merina chiteji kassembe vs angel basil saprapasen another 2018 tzhclandd 2 22 january 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 31 OF 2015 MERINA CHITEJI KASSEMBE........................................ PLAINTIFF VERSUS ANGEL BASIL SAPRAPASEN................................. 1st DEFENDANT ERNEST WENSLAUS MAHORI............................... 2nd DEFENDANT JUDGMENT 24/ 10/2017 & 19/ 1/2018 MZUNA, J.: Merina Chiteji Kassembe the plaintiff herein, filed this suit against Angel Basil Saprapasen and Ernest Wenslaus Mahori alleging that Angel Basil Saprapasen (the 1st defendant) who was her close friend, fraudulently purported she sold to her Plot No.20, Block "10" Bunju Area, Kinondoni Municipality registered under CT. No. 108244 a fact which was not true. Further that she, without any colour of right, sold that plot to Ernest Wenslaus Mahori. It is Merina's story that she sold it while the title deed was entrusted to Angel, the first defendant for safe custody. Above all that the signature in the transfer deed and sale agreement between the plaintiff and the first defendant was forged a fact which she says has support from the Forensic Bureau report. The plaintiff therefore prays for judgment and decree against the defendants jointly and severally among others for nullification of the sale plus payment of i TZS 100,000,000/= as damages for trespass to land or any other sum to be assessed by the court as well as costs of the suit. On the other hand, the 1st defendant alleges that it is only the certificate of Title for Plot No.387 Block "E" Tegeta which was given to her by the plaintiff for safe custody otherwise the certificate of Title for Plot No.20 Block "10", Bunju Area, Kinondoni was sold to her by the plaintiff. She therefore insisted of having purchased the later plot from the plaintiff. She denies to have employed fraud but says the plaintiff's change of mind on the sale is due to the fact that she noted she sold the plot at a higher price. She prayed for the dismissal of the suit with costs. The second defendant says is a bonafide purchaser for value. He admits to have purchased the suit plot now in dispute from the first defendant for Tshs. 35.000.000/-. That the sale agreement was witnessed by an advocate though the title deed was still in the name of the first defendant. It was anticipated according to the first defendant that such transfer was to be done upon the plaintiff's return from abroad. Of course before that could be done, there was institution of this case and Police investigation on the matter. He was ordered to surrender the title deed and all documents connected to the ownership. Due to these eventualities, he demanded for his money which was paid by the first defendant being Tshs. 40.000.000/- including disturbance costs as requested. Both parties were represented. The learned counsels made their final written submissions. I am thankful to them for their well-researched submissions. The following issues were agreed to be in dispute:- i) Whether there was a valid sale between the plaintiff and the 1st defendant? ii) Whether the Plaintiffsuffered injury as alleged? Hi) To what reliefs are the partiesentitled thereto? Let me start with the first issue as to whether there was a valid sale between the plaintiff and the 1st defendant? Mr. Rwazo, the learned counsel from IMMA advocates has submitted that there is clear proof of fraud based on the available evidence. Further that the first defendant should be bound by her pleadings where if closely read, never said about the alleged money advanced to the plaintiff as loan. The learned counsel for the plaintiff submitted as an opening remark that it is trite law that parties in litigation are bound by what has been stated in the pleadings. That the 1st defendant never pleaded how she purchased the suit premises in particular by showing how the purchase prices was paid to give the plaintiff opportunity to respond to those allegations. So he says, the allegation that the purchase price was paid as loan first are baseless and an afterthought thus cannot be acted upon by this Honourable court. He cited the case of Interfreight Forwarder (U) Limited v East Africa Development Bank (1990-1994) E.A.117 (among others). Second that it is illogical that he second defendant could have advanced more money to the plaintiff while she claimed had her outstanding amount which was still due. Above all she failed to summon material witness, her sister through whom she was advancing the money to the plaintiff as loan. He cited the case of Jockson Mussetti v. Blue Star Service Station [1997] TLR114 to show that no case had been made out against the plaintiffs evidence. Based on the evidence on record it is his view that the plaintiff did not sign the sale agreement or the transfer deed as by then she was at Masasi and her signature was therefore forged. That there was no valid consent obtained