merylyne godwin kileo vs godwin stephen kileo another 2018 tzhclandd 545 3 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.131 OF 2015 MARYLYNE GODWIN KILEO.................... .........PLAINTIFF VERSUS GODWIN STEPHEN KILEO........................ .1st DEFENDANT MBWANA ALI MZENGA........................... 2nd DEFENDANT Date of Last Order: 02.07.2018 Date of Judgment: 03.08.2018 JUDGMENT S.A.N. WAMBURA, J: The plaintiff herein one Marylyne Godwin Kileo instituted this suit against the two defendants Godwin Stephen Kileo (1st defendant) and Mbwana Ali Mzenga (2nd defendant) for the following reliefs:- (a) A declaration that the land described as is a matrimonial property. (b) An order that the sale of the land with Certificate of Title No. 51053, Plot No. 2006 Block H Mbezi Kinondoni Area, Dar es Salaam City from First to Second Defendants is null and void. (c) Cost for this suit. (d) Any other reliefs that this honorable Court deem s fit and just to grant in favour of the plaintiff. In their written statements of defence both the 1st and 2nd defendants denied the entire allegations in the plaint and prayed for the dismissal of the suit with costs. At the hearing of this case the plaintiff was represented by Mr. Adrian Mhina Advocate whereas the 1st defendant enjoyed the legal sen/ices of Mr. Bondo Advocate and the 2nd defendant was represented by Mr. Abel Ngalaba. Before the commencement of the hearing of the suit, two issues were framed to be determined by the Court being:- (1) Whether there was valid spouse consent during the sale of the disputed land property. (2) To what reliefs are the parties entitled to? In support of her case, the plaintiff Marylyne Godwin Kileo invited one witness namely Thomas Massawe (Pw 2) while on the 2 defence side, the 1st defendant Godwin Stephen Kileo (Dw 3) defended himself whereas the 2nd defendant called two witnesses namely Mwalimu Suleiman Mzenga (Dw 1) and Ramadhani Ali Malata (Dw2). Both counsels filed their final written submissions as scheduled. I am thankful to them as the submissions have been helpful in the writing of this judgment. Before I determine the issues which were raised in this case in seriatim, I believe there is a need to briefly summarize the facts of this matter. It is on record that the plaintiff and the 1st defendant were married as of 11th January, 1986. They were blessed with two children. During their marriage they acquired various properties including the disputed plot with Certificate of Title No. 2006 Block H Mbezi Kinondoni Area, Dar es Salaam. This was sometime in 1998. 3 It has been alleged sometime that in 2011 the 1st defendant sold the disputed plot to the 2nd defendant without the consent of the plaintiff. The plaintiff thus filed a caveat (Exhibit P 1) at the Registrar of Titles Office in respect of the sale of the suit land. She stated her interest that the landed property is a matrimonial one and should not be transferred without her consent. Having received the said caveat from the plaintiff, the Registrar notified her that he is intending to register the transaction from the 1st defendant to the 2nd defendant within thirty days from the date of dispatch of the said notice. So the plaintiff decided to institute this suit to challenge and stop the said transfer. The plaintiff insisted in her testimony that she did not sign the consent paper although the signature which appears on it is hers. She thus decided to file this suit because she did not consent to the sale of the disputed plot. She thus prayed to this court to nullify the sale. 4 In his defence, the 1st defendant Godwin Stephen Kileo (Dw 3) contended that the plaintiff failed to prove on how she m anaged to contribute towards acquiring of the said plot in dispute jointly. He averred that the plaintiff consented to the sale of the disputed plot and that is why she did not deny the signature to be hers. I will now resolve the issues as herein framed. (1) Was there a valid spouse consent during the sale of the disputed land property. According to the evidence adduced by both Pw 1 and Dw 3, there is no dispute that the plaintiff and the 1st defendant were husband and wife at the time when the sale transaction of the disputed land was executed. This is because in her evidence the plaintiff stated that she was divorced sometime in 2017 and the sale transaction was executed sometime in 2011. 5 Now the only dispute is whether the spouse consent was issued by the plaintiff at the time of sale of the disputed land by the 1sf defendant. As I stated earlier, it is on record that in 2011 when the sale transaction was executed, the plaintiff and the 1st defendant were still husband and wife as there was no divorce issued at that time. The fact which was not disputed by the 1st defendant. The only fact which the 1st defendant disputes is that the spousal consent was issued by the plaintiff herself as she was the one who prepared and signed it. Now whereas the plaintiff (Pw 1) admits that the signatures is hers, Pw 2 denies to have signed the spouse consent document though there is his signature and stamp. On the other hand Dw 1 contended that he never saw the plaintiff, he only saw the documents already signed. Dw 2 Ramadhani Ally Malata, Advocate denied to have prepared the spouse consent though he prepared all other documents. 6 Dw 3 admitted to have sold the same after getting the spouse consent which he purports to have been prepared by Pwl herself. In the circumstances Pwl is the one who ought to know who prepared the document or who she suspects to have forged her signature. But if it was really forged she ought to have reported the matter to the police after filing a cave at. However she has not reported the same. To date no one has been accused of allegedly having forged her signature. The only logical conclusion is that the spouse's consent document was prepared at Pw 2's Office with or without his knowledge. It cannot safely be said to have been forged if the plaintiff admits that the signature is hers. She could be implying that Dw3 prepared the document but she has failed to prove the same. It has not even been shown as to how Dw3 and Pw2 are related to have influenced the same. But again she did not even state as to how she cam e in to contact with the document whereas the 1st defendant (Dw3) says she was the one who 7 prepared the document and handed it to him. This was not disputed. To make it worse the said document was not even tendered in Court as exhibit to show that it was actually forged. So intact we are discussing on an imaginary document. Section 110 of the Evidence Act provides as herein quoted:- "Section 110 (/ J W hoever desires any court to give judgm ent as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fa c t it is said that the burden of proof lies on that person." [Emphasis is mine]. In a case on allegation of forgery the burden is even higher as was held in the case of Omari Yusuf Vs Rahma Abdutkadir (1987) TLR 169, where the Court of Appeal of Tanzania held that:- “I think it is now established that when the question whether so m eon e has com m itted a crim e is raised in Civil 8 proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases, the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of proof..." [Emphasis is mine] Since the plaintiff has failed to prove that the said consent was forged, this issue is answered in the affirmative that there was a valid spouse consent during the sale of the disputed land property. 2. What reliefs are the parties entitled to? Since the plaintiff has failed to prove her case as required, this court orders that:- (a) Suit is herein dismissed. (b) Plaintiff to be given half of the purchase price if that was not done. (c) Each party to bear its own costs. S.A.N. WAMBURA JUDGE 03.08.2018 9