NA TZHC Dar es Salaam4 2

IN THE HIGH COURT OFTANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 102 OF 1997 MUKESH GAURISHANKER JOSHI. ........... PLAINTIFF

VERSUS 1. GINTEX SUPPLIERS ..................................... FIRST DEFENDANT 2. THE DAR ES SALAAM CITY COMMISSION ..... SECOND DEFENDANT 3. DR. CHARLES TIZEBA .............................. THRID DEFENDANT

RULING KALEGEYA, .J: .J The Defendants have raised preliminary objections in response to a suit filed by the plaintiff who claims. amo!1g others, for. a declaration that he is a registered owner or plot No. 1181/24. situated in the Central area of Dar cs Salaam; Shs.500,000.000/= being an amount he would have received as a loan from Simha Trading Co. Ltd had it not hcl'.n f<n the Defendant's trespass upon his plot, general damages including the pulling Ji,\\'11 and removal of the structure allegedly constructed on his plot. The Plain ti ff is n:prescnted by Mr. Novatus Rweyemamu. Advocate, \Vhile Dr. Mwakyembc, Advocate is fnr the I st Defendant. The 2 nd and 3 rd Defendants are defended by the City solicitor. \Vhile all the Defendants insist that the plaint does not disclose a cause of action. rd ) the 2"J and 3 Defendants add two more prdiminary objections. that is: that there is a 1wn-joindcr of necessary parties: ·rhc Comrnission\:'r for Lands and the National I 1<1usi11g Corporation. and. lastly. that the plaint is not properly before the Court. Parties mack very long submissions but I find it unnecessary to go through them all because after a careful perusal and analysis thereof. including the plaint and the principles of law im·oh-cd. I am con\'inced that the contro, crsy is disposable by considering only one ground of the preliminary objections. This is ,,·hcthcr the

pbint discloses a cause of action. ' r,f 2 All parties are agreed, and that is the true position of the law, that in determining on the existence or otherwise of a cause of action we should not look at anything else except the plaint and its annextures, if any (Joraj Sharif & Sons vs Chotai Fancy Stores (1960) E.A 375; East African Overseas Trading Co. vs Tansukh S. Acharya (I 963) E.A 468). What was pronounced in the latter case tells it all:- "The question whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone, together with anything au ached so as to form part of it. and upon the assumption that any express or implied allegations of/acts in it are true. ·· Now, what does the plaint tell us? Paragraphs I - 6 contain the usual information regarding parties, their addresses and positions. Paragraphs 7 - 15 rumble into the history regarding plot No. I I 8 I /24, on how it changed hands for one reason or another includ.ing being wrongly granted to TRICO Ltd; how the controversy found its way up to the Court of Appeal "vhich finally decreed that it rightly belonged to Plaintiff. rn para. 16 the Plaintiff states that in compliance with the development conditions contained in the Certificate of Occupancy he, "entered into a loan agreement with Messrs Simha frading (DSM) Limited. Dar es Salaam ('"SJMBA TRADING') dated f Oi;, June,

1996. whereunder the sum <~(Jive hundred mi/lion shillings (.rhs.500,000.0001=) 11·011/c.l he mock avoilahle to the PlaintUfforfrnancing the construction. on heha(/r.f the PlaintiJ.l r~/a building on the suit pn:mises. and 11·hereunder the Plaint{ff 1111</ertook. inter cilia. to clean and clear the suit premises for commencement hy contractors appointed hy SJMJJA TRADING olthe construction 1rnrk on or before 31 st August. /996. ·· The following paragraphs 17 - 20 are the centre-piece of the plaintiffs claims as a result. I find it necessary to reproduce them in cxtcnso: 3 "As the Petitioner is a foreigner working with International Development Agency, with good income., persuaded the Respondent to form a real estate ve11ture as property developers. Both the Petitioner and the Respondent ·were in agreement and the Petitioners invested surplus earnings of his sala,y to acquiring real properry. Because of the Project. the Respondent resigned from her H ork as 1 a civil servant and fully concentrated on the business. " (emphasis added) The trial Court, rightly observing that none of the parties had a legal capacity to marry because each had a subsisting monogamous marriage. dismissed the novel prayer for separation. However, regarding property, the trial Court held that it had jurisdiction to decide on division of assets acquired during cohabitation and relied on S. 160 (2) of the

