kellu kamo lucas vs dr luis b shija 2021 tzhc 6509 24 september 2021

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA LAND CASE NO. 09 OF 2017

KELLU KAMO LUCAS PLAINTIFF

VERSUS DR. LUIS B. SHIJA DEFENDANT

JUDGMENT 29thJune & 24thSeptember,2021 MDEMU, J.: Kellu Kamo Lucas, the Plaintiff herein, filed this suit claiming against the Defendant Dr. Luis B. Shija for possession of a property on plots No. 247 and 249 Block Q in Kahama Urban. According to the pleadings, the Plaintiff purchased plot No.247 Block Q from Mabubu Mussa at Tshs. 12,000,000/= in September, 1997. The other plot No.249 Block Q was also purchased at Tshs. 12,000,000/= from one Charles Masuka in 1998. According to the plaint, the two purchases were from the plaintiff's own sources. Sometimes in 2001 the plaintiff and the Defendant who are all medical doctors established a health center by the name of Igalilimi. The Plaintiff provided the suit premises to host the business. The Defendant on his part pleaded in his written statement of defence that, the said plots were purchased using project funds under the direction 1) of the Defendant to the plaintiff when the former was on studies. Following this background, the Plaintiff in the instituted suit, is seeking for the following reliefs: (i) A declaration that the Plaintiff is the legal owner of the suit premises. (ii) An eviction order against the Defendant (Hi) A permanent injunction restraining the Defendant whether by himself or his servants or agents or otherwise whosever from interfering in any way with the suit premise. (iv) Payment of special damages for the

unlawful occupation of the suit premises to the tune of Tanzanian Shillings seventy-two million (72,000,000/-=.) (v) General damages. (vi) Costs of this suit be provided for. (vii) This honorable court be pleased to grant any other relief(s) deem fit and just to be granted under the circumstances. o -===--~~-------- At the trial of this suit, the plaintiff was represented by Mr. Paul Kipeja, learned Advocate whereas the Defendant had the service of Mr. Frank Samwel, learned Advocate also. The following issues were framed: 1. Who is the lawful owner of the suit land as between the Plaintiff and the Defendant?

2. To what reliefs are the parties entitled. The Plaintiff testified as the only witness to prove that he is the rightful owner of the suit premises whereas the Defendant testified as DW1 and also called Wilbard Pius Samamba, Theresia Paschal and Charles Masuka testifying as DW2, DW3 and DW4 respectively alleging ownership of the suit premises to the Defendant. PW1. Kellu Kamo Lucas testified that in 1997 he purchased plot NO.17 Block "K" from Maguba Mussa at Tshs12,000,000/= through sale agreement before village officials. He also purchased another plot from Charles Masuka. He however testified that, the sale agreement got lost. The two plots were issued with letters of offer in 2006 as Plot NO.247 Block Q and 249 Block Q which were tendered collectively as exhibit PI. After purchase, PWl then commenced construction work of a hospital/health center. --- He also tendered certificate of occupancy in plot No. 247 Block Q Nyasubi area and plot No. 249 block Q also located at Nyasubi area collectively as exhibit P2. All the certificates of tittle are in the name of Kellu Kamo Lucas After completion of construction of health center, PW1, for want of qualifications, invited the Defendant who had qualification as an assistant Medical officer to be his partner, but PW1 was in managerial control of running of the center. In that, the name of the Defendant appeared in the registration

certificate of the Health Centre. In 2013, dispute arose that PW1is not the owner. The Defendant then employed his children and by 2015, the Defendant's children were in all key positions. He then changed all padlocks and informed PW1 in front of workers that he is not the owner of the health center. But as he knew to be the owner, he continued to attend though his entry was restricted. All vehicles got grounded as the defendant did put also salt in them. He thus decided to vacate the premises and rented another premises to operate a health center. He testified further that, he paid various fees including land rent for plots No. 247 Block Q and plot No. 249 Block Q. The receipts were tendered o ----==----- .. collectively as exhibit P3. He also tendered official search for plot No. 249 Block Q dated 27/8/2020 as exhibit P4 indicating to be the owner of the suit premises. The defence opened their case by calling OWl, Luis Shija who testified that, in the disputed two plots, in plot No. 247 Q, there is a health centre known as Igalilimi while Plot No. 249 Q is undeveloped. There is an incinerator. He added that "Kellu" is a name developed by joining the first two letters of their children Keneth and Lushinge while Lucas was formed from names "Luis and Kam to form "Lucas". He knew the plaintiff from 1972 at Katungulu Sengerema where his brother one Emmanuel Peter Lugegawas the

