Land Case No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 174 OF 2022 AGRIPINA BALANZIZE......................................................................... PLAINTIFF VERSUS VICTOR MATHIAS MALEMA.................................................................. DEFENDANT JUDGMENT 19th to 26th September, 2024 E.B. LUVANDA, J In the amended plaint, the Plaintiff named above is claiming against the Defendant above named for the following reliefs: One, a declaration that the un-surveyed landed property with the house built thereon situated at Mbezi Juu within Kinondoni Municipality in Dar es Salaam is the Plaintiff's matrimonial home and property; Two, a declaration that the judgment and decree of this Court in Land Case No. 166 of 2011 did not determine the Plaintiff's proprietary interest and title over the suit property; Three, an order that the suit property with the house thereon is not liable for attachment and sale in execution of the decree in Land Case No. 166 of 2011 by the Defendants and/or their agents; Four, an order for permanent injunction restraining the Defendant as well as her agents from trespassing, selling or otherwise disposing the suit property; i Five, costs of the suit to be borne by the Defendants; Six, any other relief that this Court may deem fit to grant. By way of a counter claim, the Plaintiff to the counter claim who is the Defendant to the main suit, claim for: One, for declaratory order that the Plaintiff (sic, main suit) is the trespasser and unlawful occupies the Defendant's (sic, to the main suit) premises situated at Mbezi-Kinondoni Dar es Salaam; Two, for orders of eviction of the Plaintiff (sic, in the main suit) from the Defendant's premises situated at Mbezi-Kinondoni Dar es Salaam; Three, for order of payment of mesne profit to the tune of TZS 500,000 per month from the date of unlawful occupation of the premises to the date of vacant possession; Four, payment of general damages to be assessed by the court; Five, an order for demolition of the structural building unlawful constructed in the suit premises; Six, costs of the suit; Seven, for any orders as the Court will deem just and fit to grant. In this suit the two competing parties each had a telltale of his or her own. While the Plaintiff (Agripina Balanzize, PW1) who wedded Ndiruka Nyamweru Nkmata (at large) on 21/07/2001 as per marriage certificate exhibit Pl, claim title over a suit property having purchased the same from Yasina Msama in December 2001 (TZS 1,200,000), 17/07/2002 (TZS 1,300,000) and 26/01/2003 (TZS 1,000,000). According to PW1 the sale agreement for the tranches were 2 lost (as per hatiya kuuza shamba Mbezi J dated 26/01/2003 exhibit PIO police loss report exhibit P2) amid disappearance of her husband one Ndiruka Nyamweru Nkmata. PW1 asserted that Yasini Msama (deceased) purchased the suit land from Nwaka Mwansaku who was the administrator of the estate of the late Gloria Malema (Defendant's mother). Therefore, PW1 asserted to have interest over the suit land by virtue of her contribution towards its acquisition from the profit she generated from a business of pharmaceutical. As such PW1 termed the suit land as a matrimonial assets. A fact that PW1 and her husband purchased a suit property from Yasini Msama was supported by Rashid Salum Ikenge (PW3) who bragged being neighbour, along Edward Eliona Urio (PW2) who was a neighbour and landlord to PW1 regarding a business of pharmacy. On the other hand, the Defendant (Victor Mathias Malema, DW1) asserted that his title is derived from inheritance from his mother the late Grolia Atuganile Malema who passed away back on 25/06/1984 while DW1 was still at young age. DW1 stated that the late Grolia Malema purchased the suit land from Abdallah Suleiman on 10/03/1980. According to DW1 they sued Yasin Msama before Mwamani Ward Tribunal, where they (DW1 along her sister the late Julieth Jackson Malema were declared lawful owner). It was the evidence of DW1 that they successful sued the husband of the Plaintiff herein vide Land 3 Case No. 166 of 2011 where this Court declared them as lawful owner, as per the judgment exhibit P3. PW1 faulted exhibit P3 for reason that she was not a party therein; a claim that the suit property was a matrimonial property was not deliberated therein; a judgment is marred with illegality, arguing it was procured illegally for the ground that at the time of suing in exhibit P3 which was filed on 22/09/2011 as per a plaint exhibit P7, DW1 and sibling were not administrators of the estate of the late Grolia Atuganile Malema, arguing the administrator by then was Nwaka Mwansaku, as per letter of administration exhibit P8 depicting DW1 was appointed in 2012 after the death of the previous administrator one Nwaka Mwamsaku who passed away amid revision proceedings as depicted in revision order dated 24/08/2011 