Law· of Marriage Act, No. 5 of 1971. It then proceeded to decide on the property acquired as follows, " 1 gram the petirioner the Mikocheni house as his share(~/ what they acquired rhrough rheir unlcrnfid cohahiration and leave the rest qf rhe properties namely rhe red brick house al !vlhezi near Bagamoyo Road and the t11·0 orher plors as ,veil as 1he villa and the olher plol lo the respondent. This means rhar the respondent will remain with rhe t,vo houses ond four plors. That is the remaining 1wo plots at lvlhezi near Bogamoyo Road 11·here the red hrick house is bui/1. and one r.f the plo1s and the other one at Mhezi \rhere th<! ,·ii/a is huilt. !lit is possih/e_/iJr her to get the plots near the ocean which are said to luJ\'e been encroached hy the Army. she can as well get the plots ... In arriving at the above conclusion the Court belie\'ed Petitioner's version of what transpired: that they cohabited between 1982 - 1992 and his finances were the ones used to acquire the various plots and effect the enumerated de\·elopments thereon. and ' " ,' 4 completely disbelieved Appellant's version that the Petitioner was a mere a boyfriend and used to visit him when her late husband was away on safari and that in effecting the developments she used monies accruing from her various businesses and assistance from her late husband. I will start by saying that the evidence clearly shows

that the parties were a very unique and courageous couple who all along knew that they were engaged in adulterous relationship BUT cared not what the world around, let alone their spouses, thought of them! They knew that their relationship was far from suggesting a presumption of marriage. For that matter there is no way facts of this particular case can bring it under S. I 60 of the Law of Marriage Act, 1971 as purportedly held by the trial Court. In invoking S. 160 the trial Court observed, " I do agree with Mrs Tenga that division of matrimonial assets is considered C{/ier a decree cfseparalion and divorce but I will add rhm there is also another section which empowers the court to consider dividing what was acquired by the parties during their period ol cohabitation. This is section 160(2) r~f the Lcnv <~[Marriage Act, 1971 where a presumption r~fmarriage is raised and disputed. Under such circumstances, the court hasjurisdiction to nwke orders as ii would have been made subsequent to granting <~{divorce or separation." Their respective marriages may have been on rocks and thus sought solace in direct cxrosurc of the adulterous relationship but that i~ the only furthest extent we can go. There an.:- no roots at all for a pn:sumption that they were married and they all along knew of this naked fact. Even the Petitioner's driver (George Walulc) whom he called as witness was

very categorical in not believing that they were married. for. he stated: ' it 5 "I knew that both Peter and Helen were married to someone else". And, in fact he knew the husband, Adam. Obviously then he knew that they could not be married while holding such capacities. S. 160 of the Marriage Act comes into play in cases where parties have capacities to marry and not otherwise. The said S. 160 provides, "160. - (1) Where it is proved that a man and woman have lived together for two years or upwards, in such circumstances as to have acquired the reputation of being husband and w(fe, there shall be a re bullable presumption that they were duly married (2) When a man and a woman have lived together in circumstances which give rise to a presumption provided/or in subsection (1) and such presumption is rebul!ed in any court (~fcompetentjurisdiction. the woman shall be entitled to apply.for maintenance.fi;r herse!/cmd_lor eve,y child of the union on sati.~fying the court that she and the man did infc1ct live together as husband and wife.for two years or more, and the court shall have jurisdiction to make order or orders for maintenance and. upon application made there.fore either by the woman or the man, to grant such other reliefs. including custody qf children, as it has jurisdiction under this Act to make or grant upon or subsequent to the making ofan orderfor the dissolution l?/a

marriage or an order.for separation. as the court may thinkjit, and the provisions <~(this Act which regulate and apply to proceedings.for and orders <1lmaintenance and mher reliefs· shall, in so for as they may he oppf icahh:. regu!ote cmd ap11ly to proceeclings_lnr w1d orders r~lmaintenance and other reliej.~· under this section. .. Would it have been possible for example. if the adulterous relationship had given fonh to a child. for Appellant to have asked for maintenance from Respondent of that issue or of herself? The answer is No. Paternity would have remained with Adam though not the sirer and Appellant would not be heard to ask for maintenance ,, hen she 6 was still legally married to Adam. Otherniise it would be a mockery of justice if the courts were to be used to bless and protect adulterous relationships of the kind and their concomitants. Thus, in order for the Court to have considered acting under S.160(2) there should have been in existence a presumption of marriage, and which was rebutted. On the facts at hand the said presumption could not even be thought of. Who could better be placed to appreciate the non-existence of this presumption than the Petitioner himself who exposed the trutl1 in his own words in the following part of his deposition: 'J knew she was married lo another man ..vho was a teacher. 1 never saw the other man and 1 did not know his name.

