MLANDIZI LIMITED SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 326 OF 2023 MLANDIZI FARMS LIMITED................................. PLAINTIFF VERSUS RAJESH WILLIAM..................... 1st DEFENDANT NIKOLAOUS DIAMANDIS DRIZOS..................................................2ND DEFENDANT JUDGMENT 4th to 10th December, 2024 E.B. LUVANDA, J The Plaintiff named above, is suing the First and Second Defendant over a claim of ownership of Farm No. 735 measuring 248 acres registered under the certificate of title No. 39239 located at Disunyara, Kibaha District. In reflection, when issues were framed, and as it transpired in the trial, the disputed farm was scaled to only forty-nine acres, which the Second Defendant is alleging to have been allotted to him vide a deed of settlement dated 10/05/2016 (exhibit D3) in Land Case No. 86 of 2015 between the Second Defendant along Two Others suing Otto Mark Mosha (who herein testified as PW1 and bragged being a director and shareholder of Mlandizi Farms Limited, Plaintiff herein) by virtue of Memorandum and Articles of Association, exhibit P8. The Second Defendant who also claimed to be a director and shareholder of Mlandizi Farms Limited, accused PW1 for ousting the Second Defendant from the company and pushing i out from the suit farm, while the Second Defendant being the one who played vital role in negotiation with his fellow Greek one Emmanuel Marangakis former owner of the suit farm who disposed it to the Plaintiff, as per sale agreement dated 13/12/2010 exhibit Pl; application for approval of disposition Land Form No. 30 exhibit P2; notification for approval of disposition Land Form No. 29 exhibit P3; certificate of title to right of occupancy dated 1/10/1950 along entries in the register title No. 39239 indicating transfer to the plaintiff on 20/12/2010, exhibit P5. According to the lines of questions put to the Second Defendant (who defended as DW1) by the learned Advocates for the Plaintiff, was that DW1 by virtue of being a foreigner cannot own land in this Country. In response, DW1 asserted that indeed he is aware of the law of this Country that a foreigner cannot own land, but defended that it is a reason he partnered with PW1 who later pushed DW1 out of the farm along being kicked out of the company by backdating annual returns submitted to BRELA. DW1 further stated that it is PW1 who handed over to him (DW1) the suit land which was later disposed by the Second Defendant to the First Defendant. In view of that, issues framed for determination: One, whether the Second Defendant was the Director of the Plaintiff; Two, whether the Plaintiff passed 2 ownership of 49 acres of land to the Second Defendant; Three, what reliefs parties are entitled to. Issue number one, DW1 in his testimony asserted that he is a director and shareholder of the Plaintiff, allege possess 250 fully paid-up shares in the company. However, on cross examination by Mr. Jerome Msemwa learned Senior Counsel for Plaintiff, DW1 readily concede that he don't have a proof for being a director and shareholder of the Plaintiff and he don't have a share certificate. Meanwhile, Bethod Reuben Bangahanoze (PW2) who is a Principal Officer from BRELA, asserted that in the records of BRELA he come across Form No. 55(a) dated 17/7/2009 having names of shareholders including Otto Mark Mosha (PW1); Nikolaous Diamandis Drizos (DW1); MenelaosTsampos; Philipina Mosha; Salome Masowe; Joseph Otto Mosha and Scholastica Aikarua which was signed by Donald A. Ngogo as Company Secretary. According to PW1, the said Form No. 55(a) has never been registered by BRELA, for reason that it contained anomality's, on that it was incorrect, it contained error on each share paid as a Form require to indicate nominal shares, and that Donald Ngogo who signed as Company Secretary is not recognized by BRELA. It is in record that Form No. 55(a) was pleaded in documents to be relied upon by the Defendants, and was subject for re-examination to PW2 by Mr. Paul Mtui learned Counsel for Plaintiff, but was not tendered in evidence. In exhibit P8, at page thirteen where names 3 of directors are mentioned, the name of the Second Defendant is missing. In so far DW1 have no proof of his membership, shareholding and director to the Plaintiff, it can be said with certainty that for all purpose and intent, the Second Defendant was not a director and has never been a director for the Plaintiff. A mere fact that the name of the Second Defendant is appearing as a managing director or director of the Plaintiff in letters with headed paper of the Plaintiff exhibit D2, D4 and D5, is immaterial. Regard being, appointment of one as director of the company