20141210 TZHC Dar es Salaam

1 -~c ... - ,. IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 445 OF 2000 MALAYA NASSORO MOHAMED AS ADMINISTRATOR OF THE ESTATE OF ABDULRAHMAN SALUM ....... PLAINTIFF V 1. UBWA ZUBERI UBWA 2. SALMA ISHAQ & LEYLA ABRAHMAN AS THE ADMINISTRATRIX OF THE ESTATE OF ISIHAKA ABDALLAH ........................... D.EFENDANTS Date of last Order 23/10/2014 Date of Judgment 19/ 12 /2014 JUDGMENT A. Shangwa. J. This suit was presented for filing a long time ago in December, 2000. The plaintiff Malaya Abdulrahman Salum died and the 2 nd defendant Isihaka Abdallah ' _§llso c!ied. I~_ 2013, the plaint ~as ame~de_d as ~ell as, 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 445 OF 2000 MALAYA NASSORO MOHAMED AS ADMINISTRATOR OF THE ESTATE OF ABDULRAHMAN SALUM ....... PLAINTIFF V 1. UBWA ZUBERI UBWA 2. SALMA ISHAQ & LEYLA ABRAHMAN AS - THE ADMINISTRATRIX OF THE ESTATE OF ISIHAKAABDALLAH ... ........................ . DEFENDANTS Date of last Order 23/10/2014 Date of Judgment 19/ 12 /2014 JUDGMENT A. Shangwa. J. This suit was presented for filing a long time ago in December, 2000. The plaintiff Malaya Abdulrahman Salum died and the 2 nd defendant lsihaka Abdallah also died. In 2013, the plaint was amended as well as . 2 .the written statement of defence. Following the amendment of the said pleadings which was done with leave of this Court, Nassoro Mohamed was substituted as Administrator of the estate of Malaya Abdulrahman Salum (plaintiff) and Salma lshaq and Leyla Abrahaman were substituted as Aministratrix of the estate of Isihaka Abdallah (2 nd defendant). The agreed issues were framed in April, 2004 by Ihema, J rtd. They are as follows:- 1. Whether the plaintiff is the lawful owner of House NO. 18 plot 38 Block B Shoka Street Magomeni Mikumi, Dar es Salaam. . \) 3 2. Whether House NO. 18 plot 38 Block B Shoka Street Magomeni Mikumi, Dar es Salaam is the same property as House NO. 18 Muhoto Street Magomeni Mikumi, Dar es Salaam. - 3. Whether the 2 nd defendant lawfully bought House NO 18 plot 38 Block B Shoka Street Magomeni Mikumi, Dar es Salaam from Ubwa zuberi Ubwa as the Administrator of the -estate of the late Fatuma Mwinyikambi. 4. Whether the plaintiff is entitled to damages for loss of use of the suit 4 property and loss of property arising from her eviction. 5. What reliefs if any are the parties entitled to. Learned counsel for the plaintiff, Mr. Kalolo called four witnesses on the plaintiff's side. These witnesses include the late Malaya Abdulrahman Salum who gave testimony before Ihema J (rtd) on 15/4/2004. She testified as P.Wl. In her testimony, she told this Court that in 2000, she bought House NO. 18, PLOT 38 Block B Shoka Street Magomeni Mikumi from Ubwa Zuberi Ubwa at a sum of Tshs 12, 000, 000/= and that the sale agreement was drawn by Maftah Advocate. She said, three weeks after staying in it, she was evicted by one Maryam Seif who told her that '' . 5 ' the house belonged to her brother Isihaka Abdallah and that during eviction, his households, gold chain, 6 ear rings & 8 rings estimated at Tshs 20, 000,000,/= were stolen after being thrown out. She prayed the Court to declare her as the rightful owner of the suit premises and to order the defendants to compensate her for the loss of her properties. P.W.2 Nassoro Mohamed Matiro told this Court that he knows both Malaya Abdulrahman Salum and Ubwa Zuberi Ubwa. That in 2000, Ubwa Zuberi . . Ubwa sold the house 1n issue to Malaya Abdulrahman Salum and that he participated in the sale transaction by looking for a lawyer called Maftah to ensure that the sale is legal. That Malaya 6 Abdulrahman Salum was evicted from the house in issue and that during eviction several households belonging to her were thrown out and vandalized. P.W3 Zakaria Maftah told this Court that in 2000, he was working as a private Advocate and that in August, 2000, he prepared a transfer of the Right of occupancy of House NO. 18 plot 38 Block B Shoka Street Magomeni Mikumi, Dar es Salaam and that the one who asked him to prepare the said document is Ubwa Zuberi Ubwa who was the Administrator of the estate of the late Fatuma Mwinyikambi. . That Ubwa Zuberi Ubwa asked him to transfer the Right of occupancy of the aforesaid house to