emmanuel malagilaadministrator of the estate of the late charles malagila vs manase malagila and others 2021 tzhclandd 26 26 february 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 289 OF 2017 EMMANUEL CHARLES MALAGILA(As administrator of the estate of the late CHARLES MALAGILA)....................................PLAINTIFF VERSUS MANASE PIUS MALAGILA (also known as MARTIN PIUS MALAGILA)......................................................... 1st DEFENDANT NCBA BANK TANZANIA LIMITED AS THE SUCCESSOR OF THE COMMERCIAL BANK OF AFRICA (TANZANIA) LIMITED ...2nd DEFENDANT ENTERPRISES ALLIANCE LIMITED.... ...................................... 3rd DEFENDANT DEOGRATIUS MWIZARUBI KAJULA ......................................... 4th DEFENDANT DANSTAN NEHEMIA KABIALO .................................................5™ DEFENDANT Date o f Judgm ent 15/12/2020 Date o f the la st order 26/02/2021 JUDGEMENT I. MAIGE. J The theme of this dispute is a real estate at plot number 2580 Block "Y" Tabata Area, Dar Es Salaam with certificate of title number 87013 ("the suit property7'). The plaintiff has initiated the instant suit in his representative capacity as the administrator of the estate of the deceased. He claims to have been constituted as such in 2016. The registration of the suit property in the name of the deceased was in 2010. Ordinarily, that would appear to be improbable. The deceased who expired in 2007 would not live in 2010 to procure a certificate of title on the suit property in his name. A plausible explanation to rebate the prim a facie improbability was therefore i inevitable. In his pleadings and evidence/ it would appear, the plaintiff has attempted to give an account therefor. This is a very pertinent fact in determining the dispute. The plaintiff claims that the suit property while still un-surveyed, was acquired by the deceased way back in 1992 and it had since then been in his occupation. Upon the death of the deceased, the suit property remained in possession of his descendants, including the plaintiff. The plaintiff was not aware of registration of the suit property and subsequent creation of mortgage thereon until in 2016 when the same was in the process of being sold in realization of the mortgage in question. He discovered upon enquiry that, the first defendant who is the cousin brother to the plaintiff impersonated himself as the deceased and thereby procured a certificate of title on the suit property and subsequently mortgaged it to secure a loan advanced by the second defendant to the third defendant. Initially, the second defendant in this suit was Commercial Bank of Africa (Tanzania ) Limited. On 8th July 2020, the said company merged with NIC Bank Tanzania limited to form NCBA Bank Tanzania Limited. Therefore, this Court ordered that the case should proceed against the said company as a successor second defendant. This is in terms of order XXII rule 10(1) of the Civil Procedure Code, Cap. 33, R.E., 2019 (the CPC) which provides as follows:- 10-(1) In other cases o f an assignment, creation or devolution o f any interest during the pendency o f a suit, the su it may, byieave o f the court, be continued by or against the person to or upon whom such interest has come or devolved. In his written statement of defense, the first defendant while admitting that the suit property was mortgaged to secure the loan in question, denies the allegation that the mortgage was illegally procured. Equally so for the second defendant. In addition, the second defendant has raised a counterclaim against the plaintiff along with Enterprises Alliance Limited, Deogratius Mwizarubi Kajula and Danstan Nehemia Kabialo who are not privies to the main suit. They shall, for the purpose of this matter be referred to as the third, fourth and fifth defendants, respectively. The reliefs sought in the counterclaim are as follows: First, declaration that the third defendant has defaulted payment advanced by the second defendant. Two, an order that the 2nd defendant be allowed to exercise her right contracted in the said mortgage deeds. Four, the defendants in the counterclaim be ordered to pay the outstanding balance. At the final pretrial conference, the following issues were framed to guide the Court in resolving the controversy:- 1. W hether the p la in tiff did not create a mortgage on the su it property. 2. Whether the mortgage on the su it property in favour o f the second defendant was created fraudulently as alleged o r a t all. 3. Whether the third defendant in the counterclaim has com m itted any act o f default in term s o f the mortgage. 