molagara nyahonyo another vs tanzania building agency others 2019 tzhc 2029 8 january 2019

IN THE HIGH COURT OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND CASE NO. 9 OF 2016 MOLAGARA NYAHONYO.................... ...1st PLAINTIFF LUCY KIJUMBE.................................. ...2nd PLAINTIFF Versus TANZANIA BUILDING AGENCY........ ,1st DEFENDANT MINISTRY OF WORKS...................... 2nd DEFENDANT HON. ATTORNEY GENERAL.............. 3rd DEFENDANT MOSHI MUNICIPAL COUNCIL.......... 4th DEFENDANT Last Order: 28th Nov, 2018 Date of Judgment: 8th Jan, 2019 JUDGMENT FI KIRIN I, 3. The plaintiffs Molagara Nyahonyo and Lucy Kijumbe, sued the defendants over ownership of suit premises No. 129A and 129B situates along Sokoine Road, Moshi Municipality in Kilimanjaro Region. The plaintiffs were seeking, to be declared lawful owners of the suit premises, for a permanent injunctive Page 1 of 22 order restraining the defendants or their agents, workmen or any other person acting under their instruction to transact or meddle or deal in any manner whatsoever with the suit premises, for general damages at the court discretional rate and the costs of the suit. All the defendants filed written statements of defence disputing the plaintiffs' claims. At the trial, Mr. Duncan Oola learned advocate appeared and led the ■ V i plaintiffs, while the 1st, 2nd, and 3rd defendants were led by Mr. Ignas t Mwinuka learned State Attorney, and Mr. Deodatus Nyoni learned advocate appeared on behalf of the 4th defendant. Prior to commencement of the hearing the following issues were framed and agreed on; i. Whether the sale of the disputed property was complete. ii. Whether the plaintiffs were entitled to occupation of the disputed property as owners. iii. Whether the sale agreement was frustrated. iv. Whether the eviction of the plaintiffs by the defendants was proper. v. To what reliefs are parties entitled to. Page 2 of 22 The plaintiffs in proving their claim had two witnesses, while the 1st, 2nd and 3rd defendants had one witness and the 4th defendant brought three witnesses. The plaintiffs also tendered 8 exhibits as follows; 1. A certified copy of notice of allocation of government quarters Kilimanjaro region dated 24th June 1999 to one Molagara M. Nyahonyo - Exhibit Pi. 2. A letter dated 27th June, 2002 addressed to Mr. Molagara M. Nyahonyo from the TBA Executive Director and an agreement form No. 2815 in respect of house No. 129A - Exhibit P2. 3. A certified copy of the agreement for sale between Molagara M. Nyahonyo and Government of Tanzania acting through the Permanent Secretary, Ministry of Works - P3. 4. Certified copy of a letter with reference GB 228/271/01/172 dated 20th May, 2006 to acknowledge and thank the plaintiff Molagara Nyahonyo for finalizing payment in respect of a house No. 129A along Sokoine road -P 4. 5. A letter dated 02nd February, 2010 with reference No. GA/KLM/201/387/92 addressed to Mr. Molagara M. Nyahonyo Page 3 of 22 stopping him to make any development to house No. 129 A and wait to be refunded his money - P5. 6. Certified copies of a letter dated 27th June 2002 with reference No. CCA: 99/228/0l/KL/037 in respect of sell of the house No. 129B along Sokoine Road and an agreement form No. 2816 in respect of the house No. 129B - P6. 7. A certified copy of the agreement for sale between Lucy Kijumbe and Government of Tanzania acting through the Permanent Secretary, Ministry of Works - P7. 8. A certified copy of a letter dated 20th August, 2002 with reference number CCA: 964/169/-1/97 - P8. The defendants in their regard tendered the following documents; 1. A letter dated 11th September, 1997 from Moshi Municipal Council Director - Di. 2.The letter dated 29th November, 2010 from TBA to Moshi Municipal Council Director - D2. 3. The letter dated 21st June, 2011 from TBA to the Moshi Municipal Director, to Lucy Kijumbe -D 3. Page 4 of 22 defendant, and armed with that mandate in August, 2002 the 1st defendant entered into credit sale agreement of the disputed houses with the plaintiffs with an agreed modality of payments. In 2010 the plaintiffs were informed through a letter that the sale agreements of the houses were revoked because were wrongly sold and that they had to return the sale agreements to the 1st defendant. At that time the 1st plaintiff had already finalized the payment, for the house No. 129A, way back in May 2006 while the 2nd plaintiff was still paying for the house No. 129B. They were also issued with the eviction Notice of 90 (ninety) days to give vacant possession of the suit premises. That followed with the eviction of the plaintiffs from the suit premises. In his evidence the first plaintiff Molagara M. Nyahonyo, who testified as PW1 claimed that he was allocated to buy the suit house by the manager of the Tanzania Building Agency Kilimanjaro and he was to pay Tshs 864,000 as purchase price. The obligation of offsetting the debt, according to the sale