20120309 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 185 OF 2004 . HAMIS BUSHIRI PAZl. ......................................... 1sr PLAINTIFF HAMISI BUSH IRI PAZI (as the Administrator of the estate of the deceased) NEEMA BUSHIRI PAZl. ............ 2ND PLAINTIFF MWAJUMA BUSH IRI PAZI. .................... .............. 3RD PLAINTIFF STUMAI BUSHIRI ... ............................................. 4TH PLAINTIFF HATUJUANI BUSHIRI. ......................................... STH PLAINTIFF VERSUS · SAUL HENRY AMON ....................................... 1sr DEFENDANT S.H. AMON & 2 OTHERS ...................... ........... 2ND DEFENDANT MUSA HAM-ISi KAZUBA ...... ......................... ... 3RD DEFENDANT KASSIM ALLY OM_ARI ( as the Administrator of the) ........ 4TH DEFENDANT JUDGMENT SAMBO, J. The Plaintiffs ,n this case, Hamisi Bushiri Pazi, Hamisi Bushiri Pazi (as the Administrator on the estates of the late Neema Bushiri Pazi and Mwajuma Bushiri Pazi)-~S-ta-mai Bushiri. Pazi and Hatujuwani Bushiri Pazi, herein after to be referred to as the 1st, 2nd and 3rd and 4th Plaintiffs respectively, 1 a) A declaration that the Plaintiffs are the lawful and rightful owners of all that piece of land known as house No. 113, Plot No. 4, Block 17, Kariakoo Area, . llala District Dar es salaam. b) A declaration that the eviction of the Plaintiffs and/or their tenants from house No. 113 Plot No. 4, Block 17 Kariakoo Area, llala District, Dar es salaam, was unlawful and improper. c) A declaration that the demolition of the Plaintiffs house No. -113, Plot No. 4, Block 17, Kariakoo Area, llala District, Dar es salaam, wos unlawful and invalid, d) A declaration that the purp_orted sale of the Plaintiff' house No. 113, Plot No. 4, Block 17 Kariakoo area, llala District, Dar es salaam, suit premises was null and void, e) An order for demolition of the structure erected on the suit premises by the 1st and 2nd Defendants and also an order of restitution of the suit premises, that is, the piece of land and on which house No. 113 Plot No. 4, Block 17, Kariakoo area, llala District, Dar es salaam was situated, and all other unexhausted improvements thereon, to the Plaintiffs, 3 .. . ., ,t:· .... .. ~..... . _. , determine the prorate ownership of the floors of the building erected on the suit premises under the principle quic quid plantatur Solosolo cedi7, k) Interest on (v) at the commercial rate of 40% per annum. from the date of demolition that's 23 rd December, 2002, to the date of judgment, I) Interest on the decretal sum at the court's rate of 12% per annum from the date of judgment to the date of payment, m) Costs be provided for and, n) Any other or further relief (s) as may be deemed fit and proper by the court. The issues drawn in this matter are as follows:- 1) Whether the Plaintiffs are lawful owners of house No. 113 Plot No. 4, Block 17, Kariakoo area, in Dar es salaam. 2) Whether sale of the property to the 2nd Defendant und~r court's supervision was lawful and valid. 3) Whether the Plaintiffs were unlawfully evicted there from. 4) Whether the l st and 2nd Defendants are entitled to recover compensation and loss, from the 3rd party. 5 ' . "'; ·-- . , • ... . .... ..,. ,, , .· .... , . . ·. : .... . . . ' ..... ~- .·...~: . lotter and Musso Hamisi Kazubo won the case. She appealed to the Housing Appeals Tribunal, but again, she lost that Appeal, No. 20 of 2000. Thereupon, the Judgment debtor preferred on appeal to the High Court of Tanzania, ·Misc. Civil Appeal No. 13 of 2000, which was also dismissed . . with costs. She further appealed to the Court of Appeal No. 61 of 2002, which was again struck out with costs by the low lords. Consequently, the decree holder Musa Homisi Kozuba applied for execution of the -some in the Dor es salaam Reside_nt Magistrate's Court, at Kisutu, Vide RM MISC. Civil cause No. 71 of 2000. The application was granted, the house was sold ofter being attached in the execution of that decree. He and other owners including the tenants were evicted from the house. The eviction exercise affected the income of those evicted and the owners were earning Tshs. 1,~00,000/= each per annum, from ·the house rents. The house was then demolished without on order of the court though they were not Judgment debtors. Exhibit Pl was tendered and admitted to prove that the witness is the 7 • '\.. . . . ·•• + . • •. •' ..