mohamed issa makongoro vs gilbert zebedayo mrema 2018 tzhclandd 32 22 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO 107 OF 2015 MOHAMED ISSA MAKONGORO............................PLAINTIFF VERSUS GILBERT ZEBADAYO MREMA..................................DEFENDANT JUDGMENT (EX PARTED. 6/11/2017 & 22/2/2018 MZUNA. J.: Mohamed Issa Makongoro (PW1) is the biological son of Issa Mohamec Makongoro @ Gibwege (PW2) and Jamilah Berthy Makongoro (PW3). According to the evidence of PW3 upon PW1 graduating from abroad it was found ideal for PW1 to have a working capital so as to operate his business. Indeed, a Bank loan of Tshs. 70, 000,000/- was secured by a security of a house on Plot No. 89 Block B, Makuyuni Street Mikocheni B, Kinondoni District, Dar es Salaam registered in the name of PW2 as evidenced by the title deed (Exhibit PI). By then PW2 was in Ghana. Before the said loan could be fully paid, PW1 entered into another agreement whereby he secured a loan from the defendant of Tshs 300,000,000/-. There was no formal agreement made. The title deed was only presented at the Bank for safe keeping. It was anticipated that in case there was need for signing, then his father could go there to do so. When PW1 wanted to refund the said money to the defendant, he evaded him and then told him that his intention was to purchase the said house something which PW1 said it was impossible. He never accorded him chance to have access to the documents. His parents strongly opposed to that move as the house was worth about 1 billion. The defendant started to harass their tenants. The family was harassed and then chased away. The plaintiff managed to get the purported sale agreement (exhibit P2) which he strongly disputes. It shows the house was sold at Tshs. 604,800,000/-. The plaintiff who was defended by Mr. Mdope prays for the declaration that the alleged sale is unlawful it should be nullified and the house be restored back to the family after payment of the advanced loan money. Payment of compensation of Tshs. 1 billion plus costs of the suit. Hearing of the matter proceeded ex parte after PW1 had testified because both the defendant and his advocate Mr. Mashauri Charles defaulted to appear. However, he was allowed to make his written submission just like the learned counsel for the plaintiff. This court is now to decide this case based on the following issues:- 1. Who is the rightful owner o f the disputed suit property? 2. Whether there was a valid sale agreement between the plaintiffand the defendant in respect o f the suit property? 3. What reliefs which the parties are entitled thereto? Arguing in support of the three issues, Mr. Kadope the learned counsel submitted that the purported sale bears a forged signature of the plaintiff as can be contradistinguished with exhibit PI. He referred this court to the case of Atlantic Electric Ltd vs. Morogoro Region Co-operative Union (1984) [1994] TLR 12. The learned counsel described the purported sale to be fraud as defined under section 17 (1) (b) and (d) of the Law of Contract Act Cap 352 RE 2002. Further that the purported sale agreement lacks the signature of the attesting advocate for the purchaser unlike at the vendor. More so that it was not registered as required by section 8 (1) 9 (a) and (b) of the Registration of Documents Act, Cap 117 RE 2002. Worse still that it has no stamp duty paid. It was the submission of the learned counsel that since there was no sale then the property never passed to the defendant. The suit property should be declared as that of the plaintiff and he be awarded all the reliefs prayed in the plaint with costs. On his part, Mr. Mashauri Charles, the learned counsel for the defendant submitted that the plaintiff throughout the plaint like paragraphs 3,4 and 13 of the plaint posed as the owner of the suit property. The learned counsel submitted that the court should find that in view of the interpretation section under the land Registration Act, Cap 334 the term owner to be the 3 person under whom the estate is registered. That means the plaintiff was the absolute owner before the said sale under section 33 of the said ACT. As for the second issue, it was his view that the allegation that there was no sale agreement is not true as the signature appearing on the said sale was not disputed. The allegation that there was a loan agreement is only an afterthought. That even the alleged loan agreement had never been annexed to the plaint. That the court should find that the property legally passed to the defendant and the suit should be dismissed with costs. This court has the following to say. It is not disputed that the said house and plot is registered in the name of PW2. So PW2 is the registered owner of the interest or estate as clearly stated under section 2 of the Land Registration Act, Cap 334 RE 2002. It reads:- "'Owner'means, in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered." If as the plaint suggest the plaintiff posed as the owner, then that is purely a misrepresentation. No agreement could legally pass title. Similarly, the defendant never exercised due diligence before the alleged sale could materialize. There is a long established principle that "caveat emptor" which means "Buyer beware". That being the case, the said agreement was voidab initio as provided for under section 10 of the Law of Contract Act, Cap 345 RE 2002. It reads: 4 "All agreements are contracts if they are made by the free consent o f parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." (Emphasis mine). The purported sale was made with son of PW2 who never owned the house. The said suit property a house on Plot No. 89 Block B, Makuyuni Street Mikocheni B, Kinondoni District, Dar es Salaam belongs to PW2 Mohamed Makongoro Issa. Such agreement being void, the property never passed. If the defendant has anything to claim against the plaintiff be Tshs 300,000,000/- as alleged by the plaintiff or any other sum, should file a suit against him in person. It is hereby found that the suit property belongs to PW2. There was no valid sale between the plaintiff and the defendant in respect of the suit property. The family of PW2 has the absolute legal right to own and stay therein. This order is with immediate effect. The suit is allowed to the extent stated above. The claim for damages has not been substantiated because even the plaintiff has a blaming hand. Each party to bear its own costs. 