mildred bennet lymo v abdallah khalid another 2023 tzhclandd 16764 24 april 2023

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO.59 OF 2022 MILDRED BENNET LYMO ....PLAINTIFF

VERSUS

ABDALLAH KHALID DEFENDANT PHARES LAMECK KINYAWA 2^0 DEFENDANT

JUDGMENT Date oflast Order: 28/02/2023 Date ofJudgment: 24/04/2023 T. N. MWENEGOHA,J: The plaintiff filed the present suit praying for Judgement and Decree against the defendants as follows: a. A declaration that the purported sale of landed property situated on plot no. 150 Ada Estate, Kinondoni District in Dar es salaam Region (registered as CT No. 100265) on 25/11/32011 is illegal, null and void; b. Declaration that, the 1^ defendant is a trespasser to the landed property situated on plot no. 150 Ada Estate, Kinondoni District in Dar es salaam Region (registered as CT No. 100265)on 25/11/32011; c. The 1^ defendant be ordered to vacate the property in dispute and yield vacant possession to the Plaintiff; d. The 1^^ defendant be ordered to make good all the alterations made in the property in dispute; 1 e. The defendant be ordered to pay Tshs. 2,000,000/= per month as mesne profit/ rent from when he occupied the premises i.e., 25/11/2011 to the date of vacant possession, f. Costs of the suit be provided for; and g. Any other order and further reliefs this honorable Court may deem just and equitable to grant. The defendants filed a joint Written Statement of Defense and contested the claim. They prayed that the matter be dismissed with costs. During the hearing the plaintiff appeared as the only witness and she tendered four (4) exhibits including Marriage Certificate (Exhibit

PI), two copies of Sale Agreement(Exhibit P2 and Exhibit P4) and a copy of Certified Title Deed (Exhibit. P3). In countering the claims, the defendant had two (2) witnesses where the defendant testified as DWl and Thadeo Teddy Kalua testified as second defendant DW2. They both did not tender any exhibits. Both parties were represented by Advocates, where the plaintiff was represented by Jamhuri Johnson, Advocate together with Valeri Luanda, Advocate while the defendants were represented by Lawi Nelson, Advocate. After closure of hearing of the case, parties were ailowed to file their final submissions which were filed as scheduled. During the final Pre -trial Conference parties agreed to have three issues for the determination, being: - L Whether the agreement between the and Defendant was sale agreement or joint venture agreement; 2. Whether the transaction between the and 2P^ Defendant was valid; 3. To whatreliefs are parties entitled to. In submission of her case, PWl, Mildred Bennet Lyimo testified that she married the 2"^ defendant on 26/06/1982 and they have two issues and one out of their wedlock. She testified that in 1982 they were living at a government house at Ada Estate and in 2002 they were invited to buy the same and successfully bought it for Tshs. 18,000,000/=. She tendered the marriage certificate and Sale Agreement which was admitted as Exhibit PI and P2

consecutively. She testified that she witnessed the Sale Agreement of the said house and they wrote the names of their two children as their beneficiaries. Thereafter, they were issued with Certificate of Title in the name of the 2"^ defendant. She tendered a copy which was admitted as Exhibit P3. She added that they divided their plot into two parts whereby the first part was the one with the main house where they lived thereon and on the second part, they built another house for purpose of leasing the same. That in 2010 they moved to Mikocheni and leased the remaining house. She testified that after a long while had passed without her seeing lease agreements of the said property she decided to ask her husband on the status of the leases and he informed her that the property is under renovation. She informed this Court that she doubted that response as she had passed by the property and it looked like it was inhabited. It was her testimony that three years ago she started making follow up where she went by the property but found the place vacant. That, there was a guard who informed her that there was no one who was living at the premises for quite a while. It was her contention that the place looked abandoned hence made her worry and decided to investigate further. She testified that upon searching their home,she came across a Sale Agreement entered between the defendant and

