murtaza fakhruddin vs bharat bhagwanji laxman another 2011 tzhc 2158 28 october 2011

IN THE HIGH COURT OF TANZANIA AT TANGA CIVIL CASE NO.4 OF 2002 MURTAZA FAKHRUDDIN ^ AKBERALI as Administrator of j The Late FAKHRUDDIN AKBERALI >:....................PLAINTIFF ABDULHUSSEIN deceased ] VERSUS 1.BHARAT BHAGWANJI LAXMAN [ K .......... ............. DEFENDANTS 2.ROHY B HAG WAN 31 LAXMAN 1 Date of last order: 20.7.2011 Date of Judgm ent: 28.10.2011 JUDGMENT Teemba, 3; The plaintiff, an adm inistrator of the estate of the late FAKHRUDDIN AKBERALI ABDULHUSSEIN instituted this case against the Defendants claiming for trespass on plot No.35 Block '1 measuring 23296 square feet located at Gofu Chini Industrial Area within Tanga Region. He alleges that the property legally belongs to the estate of the Late Fakhrudain Akberali Abdulhussein, the deceased who died in 2001. In the prayer clause/ the plaintiff prayed for judgm ent and decree against the defendants jointly and severally as follows:- a) A declaration that the suit property iegally Delongs to the estate o f 1 the Late Fakhm ddin Akberali and that the defendants are trespassers thereto. b) General damages for trespass. jeceased due to non-operation a r c s r c r r a if :~e furniture ^howroom business. d) j r hs. 19,500,000/= being losses sufferec ~ estate of the j deceased due to non-operation of the wooden crates manufacture I business. e) T sh s.3,900,000/= being loss of mesne profits suffered by the estate of the deceased. Tshs.4,890,000/ = being loss by way of acquiring alternative j accom m odation a t the National Housing Corporation houses. 1 g) Tshs. 1,000,000/= being costs for the dem olition of the well erected in the suit property and other repairs of dam aged parts. h) Costs for the suit including advocate fees. i) Interest upon the decretal sum at the rate of 12.5.per cent from the date o f judgm ent up to the date o f full payment. j) Any other relief which the honourable court shall deem fit to grant. The ^defendants filed their joint written statem ent of defence in which they denied to have trespassed to the suit property and counter-claim ed that vhrough Fak^iruddin Akberali Abdulhussein's m is-representation and/or fraudulent act, their plot No.35A Block 1 Gofu Chini Industrial Area within Tanga Region, was incorporated to the new title Deed No. 15328 issued to tne L 2 ce Faknruddin. In their prayer clause, the defendants prayed against the olam iiff as fellows: a) That, the suit be dism issed with costs. b) That, the court makes a declaratory order that the plot No.35A Block 1 Gofu Chini Industrial Area belongs to the defendants. c) That, the plaintiff be restrained perm anently from interfering with tn e ' defendants' plot No.35A Block .1 Gofu Chini Industrial Area. cl) That:, the plaintiff be ordered to dem olish the building and the wall constructed on the defendants' plot No,35A Block 1 Gofu Chini Industrial Area, at their own expenses. e) The plaintiff be ordered to pay the loss of Tshs.2 0,000,000/- which occurred as a result of theft pursuant to the plaintiff's refusal to ailow the defendants' w atchm en to guard the godown and the goods which were stored inside. f) That, the plaintiff be ordered to pay dam ages suffered by the defendants to the tune of Tshs.2,500,000/= as a result of the plaintiffs encroachm ent, to the defendants' suit plot No.35A Block 1 Gofu Chini Industrial Area. g) That, the plaintiff be ordered to pay mesne profic at the rate of T shs.200,000/= per month from June, 2000 when he started encroaching the area and construct on it, thereby preventing the defendants from renting the godown, to the date they give vacant possession of the area. h) That, the '.plaintiff be ordered to pay the costs of tnis counter-claim including the Advocates instruction fee. i) Any other relief or relief(s) which this court may deem fit and just to grant. In reply to the counter-claim the plaintiff denied the claim s and insisted that the suit property measuring 23296 square feet belongs to the estate of the Late i Fakhrujjdin Akberali Abdulhussein and prayed for the counter-claim to be dismissed with costs. The background of this case is that: In 1965 one Pirthpai Singh Naran Singh was issued Title Deed N o.520 in respect of Plot No.35 Block 1 Gofu Chini Industrial Area, Tanga M unicipality measuring 15080 square feet. In 1998, the Late Pirthpai Singh Naran Singh duly transferred the aforem entioned titled deed to the late Fakhruddin Akberali Abdulhussein, deceased