20140717 TZHC Arusha

IN THE HIGH COURT OF TANZANIA

ATARUSHA CIVIL CASE NO. 02 OF 2011. I . BAYON JOHN MREMA...................... ~························ PLAINTIFF. Versus : 1 SILVESTER JOHN MREMA .............. ..!...................... DEFENDANT. Date of last Order:.19/06/2014 Date of Judgment: 17/07/2014 JUDGMENT. F.H. Massengi, J. Plaintiff Bavon John Mrema is praying for judgment and decree against the defendant Silvester Paul Mrema for the following reliefs:- i 1. A declaration order be granted confirming that the plaintiff is the sole legal owner of Plot No. 17, Block :"B" Njiro, Arusha City, under · certificate of Title No. 28016 Land Registry Moshi. . I 2. An order be granted to wit expulsion cum eviction of the defendant, i . his agents, employees, tenants and/or any person(s) claiming. I • inter~st or title from the defendant in: respect to premises under Plot No. 17, Block "B" Njiro, Arusha City~ under certificate of Title No. • I 28016 Land Registry Moshi. 1 3. That an order be granted with effect to permanently restrain the defendant his agents, employees and/or any person(s) claiming interest or title from defendant from collecting rent from Plot No. 17 Block "B" Njiro, Arusha city under certificate of Title No. 28016 Land Registry Moshi.

4. An order for permanent injuction be granted against the defendant, his tenants, employees, agents and any persons claiming interest or title under the defendant be permanently prohibited from interfering with the plaintiffs peaceful enjoyment/use of Plot No. 17 Block "B" Njiro, Arusha city under certificate of Title No. 28016 Land Registry Moshi.

5. An order be granted to compel the defendant to pay plaintiff a sum of Tshs. Fourty Four Million Hundred Thousand (Tshs. 44, 400, 000/=) being rent mesne profits arising and accured from Plot No. 17 Block "B" Njiro, Arusha.

6. An order for general damages, be granted for causing the plaintiff unwarranted frustrations mental anguish and psychological torture.

7. An order for exemplary damages be granted.

8. Interest on the decretal amount at current Commercial Bank rate (25% p.a) from date of filling suit until to date of judgment and thereafter at court rate of (9% p.a) compound interest.

9. Costs of this suit.

10. Any other or further relief as this Honourable Court deems just and appropriate to grant. 2 Plaintiff is represented by learned advocate Mr. D'Souza while defendant is represented by learned advocate Mr. Lume. At the commencement of the hearing issues were framed as follows:- 1. Who between the parties is the legal owner of Plot No. 17 Block "B" Njiro, Arusha City.

2. To what reliefs are the parties entitled to. Plaintiff's case was as follows:- PW1 Samwel Ibrahim a Registration Officer with Land Registry Northern Zone at Moshi evidence is that in their records in regard to Land titles they have a record on Land Title No. 28016 LO No. 311895 LD ARD IN/B/17 issued on 1st March, 2010 registered in the name of Bavon John Mrema of P.O. BOX 3012 Arusha. The title was admitted in evidence and marked PE1. He further said when the title was registered there was no objection raised. PW2 Nazari Mushi evidence was that he knows plaintiff as son of John Paulo Mrema. That he was present and witness on 25th September, 1985 when John Paulo Mrema bought plot in Block B Njiro Arusha from one Piniel Laizer and the plot was registered in the name of Bavon John Mrema the plaintiff Sales agreement was admitted in evidence and marked PE2. PW3 Anna Kisamo evidence was to the effect that plaintiff is her son and his father is one Paulo John Mrema who in 1985 did buy Plot No. 17 Block B Njiro Arusha at a prize of 18,000/= Tshs. The plot was bought in the name of Bavon. She was given the sales agreement to keep it for Bavon 3 ; until he grew up and she produced t~;e sales agreement which was admitted for identification only and mark~d 1D1. In 1998 Paulo passed :I ;! away. ', PW4 Inoti Piniel evidence was that he is the administrator of the estate of ,1 ,, the late

