bernadette karabani vs kislev global services tanzania limited 2020 tzhclandd 3857 30 november 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 86 OF 2017 BERNADETTE KARABANI..................................................PLAINTIFF VERSUS KISLEV GLOBAL SERVICES (TANZANIA)LIMITED........ DEFENDANT JUDGMENT MGETTA, J: I have chosen to start with the fact that this is a civil suit. A burden of proof in civil suit is for the one who alleges the existence of a certain fact. In Tanzania, this position is provided in Sections 110 and 111 of Evidence Act, Cap 6. The plaintiff, Ms. Bernadette Zainab Kara ba ni, sued the defendant, Kislev Global Services (Tanzania) Limited alleging that the defendant breached the terms of sale agreement concluded on 18th September, 2009 and its addendum of 29th June, 2011 in respect of Plot No. 28 Block B, Ununio area within Kinondoni Municipality, Dar es Salaam (henceforth the suit plot). She therefore wants to recover the suit plot pressing that she is still lawful owner of the suit plot. In her plaint filed on 21st March 2017 as amended on 17th April, 2020 she prays further that the transfer of the suit plot be reversed and i reregistered into her names and that the defendant be ordered to pay her Tzs 2,100,000/= plus interest at a rate of 21% in every month from January, 2012 being loss of income she expected to be collected from the three apartments. The interest to be charged from the date of judgment till final payment. She also prays for general damages to the tune of Tanzania Shillings 200,000,000/=, costs of the suit and any other relief. It is on the record that the defendant was properly served but neither filed written statement of defence nor shown up during the hearing of the suit. As a result, on the 5th October, 2020 I proceeded to hear the suit exparte. During the hearing, Mr. Alfred Shanyangi, the learned advocate appeared for the plaintiff who testified as the only plaintiff witness No. 1 (PW1) as hereunder. In her examination in chief the plaintiff who is now a pastor with Ebenezer Spiritual Center, testified that she owns the suit plot allocated to her by Ministry of Land which also issued to her a title deed on 27th October 2006. She said the defendant is in possession of the original title deed. She then tendered a certified copy of the title deed which the court admitted as exhibit Pl. She testified further that in September 2009, the defendant approached her with the aim of purchasing the suit plot at a tune of USD 120,000.00 (henceforth the purchase price). Sale agreement was prepared. 2 Unfortunately, she said, an original sale agreement got lost. She therefore tendered a copy of it and the court admitted it as exhibit P2. She testified that she reported to the police about it, although she did not tender the loss report. She asserted that one of the agreed in exhibit P2 is that from 2009 to 2011 when the agreement was to come to an end, the defendant was supposed to pay her the agreed purchase price. They however asked me to prepare an addendum. It was prepared and signed by both parties. She produced and the court admitted it as exhibit P3. in the addendum, they further agreed that the defendant has to pay her the purchase price as agreed in exhibit P2. In additional, the defendant had agreed to give her three ground floor apartments out of 25 flats intended to be built on the suit plot. She went on testifying that what the defendant did was to pay her USD 120,000 as purchase price for the suit plot. After government deduction she remained only with USD 80,000. She stated that up to date there is no development on the suit plot. What is only there is one servant quarter in which security guards reside. Until now defendant has not yet given to her the apartments. If given those apartments she could let for Tzs 700,000/= each per month. Thus, for every month for three 3 apartments she could have been earning a total of Tzs 2,100,000/= per month. However, she admitted that the defendant has not yet built the apartments as agreed. She reminded them in writing to build and then allocate her the agreed apartments. She produced and the court admitted what she said one of the letters and the court admitted it as exhibit P4. Testifying further, the plaintiff said she reminded the defendant further that he has failed to honor what was agreed in the addendum. She then made official search and found that her title had already been transferred into the defendant names. She also tendered official search document and the court admitted it as exhibit P5. She therefore instituted this suit praying for payment of Tzs 200m/=, the return of the suit plot and all the. money she expected to get as the defendant breached their sale agreement. . Having heard the plaintiff case, it is