ishfaque shabir yusufali administrator of the estate of the late shabir yusufali vs anail mohamed visra others 2018 tzhclandd 547 24 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE N0.202 OF 2013 ISHFAQUE SHABIR YUSUFALI.......................................... PLAINTIFF (As the Administrator of the Estate of the Late SHABIR YUSUFALI) Versus ANIL MOHAMED VISRA........................................... 1st DEFENDANT SALIM LAKHANI........................................................2nd DEFENDANT NEVADA GOLDEN COINS LIMITED..........................3rd DEFENDANT ISMAIL AHMED ABDULLAH...................................... 4th DEFENDANT Date of Last Order. 20.7.2018 Date of Ju dgm ent: 24.08.2018 JUDGMENT S.A.N WAMBURA, J: The plaintiff one Ishfaque Shabir (As the Administrator of the Estate of the late SHABIR YUSUFALI) has filed this suit against four defendants namely Anil Mohamed Visram (1st defendant), Salim Lakhani (2nd Defendant), Nevada Golden Coins Limited (3rd defendant) and Ismail Ahmed Abdullah (4th defendant) praying for the following Orders: (a) That the Honourable Court be pleased to declare the Plaintiff as a legal owner of the parcel of Land known as Plot No.943/157, UWT Street/Lindi Street //a/a District Central Area, Dar es Salaam City. i (b) That the Defendants be ordered jointly and severally to pay the Plaintiff general damages. (c) The costs of the suit be borne by the Defendants. (d) Any other reliefs that the Honourable Court may deem just fair and equitable under the circumstances. The 2nd, 3rd and 4th defendants challenged the suit by fling their written statements of defence, the 1st defendant did not. It was thus Ordered that the suit proceeds exparte against him. Whereas the plaintiff was represented by Ms. H. Sheikh, A dvocate all the three defendants were herein represented by Mr. Lwegasira Advocate. The brief facts of this suit are that the suit premises which was lawfully owned by the late Shabir Yusufali was allegedly sold to the 1st and 2nd defendants jointly in 1993. The two defendants had been his tenants apart from the fact they were very close friends to the extent that when he fell sick and had to travel to C a n a d a for treatment in 1999/2000 he left his house in the custody of the 1st defendant for house warming. For unknown reasons they remained tenants at his Godown and filed a suit at the Resident Magistrate’s Court of Kisutu in 2002 seeking to va ca te him from the suit premises which was granted exparte to the two defendants. When the said Shabir returned from C anad a he was told of the eviction Order. He thus filed an application for review/ revision which was granted at the High Court as the RM’s Court of Kisutu had no jurisdiction to entertain the matter. The suit was Ordered to start afresh at the Regional Housing Tribunal. This was in February, 2008. However due to the pecuniary jurisdiction of the Regional Housing Tribunal, the matter was filed at this Court sometime in 2013. This is because the Registrar of Titles had refused to rectify the name on the Certificate of Title which had already been transferred to the names of the two defendants. In between that is in 2002 the 1st defendant who has now also passed aw ay transferred his shares to the 4th defendant. In 2005 the 2nd and 4th defendants sold the suit premises to the 3rd defendant who is now in possession of the suit property. Before hearing of this matter com m enced the Court framed four issues which had to be determined being:- (0 Who is the lawful owner of Plot No.943/157 UWT/Lindi Street llala Dar es Salaam. 00 Whether there has been fraudulent and/or illegal transfer of the disputed land from the name of the plaintiff to that of the defendants. (iii) Whether the third defendant is an innocent third-party purchaser. Civ) To what reliefs are the parties entitled. When filing his final submissions Counsel for the defendants framed three more issues to be determined by the Court being:- /'. Order VII Rule 1 (e) of the Civil Procedure A c t Cap.33 R.E. 2002 requires a Plaint to contain the facts constituting the cause of action and when it arose. He cited the ca se of R o b b y Traders Limited V CRDB Bank PLC & A nother Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No.70 Of 2012 (Unreported) where the Court of A p p ea l of Tanzania stated, at p a g e 8 that: “Under Order VII Rule (1) (e) of the Civil Procedure C o d e [Cap.33, R.E. 2002], (the CPC) a party is required to indicate in the plaint the facts constituting cause of action and when it arose....The particulars as to when the cause of action arose must b e p le a d e d in the plaint. The significance of this is that from the date given the Court will know whether or not the suit is barred by the law of limitation, and the defend ant will be under no illusion as to the d a te or time the events took p la ce ." (Underlining was for his emphasis). //. Theplaint in this suit states in paragraph 8 (Hi) the cause of action to b e fraudulent conversion of the Right of O ccu p a n cy over the disputed land from the nam e of the Plaintiff to that of the 1st and 2nd Defendants which arose “around the year 1999-2000, when the Plaintiff had travelled a b road to C an ada for m edical treatment”. The said framed issues are more or less of preliminary objections which had to be determined before the hearing of 5 the matter. I will only deal with the 1st issue which is in respect of the time under the Law of Limitation as to whether the suit is properly before this Court. In Order to determine whether the suit is within the time frame of 12 years as provided for under Item 22 of Part 1 of the Schedule to the Law of Limitation Act C ap . 