4. Whether the fourth and fifth defendant in the counterclaim guaranteed repaym ent o f the loan involved in this suit. 5. Whether the p la in tiff in the main suit, the third, fourth and fifth defendant are liable to repay the loan. 6. To what reliefs are the parties entitled to. In advance of his case, the plaintiff testified as PW1. He was the sole prosecution witness. He represented himself as the administrator of the estate of the deceased (exhibit PI). He told the Court that, the deceased acquired the suit property in 1992 by way of purchase agreement while it was still unregistered, (exhibit P3). He said, the deceased used the names Charles Malagila and Charles Henry Malagila interchangeably. To bolster his claim, he produced, which was admitted as P2, an affidavit of names. Upon purchase, he testifies further, the deceased constructed a house wherein they stayed until he passed away in 2007. To establish the sence death of the deceased, PW1, aside from exhibit PI, produced a certified copy of the death certificate which was admitted as P4 with a note that the reason for overruling the preliminary objection would be incorporated in the judgment. The objection as to the admissibility of the document was raised by advocate Chaula for the second defendant. It was twofold. First, though the witness claims to have lost the origin, he has not demonstrated the efforts he took to trace the same. Two, the document sought to be produced differs with the attached one in that; the former is certified by a resident magistrate and the latter by the Administrator General. For the plaintiff, Mr. Kobus Odhiambo invited the Court to ignore the objection since after the loss of the original, the witness made effort to 4 procure a certified copy from the issuing authority, the Administrator General. It is the one which has been produced into evidence. Since the contention appears to question the authenticity of the evidence in the death certificate, I viewed it as a pure point of fact which would be considered in the course of assessing the probity and credibility of the evidence adduced. It is on that account that, I overruled the preliminary objection and admitted the document into evidence. PW1 testifies further that, after the death of the deceased, the suit property was leased to some tenants (exhibit P5). It continued so until in 2016 when he discovered that, the same was in the process of being sold in realization of the mortgage. Upon inquiry to the second defendant and subsequently effecting a search to the registry of titles, he established that, the first defendant had fraudulently mortgaged the suit property to secure a loan from the second defendant in favour of the third defendant to which he is a shareholder (exhibit P6). To establish the alleged forgery, PW1 compered the undisputed signature in exhibit P3 and the disputed one in the certificate of title (exhibit P7) and informed the Court that, the two signatures are prim a facie different. In his understanding, the signature in exhibit P7 which purports to be of the deceased had been forged. He prayed therefore that, the mortgage and the whole process be nullified with costs. On cross examination by advocate Swenya, he told the court that, at the clan meeting subsequent upon the death of the deceased, the first 5 defendant was asked about the mortgage but was not cooperative. On why didn't he take a criminal action of forgery against the first defendant the answer from PW 1 was that he did not have adequate cooperation from the law enforcement agencies. On further cross examination by Mr. Chaula, PW 1 testified that, although in the RB the alleged offence was "kujipatia fedha kwa njia ya udanganyifu", the fraud in question was duly reported. He further told the court that, at the clan meeting, the intention was to resolve the issue amicably. It was not possible because the first defendant was not cooperative, he said further. He denied to be part of the fraud. He blamed the second defendant's predecessor for not acting with due diligence in the process. The first defendant testified as DW1. He is one of the directors of the third defendant. He admitted that, the suit property belongs to the deceased who was his uncle. He admitted further that, when the deceased expired in 2007, the suit property was yet to be surveyed. He however disclosed that it was the deceased who initiated the survey process during his lifetime. He disclosed further that, in the survey process which started at the level of serikali ya m itaa, he used to assist the deceased. He said, when the certificate of title was due, he was called to sign and collect the same. He subsequently mortgaged the same to procure a loan for business through the third defendant. He believed that he would make profit which would assist the family of the deceased. On cross examination by Mr. Chaula, he admitted that it was him who submitted the certificate of title to the second defendant. He further admitted to have represented himself as Charles Malagila. He admitted too to have deposed an affidavit wherein he represented himself as Charles Malagila. On further cross examination by Odhiambo, he told the court that, the clan meeting was held one day after the death of the deceased. He said, Judith Charles, the daughter of the deceased and Judith Kihendu Kusaga his wife, are two different persons. He admitted to have not disclosed to the family of the deceased about the existence of the certificate in title. Due to the complications brought by Covid 19, the evidence in chief for and on behalf of second, third, fourth and fifth defendants was adduced by way of affidavit of proof under order XIX rule 2 of CPC as supplemented by cross examination. The fourth