edwin shittindi and another vs sebastian ngimbwa 2021 tzhclandd 831 15 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO 79 OF 2019 EDWIN Y SHITTINDI........ ......... ....... ...1st PLAINTIFF SAVERINA NGIMBWA........... ............ ........ ..2nd PLAINTIFF VERSUS SEBASTIAN NGIMBWA................................... DEFENDANT JUDGEMENT DATE OF JUDGEMENT- 15™ /NOVEMBER/2021 Severina Ngimbwa, "Severina" the 2nd plaintiff herein, Sebastian Ngimbwa, "Sebastian" the defendant in this suit, are siblings, having both parents in common, a brother and sister. Severina is a younger sister to Sebastian, and Sebastian had raised Severina since she was younger. Severina got married to Edwins Y Shittindi "Shittindi, the 1st plaintiff, and thus Sebastian calls Shittindi, brother-in-law. Before the dispute, parties herein lived as a very 1 | Page close relatives. Severina and her husband Shittindi looked at Sebastian as their own father and mentor. These once close relatives are now in dispute. The dispute is over Plot No. 18, Block L, in Kilongawima Area, Mbezi Beach, Kinondoni Municipality, Dar es Salaam, herein shall be referred to as "the disputed premises". While the plaintiff claims that they were given the empty plot by the defendant as a gift and had built their house, the defendant denies giving them the plot, and says he had allowed them to live in his already constructed house as family members since the plaintiffs were in financial difficulties. The defendant denies having given the plaintiffs ownership of the house or plot. The plaintiffs' case is that in 1991, they bought a Plot in Tegeta, Plot No. 1205 Block E Tegeta Area in Kinondoni Municipality, Dar es Salaam. In 1995, the plaintiffs were ready to build at Plot No. 1205 Block E Tegeta and had requested the defendant herein to prepare for them a building plan. The defendant is an architect. The defendant, being a brother, a parent, and a very close relative to 2 | Page the plaintiffs had advised the plaintiffs not to build at Tegetaz as at that time Tegeta Area was far from town and totally undeveloped and offered to give them Plot No. 182, Block L, Kilongawima, Mbezi Beach, Dar es Salaam. The plaintiffs aver that, the defendant told them that he had no plans of developing the disputed premises. He also told them that one Christina Pendo had trespassed and there was a court case going on. The defendant asked the plaintiffs to defend the court case and to develop the land as quickly as possible to avoid other people from trespassing. The plaintiffs say they were given the plot as a gift from their oWn brother, whom they considered as a parent. The plaintiffs accepted the gift, and the defendant took the plaintiffs to the disputed empty plot, as that time the plot was not developed, he had shown them the boarders, and handed over to them the papers of all court cases, and the original Letter of Offer. Then, the plaintiffs built a small kibanda, (servant's quarter) for keeping the watchman and the building materials. They hired one Timothy Machibya Manaha as the watchman, and caretaker. The defendant gave the plaintiffs the machine for making bricks, and 3 | Page they started making the bricks, at the site, with the aid of Timothy Machibya as the caretaker. The plaintiffs did not continue making the bricks or even using them as they were of poor quality. The plaintiffs asked the defendant to prepare a sketch plan for Plot No. 182, Block L, in Kilongawima, and they applied for the Building Permit in the name of the defendant. The building permit No. 28991 in the name of the defendant was issued on 23/1/1998. The plaintiffs started construction in 1998, and the house got completed in 2001. The foundation of the house was built by a professional builder, and the remaining structure was built by Nimrod Leonard Liduke. In 2001, the plaintiff applied for utility services, and it was the wife of the defendant that had endorsed the application form for installation of electricity in the house. The plaintiffs moved into the house in 2001. The plaintiffs aver that they have been occupying the house since 2001 undisturbed. They also aver that they have been paying land rents and water and electricity bills in their own names. 4| Page In 2000, there was a dispute over the plot. One Christina Pendo had unlawfully processed registration of her adjoining plots together with Plot No. 182 Block L, and she was claiming ownership of Plot No. 182, Block L, as her own property. For defending the property, the plaintiffs instituted Misc. Civil Cause No. 109 of 2000 at the High Court suing Christina Pendo. The suit was instituted in the name of the defendant since he is the registered owner of the pot. The defendant issued a general declaration letter to the plaintiffs on 26th December 2001, to enable the plaintiffs to continue fighting the case on his behalf, and any other businesses for the plot, since the plot reads his name, and had already given the plot to the plaintiffs. In 2007, the plaintiffs' case against Christina Pendo got finalized, and the revocation of title in respect of Plot No. 182 Block L was declared unlawful. The plaintiffs aver that they fully financed the handling of the case and used not only money but efforts to get the title back in the name of the defendant. 