Fernandez

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 147 OF 2021 ANGELO FERNANDES.......................................... 1st PLAINTIFF SHAHISTA ADAM.................................................2nd PLAINTIFF VERSUS HOUSES AND HOMES LIMITED.......................... 1st DEFENDANT JITESH JAYANTILAL LADWA.............................. 2nd DEFENDANT BHAVESH CHANDULAL LADWA.......................... 3rd DEFENDANT NILESH JAYANTILAL LADWA............................. 4th DEFENDANT AATISH DHIRAJLAL LADWA............................... 5th DEFENDANT JUDGMENT Date of Last Order: 12.02.2024 Date of Ruting: 15.02.2024 T. N. MWENEGOHA, J. At the centre of this case are two apartments, described as Apartment F5 and F6, located at 2nd Floor, "F" Wing, Plot No. 78/1-4, Mzimuni Street, Msasani Beach, Kawe Area, within Kinondoni Municipality and Dar es Salaam Region. The two plaintiffs above named, claimed that, they purchased the two properties back in 2020, the 3rd of January, from the 1st defendant. Having bought the said properties, the plaintiffs moved in and started to enjoy their ownership of the properties in dispute, up until when the 2nd defendant appeared and evicted them on the 15th May 2020. Against this background, this case was filed, on the 3rd of September, 2021. When the plaint was served to the 1st, 3rd, 4th and 5th defendants, they filed their Written Statement of Defense, admitting to the claims presented against them by the plaintiffs. Hence, a Judgment on Admission was entered against them on the 11th of August 2022, by this Court and the case was closed against them. The 2nd defendant on his side, decided to contest the matter. In that regard, the following issues for determination were agreed by the parties in this case; - 1. Who is the rightful owner of the suit premises as described herein above. 2. Whether the plaintiffs were lawfully evicted by the 2nd defendant. 3. To what reliefs are parties entitled to. In proving their case, the plaintiffs called 5 witnesses. PW1, Shahista Adam, opened the plaintiff's case by testifying that, they bought the suit property when the project was still on construction phase in 2017, from the 1st defendant company. That, the purchase of the suit property started with the signing of the Memorandum of Understanding with the company, tendered and admitted as Exhibit Pl. That, a down payment of 80,000 USD was paid to the 1st defendant after the signing of the Memorandum of Understanding. The apartments were then handed over to them, though the same were still under constructions. PW1 went on to say that, they agreed with the company that, they will complete them and they did so by finishing up the interior. That, after the completion they started living in the said apartments. 2 It was a further testimony of PW1 that the 1st defendant also signed a Sale Agreement with them in respect of the said properties. The Agreement was tendered and admitted as Exhibit P2 collectively. She went on to state that, the company never bothered them, but in 2019, one of the Directors, Jitesh Ladwa, appeared and claimed that they were illegally living in the properties in question. That, he wanted them to sign a letter addressed to the DCI claiming that other directors had conned them. That, he threatened to evict them if they did not sign the said letter. PW1 told this Court that they refused to sign the letter and as a result, they were later issued with a letter from the police, telling them that they were criminal trespassers (as evidenced by Exhibit P3). That, PW1 reported the matter at Kawe Police Station and was given a letter for initial investigation (Exhibit P4). They then decided to institute a case at Mwananyamala Land Tribunal, however the same was struck out. That, they were forceful evicted from the premises immediately thereafter. PW1 informed this Court the eviction was traumatizing and caused financial, physical and emotional damages. That, during the process they lost valuables and personal belongings including two iPads, two mobile phones, jewelries, watches and clothes belonging to her and her husband. That, their house furniture and fixtures were purposely demolished. That, her husband's working regalia were also lost to the extent that as a pilot, he was not able to fly for two months, costing him his salaries. It was PWl's narration that after the eviction, they contacted the company which sold them the apartments and the company assured them that they are lawful owners of the premises. She also wrote a letter to the local government office (Serekali ya Mtaa), explaining about the situation. 