kuruthum yusuf vs shaban hassan 3 others 2022 tzhclandd 12507 7 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 170 OF 2018 KURUTHUM YUSUF (suing as Adminlstratlx of the Estate of SUGRA JAFARI)....... PLAINTIFF VERSUS SHABANI HASSAN 1^ DEFENDANT HASSAN SEIF MTUNGAKOA 2*^^ DEFENDANT SALEHE SEIF MTUNGAKOA 3^^^ DEFENDANT ALLY SEIF MTUNGAKOA 4™ DEFENDANT Date of Ust Order: 30.08.2022 Date of Judgment: 07.10.2022 JUDGMENT V.L. MAKANI. J The plaintiff in this suit is KURUTHUM YUSUF suing as the Administratix of the estate of the late Sugra Jafari. She Is praying for the following orders against the defendants jointly and severally as follows: a) That this honourable courtbe pleased to declare that the suit property known as House No. 86, Plot No. 2 Block 11 Kongo Street, Kanakoo Area, Hala Municipality, Dar es Salaam Is the property ofSUGRA JAFARI the subject matter of MIrathI No. 416 of2014 administered by the plaintiff. b) That this honourable court be pleased to order the defendants to give vacant possession ofthe suit land. c) That this honourable court be pleased to order permanent Injunction restraining the defendants herein, their workmen, agents or anybody else from any Involvementto the suitproperty known as House No. 86, Plot No. 2, Block 11, Kongo Street, Kanakoo Area, Ilala Municipality, Dar es Salaam such as by alienating or transferring It to any Third Party In pretext ofany right whatsoever. d) Thatthis honourable curtbe pleased to order defendants to pay the plaintiffmesne profit at the tune of Tanzania Shillings Two Hundred Million(TZS 200,000,000/=). e) That costs be provided for. f) Any other reliefs the Honourable court may deem fit and Just to grant. According to the plaint House No. 86, Plot No. 2 Block 11 Kongo Street, Kariakoo Area, Ilala Municipality, Dar es Salaam (the suit property) was Initially owned by Muungano Oman who had one daughter by the name of Sugra Jafarl. The plaintiff being the admlnlstratlx of the estate of the late Sugra Jafarl Is claiming ownership of the said suit property as a Legal Representative. She was appointed admlnlstratlx by virtue of MIrathI No. 416 of 2014. The defendants In their Written Statements of Defence (the WSDs) denied the plaintiff's allegations and claimed that the suit property was purchased by their father the late Self Hassan from Salum Hemed Bin Masoud. In that respect they said the suit cannot be under the administration of the plaintiff. They prayed for the court to dismiss the suit. The issues that were framed for determination by the court were as follows: 1. Whether Sugra Jafari is the lawful owner of the suit property namely, House No. 86, Plot No. 2 Block 11 Kongo Street, Karlakoo Area,Ilala Municipality, Dares Salaam. 2. Whether the defendants are trespassers and If so whether they ought to give vacant possession. 3. Whether the plaintiffIs entitled to mesne profit of TZS 200,000,000/= as prayed. 4. To what reliefs are the parties entitled to. In this case the plaintiff was represented by Mluge Karoii Fabian, Mr. Mashaka Edgar Mfaia, Mr. Aiphonce Kubaja and Ms. Moses, Advocates. The I®' defendant was represented by Mr. Amin Mshana, Advocate and Mr. Job C. Kerario, Advocate represented the Z""*, 3'''' and 4"^ defendants. The plaintiff's case comprised of four witnesses. The first witness was the plaintiff herself, Kuithum Yusuf(PWl). In her testimony she said she was claiming the suit property from the I®' defendant Shabani Hassani. She said she started claiming the property since 1995. She said the suit property belonged to Muungano Binti Omari and it later went to Sugra Jaffari who was the sole child of Muungano d/o Omari. She said she was appointed the administratix of the estate of Sugra Jaffari by Kariakoo Primary Court (Exhibit PI). She said the beneficiaries of the estate of Sugra Jaffari were Abas Yusuf, Asgaii Jaffari and herself and further that she is the only remaining heir as both Abas and Asgaii are deceased. PWl said she is claiming the suit property because when Sugra Jaffari died, the 1^ defendant claimed that the house belonged to him, but this was not true because before her death Sugra Jaffari was still collecting rent and she did not say that she had sold the suit property to anyone. She said the suit property belonged to her mother Sugra Jaffari. On cross-examination PWl said the suit property belonged to her grandmother Muungano Omari and when she died in 1959 her daughter Sugra Jaffari took over the suit property as a guardian to