Defendant's teacher. They again met in 1988 at Kahama Hospital as clinical officers. He testified further that, in 1993 he opened Wazazi Dispensary at Ufara Village with his wife Modesta Pius Kahabi then in 1994 transferred that dispensary to KahamaTown. As in 1994 had plans to attend training, he contacted the Plaintiff and introduced him to one Wilbert Samamba so that he operates the dispensary in his absence. The Plaintiff was appointed as an accountant. He added further that, Igalilimi Health Centre was financed by funds from Wazazi health centre and that, the name was changed to Igalilimi for registration purposes. He testified to have completed his studies in 1998 and it is during that time, that is in 1997 when plot No. 247 block Q was purchased and the other plot No.249 was purchased in 2004. The buildings then were renovated by construction of OPD building, laboratory, RCH, nurses' office and fenced the plots by using bricks and trees in some parts. After he realized embezzlement of funds from the dispensary, some construction works could not therefore proceed, thus decided to take charge of all duties. On this, the Plaintiff issued a notice to him for failure to deposit money in the account and also the need to part with partnership. The matter was also referred to labour office that he failed to pay employees as their employer. Mzee Samamba then tried to reconcile

them as per "muhtasari wa kikao cha kwanza wakurugenzi wa Zahanati na Kituo cha Afya Igalilimi Kahama (exhibit D1). To his knowledge, plots No. 247 and 249 are his properties because according to the minutes, plots, buildings, vehicles were given to the plaintiff except plot No. 247 Q and 249 Q. The rest went to the Plaintiff. These are plot No. 236 and 237 with exhausted improvement. Land cruiser, ambulance, Toyota Surf a dispensary (Igalilimi) and all appliances plot No. 18 block C and the centre account. He thus prayed the suit be dismissed by declaring him the owner of plot No. 247 and 249 Block Q. The second witness for the defendant was Wilbard Pius Samamba (OW2) who testified that, the Plaintiff and the Defendant are his friends and the dispute over them is on properties acquired in their partnership. According to him, Dr. Shija opened a dispensary at Ufara Village and later transferred it to Kahama in 1993. He knew establishment of the dispensary for he rented his office microscope, fesspes and scissors. Dr. Kamu was also at Wazazi Dispensary as a clinical officer. In 2016, he learnt that, the two partners are not in good terms. He then held separate sessions to reconcile them and later on 16/8/2016, he convened a meeting as a chairman attended also by the two disputants as members. Prior to the partnership, Dr. Kam Peter had a land lover, land cruiser, mark II,

Toyota Surf, hiace, ambulance and a plot which he does not remember the registration number. Around 1994 to 1998, Dr. Luis Shija went for studies at Mbeya and later to KCMC. Most properties were registered in the name of Kellu Lucas. In the meeting, it was agreed to complete a hotel building and health centre then they should part away with that partnership. However, that mission was not accomplished following the instant dispute. Theresia Paschal testified as OW3 that she was employed as a receptionist by Dr. Shija Others were Modesta Kahabi (pharmacist), Daniel Kahanda (laboratory technician) and Mbogo. She added that in 1994 the Defendant went for studies thus the Plaintiff took over supervision of duties. However, the Defendant used to attend work while on leave. Reqardinq the relationship between the two, her evidence was that, while the Defendant was on studies, operations of Wazazi dispensary ceased. They were released from work. On resumption the name got changed to Igalilimi. They then established a health center on return of the Defendant from studies. It was agreed that Dr. Kamu was to attend the dispensary whereas the Dr. Shija was in health centre operations. She concluded to have alternated both in the dispensary and health center as a receptionist before her retirement in 2011. The last witness for defence was OW4 one Charles Masuka. His was that, he sold plot