5 | Page It is averred in paragraph 18 and 19 of the plaint, that, the plaintiffs asked for the assistance of the Attorney General to have the Court decision executed so as to get Plot No. 182 Block L to be registered in the name of the Defendant. The Attorney General wrote to the Permanent Secretary, Ministry of Lands and Human Settlements to effect the orders of the Court by re-installing the name of the defendant as the registered owner of Plot No. 182, Block L, Kilongawima, Mbezi Beach. In February 2011, the plaintiffs prepared the Landforms for transfer of the property from the name of the defendant to their names and presented those forms and the original Letter of Offer to the defendant for signing. The defendant accepted the documents and promised to sign them, but never did. In 2014, the matter was referred to the family elders, and a family meeting was conveyed for settlement, chaired by Mr. Bernard Bwemero, the uncle to the 2nd plaintiff and the defendant. In that family meeting the defendant asked for the building to be valued and he would compensate the plaintiffs for the development they did onto the land. 6| Page In 2005, there was a dispute over the pathway between Shittindi and one Hamis Magulyati Lyangamba. Hamisi Magulyati Lyangama was claiming that Shittindi had trespassed into his land which is bordering the land in dispute. The case was determined by the District Land and Housing Tribunal for Kinondoni, and Shittindi was ordered to pay Hamisi Magulyati Lyangamba a sum of money, and he was allowed to use that piece of land as a pathway to his house which is in the disputed plot. It is alleged by the plaintiffs in paragraph 24 of the plaint that the defendant started processing the Title Deed in his name in the year 2019, with the intention of selling the disputed premises to Christina Pendo, and the plaintiffs managed to file the caveat at the Registrar of Titles restraining the defendant from processing anything in relation to the disputed premises and decided to institute this present suit. The plaintiff prays for the following orders: 1. The defendant be ordered to sign the Transfer Forms in favor of the plaintiffs. 7 | Page 2. The defendant be ordered to surrender to the plaintiff the signed transfer forms, and the original Letter of Offer, And in the alternative, 3. He be ordered to compensate the plaintiffs for unexhausted improvements made on Plot No. 182 Block L, Kilongawima, Mbezi Beach, Dar es Salaam to the tune of TZS 351,000,000. 4. The defendant be ordered to compensate the plaintiffs for all costs and damages associated with the court cases they incurred in defending or prosecuting for ownership of the disputed premises, and the costs of the suit for getting the pathway or a road to the disputed premises. 5. Payments of general damages not less that TZS 1,000,000,000. 6. Interest 7. Costs of the suit, and any other relief this court might deem fit and just to grant. 8 | Page Sebastian, the defendant, represented by Advocate John Nyange filed a defense resisting all claims. He also filed a counterclaim against the plaintiffs. He insisted in his defense that he is the lawful owner of the disputed premises and had never appointed the plaintiffs to take care of his property, he never sold the property to the plaintiffs, and has never promised to transfer the property in the name of the plaintiffs. The defendant acknowledges in paragraph 4 of his defense that Severina is his sister and had allowed her to stay in the house free of charge as Severina and her husband Shittindi were in financial difficulties and had no where to stay. He had allowed them to live in the disputed premises until they come out of the financial crisis. He avers in the same paragraph of his defense that Severina and her husband Shitindi got out of the financial crisis but did not hand over the disputed premises to him, instead, they rented it to other people for financial gains. He says he never had the intention of transferring the ownership of this property in favor of the plaintiffs and therefore he never signed any transfer deed. In the counterclaim, the defendant claims that he has a valid title to the 9 | Page plot and have been paying land rents. He says he has been fighting the court cases with various people including Christina Pendo in Case No. 94 of 1992 at Kisutu Resident Magistrate Court. He then defended the objection raised by one Kaikai Bulai