Asgaii Yusuf. She admitted that she does not have anything to present to show ownership-of the suit property but Asgaii Yusuf, whom she termed a drunkard, took the Certificate of Titie from them by force. She said there was another case at the Primary Court which was fiied in 1996 between Aiiy Juma and the 1®' defendant. She said Aiiy Juma was her uncie and her mother did not have any other property except the suit property. PW2 was Edith Emiiian Mganga who identified herself as Land Officer of liaia Municipality. She said according to the record the first owner of the suit property was Mnungano d/o Omari. There was a Letter of Offer that was issued on 01/0yi957 and the owner signed it on 05/04/1957. She said there was a conveyance to Mohamed Saium Batteh who was the Administrator of the estate of Mnungano in Cause No. 172 of 1957. She said the there was transfer to Sugra Jafari as guardian of Asgaii Yussuf but there was disturbance as Letter of Offer read Muungano d/o Omari while the conveyance, read as Nongono d/o Omari and there was no affidavit or Deed Poll to change of names. She said the conveyance was subject to Probate Cause No. 172 of 1957 but there were no supporting documents in respect of the conveyance such as Probate Forms No. I, II, III and IV. PW2 said there was a short-term Letter of Offer that was in the name of Sugra d/o Jafari as guardian of Asgall Yusuf(minor) but the said the Letter of Offer which was prepared in 1957 has not been signed by the recipient to date making it is invaiid. PW2 went on saying that in 1974 there was a Telegram from Kariakoo Primary Court which directed that the names of Muungano and Sugra Jafari be erased from the Letter of Offer and a Title be issued in the name of Asgali Yusuf. She said the Savings Telegram (Exhibit P2) was not dated but it only mentioned October, 1974 and the heading was Mirathi No. 71 of 1974 and it was accompanied by an affidavit of Asgali Yusuf(Exhibit P3)stating that she has sold the suit property to Salim Hemed Masoud at TZS 20,000/=. PW2 said the Telegram does not have a folio number as is the procedure of ail the documents that are received by their Office, so she concluded that the Telegram was not properly received. PW2 said the sale in the affidavit is invalid as title had not passed to Asgali Yusuf. She said for a registered land to be transferred, Asgali Yusuf had to get ownership first so that she could sell the suit property. She said there was a Letter of Offer addressed to the Primary Court Kariakoo as administrator of Sugra Jaffari in respect of the suit property and there was a transfer prepared from the Magistrate to Asgali Yusuf and then to Salum Hemed bin Masoud. She said the record shows that the documents were prepared In October, 1974 but there Is no exact date. She said the Magistrate signed and so did Asgall Yusuf and the attestation does not show the Commissioner for Oaths whether It was an Advocate or Magistrate and there Is no date just the month of October, 1974. She said the documents do not reflect the name of the Magistrate It Is just signed as ''magistrate". She concluded by saying that Asgall Yusuf has never had a Letter of Offer and according to the records the owner of the suit property remains to be Mnungano d/o Omarl the original owner who was granted the Letter of Offer. In cross-examination PW2 said the records show that the original owner of the suit property Is In the name of Mnungano d/o Omarl. They do not recognise Nongono or Muungano as there Is no affidavit of change of name or Deed Poll. She continued to say that Sugra Jafarl did not Inherit the suit property and Asgall has never applied to be owner of the suit property. She said the plaintiff had applied for a Certificate of Title, but the Commissioner for Lands directed that the matter be resolved by the court. PW3 was Fatma Nassoro and she identified herself as the daughter in law of the plaintiff. She said she is married to the plaintiff's son one Sameer Sadik Mohamed. she said she knows some of the history of the suit property because she keeps some of the documents for her mother-in-law. She said the suit property is owned by her mother-in- law as she Inherited it from her mother Sugra Jaffer who died on 15/06/1971 (Exhibit P4). She said Sugra Jaffer had three children the plaintiff, Asgali Yusuf and Abasi Yusuf, and the latter two are now deceased. PW3 said she knows the P' defendant and there are several cases between him, and her mother-in-law and the cases