the 2"^ defendant. She prayed to tender a copy of Sale Agreement as the defendant had the original copy and the counsel for defendants prayed to tender the original one during the defense case. As the prayer of the plaintiff was not objected, the copy was admitted as Exhibit P4. It was the plaintiff's testimony that the Sale Agreement dated 25/11/2011 between the two defendants was for Plot no. 150 with Title no. 100265 situated at Ada Estate for USD 325,000. That, the payment was to be done in three instalments, where the first instalment of USD 25,000 was to be done upon signing the Agreement, the second Instalment of USD 135, 000 to be paid after vendor has subdivided the plot and handed over a copy of Title Deed and the third instalment of USD 175,000 was to be paid during handling over of the documents relating to the purchase including the Title Deed. She testified that as the wife she was not involved in the sale of their property. She affirmed that the transaction was not a joint venture matter. She then prayed for her prayer in the plaint be granted. During cross examination she testified that the suit plot is theirs. She testified that she has her own houses in her name and another one in the name of their children. She testified that her husband also has his houses/properties however, she does not know all of them or how they were acquired such as the one at

Saiasala. On part of the defendants, DWl, Farres Lameck Kinyagwa testified that he intended to sell his plot but the sell was not successful. That they agreed on the purchase price of USD 320,000 with his lessee where he received the agreed amount and used the said money to buy one plot at Salasala, three at Mbweni and one plot at Kigamboni. He testified further that upon the failure of the sale it was agreed that it was not necessary for him to refund the buyer but they could work together where they agreed on building apartments. That he informed his wife that the suit plot was not sold but there is plans for big project underway. He testified that he did not notify his wife over the sell because it is his property. That both buy their properties without invoiving the other, that she bought her properties and he bought his without involving each other. He testified that original Title deed are in the hand of the defendant. He prayed the matter be dismissed. During cross examination he testified that the sale of the suit plot was unsuccessful due to precondition attached in the suit land that it cannot be sold until after expiry of 25 years. He also testified that he did not bring in the joint venture agreement because the agreement was orally made and was not reduced to writing. He stated that he was in good relationship with the defendant and they trusted each other hence

they saw no need for documentation of the joint venture. DW2, Thadeo Teddy Kalua, testified that he is advocate and he knows the defendant because they went to college together and is his client. He told the Court that the 2"^ defendant went to his office wanting to sell his property. That, he inquired from the 2"^ defendant as to whether the property is matrimonial property and he was answered in the negative. He claimed further that he asked about the 2""^ defendant's wife's consent and the defendant told him that each one of them manage their own properties hence no need to involve his wife. It was the testimony of DW2 that the suit property contains two hosues, one being the main house and the other a servant quarter. That, the defendant bought servant quarter and not the whole property. That upon approaching the Ministry for Land so as to obtain a subtitle of the said plot, they learned that the same is not possible as the suit land was not supposed to be sold until after expiry of 25 years. He informed the Court that by that time, they had already made payment to the 2"^ defendant and he had already spent the money buying property for his child who was born out of wedlock. That, he then advised the parties to carry out a joint venture business of building apartments for lease. The proposal was for both parties to fund the venture. That, this project did not materialize

due to the 2"*^ defendant's failure to contribute his share to the business as agreed. They, then agreed that the Title Deed should remain in the hands of the defendant. During cross examination DW2 testified that he did not talk to the plaintiff about the sale. He further stated that the defendants knew each other before and he was acting as an advocate for both parties during the sale. He confirmed that his client, the defendant now owns the servant quarter under the agreement he had entered with 2"^ defendant since 2012. He also admitted to the fact that his contract does not disclose that the 1^^ defendant bought the servant quarter or a subdivision of a property and that there is no written agreement on the said joint venture. He alleged that they had prepared the document but they did not register it nor tender the same in Court. After closure of both parties case now it is my turn to determine the issue raised during the final pretrial conference. On addressing the first issue Whether the agreement between the and Z'^ Defendant was Sale Agreement or Joint Venture agreement^ I want to start by highlighting that pleadings are the foundation of a case and parties are expected to present their case within the scope of their pleadings. Anything presented out of that scope will be seen to be an afterthought. That being the fact my analysis on this issue shall begin from the