must be defined and named or reflected in the MEMART which it set out regulations of the internal management of the company. Also, a fact that DW1 owned shares with the Plaintiff ought to be proved by presentation or submission of a share certificate, which DW1 conceded that he don't possess. In A Text Book of Company Law in Kenya, by Ashiq Hussain, at page 63, the author commented that, 'Every sealed certificate issued by the company is, in the first instance prima facie evidence of the title of the person named therein with regard to the shares concerned. According to Lord Carins, a Share Certificate is merely solemn affirmation under the seal of the company that a certain amount of shares or stock stands in the name of the individual mentioned in the certificate' Therefore, issue number one is ruled in the negative, that the Second Defendant was not the Director for the Plaintiff. 4 Issue number two, whether the Plaintiff passed ownership of 49 acres of land to the Second Defendant. As prefaced above, DW1 asserted that a farm of forty- nine acres, was allotted to him by PW1 vide a deed of settlement dated 10/05/2016 (exhibit D3). On cross-examination by the learned Senior Counsel for Plaintiff, the argument taken forward to fault exhibit D3 was that it was not registered in the court proceedings. DW1 snarled or rebuke being a fault of assigned attorney one Advocate Mabere Marando. However, there is no question which was shoot to DW1 regarding authenticity or reliability of exhibit D3. It is true that exhibit D3 was not registered in any of the court proceedings referred therein. However, exhibit D3 at a preamble prefaced it being a settlement out of court, I quote its wording, "WHEREAS the plaintiff and the defendant (hereinafter to be referred as the parties) have agreed to settle this matter out of court under the terms hereunder' Among the eight clauses contained therein for the terms of exhibit D3, there is no requirement that its validity will depend registration in court proceedings. Nowhere it dictate that it ought to be registered formerly in court to form a decree of any case. Rather at clause 5 in exhibit D3 signifies that upon signing it, the Second Defendant would undertake withdrawing of all pending cases he filed against PW1 be it criminal or civil. I reproduce clause 5, 5 'That the Plaintiff upon signing this Deed and thereafter having been given the agreed 30 acres ofland, undertakes to withdraw all the cases against the defendant including Civil Case No. 304 of 2015 at Kisutu Resident Magistrate Court, Mise. Land Application No. 36 of 2016 (arising from land case No. 86 of 2015) and Criminal Case No. 18 of2016 and Land Case No. 86 of 2015' To wrap up, I will reproduce a portion of testimony by DW1 when was cross- examined by the learned Senior Counsel for the Plaintiff, 'Exhibit D6, you just continue, the problem is not me that I signed exhibit D6, the problem is your client who gave me this land, but I agree with you a non-citizen cannot own land. I get you that you cannot own land as a foreigner, in my persona! capacity I cannot own, that is why I partnered with someone' Herein I was not invited to determine as to whether a foreigner can own land, rather the issue before me is whether the Plaintiff passed ownership of 49 acres of land to the Second Defendant. Therefore, the argument by the learned Senior Counsel for Plaintiff that the Second Defendant be a non citizen had no right to own land in Tanzania, citing section 20(1), (2) and (3) of the Land Act, Cap 113 R.E. 2019, to my view it was in applicable. Regard being there was no specific issue calling me to make such a determination. For which I rule partly in affirmative that indeed the Plaintiff passed 30 acres of land by operation of exhibit D3. Clause 7, provide, 6 "That after signing this agreement, the parties herein have mutually agreed that they have released each other from any further claim or liability in respect of the disputed land/property that is located at Disunyara Miandizi township' Issue number three, what reliefs parties are entitled to. Having ruled in issue number three above, that 30 acres were conclusively allotted to the Second Defendant by PW1, it follows that the remained land out of 49 acres subject for adjudication herein, revert back to the Plaintiff. Therefore, the Plaintiff is declared lawful owner of the remained 29 acres of land. In view of the situation of this case and facts giving raise to this litigation, it is desirable to order each party to bear own costs. Sequel to that, there will be no further relief to the Plaintiff. The suit is partly granted. Each party will defray its own costs. JODGE 10//12/2O24 7