· ..... . . administrator of the estate of the late Neemo Bushiri Pozi, his sister. Exhibit P2 is a letter of offer for the disputed piece of land to the owners stated herein before which was duly accepted. The tenancy agreement between the owners of the house in issue and Abdallah Jumo was tendered and admitted as exhibit P3. a certificate of occupancy for that land in dispute, issued to the 2nd Defendant was tendered . and admitted as exhibit P4. In exhibit P3, the tenant were to pay a total of Tshs. 14,400,000/= per annum as house rent. The witness prayed that· all the reliefs sought in the amended plaint be granted, save for those in No. {h) {i) and {J) which ore outrightly dropped. When carefully cross examined by the learned counsel, Mr. Kololo the witness told this honourable court that they filed a case to· object the attachment of the house at Kisutu Resident Magistrate's Court, but the same was rejected, and they didn't dppeol. However, they did file a Revision case in the High Court of Tanzania, which referred them bock to the said Resident Magistrate's Court. As the Resident Magistrate's Court was show in making decision.on their matter, they were forced to file the present suit. Civil 8 ... _;• :·· : . - ."". : .-, Case No. 207 of 2003, in the High Court at Dar es salaam was lodged and later withdrawn before instituting the present case. The witness further stated that Musa Homisi Kazuba was a tenant of Tatu Bushiri Pozi in that house. They asked him to vacate the house to allow re-building of the some when the work of renovations had been completed, he returned to the house. He is the one who wrote him a letter to vacate the house, after which he instituted the case in the Regional Housing Tribunal. PW 1 further responded by saying that MEM Auctioneers and General Brokers Ltd ore the ones who sold the house to S.H. AMON, though it was not property of the Judgment debtor. The mistake committed by the purchaser is that, he didn't make a search to that house in order to know the owners. Hatujuwani Bush}ri Pazi raised on objection in that court, but the decision is not known. In 2001, he also filed an objection after the decision of the High Court, and todote, the decision is not known. Whether this court can fault the decision of Kisutu Resident Magistrate's Court or not is legal 9 .; : ~• • •. ·• 0~: ;T : •' •- .... ·": •·. . ,: : -;· ..... ~ .-: :/·:"~. "i__ . .: ,. - ...._. . ......... . .. . ,. issue. The 2nd Defendant hos been issued with a title deed over the land in dispute. When further cross examined by Mr. Mwakitalu, learned State Attorney, PWl told this court that the letter to Mr. Musa Hamisi Kazuba, to move out. of the house was signed by himself as secretary to the meeting of owners which resolved to move him out. The decision to move Musa Hamisi Kazuba out of the house was not mode by Tatu Bushiri Pazi alone. In re-examination, he said that the .house was sold on 13th day of May, 2001, by order of the Kisutu Resident Magistrate's Court and eviction took place in December, 2003, by order of the same court. That court hod decided on their objections raised to the attachment and that's why they opted to lodge the present case. They paid land rent of that plot from 1990 to the year 2005. PW2 Hatujuwani Bushiri Pazi, led by the learned advocate Mr. Lutema, informed this court that she was not concerned with the debt of Tatu Bushiri Pazi to Musa Kazuba 10 1·~:·.·-':" -.,1~,·_.=. . - __,_::•_. . ,. ,_,·..":.•~_-_' .· ._.-_;J_· __ :._ ·, _. : • .~...; • .. -' • . . ~: -L _· -·· "; ~~ . . .. _:_~ .--- ·~ ~,.,_•_ •• ' ..=, . ............. . ' · ·. ·: .:-.