pleadings submitted by the parties. Starting with paragraph 9 of the plaint, the plaintiff alleged to have discovered the Sale Agreement which shows that the 2"^ defendant sold their house to the defendant. To the defendants' joint written statement of defense, they do not dispute on the existence of the Sale Agreement but they rather centered around the fact that the said Sale Agreement could not be executed and rather the and 2"^^ defendants chose to execute Joint Venture Agreement instead of implementing Sale Agreement. During the hearing PWl testified that she found the Sale Agreement in her home and that she was not aware of the Joint Venture Agreement nor came across a document to the effect. On the other hand, the two defendants' witnesses testified that the Sale Agreement was entered between the defendants although it failed in the process of transfer where it was discovered that the said house was not supposed to be sold until the expiry of twenty-five years. Therefore, after learning that they resorted to enter into Joint Venture Agreement. The said Joint Venture Agreement was not tendered before this Court. DWl testified that the Joint Venture Agreement was oral. That parties are good friends and trust each other, they never saw the need to write one, hence he had nothing to tender. Meanwhile DW2 testified that the Joint Venture Agreement was drafted but never signed

that is why they could not be tendered to Court. First off, the testimonies of the defendants are contradicting each other. Moreover, all of these were not expressed nor pleaded in their Written Statement of Defense. In the case of YARA Tanzania Limited vs. Charles Aioyce Msemwa and 2others; Commercial case No5 of 2015 High Court Commercial Division DSM (unreported), where it was held that "7^/5 a cardinal principle ofiaw ofcivii procedure founded upon prudence that parties are bound by their pleadings. That is, it is settled iaw that parties are bound by their pleadings and that no party is allowed to present a case contrary to its pleadings'". From the position above the fact that the issue that the house was not for sale for 25 years was supposed to be pleaded in the pleading before being brought during the hearing, otherwise It was an afterthought. Furthermore, no evidence has been tendered to Court at all to evidence the defendants' claims. The said documents showing that the Ministry of Land had refused transfer of the suit land were neither tendered nor pleaded in the pleading. Thus, the same cannot also be taken onboard. Also, as pointed above there Is no evidence of the said Joint Venture Agreement. However, above all, all parties have given their testimony regarding sale of the house and the presence of Sale Agreement. They have all admitted that there was a sale of

disputed property. Taking note on the above highlights, and the testimonies of both DWl and DW2 and the pleading on paragraph 5 of their joint WSD to the effect that they entered a Sale Agreement and payment was made to the effect; and to the fact no Joint Venture Agreement was tendered to Court but rather submission of contradicting statements of the same, this Court hold that there was Sale Agreement between the defendants. Now I will proceed to discuss on the second issue as whether the transaction between the and 2"^ defendant was valid. The Sale Agreement between the and the 2"^ defendant was challenged by the plaintiff who was the only witness (PWl) that she was not involved. This was affirmed by the defendants who argued that she was not involved as the suit property is not hers. Whereas, it was the testimony of the plaintiff that they bought the house in 2002 and she witnessed the sale transaction (Exhibit P2) of the same house where her name appeared as a witness and they registered their two children as beneficiaries to it. As for the defendants, DWl admitted to intend to sell the said house however It was his story that the sale could not be completed due to certain conditions. It was revealed that when he was asked about the sale of the suit property, he told his wife that he did not sell the same but he had big plans for the property in process. It is his stand

that the property is his and does not need to involve his wife as she has her own properties. DW2, backed up this testimony and added that as a lawyer he asked the 2"^ defendant about the consent of the plaintiff and he was informed that the property was not a matrimonial property, hence no need of consent of spouse. Paragraph 4 of the joint Written Statement of Defense read as hereunder: The Defendants state further that, the said safe agreement was not Implemented because the and 2P^ Defendant chose to execute Joint Venture agreementinstead of impiementing Saie Agreement The executed and impiemented the saidjoint Venture agreementisfor iife time reiationship hence no piaintifTs (spouse) consent was required in order to impiement the executed Joint Venture." Reading between the lines on their defense the defendant seems to confirm that plaintiff's consent will be necessary in case of Sale Agreement and but not in Joint Venture Agreement as ownership will still remain the same. They testified that there is no need of spouse consent in Joint Venture Agreement. Moreover, looking at both parties'testimony it is clear that both plaintiff and the 2"^ defendant possess independent properties. It was both their testimonies that they do not involve each other on the acquisitions of their private properties or even its disposition. During hearing, the plaintiff acknowledged to have