and fifth defendants who are shareholders and directors to the third defendant (DW2 and DW3, respectively), deposed affidavits on their behalf and on behalf of the third defendants in their capacities as directors and shareholders each. In their affidavits which appear to be identical, they admitted the fact that the second defendant procured loan from the second defendant which was secured by among others, the mortgage of the suit property. They further admitted to have each executed personal guarantee to secure the loan. They equally admitted the fact that the third defendant defaulted in terms of the mortgage. For the second defendant, the affidavit was deposed by her principal officer one LILIAN JUSTINE MDEME (DW4). She informed the Court of there being two documents constituting loan agreement executed between the Charles Malagila and the second defendant's predecessor in title. The original one was an overdraft which was executed in 2012. It was secured by among others, a mortgage of the suit property. It was for the term of twelve months. The second one was a credit facility which was executed in 2013. It sought to restructure the overdraft facility by converting it into term loan. It was conditional upon the third defendant clearing all the accruing interest over the overdraft. In her oral introductory evidence just before being cross examined, DW4 produced the mortgage as D1 and the credit letter dated 2013 as D2. The mortgage was accompanied with an overdraft dated 2012 and spousal consent. On failure of the third defendant to clear the loan, she testified further, the second defendant issued a notice of default as a step for realization of the mortgage. She refuted the proposition that the mortgage was procured fraudulently. In her understanding, the certificate of title of the suit property was submitted to the second defendant by Charles Malagila. It was accompanied with a marriage certificate and affidavit of names (exhibit D5). The loan was also secured by personal guarantees of the fourth and fifth defendants (exhibit D4). On cross examination by advocate Lulu for the plaintiff, she said the notice of default was duly served though it has not been produced. She said, it was the second defendant who told Charles to produce an affidavit of names. 8 With the above narration of the feature of the controversy, it is desirable to address the issues framed. I prose to start with the third issue. In essence, it relates to the overdraft facility between the second and third defendant. Assuming it is answered in affirmative, the ultimate result is to entitle the second defendant to recall his loan. In my view, the issue as it is, does not amount to a land dispute. If it is, which is not, it has been pursued prematurely as the second defendant has not produced any demand note to the third defendant. In the circumstance, I will decline from determining the issue and give the parties opportunity to deal with the same in the appropriate forum. The determination of this issue will equally suffice to dispose of the fourth and fifth issues. It is so held. The cumulative effect of my holding is to strike out the counterclaim and order that it be dealt with by a separate suit. Having disposed of the counter claim, I will now attempt to address the first two issues which in my view constitute the foundation of the main suit. It is on the validity and legality of the mortgage under discussion. In his submissions in support of these issues, Mr. Kobas Odhiambo, learned advocate for the plaintiff, has, relying on the documentary evidence in exhibit PI, P2,P3 and P4, urged the court to hold that since the certificate of title and the mortgage were created subsequent to the death of the deceased, the same were fraudulent. On his part, Mr. Chaula, learned advocate, speaking for the second defendant submits that, there has not been adduced sufficient evidence to rebut the documentary evidence in exhibit D7 that the mortgage on the suit property was validly created by Charles Malagila whom the plaintiff purports to represent. Otherwise, he submit further, the plaintiff and his relatives who do not feature ought in this suit would have not been reluctant to prosecute the first defendant in a criminal case. In his view therefore, the alleged death of Charles Malagila and the impersonation of the first defendant as such has been connected to hoodwink the court with the intention to defraud the second defendant. In his written submissions on the issue through his advocate Mr. Swenye in the same way as it is in his evidence, the first defendant appears to concede to have impersonated himself as Charles Malagila and thereby procuring a certificate of title on the suit property in his name. He equally concedes to have mortgaged the suit property to secure the loan under discussion. He however denies fraud on account that, he did so for the beneficiaries of the deceased. I cannot agree with him. The defense of good faith would perhaps arise if the first defendant ended up with creation of certificate of title in the name of the deceased. The subsequent use of the suit property to secure a loan from the second defendant in