·: ... ,.. .. . . ... . . which led to the sole of their house and their eviction there from 2000, she filed· on objection ·case at Kisutu Resident Magistrate's Court in that the house didn't belong to the said Tatu Bushiri Pozi. However, she was not told if the objection was granted or rejected and her advocate was Mr. Hyero. The house was sold and they were evicted by .. order of the court. They hove been owning the house since 1990 and before that it was owned by their father, Bushiri Pozi. The receipts they used to pay for that plot at the Land Office collectively admitted as exhibit P5. She humbly prayed for assistance of this court in order to recover their house. PW3 Stumoi Bushiri Pozi, led by the learned counsel, Mr. Lutemo, testified to the effect that the sold house was not property of her sister Tatu Bushiri Pozi, and that the decretol .amount was Tshs. 15,000,000/=. The house was auctioned in order to realize that amount to pay th~ decree holder, Musa Kozubo. She further said Hotujuwoni Bushiri Pozi raised on objection to its attachment, but its ruling or decision is not known. She said they do pray that the house be rationed to them as the lawful owners. 11 Being cross examined by the learned counsel, Mr. · Kalolo, the witness told the court that the existing house on the plot today hos eight floors whose value is over 98,000,000/= the value. of the demolished house on the plot. The purchaser of the house didn't find out that the house was not property of the Judgment debtor. The house was erroneously sold and justice didn't prevail in the whole matter. PW4 Samson Mkamba, the Assistant Land Officer with the llala Municip.ol ~ouncil, led by Mr. Lutema informed the court that the records in their office indicate that the disputed plot was previously owned by Seven heirs, that's Hamis_i Bushiri Pazi, (2 shares), Mwajuma Bushiri Pazi (I share), Tatu Bushiri Pazi (lshare), Stumai Bushiri Pazi (I share), Hatujuwani Bushiri Pazi (I share) and Neema Bushiri Pazi (I share). They owned the same since 1990 in respect· of the letter of offer dated 4th January, 1990, Ref. No. ILA/92/8/SMK. That offer was duly accepted by paying the required fees, as per the special form called "Advice Payment" admitted as exhibit P6. 12 r::. •-" • :>'" •.••• • ... ··... •····· - .. -, .. ,', .. . · ....· - Being cross examined by Mr. Kololo, the witness said that the six heirs inherited the Plot from Bushiri Pazi in respect of Probate and Administration cause No. 19 of 1963. The present owner of the Plot is the 2nd Defendant since 2003 after the court issued a certificate of sale dated 26 th July, 2001, whose copy was admitted as exhibit marked DI. This exhibit was accompanied with an Application for registration of a transmission by operation of Law. The Registration was effected because it was an order of the court. The house was sold at Tshs. 105,000,000/= and the purchaser given a title deed No. 5727 5 for 33 years from 1~t day of January, 1990, (see exhibit P4). Though there have been complaints after the said registration, they have never been sued in respect thereof. In defence, DW 1 Saul Henry Amon, led by the learned advocate, Mr. Kalolo, testified to the effect that he is a businessman owning a company · dealing with beauty products named S.H. AMON Enterprises Co. Limited. His Company owns a house at the cover of Kongo and Mchikichini streets, Kariakoo area. The house was built on 13 . : ... ~-- ··:·.:,_ ·.-·_:-; ~.: that plot ofter buying them existing house 1n on auction conducted by a- Court Broker, by the name of MEM in 2001, In that auction, he was represented by Mr. Michael Boutemonile Mwokotumbulo, his employee, the previous house on the plot was purchased at Tshs. 105,000,000/= and didn't know the ·owner todote. In view of the court orders, he lawfully purchased the property. If anything, all the blames should be directed to the court and in case of compensation, if any; the court should be token liable. Being cross· examined by the learned counsel, Mr. Lutemo, the. witness told this honorable court that he bought the house using the name of Soul Henry Amon and the Court did evict all those who were found therein including the Plaintiffs. In further cross examined by the learned State Attorney Mr. Mwokitolu, he said that he opted to join the Attorney General as third Porty because it's the court which sold the house in dispute to him. In response to a question from the 3rd Defendant, he said that the purchase price was paid into the court which ordered that sole. 14 .. :. .