started way back In 1999 at Kariakoo Primary Court. She said the main subject of the many cases is the suit property. She said the last case was at the High Court where it was decided that the parties should address their matter before the relevant court with competent jurisdiction. The decision of the High Court is Exhibit P6. PW4 was Stanley Kevela Court Broker and Managing Director of Yono Auction Mart. He said he knows that the suit property belongs to the plaintiff. He said on 07/02/2012 the Primary Court Kariakoo ordered the eviction of trespassers in the suit property vide Case No. 09 of 1996. The plaintiff in the case was Shabani Hassani (the 1^ defendant 8 herein) and the defendant was the plaintiff herein. The court ordered the eviction of Shabani Hassani. He was given notice and on 09/02/2012 he vacated the suit property and took everything, and we handed the suit property to the plaintiff herein and reported to the court completion of the work. He said Shabani Hassani vacated on his own accord, but the plaintiff herein told me after two days the said Shabani Hassan came back forcefully and evicted her. PW4 said she advised the plaintiff to go to court and Shabani Hassani was imprisoned for 21 days for going contrary to the court order. He said Shabani filed application for revision No. 2 of 2012 to stay the execution at the District Court in Samora Street, but the court dismissed the application because it was overtaken by events (Exhibit P7). He said the plaintiff entered a contract with them to demolish the house on the suit property, but Shabani Hassan was resisting claiming the house belonged to him,so they did not continue with the demolition. He said there was another case by Shabani against the plaintiff and their company for a claim of TZS 2 billion for demolition of the house on the suit property. The said case Civil Case No. 134 of 2019 was struck out because the said Shabani had no locus standi (Exhibit P8). On cross-examination PW4 emphasized that he had instructions of demolition of the house at the suit property by the owner who is the plaintiff herein because he had already completed the eviction as ordered by the court. DWl was Haji Mussa. He was the witness in support of the case of the Z""*, and 4"^ defendants. He said he is aware of the dispute on the ownership of the suit property. He said his uncles Self Hassan and Mwinjuma Hassan vide their company Farmers Vegetables Supplies bought the suit property in 1975. He said before 1980 one of the uncles Self Hassan died and he and others were called as witnesses in the distribution of the properties. He said he used to live in the house at the suit property from 1976 to 1980. He said he left after the distribution. The meeting for the distribution had many witnesses including Khatibu Hassan Mtungako, Mohamed Hassan Mtungakoa, Khatibu Issa, Mzee Ally Assa Saidi and another whose name he forgot. He said the meeting had participants from the two sides that is from Self and Mwinjuma Hassan. He said by then the 2"'', 3'^'' and 4"^ defendants who are the sons of Self Hassan were very young. The properties between the two partners Self and Mwinjuma were according to the document (Exhibit Dl). He said he knows the plaintiff and that she wanted to demolish the house, but he alerted 10 the then Inspector General of Police, Said Mwema,and the demolition did not continue. On cross-examination DWl said Seif and Mwinjuma Hassan bought the house from Masoud who was their neighbour. He said he was not involved in the transaction, but he was present and saw the Sale Agreement. He said it was the company that bought the house. He said though Mohamed Hassan was the administrator of Seif Hassan but the properties were handed over to him. He said when the house was demolished in 2012 it was Shabani Hassan who was acting on behalf of the children that is the 2"'', S"' and 4''^ defendants. Salehe Seif Mtungakoa appeared as DW2. He is the 3'"'' defendant in the suit. He said he is a co-owner of the suit property. He said they were four co-owners but now they are three that is the 2"", 3'^^ and 4^*^ defendants. Their brother died and DW2 was appointed the administrator. He said the house is inheritance from their father Seif Mtungakoa and the administrator of his estate was by then their uncie Mohamed Hassan Kaoneka. He said his iate father got the house from the share in business with Mwinjuma Hassan in 1976. He said his father paid taxes in respect of the suit property as per