from the plaintiff for such an agreement to be valid. That, under section 10 of the Law of Contract Act, Cap. 345 RE 2002 an agreement without consent is void ab initio. He therefore asked court to hold issue No. 1 in the negative. The defence on the other hand led by Mr. Peter Joseph Swai, the learned counsel from Legal Link Attorneys has insisted that the plaintiff having pleaded the issue of fraud needs proof, a standard of which is more than a normal civil case and must be strictly proved. He cited the case of Omari Yusuph versus Rahma Abduikadir [1987] TLR 169 and that of Pate/ versus LaljiMakanji [1957] E.A. 314 at Pg. 316. He further touched on Paragraph 14 (c) of the plaint where it is alleged that at the time of signing the sale agreement and transfer deed the plaintiff was not in the country. This was contra distinguished with a caveat annexed as "MCK3" which was not tendered in court but it is said she was in the country on the said dates of execution of sale but never witnessed it. The learned counsel described the plaintiff's evidence as unreliable, conflicts itself and full of inconsistencies and should therefore be rejected citing the case of EmmanuelAbaraham Nanyaro versus Paniel Ole Saitabahu [1987] TRL 47. That since the challenged document was witnessed by signing it, it is good evidence under section 69 of the Evidence Act, Cap 6 RE 2002. He asked the court to ignore the forensic report which in the first place it was not the original but a mere certified copy under the custody of EMMA advocate who represent the plaintiff. He cited the case of Venance Shirima Versus Noti Ndugumbi, Civil Appeal No. 161 of 2009, HC (Unreported) to support his argument. Above all that, it ought to be used in a criminal case citing section 205 (1) of the Criminal Procedure Act, Cap 20 RE 2002. The learned counsel further said that the plaintiffs case is dependent upon the expert evidence, however courts are not bound to accept medical expert's evidence if there are good reasons for not doing so citing the case of Hilda Abel versus Republic [1993] TLR 246. He therefore said that the first issue must be answered in the affirmative. Let me touch in detail on the available evidence. The plaintiff's evidence is based on that of herself (PW1); Simon Gervas Mapunda (PW2); Riz Kibada (PW3), Officer from the office of the Registrar of Titles; ASP William Sola (PW4) from the investigation Department, Police Headquarters Dar es Salaam and ASP Chrisantus Chitandala (PW5), the handwriting expert. On her part the 1st defendant summoned three witnesses including herself as (DW1), Farida Mohamed Seif (DW2) and Mr. Florence Tesha (DW3), the advocate. 5 The 2nd Defendant testified as DW4 and had no other witness to call. PW1 said that she happened to know DW1 when they met in various normal social activities. The first defendant upon noticing that the plaintiff was staying in a Hotel when she came back to Tanzania from Cologne Germany where she was staying, she allowed her to stay together, something which she agreed. It is during this time when the first defendant noted that the plaintiff had her title deeds for Bunju and Tegeta plots. He made a proposal that it was safer to keep them when she went back abroad instead of leaving it under the custody of a driver. She agreed. What made the plaintiff raise an alarm was in 2013 when she demanded back her title deed for Tegeta and Bunju. To her surprise the first defendant handled to her that of Tegeta saying that she sold to her the Bunju plot. She proceeded to show to her the document alleging that it was proof that she in fact sold it to her. She decided to report the matter to Oysterbay Police and then involved the fraud section at the Police Headquarters. Upon perusal of the alleged signature in the sale agreement she noted that it was not hers. The original certificate of title for Plot No. 20 Block 10, Bunju'A' was successfully handled to the Police by the second defendant, the purchaser. The plaintiff opted to join him in this case. The plaintiff said that on the alleged date 10th October 2012, on which the sale agreement was executed, she travelled to Masasi together with PW2 on request by the first defendant, her neighbor who failed to accompany her because she had other assignment at Equity Bank. They stayed there for two days. 6 The investigation was mounted under PW4 who then forwarded the sample disputed signatures to PW5. The plaintiff's case is without any doubt that the signature of the plaintiff is not the same which appear in the disputed sale agreement while that of the first defendant tallied with her other signatures. There was tendered in court, copy of the certificate of title for Bunju (above referred) as exhibit PI; Sale agreement for the said plot to the second defendant as exhibit P2 and Forensic Bureau Examination Report of the disputed signatures as detailed by PW5 received as exhibit P3. The