properties in her name and properties that she had given to their children. Likewise, the 2""^ defendant testified to have his own properties which the wife was not involved. Hence, it has been their practice not to involve each other in acquiring of their so-calied private properties. That, they only Involve each other in acquisition and disposition of properties that is theirs, such as their house in Mikocheni where both admitted that they built together and is where they moved to after living in a suit property. From their testimony, it is clear that the properties that are sole owned by each of them remain a confidant matter and those that they co-own become a concern for both of them. This Is reflected in the property in dispute which as testified upon, was acquired it in 2002 whereby the Sale Agreement was signed by both of them and they further listed the name of their children as their heirs. Moreover, they were living on the suit property until much later 10 when they moved to their new house. It was the testimony of the plaintiff that they acquired a loan so as to develop the property for the purpose of renting. That, after they had moved to Mikocheni the two houses situated in the plot were both rented out. At this juncture it is noted that these facts evidence the fact that they intended for the ownership of the house to be for both of them, the plaintiff and the

2"^ defendant. Hence, the house is theirs. I have also gone through the Sale Agreement(Exhibit P4) which was entered by the and 2"^ defendant. It indicated that the defendant bought the property described as Plot No, 150 with Title No. 100265 situated at Ada Estate, Kinondoni District, Dar es Salaam. In condition No, 1 (2) of Exhibit P4 is that the vendor to subdivide the plot and hand over the copy of Title Deed to the purchaser within two months. It is noted that the Sale Agreement is not clear on how the land is subdivided and which part of the land has been bought. DW2 when cross examined testified that the contract is not specific if the 1®^ defendant is buying servant quarter or the main house. Therefore, their contract for land sale was not specific on which part of the subject matter was bought. I further note that Sale Agreement was signed by the 1^ defendant and 2"^ defendant in the presence DW2. The said Sale Agreement was not witnessed by any other witness on either side. DW2 who testified to be advocate of the 1^*^ defendant also testified to have been a witness of the Sale Agreement for both parties. The question that arises is how could someone enter into Sale Agreement of a property worth USD 320,000 without involving any witnesses? These questions raise an alarm on motive of the parties, and questions as to the validity of such sale. 11 In addition to that the

defendants' witness testified that the intended sale failed after being toid at the Ministry of Land that the suit property cannot be soid until after expiry of 25 years. This means from the beginning both parties in the said sale contract were mistaken on this fact. Section 20 of the Law of Contract Act, cap 345 R. E. 2019 provides that; ''Where both the parties to an agreement are under a mistake as to a matter of fact essentiai to the agreement, the agreementis void." It is noted that the defendant did npt even tender the Sale Agreement during the hearing despite being asked to produce the same. The records reveals that the plaintiff filed notice to produce and rely on secondary evidence, whereby they required the defendants to tender the original documents which are on their hands and upon their failure then she asked to tender and rely on secondary evidence as per section 68 of Evidence Act, cap 6 R. E.

2019. The records further reveal that during hearing PWl wanted to tender one of the secondary evidence and the Counsei for the defendants admitted to have been served with the notice to produce the documents and prayed to tender the original document during defense case. To the contrary during the defense case, the defendants did not tender any of those documents. This means the defendants failed to comply accordingly. Further, they failed to adduce any evidence to back their defense regarding the sale of the house. I am of the view that the Sale Agreement entered by the parties is invalid as per analysis above. Having analyzed that the 2"^ issued is answered that the transaction between the 1^ and 2"^ Defendant was not valid, I proceed to address the last issue. 12 to whatreliefs are parties entitied to. This Court finds that the plaintiff proved her case on balance of probability and it is ordered that; - i. The purported sale of landed property situates on plot no. 150 Ada Estate, Kinondoni District in Dar es salaam Region (registered as CT No. 100265)on 25/11/32011 is declared to be illegal, null and void; II. The 1^^ defendant is declared to be trespasser to the landed property situates on plot no. 150 Ada Estate, Kinondoni District in Dar es Salaam Region (registered as CT No. 100265); III. The 1^ defendant is ordered to vacate the property in dispute and yield vacant

possession to the Plaintiff; IV. The 1®* defendant is ordered to make good all the alterations made in the property in dispute; V. The 1®^ defendant is ordered to pay his rental arrears that are due for when he was living in the premises as a tenant (valued at Tshs. 2,000,000/= per month) in accordance to the tenancy agreement; and VI. Costs of the suit be provided for. It is so ordered. T frMWENEGOHA^^om?L^

JUDGE 24/04/2023 13