· ··. DW2 Godwin Musa Mwapongo, led by Mr. Kalolo, learned advocate, asserted that -he is an advocate and company secretary of S.H. AMON Enterprises Co Limited, · · Land Mark Hotels Ltd, Land Mork international Limited and Director of ljumilaga Associates. The Kisutu Resident Magistrate's Court in Misc. Civil Application No. 71 of 2000, ordered for the attachment and sale of the disputed house. He visited the court, perused the relevant records and found that the sale was proper, as there was an attachment order dated 19 th April, 2000, and its resultant proclamation of sale .. There was also a ruling of the court dismissing the objections raised against the attachment and sa·le of_ that property dated 15 th November, 2000, admitted as exhibit D2. Then he permitted the company to proceed with the purchase exercise. The house was purchased at Tshs. 105,000,0000/= later they noted that Hamisi Bushiri Pazi, Stumai Bushiri Pazi, Mwajuma Bushiri Pazi, Hatujuwani Bushiri Pazi and Neema Bushiri Pazi had filed an objection in th~t a house valued at Tshs. 200,000,000/= cannot be sold at a debt or decrectal amount of Tshs. 15,000,000/= and that they were co-owners of the house with the Judgment 15 :.· . - .. ·- . .. ••· .. ·:·.·· .: ':· ... . •·.· ..../ . - ... debtor. The objection was dismissed on the 27 th day of June, 2001, as per exhibit D3. Thereafter he visited the house, and informed all businessmen therein that the. house now belongs to the 2nd Defendant and they should not pay rents to the former land lords and ladies. He took their names and wrote them a formal letter to that effect. Those who were not satisfied with the decision in exhibit D3, applied for its revision in the High Court, that's Civil Revision No. 86 of 2001. The Applicants were Hamisi Bushiri Pazi and 4 others against Musa Hamisi Kazuba and 2 others. This applicqtion was dismissed on 19 th April, 2002, as per exhibit D4. On 30 th April, 2002, Hamisi Bushiri Pazi and 4 others, filed a notice of appeal to Court of Appeal of Tanzania, exhibit D5, which was later withdrawn. The Plaintiffs filed yet another application at Kisutu Resident Magistrate's Court in ord_er to set aside the sale in issue. Instantly, they also filed an application for an eviction order. On 20th day of December, 2002, the court dismissed the application to set aside the sale and granted the application for eviction order or vacant possession. The 16 't'' drawn order for vacant possession was admitted as exhibit D6. Hence, the lawful eviction on 23 rd December, ·2002. In January, 2003, Land Valuers valued said it was valued at Tshs. 102,000,000/=. The house was then demolished. Consequently they applied for a certificate of occupancy as well as a building permit which were granted by-the relevant authorities. Todate no appeal has been preferred against the sale order of the Kisutu Resident Magistrate's Court of Dar es salaam. In that regard the sale is still-valid and prayed that the Plaintiff's case be dismissed with costs. When cross examined by the learned advocate, Mr. Lutema, the witness said that he was not duty bound to search the title of the sold house because the same was not being sold by an individual, but rather by an order of the court. A certificate of sale is a crucial supporting document in the process of applying to be registered under transfer by an operation of law as per Section 79 of the Land Registration Act, CAP 334 R.E 2002. In further cross - examined by the learned state attorney, Mr. Mwakitalu, he 17 .. . , - ~ .. said that its not proper to institute another case on the issue which there is a decision of the court not appealed against. The remedy is to appeal against that decision. The decisions of Kisutu Resident Magistrate's Court to attach and sole the disputed house hove not been reversed by any superior court of