agreement, he said, was by paying in monthly equal installments for 8 (eight) years, which he finalized the payment within eight years agreed. After completion and while in the process to secure the title deed through the Municipal office, he was informed that the house was in dispute. Page 6 of 22 defendant, and armed with that mandate in August, 2002 the 1st defendant entered into credit sale agreement of the disputed houses with the plaintiffs with an agreed modality of payments. In 2010 the plaintiffs were informed through a letter that the sale agreements of the houses were revoked because were wrongly sold and that they had to return the sale agreements to the 1st defendant. At that time the 1st plaintiff had already finalized the payment, for the house No. 129A, way back in May 2006 while the 2nd plaintiff was still paying for the house No. 129B. They were also issued with the eviction Notice of 90 (ninety) days to give vacant possession of the suit premises. That followed with the eviction of the plaintiffs from the suit premises. In his evidence the first plaintiff Molagara M. Nyahonyo, who testified as PW1 claimed that he was allocated to buy the suit house by the manager of the Tanzania Building Agency Kilimanjaro and he was to pay Tshs 864,000 as purchase price. The obligation of offsetting the debt, according to the sale agreement, he said, was by paying in monthly equal installments for 8 (eight) years, which he finalized the payment within eight years agreed. After completion and while in the process to secure the title deed through the Municipal office, he was informed that the house was in dispute. Page 6 of 22 PW1 stated further that he had not been refunded the money paid in purchasing the house. He thus prayed the Court to return the house to him, costs for the inconvenience caused when he was evicted from the premises. And compensation for the humiliation caused and a sum of not less than Tshs 200,000,000/= for securing a plot and erecting a house. The 2nd plaintiff, Lucy Kijumbe testified as PW2, stated that the 1st defendant on behalf of the 2nd defendant sold her the suit house number 129 B. After the offer she went to TBA and was told the price of the house was Tshs 864,000/= and she was to pay by installments for ten (10) years deducted from her salary. She was however, evicted from the suit house wrongly by the 4th defendant who claimed ownership of the house. PW2 as well prayed the Court to order the house to be returned to her so as to continue paying for the remaining balance for the purchase of the suit house. The defendants denied all the allegations against them. Testifying as DW1 Jimson Stephano Msemo, the 4th defendant employee stated that the houses numbered as 129A and 129B are located within the compounds of Page 7 of 22 Mwalimu J.K. Nyerere Primary School. The houses are part of J.K. Nyerere primary school and are owned by Moshi Municipal council. DW1 testified further that as per exhibit Di, the 2nd plaintiff was given a residential house by the Moshi Municipal council through a letter dated 11th September, 1997 which proves that the suit premises is the property of Moshi Municipal Council. The premises were sold to the appellants by TBA wrongly pursuant to agreements nos. 2815 and 2816. The agreements had been revoked and refund of the money paid. DW2 Josephine Joseph Massenga, said, she was assigned to evict the plaintiffs from the suit premises as per exhibit D4 dated 30th December, 2011, however they did not comply with the notice and after a year she evicted them pursuant to the orders which were given. DW2 told the Court that the eviction process followed the procedure and the plaintiffs had ample time to vacate. DW3- Pancrasia Mtawali, supported the evidence of DW1 and DW2 that the suit premises belonged to the 4th defendant and that the houses were wrongly sold to the plaintiffs. Page 8 of 22 DW4- Erasmi Tarimo, testified on behalf of the 1st defendant that the TBA as a government agency was tasked with supervising all Central Government buildings. These included supervising, renting out government houses and advising on building of government offices' buildings and residential houses. He said, however in 2002, following the Cabinet Ministers' resolution, which resulted in Circular No. 51, which came out in 2001, in which it was resolute that some of government houses belonging to the Central Government be sold, the agency was then tasked to undertake the exercise The exercise of selling the government houses belonging to the Central Government started in 2002 and the civil servants and those living in those houses benefitted from the policy as most of them became potential buyers. DW4 was optimistic that the exercise was successful but with some challenges. Due to the challenges the government was ordered by the Parliament to appoint a Committee which had to revisit all the sale of the Government houses transactions, to point out all