Exhibit D2 11 which is the Demand Notice for payment of taxes in respect of the suit property from the Ministry of Finance and Planning dated 13/05/1986 addressed to the iate Seif Hassan. He said according to the records the house was purchased by his father and his partner from Salum Hemed bin Masoud who bought the said suit property from Asgali Yusuf by virtue of the affidavit sworn by Asgali Yusuf himself (Exhibit D3). He said Asgaii Yusuf inherited the house from Muungano Omari under the guardianship of his mother Sugra Jaffari. He said they owned the suit property without problems until 2012 and they were given a Letter of Offer (Exhibit D5) in the name of Mohamed Kaoneka as their guardian and since the Letter of Offer no ownership has changed and they were in the process of removing the guardianship and getting a Certificate of Title from liala Municipal Council. He said they wanted to verify the boundaries and they have the letter which returned the Letter of Offer to the Municipal Council (Exhibit D6) and he said they had also requested for a survey by virtue of Exhibit D7. He went on saying that he is also the administrator of the estate of his father Seifu Hassan (Exhibit D8 and DIO) and his brother Zamil Seifu Mtungakoa (Exhibit D9). 12 On cross-examination DW2 admitted that the initial owner of the suit property was Muungano who had one child Sugra. He said Asgali, Kulthum and Abasi were the children of Sugra. He said Sugra is the legal inheritor of Muungano and in Probate Cause No. 71 of 1974 Sugra was the administrator of the estate of Muungano on behalf of Asgali. He further admitted that there is no Sale Agreement between Asgali and Salum Hemed and Asgali and anybody else. He said he has never seen any Agreement between his father and Salum Hemed nin Masoud. He said by 1983 when Probate Cause No. 39 of 1983 was decided and he was given administration he was 5 years old. DW2 went on saying that the original administrator was Mohamed Kaoneka but he admitted that he did not have the Letters of Administration of Mohamed Kaoneka in respect of the estate of his father Self Hassan and he did not know if the said Mohamed Kaoneka obtained a Letter of Offer and the said Letter of Offer. He further admitted that the Letter of Offer (Exhibit D5) does not show that Mohamed Kaoneka was the Administrator of the estate of Self Hassan but just their guardian and there is no proof that Mohamed Kaoneka applied for and was granted guardianship. He said Mohamed Kaoneka died in 2016 and he filed Letters of Administration in 2017 because 13 he was in the village and by then the estate was under Mohamed Kaoneka. He said when their father was alive the property belonged to him and his partner Mwlnjuma Hassan. Their father's share was given to Shabani Hassan and afterwards to Mohamed Kaoneka in 1983. Shabani Hassan was administrator customarily. As for Exhibit D4 the sale of Saium Hemed bin Masoud, he said he did not know who witnessed it because the document is faint, and he was given the same by Mohamed Kaoneka in 2015. He said the originals are with Shabani Hassan because when Mohamed Kaoneka was sick, he referred them to Shabani Hassan who refused to give them the originals. He said Shabani Hassan only gave them the Letter of Offer he said he did not have other documents. He said the Letter of Offer in the Land Registry shows that Mohamed Kaoneka is the guardian, and it was registered in 1996. He said transfer could not be effected, as there is a caveat that was filed in 2018. He said the property is in the name of his father to enable transfer to the Administrator. Further said on cross-examination DW2 said that the affidavit of Asgaii Yusuf says the sale was in 1974 but there is nowhere that Saium Hemed bin Masoud has acknowledged receipt of the property. He admitted that Asgaii Yusuf and Saium Hemed bin Masoud have 14 never been granted Letter of Offer or Certificate of Titie. But Sugra as guardian of Asgaii got an Offer. As for Exhibit P5 he said they have not sent any poof of Probate Cause No. 7 of 1975 as was requested by the court. And the documents in WSD in Probate Cause No. 71/1974 was received from the piaintiff. He said Shabani Hassan and Mohamed Kaoneka were supposed to keep the docQments in safe custody though there is no document that shows that they were responsibie. Shabani Hassan Kaoneka was DW3. He is aiso the 1=' defendant herein. He said the dispute is on the suit property which beiongs to the iate Seif Hassan his