the manner narrated in the pleadings obviously culminated into fraud. Therefore, basing on the first defendant's own pleading and evidence, I would hold, without hesitation that, the case has, as against him, been proved. This takes me to consideration of the issues in relation to the claim against the second defendant. From the pleadings and evidence, it would appear, what is faulted by the plaintiff is the mortgage deed and not the certificate 10 of title. However, the plaintiff's claim is based on the proposition that, the certificate of title and subsequent creation of mortgage on the suit property was fraudulent in as much as they were done in 2009 and 2012, respectively, while the deceased expired in 2007. The claim, it is important to state, is against the first and second defendants jointly and severally. In the nature of their defenses, it is apparent, the defendants appear to have conflicting interests. As such, the second defendant alleges of there being a collusion between the plaintiff and the first defendant to deny the second defendant's right on the mortgage. In such a situation, I submit, the plaintiff cannot place reliance on the admission by the first defendant to hold the second defendant liable. The proof of the plaintiff case as against the second defendant should therefore base on the plaintiff's own evidence. The name of the mortgagor in exhibit D1 is Charles Malagila. He is shown to have executed the deed in the presence of a notary public having been duly introduced by an advocate. The attestation of exhibit P3 and introduction of the signatory by an advocate has not been doubted in the plaintiff's evidence. Charles Malagila is he who appears in the certificate of title as the original owner (exhibit P7). As held in OLINDA DE SOUZA VS. KASAMALI MAN3I [1962] E.A. 756, in the absence of fraud, a Certificate of title is a conclusive evidence that, the person therein mentioned is a valid owner of the property and that, he has a valid indefeasible title against the entire world. In this case, the plaintiff is alleging fraud. I fully subscribe to Mr. Chaula, learned advocate that, fraud being a criminal offence, the li standard of proof thereof is beyond reasonable doubt. The plaintiff is therefore bound to prove the alleged fraud beyond reasonable doubt. The issue therefore is whether the same has been proved beyond reasonable doubt as against the second defendant. For the reasons that I am going to advance as I go along, I am preparing myself to answer both the issues against the plaintiff. The plaintiff relied on four documentary exhibits to support his case. First, a sale agreement dated 1992 suggesting that the suit property was acquired by his late father while unregistered in 1992 (exhibit P3). Two, letters of administration (exhibit PI). Three, certificate of title of the suit property (exhibit P7). Four, death certificate of the deceased (exhibit P4). The plaintiff has sued as a personal legal representative of the deceased. Exhibit PI suggests that he was constituted the administrator of the estate of the deceased by the primary court of Ukonga. On the face of it, exhibit PI suggests that, it was granted in a proceeding which was lodged in 2010. Spontaneously, this is the same year when exhibit P7 was issued. Nevertheless, the grant in exhibit PI was issued in 2016. This is six years after. It is very unusual for proceedings of such nature to take such long. In his evidence on cross examination, the plaintiff has attempted to offer an explanation of the cause of this unusual delay. He told the Court that, before his appointment as an administrator, her sister Judith Charles Malagila was an administrator of the estate. She had been as such between 2010 and 12 2016. He testified further that, the said Judith ceased to be an administrator for want of cooperation. The plaintiff's evidence above referred would suggest that, the said Judith was in office as an administrator of the estate when the alleged fraud was being committed. Despite being a very material witness, the plaintiff, for the reason better known to himself, has avoided to call her as a witness. This is so notwithstanding the suggestion in the evidence at the instance of the second defendant by way of cross examination that, Judith, the administrator and Judith who in the spousal consent in exhibit D1 is described as the wife of Charles Malagila, is the same person. In the circumstance of this case, this would entitle the court to draw a negative inference against the plaintiff for the omission. Therefore, in HEMED ISSA VS. MOHAMED MBILU, 1984, TLR, 113, it was held that where, for undisclosed reason, a part fails to call a material witness in his side, the Court is entitled to draw an inference that if the witness were called, he/ she would have given evidence contrary to the party's interest. A similar position was made in KIMOTHO VS. KENYA COMMERCIAL BANK (2003) E.A. Besides, the plaintiff though claims to be a successor administrator of the estate, he has, for the reason better known to himself, failed to produce any evidence of revocation of the letters of administration in favour of the said Judith. This