low. DW3 Musa Homisi Kozubo told the court that as businessman, he rented in the disputed house and hod paid rents for three years, 16th October, 1998 to October, 2001 . He was given a notice to vacate the house in order to allow rehabilitations by Abdallah Jumo on condition th<;1t he will continue with the tenancy agreement ofter the rehabilitations. After the rehabilitations they wonted to discuss about new rotes of the rent, which he opposed categorically. Negotiations failed and they asked him to GO ANYWHERE HE WANTED. He filed a case at the Dor es salaam Regional Housing Tribunal, won it. They made on appeal to the Housing Appeals Tribunal and lost the some. They appealed to the High Court and also lost the case. They opened another ·case for the High Court and were defeated. They wonted to appeal for the Court of Appeal, 18 but he also won. The Plaintiffs filed a number of objections · at Kisutu Resident Magistrate's Court, but were defeated. The house was then sold and was giv.en his money Tshs. 15,900,000/= by the High Court, at Dar es salaam. OW 4 Kassim Ally Omar, a petty businessman from Pugu Kajungeni, simply told this court that he had nothing in evidence as he appears just as an administrator of the estate of her mother, the late Tatu Bushiri Pazi, who knew each and everything. He was afraid of distorting the truth in this case. When cross examined by Mr. Kalolo, learned _ advocate, he boldly said it's the deceased herself who filed the written statement of Defence. In the course of hearing this case, this court was assisted by the highly respected gentlemen assessors, Mr. Theophil Kabwogi and Mr. Philip Kimaro. After concluding the hearing of the case, both submitted their written opinion and advised this honourable court accordingly. The said assessors, after carefully analyzing the evidence on record, came to the satisfaction that the house or Land in dispute is property of the six sons and daughters of the late Bushiri 19 • Pozi, was unlawfully attached and sold to the ist and 2nd Defendants. For these reasons, the Plaintiffs hove successfully proved their case and should be granted what they claim in the Amended Plaint. At this juhcture, I hove with keen interest carefully and considerably considered the evidence adduced ·by both parties, the opinion and or advice of the gentlemen assessors and to a great extent the reasoned final submissions of my learned friends, that's counsel for the 1st and 2nd Defendants, the Plaintiffs and the learned State Attorneys for the third party. To my surprise, the written final submission of the Plaintiffs and 1st and 2nd Defendants counsel all the pages ore not numbered. This causes unnecessary inconvenience in making references to the said pages. I strongly remind my learned friends to include numbers to their written piece of work for case of reference to the some. In his final submissions, the learned advocate for the Plaintiffs pleaded to fhis court so that it could invoke its powers under Order XIV Rule 5 of the Civil Procedure Code 20 ... . . , - .. ' ,.:..,: . ·_... ..... .. .,, .• .··: ·\···. :'};· '•.~--~ .: . >: i=--.:: :- •. ·,<~~:~ -,:,. •;,.:.: - -: ,-: :\.: -· ·_,_~··:-:_'. >~-' --· . ..._ ·_:..: .... ... .. CAP 33 R:E 2002, and amend the issue framed on the 15th November, 2011 and agreed by both learned counsel for the parties, that's Mr. Kalolo for the 1st and 2nd Defendants and the same Mr. Lutema for the Plaintiffs. Rule 5 ( 1) (2) of the said order XIV of the Code, reads:- 1) The court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as .may be nece~sary for determining the matters in controversy between the parties shall be so made or framed. 