the anomalies in the said sale of Government houses. The Committee came up with suggestion which was tabled before the Parliament, as Government response, that all houses belonging to other institutions e.g. Local government houses - City, Municipal and Town Councils were ordered to Page 9 of 22 be returned. This exercise was carried by denouncing all sale agreements related to the houses falling in the above stated categories. After denouncing the agreements, refund to all those who had paid in order to purchase those houses not subject to sale was to be made. Each was refunded the amount he/she has already paid. It was a national exercise and it involved servants in all parts of Tanzania. DW4 went on stating that in Kilimanjaro Region two civil servants (the plaintiffs) were involved, who their sale agreements were revoked and they were notified vide letters. The plaintiffs were asked to go to TBA office for the refund of their money. Their money, in form of cheques, was with the office ready for picking since 30th June, 2010. However the plaintiffs did not pick the cheques, which by now were stale. The refunded money was what each had paid, which is for Molagara Nyahonyo was Tshs. 864,000/=, and Lucy Kijumbe Tsh. 180,000/=. He further explained that two houses which 1st defendant had arranged a sale agreement with the plaintiffs were not the property of the Central Government but that of the institution and in particular Moshi Municipal Page 10 of 22 Council and were under the J.K. Nyerere Primary and Kibo schools, and thus for that reason the sale agreement was wrong. This was a summary of evidence adduced by both the plaintiffs and the defendants. After the closure of each party's case the counsels for the parties were allowed to file final written submissions. I appreciate the effort made by parties in their written submissions which will be considered in the course of judgment. Mr. Oola learned advocate unfortunately did not address on the issues framed, instead, while making his final submissions, he came up with his own issues. Whereas, the defendants through their counsels submitted that the sale of the disputed properties was not complete. Although there were signed agreements between the plaintiffs and the 1st defendant, the houses were not supposed to be sold as they were within the compound of J.K Nyerere Primary School under the ownership of Moshi Municipal Council who was not party to the said agreement. It was their further submission that the sale could had been complete had the l stdefendant been the owner of the disputed properties. Page 11 of 22 Considering, Mr. Oola's option of conning up with new issues referred as sub-issues, I will only examine them in light of the framed main issues and not otherwise. On the first issue, as to: " whether the sale o f the disputed properties was com plete." After carefully consideration of the evidence adduced by both parties and submissions by the counsels, it is not disputed by both parties that the plaintiffs entered into a sale agreement of the suit premises Nos. 129 A and 129 B. This is also evidenced by exhibit P3 and P7. The agreement was that the purchase price will be deducted from their salaries. Immediately after signing the agreements, the plaintiffs started paying for the houses as agreed. The 1st plaintiff completed paying for the house while the 2nd plaintiff was continuing paying for it. Naturally, after completing the payment the 1st plaintiff started to look for title deed, but before he could get the title deed for the suit house in premise Nos. 129 A, the plaintiffs were served with the letter exhibit P5 instructing them not to develop the suit premises. The reason given was that the houses were wrongly sold to them because the houses belonged to the Moshi Municipal Council. The 1st Page 12 of 22 defendant notified the plaintiffs that their agreements exhibits P2 and P6 respectively had been revoked and they had to return the documents to the 1^defendant's Manager in Kilimanjaro Region. Meanwhile, the plaintiffs were informed that they will be refunded the money paid for the houses. DW4 explained well in his evidence how the suit premises were sold to the plaintiffs and that they discovered that the said houses were within the compounds of J.K Nyerere Primary School which is under the 4th defendant. DW4 also explained how the Government through Parliament took the measures to face the problem and it was ordered for the houses which were sold wrongly to be handed back to the owners, proper authority and those who were affected including the plaintiffs being refunded the purchase price. Through exhibits D2 and D3, the 1st defendant handed over the suit premises to the 4th defendant, the owner. The letters explained in detail that the plaintiffs have been refunded though they rejected the cheques and that their sale agreement No. 2815 and 2816 had been revoked on 29th January, 2010 as evidenced by exhibit