byela kokueleza SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 6239 OF 2024 BYELA KOKUELEZA TIBESIGWA (The Administratrix of the Estate of the Late Edson Kyaruzi Tibesigwa).............. ................... APPLICANT

VERSUS SOFIA SALEHE ABDALLAH (As Administratrix of the Estate of the Late Salehe Abdallah Mohamed)........................ .......1st RESPONDENT THE REGISTRAR OF TITLES.................... ...................2nd RESPONDENT THE ATTORNEY GENERAL............... ................. 3rd RESPONDENT

RULING 24/04/2024 to 15/05/2024 E.B. LUVANDA, J The Applicant named above is seeking for an order for the First Respondent named above to be summoned to appear to show cause why a caveat with FDNO 2034433 of 5/07/2019 which she entered to the land Registry in respect of house situated at Plot No. 191 Mbezi Beach Kinondoni Municipality Dar es Salaam with certificate of title No. 28060 subject matter of this application should be removed in the Land Registry. In the alternative, the Applicant is craving for the Court to issue order to the Second Respondent named above to remove a caveat with FDNO 203433 of 5/07/2019 which was entered by the First Respondent to the Land Registry in respect of house situated at Plot No. 191, Mbezi Beach, Kinondoni Municipality-Dar es Salaam with certificate of title No. 28060. In the affidavit in support, the deponent asserted that she is the administratrix of the estate of the late Edson Kyaruzi Tibesigwa, as per annexure BK-1 to the affidavit. That in the course of collecting the properties of her father the late Edson Kyaruzi Tibesigwa, she discovered that a house situated at Plot No. 191, Mbezi Beach, Kinondoni Municipality, belong to her father. That she has been under medical treatment since 2022 and currently she is hospitalized at Kairuki after her health was worsen, and she need a lot of money for medication, as per annexure BK-8. That on

28/11/2023 she met the prospective buyers of the suit house one Emilian Evody Rwejuna and Diane Mwake Wamunza, and executed a sale agreement annexure BK- 6 to the affidavit. That the prospective buyers applied for an official search report to the Registrar of Titles, and on 30/06/2023 they were granted official report revealing that there was a caveat entered by the First Respondent, as per annexure BK-5 to the affidavit. That the caveator contended in her caveat that she would soon open a case to the court of law in order to determine the ownership of the suit property, but up to now five 2 years have already elapsed and there is neither any case preferred by the First Respondent to the court nor efforts have been made to find the Applicant, arguing this is a proof that the First Respondent has abandoned her caveat. Mr. Geofrey Mushumbusi learned Counsel for Applicant, made submission in support of the application which b large was aligned to the affidavit deposition and reliefs sought in the chamber summons. It be noted that, the Second and Third Respondent defaulted to appear neither filed their counter affidavit, irrespective of a fact that they acknowledged court summons. The First Respondent was served by way of publication vide Daily News dated 13/04/2024 and Mwananchi dated 13/04/2024, but defaulted to show up. Hence the matter proceeded in their absentia. Going by the

affidavit and documentation in support of this application, there are some controversial issues and facts. This application purport to have been made by the said Byela Kokueleza Tibesigwa who is purported to have deposed the facts in affidavit within her knowledge and signed it. However, a medical report annexure BK-8 to the 3 affidavit, the Assistant Chief Medical Officer-Kairuki Hospital, confirmed that the said Byela Tibesigwa is admitted at their facility, and opined that she is still under stabilization phase. This is in tandem with the averment in paragraph fourteen of the affidavit in support of this application. In a medial report for Ms. Byela Tibesigwa by Psychiatric Clinic-Gaborone, dated 21/02/2023, part of annexure BK-3 to the affidavit, Dr. Zoran Zoric, MD and Senior Consultant Psychiatrist opined that, I bold section of concern or relevant to this application, "Ms. Byela Tibesigwa has been a patient of the Clinic since 19.01.2023 when she was, for the first time, psychiatrically assessed at the Clinic. She was diagnosed with a medical conditions (P23 F10 The ICD-10 Classification of Mental and Behavioural Disorder WHO)' Treatment was commenced. Her condition has, somewhat, improved but has remained volatile and unsteady with bouts of aggressiveness and unpredictable behaviour" In annexure BK-8 to the affidavit, which is a medical report by Kairuki Hospital for

Byeala Tibesigwa, dated 29/02/2024, at the second paragraph, the Assistant Chief Medical Officer, opined, I bold portion of concern, 4 'She is a known patient diagnosed to have Schisophremia and alcohol intoxication' I sought assistance from Google, who defined "Schisophremia", to mean, I bold a portion suiting the circumstances of the case at hand, disorder that effects a person's ability to think, feet and behave clearly" Annexure BK-8 to the affidavit, is a very current medical report regarding the mental status of Byela Tibesigwa (49 anos) whose facts stated in the affidavit purportedly were deposed to the best of her own knowledge. The purported sale agreement of unit property annexure BK-6 to the affidavit, suggest was executed by the so called Legal Representative of Byera Kokueleza Tibesigwa. The alleged legal representative of the said Byera Kokueleza Tibesigwa is anonymous. A signature in annexure BK-6 looks similar to the one appearing in the affidavit in support of this application. But the said signatures appearing in the affidavit in support of this application and annexure BK-6, differ materially with a signature of the administratrix of the estate of the late Edson Kyaluzi Tibesigwa, who was dully appointed by the probate court and executed her deed in a letter of appointment annexure BK-1 to the affidavit. In fact, the so called legal 5 representative of Byela

Kokueleza Tibesigwa who executed annexure BK-6 and whose signature resemble with a signature appearing in the affidavit in support, was attempting to imitate a signature appearing in a letter of administration of estate Form No. IV, annexure BK-1. The general rule is that an affidavit which is marred with elements of fraud and untruths facts, amount to no affidavit at all. In the case of Ignazio Messina vs Willow Investment SPRL, Civil Application No. 21 of 2001, CAT, at page 4, the apex Court commented, "An affidavit which is tainted with untruths is no affidavit at ali and cannot be relied upon to support an application. False evidence cannot be acted upon to solve any issue. The falsehood in this case goes to the root of the application because the applicant has already dishonestly frustrated the execution of the decree" Surprisingly, the so called heirs of the late Edson Kyaruzi Tibesigwa, namely: Magret Mugisha Kemilembe Tibesigwa, Nakasinge Rwenyagira Tibesigwa, Eva Tibesigwa and Loy Tibesigwa rushed to make the so called heirs consent annexure BK-4 to the affidavit, purporting to make a resolution for sale of the suit property. It was expected for them to take appropriate and affirmative legal action navigating with the situation of Byela Kokueleza 6 Tibesigwa vis-a-vis her appointment as legal representative of the estate of late Edson Kyaruzi Tibesigwa, instead of embarking into committing fraud and dishonest acts. For the above stated reasons, this application deserves to be dismissed. 7