grace nnko bange administratrix of the estate of kenneth bange 2021 tzhclandd 829 16 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 28 OF 2020 GRACE NNKO BANGE (as Administratrix of The estate of KENNETH BANGE)................................... PLAINTIFF VERSUS SYSCON BUILDERS LIMITED.............................. 1st DEFENDANT GODWIN BANGE.................................................... 2nd DEFENDANT JUDGEMENT Date of the last order: 09.11.2021 Date ofJudgment 16.11.2021 A.Z.MGEYEKWA, J The Plaintiff, GRACE NNKO BANGE an administratrix of the Estate of KENETH BANGE, brought this action against the two defendants on the basis that the 2nd defendant had unlawfully sold the property of the i deceased in the custody of the plaintiff to the 1st defendant at the tune of 70,000,000/-, whereas that the suit property is located at Kilimahewa, Kinondoni District within the city of Dar Es salaam. When the matter came for mention on 06th April, 2021 the learned counsel for the Plaintiff reported the defendants to have refused to receive the summons as per proof attached. The court ordered the defendants to be served through publications in the widely circulated newspapers. The suit was argued before me on 27th October, 2021. It was argued exparte against the Defendants. I am alive to the fact that the Defendants were notified through the said publication to appear on o2nd June, 2021 when this case was fixed for hearing, and the Defendants were so informed through the said publication. However, they did not appear on the stated date and the case was fixed hearing on 27th October, 2021 during which, again, the Defendants did not appear. Having regard to the entire circumstances of this case, I am of the considered view that the Defendants were duly being served therefore, I grant the Plaintiff's prayer to proceed exparte against them. The plaintiff in her testimony testified that being the deceased's wife, she was appointed on 07th April, 1995 to administer the estates of her late 2 husband. To substantiate her testimony she tendered a letter of administration of the estate (Exh. P2). The Plaintiff testified to the effect that she was married to her late husband one Kenneth Nnko Bange who passed away in 1994. She stated that in 1984 they were blessed with a child; Godwin Bange who is the 2nd defendant. The Plaintiff went on to testify that on their subsisting marriage they acquired some properties including the suit landed property located at Kilimahewa Street, Wazo Ward, Kinondoni District. She stated that at her husband purchased three plots from different people; Hassan Ramadhan Misembi, Sina Sudi Mohamed, and Samsoni Soneli. To substantiate her testimony she tendered three Sale Agreements which were admitted and marked as exhibit Pl collectively. To prove the ownership of the suit property to her husband, and that the 1st plot was bought on 05.04.1990, 2nd on May, 1990 and the 3rd on 26.01.1991. The Plaintiff did not end there, she submitted that his son sold the suit landed property on 21st September, 2011. To substantiate her testimony she tendered a Sale Agreement between the 1st defendant and 2nd defendant for identification purposes the same admitted as exhibit ID1. 3 And that the dispute was reported to the Wazo Ward tribunal in which the stop order dated 10/10/2021 was admitted as Exhibit P3. That after affixing the stop order, the 1st defendant started placing building materials on the suit property claiming that the landed property belongs to him. The Plaintiff urged this court to declare that the suit property belongs to her late Husband one Kenneth Bange and declare that the Sale Agreement between 1st and 2nd defendant was illegal, hence the 1st defendant be ordered to vacate the suit land. Joseph Malugu testified as PW2, he testified that the Plaintiff was the deceased's wife and that he knows the disputed area since 2011. He more testified that he was once the ward tribunal member in Wazo Ward, Kinondoni District and that he was involved in affixing the stop order. Musa Mohamed was the third witness. He testified that the Plaintiff was the deceased's wife and that the disputed land located at Salasala, Kilimahewa Street, Wazo Ward, Kinondoni District, belonged to her late husband Keneth Nnko Bange. 4 At the final pre-trial conference, the learned counsel for the Plaintiff proposed the following issues which were adopted by the court. The issues are:: - 1. Whether the Plaintiff has locus to sue the defendants? 2. Whether the Plaintiff has proved his claim to the required standard ofproof. 3. What is the relief to the parties? The first issue for determination is whether the Plaintiff has locus to sue the Defendants. It is trite law that a party who institutes a case must show that she or he is entitled to bring the matter before the court. In the case of Lujuna Shubi Ballonzi, Senior v Registered Trustees of Chama cha Mapinduzi [1996] TLR 203, the court had the following to say:- '7/7 this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has the power to determine the issue but also that he is entitled to bring the matter before the court..." [Emphasise added]. 