first defendant's story is that the plaintiff obtained from her various loan advances at the time when she faced some financial constraints when she wanted to go back to Germany. To this end, she was given Tshs. 350,000/- and U$ 3,000 from her sister, Tshs 600,000/- and U$ 500 through her aunt, and U$ 500 given to her by the first defendant after she had told her that she wanted to construct a small house at Tegeta. Thereafter the first defendant gave her on various dates Tshs. 3,600,000/- ; 5,000,000/- and 350,000/- which were meant to purchase some food for her mother. She further gave her U$ 2800 on her way to Airport and Tshs 50,000/- on her way to Ndanda. On 10/10/2012 she asked for her money back. Her response was to sale a plot of Bunju, so a lawyer was found through her friend one Farida Mohamed Seif (DW2) who introduced them to Mr. Florence Tesha, the advocate (PW.3). The sale agreement was then executed for Tshs 25,000,000/-. DW1 was surprised when the plaintiff demanded for the title deed for the two plots while the first defendant said she sold that of Bunju for Tshs. 35,000,000/-. She 7 developed grudge alleging that she earned more money than what the plaintiff earned. She expressed her dissatisfaction on the way she was treated including being remanded in custody for something which could have been solved through family meeting. That as of now she had already handled to the second defendant Tshs. 45,000,000/- which is over and above the purchase price to cover for the disturbance costs. She says it was a genuine sale as witnessed by the advocate without fraud and should therefore be declared as the lawful owner specially so after she had refunded money to the second defendant. The second defendant on his part stated how the sale transaction with the first defendant for Tshs 35,000,000/- was conducted after he was told about the deal by one Frednand Urassa who worked with Equity Bank. He further said how he gave up and surrendered the title deed and then refunded back his money. The first issue is founded on reliability and credibility of witnesses. The question to ask is, was there sale? The argument for the plaintiff is that it is unimaginable that the defendant could have paid more money to the plaintiff in the purported sale while as she says there was still money the plaintiff owes her. Further that the defence document never said about the alleged money advances and therefore this is a cooked up story. The defence says the plaintiff gave contradictory evidence as to whether she was present in the country based on the plaint and the caveat. Further that they depend on the forensic bureau report which its source is unbelievable, cannot be used in civil case and above all does not bind the court. That the tendered document for sale and transfer must be believed as true. 8 Reading from the evidence of PW1, she was a close friend of the first defendant and at times stayed at her home for shelter and sometimes even when she was not present. The first defendant admits was entrusted to keep her title deed including that of Bunju but says it was legally sold to her, reliance being on the sale agreement (exhibit P2). Although it is said the plaintiff gave contradictory story in that on one hand she says was not in the country (see paragraph 14 (c)), as opposed to her caveat annexed as "MCK3" which was not tendered in court where it is alleged she was in the country on the said dates of execution of sale but never witnessed it, however that question was not asked during cross examination to test her veracity and credibility. Above all, it is a well settled principle of the law that annextures to the plaint are not exhibits in evidence and cannot be the basis for the decision. That position was amply stated in the case of Abdallah Abas Najim vs. Amin Ahmed Ali [2006] TLR 55 (HC), the position which I agree entirely. The position remains as stated in court that she was at Ndanda, Masasi-Mtwara on the alleged date of execution of the sale agreement. The plaintiff's counsel has challenged the alleged loan which does not feature in the written statement of defence. Indeed there is no averment connected to the alleged loan advances which according to DW1 were in total of Tshs. 25,050,000/-. When the first defendant was asked a question by Mr. Rwazo, the learned counsel she replied that:- "...I continued to give her some money even before she refunded me the first money. I believed the properties of Merina I had at home including two title deed were worth more than that money I gave her..." Further that:- "...In my WSD I never included the story on the advanced money to Merina but I informed my advocate about it...Even the sale agreement does not say so because Merina talked each and everything to the lawyer..." The defence has relied on the photographs as proof that indeed there was such sale agreement. This averment is without legal backing otherwise there could be no need of signing if the law was to bless such a short cut. Section 10 of the Law of Contract Act, Cap 345 RE 2002 clearly states that:- "A ll agreements are contracts if they are made by the free consent o fparties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: Pro vided that.." There must be consensus ad idem which is lacking in this case. The concrete evidence in this case is well built in the forensic report (Exhibit P3). It was admitted as evidence without any objection. The defence advocate is precluded from challenging its genuineness at this late hour while he never objected it. Above all, PW5 said is the one who prepared it and signed it. It cannot be rejected. 