No.249 Block Q to Kellu in 1998. The purchase price of Tshs. 12,000,000/= was paid by Shija on instructions of Kellu. This witness was however declared hostile on application of the Defendant's counsel. Following closure of both the plaintiff and the defendant's case, both the plaintiff and defendant's counsels made their closing submissions. Mr. Paul Kipeja, Advocate for the Plaintiff submitted that, the Plaintiff is the owner of plot No.247 and 249 Block Q because the certificates of tittle are in the name of the Plaintiff(P2). In this, he cited the provisions of section 2( 1) and 40 of the Land Registration Act, Cap. 334 and the case of Salum Mateyo vs Mohamed Mateyo (1987) TLR 111 at 112 insisting that as the two titles are registered in the name of the Plaintiff then it is evidence that he is the owner. He submitted further in this that the Defendant conceded this fact thus as per Amina Maulid Ambali and Others vs. Ramadhan Juma, Civil Appeal No.35 of 2019(unreported), when two persons are competing of ownership, the one with tittle be regarded owner unless there is fraud which in this trial is wanting and if it is then, should have been pleaded specifically as stated in City Coffee Ltd vs the Registered Trustee of 11010 Coffee Group, Civil Appeal No.94 of 2018 (unreported). He concluded in this that, the Defendant has failed to establish fraud because, leave alone failure

to plead, but also neither cross examined the Plaintiff nor the defence witnesses called established fraud. As to contribution on purchase of the suit premises, his submissions was that, the Defendant changed this position by his evidence to have purchased the suit premises himself. He added, even on assumption that he purchased, yet there is no evidence to that effect apart from oral evidence of OWl which contradicts paragraph 17 of WSD that Plot No.249 was purchased in 2004. Again, one Charles Masuka denied to have sold plot No. 249 to the Defendant. Regarding minutes of the reconciliation meeting, his view was that, the minutes got manipulated following evidence of DW2 that many things got omitted. He thus asked me to grant the prayers sought for in the plaint. Mr. Frank Sanwel, for the Defendant urged me to hold the suit incompetent for failure to join Mabubu Mussa and Charles Masuka who sold plots No.247 and 249 Block Q respectively to the Plaintiff. In this, he asked me to dismiss the plaintiff's case by citing the following cases: Juma B. Kadalla vs. Laurent Mnkande (1983) TLR 103 and Rehema Farid (as Administratorof the Estate of the Late Farid B. Magan) vs. Fatuma Mwinshehe Vogogo, Land Case No.348 of 2015 (unreported) Regarding damages pleaded in paragraph 11 of the plaint his view was that, there is no evidence to substantiate the claim for want of rental contracts,

payment receipts or any proof to the effect that KELLU KAMO LUCAS used to generate Tshs. 1,000,000/= per month. 1:) Submitting on the evidence generally, he said that there are certain facts which the plaint did not disclose but got disclosed by the Plaintiff during cross examination. They are: one, how did the defendant came into use of the disputed properties. During cross examination he disclosed that the two were partiners and used to work in a private dispensary and that the two knew each other during childhood. Two, the relationship between the Defendant and the Plaintiff in which during cross examination he said both were doctors. Three, on the use of different name by the Plaintiff during registration, it is in evidence that the plaintiff name is Kamu Peter Lugega and used the name of Kellu as both are his names. Four, on failure of the plaint to disclose involvement of the Defendant in acquisition of the landed properties, he submitted that, during cross examination the plaintiff resisted but stated that, the disputed properties got acquired when the two were partners. He thus summed up in this that the Plaintiff went to court with dirty hands. He cited the case of GM Cross Africa Ltd vs. Stanbic Bank (T), Civil Case No. 137 of 2015 (unreported) insisting that, whoever goes to equity should go with clean hands. He also added that, the Plaintiff also personated as Kellu

Kamo Lucas instead of his name Dr. Kamu Peter Lugega in order to fulfil his dirty mission. According to the testimony of the Defendant, it is the Plaintiff who informed the Defendant that the name "Kelu" was formed by joining the first two letters from words Keneth and Lushenge whereas the other names of KAMOLUCASwill be communicated to him in due course. Regarding how the two plots got acquired, it was his submissionsthat, the two plots got acquired by both the Plaintiff and the Defendant using funds from their project from Wazazi Dispensarythen to Igalilimi Dispensary and later as Igalilimi Health Centre. In essence, he added, it is the Defendant who invited the Plaintiff to business and in all, there is evidence that the Plaintiff failed to prove to be the owner of the disputed land. Having these submissions from parties and also having taken into account the entire evidence on record, it is not disputed that the Plaintiff and the Defendant were partners in business operating a health center. It is equally not disputed that, the two were partners from the establishment of Wazazi Dispensary whose name was changed to Igalilimi dispensary and later, Igalilimi health center. It is further on record that, sometimes in the course of that partnership, the Defendant left for studies leaving the Plaintiff the sole supervisor of the partnership project. Again, according to the

