoever desires any court to give Judgment as to any legal rights of liability dependent on the existence of facts which he asserts must prove those facts exist. 23 (2) when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person; 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side; 112. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person; 113. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.” These principles are well discussed in the case of CIVIL APPEAL NO. 45 OF 2017 PAULINA SAMSON NDAWAVYA VS. THERESIA THOMAS MADAHA, at Mwanza, it was observed that: “It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 24 6[RE 2002]. It is equally elementary that since the dispute was in Civil Case, the standard of proof was on a balance of 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. If any authority will be required on this, a statement by Lord Denning in Miller vs. Minister of Pensions [1937] 2 All. ER 372 will be sufficient to emphasize the point and we think we can do no better than reproducing the relevant part as under:- “If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say-we think it more probable than not, the burden is 25 discharged, but, if the probabilities are equal, it is not….” (at page. 340)”. A synopsis by the leaned Author Sarkar in SARKAR ON EVIDENCE, 14TH EDITION 1993 at page 1339 persuasively commenting on Indian provision of the law similar to our Civil Procedure Code on the burden of proof partly writes the following: “……that the initial onus is always on the Plaintiff and if he discharges that onus and makes out a case which entitled him to relief, the onus shifts on to the Defendant to prove those circumstances, if any which would disentitle the Plaintiff to the same (BASIRUDDIN VS. SAAEBULLA, 32 CW No. 160).” In the matter under scrutiny, since it is the Plaintiffs who are alleging that the suit property is theirs, the onus of proof lies on them. The question under consideration is whether the Plaintiffs have ably discharged this burden. As stated earlier before commencement of hearing, parties have agreed on issues and will answer the issues as hereunder. In resolving the first issue, I feel it is important to restate portions of the evidence presented before the court. 26 First, that the suit property is situated at Plot No. 18, Block 8, Magomeni Area, within Kinondoni Municipality in Dar es Salaam; Second, that the suit property was previously owned by two brothers namely Abdulrahman Abdallah Gurnah and Abubakar Abdallah Gurnah; Third, that the 1st and 2nd Defendants pledged the suit property to the 3rd Defendant as a collateral for the Agreement of payment of TZS 47,250,800 and deposited a Certified copy of the Letter of Offer with the 3rd Defendant on 04th June 2003; Fourth, that the Plaintiffs, 1st and 2nd Defendants inherited the suit property from their late father Abdulrahman Abdallah Gurnah and they currently own the suit property in equal shares; Fifth, that the 1st and 2nd Defendants defaulted payment of the outstanding amount and the 3rd Defendant took over possession of the suit property sometime in September 2004; Sixth, the suit property is currently occupied by the 3rd Defendant who exercised its rights under Clause 5 of the contract between the 1st and 2nd Defendants; and the 3rd Defendant; 27 Seventh, the Plaintiffs, the 1st and 2nd Defendants sent a demand note to the 3rd Defendant demanding vacant possession of the 3rd Defendant from the suit property; Eighth, the six parties who demanded vacant possession of the suit property are split as Plaintiffs and Defendants while instituting the instant suit they joined the 3rd Defendant. From the records and parties’ testimonies on the issue, I find the controversy is on who is the lawful owner of the suit land. In determining this issue I will direct my mind as to whether the Plaintiffs, 1st and 2nd Defendants are lawful co-owners of Plot No. 18, Block 8, Magomeni Area Dar es Salaam? As spotted above, the suit property is currently occupied by the 3rd Defendant who alleges to have obtained it by virtue of an Agreement executed between him and 1st and 2nd Defendants. I read from Exhibit P-2, the Agreement that the suit property was pledged as a collateral to secure the 3rd defendant against a repayment of goods supplied to 1st and 2nd Defendants on credit. It is evident that the said Defendants deposited the certified Letter of Offer at the time of signing the Agreement. In the course of proving that the suit property belongs to the Plaintiffs, as the burden of proof lies on them, the Plaintiffs 28 submitted for evidence the Certificate of Title which shows that the suit property is co-owned by the Plaintiffs, 1st and 2nd Defendants in equal shares. The said Certificate of Title which was issued on 20th August 2004 was admitted for evidence as Exhibit P1. The Plaintiffs further informed the court that they appointed the 1st Defendant to be Administrator of the estate of their late father after he obtained Letters of Administrations where upon he started the transfer process of the suit property into the names of the Plaintiffs, 1st and 2nd Defendants. Moreover, the 1st Defendant admitted to have pledged the suit property as a collateral to the 3rd Defendant on 04th June 