Mushemakweli and Jimmy Mfere who joined forces with Christina Pendo. He claims that the Court cases got finalized in 1996, and he had obtained the building permit in his names in 1998 and constructed a modern house in the disputed premises. He claims that in 2000, he allowed Severina and her husband Shittindi to occupy the house as his relatives free of charge. In 2001, the plaintiffs asked the defendant for his permission to apply for electricity and had introduced them to various authorities so that they could install electricity in the disputed premises for their ow.n use. The defendant claims that he had instituted Land Case No. 109 of 2000 by himself as his title to the disputed premises was revoked. He denies having ever instructed the plaintiffs from defending the cases or even to have given powers to stand in the cases on his behalf. He acknowledges that the plaintiffs without any color of right presented to him the Land Transfer Forms and asked him to 10 | P a g e transfer the property to the plaintiff's names, to which he had refused. That he had requested the plaintiffs to hand over vacant possession of the suit property or buy the property. That the plaintiffs have destroyed the infrastructure in the disputed premises, and the defendant asks for compensation. The defendant prays in the counterclaim, for vacant possession of the suit premises or an order of eviction. He also prayed for permanent injunction restraining the plaintiffs and families, employees, agents' tenants, assignees, or anybody from claiming any right either of possession or ownership in respect of the disputed premises. The defendant also prays for payment of TZS 500,000,000 as costs of renovation and restoration of infrastructure in the disputed premises, payment of general damages, costs of the suit and interest. When the pleadings were complete, and during the Final Pe Trial Conference, the Court recorded the following issues: 1. Whether the defendants had disposed the disputed land to the plaintiffs. 11 | P a g e 2. If the answer to the above issue is in the negative, whether the plaintiffs are entitled to compensation for unexhausted improvements, if any, made to the land in dispute. 3. To what reliefs are the parties entitled to. To answer the first issue, the court shall evaluate the evidence presented in court by both parties. There is no dispute that the land in dispute belongs to the defendant as the Letter of Offer (Exhibit DI) and the Building Permit (Exhibit Pl) were issued in his names. The building Permit issued in 1998 in the name of the defendant was received in Court as Exhibit Pl, and the Letter of Offer dated 12/07/1988 issued in the names of the defendant and the receipts for payments for the offer made by the defendant in 1988 were admitted in evidence as Exhibit DI and D2, respectively. It is without any doubt, and it is not disputed by the plaintiffs that Plot No.182, Block L, Kilongawima Mbezi Beach, belongs to the defendant. The issue here is whether the defendant had given ownership of the empty plot to the plaintiffs, and who between the plaintiffs and 12 | P a g e the defendant had constructed a dwelling house in the disputed premises. Th plaintiffs relies on the oral testimonies of Severina (PW1), Mr. Shittindi (PW2), the watchman, Timothy Machibya Manaha, (PW3), and the Mason, one Nimrod Leonard Liduke, who testified as PW4. The plaintiffs also rely on the Preliminary Application Form for power supply from TAN ESCO (Exhibit P2), which was in the names of the plaintiffs, signifying that it was the plaintiffs who installed the electricity in the disputed premises. Also, it was the plaintiffs who were paying for utility bills as shown in Exhibit P3 and Exhibit P4, which are invoices issued by DAWASA for payments of water bills, and the electrical bills from TANESCO in the name of the plaintiffs. The plaintiffs also rely on Exhibit P5 which is a letter written by the defendant dated 26/12/2001, saying that this letter allowed them to occupy the plot and develop it, they say this letter confers ownership of the disputed premises to them. The letter reads as follows: "To whom it may concern: 13 | P a g e RE: PLOT NO 182 BLOCK L- MBEZI BEACH MEDIUM DENSITY I, being the owner of the above plot via letter of offer REF: No. D/KN/A/30239/1/TNP a copy of which is herewith attached, have authorized my sister Severina Ngimbwa and her husband Mr. Edwin Y Shittindi to occupy the plot for both residential and commercial purposes within the limits stipulated in the letter of offer (section iv). They are allowed to occupy the premises if they wish provided, they use the land as permitted by the said letter of offer. Please accord them the necessary cooperation. Clause iv of the Letter of Offer which was admitted in Court reads as follows: (iv) Building to be in permanent materials (a) plans to be submitted