evidence, the disputed properties were acquired during partnership and that they were all registered in the name of the plaintiff. Going by the record, the suit properties were acquired through sale and neither the Plaintiff nor the Defendant dared to produce sale agreement to that effect. What therefore comes to question responding to the raised issue, is whether there is evidence that the Plaintiff purchased the suit premises from own sources or that the Defendant acquired the said properties alone or in other version, that the suit premises were acquired through funds collected in their partnership. Coming to this end, this being a civil proceeding, and as each the Plaintiff and the Defendant claims ownership over the suit land, it goes that, on balance of probability, each one must prove what is asserted. As said, this is a question of evidence. From the Plaintiff, exhibits P2 which are certificates of occupancy for Plot NO.247and 249 both in Block Q is the only evidence from the Plaintiff that he is the owner of the suit land. I agree with the submissions of the Plaintiff's Advocate that in terms of the holding in Salum Mateyo vs Mohamed Mateyo (supra), a person whose name the tittles are registered 13) for, and if there is no fraud, then the said person is the owner of the land in question. At page 112, it is stated that: It seems to me clear that in law, the appellant in

whose name the suit premises were registered was the owner. I am fortified in this view by Section 2 of the Land Registration Ordinance, Cap. 334 which defines "Owner" in relation to any estate or interest as the person for the time being in whose name the estate or interest is registered. The appellant remained the unchallenged owner of the premises until July 1978 when the respondent purported to terminate the appellant's ownership, apparently because of a misunderstanding Notwithstanding, circumstances of this land dispute require evidence more than banking in the said documents. I am saying so because, one, going by the evidence of PW1, he simply testified to have purchased the two plots from two different persons; that is one Charles Masuka for Plot No.249 and plot No.247 Block Q was purchased from Mabubu Mussa. The sale agreements were not tendered in evidence. Two, persons named by the Appellant to be vendors, that is Charles Masuka for Plot No.249 and Mabubu Mussa for plot NO.247 Block Q were not called in evidence. Three, the ---- Plaintiff have not demonstrated on the source of income leading to acquisition of the said plots. The circumstances of this case where there was sort of partnership required whoever alleged to have a separate property, as these disputed, to account for on how he acquired. It may not suffice, as in the instant land dispute the Plaintiff merely

saying to have purchased the two plots from own sources. What it takes, in my view, the Plaintiff used the advantage of being incharge of administrative and financial matters to purchase the property using own names. In his evidence he stated the following on this supposition: I was with Dr. Shija for almost 10 years. Him being an assistant medical officer, he was incharge. All financial and administrative issues were in my control. I was Director. An overall incharge. I did not involve him in any purchase because he was not responsible. The said money for purchase were too little. I am a businessman farmer, etc. . With this evidence, it has not been proved by the Plaintiff that he purchased the suit land from own sources. In it therefore, the fact that the properties in dispute was acquired during partnership, in absence any 15 ~ evidence, as in this case that it was not a partnership property; certificate of title being registered in the name of the plaintiff, especially assuming a different name again without explanation on the assumed name, may not be evidence of ownership. The case of Salum Mateyo vs Mohamed Mateyo (supra), under the circumstances of this land dispute is accordingly distinguished. As to Defendant's proof of ownership on the suit property, in fact, this is what he said in his evidence: To my knowledge, plots No.247 and 249 are my properties. This in my

view, is not evidence so to speak to prove ownership. He just believed to be his. The major part of his evidence rests on the following as testified by him: J trusted him and appointed him a treasure/accountant. Jgalilimi Health Centre was financed by funds from Wazazi health centre. The name was changed from Wazazito Jgalilimi for registration purpose and not under the umbrella of Wazazi. We changed also so that not to benefit Wazazijust by using the name. I completed my studies in 1998. During my leave, I used to inform plaintiff that, our focus and vision is to have a health centre or hospital. I left this matter to the plaintiff to proceed. It is during that time plot No. 247 block Q was purchased. It was 1997. The other plot 249 was purchased in 2004. When we purchased the plots/ there were buildings. We renovated by construction of OPD building/ leboretory, Ref!, Nurses office and fenced the plots by using bricks and trees in some parts. With the evidence, as was to the Plaintiff, there is no evidence from the defendant that he acquired the two plots independent of the Plaintiff. In all therefore, there is evidence that the properties were acquired during partnership, of course by partners. In terms of the provisions of section 195 (2) and (3) of the Law of Contract Act, Cap.345, Plot No.249 and plot NO.247 both in Block Q are partnership properties. The section

