francine safi mwambhai changarawe vs regina raymond mallya others 2018 tzhclandd 491 3 august 2018

9IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 181 OF 2014 FRANCINE SAFI MWABHAHI CHANGARAWE @SAFI MWABABI CHANGARAWE suing under the Power of Attorney granted to CYPRIAN TOYE MWITA.................... PLAINTIFF VERSUS REGINA RAYMOND MALLYA @ RAHMA MUSSA ALLY @ RAHMA ALLY MUSSA AHMAD NGULUNGWA........................................... DEFENDANT Date o f the Last order: 8/05/2018 Date o f the Judgment: 3/8/2018 JUDGMENT MGONYA, J. The Plaintiff CYPRIAN TOYE MWITA proceeded to prove his suit Exparte against the Defendant REGINA RAYMOND MALLYA for non-appearance despite services. The Plaintiff instituted this suit against the Defendant so that the Court to declare her a lawful owner of the suit premises Plot No. ILA/TBT/TK 33/NO. 5; the suit premises located at Makongo Juu-Kinondoni Dar es Salaam; to order the eviction of the Defendant or any other person who occupy the suit premises under the Defendant's authority; the payment of rent to the time of Tshs. 300,000/= from the date the last purchases price was paid to the date of eviction; costs of the suit and any other reliefs. In her Plaint the Plaintiff alleges that on 28th July, 2011, she purchased the suit house located at Makongo Juu from the Defendant for the sum of Tshs. 40,000,000/=. That according to the terms and conditions of the Agreement, the Plaintiff was have to deposited half of the purchase price i.e Tshs. 20.000.000/= as down payment and the balance of Tshs. 20.000.000/= would be paid by instalments. It was further agreed that soon after the Defendant had received the last purchase price installment, the Defendant would hand over the said house to the Plaintiff on 1st November, 2011 in the presence of Serikali za Mtaa Leaders. The Plaintiff contended that despite the full payment of purchase price to be paid to the Defendant, the Defendant to date has refused to hand over the house in dispute to the Plaintiff. It was further contended in the Plaint that the Plaintiff was not living in Tanzania currently and despite, the suit house was dully sold and bought by the Plaintiff, the Defendant has continued to occupy and rented the same to another person/people without any colour of right nor legal justification. As a result, the Defendant has remained in occupancy of the suit house without paying any rent or any other consideration to the Plaintiff who is the lawful owner. The Plaintiff averred that, dispite of the repeated demand notices, the Defendant neglected to heed to the Plaintiff's demand for vacant possession of the said suit house and disallow the Plaintiff to continue with and development plans hen cause the Plaintiff to suffer serious financial loss since construction costs have been escalating year after year. Unless this court intervenes and give redress, the Plaintiff stand to suffer irreparable loss and such unfair conduct will escalate to the detriment of other bona fide purchasers like Plaintiff. The Plaintiff therefore prays for Judgment and Decree to be entered against the Defendant as follows:- a)A declaration that the Plaintiff is the Lawful owner o f the suit house located at Makongo Juu - Kinondoni Dar es Salaam; b) An order for eviction of the Defendant or any other person who is in occupancy of the suit premises under the Defendant's authority; c)An order for the Defendant to pay rent at the tune of Tshs. 300,000/= form the date the last purchase price was paid to the date of eviction; d) Costs o f this suit; and eJAny other relief(s) may this Court deem fit just to grant 3 The Plaintiff was represented by Mr. Godfrey Gimeno the learned Counsel. In support of her case, the Plaintiff called in two (2) witnesses. In his evidence, PW1, CYPRIAN TOYE MWITA with special power of Attorney from Professor FRANCIS MATAMBALYA and FRANCINE SAFI MWABHABHI CHANGARAWE stated that the Plaintiff bought a suit house at Plot No. ILA/TBT/TK 33/105 with licence No. ILA 027856 at Makongo Juu Dar es Salaam from the Defendant at the sum of Tshs. 40,000,000/= in 2011. Witness went further to testify that, he had evidence of some document to prove the sale. He remembered when he retired and packed his languages read to be transported, on the way to Musoma were attacked by smugglers and some of properties were stolen; among them including the box that had those documents. He reported the matter to Police Musoma where he obtained RB MUS/RB/9884/2017 on 22/11/2017. He tendered a Loss Report which was admitted as Exhibit P2 in court. PW1 further averred that, though the original documents were stolen, he traced the copy of the Sale Agreement from the Lawyer who assisted/witnessed the sale. He tendered the copy of "HATI YA KUTAMBUA MAUZO" dated 28/7/2011 between REGINA RAYMOND MALLYA (as Seller) and Mrs. REGINA SAFI MWABABICHANGARAWE (as Buyer) for the sale of house worth Tshs. 40,000,000/= dully signed by both parties and witnessed by Mwenyekiti wa Serikali ya Mtaa Makongo Manispaa ya Kinondoni with terms and conditions. The same was admitted as Exhibit P3. PW1 testified further that, according to the Sale Agreement (Exhibit P3) parties agreed that payments be in two installments where the last installment was to be effected on 1/11/2011. The said payments were done in two ways, 1st, the Buyer sent money by WESTERN UNION from SAFI (the Plaintiff) to REGINA (the Defendant) and; 2nd payment was done through HARRIETH MOLLEL who was REGINA'S relative. The same was attached to the Plaint and marked FSMC3 (a copy of "MKATABA WA MAKABIDHIANO YA PESA" between HARRIETH MOLLEL and REGINA RAYMOND