Piniel Roimen Laizer who passe9 away on February 2005. He knew Bavon John Mrema after he was looking for his late father's i documents in regard to the issue of Plot No. 17 at Njiro within Arusha City. He then looked for deceased's document and found a sales agreement i which shows change of ownership of that plot which was admitted in evidence as PE3. Also he tender an affidavit by his father which was admitted in evidence and marked PE4.,, 1 He then prepared deed of admission which was admitted as PEG and !a document for transfer of Right I of Occupancy which was admitted in evid~nce as PE7. He also tendered I Land invoice and ERV which were admitteq in evidence as PEG collectively. ! i I PWS Bavon John Mrema evidence was that he claiming a 12 roomed rented house situated in, Plot No. 17 Nj(ro Block B as he is the owner through defendant is also claiming own~rship. He went on to say he acquired the house after it was offered t~ him by his father and mother~ I: ;1 He relied on PE2 as prove that he is the legal owner. The plot was bought :' by his father in his name. He repeated ihat PW4 have said and that he obtained a document from Arusha Municipal Council on 2/11/2009 agreed , l to offer the plot to him which was also adiitted in evidence. He have tried to evict the tenants but they have refused !to vacate. It is defendant who is 1 I collecting rent since death of his father

w~ich is 100,000 per room. That :j was all about plaintiff's evidence. ij '1 !1 4 ,'I, ',I Defence evidence was as follows:- DW1 advocate Francis K. Musei told the court that in February, 1989 he did attest a document titled TRANSFER OF RIGHT OF OCCUPANCY which was admitted in evidence as DE1 in regard to Plot No. 17 Block B Njiro. He don't remember who bought to him but as per record it was PINIEL THOIMEN LAIZER and SILVESTER PAUL. DW2 Silvester Paulo Mrema evidence was that his late father bought Plot No. 17 Block B Njiro from Piniel Thoimen Laizer and the plot was transferred from the former owner's name to his name but it was not registered. The plot is developed by erection of commercial building since 1990 when he was 12 years. It is his late father who was collecting rent until his death and thereafter the clan took over and in 2006 the clan gave him the house. He is the one who is taking care of it and paying various rent including land rent. He produced some receipts as evidence to that effect. He made a follow up at the Municipal Council where he found his father has proceeded some documents including Capital Gain Tax Clearance Certificate, Valuation Report for transfer on Plot No. 17 Block "B" Njiro, Arusha Municipality and Land Rent and Services Charge Clearance Certificate in his name. All these documents were admitted in evidence. He further said that his father

had only one wife and he come to know plaintiff after the death of his father. That is all the evidence we have. The issue to be determined is who is the owner of the disputed plot between the parties? Each party claim to be the owner of the disputed land. There is no dispute that the land was bought by parties father one ... from Piniel Laizer in 1989. Each claims that their father gave the plot to him. 5 I Plaintiff have the following evidence to prove that he was given the plot by his late father and the legal owner of the disputed plot that is:- 1. Mkataba wa kuuziwa vifaa vya ujenzi.

2. A letter from Piniel Laizer the orginal owner changing his name as the owner of the plot to that of BAVON JOHN MREMA (Plaintiff). PE3 3. Affidavit of Piniel Laizer transferring his rights and interest over the disputed land to BAVON JOHN MREMA (Plaintiff) and next friend being Anna Kisamo dated 18th November, 1999. PE4 4. Deed of admission by the Administrator of the Estate of Piniel Laizer the original owner.PES 5. Transfer of offer of Right of occupancy from the administrator of the estate of Piniel to Bavon (the plaintiff) dated 13/8/2009.PEG 6. A letter headed "OMBI LA KUMILIKISHWA ARDHI" by plaintiff dated 2/11/2009.PE2 7. Certificated of occupancy in regard to Plot No. 17 Block "B" Njiro in the name of plaintiff issued on 12/11/2013.PEl Also plaintiff has evidence of Nazi Mushi who witnessed the sales agreement between John Paulo Mrema and Piniel Laizer in regard to the disputed land and was registered in the name of Bavon. On his side defendant have evidence to prove that he is the owner of the disputed plot, that is.

