20170811 TZHC Dar es Salaam

- _/_ - IN THE Hl,GH COURT OF TANZANIA - ,/- - [DAR ES SALAAAI\ DISTRICT REGISTRY] AT DAR ES SALAAM LAND CASE NO. 21 OF 2013 MARVELOUS FLOlEA COMPANY LIMITED ............. PLAINTIFF VERSUS MVvAMGONGO JUMAA ... ...................... DEFENDANT THANGAVELU NALLAVAN VALLU .............. INTERESTED PARTY Date of last Order: 23/6/2017 Date of Judgment l 1/8/2017 JUDGMENT TEEMBA, J. The suit has a long history. In 1993 the defendant sued 1/1/S INFRA TRANSPORT LIMITED (INFRA} in Civil case no. 121 of 1993 ot Kisutu Resident Magistrates Court. The parties were contesting over the ownership of Plot no. 85 Mbezi Industrial area, registered in the name of "INFRA in CT no. 37725. tv\wamgongo Jumoa who is now the defendant claimed to be the owner of the some piece of land which he referred to 1 as '"Mwamgongo Farm." The suit was decided in his favour. He approached the Land Office in an attempt to have the land transferred in his name. - - - The move was frustrated because there was a caveat filed pending the appeal proceedings. An order for retrial was made by the appellate court. So, the same civil case no. 121 of 1993 was revived. INFRA took an advantage of the order and without any hesitation, she sold the property to the present plaintiff, Marvelous Flotea Company Limited. Before buying the property, the plaintiff conducted search in the Land Office and a certificate (Exh. P.3) was issued showing that the land had no incumbrance. The plaintiff then paid INFRA for the property. She proceeded to pay the official fees connected to the property including the transfer fees. The CT no. 37725 was handed over to the Land office for purposes of Transfer of ownership. At a later stage the Land Office asked her to surrender the Title Deed as the Ministry was reviewing the Title Deeds. The plaintiff responded to the request and handed over the Title Deed back to the Land Office. A Deed of Surrender was issued to the plaintiff. The plaintiff was therefore waiting for a new Title Deed in her name. On the other side, the defendant was also busy with proceedings in the retrial of civil case no. 121 of 1993. INFRA 2 was served through publication after efforts to serve her in the ordinary failed. According to the plaintiff, she did not know.anything about the case_ in court. Likewise, the defendant did not know that there was a transfer of ownership of the land in dispute. However, after a retrial of civil case no. 121 /1993, a Judgment was delivered on 31/3/2011 1n favour of the defendant. That Judgment declared that "MWAMGONGO FARM which falls under Plot no. 85 MBEZI Juu in the City is declared to belong to the· plaintiff and the Defendant is permanently restrained from trespassing upon the said land." In execution of the Judgment and decree, the Resident Magistrate lncharge of Kisutu wrote a letter to the Land Office to register the land in the name of the defendant/decree holder. The plaintiff was notified by the Land Office about the decree and. the intended transfer {transmission by operation of Law). The plaintiff resisted unsuccessfully as the Land Office had to comply with the court decree. Finally, the land in dispute already in CT No. 118090 {formerly CT no.37725) for Marvelous Flotea Company Limited changed to Mwamgongo Jumaa by operation of 3 lovv'. It is alleged that the defendant did not keep the property. He sold it to THANGAVELU NALLAVAN VALLU, the Interested Porty in this Case. The plaintiff did not give up. She decided to file this suit claiming for the following reliefs: (i) A declaration that the plaintiff is the sole owner of the Right of occupancy over Plot No. 85 situated at Mbezi Industrial Area in Dor es Saloom City containing 15,564 square Metres, registered under Certificate of Title No. 118090, (ii) A declaration that the decree in Civil Case No. 121 of 1993 is null and void, because it was not issued by a court having jurisdiction over land disputes, (iii) A declaration that the copy of Certificate of Title No 1 18090 in the hands of the Interested party was obtained illegally, (iv) An order directing the Registrar of Titles to rectify the Land Registry by cancelling the copy of Certificate of Title No. 118090 and also deleting the names of the defendant and the Interested party and replacing it with the name of the MARVELOUS FLOTEA COMPANY LIMITED, the plaintiff herein, 4 , (v) A declaration· that the defendant and the interested party are not entitled to enter into, or use the suit land, {vi) An order of eviction against the defendant and the interested party through their servants, agents or otherwise howsoever from, (vii) An order for demolition of any structure erected on the suit land by the defendant and the interested party, whether by themselves or through, agents or workmen, (viii) A permanent injunction restraining the defendant and the interested party, whether by themselves, through their servants, agents, or otherwise howsoever from entering or using the suit land or trespassing upon it in any way. (ix) Damages, and costs. The plaintiff was represented by Mr Sylvester Shayo and Ms Benadetha Shayo, learned advocates. On the other hand, Mr Burton Mahenge, learned advocate represented the defendant. At the commencement of trial the following issues were framed for determination: 5 (i) Who is the lawful owner of Plot No. 85 Mbezi Industrial Area, Dar es Salaam registered under CT. No.118090, (ii) Whether the letter by Principal RM in charge at Kisutu ordering the cancellation of CT. 37725 was valid in law. (iii} Whether the transmission of the said suit land from the plaintiff to the defendant and subsequent to the interested party is vitiated by fraud or illegality, (iv) Whether the Mwamgongo Farm is the same land known as Plot No. 85 Mbezi Industrial Area, Dar es Salaam, registered under CT.no.118090 (v} To what reliefs are the parties entitled. The plaintiff's advocate combined the first four issues and submitted that the plaintiff is the lawful owner of Plot no. 85 Mbezi Industrial Area, in Dar es Salaam City because there was passed a good title from INFRA to the plaintiff. He also argued that the plaintiff received a good title as a bonafide purchaser for value and further because she was not a party to the Judgment and decree in Civil Case no. 121 of 1993 at Kisutu Resident Magistrates Court. The defendant's counsel had different