not in dispute that on 18th September, 2009 the plaintiff and the defendant concluded a sale agreement, exhibit Pl a copy of the sale agreement, whereby it was agreed that the former shall sell to the latter the suit plot at a purchase price of United States Dollar one hundred and fifteen thousands (USD 115,000.00), although in her oral testimony she said the purchase price 4 was USD 120,000.00. thus, the issue of whether there was a sale agreement between the two parties is answered in the affirmative. On the second issue of whether there was a breach of sale agreement, the plaintiff alleges that since the defendant was supposed to pay the agreed purchase price between 2009 and 2011, his failure to heed the sale agreement amounted to its breach, to cure the said breach, they resolved in amendment of the sale agreement exhibit P2, which amendment was done by way of preparing an addendum, exhibit P3 on 29th June, 2011. They agreed that the defendant was to complete his purchase price and give the plaintiff three (3) finished apartments of 100 square meters each on the ground or first floor in his intended 25 flats; and, process subtitle for the said apartments in favor of the plaintiff. The addendum, exhibit P3 was partly adhered to and partly not. The defendant only paid the agreed price. The apartments were not built and given to the plaintiff to date which is now the center of this suit. I have thoroughly gone through exhibit P2 and exhibit P3. In exhibit P2 at page 1, the heading that "IT IS HEREBY AGREED AND DECLARED as follow"attracted my attention. It is a part where terms and conditions of sale agreement are found. Paragraph 1 shows that the plaintiff being a legal and beneficial owner sold the suit plot to the defendant at the agreed 5 purchase price. In her testimony she testified that the original documents are in possession of the defendant. She filed notice to produce, requiring the defendant to produce original documents that are in his possession, one of them being the original title deed. Now the original documents are in possession of the defendant. I wonder how can original documents be in possession of the defendant while he did not complete the payment of the purchase price contrary to what they have agreed. The plaintiff ought to prove this fact. I have taken time to revisit exhibit P3, the addendum. At page 1 part B reads: "AND WHEREAS the sale agreement did not provide for requirement of surrender of the right of occupancy which is a necessity in the implementation of sale agreement" That quotation contradicts with the contents of exhibit P2. As pointed elsewhere herein while the former allowed the certificate of title to be transferred to the defendant on completion date, the latter come to fill in the gap of the requirement to surrender right of occupancy. The two statements contradict to the fact that the title deed will be handled on 6 completion date while the addendum shown that the sale agreement was silent on it. As per sale agreement, exhibit P2, it is not in dispute that the plaintiff first received USD 15,000 of the purchase price; USD 10,000 was to be paid upon obtaining consent from the Commissioner for Lands to transfer the suit plot from her names to the defendants name; and USD 90,000 to be paid to plaintiff upon effective completion of registration of the suit plot in the names of the defendant as lawful owner of the suit plot. It seems that upon completion of the purchase price, the plaintiff handed over the relevant documents to the defendant. Again the plaintiff had a duty to address to clear the contradiction found between exhibit P2 and P3. Furthermore, during the hearing the plaintiff submitted that the purchase price was USD 120,000; while in exhibits P2 and P3 as well in the plaint, it is shown that the purchase price was USD 115,000. I expected the plaintiff to prove why they differ. Duty to prove the case in civil suit is for the one who alleges. As said earlier, that duty remains the same even in a situation where the case is heard exparte. The plaintiff failed to prove that it was the defendant who breached the sale agreement by failing to pay the purchase price. Hence, the second issue is answered in the negative. 7 For the reasons given herein above, I find that the plaintiff has failed to prove her claims on a balance of probability. The suit is hereby dismissed with no order as to cost. Order accordingly. J.S. MGETTA JUDGE 30/11/2020 COURT: This judgment is delivered today this 30th November, 2020 in the presence of Mr. Alfred Shanyangi, the learned advocate for the plaintiff, but in the absence of defendant for the reasons best known to him. J.S. MGETTA JUDGE 30/11/2020 COURT: Right of appeal to the Court of Appeal is fully explained. J.S. MGETTA JUDGE 30/11/2020 s