himself. That 7 Ubwa Zuberi Ubwa sold it to Malaya Abdurahman Salum and that he prepared a sale agreement. That after buying it Malaya Abdulrahman Salum occupied it. That before preparing the transfer document, he went to the land office at Magomeni and inspected the records upon which he found that the original owner of the house in issue was Fatuma Mwinyikambi. P.W4 Palmon Martin told this Court that he works with Kinondoni Municipal council in the land department. That he knows plot NO. 38 Block B Shoka Street Magomeni Mikumi. That the person who is registered as owner of the said plot is Malaya Abdulrahman Salum. That certain documents exhibit P4 were taken to the land office by Leila 8 Adulrahman and Salma Isihaka kibene and that after receiving those documents they wrote a notice dated 18/9/2013 to Malaya Abdulrahman Salum for invalidating her right of occupancy of the plot in issue. Mrs. Chihoma for 2 nd defendant called two witnesses on the defence side namely D.W.1 Leila Abdulrahman and D.W.2 Saburi mtoro. D.W.1 told this court that she knows Isihaka Abdallah who was her husband since 1993 to 2011 when he died. That she is one of the Administratrix of his estate. That she was appointed as Adminitratrix of his estate together with his daughter Salma Isihaka Kibene. That they were so appointed by the Primary Court of Magomeni. That House NO. 18 plot 38 Block B Shoka Street 9 Magomeni Mikumi Dar - es salaam belonged to her late husband Isihaka Abdallah who bought it in March, 1994 from Ubwa Zuberi Ubwa. That before buying it Ubwa Zuberi Ubwa showed her and .her late husband Letters of Administration of the estate of his late mother called Fatuma Mwinyikambi to whom it belonged. That they paid Tshs 5,500,000/= as its purchase price to Ubwa Zuberi Ubwa. That after buying it Ubwa Zuberi Ubwa asked them to continue residing in it for a while before vacating it for them to occupy. That in 1995, she went to collect the offer of the house they bought from Ubwa Zuberi Ubwa. That she found family members quarreling and questioning him as to why he sold it without the'ir consent. That by then her husband was in Dubai. 10 That he rung him and informed him about the matter. That he came from Dubai to Tanzania and filed Civil Case NO. 161 of 1995 against Ubwa Zuberi Ubwa in the Court of the Resident Magistrate at Kisutu. That in 1996, he won the case. That the said court ordered him and his brother to vacate it and hand it over to her late husband, That thereafter Salum Ubwa filed an application in the High Court for revision of the decision by the Court of the Resident Magistrate at Kisutu. That the said application was dismissed by Bahati, J rtd. That thereafter, Salum Ubwa filed an application for review of the decision of Bahati, J but that his application was dismissed. That in 1998 Ubwa Zuberi Ubwa and Salum Ubwa went to her late husband and requested for pardon. That her late 11 husband asked them to give vacant possession of the house in issue and hand over its offer to him. They agreed and left. That unfortunately, Ubwa Zuberi Ubwa died on the following day. That in 2000, they applied for eviction and that their application was. granted. That Salum Ubwa and Ubwa Zuberi Ubwa's relatives were evicted and they occupied it. That during the same year, they got a summons from this Court to answer the plaintiff's claim over this house. She prayed the Court to dismiss this suit and order the Administratrix of the plaintiff's estate to hand over the offer of the house to her. D.W.2 Saburi Mtoro told this Court that he knows the house in issue, and that he has ever heard that it was on sale and that in 1994 Ubwa Zuberi Ubwa 12 sold it to lsihaka Abdallah. That he has never heard that it was sold to another person. That lsihaka's family is the one which is occupying it and that lsihaka's family occupied it after evicting the family of Ubwa Zuberi Ubwa. In this case, the totality of evidence shows that the 1st defendant Ubwa Zuberi Ubwa sold House NO 18 plot 38 Block B Shoka Street/Muoto Street Magomeni, Mikumi Dar es Salaam to two different persons at different prices and on different occasions. These persons are the late Malaya Abdulrahman Salum (plaintiff) and the late lsihaka Abdallah (2 nd defendant). Originally, the said house belonged to the late Fatuma Mwinyikambi who is the mother of Ubwa Zuberi Ubwa (1 st defendant). 