2003. The 1st and 2nd Defendants further admitted that at the time of signing the Agreement with the 3rd Defendant, the 1st Defendant had already surrendered the original Letter of Offer at the Ministry of Lands for the purpose of transferring the same to the names of the Plaintiffs, 1st and 2nd Defendants. The 3rd Defendant without knowing the truth and bonafidely, accepted the Letter of Offer knowing that its debt is secured. It is the testimony of PW1, PW2 and PW3 that it was agreed by the heirs of the late Abdulrahman Abdallah Gurnah that the heirs should use the suit property for business and that they may develop the suit property, but the suit property should not be 29 used to secure any loan. This fact however, is not evidenced by any document. Further to that, a witness from Commissioner for Lands office, DW4 testified to the effect that according to the records available in the Land Registry, the 1st Defendant did not submit Letters of Administrations even after he was instructed to do so by the Commissioner. The question I now ask myself is, if no Letter of Administrations was submitted to the Commissioner’s Office, was the transfer of suit property into the names of the Plaintiffs, 1st and 2nd Defendants proper in law and therefore valid? I have noticed illegalities in transferring the suit property from the original owners under Letter of Offer to the alleged owners in the Certificate of Title No. 56142 as well explained by DW4. The Commissioner for Lands is empowered under Section 26, 27, 28 and 29 of the Land Act, Cap. 114 [R.E 2002] to grant Right of Occupancy over landed properties. I understand that the suit property was previously owned under Letter of Offer and not right of Occupancy. But since the Commissioner has stopped to issue Letters of Offer and due to enactment of the Land Act, ownership falls now under the Right of Occupancy which the Plaintiffs’, 1st and 30 2nd Defendants were granted by the Commissioner for Lands on 20th August 2004. The law further provides for incidents of granted Right of Occupancy under Section 22 of the Land Act and that a granted Right of Occupancy shall be registered under the Land Registration Act. The law provides on the procedure of transfer of landed property when there is a death of the owner. This type of transfer is called disposition by transmission on death. According to Section 67 and 68 of the Land Registration Act, Cap. 334 [R.E 2019], a legal representative of a deceased owner of a land may apply to the Registrar of Lands to be registered as owner in the place of the deceased. The provision of the law provides: “67. On the death of the owner of any estate or interest, his legal personal representative, on application to the Registrar in the prescribed form and on delivering to him an office copy of the probate of the will or letters of administration to the estate of the owner, or of his appointment under Part VIII of the Probate and Administration of Estates Act or the fourth schedule to the 31 Magistrates’ Courts Act shall be entitled to be registered as owner in the place of the deceased. 68. 1) No asset to the vesting of any devices of bequest of any registered estate or interest, or disposition by legal personal representative, shall be registered unless such estate or interest is registered in the name of such legal personal representative. 2) Every asset to the vesting of any devise or bequest of any registered estate or interest shall be in the prescribed form.” It is clear that this provision requires the ownership of land in occurrence of death of the owner of the land shall first be transferred to the legal representative who has either letter of Probate or Letters of Administration; who then will transfer the same to the heirs of the deceased by making an application through prescribed form. During hearing, PW1, PW2, PW3, DW1 and DW2 they all testified that the 1st Defendant initiated transfer process of the suit property into the names of the Plaintiffs, 1st and 2nd Defendants. DW4, an officer from the Commissioner’s Office testified that 32 according to the records, the documents which initiated transfer of the suit property does not include Letters of Administration as alleged rather an Affidavit which was not required. DW4 tendered Exhibit D5 and D6 which includes an Affidavit attesting the death of the Plaintiffs’ father and the appointment of the 1st Defendant as the Administrator of Estate of their Late father. It also includes a document with a heading “Transfer of Right of Occupancy”, all these documents inform the Commissioner for Lands about the intention of the Applicant to transfer the suit property into the names of the Plaintiffs, 1 st and 2nd Defendants. According to DW4, upon receiving application for transfer from the 1st Defendant, the Commissioner for Lands proceeded to transfer the suit property and issued Certificate of Title in the names of the Plaintiffs, 1st and 2nd Defendants (Exhibit P1). It was testified by DW4, if the documents which lead to transfer of suit property were not proper then the suit property reverts to the ownership of original owner. Looking at these documents, I am satisfied that the suit property was never transferred into the names of the Legal Representative. Not