89 R.E. 2002 one has to know when time began to run. According to Section 5 of the same Act, the cause of action begins to run when one becomes aw are of the said act/transaction as was also held in the case of Ramadhani Nkongela Vs Kasian Paulo [1988] TLR 56. The issue here is whether it was in 1993 when the first sale was allegedly done or in 2002 when the late Shabir was evicted from the suit premises in absentia or in 2008. As there is a dispute on the sale of the disputed property, I believe it is unsafe to state that time began to run then. There is an argument that the cause of action arose in 1993 when the late Shabir allegedly complained that 1st and 2nd defendants had taken his documents. However by then they had not transferred the title into their names and he had not been evicted. So one cannot argue that time began to run then as he did not know their intention. One could argue that time begun to run when the late Shabir was evicted from the suit premises in 2002. Now it is on record that in 2002 the late Shabir filed an application for review of the RM’s Court Order at the High Court. The said application granted in 2008. In other words as of 2008 he was actually the lawful owner of the suit premises because the 1st and 2nd defendant did not file another application seeking vacant possession as adviced. After they neglected/refused to issue vacant possession is when this suit was filed in Court by the administrator of his estate. This was because the late Shabir had passed aw ay 7 sometime in 2013. I thus believe that time began to run as of 2008. But even if it could be said to be in 2002, then by 2013 the suit was not yet time barred. The issue as to whether the plaintiff has locus or not for not tendering proof that he is the administrator of the d eceased estate as he did not tender the letter of appointment when adducing evidence though the same was attached to the plaint should not detain us for reasons which I will state later in this judgment. Having said so I will now begin to resolve the issues herein framed:- 1. Who is the lawful owner of the suit premises? The 3rd defendant alleges to be the lawful owner of the suit premises having purchased the same from the 2nd and 4th defendants in the year 2005. The 2nd and 4th defendants jointly owned the same after the 4th defendant purchased the l sl defendants shares on 31/12/2002. This was because the 1st and 2nd defendants had allegedly purchased the suit property from the late Shabir sometime in 1993. However the late Shabir disputed the alleged sale and successfully challenged his eviction from the suit premises by setting aside the exparte decision. The 2nd defendant failed to produce evidence of the sale but only alleged that the transfer had been effected. As stated by Ms. Sheikh it is doubtful as to how one could transfer such property without a sale agreement or any document showing the consent of the previous owner. Mr. Lwegasira was of the view that since it was the Court which questioned on the sale agreement then to rely on the said response the Court would be drafting/amending pleadings for the parties. With due respect to Mr. Lwegasira this is a Court of Justice and Courts can examine parties on certain issues. The reply thereto goes into record. Going by Mr. Lwegasira's arguments then he was even not supposed to raise the issues which he termed as additional issues. But I believe that he did so in Order to assure that justice is met and that is why I have considered his submissions. How can the same Counsel then tell this Court that by considering that piece of evidence the Court will be amending the pleadings powers which it does not have? The question asked was to clarify on the legality of the alleged sale. Where one argues that there was a sale and the other one disputes the same then a written sale agreement is a decisive factor. More so as there were no witnesses to the same. A deed of sale of the land is said to be effected if the contract is in writing or there is a written memorandum of its terms and signed by the party against whom the contract is sought to be enforced. This is per Section 64(1) (a) (b) of the Land Act C ap. 113 R.E. 2002 which provides as