brother. He said in 1976 the house beionged to Seif and Mwinjuma Hassan who were doing business together. He said on the same year Seif Hassan got sick, he paraiysed so Mwinjuma Hassan remained, and he appointed him to assist with the vegetabie business. He said he was assisting in the business on behaif of Seif Hassan. He said he was introduced to Saium Mohamed Masoud who was soiling the suit property and Mwinjuma Hassan agreed to buy the suit property as he said it was beneficial for the company. He said Saium Mohamed Masoud sold the suit property at TZS 40,000/= but DW3 was the one who paid the money to Saium Mohamed Masoud 15 and a Sale Agreement was perfected before an Advocate. He said the house was initially owned by Self and Mwinjuma Hassan and he did not know Kulthum Yusuf or Asgali Yusuf. He said at Kariakoo Primary Court he informed the court that he was only a caretaker of the suit property and the owners Hassan, Saleh and Zamir Self were young, so he was representing them. He said from 1976 to 2012 the suit property was in the hands of Mwinjuma and Self Hassan but in 1985 they distributed properties and the house remained in the hands of Self Hassan. He said currently the house is in the name of Mohamed Hassan Kaoneka who died in 2016, but the suit property is currently in the hands of the children. He said he is sued because he is seen within the vicinity of the suit property. In cross-examination DW3 admitted that though there was a Sale Agreement between Salum Hemed bin Masoud and Seifu and Mwinjuma Hassan but he has never seen the Sale Agreement. He said when he was making payment in respect of the purchase there was a document, but he did not bring it to court. He denied filing any WSD though the signature is his. He said he first met the plaintiff in 1996 and the children requested him to assist them in respect of the dispute. He said he knows he was acting for them though in their 16 defence they say that they don't know him. He pointed out that he is not aware that Saiehe Seif the 3"" Defendant(DW2)is administrator of his father Seif Hassan but he knows that Mohamed Kaoneka was administrator in 1983 and he does not know if in 1983 DW2 was aiso appointed administrator. He insisted that Seif Hassan died in 1980 and not 1982. He said the Letter is of 1980 but by then DWl was oniy 4 years whiie the ietter is of 1983 and so the letter (Exhibit D8) is a forgery. He said Mohamed Hassan Kaoneka did not give him anything an affidavit or Letter of Offer. He said the Letter of Offer and everything else including the Deed of Transfer is with DW2 and he said DW2 is not telling the truth because he has the original documents. He said he has not handed over the house to the children and since the death of Mohamed Hassan Kaoneka in 2016 an administrator of the estate of Seif Hassan has not been appointed because of the present case. He insisted that the house belongs to all the children and not DW2 alone. He said DW2 has all the original documents, and he Is tricky, and he wants the suit property for himself. Final submissions on behalf of the parties were duly filed by the respective advocates who represented the parties, and the said 17 submissions wili be addressed when the court would be analysing the evidence. Before I proceed to consider the substantive issues, I find it necessary to determine the issue of the admissibility of the exhibits which in the course of the hearing their admissibility was challenged for various reasons but were tentatively admitted with caution that the validity or admissibility of the document would be determined in the judgment. I have taken asylum in this procedure for the reason of accelerating trials by admitting, a document tentatively with a note that its admissibility would be considered in the judgment. In the case of Salmin Mbaraka Salim t/a East African Investment vs. Permanent Secretary Ministry of Works & Another, Land Case No. 1 of 2015(HC-Land Division)(unreported) my brother Hon. Maige (as he then was) quoted with approval the case of Republic vs. Shule s/o Tanzania & Another, Criminal Session No. 212 Of 2013 (HC-Mwanza) (unreported) which also quoted Bipin Shatilal Panchal vs. State Of Gujarat & Another, 2002(1)LW (Cr.) 115 and East West (1999) Investment Company Vs. Karpesh Sangar, Land Case No. 54 of 2015, where the Supreme Court of India was of the considered opinion that, for the purpose of I 18 accelerating trials, admission of a document with a note that its admissibility shall