2) The court may also, at any time before passing a decree, strike out any issue that appear to it to be wrongly. framed or introduced. While the above quoted statutory provision empowers the court to amend the issues or frame additional issues, the learned advocate for the Plaintiffs amended the existing 21 issues himself and framed additional issues. He then proceeded to discuss the same as if they were amended and or framed by this honourable court. The learned counsel refrained from discussing the issue framed by the court on the 15 th November, 2011 . In so doing he usurped the powers of the court and· denied himself the right to discuss the issues drawn by this court which completely resolves all the controversies canvassed during the trial and or arose as clear implications from the pleadings. As stated earlier in this judgment, the first issue reads, "whether the Plaintiffs are lawful owners of House No. 113, Plot No. 4, Block 17, Kariakoo Area, Dar es salaam". It should be born in mind that the house referred to in this issue, is the one which was purchased and later demolished by the 1st and 2nd defendants before constructing the present structure on the Plot. It's the case for the Plaintiffs that the said house belongs to them, that's the six children of the late Bushiri Pazi, as from the year 1990 when they were given an offer from the office which was duly accepted. It's in their testimony and final submissions that the attachment and sale were illegal because the Plaintiffs were not 22 judgment debtors in the said case and therefore the 1st and 2nd Defendants didn't obtain good title, hence the Plaintiffs are the lawful owners. On the other part, the 1st and 2nd Defendants tes.tified to the effect that they lawfully purchased the house and the Plaintiffs were dully involved in the processes leading to the sale of the house. The evidence of PW4 Samson Mkamba, the llala Municipal Council Assistant Land Officer and DW 1 Saul Henry Amon together with DW2 Mussa Godwin Mwapongo establish that the 2nd Defendant S.H. Amon Enterprises Co. Ltd is the registered owner of the property. The antecedents of this case is the tenancy agreement between the 4th Defendant (the late Tatu Bushiri Pazi) and the 3rd Defendant, Musa Hamisi Kazuba. Tatu Bushiri Pazi was one of the children of the late Bushiri Pazi and also one of the Co-owners of the house together with the Plaintiffs. The Plaintiffs and the 4th Defendants opted to" renovate the house in the late 1990s. All the tenants including the 3rd Defendant were asked to move out of the house, and the 3rd Defendant was promised to continue with his term of the agreement after the renovations, as he had paid the rents 23 .. •• •; ,-5."' • ~ .. till October, 2001, that's for three years. The renovations were completed, and the 3rd Defendant was set to re-enter the house, but the Plaintiffs led by the 1st one, Hamisi Bushiri Pazi wanted to discuss a fresh tenancy agreement with new rates higher than the previous contract. The 3rd Defendant resisted, and they asked h_im to "GO ANYWHERE HE WANTED" and was not accepted back in the house. There upon, the 3rd Defendant instituted application No. 112 B of 1999 in the Dar es salaam Regional Housing Tribunal against Tatu Bushiri, his land lady. He was successful and obtained a decree dated 27 th February, 2000. The late Tatu Bushiri Pazi appealed to the Housing Appeal Tribunal of Tanzania, vide ·Housing Appeal No. 20 of 2000, but was defeated. She further appealed to the High Court of Tanzania, that's Civil Appeal No. 13 of 2000,, and again this appeal was dismissed with costs. The late Tatu Bushiri knocked the doors of the Court of Appeal of Tanzania, Vide Civil Appeal No. 61 of 2002, which was ultimately struck out with costs. 24 ~:::_:,/;?"·i~~). -~-.:- ,::=~ :':· '.:- > /'; ·- ~- ; ., .... p • ••• ·:·~, . .. ~-_: :·.: i""": .\..··.:·: ·_:<>-_; . ... ·- ... #' • . ... At that time, decrees of the Regional Housing Tribunals were being executed on the courts of the Resident Magistrate. For this reason, the decree holder Mussa Hamisi Kazumba file Resident Magistrate's Court Misc. Civil Cause No. -71 of 2000 for that purpose, in the Dar es salaam Resident Magistrate's Court at Kisutu. He prayed that the decree be executed by way of attachment and sale of the house in question. Thereafter, there followed various objections for the same. In the first objection, the ground was that the house in issue was owned jointly by the Judgment debtor and her relatives leased to one