exhibit P6. It was the contention of PW1 that she preferred objection proceedings against execution in exhibit P3, which was dismissed by this Court on 2/10/2020 as per ruling exhibit P5. Thereafter she attempted to seek extension of time to file revision against exhibit P3 but was refused by the apex Court, which advised PW1 to file a fresh suit against exhibit P3. Hence this suit. Issues for determination: One, whether the suit property is lawfully owned by the Plaintiff to the main suit as matrimonial home or property; Two, whether the suit property is subject to attachment and execution in respect of decree in 4 Land Case No. 166 of 2011; Three, whether the Defendant to the counter claim is a trespasser to the suit property; Four, what reliefs parties are entitled. Issue number one, whether the suit property is lawfully owned by the Plaintiff to the main suit as matrimonial home or property. This suit was filed under the auspices of the provision of Order XXI rule 62 of the Civil procedure Code, Cap 33 R.E. 2019, which provide, 'Where a claim or an objection is preferred, the party against whom an order in made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive' This is because in Land Case No. 166 of 2011 exhibit P3 where the husband of the Plaintiff herein was sued therein by the Defendant herein over the suit property, this Court declared the Defendant herein who is the Plaintiff to the counter claim as the lawful owner of the suit property. The husband of the Plaintiff herein was declared as trespasser to the suit land. When the decree in exhibit P3 was mounted to execution, the Plaintiff herein preferred objection proceedings (Misc. Land Application No. 391 of 2019, as per the ruling exhibit P5) where she pleaded the suit property being a matrimonial property and claimed to have contributed towards its acquisition by virtue of being a professional nurse. At page eight last paragraph and page nine first paragraph 5 of the ruling exhibit P5 where the Plaintiff herein was the Applicant therein, this Court held, I quote, I bold a pertinent portion, 'The issue of contribution to the acquisition of the suit property by the applicant and that the said suit property was a matrimonial home needs to be ascertained by production of evidence; and this would have been well addressed in matrimonial proceedings and not objection proceedings as in the case in this application' Therefore, I can confidently say, the question of whether the suit property fall under the matrimonial property, was addressed by this Court in exhibit P5 above quoted where the Plaintiff was advised to the effects that it pertain or is worthy argument for purpose of matrimonial proceedings. But for the sake of argument, herein the testimony of contribution towards its acquisition was produced by word of mouth by PW1 supported by PW2 and PW3. There was no tangible testimony as to the extent of the alleged contribution if any. The alleged pharmaceutical business was also asserted by oral account of PW1 supported by PW3. Even a business licence was not forthcoming, neither any records vindicating existence of that business. But this ground was also determined by this Court in exhibit P5 at page nine, second paragraph from the bottom, 6 "In that respect and in view of what is stated above, we cannot state with certainty that the applicant has interest in the suit property in the nature ofoccupancy in common. This argument by the applicant therefore has no merit and it is hereby disregarded' Therefore, both grounds to wit a claim that it is a matrimonial property, along the argument relating to contribution towards its acquisition, were determined by this Court in exhibit P5. Even if it could had not been determined in exhibit P5, the same could still be doomed to fail. I explain. In the amended plaint the Plaintiff to the main suit asserted facts showing that the title of Yasin Msama (vendor to the husband of PW1) was rooted from Mr. Ikungasya Malema, the administrator of the estate of the original owner (anonymous) the way back in 1985. In her testimony, PW1 asserted that Yasin Msama's title was derived from Nwaka Mwansaku the administrator of the estate of the late Grolia Malema. This discrepancy is materially denting the case of PW1. In a sale agreement exhibit PIO depict the purchaser is Ndiluka N. Nkamata, while in the certificate of marriage exhibit Pl, suggest PW1 married one Ludovick Ndiruka Nyamweri. When PW1 was cross- examined by Mr. Benjamin Mwakagamba learned Counsel Defendant, she stated that her husband uses the name of Ludovick Ndiluka Nyamweru at the church. On further cross examination, PW1 readily conceded that in her 7 examination in chief she did not clarify the discrepancies of the name of her husband. Surprisingly at her opening statement, PW1 clarified her name as Agripina Balanzize alias Agripina