Nothing happened to her marriage. She tried to divorce the husband but she.failed Thal is H-lwt she told me." Again, as late as 1988, according to a document he tendered in Court, this petitioner who insists in his deposition to have cohabited with Appellant since 1982 comes out with the truth of the matter as he concedes therein that Appellant is somebody's wife but that they cohabited since 1984. The document, witnessed by one Mr. B. Krogh and Mr. H.S.T. Jensen on 5/4/88. reads in part, "RE: C'OHAB!TANT For later disrnssions with DAN/DA 1 would like to state. that MRS HELLEN A.DAMS has h!.!en my cohabitant in Dar es Salaam since Fehruary, 198.J ". It is not disputed that Appellant's husband was known by the name of Elisha Adam. so ckarly Respondent1'etitioner is referring to Hellen Adam in her capacity as l\1rs Adam. 7 With all the above it is very surprising that the Petitioner had the audacity of Petitioning for separation, and even of telling the trial Court, "I lived with her as my iv[fe "! What a contradiction in terms! There could not be such relationship let alone a presumption of marriage. Also, the Respondent's counsel strenuously tried to impress, in his submission, that they (Appellant and Respondent) lived in a MERETRICIOUS relationship hence Appellant could be termed a "meretricious spouse". With respect, baptising the relationship "meretricious" does not salvage

the situation. This is so because the term describes a relationship between parties who contract a marriage which is void by reason of legal incapacity. In such a situation the parties, unknown to them, enter a relationship which they both believe is legal marriage which however is not because legally they have no capacity to marry. It does not apply to situations where parties are quite aware that they are not married but simply are angaged in an adulterous splee as in the case here. have above demonstrated that the Petitioner/Respondent was all along aware that Appellant was someone's wife and himself someone·s husband vvhich is enough to negate the existence of the alleged relationship. In conclusion therefore. I respectifully hold that the trial Court erred in relying on S. 160 or the Law of M.arriagc Act. Indeed. they may have unlawfully cohabited for sometime and possibly had joint acquisitions but this is f"ar from establishing that there was a presumption of marriage. The Petitioner should have resorted to other legal a\·cnues of realising his interest. if any. instead of invoking the assistance or the Law of rvtarriage Act No. 5/71. His actions were deplorably non-starter in the process as the wrong law was i1wokcd. This disposes the appeal. Howcwr. albeit for clarity I should touch as well on other issues raised by parties. ..... 8 Even if we were to hold that S. 160

of the Law of Marriage Act is applicable (which is not) there are glaring misdirections by the trial Court which could not sustain the findings reached. These are in three segments though interrelated as follows: First, regarding acquisition of the properties the trial Court rated Petitioner very credible and Appellant a lier. However, the said trial Court did not back up this finding with what was stated in Court. To appreciate the trial Court's line of reasoning let me reproduce the relevant excerpts from the judgement as they relate to the parties. For the Petitioner the Court observed, "The issue is whether there is any property to be divided. 1 have expressed the impression created by the petitioner in this case. He is a very trutl?fi,il witness, He stood at the witness hox and told the court that he wanted to establish a real estate in partnership ·with the respondent by exploting the respondent's citizenship because he is a.foreigner. He told the court that he \HIS afinancier o{the various plots and houses 1rl'l1ich ure held either under the name qf'the respondent or other names. His evidence is that the respondent was the one who dealt with the process <d acquiring them either lawfully or unlawfully but whenever the aspect of payment.f(Jr anything came in. he made the payments through the respondent. The petitioner said he wanted to he involved at eve!)' stage ,~l the

acquisition <~fthe plots hut he ,1·as kepi away hy the respondent on the reason of being a.fhreigner. According to the petitioner. the respondent told him that [lhe got inrn!,·ed they 1m11ldthJ)' expensil·eiyfiJr the acquisition cf the plots. :Is he tmstecl the respondent. he heiieved //wt the respondent 11·as telling him the truth and he le.fi the matters to go as the respondent had arranged them as he ,,·as not swpicious and he die/ not anticipate gelling problems. T/11:' petitioner said that the respondent was poor and her employment as merely u Secretary did not earn her much. " On the ot.her. the trial Court had the following regarding Appellant/Respondent: 9 The respondent on the other hand gave evidence that she acquired a lot of properties in the period 1982-1992 through her businesses of khiosks at Mwananyamala A and B. a shamba at Bake ·which is about fifteen acres. a rented house at Mwananyamala as well asfimds realizedfrom a dai,y cattle project. rearing of chicken as well as selling of bricks and flowers. J,Vithfimdsfrom these businesses, she built the house on plot No. 368- .Medium Density Mikocheni. House No. 373 Mwananyamala - zm- surveyed Area, House at Musoma Kiliba as well as acquiring plot No. 216 Afbezi Beach. The re.spondent said that her late husband used to assist her financially as well as supervising her projects and looking.for persons to make the