5 Applying the above authority, in the instant case, the Plaintiff in her testimony testified to the effect that she was married to Kenneth Bange. She said that she was appointed to administer the estate of the late Kenneth Bange. After perusing the Plaintiff's documents specifically the administration of estate Form No. IV shows that the Plaintiff was appointed to administer the estate of the late Kenneth Bange. Although she did not tender any document to prove the existence of the said marriage. However, as long as she submitted Form No. IV that is made under the 5th Schedule Rule 2 of the Magistrates Court Act, Cap. 11 [R.E.2019], the same suffice to prove that she was appointed to administer her late husband's estate. Thus, she is entitled to bring the matter before the court. Therefore, this ground is answered in the affirmative. Next for consideration is the second issue whether the Plaintiff has proved his case to the required standards. The standard of proof was clearly elaborated in the case of Barelia Karangirangi v Asteria Nyalwambwa, Civil Appeal No. 237 of 2017 (Unreported) "If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates in a 6 binary system in which the only values are 0 and 1. The fact either happened or did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden ofproof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned to and the fact is treated as having happened." Likewise, in the case of First National Bank Tanzania Ltd V Hussein Ahmed Salwar T/A Pugu Hardware & Another, HC (Commercial Case No. 2019) Dar Es Salaam. This court held that:- "777 the present suit likewise, the plaintiffis anticipated to fully comply in the sense that, the affidavit in proof of the claim outlined in the plaint, albeit on the balance of probabilities despite the fact the deposition will not encounter challenges from the defendant. This includes the authenticity, relevance, and admissibility of document or annexures accompanying the affidavit deponed." One of the canon principles of civil justice is for the person who alleges to prove his allegation. Sections 110 (1) & (2) and 112 of the Evidence Act, Cap.11 [R.E 2019] places the burden of proof on the party asserting 7 that partly desires a Court to believe him and pronounce judgment in his favour. Section 110 (1) of the Act provides as follows:- "110 (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 exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden ofproof lies on that person. On whom the burden ofproof lies 111. The burden of proof in a suit proceeding ties on that person who would fail if no evidence at all were given on either side. The burden ofproof of the particular fact. 112. The burden ofproofas to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall He on any other person." The same was held in the case of East African Road Services Ltd v J. S Davis & Co. Ltd [1965] EA 676 at 677, it was stated that:- " He who makes an allegation must prove it. It is for the plaintiff to make out a prima facie case against the defendant. " 8 In the matter at hand, the Plaintiff was required to prove her case to the standard required by the law. In her testimony, the Plaintiff tendered Sale Agreements which were admitted as exhibit Pl collectively to prove that the suit property located at Kilimahewa, Kinondoni District belonged to her late husband Kenneth Nnko Bange. I have scrutinized the three Sale Agreements and noted that the first Sale Agreement is dated 26th January, 1991 does not describe the place or location and size of the suit landed property. Besides, the Sale Agreement was not witnessed by any other party in exclusion of the buyer and seller. The second Sale Agreement is dated 15th May, 1990, it was witnessed by four witnesses, Salum Seif Mbonde, Ali Hassan, Lotti Michael (Katibu), and Costa Mkwije. The description of the property purchased was located at Tegeta Juu Zone Namba 8. Reading paragraph 5 of the Plaint, the disputed plot is unregistered land located at Kilimahewa, Kinondoni District within the city of Dar es Salaam. This property was not claimed in the Plaint and the court was not informed whether the location of Tegeta Juu Zone Namba 8 is the same as Kilimahewa, Kinondoni District. The third Sale Agreement is dated 05th April, 1990. It was also witnessed by four witnesses, but none of them came to testify in court in 9 favour of the Plaintiff in discharging her burden of proof. The two witnesses; PW2 and PW3 did not witness the Sale Agreements. The third Sale Agreement does not describe the purchased property in relation to the suit property. In other words, it is not related to the plot in dispute. In line with the above evidence and apart from the Plaintiff's witnesses who testified to the effect that the suit landed property belongs to the Plaintiff, she is the lawful owner of the suit land, this court fails to connect the dots as to which Sale Agreement among the three Sale Agreements specifically and directly involves the suit landed property. In her Plaint, the Plaintiff on paragraph 8 testified that the 1st Defendant without the consent of the administrator of the deceased estate entered into an agreement with the 2nd Defendant to purchase the said land without mentioning which land, its location, and size of the plot are not stated. With the above analysis, it is obvious that this court is not moved to grant the Plaintiff's prayers. To be precise as far as the evidence adduced before this court, I conclude that the Plaintiff has not managed to discharge her burden to the required standards to prove that the suit property belonged to her io late husband Kenneth Bange. However, the same is not an automatic declaration that the defendants are legal owners of the suit property. On the third issue, the reliefs' claims cannot be awarded since the Plaintiff did not prove her case to the standard required by the law. In the upshot, the suit is hereby dismissed without costs. Order accordingly. Dated apDaf es Salaam this date 16th November, 2021. A.Z.MGEYEKWA JUDGE 16.11.2021 Judgment delivered on 16th November, 2021 in the presence of Logiko John, learned counsel for the Plaintiff and in the absence of the Defendants. JUDGE li