10 The cited case of Venance Shirima Versus Noti Ndugumbi (supra) is distinguishable from the facts of this case because in that case the taking of the signatures were made at the instance of the advocate who represented one of the parties to the dispute while in the present case it was supervised by PW4 the Police themselves under the instruction of the DCI which is clearly covered under section 59 of the Criminal Procedure Act, Cap 20 RE 2002. The sample signatures were then sent to the Handwriting expert, PW5 who then prepared his report (exhibit P3). It bears his signature at each page of the sample signatures. There is no likelihood of being tempered with. He said the copy of the report sent to EMMA advocates was the same as the one which was sent to the DCI. As to his qualification, PW 5 said has a Diploma in Handwriting analysis from Glasglow Scotland and Certificate in Criminalistics and Laboratory Technique in questioned documents and applications of Modern Scientific Equipment from Turkey, Ankara. That, he exercised his powers under section 47 of the Tanzania Evidence Act, Cap 6 RE 2002 and section 205 of the Criminal Procedure Act, Cap 20 RE 2002. He is also a Gazette Officer under GN. 449 of 2011 as extended by GN No. 15/2017 of 3rd February, 2017. Section 47 of the Tanzania Evidence Act, Cap 6 RE 2002 reads:- "When a court has to form an opinion upon a point o f foreign law, or o f science or art, or as to identity o f handwriting or finger or other impressions, the opinion, upon thatpoint o fpersons (generally called experts) possessing special knowledge, skill, experience or training in ii such foreign law, science or art or question as to identity o f handwriting or finger or other impressions are relevant facts." The allegation that his report could only be used in criminal cases is unfounded. It is a relevant fact in this case. It is argued and I am aware as it was held in the case of Joseph Mapema vs. Republic [1986] TLR 148 (HC) that in a position like this where the court is to decide the real author of a disputed handwriting" the opinion o f a person who is conversant with the handwriting o f the disputing author is as good as, if not sometimes better than, that o f a handwriting expert." I respectfully agree with that finding, however it does not mean that expert opinion can be downgraded. I agree, it is an expert opinion but court cannot ignore it unless good cause is shown. I find none. I say so because the power of the court to maintain its constitutional power to adjudicate the matter fairly is not done away. The Court of Appeal allowed the trial court's decision in the case of Hilda Abel vs. Republic (supra) in upholding that the ex-pert opinion on the sanity of the appellant did not make her fail to comprehend what she was doing at the time of the commission of the offence. This was in line with the holding that:- "Courts are not bound to accept medical expert's evidence if there are good reasons for not doing so." PW5 said that the sample signatures were sent to the Investigation Bureau from the Police Investigation Department. With the use of Video Spectoral Comparator (6000) it assisted him to enlarge the words or drawings on paper as well as to do photographic enlargement and therefore shows how he did the investigations. That after making comparison, he observed that the 12 signatures of Merina Chiteji Kasembe differed on the drawings and the words based on "the line quality, stroke connection and pen movement" and therefore the signature and sample signature differed. That there was a break unlike the undisputed ones as well as that of Angel Basil Saprapasen, the first defendant. Having assessed the said report on the way the sample signatures were compared, it is clear even by naked eyes that the signatures of Merina Chiteji Kassembe, the plaintiff, differed in material particular with the disputed signatures. A break can be vividly seen in the disputed signatures. There was no reason why the plaintiff could have cooked up a story against her longtime friend. Similarly, I find that PW5 who is a witness without interest to serve, could not give such implicating evidence against her. What he testified in court just like