20190531 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM LAND CASE NO. 76 OF 2015 EBONY AND COMPANY LIMITED ....................... PLAINTIFF VERSUS WATUMISHI HOUSING COMPANY LIMITED ........ ~ .............................. DEFENDANT JUDGMENT Date of last Order.... 27/02/2019 Date ofJudgment.... 31/05/2019 MLYAMBINA, J. On 27th August 2015, the plaintiff filed this suit claiming for, among other orders; one, a court finding that by failing· to include in the sale agreement, what was actually negotiated by the parties, the defendant perpetrated fraud on the ·plaintiff; second, a court finding that the negotiated price per square meter was Tshs 17,000/- not in 15,000/-; · third, a court finding that the defendant was obliged to pay for the whole property without excluding 25% of the area covered by the plot; fourth, payment of Tshs 255,990,000/- as per paragraph 9 (i) above; fifth/ payment of Tshs 46,931,511 as per paragraph 9 (i) above; sixth,. 1 . general damages as the court may determine and finally; interest on (d) and (e) above at the rate of 20% from the of filling of this suit to the date of judgment and therefore at the court rate to the date of final settlement of the decree; seventh, costs and other reliefs deemed by the court to be fit to grant. The plaintiff's case is based on Landed property which he sold to the defendant one Watumishi Housing Company Limited. The plaintiff transferred the same in consideration of Tshs. 432,000,000/=. According to para 4 of the plaint, the plaintiff stated that he was at all material times the lawful owner of the suit premises known as Plot No. 197 and 198 Block 25 Gezaulole Area, Temeke Dar es Salaam. Defendant filed a written statement of defence denying the allegation that they negotiated the price of the landed property to be Tshs 687,990,000/- and not Tshs 432,000,000/- paid by the defendant. As per paragraph 6 of the written statement of defence, the agreement was drafted jointly by the defendant and the plaintiff through the service of M.K Generis Advocates as per annexure WHC "B". The defendant insisted that there was no fraud committed by the defendant as the conveyance and negotiation was done jointly and the transfer of ownership of the two plots was done by the defendant and the title deeds was submitted to the plaintiff in order to effect the remaining 20% of the purchased price. This is as per annexure WHC "C". Prior hearing, the following issues were framed for determination. 2 1. Whether the sale agreement to transfer or purchase plots No. 197 and 198 Block 25 Gezaulole Kigamboni area, Temeke District (by then) in Dar es Salaam from the plaintiff to the defendant was tainted with fraud. 2. If the 1st issue is answered in the affirmative, whether the plaintiff has suffered any special damages arising from the sale agreement prepared fraudulently, and; 3. What reliefs, if any, are the parties entitled to? To prove the plaintiff's case, PWl Fauzia Jamal Mohamed stated that She is dealing with real estate under the umbrella of Ebony & Company as a Director. Her submission is that the two plots No. 197&198 were sold to the defendant in September, 2014. That the plaintiff and the defendant agreed that one acre will be at square meter Tshs 25,000/- but the defendant requested to be reduced to Tshs 17,000/-per square meter. She added that, the two plots in dispute had a total of 10 acres which is equal to 40,470 square meters and it was supposed to be sold to the tune of Tshs 687,990/- million. Thereafter, board resolution was passed and the defendant said that they have their own format as a government to prepare a contract which then were forwarded to the defendant's counsel for the purposes of signature which the plaintiff signed and the same were sent to the defendant. The plaintiff told the court that he has a photocopy of the title deed and the original was given to the defendant. The photocopy 3 of the title deed was rejected by the court -as it does not meet the requirement under Section 67&68 ofthe Evidence Act Cap 5 {R.£2002). PWl maintained that, after signing the agreement, it was sent to the defendants for payment who paid about 80% of the amount of money. After payment that is when the plaintiff got the signed agreement. She (PWl) found the agreed issues were not complied off. Thereafter, the plaintiff noticed that the amount paid was Tshs 432 million less 25%. PWl asserted that she was told by the defendant that the same deduction was for infrastructure. According to PWl the 2.5 square meters deducted was not agreed by both parties. PWl narrated further that after discovering the problem in the contract on the deduction of 25% of the payment, she approached the lawyer who insisted that there is no law which legalizes taking of 25% of the citizen area without compensation. PWl prayed to tender the letter with reference No. LO 318956/46 from the Ministry of Lands which was admitted as Exhibit Pl. Further, the plaintiff tendered the agreement for sale with Ebony and Co. Ltd in respect of plot No. 197&198 Block 25 Kigamboni area dated 18th September,· 2014. It was admitted in court as exhibit P2. PWl further explained that her lawyer filed a termination of sale agreement to the defendant the letter which she craved leave of the court to tender the same. It was admitted as exhibit P3. 