13 On the first issue, the Court has been asked to determine as to whether the plaintiff is the lawful owner of House NO 18 plot 38 Block B Shoka Street Magomeni, Dar es Salaam. On the second issue, the court has been asked to determine as to whether House No 18 plot 38 Block B Shoka Street Magomeni Mikumi Dar es Salaam is the same property as House No 18 Muhoto Street Magomeni Mikumi Dar es Salaam. On the third issue, the court has been asked to determine as to whether or not the 2 nd defendant lawfully bought House No 18 plot 38 Block B Shoka Street Magomeni Mikumi from Ubwa Zuberi Ubwa as the Administrator of the estate of Fatuma Mwinyikambi (deceased). On the fourth issue, the court has been asked to determine as to whether or 14 not the plaintiff is entitled to damages for loss of use of the suit property and loss of properties arising from her eviction. On the fifth issue, the court has been asked to determine as to what reliefs if any are the parties entitled to. I will start with the second issue. This issue is simple. In my opinion, House NO 18 plot 38 Block B located at Shoka Street Magomeni, Dar es Salaam is the same property as house NO 18 plot 38 Block B Muhoto Street Magomeni Mikumi Dar es Salaam. This is because there was a change of name of the Street from Muhoto to Shoka Street. Let me go back now to the first issue. On this issue, I am of opinion that the plaintiff is not the .., I ' \ .. ) 15 lawful owner of House NO 18 plot 38 Block B Shoka Street Magomeni Mikumi Dar es Salaam. Although the plaintiff bought the said house from Ubwa Zuberi Ubwa in 2000, by the time he bought it, the said Ubwa Zuberi Ubwa had already sold it to Isihaka Abdallah (2 nd defendant) Six years ago in 1994. I think that Ubwa Zuberi Ubwa Simply took advantage of the late Isihaka Abdallah's kindness who allowed him to continue staying in the same house after buying it. Being allowed to stay in the same house after selling it gave him opportunity to sell it to another person namely Malaya Abdulrahman Salum. In my view Ubwa Zuberi Ubwa decided to be dishonest by selling it to Malaya Abdulrahman Salum (plaintiff) out of thirst for money. As Malaya Abdulrahman Salum 16 bought it from Ubwa Zuberi Ubwa when it had already been sold to someone else namely Isihaka Abdallah, she has no claim of right over it. On the third issue, I am of op1n1on that the second defendant bought the house in issue lawfully. First of all, he paid his Tshs 5, 500,000,/= which was the agreed purchase price between them. Second, Ubwa Zuberi Ubwa sold the house in issue to Isihaka Abdallah (deceased) in his capacity as Administrator of the estate of the late Fatuma Mwinyikambi who was his mother. Third, by the time Isihaka Abdallah bought the house in issue, it had not been sold to someone else so as to create a conflict of ownership. Now I proceed to the fourth issue. On this issue, I am of the view that as the plaintiff was lawfully ,.., 17 evicted by Court order from the suit premises and as she was not entitled to occupy the same, she is not entitled to any damages be it general or specific. I am of the view also that she is not entitled to compensation for loss of her properties alleged to have arisen out of her eviction. First of all, the eviction took place in the presence of policemen and in her presence. How could her properties get lost when the eviction took place in the presence of the policemen and in her presence. Therefore, I do not believe that she lost any property during her eviction. On the fifth issue, I am .of opinion that the plain tiff is entitled to recover her money i.e Tshs 12, ~. 000,000?= from Ubwa Zuberi Ubwa (l stdefendant) which she paid him for the wrongful sale of the house 18 • ~ 1n issue. The 2 nd defendant is entitled to peaceful enjoyment of the house in issue. Finally, I dismiss the suit against the 2nd defendant and I order that each party should bear its own Costs. A.Shangwa. JUDGE -10/ 12/2014 10th day of December, 2014 in the presence of Mr. Munisi for Mr. Kalolo for plaintiff and Mr. Kika Nzige for Mrs. Rita Chihoma for 2 nd defendant. - A .Shangwa. JUDGE 10/12/2014