be considered In the final judgment is the best approach. The Justices of the Supreme Court of India had the following to say: "Whenever an objection is raised during evidence taking stage regarding the admissibiiity ofany materiai or item oforai evidence the triai court can make a note ofsuch objection and mark the objected document tentatively as an exhibitin the case(or record the objected part ofthe orai evidence)subject to such objections to be decided at the iaststage in the finalJudgment. Ifthe courtfinds at the finai stage that the objection so raised is sustainable the Judge or magistrate can keep such evidence excluded from consideration. In our view there is no iiiegaiity in adopting such a course. (However, we make it dear thatifthe objection relates to deficiency of stamp duty ofa document the court has to decide the objection before proceeding further. For aii other objections the procedure suggested above can be followed. The above procedure iffollowed wiii have two advantages. Firstis that the time in the trialcourt, during evidence taking stage, wouid not be wasted on account ofraising such objections and the court can continue to examine the witness. Second is that the superior court, when the same objection is re-canvased and reconsidered in appeal or revision against the finai Judgment of the triai court, can determine the correctness ofthe view taken by the trialcourtregarding the objection, without bothering to remit the case to the triaicourtagain forfresh disposal. We mayalso pointout that the measure wouid not cause any prejudice to the parties to the litigation and wouid notadd to their misery or expenses." Hon. Maige, J (as he then was) in the said case of Salmin Mbaraka Salim t/a East African Investment further observed that: 19 "I reiterate as Isaid in my two referred decisions that, the principle propounded in the above Indian authority is very relevant in ourJurisdiction. For, strict adherence to the existing practice of determining each and every objection as to admissibiiity of evidence whenever raised, can in some cases, be an obstacle towardssteady and swift disposal ofproceedings." In the present case Exhibits P8, Dll, D3 and D4 were admitted tentatively. Exhibits P8 and Dll are decisions of the High Court and District Court respectively. Objection was raised as to the High Court ruling that it was not among the documents listed. But the plaintiff's advocate requested the court to take judicial notice of it under section 59(l)(a) of the Evidence Act CAP 6 RE 2019 which provision was also objected to. As for the other judgment of the District Court the objection was that it was faint. The court will take judicial notice of these documents under section 59(2) of the Evidence Act as the court may resort for aid of this judgments as documents of reference. Though Exhibit Dll is faint but it is legible. The said exhibits are hereby admitted accordingly. Exhibit D3 is the affidavit of Asgali Yusuf on the sale of the suit jDroperty. The said exhibit is faint and not readable and so the court will not admit it. In any case, the plaintiffs tendered the same \ document which Is Exhibit P3 and It is readable. There was also an 20 objection as regards the Sale Agreement Exhibit D4 because It Is faint. But I have taken a look and .has found It to be readable, and It Is hereby admitted accordingly. Having disposed of the Issue of admlsslblllty of the documents I will now embark on the substantive Issues. The plaintiff alleges that Sugra Jaffarl Is the owner of the suit property by Inheritance. That the suit property was owned by Muungano d/o Omarl who passed It on to his daughter Sugra Jaffarl as guardian of his grandchild Asgall Yusuf. The plaintiff Is now alleging ownership by virtue that she Is the only surviving heir of Sugra Jaffarl as Asgall and Abas Yusuf(who are also children of Sugra) are all deceased. With these alleged facts, the plaintiff has the duty to prove that Sugra Jaffarl Is the owner of the suit property and that as an administrator of the estate of Sugra Jaffarl she has a right to ownership of the suit property. What this court Is to decide upon Is whether the burden of proof has been sufficiently discharged by the plaintiff. Before I tackle the pertinent Issues on record, I would address the question of the names of Mnungano, Nungano and Muungano d/o 21 Omari which have been used Interchangeably In the course of the hearing. While the plaintiff said their grandmother who owned the