murtaza alihussein dewji vs eugenia rutatora and others 2020 tzhclandd 83 6 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 833 OF 2016 (Original Land Case No. 141 o f 2014) MURTAZA ALIHUSSEIN DEWJI (as a duly constituted attorney of ALIRAZA KASAMALI RAJANI.............................APPLICANT VERSUS EUGENIA RUTATORA...............................................1st RESPONDENT WILSON MUJWAHUZI RUTATORA................. ........... 2nd RESPONDENT THE MUNICIPAL DIRECTOR, KINONDONI MUNICIPAL COUNCIL........................................... 3rd RESPONDENT RAVJI CONSTRUCTION LIMITED........................... 4th RESPONDENT SAMSON J. MWAIPAJA.......... ........................ ...... 5th RESPONDENT i RHINO AUCTION MART AND COURT BROKER.......... 6th RESPONDENT RULING: I. MAIGE, J In these proceedings, the applicant, MR. MURTAZA ALIHUSSEIN DEWJI as an attorney of ALIHUSSEIN DEWJI is calling upon the Court to investigate into the validity and propriety of the eviction of his principal from the suit property in execution of a decree of this Court in Land Case No. 141 of 2012 which was in favour of the first two respondents as against the fourth respondent. The proposition upon which the application is based is i that, the suit property is not liable for attachment because it was soon before the execution registered in the name of the applicant's principal. The application is preferred under order XXI r. 57 (1) of the Civil Procedure Code, R.E., 2019 ("the CPC"). The applicant has prayed for the following two substantive prayers (a) This Honourable Court may be pleased to investigate the claim that the property the subject matter o f the order o f eviction given in respect o f that plot near Bagamoyo Road, Salasala known as Plot No. 105, Mbezi Industrial Area, Dar Es Salaam held under C.T. No. 44512 belongs to the Objector and thus not liable to the said Order; (b) That this Honorable Court may be pleased to order that the eviction order referred to in (a) herein above be vacated. MURTAZA ALIHUSSEIN DEWJI has deposed a seven paragraphs affidavit to substantiate his claim. I will, for clarity, reproduce here below the depositions in the said affidavit; 1. That I am an Attorney for the holder o f the Right o f Occupancy over the property the subject matter o f theses objection proceedings and thus conversant with all the facts I am about to depose to. 2. Further, that I have been pursuing Land Case No. 95 o f 2014 against the 4h Respondent in which lam claiming fora declaration that I am entitled to rescind the sale agreement I entered into on behalf o f my principal with the 4th Respondent under which I had agreed to sell the property the subject matter o f these proceedings to the 4h Respondent. 3. Further, that unknown to me and without the 4hRespondentdisclosing to me or to the court, there were parallel proceedings registered as Land Case No. 141 o f2012 in which the 1st and 2ndRespondents were suing the 4hRespondent for declaration that the suit land belonged to them. 4. Further, that on 13P day o fSeptember, 2016, when my suit, Land Case No. 95 o f 2014 was called for hearing, I learned o f Land Case No. 141 o f 2012 for the first time when the 4h Respondent's Advocate showed the Court a copy o f thejudgment in Land Case No. 141 o f 2012, which had declared the 1st and 2nd Respondents herein the lawful owners o f the land. A also was shown a notice issued by the & Respondent requiring the 4h Respondent to give vacant possession o f the suit property to the 1st and 2ndRespondents. Copies o f the said documents are annexed hereto as annexure "Al"collectively and crave leave to refer them as part o f this Affidavit 5. Further, that the property the subject matter o f the execution proceedings belongs to ALIRAZA KASAMALI RAJANI, my principal which he holds under the said Certificate o f Title No. 44512. A copy o f the said certificate is annexed hereto as Annexure "A2" and I crave leave to refer to it as part o f this Affidavit. 6. Further, that I state that had Mr. Aliraza Kasamali Rajani been impleaded in Land Case No. 141 o f 2012, the court would have certainly made a different finding o f fact and would have discovered that the land is registered land held undergranted rights o f occupancy. 7. Further, that I state that the 1st, 2ndand 4h Respondents concealed a very important material fact as regard the ownership o f the plot and in consequence thereofmade the court issue a decree without hearing the objector". Whereas the first two respondents have deposed a joint counter affidavit to rebut the application, Netho Philemon Mwambalaswa, the employee of the third respondent, has, for and on behalf of the third respondent, deposed an affidavit in opposition. On his part, Karol Joseph Uisso, the principal officer of the fourth respondent, has, for and on behalf of the fourth respondent, filed a counter affidavit, which, despite its name, seems to be in support the application. In the conduct of this matter, the applicant enjoyed the service of Dr. Lamwai, learned advocate. Mr. Mutakyamirwa, learned advocate represented the first two respondents whereas Netho Mwambalaswa, learned solicitor, represented the third respondent. The fourth respondent was represented by Caesar Shayo, learned advocate. The sixth respondent, though did not file any counter