4 On being cross examined, PW1 stated to have sold the plot Nos 197&198 Block 25 Gezaulole through their company known as Ebony & Co. Ltd. She admitted to have signed a sale agreement showing the consideration was Tshs 432 million as the 1st instalment was indicated to be Tshs 345,600,000/- and that the defendant was to pay Tshs 86,400,000/- after the transfer of the title deed. PW1 insisted that they never read the contract before signing the same due to the trust the company had with the defendant. That, the counsel for the plaintiff did not advise during negotiation. The plaintiff was of the view that the difference was Tshs 255,990,000/- which was discovered after been given a contract and the plaintiff showed the interest to terminate the contract. After closure of the plaintiffs' case, only one witness testified in defense side. Fredy Matola Msemwa (DW1) who introduced himself as a Director General of the defendant holding a Ph.D in Auditing. DW1 testified before the court that he knows the plaintiff as the one who sold the plots to the defendant at Kigamboni Gezaulole. He described the purchase procedures as that; the plaintiff came to the defendant offering a plot for sale to the defendant Watumishi Housing Company. That, the plaintiff and the defendant had initial discussion which was attended by the plaintiff, DW1 together with Paschal Massawe the Director of Finance and Mr. Weja the Director of Operation. 5 Thereafter, the parties agreed to visit the locus in q1,10 and see plots No. 197&198 under Block 25 Gezauole Kigamboni area and the agreement was reached that the defendant will buy the two plots 197&198 on the agreed price in the contract with consideration of paying in two instalments. He went on stating that the 1st instalment was 80% after signing the contract and the second installment of 20% was to be effected after the vendor had furnished transfer deed. According to DW1, after the agreement the plaintiff prepared a contract and exchanged the same with the defendant who signed and the payment was done after both parties signed the contract. This is as per the transfer certificate of titles for plots Nos. 197&198 at Block 25 Kigamboni Gezaulole area which was admitted in court as exhibit D1. DW1 prayed further to tender the Certificate of title No. 130677, LO No. 524229 for plot No. 198 dated 7/10/2014 and title No. 130675 LO No. 524230 for plot No. 197 dated 7/10/2014 which were collectively admitted as exhibit D2. DW1 submitted further that, both two plots have 3 hectares which were bought at Tshs 432 million. He denied the allegation that there is fraud in purchasing the plots as he was of the view that the process was conducted in transparency manner. DW1 agreed that the plots were to be sold per square meter at the tune of Tshs 17,000/- but that was not agreed. The contract stipulates that the square meter was Tshs 11,000/- or 12,000/-. He insisted that there is several information which 6 were discussed but not incorporated in the contract. DWl stated that the plaintiff and defendant had never agreed on deduction of 25% of the area to be for infrastructure. In re-examination, he insisted that the parties never agreed the consideration of Tshs 416 million nor 456million. He added that the vendors were not forced to sign the contract as the plaintiff was the one who reviewed the contract and signed voluntarily. At the end of the defence submissions parties prayed to submit their final submissions which this court considered it but no reasons to reproduce the same for it being mutatis mutandis with the oral submissions. From the afore pleadings, evidences and exhibits, I will now analyse the issues before the court. The first issue is whether the sale agreement to transfer or purchase plots No. 197 and 198 Block 25 Gezaulole Kigamboni area, Temeke District in Dar es Salaam from the plaintiff to the defendant was tainted with fraud. In Civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving the fact is upon the person alleging. This is as per Sections 110, 111,112 and 115 of the Evidence Act [CAP 6 R.E 2002] which require that the one who alleges the existence of a particular fact must prove to the satisfaction of the Court on the existence of such fact. The Court of Appeal of Tanzania in the 7 case of Future Century Limited vs. Tanesco, Civil Appeal No. 102 of 2008 (Unreported) held in inter alia that: 11 The burden of the person alleging a fact having to prove what he alleges is clearly stated under the provision of Section 115 of the Evidence Act Cap. ~ which states that; ''In Civil