reads: 195(2) Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired on account of the firm. (3) Where land or any hereditable interest therein has become partnership property, it shall, unless the contrary intention appears, be treated as between the partners (including the representatives of a deceased partner), and also between the heirs of a deceased partner and his executors or administrators as personal or movable and not as real or hereditable estate. Here are the reasons for holding so. One, both the Plaintiff and the Defendant failed each to account on separate efforts which generated income that led towards acquisition of the suit properties. Two, the evidence of OWl in the quoted portion above is to the effect that funds generated from the project is what contributed to the purchase of the suit property. Three, there is evidence of DW2 Wilbard Pius Samamba, a friend to the two partners who testified that, profits from the partnership business is what led to acquisition of the health center. This was also the evidence of OW3 one Theresia Paschal, a receptionist who used to alternate in the two businessventures and on the arrangement such that the Defendant was at the Health center while the Plaintiff was at the dispensary. This arrangement in work relations, in my

view, indicate ownership in partnership perspective. Four, there was no reason whatsoever for the Plaintiff to register the suit property in names other than the common names of either of the partners. Again, the Defendant was not involved in such a move, which in my view, is evident that the Plaintiff came to equity without clean hands. In essence, there is no evidence in terms of documents as to how the two engaged in partnership. Oral evidence from both the Plaintiff and the Defendant is such that the two operated on partnership principles in terms of partnership definition as defined in section 190 of the Law of Contract Act, Cap.345. As stated by A. A. F. Massawe, A Digest of the Law of Contracts, T.M.P Book Department, Tabora, 1989 at page 113 that, partnership may result from an agreement expressly or impliedly. As said, there was no written agreement in transacting the partnership. However, in the usual way of transacting, the Plaintiff and the Defendant were free to make and arrange their own affairs. In my view, such an undertaking was within the meaning of section 191 of Cap. 345 and also in Osborn's Concise Law Dictionary, 11th Edition, 2011 at page 300 that: The relation which subsists between persons carrying on a business in common with a view to profit ... There is no doubt that the Plaintiff and the Defendant are all medical practitioners and established that

business venture (dispensary and health center) with a view to get profit. In this, they are therefore governed by rules of partnership as provided under the provisions of section 191 of Cap.34Sthat: 191. (1) The relationship of partnership arises from contract and not from status. (2) In determining whether a group of persons is or is not a partnership/ regard shall be had to the following rules- (a) joint tenancy, tenancy in common joint property, common property or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof; (b) the sharing of gross returns does not of itself create a partnership/ whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived; (c) the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business/ but receipt of such a share/ or of a payment contingent on or varying with the profits of a business/ does not of itself make him a partner in the business, and in particular the receipt of such share or payment- (i) by a lender of money to persons engaged or about to engage in business; (ii) by a servant or agent as remuneration; (iii) by the widow or child of a deceased

partner, as annuity; or (iv) by a previous owner or part owner of the business/ as consideration for the sale of the goodwill or share tnereot, does not of itself make the receiver a partner with the persons carrying on the business. Of relevance is that, as there was no contract so to speak, the provisions of section 194 of Cap.345 regulates the relationship between the Plaintiff and the Defendant as hereunder: 194. In the absence of any contract to the contrary, the rights and duties of the partners in relation to the partnership shall be determined by the following rules- (a) every partner has a right to take part in the management of the partnership business; (b) any differences arising as to ordinary matters connected with the partnership business may be decided by a majority of all the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners; (c) every partner has a right to have access to and to inspect and copy any of the books of the firm; (d) a partner is not entitled to receive remuneration for taking part in the conduct of the business; (e) all partners are entitled to share equally in the capital and profits of the business, and must contribute 22~ equally towards the losses, whether of capital or otherwise, sustained by the firm; (f) the firm must indemnify every partner in respect of payments made

and personal liabilities incurred by him- (i) in the ordinary and proper course of the business of the firm; and (ii) in or about anything necessarily done for the preservation of the business or property of the firm; (g) a partner shall indemnify the firm for any loss caused to it by his fraud or willful neglect in the conduct of the business of the firm (emphasis mine) Having said all, there is ample evidence on record that Plots No.247 and 249 both in Block Q are jolntly owned by both the Plaintiff and the Defendant in course of their partnership. Partnership laws will thus guide the two in event they want to part away with that partnership. The suit thus fails to that extent and is accordingly dismissed. Basing on the nature of this land dispute involving two friendly partners who now are rivals, no order as to costs is prescribed. It is so ordered. 24