to construct a furniture showroom and establish a wooden crates manufacture unit. In 2000, the late Fakhruddin Akberali Abdulhussein processed a new title deed at Moshi Land R egistrf on account that the title deed No.520 which was transferred to hirVi got\ lost. The new title deed bearing No. 15328 was issued to him. Such new title deed'reflects that the Late Fakhruddin Akberali Abdulhussein is the occupant 'of a piot No,35 Block 1 Gofu Chini Industrial Area within Municipal Council of Tanga and its size is 23296 square feet. The plaintiff, therefore, claim s vigorously that the entire Plot No.35 Block 1 Gofu Chim Industrie!' =-== :: . Road belongs to the estate of the Late Fakhruddin Akbera:: A c a ^ ^ s s e That is, it covers the area which was in front of the plot - facing J a n n - r Rcac. On the other hand, the defendants claim that the front sice of plot No.'35 Block 1 Gofu Chini Industrial area was allocated to them in 1998 vide a letter of offer as plot No.35A Block 1 Gofu Chini Industrial Area. Thai, they ore not trespassers to the Plot in dispute 'as the alleged plot was acquired by the plaintiff through m isrepresentation and/or fraud. \ During trial three witnesses adduced evidence in favour of the plaintiff. These w itnesses are P W .l -^Benjamin Rodjar Mwakigonja [Land Surveyor], PW.2 - Murtaza Fakhruddin Akberali [the plaintiff] and PW.3 - OmDeni Eliad Mnzava [Senior Land officer] and adduced evidence to the effect that the su^t property lawfully belongs to the plaintiff. Only one witness O W .i - Bharat Bhangwaji testified in defending the claim a.nd establishing the counter-ciaim to the effect that defendants are lawful owners of plot No.35A Block 1 Chini Industrial Area, Tanga Municipality. According to the pleadings of the parties and both oral and docum entary evidence established on record, it is noted that the following material fact's a re 1 not in dispute: T hat plot No.35 Block 1 Chini Industrial A^ea, Tanga Municipality was initially owned by Prithpal Singh Naran Singh under the title deed No.520. That, such title deed No.520 reflected an area of 15080 square feet as the actual size of Plot N o.35 Block 1 Chini Industrial Area, Tanga M uncipality. That, the . defendants at all material tim es were trading in the name of Tanga Diesel W orks \ and were operating their business on the same area. That, the late Fakhruddin Akberaii Abdulhussein was claiming rent from the defendant for using the premises. At the sam e time, the following material facts are in dispute: O n e , that the defendants were tenants in the suit property. T w o , that the entire suit property was transferred from the late Prithpai Singh Naran Sing to the Late Fakhruddin Akberali Abdulhussein. T h re e , that plot No.35A Block 1 Gofu Chini Industrial Area, Tanga Municipality does exist and that the plaintiff encroached on plot No.35A Block 1 Gofu Chini ^ * Industrial Area and caused dam aged to the defendants. Fourteen issues w ere agreed upon by the parties and were fully adopted by the court to be resolved in determining the main suit and a cross - suit. These issues were argued at length by both learned counsel, Mr. Akaro and Mr. Sangawe for the plaintiff and defendants respectively during their final submissions. i | The first issue is w hether plot No.35 and 35A Block 1 Gofu Chini Indistrial i Area, Tanga M unicipality are two distinct plots belonging to different persons. Mr. Akaro, the counsel for the plaintiff submitted that there is only plot No.35 Block 11 Gofu Chini Industrial Area. He contended also that the evidence adduced ’’ i i by the plaintiff's w itnesses clearly show that plot No.35A Block 1 Industrial Area does not exist. Mr. Akaro further contended that the surve.- : ar No. 11699 of 1961 read together with Exh.P5 - the title deed No. 15328 snow clearly that Plot No.35 Block 1 Gofu Chini Industrial Area, Tanga M unicipality was enlarged from 15080 square feet to 23296 square feet. Furthermore, Mr. Akaro attacked the procedure used by the defendants in getting plot No.35A Block 1 Gofu Ctyni Industrial Area to the effect that there was no formal application warranting the Land Registry to issue E xh .D i - the Letter of Offer. He concluded that Dlots No.35 and 35A are only one and the same Plot belongs to the estate of.the Late Fakhruddin Akberali Abdulhussein. Mr. Sangawe, the counsel for the defendants counter-subm itted that the title deed N o.520 which was transferred to the late Fakhruddin Akberali Abdulhussein am ply