herein quoted:- 10 “Section 64(1) A contract for the disposition of a right of o ccu p an cy 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; (b) The contract or the written memorandum is signed by the party against whom the contract is sought to be enforced". [Emphasis is mine]. Now apart from the buyers (1st and 2nd defendant) no one witnessed the sale and there was no written sale agreement tendered in Court to prove that a sale agreement was am icably reached. A transfer deed alone in the circumstances cannot be adequate proof of the sale. There was also an allegation that the Certificate of Title was lost sometime in 1999 and an eviction Order was issued in 2000. Now if at all the sale was effected w ay back in 1993 why would they leave the late Shabir to live in the suit premises up to li 2000? The allegation that they had given him a premises while renovating his house has not been proved. They would be expected to file a proper suit to evict him in the circumstances but they did not do that. Since the sale which would legalize the alleged transfers has not been proved and so the 1st and 2nd defendants had no legal title to pass to the 4th and 3rd defendants as it was held in the case of Farah Mohamed Vs Fatuma Abdallah [1992] T.L.R Pg 205. I thus hold that the alleged sale did not take place and therefore even the transfer deed thereon was null and void. Having found so it follows that the sale of the 1st defendants shares to the 4th defendant was also null and void for having no lawful title to pass on to the 4th defendant. Likewise the sale of the suit premises to the 3rd defendant was null and void ab initio as the lawful owner of the suit premises was all along the late Shabir Yusufali. 12 Now does his son have the locus to sue on his behalf? Indeed the Letter of Administration was not tendered in Court as exhibit but there is a copy of the same in the Court records proving that he has been so appointed. It being a judicial docum ent I believe this Court can take judicial note of the sam e. For clarity Section 58 of the Evidence Act Cap. 6 R.E. 2002 reads as follows; “No fa c t of w hich a co u rt takes ju d ic ia l n o tic e n e e d b e pro ved” [Emphasis is mine]. In the circumstances I believe he could sue as the said document cannot be said to be a collection of rubbish. 2. Was there a fraudulent and an illegal transfer of the suit property from the plaintiff to that of the defendants? It should be put in mind that allegations of fraud when raised in a civil suit, the burden of proving the same raises and is not only on a b alan ce of probabilities as was held in the case of OMARI 13 YUSUF VS RAHMA AHMED ABDULKADIR (1987) TLR 169 where the Court of Appeal of Tanzania held that; “I think it is now established that when the question whether so m eon e has committed a crime is raised in civil proceedings that allegation n e e d be established on a higher d eg re e of probability than that which is required in ordinary civil cases, the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of proof..." [Emphasis is mine]. From the evidence on record I do join hands with Mr. Lwegasira that there is no proof of fraud in effecting the alleged transfer. Though the plaintiff is challenging the transfer it has not be proved that fraud was done in transferring the said Title. 3. Was the 3rd defendant an innocent third party purchaser of the suit property the subject matter of this suit? As the purported sale has been declared to be illegal it means that the 1st and 2nd defendants had no title to pass to the 14 4th and 3rd defendants as was held in the case of Farah Mohamed Vs Fatuma Abdallah [1992] T.L.R 205. Therefore the 3rd defendant cannot be said to be an innocent third party purchaser as the sellers knew that the suit property was in dispute as of the year 2000. The 3rd defendant was supposed to make a diligent search before purchasing the same which he most likely did not do. This is because had he done so he would have realized that there was a ca v e a t lying at the Ministry of Lands as of 2002 in respect of the suit property. Therefore the sale of the suit property was unlawful and he has himself to blame for not conducting a search. 3. What reliefs are the parties entitled to? From the evidence and findings made I believe parties are entitled to the following reliefs:- i. Plaintiff is herein declared to be the lawful owner of the suit premises. 15 Registrar of Titles is ordered to rectify the said transfer to be in the name of the deceased/ or his heirs. The 3rd defendant is required to issue vacan t possession immediately as 1st and 2nd Defendants ought to have issued vacant possession way back in 2008. Plaintiff is entitled to be paid costs of this suit by al the defendants. 1st, 2nd, 3rd and 4th defendants to jointly pay the plaintiff damages at the sum of Tshs.50,000,000/= as general damages as of 2008 to 2013 when this suit was filed. -JUDGE 24.08.2018