to Dar es Salaam City Council within six months from the commencement of the Right (b) Building to be completed within thirty-six months from the commencement of the Right 14 | P a ge (c) Building to begin within six months of approval of plans. In his defense Sebastian Ngimbwa who testified as DW1 said, he applied for the building permit, and was issued with the permit in 1998, and the permit was issued in his names. He says the building permit was kept at Site, but in fact the building permits were in the custody of the plaintiffs and had produced it in court as Exhibit DI. He says in his defense that he constructed the house and by 2000 the house was complete and took the plaintiffs to the already constructed house. He says Sevenna and her husband occupied the house, and he acknowledges that the plaintiffs had installed electricity. His evidence is self-contradictory. The plaintiffs could not have occupied the house in 2000 and install utilities in 2001. The defendant said he gavd them Exhibit P5 in December 2001, the letter for the plaintiffs to make follow up for installation of electricity in the house. He denies having given the plaintiffs this letter as a right to confer ownership of the house to the plaintiffs. He says the letter meant to allow them to occupy the property and 15 | P a g e not to own it, and that after they get out of their financial crisis, they should hand over the property to him. Exhibit P5, the letter from the defendant to the plaintiffs given in December 2001 shows that the defendant is the owner of the plot. It clearly says that "I, being the owner of the above plot". The letter did not mention that he allows Severina and her husband to occupy the house, but he allows them to occupy the plot for residential and commercial purposes. He also directed the plaintiffs via this letter to occupy the plot within the limits stipulated in the letter of offer (section iv). This section or clause iv, as reproduced herein above requires the occupier of the land to build a building with the permanent materials, and to obtain a building permit with the Dar es Salaam City Council. Had there existed a building built with the permanent materials as required in clause iv of the Letter of Offer, the defendant would not have required the plaintiffs to comply with clause iv of the letter of offer, as that clause would already have been complied with by himself. This letter Exhibit P5 and the evidence of PW3, the watchman, and the evidence of PW4, the builder, together with the evidence of DW2, Hamisi Maguliyati 16 | P a g e Lyangamba shows that it was the plaintiffs who had built the house in the disputed premises, and had occupied the premises from 2001, till the date the dispute arose. The Building Permit was also applied by the plaintiff as the permit was in possession of the plaintiffs and had produced it in court as the exhibit. Now what is the right of the parties over the property. The plaintiffs were laboring under trust about their rights regarding the property. They had trusted their brother and continued building on the disputed land as their own land. They believed they have been given the right to own the land by the defendant. It is in evidence that the plaintiffs started construction in 1998, soon after the building permit (Exhibit Pl) was issued. The construction which progressed for several years i.e., from 1998 to 2001 or 2002 without any protest, from the defendant making the plaintiff to believe that they have been given ownership of the disputed land. Here, there is the question of acquiescence or waiver of the defendants right to own the land. 17 | P a g e The plaintiffs brought a suit to require the defendant to sign the transfer forms believing that the land now belongs to the plaintiffs, or to be paid compensation for the unexhausted improvements made onto the land by the plaintiffs. The plaintiffs also ask for payments of TZS 1,000,000,000 as compensation. It is in evidence that the plaintiffs began to construct the house in 1998, and the defendant saw the plaintiffs building into the plot. He even accorded them cooperation by giving them a letter to whoever is concerned to accord the plaintiffs with necessary cooperation while the plaintiffs are complying with the conditions imposed by clause iv of the Letter of Offer. The defendant never stopped the plaintiffs from developing or building the house in his plot, he in fact acquiescence. The plaintiffs have proved that the defendant had given them the land to construct the building with permanent materials and the acquiescence has, in law, been proved. The defendant was fully cognizant of his right to stop the plaintiffs from building on the land, but he never did so, and that the plaintiffs were able to show 18 | P a g e that the defendant acquiescence as he was aware that the plaintiffs were carrying on