Proceeding when any fact is especially within the knowledge ofany person the burden ofproving the fact is upon hint'. Passing through the evidence adduced in court and exhibit P2 tendered thereto, Part 1 of the contract in the interpretation section item vi clearly shows the purchase price for the two disputing plots Nos. 197&198. Further to that Part 2 of the same contract item (c) give out the description of model of payment which was to the effect that the · 1st instalment was Tshs 345,600,000/- and the 2nd or last instalment was Tshs 86,400,000/- which led to the total amount of Tshs 432,000,000/-. It is the principle of law as stated in the above quoted authority that the one who allege must prove. However, the standard of proving as to whether there was fraud tainted in the contract entered between the plaintiff and the defendant is much weightier than that is required in 8 ordinary civil proceedings. It is the one who alleges that there was fraud to prove the existence of such fraud. It is important, however, to understand the meaning of fraud in order to establish whether the plaintiff has proved its existence. According to Black's Law Dictionary, 8th Edition, by Bryan A. Garner, fraud means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him/her or to surrender a legal right and fraudulent means acting willfully and with specific intent to deceive or cheat, ordinarily for purposes of either causing some financial loss to another or bringing about some financial gain to oneself". Exhibit P2 before this court shows that both the plaintiff and the defendant signed the contract without undue influence (the plaintiff was not induced to act otherwise but by her own free will or without adequate attention to the consequences). In Black's Law Dictionary, Efh Edition the term Signature is defined to mean the following; ''any name/ mar!y or writing used with the intention of authenticating a document" Suffices to say that, with the words above any document with signature in it means it implies its authenticity of what is enclosed in the stated document, in this case the contract. It gives out the notion that everything found under the contract was read by both parties and been 9 understood hence putting the signature. However, in this suit, PWl herself did tell the Court that they never read the contract before signing the same due to the trust the company had with the defendant. PWl never advanced the doctrine of non est factum as a ground to establish that the contract was signed by fraud. Indeed, there is no dispute that the plaintiff had a lawyer through out the transaction. Above all, the contract was signed on 18th September, 2014. After almost a year then came a notice of termination of sale agreement based on the alleged fraud. That was on 10th August, 2015. ·I understand that fraud as a criminal issue has no time limit. But there are no good explanations as to why both the plaintiff and its lawyer never read the draft cont~act prior signing. Again, for the disposition of the land to be enforceable, there are requirements which are stipulated under the Land Act No. 4 of 1999 (R.E 2002). Section 64 ofAct No. 4 (supra) inter alia provides; Writing required for enforcement of contracts relating to land (1) A contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only if- (a) the contract is in writing or there is a written memorandum of its terms; 10 (b) the contract or the written memorandum is signed by the party against whom the contract is sought to be enforced {emphasis added). In the light of the above provision of law, I am of the considered view that once the contract between the plaintiff and the defendant have passed through the stages stipulated by Section 64(1) {b} (supra) no one can turn back claiming that she didn't read and understand what was in the contract. If there is such allegation, there must be proof to the standard required when one raises fraud in ordinary civil proceedings. One of such grounds would be the defence of non est factum. The plaintiff's Director in this case is literate person and with unquestionable knowledge and experience in real estate matters as per her testimony. The second issue is; whether the plaintiff has suffered any special damages arising from the sale agreement prepared fraudulently. This issue ought not to detain me much due to the fact that the 1st issue has been answered negatively. As stated in this judgment above, this court finds no any element of fraud which was exercised during execution of the contract at hand. To that end, the plaintiff has nothing to be awarded as damages. In the event, the plaintiff's suit is dismissed with costs in its entirety. It is so ordered. 11 JUDGE 31/05/2019 Dated and delivered this 3pt day of May, 2019 in the presence of learned Counsels Wabeya Kung'e for the plaintiff and for the defendants Counsels Hangi Chana Senior State Attorney and Joel Maeda Advocate. MLYAMBINA J 31/05/2019 12