affidavit appeared through its director one Kondo. The 5th respondent was absent and did not file any counter affidavit. The matter therefore proceeded in his absence. By the direction of the Court, the application was argued by way of written submissions. They were presented within the allotted time limit. I recommend the counsel for their very useful submissions which have been taken into account in my ruling. In his submissions, Mr. Mtakyamirwa has doubted the locus standi of the applicant to pursue the application for the reason that the power of attorney from which the applicant traces his mandate does only mandate the applicant to execute all documents necessary for transfer of C.T. No. 44512, Plot 105, Mbezi Industrial Area. Commenting on this issue by way of a rejoinder submissions, Mary Masumbuko Lamwai for the applicant submits, with all forces that, the power to ensure proper transfer of the suit property includes commencement of any proceeding with a view to discharging such a duty. I entirely agree with her. As a matter of common sense, the power to dispose of a property is broader enough to include the power to prosecute or defend any proceedings in respect of the property for the purpose of making the disposition possible. It is on that account that I will overrule the preliminary objection. I now proceed with the substance of the application. The application has been preferred under order XII rule 57 of the CPC which provides as follows:- 57-(l) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution o f a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regard the examination o f the claimant or objector and in ail other respects, as if he was a party to the suit: Under the above provision, the Objector can make a claim that the property is not liable for attachment as much as he can object to the attachment of the property. In both cases, the main ground should be that the property is not liable for attachment in execution of the decree in question. Under order XXII rule 58 of the CPC as judicially considered in Nvanza Distributors Co. Ltd vs. Geita General Stores and 5 Others, (1977) LRT NO. 2 parties are in agreement that, for the claim or objection under Order XXI rule 57(1) of the CPC to succeed, "the claimant or objector, has to adduce evidence to show that at the date o f attachment had an interest in, or was possessed o f the property attached" The issue which I have to resolve therefore, is whether the applicant has established by affidavit or otherwise that, at the date of attachment of the property at issue, he had an interest in, or was possessed of the property attached? MissMary Lamwai submits that, the requirement has been fulfilled as on 5thSeptember 2016 when the warrant of attachment was being issued, the applicant's principal was the registered owner of the suit property. She is supported by Mr. Caessar Shayo, learned advocate for the fourth respondent. On their parts, Mutakyamirwa for the first and second respondents and Netho Mwambalaswa, for the third respondent, are of the concurrent contention that, the applicant's principal does not have any interest to serve in the attached property. With respects, I am preparing myself to answer the question negatively. I will rationalize my finding as I go along. The claim by the Objector in this matter is that the attached property was not liable for attachment in execution of the decree in Land Case No. 141 of 2012 because the same belongs to his principal Aliraza Kasamali Rajani. The judgment from which the said decree was extracted, was pronounced by my learned sister Judge Wambura on 31st July 2015 and has been e attached in the affidavit and marked A -l. At page 2 thereof, the property adjud icated upon has been described as "an unsurveyed piece o f land o f 2 V2 acres near Bagamoyo Road, Sa/asa/a". It has been similarly so portrayed in the notice of eviction and eviction order which are also referred in annexure A -l. Conversely, the property the validity of its attachment I am called upon to investigate into, has been described in the chamber summons and affidavit as Plot No. 105, Mbezi Industrial Area, Dar Es Salaam with Certificate of Title No. 44512. The affidavit is absolutely mute if there any nexus between a 2 Vi acres unsurveyed land in the decree under discussion and the above said registered property at Mbezi Industrial Area. In my opinion therefore, in the absence of concrete evidence to link the two properties, this Court cannot have factual basis on which to imply connection between the two properties. It is on that account that I will as hereby do disallow the claim. In the final result, the claim is disallowed and the objection proceedings accordingly dismissed with costs. The aggrieved party is at liberty to pursue an action under order XX laige JUDGE 06/04/2020 Date: 06/04/2020 Coram: Hon. D.P. Ngunyale - DR For the Applicant: Dorine Mugasha for the applicant For the 1st Respondent i r Mr. Tarimo hold brief for Advocate Rutakyamirwa For the 2nd Respondent J For the 3rd Respondent: Julius Jofu for 3rd respondent For the 4th Respondent: Absent For the 5th Respondent: Absent For the 6th Respondent: Present (Officer one Mr. Nkondo) RMA: Bukuku COURT: Ruling delivered in chamber per coram marked on 06/04/2020 D.P. DEPUTY REGISTRAR 06/04/2020 8