with the construction of the house in his plot, and he acquiescence, he never resisted. By knowledge of that there was construction going on from 1998 till 2001 at his plot and never resisted is clearly meant that he had knowledge and that he clearly allowed the plaintiffs to construct the permanent dwelling house for their use. There was acquiescence or waiver since the defendant was aware of his rights in the disputed property but decided to waive it. Again, the defendant on principles of equity is estopped from claiming possession of the disputed land either by demolition of the structure on it or even possession of the house which was constructed by the plaintiffs. What the principles of equity in such a case can be better ascertained from the leading English case of 'Ramsden v. Dyson', (1866) 1 HL 129 (E). In considering what the principles of equity on the subject are Lord Cranworth, the distinguished Lord Chancellor, in his address to the noble Lords observed: 19 | P a g e "If a stranger begins to ■ build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented." The plaintiffs expended the money supposes themselves to be building on their own land, the land they have been given by their brother or a brother-in-law to own it, and to occupy it; The real owner at the time the plaintiffs expended money to construct a dwelling and a modern house knew that the land belongs to him and not to the person expending the money in the belief that they were the owners. He is estopped by the rule of estoppel, the rule of 20 | P a g e acquiescence and equity to claim back the land or the property which he did not build. The defendant also is bound by the Rule of Estoppel in the evidence Act. The defendant is estopped by his conduct. The defendant acts and declarations which were reduced in writing in exhibit P5 induced the plaintiffs to build and eventually live in the land of the defendant. The defendants act of allowing the plaintiffs to build into his land and allowing them to occupy the land is misleading and had the intention to mislead or deceive, that he had given the plaintiff the land to own and occupy. The defendant did so with full knowledge. It may, in the result be unfortunate for him, but it would be unjust, to allow him to take possession of the house which was built by the plaintiffs under his promise to give the land to the plaintiffs for them to own and not to build for his benefit. The doctrine of estopppel will apply, that if a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and, he 21 | P a g e thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. In my opinion, therefore if a party having an interest to prevent an act being done has full notice of its having been done, and acquiescence in it, to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act. In such circumstances, it can be said with certainty and clarity that the plaintiffs were induced by action, conduct and declaration of the defendant to build and live in the property for a long time. The defendant made representation orally and by his own conduct amounting to representation, he has induced the plaintiffs to build in the disputed land as otherwise they would not have built on his land as they already had their own land in Tegeta, and thus the doctrine of estoppel will bind the defendant. Therefore, the defendant is estopped from asking for possession of the disputed 22 | P a g e premises or even to demand payments for the empty land he had given to the plaintiffs since 1994. I would, therefore, answer the first question in the affirmative by saying that there has been acquiescence. As a result of my decision on the question of acquiescence, the defendant is not entitled to recover possession of the disputed land and his counter claim is dismissed. The plaintiffs are entitled to ownership of the land and the property built on it; thus, I declare the plaintiffs to be the owners of the disputed land and the property situate at Block 182, Bloc L, Kilongawima, Mbezi Beach, Dar es Salaam. The defendant shall be responsible to pay the costs of the suit. Therefore, the parties are entitled to the following: 1. The counter claim raised by the defendant is dismissed, with costs. 2. The land and property in Plot No.182, Block L, Kilongawima, Mbezi Beach, Dar es Salaam, belongs to the plaintiffs, and the 23 | P a g e Defendants is ordered to transfer the property into the names of the plaintiffs by signing the Land Transfer Forms. 3. The defendant is also ordered to deliver to the plaintiffs the original Letter of Offer with Rf No. D/KN/A/30239/1/TNP, dated 12th July 1988, for Plot No. 182 Block L, Mbezi Medium Density, to enable the plaintiffs to register the land in their joint names. 4. The defendant shall pay for the costs of the suit. DATED AND DELIVERED AT DAR ES SALAAM THIS 15th DAY OF NOVEMBER 2021 24 | P a g e