Abdallah Juma whose income was Ts0s. 14,400,000/= per year. This objection was dismissed with costs on the 10th November, 2000. The 2nd objection was raised by Hamisi Bushiri Pazi, Stumai Bushiri Pazi, Mwajuma Bushiri Pazi, Hatujuwani Bushiri Pazi and Neema Bushiri Pazi against Mussa Hamisi Kazumba and their relative Tatu Bushiri Pazi. The grounds were that the said objectors being joint own~rs were not party to the case and therefore no decree against them. The decree holder attached the house illegally and that even the decree was obtained under doubtful conditions against Tatu Bushiri Pazi. The objection was also dismissed with costs on 29 th June, 25 2001. The house was then sold on the 18th May, 200 l, and the said five objectors now instituted an application to set aside the sale of the house against Mussa Hamisi Kazumba, Tatu Bushiri Pazi and MEM Auctioneers and General Brokers Limited. At the same time, the ·1 st and 2nd Defendants had · applied for orders of eviction and or vacant possession. On the 20 th day of December, 2002, the court dismissed the application to set aside the sale and granted the prayers for eviction and or vacant possession. Hence the eviction made on 23 rd December, 2002. The 1st and 2nd Defendants obtained a certificate of sale on the 26 th July, 2001, given the fact that the sale had become absolute. Then they processed for registration or change of ownership by operation of the law and obtained certificate of occupancy or Title Deed No. 57275 on the 24 th _ March, 2005. In the reasoned submissions, the learned counsel for the Plaintiffs rightly submitted that once the objections made under Order XXI Rule 57 of the Civil Procedure Code, CAP 33 R:E 2002, herein to be referred was the code, are 26 . . :.'·~t\:~~·,("\6}~:~,;·,:f;.:t:~~?':::;?~~-;.::. ~•:''· ·~·:'. . ~. ··:.t:'•/.. :~·;-:·_...-·.-;7··::·•.~- -: ·.·--~ .-:.-:· ... ·..:· ... · ... · <· . ·. :.... 1 rejected or disallowed, the objector cant appeal or apply for revision. The remedy available is to file a suit under order XXI Rule 62 of the Code in ·order to establish his right. The Plaintiffs did file the objections accordingly which were rejected and dismissed with costs, hence the present suit in this honourable corut. The evidence reveal that before filing this suit, the Plaintiffs lodged an application to set aside the sale under order XXI Rules 87 and 88 of the Code, which again was dismissed with costs. Thereupon, the court confirmed the sale which became absolute under Order XXI _Rule 90 (I) of the Code. The Court of Appeal of Tanzania has put the law clear that once a certificate of sale has. been issued after a public auction, the sale becomes absolute and any case thereafter is barred under Order XXI Rule 90(3) of the Code, which reads:- "No suit to set aside an order made under this rule shall be brought by any person against whom such order is made" 27 ·.: '",• Based on this decision of the highest court on the land, it goes without saying that this suit is absolutely barred under the said statutory provision of the law, See · Napkin Manufactures Ltd Versus Charles Gadi & Another, Civil Application No. 5l of 2009, at Dar es .salaam, (unreported). The sole having become absolute under order XXI Rule 90 ( 1) of the code, the 1st and 2nd defendants were issued with a certificate of sale under order XXI Rule 92 of the Code, on the 20 th day of July, 2001 . This was a. necessary document of the court which assisted the 1st and 2nd Defendants to obtain a certificate of occupancy or Title Deed No. 57275 on 24 th March, 2005. Under Section 100 (1) of the Evidence Act, CAP 6 R:E 2002, a title deed proves ownership of that land and " ..... no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, _or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act". 