bricks. The respondent said that the petitioner did not contribute anything towards the construction<~[ the Mikocheni house and that although he used to give him money he onfv gave money.for make llf)S and nothing else and he did so as her hoy.fi·iend. The respondent denied having done any business with Peter. The respondent prayedjiJr the dismissal of the petition and with costs. As stated before the respondent ltas 1101 impressed me as a truthful witness. .I say so because of a question put to her during cross examination to say ltow much did it cost lter to construct the /Hikoche11i house ulllil the stage it had reached at the time the court visited the area. He rep(r was that it fwd costed /,er T.shs.5,000,000/=. As stated the court visited the house at Mikoclteni. It is a two storey b11ildi11g still under construction but by the time the court visited the plot it /,ad costed for much more than shs.5,000,000/=. Ill deed it must /,ave costed more than 100,000,000/= at the time the court visited the house 011 2B1" September 1995. Her aim is to grab all that was acquired duri11g her 1mlau.f11/ col,abitatio11 with the respondent. flldud tlte petitioner /,as prmwl to this court that l,e was a financier of everything. ft will be in the interest o_fjustice .fin· the t\1·0 of them to shore \rhcu they acquired during their 1mlcrnjit! cohabitation.·· 10 From the above, is it not

clear that the Appellant rightly complained in her memo of Appeal that the trial court misdirected itself on the standard of proof in civil cases? It ,viii be noted that the Petitioner stated in his Para. 7 of the Petition that "they.formed a real estate venture as property developers'', and in his deposition he insisted, "We went into a joint venture". Now, the only evidence regarding the alleged Petitioner's financing of the acquisition of the said property and found very credible by the trial Court is contained in thl? foli<)\ving extract of the Petitioner's evidence: "We .vent into a joint venture. H'e bought plots and built houses. f,Ve hough! two plot:'! al /vfbezi. They ivere !\·VO big Plots and they were neighbour plots. I cannot remember the numbers. She paid the cash. We got them straighr.fi·om the surveyor. We constructed a Villa on one of them 200 square metres. The house is completed. 1 don't kno.v lFho is living in the house. The plots ivere bought in two dUferent names. She told me that was the custom here. She used names connected to her. We also bought other three big plots at Mhezijust near the road One side of the plot is at Bagwnoyo Road I do not recall the numbers. 11-'e built a one family house on one plot ond o ser\'lmf quarter on each of the other plots. 7he house was completed many years ago. The respondent is living in that house ll'ith a lk'\I'

hoyji·iend no\\'. That is \Fhat she told me. Then H'e bought tm; other plots ot ,\fbezi Beach. They are 1·e1J· close to the war er. We paid millions for them and that dried our savings. IVe pw a fence and an ashun ho11sl.! .fi.1r each of the plot. ive did not do any other de,·elopment. We also employed askaris. I paid.for the askari. I paid for each de,·elopment. Sire was a Secretary. /-/er salary after tax was T.500/= p.m. at that time. 11 We started a Real Estate and I gave her money to buy a plot at Arusha. I gave her T.shs.5,0001= to buy the plot al Arusha. We also buy another plot at Mikochenifor building a big house. fl was near we were staying. I kept the house when we separated in 1992. It is plot No. 368 Mikocheni. We constructed a 11vo floor house but we did not finish it. Up to now it is not finished. The house is nor occupied. I gave the respondent T.shs.2,0001= to buy other plots but I have not seen them. " (emphasis mine) Can we, on the basis of the above, genuinely and legally say that this petitioner has discharged the burden of proving that he was the financier of the projects? The law is clear: he who alleges must prove. One would have expected this "real £.'!late developer'' to tell the Court the "millions" of shillings he pumped into the project. He did not. The question is, if he did supply the finances as claimed why not disclose the same? Are mere