property was known as Muunoano d/o Oman. PW2 said that according to the records the property Is In the name of Mnunoano d/o Omarl and there Is also Nunoano which features In the documents. I agree that these may be different names but It Is my considered view the names means one and the same person because the documents In the Land registry are of a long time (1957) so there might have been a typographical error. Further all the names refer to ownership of the same suit property, and even the defendants do not dispute that Muungano d/o Omarl was the original owner of the suit property Including DW2 on cross-examination who admitted that Initial owner of the suit property was Muungano Omarl who had one child Sugra and that Sugra children were Asgall, Kulthum and AbasI and was of the view that Sugra Is the legal Inheritor of Muungano. For that reason, the difference In names have no controversies and should not detain us. Subsequently, the name Mnungano d/o Omarl should also mean Muungano d/o Omarl, Nungano d/o Omarl and vice versa. As for the first Issue whether Sugra Jaffarl was the lawful owner of the suit property, the plaintiff availed In court Exhibit P2 as proof of 22 ownership of the suit property by Sugra Jaffarl. The said exhibit is the telegram from Kariakoo Primary Court stating that Asger Yusuf is the owner of the suit property by virtue of being heir of Sugra Jaffari and Muungano Omari. The telegram directs the Lands Office liaia to remove the names of Muungano and Sugra on the register as owners of the suit property. I have given a detailed look at the said Exhibit P2 and I agree with PW2, the Lands Officer from liala Municipal Council that Exhibit P2 is questionable as there is no folio and this is not the procedure of admitting documents as ail documents in the file must have folio numbers. Mr. Kerario argued that the said exhibit carries a folio but with due respect there is none which is visible. On the other hand, if indeed the primary court wanted to give directives, then there ought to have a proper order of the court which would have a force of law and not a telegram. I am also in agreement with PW2 that though on record there is a short-term letter of offer prepared in favour of Sugra Jaffari as guardian of Asgali Yusuf but the said letter was not signed by the office hence not complete. In other words, the short-term letter of offer is not valid. For that reason, there is no known disposition from Muungano d/o Omari who according to PW2 remains on record as the owner of the suit property to Sugra Jaffari or any other person. The evidence of PW2 23 to the effect that the property remains in the name of Muungano d/o Omari was not controverted and as said by PW2there is nothing that has been presented to prove conveyance of the suit property from the said Muungano d/o Omari to Sugra Jaffari, or Asgaii Yusuf. In essence therefore the suit property remains in the name of Muungano d/o Omari and I hoid as such. There was aiso the issue of the affidavit(Exhibit P3) by Asgaii Yusuf for saie of the suit property to Saiim Hemed bin Masoud. As it has been estabiished that there is no known disposition from Muungano d/o Omari to anyone inciuding Asgaii Yusuf, then no titie could have passed to Saiim Hemed bin Masoud; and if there is any saie then it would be a nullity. This can aiso be corroborated by the evidence of DW2 who on cross examination said he has never seen any Saie Agreement between Asgaii Yusuf and Saiim Hemed bin Masoud and this was cemented by DW3. Mr. Mshana for the 1=^ defendant said Exhibit P2(the telegram) and Exhibit P3 are indisputable because they were in the records of the Land Office meaning that there was saie of the house to Saiim Hemed bin Masoud. I beg to differ with Mr. Mshana because as explained above, PW2 disputed Exhibit P2 as having no folio as it was inserted in the records {imepachlkwa) and 24 this fact was not controverted. Further, as for the affidavit, that is. Exhibit P3 the title had not passed to Asgaii Yusuf, so he did not have title to pass on to Salim Hemed bin Masoud. In any case, if there was any sale between Asgaii Yusuf and Salim Hemed bin Masoud, then one would have expected a Sale Agreement to be presented, but there is no such Sale Agreement and DW2 testified that they did not see any Sale Agreement between Asgaii Yusuf and Salim Hemed bin Masoud. DW2 admitted that there was no signature by Salim Hemed bin Masoud in the affidavit and there is no acknowledgement of the property