MALLYA for the amount of Tshs. 3, 750,000/= as first installment and Tshs, 250,000/= for the 2nd installment to form 4,000,000/= as part payment of the money for the sale of House at Makongo Juu) the same was admitted as Exhibit P4. PW1 went on to testify that, the suit house still to date is under the ownership/custody of the seller REGINA; and that the suit house is the property of SAFI CHANGARAWE and that the Defendant has to vacate possession since she was paid the last installment which was effected on November, 2011; PW1 lastly stated that the seller (Defendant) is still having the custody of the disputed house. Hence he prayed for payment of economic rent of 130,000 - 200,000 per month to the date of entering vacate possession. PW2, HARRIETH JONAS MOLLEL, the friend of the Plaintiff averred that she knew Defendant as they once lived in the same house at Makongo Juu that was in 2010 - 2012. PW2 testified that she got married and left the house and then defendant also left the house and went to live to another house at TABATA since the said house at Makongo Juu was sold by the Defendant to her friend SAFI. PW2 further testified that she knows about the sale of the disputed house to the effect that Defendant sold the same to SAFI for Tshs. 40,000,000/= and for the 1st installment the Plaintiff paid Tshs. 20,000,000/= and the remaining sum was sent through Western Union and another instalment passed through her which amounted Tshs. 4,000,000/= in two different installments. PW2 tendered Sale Agreement which was admitted and marked Exhibit P3 as she was the witness of the Seller (Defendant) and the Sale Agreement which had her name and signature. Further, PW2 tendered Exhibit P4, a document that she handed money to Defendant in two installments; as PW2 was the one who prepared it at police station where she went to take Safi's money from someone who works with Police Force. When PW2 was asked for clarification, the Witness told the court that, when they shifted from Makongo Juu to Defendant's (Regina's) house at Tabata, the Defendant told her that when the Plaintiff comes back, she (the Defendant) would handle the Plaintiff's house. However by then the Defendant had tenants to the said sold house and it was from that time, the Plaintiff came only once and left. PW2 stated that it is in her knowledge that, to date the house is still in Defendant's custody. Having gone through the evidence on records there is no dispute that the Plaintiff lawful purchased the suit house from the Defendant on 28th day of July, 2011. The fact which was evidence by Exhibit P3 the Sale Agreement. It is my view that after the parties to the Sale completed signing and executing the Sale Agreement, the Defendant transferred her right of Occupancy to the Plaintiff (SAFI) and the Plaintiff acquired a good title to the use and occupation over the suit house in that disposition as provided for under the provision of Section 64 (1) (a) and (b) of the Land Act Cap. 113 [R. E. 2002]. For clarity the provision reads as follows:- "A contract for the disposition of a right o f occupancy is enforceable in a proceeding oniy if; (a) The contract is in writing of there is a Written Memorandum of its terms; (b) The contract or the written Memorandum is signed by the party against whom the contract is sought to be enforced" From the above provision, the Defendant was duty bound to honour the terms and conditions they agreed upon in the disposition agreement entered on 28th July, 2011 where by the Defendant has to handle over the suit house on the last installment payment which was effected on November 2011. The Law of Evidence Act Cap. 6 [R. E. 2002] provides that whoever desires a court to give Judgment in his favor, he/she must prove that those facts exists. Section 110 (1) (2) of the Law of Evidence Act, (Supra) reads as follows:- "(1) whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists". 8 When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". The above provision place the burden of proof to whoever desires the court to give Judgment as to any legal right or liability dependent on existence of facts which he/she ascertains. The court's decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him/her. The question of ownership of the disputed house required the proof so as to establish whether the Plaintiff is the lawful owner of the suit house even if the matter proceeds exparte. This position seen in a case of ROSELEEN KOMBE VS. ATTORNEY GENERAL (2003) TLR J47where the court held that:- "Even where the Defendant files no written statement o f defence at all or does not appear, let alone where he file an evasive or general denial, the Plaintiff still has to prove his case for the relief sought, even if exparte Thus since the Plaintiff have proved her case by tendering the Sale Agreement (Exhibit P3) to prove the same, this court finds that she (the Plaintiff) is the lawful owner of the suit house at Plot No. ILA/TBT/TK 33/105 with Residential License No. ILA 027856 at Makongo Juu - Dar es Salaam. Therefore, as to what reliefs are parties entitled to? The Plaintiff prayed for the following relief which are accordingly granted as below:- a. That the Plaintiff is dedared as the lawful owner of the suit house; b. An order o f eviction of the Defendant or any other person who occupy the suit premises under the Defendant's authority; c. The Defendant to pay the Plaintiff rent at the tune o f Tshs. 300,000/= from the date the last purchase price was paid to the date of eviction; and d. The Defendant to pay the costs o f the suit Right of Appeal Explained. L. E. MGONYA JUDGE 3/ 8/2018 10