views. He submitted that he had firm views that 6 . --· -· - - -· -- ·- -·-·- --·--· the defendant is the owner of the property in dispute as declared by the trial court at Kisutu. Before I consider the merit of the above arguments, prefer to start considering the fourth issue. That is, whether the Mwamgongo Farm is the same land known as Plot no. 85 Mbezi Industrial Area, Dar es Salaam, registered under C.T. No. 118090. In my considered view, this issue 1s answered affirmatively. It is the same land but being described differently. First, the dispute arose when the defendant discovered that INFRA had been allocated the land by the Dar es Salaam City Council. The suit filed at Kisutu was against INFRA and Dar es Salaam City Council as defendants. Second, the defendant's offer 1s for Mwamgongo Farm. In his testimony the defendant said he left the country to Japan where he stayed for a number of years and upon returning he found INFRA occupying the property. So, in my considered view, it is the same property with different identities by the land offices of Dar es Salaam City Council and Kinondoni District Council. The defendant's offer indicates that it was issued in April 1985 while the Offer to INFRA was issued in October 1989. By then the defendant was away in Japan. 7 Having decided that the Mwamgongo Farm is the same land known as Plot no. 85 Mbezi Industrial Area, I now go back to issue no. 1,2 and 3 above. It is important to appreciate the arguments of the learned counsel contained in their final submissions. Indeed, they were very useful. It is common fact that there was a dispute over the ownership of the same land in dispute. That dispute ended in the court of law where the defendant sued INFRA. lt is also a fact that INFRA was aware of the case and was represented by different advocates at different stages. It is also undisputed that the defendant won the suit in an exp a rte proof. On appeal by INFRA, the decision was set aside and the appellate court ordered the same suit to be heard on merit between the part-ies. There is evidence that in the long run, the suit was finally determined on 31 st March 2011 in favour of the defendant. Furthermore, the exparte Judgment was not appealed against or rev1sed and thus, that decision has never been challenged. In my considered opinion, the ownership of the land in dispute was granted to Mwamgongo Jumaa, the plaintiff in civil case no. 121 /1993 at Kisutu. As long as the decision stands unchallenged todate, this court has no powers to interfere with orders mode in that decision. 8 Apparently, there is no doubt that the plaintiff bought the land in dispute from INFRA. But the important point to note here is that, INFRA disposed of the properly while there was a pending dispute in respect of the ownership. Although she had a CT no. 37725 the transaction took place even · before the case came to an end. The plaintiff conducted search and was assured that the property was free from any encumbrance and she was therefore given an approval by the Commissioner for Lands, hence Disposition Certificate (Exh.P5). The plaintiff and INFRA executed a Sale Agreement and Deed of Transfer on 20 th December 2008. Mr Shayo cited to me the case of OMARI YUSUFU Vs RAHMA AHMED ABDULKADR [1987] T.L.R. 169(CA) maintaining that the plaintiff is a bonafide purchaser and should not be disturbed. In this case the Court Appeal held that "a bonafide purchaser who is a stranger to the decree does not lose his title to the property by the subsequent reversal or modification of the decree .... · "Since a registration system obtains in Dar es Salaam the extent of investigations into the origin of the vendor's title by a 9 purchaser is limited. There is no need to undertake a historical investigation into the origin of the vendor's title beyond the inspection of the register. at the Land Office, because the purchaser is justified at law in the assumption that what the register contains is true and is all that there is about the property." I agree with the learned counsel that the above holding is still good law. But in my considered view, there is a concern to point out. Assuming that the plaintiff is a bonafide purchaser for value and there is no element of fraud in the sole transaction, then she will be entitled to retain the property. If this court declares so, then there will be two parallel decisions of different courts declaring different owners of the same property. This will amount to chaos. To avoid this, the Court of Appeal has made it clear in several cases that under such circumstances, the only option for the bona fide purchaser to challenge o decision where she was not a party is to file Revision Proceedings. See the case of AHMED ALLY SALUM Vs RITHA BASWALI and KITENGE FURAHISHA, Civil Application no. 21 of 1999 (CA) unreported where it was held: 10 "... as the applicant was not a party to the court proceedings he could not hove appealed and the revision was his only remedy." ( emphasis added) In the case at hand, the plaintiff was not a party to civil case no. 121 of 1993 but the decision affected her rights over 1he land in dispute. Definitely, she could not appeal as she was not a party in the suit. But again to bring a fresh suit against the decree holder, in my view, is not proper. Worse still, the judgment debtor in Civil Case No. 121 /1993 and vendor who sold the property to the plaintiff is not a party in this case. So this court cannot make orders against a person who is not a party in the case. As a result, there will be endless litigation in respect of rights/interests of persons involved or affected by any decision in this dispute. Mr Shayo submitted correctly that this court has powers under Order XIII Rule l 0( l) of the Civil Procedure Code, Cap 33 RE 2002 to call for record either on its own motion or upon the application of any party to a suit for inspection. Given the facts of this case, I cannot call the record in civil case no. 121 / 1993 of Kisutu RMs' Court. These are two different cases 11 or-id the court has to be moved properly for a specific action. That being said, I consider this suit to be incompetent before this court and the remedy ava.ilable is to strike it out with costs. It is so decided. ~ R.A.TEEMBA JUDGE 11/8/2017 Court: The Judgment is delivered today in the presence of both sides. ~ R.A.TEEMBA JUDGE 11/8/2017 12