by Salim Hemed bin Masoud. In any case in a disposition of land an affidavit cannot replace a Sale Agreement. All in all, there is no proof that title had passed from Muungano d/o Omari to Sugra Jaffar and then to Asgaii Yusuf. Subsequently, the said Asgaii Yusuf did not have good title to land to pass over the same to another including Salim Hemed bin Masoud (see Farah Mohamed Said vs. Fatuma Abdallah [1992] TLR 205) and Mished Chunilal Kotak Vs Omary Shaban! & 2 Others, Misc. Land Appiication No.617 of 2020(HC- Land Division) my Sister Hon. S.M. Maghimbi, J had this to say at page 10: I ''At this Juncture I am in agreement with Mr. Chitaie that during the saie ofthe suit house to the appiicant herein the third respondent had no better titie to pass to the appiicant The situation isa pure case ofthe principie ofNemo datquod non habetor no one can give better titie than he himseifhas. This common iaw ruie means that the first person to acquire titie to the property is entitied to that property not withstanding any subsequentseii ofthe same." 25 Mr Kerario pointed out in his submissions that since there was a short-term letter of offer to Sugra Jaffari as guardian of Asgali Yusuf then the suit property was bequeathed to Asgra Yusuf thus there was no further interest that was created to compete with the interest of Asgali Yusuf. The argument by Mr. Kerario is misconceived because, as clearly stated by PW2 the short-term letter of offer was not signed as such was not valid hence a nullity. The argument by Mr. Kerario that the process could have been accomplished anytime is misplaced and have no legal basis. There was also a claim by the defendants that they had original documents regarding the disposition of the suit property, but these documents were not tendered in court. For instance all along the defendants said Mohamed Kaoneka was the administrator of Self Hassan, but there was no such document that was presented In court.And in their testimony DW2 said their uncle DW3 had the documents, but when DW3 gave evidence he said it was DW2 who had all the documents. The contradiction creates doubt as to whether there were such documents or at all. With the above explanation It is without dispute Muungano d/o Omari remains on record as the owner of the suit property as no title to land has passed to anyone. It is also without dispute that Sugra Jaffari was the only surviving heir of Muungano d/o Omari. And as correctly stated by Mr. Mluge Fabian Karoli that there are no records that show that the late Muungano d/o Omary left a will or created a gift to any person. In the circumstances 26 therefore, the plaintiff, as the sole survivor, beneficiary and adminstratix of the estate of Sugra Jaffari becomes the owner of the suit property and I hold as such. The second issue is whether the defendants are trespassers in the suit property. Having estabiished that the suit property is under the ownership of the plaintiff this issue is straight forward that the defendants are trespassers in the said suit property. That iast issue is whether the plaintiff is entitled to mesne profits of TZS 200,000,000/=. Mesne profits falls under special damages and it is settled law that specific damages have to be specificaliy pleaded and strictly proved. In her pleadings the plaintiff has not specifically given particulars of the said mesne profits of TZS 200,000,000/= see the cases Samwel Kimaro vs. Hidaya Didas, Civil Appeal No. 271 of 2018 (CAT- DSM)(unreported) and Stanbic Bank(T)Limited vs. Abercrombie & Kent(T)Limited, Civil Appeal No. 2001,(CAT-DSM)(unreported). The plaintiff had the duty in law to prove the losses Incurred, if any, towards the alleged loss in use of the suit property. In other words, the plaintiff has failed to pinpoint the quantum of iosses for which the court could have assessed the specific damages. In view thereof, I don't find reason to award the mesne profits as prayed. 27 In the result it is decreed as follows that: 1. The plaintiff Is the lawful owner of the suit property nameiy House No. 86, Plot No. 2 Block 11 Kongo Street, Karlakoo Area, Ilaia Municipality, Dar es Salaam. 2. The defendants are ordered to give vacant possession of the suit property. 3. The defendants their workmen, agents, or anybody else are restrained from any involvement in the suit property by alienating or transferring it to any Third Party. 4. The defendants are condemned to costs of this suit. It is so ordered. V.L. MAK^Nl— n JUDGE 4 0711012022 rf 28