is so despite the fact that exhibit PI does not whether expressly or implicitly portray the plaintiff as a successor administrator. The plaintiff has relied on the sale agreement in exhibit P3 to establish ownership of the suit property by the deceased. The suit property, it 13 is express in P7, is located at Tabata area within Ilala District. Exhibit P 3 ,1 have examined it, aside from describing the size of the suit property, does not indicate where the same is located. There is thus nothing in the said exhibit to the effect that, the property therein described is located at Tabata where the suit property is. That is not enough. In paragraph 8 of the plaint and his oral testimony, the plaintiff informed the Court that, as soon as the deceased purchased the suit property, he constructed a house wherein he had stayed with his family until in 2007 when he demised. To the surprise, the plaintiff did not adduce any evidence of the alleged construction. Nor any concrete evidence of the stay in the suit property by the deceased in the alleged time. As that is not enough, in the death certificate (exhibit P4), it has been made very clearly that, the deceased was a resident of Kawe. The plaintiff has also told the Court in his oral testimony that, he is the resident of Kawe. The plaintiff's testimony on the history of the suit property is therefore highly suspicious. In the nature of this case, the plaintiff was expected to call a witness from the registry of titles or Commissioner for Land to establish the true history of the suit property. For the reason better known to him he opted not. Furthermore, the plaintiff's case is based on the proposition that the mortgagor, Charles Malagila, expired in 2007. In her pleadings and evidence, the second defendant vigorously denied the alleged death. In a bid to establish the death, the plaintiff pleaded a death certificate, the photocopy of which was attached and marked "D'. Though the plaintiff did 14 not plead loss of the death certificate, in his evidence, he produced a photocopy. The admissibility of such document was not without objection. It was objected on account of not being supported by any loss report. More importantly, it was objected on account that, the document exhibited differed with the one pleaded in that, while the latter was certified by a resident magistrate, the former was certified by the Administrator General. I treated the issue raised to be of fact which would be considered in the course of assessing evidence. I did so having observed that the issue raised sought to question the credibility of the document which would if considered on the merit, assist the Court to get the truth. In the attached photocopy, Mr. Chaula is quite right, the death certificate is certified by a resident magistrate. In exhibit P4, the certification by the Resident Magistrate also appears. That aside, the photocopy of the certified copy of the origin is again certified by the Administrator General. It is useful to note that, while the instant suit was filed in 2017, the purported certification by the Administrator General was made on 10th March 2020. This was three years after the institution of this suit. The plaintiff did not bother to produce any witness from the registry of births and deaths to verify the document either. He should have. As that is not enough, exhibit P4 in its contents suggests that the date of registration of the death of the deceased was on 8th October 2007. Quite surprisingly, the certificate appears to have been signed on 5th January. 15 More to the point, in his testimony, the plaintiff claims that the deceased was an employee of Air Tanzania. In exhibit P4 however, the deceased who was 54 years old, is described as a retired person. On top of that, in the clan meeting which was held soon after the death of the deceased, there appears to be a discussion of the relative on the issue. PW1 told the Court on cross examination that the purpose was to resolve the matter amicably because they were relatives. What transpired in the meeting was not in evidence. No witness among those who attended the meeting was called despite the materiality of the issue. In view of the foregoing discussion therefore, it is apparent that, the plaintiff has not been able to establish beyond reasonable doubt that, the second defendant procured the mortgage under discussion fraudulently as alleged or at all. The first two issues therefore are answered against the plaintiff. In the final result therefore the suit by the plaintiff is dismissed, with costs for want of merit. On the suit in the counter claim, the same is struck out, without costs, for want of jurisdiction. Order accordingly. Dated at Dar Es Salaam this 26th day of February, 2021 16 Date: 26/2/2021 Coram: Hon. A.S. Chugulu - DR, For Plaintiff: Ms. Lulu Mbinga, advocate For 1st Defendant: Absent For 2nd Defendant: For 3rd Defendant: Present in person For 4th Defendant: For 5th Defendant: Absent RMA: Bukuku. Court: Judgment delivered this 26th day of February, 2021 in the presence of Ms. Lulu Mbinga learned counsel for plaintiff, 3rd and 4th defendant in person, absentia of 1st 2nd and 5th defendants. 17