only that, but there has never been a Probate or Letters of Administration as it is required under the law to empower the 33 Commissioner for Lands to proceed with the transfer of the suit property from the former owners to his heirs. It is my duty to ensure that the provisions of law are adhered to. Section 67 and 68 of the Land Registration Act are coached in mandatory terms by inserting the word “shall” henceforth whatever requirements found therein must be adhered before the names of the beneficiaries are inserted in the Land Registry. From the above provision of the law, it is clear that the provisions of Sections 67 and 68 are mandatory. According to Section 53 (2) of the Interpretation of Laws Act Cap. 1 of the when the word is used to confer a function the same must be performed. The section reads as follows: “(2) Where in a written law the word “SHALL” is used in conferring a function, such word shall be interpreted to mean that the function so conferred MUST be performed.” (Emphasis added) I understand that the ownership of suit property instead of being transferred to the name of the Administrator, the Commissioner for Lands transferred it directly to the names of the beneficiaries which is contrary to the requirements of the law. However, and even if it is assumed that this transfer directly into 34 the names of the Plaintiffs, 1st and 2nd Defendants was properly done by the Commissioner for Lands, the same was done in absence of valid Letter of Probate or Letter of Administration of Estate of the late Abdulrahman Abdallah Gurnah, which is contrary to mandatory requirement of the stated above, where disposition of land by way of transmission is involved. This disposition is a bit unique as the Commissioner for Lands and the Registrar of Titles are strictly required to ensure there is a probate or Letters of Administration before they effect transfer of the property. Although the Plaintiffs’ Counsel might be right that evidence on ownership of land is through Certificate of Title of Right of Occupancy, this is mere prima facie evidence of ownership. In the instant case, there is overwhelming evidence to prove that the transfer to the Plaintiffs and 1st and 2nd Defendants did not follow the procedures stipulated by the law as the vital document to enable the Commissioner for Lands and Registrar of Titles is missing. But further neither the Plaintiffs nor 1st and 2nd Defendants was able to tender the Letters of Administration in court. It is the law that failure to produce material evidence like the letter of administration in the present suit demands this Court to draw adverse inference and which I do. Refer the case of JALUMA GNERAL SUPPLIES VERSUS TANBIC BANK (T) LTD; Civil 35 Appeal No. 11 of 2013 pg. 12; also Section 122 of the Evidence Act (supra). From the above, it is my firm observation that from the evidence adduced, and in absence of valid Letters of Administration or probate of the of the late father of the Plaintiffs, 1st and 2nd Defendants; and the fact that the transfer was registered directly from the name of the late father and Plaintiffs’ uncle into the names of the Plaintiffs, 1st and 2nd Defendants; the Title of the suit property never legally passed to the said Plaintiffs, 1st and 2nd Defendants. The legal requirement stated above shall cover Plaintiffs, 1st and 2nd Defendants even if they adduce non participation. The principle of law the law “ignorantia juris non excusant” which means “ignorance of law is not an excuse” applies to the Plaintiffs, 1st and 2nd Defendants. In the final analysis, the 1st issue as to whether the Plaintiffs, the 1st and 2nd Defendants are the lawful co-owners of Plot No. 18 Block 8, Magomeni Area, Dar es Salaam is answered in the NEGATIVE. Further, this court holds that the Plaintiffs, the 1st and 2nd Defendants are not lawful co-owners to disputed land on reasons well-articulated above. 36 The 2nd issue is whether Plot No. 18, Block 8, Magomeni Area, Dar es Salaam was lawfully given as security under the loan agreement between the 3rd and the 1st and 2nd Defendants without the Plaintiff’s consent? and Tthe 3rd issue is whether the 3rd Defendant’s occupation of Plot No. 18, Block 8 Magomeni Area, Dar es Salaam is lawful?, I shall decide the conjunctively because they are related and share similar answers. These issues should mot detain me much having answered the first issue in detailed and negatively. The contract between the 1st, 2nd and 3rd Defendants is governed by the Law of Contract Act, Cap. 345 [R.E 2019]. Exhibit P-2 is a contract freely entered by the parties concerned. It is the law that all contracts are agreements if they are freely made by the parties. Refer the case of SIMON KICHERE CHACHA VERSUS AVELINE M. KILAWE, Civil Appeal NO. 160 of 2018 CAT pg, 8/9. In the instant case, the 1st and 2nd Defendants admit to have entered into the contract with the 3rd Defendant freely. They testified that they thought they would be able to pay the outstanding debt before the expiry of payment period provided in the contract. Unfortunately, that was 37 not the case because they incurred some problems in their business. There is also evidence, Exhibit D3 which shows that after default by the 1st and 2nd Defendants, the