3 (Exhibit P5). She prayed for the Court to rule in their favour as they are lawful owners of the disputed properties. When cross examined by Advocates Benard and Mtobesya, PW1 stated that, the total purchase price of the apartments was USD 260,000. That, they paid 80,000 USD because that is what they had agreed with the seller. The remaining amount was to be paid after they were given a subtitle. That, ownership will move after the subtitles are issued in their names. That, the remaining amount will be paid after they receive the subtitles. On re-examination, PW1 insisted that, the 1st defendant is the one who sold the suit premises to them. That, Jitesh Ladwa has 25% of the shares in the company. That, the 1st defendant has never denied the fact that she sold the two apartments to them. PWl's testimony was well corroborated by that of PW2, Luyumba Pupemba, her neighbor at Kawe Beach Apartments and PW3, Patrick Toy Kaheshi. PW4, Angelo Fernandes (lstplaintiff), gave similar testimony to PW1 and further tendered Exhibit P6, a bank statement from Diamond Trust Bank and Exhibit P7, a letter from Mkuu wa Upelelzi wa Kawe Police Station and Exhibit P8, a letter from his employer, dated 03rd November 2020. Lastly, PW5, Ladslaus Matindi, collaborated evidence given by the previous witnesses. Being the 1st plaintiff's boss, he was involved after the eviction of the plaintiffs and their welfare. He marked the end of the plaintiff's case. The defense case had only one witness, Jitesh Jentila Lwada, hereinafter referred to as DW1. It was his testimony that he knows the 1st defendant, as a Real Estate company with four directors including himself. He mentioned other directors to be Faresh Ladwa, Jiresh Ladwa and Atish 4 Ladwa. That, the company was carrying a project to develop Plot No. 78/1- 4. Kawe Beach, Dar es Salaam. He further testified to know the plaintiffs, who he met after they visited his office on 9th October 2019. That, they went to him, to discuss on an apartment they had bought from Chandulah Wahji Ladwa in Upanga. That, at the time Mr. Chandulah Wahji Ladwa was in jail for bank fraud. He testified that the plaintiffs had bought the same at 80,000 USD which was paid to an account JD Ladwa as shown by Exhibit P6. That, they went to see him because they were promised by Mr. Chandulah Wahji Ladwa that they will be given apartment in Kawe in exchange with an apartment at Upanga that belonged to Mr. Chandulah Ladwa. The said apartment was later sold in auction by TIB Bank as a security for the loan taken by Mr. Chandulah Wahji Ladwa. It was DWl's testimony that the plaintiffs promised to pay more money as the apartments at Kawe was more expensive. That, DW1 did not promise anything to them as he had no idea of such arrangements. That, he asked them to bring the contract and any receipts for the payments and later DW1 found 6 to 7 agreements signed by the plaintiffs with the lstdefendant for Apartments 5 and 6, signed by Mr, Chandulah Wahji Ladwa who was not a director. That, other documents were signed by Panesh Ladwa and Arkesh Ladwa, the directors of the 1st defendant, (Exhibit DI collectively). That, the plaintiffs also made payments for the apartments on January 2017, but they have no EFD receipts and above all the payments were done a year before the apartments were built. DW1 insisted that, he had no knowledge of the agreements as Mr. Ladwa has never been authorized to collect rent. That, even if they were authorized, they would have issued 5 receipts. He insisted that, the rest of the defendants have admitted the claims but he decided to contest the case because he has discovered that, the remaining three shareholders have multiple passports from Unites Kingdom (UK) and Tanzania and that is an offence. That, these people have been collecting money from the UK and Tanzania by fraud and one of the victims of fraud is TIB Bank where there is a Court Judgment to that effect. That, they were barred from acting on behalf of the company since 2022. A Ruling was tendered and received as Exhibit D3. Lastly, he asked for the prayers contained in the Written Statement of Defense to be allowed. When cross-examined by Advocate Mgongolwa, DW1 insisted that, the project comprised of 48 apartments. Apartments F5 & F6 are owned by the company. That, the decisions of the company are made by the board of directors. That, as a shareholder alone, he cannot make any decision. That he does not know who owns apartments F5 & F6. That he was not aware of the existence of occupants of the suit premises. He insisted that, the other directors were running the company in a manner that was unfair to him and they were barred in 2022 by the Decision of Mruma J. That, both the buyers and seller have committed fraud in this transaction. That, the buyers have no receipt. The transaction was fraudulently done as D.W Ladwa is not a director. On re-examination, DW1 insisted that, the other defendants were barred from acting for the company. That, they are the same persons mentioned in the Ruling of Mruma, J. That marked the end of the defense case and the parties were given the opportunity to present their final submissions. Advocate Kennedy Mgongolwa in his final submissions for the plaintiffs, insisted that, the plaintiffs have succeeded in proving their case on balance 6 of probability as required by Section 3(2) of the Evidence Act, Cap 6 R. E. 2019. That, the testimony of PW1 and PW4 who are the plaintiffs above have shown that the suit premises were owned by the 1st defendant. The same evidence as given by DW1, the 2nd defendant. Further, the 1st defendant, whose ownership over the suit properties is not disputed, has admitted to have sold the same to the plaintiffs. Hence the first issue as to who is a lawful owner of the disputed properties has been answered affirmatively that, the plaintiffs are the lawful owners of the properties in question. Cementing his arguments, Mr. Mgongolwa cited a number of cases, including the case of Hemed Said versus Mohamed Mbilu (1984) TLR 113, Joao Oliveira and Others versus IT Started In Africa Limited and Another, Civil Appeal No. 186 of 2020, Court of Appeal of Tanzania (unreported) and also the case of MIC Tanzania Limited versus Minister