other plaintiff's witness cannot be doubted for its truthfulness. Section 69 of the Evidence Act [Cap 6 R.E 2002] in a way places a burden on the defence to cast doubt that the said signature was that of the plaintiff. This is what is commonly called he who alleges must prove. Section 69 reads:- "Ifa document is alleged to be signed or to have been written wholly or in part by any person; the signature or the handwriting o f so much o f the document as it alleged to be in that person's handwriting must be proved to be in his handwriting The plaintiff having disproved to be her signature, the defence ought to have proved otherwise, failure of which shows there was no sale agreement 13 between the plaintiff and the first defendant as purported in the sale agreement. This fact is also given support by the evidence of PW4 who said that the advocate never recollected the client who sold the plot to Angela because she is the one who took the seller to him. However, from the story of DW1 it was the plaintiff who drafted the sale agreement and then presented it for signing. He must have met her for more than one day and ordinarily could not have forgotten her. Further Angel (DW1) admits that Merina (PW1) demanded for the title deed when she came back from Masasi. That would mean as well stated by PW1, the alleged fraudulent sale was made on the date when she was on safari to Ndanda, Masasi. I am aware as it was held in the case of Omari Yusuph versus Rahma Abduikadir [1987] TLR 169 (supra), that:- "When the question whether someone has committed a crime is raised is civilproceedings, that allegations need to be established on higher degree o f probability than which is required in ordinary civil case" Similarly in the case of Patel versus La/jiMakanji(supra) that: '!'Allegations o f fraud must be strictly proved. Although the standard o f proof may not be as heavy as beyond reasonable doubt, something more than a mere balance o fprobability is required." Based on the adduced evidence including the documentary evidence, I am convinced that the plaintiff has discharged that burden of proof albeit far above 14 a normal civil suit. The first issue is answered in the negative, there was no such sale. The second issue is whether there was any injury that was suffered by the plaintiff as alleged? The learned counsel for the plaintiff has submitted that the plaintiff suffered injuries both psychologically, physically and financially. That, the plaintiff suffered financial damages by not being able to use her land to generate income and instead of working she was forced to travel several times from German to Tanzania and back to German to attend the matter and to make follow up of her case. She was unable to perform her duties in German to generate income for her family because of fraudulent conduct by the 1st defendant. PW1 also informed the Court that she was unable to develop her property because the defendants wanted to deny her title to land. He asked for the issue No.2 to be resolved in the affirmative. I agree. Having resolved the first issue in favour of the plaintiff, similarly the second issue is also answered in the affirmative that indeed the plaintiff suffered injury. Now, how much damages should be awarded which is a point for discussion in the third issue. The Plaintiff claimed for damages for trespass to land to the tune of TZS. 100,000,000/= or any other sum to be assessed by the Court. That she was only given one certificate of title. She could not take the other certificate 15 after the first defendant had paid back the purchased price to the second defendant because she was not paid additional costs as damages. It is said by the first defendant that she requested Tshs. 17,000,000/- and she refused to take all certificates. The law is clear that specific damages must be proved. There is no tendered receipts to back up the alleged claim. In that case, I award the plaintiff Tshs. 30,000,000/- (say thirty million) as general damages plus costs of the suit. As stated by PW3, the plaintiff is still the legal owner for the plot at Bunju and I hold and find that the same be handled to her. PW3 said that any application for transfer of ownership with a discrepant signature must be rejected, there is no application for transfer and therefore the original owner who is the plaintiff is declared so. Issue of such ownership is also given support under section 10 of the Law of Contract Act, Cap. 345 which clearly stipulates that an agreement without consent is void ab initio. So, there is no valid sale agreement between the plaintiff and the 1st defendant and therefore the 1st defendant had no good title to pass on to the 2nd Defendant. The sale between the first defendant and the second defendant is hereby nullified for being void ab initialfor want of consent. Judgment is accordingly entered in favour of the plaintiff to the extent stated above with costs. 16