D7. In their submission through Mr. Oola, the plaintiffs contested the fact that the suit premises were the property of the J. K. Nyerere school or the 4th Page 13 of 22 defendant. And that had that been the case, then the 4th defendant would have been the allocating committee. Whilst this could have made sense but still I find that sense could not had been absolutely correct. This is based on the evidence adduced and especially that of DW4, that the premises initially belonged to the Central Government, which means at some point the disputed houses changed hands and given to the Moshi Municipal Council. It therefore depends when the plaintiffs were allocated the premises and by who. It is also important to note that allocation of the houses to the plaintiffs by whatever organ did not necessarily give rise to ownership to that allocating organ or institution, let alone the agent. Therefore even if, the 4th defendant allocating committee could not have allocated the houses to the plaintiffs, still it does not mean and/or stop changes which might have occurred later and as evidenced by DW1 and DW4. In addition, no sale of property would be complete if there are encumbrances. In the present case, since the 1st defendant mandate was later constrained not to include houses not owned by the Central Government and since it was categorically proved that the Central Government did not own the properties, it means any sale, by 1st Page 14 of 22 defendant, was outside that sphere. Therefore any sale transaction by the 1st defendant would not go through as the 1st defendant had no good title, to pass over. This fact is evidenced by DW1, DW2, DW3, DW4 and of course PW1 who could not be registered when trying effecting the deed of transfer. As submitted by the defence, the submission I subscribe to, that any complete sale of land must be finalized by a deed of transfer endorsed by the Commissioner of Lands as provided under section 2 of the Land Act, Cap 113 R.E. 2002, as Amended by section 2 of the Land (amendment) Act No. 2 of 2004. Likewise, the case of Abualy Alibhai Azizi v Bhatia Brothers Ltd [2000] T. L.R 288, cited by the defence, illustrated well the position that no sale of landed/ landed property with encumbrances could be complete as no deed of transfer endorsed by the Commissioner for Lands pursuant to section 36 of the Land Act, could be effected. Such sale transaction is by and large not complete. Therefore it is well established through the evidence that the sale of the suit premises was not complete. The 1st defendant was not supposed to sell the suit premises, which the Central Government did not own to the Page 15 of 22 plaintiffs. The sale was done mistakenly as shown in the exhibits above mentioned. On the analysis made I find the first issue being answered in a negative that that the sale of the suit properties was not complete. On the second issue: " W hether the p la in tiffs were entitled to occupation o f the disputed properties as ow ners This issue is in a way related to the first issue. The plaintiffs were not entitled to occupy the disputed houses as owners. Since the 2nd defendant, who mandated the 1st defendant to sell the disputed houses before the sale revocation, did not own the houses, logically they could not have sold of the suit premises. And even if they did, but no proper title could have been passed over from the Central Government and/or 2nd defendant through the 1st defendant to the plaintiffs. Under the circumstances the sale agreement entered was not complete and therefore the plaintiffs could not be owners of the disputed houses. Moreover, the sale agreements were revoked on the fact that the 1st defendant wrongly sold the houses as the houses did not belong to the Central Government but to the 4th defendant. Worsening the situation was the fact that the houses were within the Page 16 of 22 compounds of J.K Nyerere Primary School. Although Mr. Oola has controverted this that the houses were built on unsurveyed area and had no plot or block number until when the 1st plaintiff applied for title deed, and that is when the 4th defendant was issued with one. This assertion though could be correct but did not negate the fact that the 1st defendant had no mandate of selling the houses which did not belong to the Central Government. No good title could have been passed to the plaintiffs under the circumstances. The plaintiffs were in no way therefore entitled to the occupation of the suit properties as owners. The 2nd issue answered in negative. The third issue: " W hether the sale agreem ent was frustrated." It is from the evidence that the sale agreement between the plaintiffs and the 1st defendant was frustrated. A frustrated contract is that subsequent to its formation and without fault of each party is incapable of being performed due to unforeseen event resulting in the obligations of the contract being radically different from those contemplated by