suit property was handed over to the 3rd Defendant by the 1st and 2nd Defendants. Although the 1st and 2nd Defendants tried to impress on the court that the 3rd Defendant took possession forcefully I see no merits in this evidence and it is mere afterthought as there was no any proof to the forceful entry to the suit property. For instance there is no evidence that someone be it the 1st or 2nd Defendant who went forth to show that there was any complaint reported to Police. But is does make sense to me that an invader of a landed property can be left to stay for almost 8 years without there being any criminal action taken against him? In absence of the aforesaid, this I find this evidence incredible and unreliable. It should also be noted that according to Exhibit D3 which was not objected, the suit property was peacefully handed over to the 3rd Defendant after the 1st and 2nd Defendants failed to pay the outstanding debt as agreed in Exhibit P-2. Since the suit property was not in possession of the Plaintiffs, 1 st and 2nd Defendants, then it goes without saying that the 1st and 2nd Defendants did not need consent from the Plaintiffs to pledge the suit property as collateral to the debt they owed the 3rd 38 Defendant. Moreover, the fact that the 1st and 2nd Defendants did not disclose to the 3rd Defendant that the original Letter of Offer was surrendered to the Commissioner for Lands at the time of the signing the contract does not invalidate the contract entered between the 1st, 2nd and 3rd Defendants. As testified by DW3, the 1st, 2nd and 3rd Defendants were conducting business for a long time and in good faith therefore the 3rd Defendant acting bonafide trusted the 1st and 2nd Defendant and acted accordingly. The 1st and 2nd Defendants are barred by the principle of estoppel, under section 123 of the Evidence Act. Again, the testimony of DW1 and DW2 contradict on this material fact with Exh P-2. The latter is very clear that the 1st and 2nd Defendants had yet commenced transfer processes during the material time. It is well known that when facts, required to be reduced in writing, are so written no oral evidence should be termed subsequently to contradict the written evidence. Section 100 of the Evidence Act is relevant here. In that regard I shall disregard the testimonies of 1st and 2nd Defendants on the matter, outright. It is also the evidence in Exh P-2 under Clause 5 that the 3rd Defendant can exercise its right to possess the suit property and use it to settle the outstanding amount, anyhow as it deems fit if the Defendants fails to settle their liabilities basing on their 39 contract. As said above, the 3rd Defendant entered the Agreement honestly believing that the 1st and 2nd Defendant shall honor the terms of the contract which includes, to possess the suit property and use it to settle the outstanding amount. I shall therefore answer the second issue in affirmative that the suit property was lawfully given as security under the agreement between the 3rd and the 1st and 2nd Defendants Having answered the 2nd issue in affirmative, answer to the 3rd issue becomes obvious, as it is answered in the AFFIRMATIVE as well that the 3rd Defendant’s occupation of Plot No. 18, Block 8, Magomeni Area, Dar es Salaam is lawful, in respect of Clause 5 of the Exhibit P2 which permits the 3rd Defendant to take over the suit property and use it to secure the outstanding debt and any interest accrued as a result of non- payment of the debt. Before I pen off, I wish to say a word on Exh. D-2 which was tendered in Court. According to this exhibit it is proven that the Plaintiffs and 1st and 2nd Defendants all engaged the services of Aksa Attorneys who wrote a demand letter to the 3rd Defendant. Unfortunately when they knocked the doors of this court they decided to split, 4 filed the case as Plaintiffs and sued their two 40 brothers as 1st and 2nd Defendants. On this, I can see the compromise by the 1st and 2nd Defendants to have their share after they have deceit the Plaintiffs on one hand and on the other hand, still want to benefit from the situation by still having their cake of which they have already eaten. At this point, I would like to remind Parties herein that, if they have decided to enter into any contract under the Companies Act of this Land, they have to live and abide to the terms and conditions as stipulated in their contract as they have entered into the same freely. As to fourth and last issue, to what reliefs are the parties entitled to? This Court orders as follows: i. That the Plaintiffs’ case is dismissed for lacking any merits. ii. The 1st and 2nd Defendants claims proposition that the names appearing on Exh.P-1 be recognized as owners is dismissed. The court takes note further that the prayers never constitute part of the Defendants pleadings. iii. It is further ordered that the 3rd Defendant under the circumstances proceed to the Land Authority (The 41 Registrar of Land)for further action and procedure as per Section 71 of the Land Registration Act and further and be registered as lawful owner of the suit property for the reasons stated above. iv. Each party to bear own costs. Ordered accordingly. The Right of Appeal Explained. L. E. MGONYA JUDGE 31/03/2023 42 43