magreth andulile bukuku vs nathanieln mwakipiti kigwila 2020 tzhclandd 150 26 may 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO 40 OF 2018 MARGRETH ANDULILE BUKUKU......................... PLAINTIFF VERSUS NATHANIEL MWAKIPITI KIGWILA.................DEFENDANT Date of last Order: 24,02.2020 Date of Judgment: 26.05.2020 JUDGMENT V.L. MAKANI. J. This is a summary suit under under Order XXXV of The Civil Procedure Code CAP 33 RE 2002 (the CPC) filed by the plaintiff MARGRETH ANDULILE BUKUKU claiming against the defendant one Nathaniel Mwakipiti Kigwila the following reliefs: a) Defendant to be declared illegal occupant o f the suit property. b) The defendant be ordered to vacate the suit property. c) Cost o f this suit d) General Damages, and; e) Any other relief this Court may deem just to grant The property in dispute is Plot No 256/1 and 257/1 and 258 Block A, Kunduchi Salasala, Kinondoni Municipal Dar es Salaam (the suit property). The defendant filed an application for leave to appear under Order XXXV, Rule 3 of the CPC. The application was granted vide Miscellaneous Application No 395 of 2018. However, the defendant failed to file Written Statement of Defence and after his advocate Mr. Kamala withdrew his representation the defendant did not find it necessary to instruct another advocate or appear in person. The applicant through her advocate Ms. Jackline Massawe prayed to and was granted leave to proceed ex-parte. Ms. Jackline Massawe prayed for the reliefs prayed in the plaint to be granted in summary however, the court found it prudent for the plaintiff to prove its case since there were reliefs such as vacant possession and ownership of the suit property which required the examination and analysis by the court In proving the case the plaintiff was the only witness. The plaintiff said that the defendant Natahaniel Mwakipiti Kigwala is in the suit property which is owned by her because she bought in an auction which was advertised in the Daily Newspaper following the failure by the defendant to pay the loan owed by him to International Commercial Bank (Tanzania) Limited. The suit property was offered by the defendant as security to the loan infavour of the Bank. The plaintiff said the advertisement of public auction was in the Daily News of 26/01/2016 (Exhibit PI) and the auction was conducted on 14/02/2016 by Tambasa Auction Mart & General Broker. The plaintiff said she was the successful bidder and she paid TZS 155,000,000/= and was given a Certificate of Sale by the Auctioneers (Exhibit P2). 2 She thereafter said there was an Agreement for Sale between herself and the Bank (Exhibit P3) and there was a transfer from the Bank to herself and she tendered Land Form (LR7) (Exhibit P4) to confirm the said transfer. The plaintiff said the transfer form was signed on 15/03/2016 and thereafter she was granted the Certificate of Title No. 102172 duly transferred in her name. The plaintlFF said she has not lived in the said suit property since 2016 when she purchased it and she had made efforts to evict the defendant, but she was advised that only a court order could do so that is why she was in court now. She prayed for the court to declare her the lawful owner of the suit property and the defendant be evicted. She also prayed for damages according to her she was supposed to be in her house not in a rented house. The main issue to tackle in this suit is whether the plaintiff is the lawful owner of the suit property and whether she is entitled to the damages so prayed. The last issue to be looked upon is what reliefs is the plaintiff entitled to. There is no dispute that there was a loan by the defendant and the security was the suit property. There is also no dispute that the defendant defaulted in repayment of the loan hence the public auction by the Bank to recover its loan. The loan, the default and the public auction has not been challenged by the defendant as he has not filed his defence though leave was so granted by the court. The exhibits tendered by the plaintiff show that there was notice of the public auction (Exhibit PI) and sale was effectively done, and 3 Certificate of Sale was issued by the Auctioneers (Exhibit P2) and a Sale Agreement between the Bank and the plaintiff (Exhibit P3) was duly executed. There is also a Transfer Form and Certificate of Title showing that indeed the disposition by the Bank to the plaintiff has been effected. It is settled law that no one can transfer a better title than the person who has the said title. This is ascertained in the case of Farah Mohamed vs. Fatuma Abdalla [1992] TLR 205 where it was held that: "he who has no legal title to the land cannot pass good title over the same to another" In the present case there is good title from the Bank to the plaintiff. The Bank was the registered owner of the suit property on account of the mortgage by the defendant in its favour. On default of repayment of the loan the Bank exercised it powers under the mortgage and sold the property to the plaintiff. Therefore, title has passed from the defendant to the Bank and ultimately to the plaintiff as such the plaintiff properly purchased and is the lawful owner of the said suit property and I hold as such. On the other hand, the law protects bonafide purchasers (section 135 of the Land Act). In the case of Moshi Electrical Light Co. Limited & 2 Others vs. Equity Bank & Others, Land Case No. 55 of 2015 (HC- Mwanza Registry)(unreported), Hon. Maige, J stated that the protection of a bonafide purchaser for value provided under 4 section 135 of the Land Act accrues upon registration and the transfer of the property in question to the bonafide purchaser. In the present case, there is proof that transfer there was transfer by the Bank to the plaintiff (Exhibit P4) and though the Certificate of Title was tendered for identification purposes, but it reflects that the registration of the suit property in the name of the plaintiff has been effected. In the circumstances, the plaintiff has protection under section 135 of the Land Act as a bonafide purchaser. The plaintiff has also claimed general damages to be awarded by the court. The court discretionarily awards general damages after taking into consideration all relevant factors of the case (see the case of Cooper Motor Corporation Limited vs. Moshi Arusha Occupational Health Services [1990] TLR 96). In the course of the trial the plaintiff did not state the injury that warrants grant of general damages. And unfortunately, the learned Advocate Ms. Massawe did not lead her to at least show the court the injury suffered by the plaintiff. However, it is obvious that the plaintiff has gone into lengths to ensure that she is able to enjoy the fruits of her purchase. Since 2016 she has not been able to enter and take over the suit property which she had legally purchased. For this reason, I am of the considered view that the plaintiff is entitled to a token of TZS 10,000,000/= as general damages. Now what reliefs is the plaintiff entitled to. For the reasons I have endeavoured to address, the plaintiff is granted reliefs as I hereby order as follows: 5 1. That the plaintiff is the lawful owner of the suit property Plot No 256/1 and 257/1 and 258 Block A, Kunduchi Salasala, Kinondoni Municipal Dar es Salaam 2. The defendant is ordered to vacate the suit property within 30 days from the date of this judgment. 3. The plaintiff is also entitled to general damages to the tune of TZS 10,000,000/- only. 4. That the plaintiff is entitled to costs of this suit. It is so ordered. V.L. MAKANI JUDGE 26/05/2020 6