of Labour and Youth Development and Another, Civil Appeal No. 103 of 2004, Court of Appeal of Tanzania (unreported). On the 2nd issue on whether the plaintiffs were lawfully evicted by the defendant, Mr. Mgongolwa maintained that the said issue also was answered affirmatively by the evidence presented from both sides. The testimony of PW1, PW2, PW3 and PW4 proved that, the plaintiffs were evicted in the two apartments. Apartment F5 where they lived and F6 where their mother resided. PW2, their neighbor saw the eviction with his own eyes while PW1 and PW4 are the victims of the eviction. PW3, a lawyer who managed to obtain an Injunction against the eviction in favour of the plaintiffs, narrated well on how the incident occurred. It was his argument that, since it was proved that the suit properties never belonged to the 2nd 7 defendant, then the eviction of the plaintiffs was illegal. The same was done without any Order of the Court. He further argued that since the testimony of PW1, PW2, PW3 and PW5 on this issue was not challenged, then the 2nd issue was answered affirmatively in favour of the plaintiffs. As for the reliefs, he submitted that, the plaintiffs are entitled to a total of 200 million for the damages caused in general, following the eviction done by the 2nd defendant. That, the testimony of PW4 show that he lost 9,750,000 which were deducted from his salary for failure to fly for the days he stated in his unchallenged oral evidence. That, the rules are settled that, oral evidence can prove the case in absence of documentary evidence as stated in Simon Shauri @ Dami versus Republic, Criminal Appeal No. 62 of 2020, Court of Appeal of Tanzania (unreported). He submitted further that, there were physical damages to the apartments which the plaintiffs had incurred costs in finishing to construct, and also a loss of valuable items caused by the forceful eviction. On the other hand, Advocate Sist Benard for the 2nd defendant insisted that, there is no dispute that the 1st defendant is the lawful owner of the suit premises. The plaintiffs have claimed to have purchased the premises in question, however, the payments were not full made. Even the alleged down payments done by the plaintiffs was not paid to the 1st defendant, rather to an account of JW Ladwa (1977) Limited on 4th January 2017, to the tune of 80,000 USD, three years before the construction of the premises was full done. He further submitted that, the purchase of the suit premises as per the contract was done in 2020 and the remaining amount has not been paid to date. That, the eviction was done by persons who are not parties to this suit. 8 Mr. Bernad insisted that, owing to these facts, it is evident that the whole transaction was tainted with illegalities, hence this case should be dismissed. Above all, there is no proof that the persons who made the eviction were ordered by the 2nd defendant, therefore, under section 110 of the Evidence Act, Cap 6 R.E 2019, the case at hand was not proved by the plaintiffs. Mr. Benard also cited a number of cases in his submissions, to include the case of K.K Security Tanzania Limited versus Richard John Buswelu, Civil Appeal No. 73 of 2020, High Court of Tanzania (unreported). I have gone through the evidences of both sides along with their final submissions for and against the case. I will proceed with analysis of the evidence and testimonies given by the parties. The first issue agreed was who is the rightful owner of the suit premises, described herein above. I will note hereby that, this issue was concluded in favour of the plaintiffs, the moment the 1st defendant together with the 3rd, 4th and 5th defendants admitted to the claims against them (see the Judgment on Admission dated 11th of August 2022). What the parties did in the case at hand, was to cement the admission through their testimonies and Exhibits. Further I note the following undisputed facts; - Firstly, the evidence from both sides shows that the premises in dispute were owned by the 1st defendant company, namely House and Homes Limited. The testimony of PW1 (2nd plaintiff), PW4 (1st plaintiff) read together with the testimony of DW1 (2nd defendant), communicates the same thing as to who owned the suit property before they came into possession and ownership of the plaintiffs. 9 Secondly; it is the same owner of the suit properties, House and Homes Limited, who sold the suit premises to the plaintiffs. PW1 and PW4 clearly stated in their testimonies on how they obtained the suit premises. They tendered the Memorandum of Agreement between them and the 1st defendant, witnessed by PW3, Patrick Toy Kaheshi (see Exhibit Pl). They also tendered the Sale Agreement in respect of the two suit premises, executed on the 3rd of January 2020, (Exhibit P2 collectively). Therefore, with all the evidence tendered and such evidence being supported by the 1st, 3rd, 4th and 5th defendants; the testimony of DW1, the 2nd defendant in discrediting the sale is weak and unfounded in the eyes of the law. DWl's claims and the arguments of his counsel in his final submissions that the sale of the said properties to the plaintiffs is tainted by frauds are baseless. As pointed above, this is so because of the admission of the 1st defendant together with that of three directors of the 1st defendant's with regard to the alleged transaction. Those claims died naturally upon, the admissions. What the company