5 IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO 107 OF 2015 MOHAMED ISSA MAKONGORO............................PLAINTIFF VERSUS GILBERT ZEBADAYO MREMA..................................DEFENDANT JUDGMENT (EX PARTED. 6/11/2017 & 22/2/2018 MZUNA. J.: Mohamed Issa Makongoro (PW1) is the biological son of Issa Mohamed Makongoro @ Gibwege (PW2) and Jamilah Berthy Makongoro (PW3). According to the evidence of PW3 upon PW1 graduating from abroad it was found ideal for PW1 to have a working capital so as to operate his business. Indeed, a Bank loan of Tshs. 70, 000,000/- was secured by a security of a house on Plot No. 89 Block B, Makuyuni Street Mikocheni B, Kinondoni District, Dar es Salaam registered in the name of PW2 as evidenced by the title deed (Exhibit PI). By then PW2 was in Ghana. Before the said loan could be fully paid, PW1 entered into another agreement whereby he secured a loan from the defendant of Tshs 300,000,000/-. There was no formal agreement made. The title deed was only presented at the Bank for safe keeping. It was anticipated that in case there was need for signing, then his father could go there to do so. When PW1 wanted to refund the said money to the defendant, he evaded him and then told him that his intention was to purchase the said house something which PW1 said it was impossible. He never accorded him chance to have access to the documents. His parents strongly opposed to that move as the house was worth about 1 billion. The defendant started to harass their tenants. The family was harassed and then chased away. The plaintiff managed to get the purported sale agreement (exhibit P2) which he strongly disputes. It shows the house was sold at Tshs. 604,800,000/-. The plaintiff who was defended by Mr. Mdope prays for the declaration that the alleged sale is unlawful it should be nullified and the house be restored back to the family after payment of the advanced loan money. Payment of compensation of Tshs. 1 billion plus costs of the suit. Hearing of the matter proceeded ex parte after PW1 had testified because both the defendant and his advocate Mr. Mashauri Charles defaulted to appear. However, he was allowed to make his written submission just like the learned counsel for the plaintiff. This court is now to decide this case based on the following issues:- 1. Who is the rightful owner o f the disputed suit property? 2. Whether there was a valid sale agreement between the plaintiffand the defendant in respect o f the suit property? 3. What reliefs which the parties are entitled thereto? Arguing in support of the three issues, Mr. Kadope the learned counsel submitted that the purported sale bears a forged signature of the plaintiff as can be contradistinguished with exhibit PI. He referred this court to the case of Atlantic Electric Ltd vs. Morogoro Region Co-operative Union (1984) [1994] TLR 12. The learned counsel described the purported sale to be fraud as defined under section 17 (1) (b) and (d) of the Law of Contract Act Cap 352 RE 2002. Further that the purported sale agreement lacks the signature of the attesting advocate for the purchaser unlike at the vendor. More so that it was not registered as required by section 8 (1) 9 (a) and (b) of the Registration of Documents Act, Cap 117 RE 2002. Worse still that it has no stamp duty paid. It was the submission of the learned counsel that since there was no sale then the property never passed to the defendant. The suit property should be declared as that of the plaintiff and he be awarded all the reliefs prayed in the plaint with costs. On his part, Mr. Mashauri Charles, the learned counsel for the defendant submitted that the plaintiff throughout the plaint like paragraphs 3,4 and 13 of the plaint posed as the owner of the suit property. The learned counsel submitted that the court should find that in view of the interpretation section under the land Registration Act, Cap 334 the term owner to be the 3 person under whom the estate is registered. That means the plaintiff was the absolute owner before the said sale under section 33 of the said ACT. As for the second issue, it was his view that the allegation that there was no sale agreement is not true as the signature appearing on the said sale was not disputed. The allegation that there was a loan agreement is only an afterthought. That even the alleged loan agreement had never been annexed to the plaint. That the court should find that the property legally passed to the defendant and the suit should be dismissed with costs. This court has the following to say. It is not disputed that the said house and plot is registered in the name of PW2. So PW2 is the registered owner of the interest or estate as clearly stated under section 2 of the Land Registration Act, Cap 334 RE 2002. It reads:- "'Owner'means, in relation to any estate or interest, the person for the time being in whose name that estate or interest is registered." If as the plaint suggest the plaintiff posed as the owner, then that is purely a misrepresentation. No agreement could legally pass title. Similarly, the defendant never exercised due diligence before the alleged sale could materialize. There is a long established principle that "caveat emptor" which means "Buyer beware". That being the case, the said agreement was voidab initio as provided for under section 10 of the Law of Contract Act, Cap 345 RE 2002. It reads: 4 "All agreements are contracts if they are made by the free consent o f parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." (Emphasis mine). The purported sale was made with son of PW2 who never owned the house. The said suit property a house on Plot No. 89 Block B, Makuyuni Street Mikocheni B, Kinondoni District, Dar es Salaam belongs to PW2 Mohamed Makongoro Issa. Such agreement being void, the property never passed. If the defendant has anything to claim against the plaintiff be Tshs 300,000,000/- as alleged by the plaintiff or any other sum, should file a suit against him in person. It is hereby found that the suit property belongs to PW2. There was no valid sale between the plaintiff and the defendant in respect of the suit property. The family of PW2 has the absolute legal right to own and stay therein. This order is with immediate effect. The suit is allowed to the extent stated above. The claim for damages has not been substantiated because even the plaintiff has a blaming hand. Each party to bear its own costs. 5