the parties to Page 17 of 22 the contract. The Court in several decisions such as Maritime National Fish Ltd. v Ocean Trawlers Ltd which was cited with approval in case of Howard and Company (Africa) Limited v Burton [1964] 1 EA 540 (CAN), and Hirji Murji v Cheong Yui Steamship [1926] J AC 497, concluded that frustration once proved kills the contract. In Howard and Company (Africa) (supra) the court stated that: " When 'frustration in the legal sense occurs, it does not m erely provide one party with a defence in an action brought by the other. It k ills the contract its e lf and discharges both parties au to m a tica lif Alike, "frustration" has been provided under section 56(1) and (2) of the Law of Contract Cap. 345 R.E 2002 (the Law of Contract), that an agreement to do an act which, after the contract is made, becomes impossible, turn the contract "void". In short from both the cited cases and the provision of the law, frustration of contract automatically terminates the contract. By any stretch of imagination the sale agreement between the plaintiffs and the 1st defendant was a contract entered mistakenly. From the evidence it Page 18 of 22 is clear that neither the plaintiffs nor the 1st defendant was properly informed regarding the suit premises despite DW4's evidence that departments were involved and took part in enquries and investigation of the title of and ownership of the said properties prior to the entering into the sale agreement. As submitted by Mr. Oola, by then there was no even a title deed to prove that the 4th defendant was the actual owner. This occurred way later. With that scenario in place it is very possible there were a lot of assumptions going on. All in all it was clear that there was a mistake. Whilst Mr. Oola consider such mistake to be on one side and hence resort to section 22 of the Law of Contract, the defendants considered it to have involved both parties and implored section 20 (1) of the Law of Contract. I consider that the mistake was by both parties. It is indeed correct that the 1st defendant entered into sale agreement which he had no mandate, but the plaintiffs were equally liable. As purchaser's they had a duty to investigate as to whether the property had any encrumbrances. The fact that they were allocated the suit premises which were within the school confines, irrespective of whether the area was surveyed or not, the plaintiffs ought to have investigated, like is expected of what any Page 19 of 22 reasonable person would have do. Failure by the plaintiffs to observe that cannot exonerate them from accountability. This is requirement or condition which has been envisaged under section 34 of the Land Registration Act, Cap. 334 R.E. 2002 and relating to the circumstances of the suit premises it was obvious an inquiry was necessary. The submission by Mr. Oola that the mistake was one sided and that section 20 (1) of the Law of Contract could not apply to the situation is in my view untenable. All the above put together it was clearly established by the defendants' witnesses that the disputed houses belonged to the 4th defendant. The 1st defendant falsely assumed the same to be owned by the Central Government through the 2nd defendant, the Ministry of Works, the assumption which was not correct. The houses were within the school compound, of J.K Nyerere primary school, the school owned by the 4th defendant. After learning of the incident, the steps to inform the plaintiffs were taken and the sale agreement entered between the plaintiffs and 1st defendant revoked. The contract was frustrated but for no fault of the parties as no evidence was led in that regard. Page 20 of 22 The sale agreement was undoubtedly frustrated and there was no party to blame. The fourth issue is whether the eviction o f the p la in tiffs by the defendants was proper Revocation of the sale agreement was automatically to be followed by eviction of the plaintiffs from the suit premises. The plaintiffs were therefore properly evicted from the suit premises. F irst and forem ost, they were informed of the sale agreement which was wrongly entered and this was followed by a revocation letter. Second, the plaintiff were issued with a ninety (90) days notice as per exhibit D4 requiring them to vacate the disputed houses. DW2 was instructed by the 4thdefendant to evict the plaintiffs. The plaintiffs refused to vacate the premises until on 23rd November, 2012 when the 2nd plaintiff was evicted forcefully. The 1st plaintiff vacated after requesting for more time on 23rd November, 2012. All the procedures were properly done before evicting the plaintiffs. On the last issue of the reliefs which the parties are entitled to, since the plaintiffs failed to prove their case on the balance of probabilities against Page 21 of 22 the defendants, all their claims fails. Consequently, the suit is hereby dismissed with costs. It is so ordered. oR l! P.S. FIKIRINI JUDGE 8th JANUARY, 2019