did, it did with full capacity which it has in entering into contracts upon its incorporation. The 2nd defendant (DW2) is a director as well as a shareholder, separate from the entity itself. He cannot speak for the 1st defendant, rather she has the ability to speak for herself. In Salomon v. Salomon [1897] AC 22Jt was held that; "A company is an independent person with its rights and liabilities appropriate to itself, and that "the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are In this case, the 1st defendant has spoken. She has clearly admitted to have sold the properties to the plaintiffs. In honoring such agreement, the 1st 10 defendant concluded with the plaintiffs, she has been also introducing them as owners of the properties to various authorities including the local government authorities of the area, see Exhibit P5. Therefore, the plaintiffs acquired a de-facto ownership of the premises pending the completion of the title into their names as stated in their testimonies. For the above given reasons, I find the 1st issue to have been affirmatively answered in favour of the plaintiffs. On the 2nd issues, there is no doubt that the plaintiffs were evicted from their homes as shown in the testimony of PW1-PW5. DW2 through his testimony, though he distance himself with the eviction as he was not present at the scene on the material date and time when the eviction was conducted. His advocates further submitted that there is no evidence that DW2 is involved in the eviction. However, based on Exhibit P5, a letter from the 1st defendant to Mzimuni Ward Executive (Mtendanji wa Kata ya Mzimuni) dated 5/10/2020 and received by the addressee on the 17th October 2020, written by DW Ladwa, at paragraph three, it reads; - "Kwamba, apartment husika waHzinunua kutoka kwetu kama kampuni na sasa yupo Mmoja kati ya wakurugenzi, bi/a ridhaa ya wakurugenzi wengine au kibaii, amri yoyote ya Mahakama yenye mamlaka anatishia kuwatoa katika makazi haya kinyume cha utaratibu wa sheria hivyo itaieta uvunjifu wa amani". With this information, it is obvious the person responsible with the eviction is the 2nd defendant. Further, there is satisfactory evidence that the eviction itself was illegally done. I therefore find the 2nd issue to be answered affirmatively. li Lastly, on the reliefs the parties are entitled. The counsel for the plaintiffs has proposed a total of 200 million to be paid to the plaintiffs from the damages suffered generally, both physical and mental, due to the disturbances caused by the 2nd defendant as far as the dispute is concerned. Yes, I agree that the plaintiffs suffered damages and inconveniences. The testimony of PW1 and PW4 as victims of the incident, is worth of considerations. PW4 in particular, who is the 1st plaintiff above named, insisted to have lost 9,750,000 which were deducted from his salary for failure to fly for a month, as shown by Exhibit P8. PW5, Ladslaus Matindi, who is PW4's boss, visited the scene and has fully described how bad things were at the plaintiffs' home when he arrived. Their properties were scattered around the place, including his uniforms. His mother was left outside and his properties broken. PW5 also testified that, he saw the 1st plaintiff at that material time that he was not in a good state of mind. He failed to fly for a considerable time. That, PW5 had to find another person to take his position. Further Exhibit P7, shows that, the matter was reported to the police. The Exhibit verify, there was a destruction at the plaintiffs' home. Their furnitures and other valuable items were destroyed. I noted that, no actual figure of the damages was stated. In this regard, I am in line with Mr. Mgongolwa in his submissions, however, I am also with the view that the amount proposed to be paid need actual proof. Regardless, be as it is, as this Court is satisfied that the eviction took place and the same was forceful, then there is no doubt that such thing has resulted to damages to the victims. For this reason, this Court will award a total of 100,000,000/= as general damages in favour of plaintiffs, to be paid by the 2nd defendant. 12 However, before I conclude, I will decide on the Objection raised by Advocate Mtobesya, regarding the Admission of Exhibit P6. His objection was based under sections 78(1) and 79 of the Tanzania Evidence Act, Cap 6 R. E. 2019. That, the document in question is not authentic. Mr. Mgongolwa on his part dismissed the claims by Mr. Mtobesya, and insisted that, the provisions relied in objecting the admissions of the bank statement state about a photocopy. The one tendered in Court is not a photocopy, rather an original document and has a seal of the bank itself. I agree with Mr. Mgongolwa, as the provisions cited Sections. 78(1) and 79 the Evidence Act, Cap 6 R. E. 2019 is not applicable under the circumstances at hand, as the document in question is not a copy, but an original document. Therefore, the Objection is overruled. The document remains admitted as P6. Eventually, the case succeeds with costs to be paid to the plaintiffs by the 2nd defendant. Accordingly, the plaintiffs are declared to be the lawful owners of the suit premises. The 1st defendant and the plaintiffs are hereby Ordered to complete what they agreed in their sale agreement in respect of delivery of the Titles and the payment of the remaining amount as stated in Articles 2 and 3. It is so Ordered. 15/02/2024 13