1. Capital Gain Tax Clearance Certificate with serial No. 02012 dated 17/3/1989.

2. Land Rent and service charge Clearance Certificate of January 1991. 6 3. Valuation report in regard to Plot No. 17 Block "B" Njiro dated 14/3/1989.

4. Transfer of Right of Occupancy from Piniel Laizer to Silverster John Mrema dated 10/2/1989.

5. Various land rent receipts. Now which between the two set of evidence proves ownership? Plaintiff's evidence is that, the disputed land was bought in his name and he did produce the sales agreement from the orginal owner Piniel Laizer to Bavon who is the plaintiff. The document was admitted in evidence as PE2. Going through that document is very clear that the name BAVON had been added by handwriting while the rest of the document is type written. No signature on the annotation of the name BAVON and no explanation was given as to why the name BAVON is annotated. Again looking the document in the paragraph 3 it clearly demonstrate that the sales agreement was between Paul Mrema and Piniel Laizer. Therefore it is not true that the plot was bought in the name of BAVON as he claims. Coming to the affidavit PE4 in which Piniel Laizer transferred his right over the disputed land to BAVON which was executed after the death of the buyer who was Paul Mrema, if at all the disputed land was bought in the name of BAVON which I have make a finding that the dispute land was not bought in the name of Bavon but it was bought in the name of Paul Mrema as demonstrated above then already title has passed to Paul Mrema, and if at all he intended to buy the land for BAVON then it was Paul Mrema who had to transfer his title to Bavon and not Piniel as he had already surrender 7 his right to Paulo

Mrema. And that would be possible when Paulo Mrema was alive. The fact that the affidavit was executed when Paulo Mrema has passed away and 10 years after the sales agreement weakens plaintiff's evidence. The fact of having registered the land in his name and having a title deed over the disputed land for grant of title but plaintiff did obtain the said title deed through a forged sales agreement then even the title deed does not have legal effect. Having that title deed does not give plaintiff legal right of the land as it was obtained in a document which is not legally genuine to prove that the land was bought by his late father for him. On the other side of the scale we have the evidence of defendant on the same story that the land was bought by his late father in his name. he also have documentary evidence to that effect which are:- TRANSFER OF RIGHT OF OCCUPANCY between Piniel Rhoimen Laizer and Silvester Paul, VALUATION REPORT FOR TRANSFER ON PLOT NO. 17 BLOCK "B" NJIRO ARUSHA MUNICIPALITY, CAPITAL GAINS TAX CLEARANCE CERTIFICATE with Serial No. 02012, and various receipt of paying land rent through in the name of Piniel Rhoimen Laizer but defendant did give explanation that he was paying rent in that name as the transfer process was yet to be completed, I find the defendant's evidence to carry more weight than that of plaintiff that his late father for him and in his

name. Another factor which puts more weight to defendant's side of scale is the fact that he has been in occupation of the same since the death of his father that is 1989 todate. For the above reasons I find the weighing scale to lean more on defendant's side, and as civil matters are decided on the balance of probabilities, I find defendant's evidence to carry more weight 8 " than that of plaintiff which answers the 1st issue that defendant is the law~ul owner of Plot No. 17 Block "B" Njiro area within Arusha City. All plaintiff's prayers are hereby dismissed with costs. SGDL: F.H. MASSENGI

JUDGE 17/7/2014 Delivered in Court this lih day of July, 2014 in presence of Mr. D'Souza for plaintiff and Mr. Dismass Lume for defendant. Right of appeal fully explained. SGD: F.H. MASSENGI

JUDGE 17/7/2014 I hereby certify this to be a true copy of the original. ~ --~'----

DISTRICT REGISTRAR

ARUSHA 9