28 In view of what I hove narrated herein above, I om completely satisfied that the Plaintiffs ore- not the lawful owners of house No. 113, Plot No. 4 Block 17, Koriokoo Area, · in Dor es salaam. The ·Iawful owner of the landed property is · S.H .. AMON ENTERPRISES COMPANY LIMITED, the 2nd Defendant. The facts and legal position exposed herein above, ore the reasons why the court's decision differ with the opinion of both gentlemen assessors in this regard, it follows here to state that the sole of the said property to the 2nd Defendant under the court's supervision was lawful and valid in all respects. The 1st issue is negatively· answered while the 2nd one-is positively answered. The 3rd issue is whether the Plaintiffs were unlawfully evicted from the house in dispute. We hove been in the evidence of DW2, the learned Musso Godwin Mwopongo, that ofter the sole by public auction of that house hod become absolute, and a certificate of sole issued, they filed on application to the court for orders of eviction and or vacant possession,· which was granted on the 20 th day of December, 2002, and the evictions mode on the 23 rd December, 2002, implementing on order of the court which 29 ·. ... . .... .. ... ~. :. . . 111111111111111 . --:. ' ... ;. . . todote is intact. I do not see anything that would lead any reasonable man to hold that the eviction was unlawful. How on earth, can one stay or occupy a house belonging to another person without the consent of the owner? ·certainly - no. Hoving lawfully purchased the house, the 2nd Defendant rightly evicted the Plaintiffs there from. The 3rd issue is negatively answered and do hold that they were lawfully evicted there from. The 4th issue reads, "Whether the 1st and 2nd Defendants ore entitled to recover compensation and loss, from the Third Porty. As the learned State Attorney rightly submitted in his final submissions, which is in line with the adduced evidence, the decree holder, Musso Homisi Kozumba, rightly applied for execution of his decree in the RM' S. The Plaintiff hod and utilized their rights to challenge the attachment and sole of the property. The court conducted fair hearing and finally determined the objections which were dismissed with costs as per exhibits D2 and D3. Decisions of courts of low cannot be faulted by joining the court in another Civil Proceedings the subject matter being that decision pronounced when the court was performing its judicial 30 •.- • _.·:. ·• ·1="' . ·-. ': .. .. •"' ...• . , .•• •- A ;'•.:. . - . ·.• ... .. •~ .- • junctions. That notwithstanding, in the instant case we have . seen that no wrongful act (s) was done to the 1st arid 2nd Defendants by the lower court which would entitle them to be awarded damages. See Patel Versus Samaj and Another (1944) E.A.C.AI. The said parties incurred no loss in the whole process and therefore have no right or are not entitled to recover compensation and loss from the third party. The 4th issue is also negatively answered. Finally but not least, "what reliefs are the parties entitled to. Contents of this judgment are sufficient testimony to that the Plaintiffs deserves nothing among the entire _ reliefs s9ught from this court at page 6 and 7 of the Amended Plaint. They have miserably failed to prove this case to the standard required in Civil litigations, that's on the balance of probabilities. lnfact, as stated hereih above, the suit is barred under Order XXI Rule 90 (3) of the Civil Procedure Code, CAP. 33 R:E 2002. But, in all fours, the Defendants deserves costs in this matter. Consequently, this suit is dismissed in its entirety with costs. 31 ...... .. . . . ~ . .. :.. . -.. . . . _. . K.M.M. SAMBO JUDGE 24/02/2·012· 32 · . 9/3/2012 Coram: B.R. Mutungi, J. Plaintiff: Kalolo for Lutaiwa for 1st Defendant: Kalolo for 2nd Defendant: Kalolo for 3rd Defendant: Absent 4th Defendant: Absent (Kassim Ali) 3rd Party: Miss Lesulie (S.A) B/C: Dora Mbise COURT The parties have been summoned today to appear for delivery of the Judgment that has been prepared by her brother Judge Sambo who is in Arusha at his duty station. ORDER Read this day of 9th March, 2012 in presence of Kalolo holding brief for Lutema for Plaintiffs, Kalolo for first and second Defendant, Kasim Ali appearing as administrator of 4th Defendant, Miss Lasulie (State Attorney) for third party. B.R. MUTUNGI JUDGE SUCCESSOR IN OFFICE 9/3/2012 33