Herbert Balanzize. That said, the only ground remained for consideration and discussion is that of illegality, where allegedly exhibit P3 was illegally procured for reason that the Defendant herein along his sibling were not administrators of the estate of the late Grolia Atuganile Malema at the time of suing. It is true that a plaint in Land Case No. 166 of 2011 exhibit P7 suggest it was presented for filing on 22/09/2011. A revision order exhibit P6 which was delivered on 24/08/2011 suggest Nwaka Mwamsaku's letters of administration were yet to be revoked. Letters of administration exhibit P8 suggest a grant was made in favour of the Defendant herein on 12/09/2012. Indeed, in exhibit P7, the Plaintiffs therein sued under their personal capacity. DW1 defended that they sued at the capacity of heirs to defend the estate of their mother. In that respect, the illegality can be said to be apparent on the record. However, I wonder if the same can be taken into board in this suit to invalidate a decree of this Court in exhibit P3. To my view, entertaining it in this suit it will be tantamount to creating more confusion and serious illegalities. This is for obvious reason that this Court is neither sitting to review that decree or revision. To my respective view, that will be an exclusive domain of the apex Court. In Kulwa Salum 8 Kanjovu and Another vs Yusufu Shabani Matimbwa, Misc. Land Application No. 937 of 2018, at page eight, Makani, J (as she was), commented, But it is common knowledge that such illegality can be corrected and declared as such where the court entertaining the application is capable of correcting the illegality. In Misc. Land Application No. 23 of 2018, Arunaben Chaggan Mistry vs Naushad Mohaned Hussein & 2 Others (HC-Arusha) my brother Hon. Maige, J when discussing a similar situation stated: "It is my understanding however that the principle will only apply if the Court entertaining the application is capable of correcting the illegality. It does not, in my view, apply to the same Court whose decision is the subject of the alleged illegality. As the intended illegalities have to be apparent on the face of record and with significance importance meriting attention of the Court ofAppeal, this Court being the author of the impugned decision is estopped, by way of functus officio, from remarking on legality or otherwise of its own decision" The same position was taken in Wiafrica Tanzania Limited vs Attorney General and Others, Misc. Land Application No. 25933 of 2023, at page eleven, this Court speaking through Hon. Hemed, J had this to say, Apart from the alleged illegalities being not apparent on the face of the impugned judgment, the question is whether this court has legal optical to see its own committed illegalities. In my view, under the doctrine of functus officio the court that 9 has committed illegalities is presumed to be incapable ofseeing and correcting them' Unfortunate when the Court of Appeal was giving an advisory opinion for the Plaintiff herein to prosecute the grounds of illegalities pointed out in Civil Application No. 495/17 of 2020, exhibit P7, this argument for the Defendant herein having no letters of administration, was not among the grounds which formed the basis of the advisory opinion by the apex Court, remitting the Plaintiff herein to institute a fresh suit. As pointed out above, this suit was filed under the auspices of the provision of Order XXI rule 62, Cap 33 (supra). To my respective view, at this stage this Court merely sit to determine the right which the Plaintiff might be claiming to the property in dispute, and not to deliberate on the illegalities founded on the former decree of this Court. Therefore, issue number one as to whether the suit property is lawfully owned by the Plaintiff to the main suit as matrimonial home or property, is ruled in the negative. Issue number two, whether the suit property is subject to attachment and execution in respect of decree in Land Case No. 166 of 2011. This issue predominantly depended wholly on the answer to issue number one. Having declined to entertain the Plaintiff's claim, for reason given in issue number one, io automatically issue number two, is in the affirmative. This is because the decree in exhibit P3 remain intact and valid. Issue number three, whether the Defendant to the counter claim is a trespasser to the suit property. Having ruled a decree in exhibit P5 to be intact, it goes without much saying that the Defendant to the counter claim is indeed a trespasser. Issue number four, what reliefs parties are entitled. As per the adumbration above, there is no reliefs which is available to the Plaintiff to the main suit. The Plaintiff to the counter claim triumph is restated as decreed in exhibit P3. The main suit is dismissed. The counter claim is granted. Each party to shoulder 11