assertions as portlayed above enough? What yard stick did the trial Court use in upholding these assertions. Yes, the fevv· disclosures of cash advancement to Appellant by Petitioner may have indeed taken place but this is not uncommon between lovers of whatever description. It is the price of such style of life. The Petitioner was supposed to go further than this in order to establish the joint venture activities and financing along that spirit. It is not of less significance that although he gave a string of plots purportedly acquired he could only point out just a few. On the other hand the Appellant stated how she engaged in various businesses . She enumerated them. Of course she had no burden to ofnoad or a wall to dismantle as Petitioner had not erected one. I low then did the trial Court arriYc at a finding contained in the extract quoted in full aho,-c when it concluded. "lier aim is lo gruh all that 11·as acquired during her 1111lm1:(11I cohabitation 1vith the respondent. indeed the Petitioner hus pn),·ed to !his Court that he \\'OS a.financier l f n·erything .. ! . ·• 12 This was a glaring misdirection on a standard of proof required. The burden was shifted to the Appellant which in law was clearly wrong. The Court could only shift the burden after the Petitioner had adduced evidence in support of his assertions. Secondly, the trial Court branded Appellant a lier

because she said that up that time, the construction of the house had cost about 5,000,000/:= when its real cost was over 100 million T.SHS! With greatest respect to the trial Court where did it get the figure of 100 Million? Petitioner never uttered nor suggested it. None of the Petitioner's witnesses hinted at that let alone attaching any value thereto at all. The Court did not portlay itself as a quantity surveyor (and could not) and there was no expert employed or involved to give an estimated cost. I do appreciate that the Court visited the plots and structures but it should have had at its disposal more evidence before concluding that the Mikochcni structure was not worth shs.5,000,000/= as stated by Appellant but over shs. l 00 Million according to its observations. It is not uncommon for quantity surveyms or someone else who didn ·1 effect the construction to arrive at figures ten times over the actual cost used in erecting a structure. This is so because while. in their quantifications they (quantity surveyors and independent valuers) use standard measurements. principles and pricings, in constructions which are privately supervised a lot depends on various factors including the mode of supervision. the type and grade of Engineers and related engaged, source of building materials and the ruling prices of the materials at the time of construction all of ,, hich could

substantially reduce the otherwise potential or normal cost. The trial Court ha:; not bothered to show us how it was guided in arriving at shs.100 Million. It is a wild conclusion which. legally. can't be supported. Thirdly. the trial Court would still have been wrong in apportioning the property. The Petitioner prayed for just half of what he belie\·ed they acquired during their unlawful cohabitation. In his deposition he categorically stated. ··J pray.for !h(' cli\'ision ofr/11! properly in a 5()% share ... .- 13 Shortly thereafter he reiterated this, "She should get a half of what we did together". So, even if we were to uphold the finding that under the law the Court is claded with power to divide the property, the apportionment made by the trial Court would not be supported. The "division", already quoted above was not proved to be half-half of the property acquired. There was no attempt to get the value of all the said property which could have convinced the Court that what was left to the Appellant is half in value of all the property, meaning that it was equivalent to the value of the structure erected on the 'tv1ikocheni plot. Unsupportable approach and principles were employed. There are yet other arguments which attract observations. In the submission the appellant raised an issue of failure by Petitioner to refer the matter to the Conciliation Board. I can only

observe that apart from the fact that it was abandoned before the trial Court; and that it is late in the process to be entertained because any preliminary objection should always be raised at the first opportunity available, and further that it does not form part of the grounds of appeal, that requirement has no ground on which to be pegged because as already held this was not a matrimonial matter legally tackled under the Law of Marriage Act. Also, though not forming part of the ground of appeal. counsel for Appellant submitted that Petitioner as a foreigner could not own land unless armed with permission from Commissioner for Lands. Suffice to obser\'c that this is irrelevant at this stage. /\ foreigner seeks permission to own land once such interest is inclentified by him. That requirement would come in once it is finally decreed that the Mikocheni House should be 0\\-11ed by Petitioner. On the whole therefore l hold that S.160 of the Law of iv1arriagc Act is not applicable in the case at hand and thence the trial Court could not legally di\·idc the 14 property as it did let alone entertain the action in the manner it was presented, and, even if it had such power the petitioner did not discharge the burden as required under the law. This however does not bar petitioner from founding another action on a different branch of the law - i.e. he all along alleged existence of a joint venture between the two, possibly he could prove its existence and breach of the same by the Appellant. Till then however there is nothing which can entitle Petitioner to the property disputed. The appeal stands allo\ved with costs. L.B. KALEGEY A .JUDGE