shows that Plot No.35 Block 1 Gofu Chini Industrial Area contains 15080 square feet only. He also submitted that trie evidence of D W .l -• Bharat Bhangwaji clearly shows that the front side of Plot No.35 Block I Gofu \ Chini Industrial Area was an open space and that it was allocated to the defendants in 1998 vide E x h .D i, a letter of Offer. He added that the New title deed N o.15328 which was issued to the plaintiff in 2000, erroneously incorporated plot No.35A Block 1 Gofu Chini Industrial Area the property of the defendants. Mr. Sangawe reiterated that the plot which was sold to Fakhruddin was 15080 square feet and not 23296 square feet. He urged this court to consider this point in line with Exh P.2 - the deed of transfer of the title deed No.520. The learned counsel concluded that title deed N o.520 transferred to the plaintiff d early shows that the plots are different and are owned by different persons. There is no dispute so far that the plot transferred to the plaintiff was No.35 and its size was 15080 square feet according to record. Again, there is no doubt that the space/land in dispute existed before the alleged transfer. The Gispute here is w hether or no.t plot 35A existed before and w hether it is/was part of plot 35. The evidence on record speaks loudly that there is no plot No.35A Gofu Chini Industrial area. This evidence was given by P W .l - Benjamin Rodger Mwakigonza, a fully registered Land Surveyor. In his testim ony he told the court that Plot No.35 Gofu Chini Industrial area is sub-divided to indicate the extension. According to this witness, the extension on plot 35 gives way/access to the road and in principle it is part of plot No.35. A Survey Plan [m ap] E xh .P l. reflects w hat w as stated by P W .l. This docum ent [map] shows clearly that the Plan was approved on 22nd January 1961. The map show s that plots Nos.34^35,36 and 37 have extens:ons to the princess/Jam huri Road. By studying the map, one will also note that plot No.34 has a very narrow extension which paves a way to the sam e Princess road. There is yet another docum entary evidence from the letter written by Tanga Municipal Council - Exh.P.7 to inform the defendants that plot No.35A. \ Gofu area, does not exist. It is a fact therefore, that there are no two distinct plots to be referred to as Plot 35 and 35A. The two portions form only one plot with its extension to the road. The second issue is w hether the right of-occupancy v/rvc^ was transferred to the plaintiff by Prithpa! Singh Naran 'Singh includes the Right of Occupancy on plot No.35A Block 1 Gofu Chini Industrial Area, Mr. Akaro submitted in the affirmative and stated that the said transfer was effected in October, 1998 under Exh. P. 12 - the deed of transfer of the Right of O ccupancy whereas the extension of plot No.35 Block 1 Gofu Chini Industrial Area was done in November 1961 vide Exh. P .l - the Survey Plan. ■ \ Mr. Sangawe counter-argued that the answ er should be in negative as both Exh. D .l - the deed o f transfer and Exh. D.2 - title deed No.420 clearly show that only 15080 square feet was transferred to Fakhruddin and not 23296 square feet. I agree with him because- the docum entary evidence says so, The docum ents produced in respect of the transfer deed, clearly indicate the plot num ber and its size. The size o f the plot remained the same, that is, 15080 sq. feet. For this reason, I agree with Mr. Sangwe that Prithpai Singh did not transfer to the plaintiff more than w hat he had acquired in his title deed, However, the extension which is now under dispute is not Plot No.35A as it does not exist: in the approved plan. The third issue is w hether the defendants were tenants to the premises contained in the Right of Occupancy on Plot No.35A Block 1 Gofu Chini. Mr. Akaro submitted that the answ er should be in affirm ative as the defendants entered into lease agreem ent with one Menbood Saleri, a duly authorized Attorney of the said Prithpai Singh Naran Singh, people. This letter - Annexture E.7 of Exh.P9 was writren on 30r Septem ber 1996. It is noted that for all these years, the defendants had no offer on the alleged plot 35A. Therefore, it is obvious that the defendants were tenants in the prem ises of the plaintiffs including the extension portion. •The fourth issue, is, which properties w ere transferred to the plaintiff. Mr. Akaro stated that the property which was transferred to the plaintiff is Plot No.35 Block 1 Gofu Chini Industrial Area in Tanga Municipality. He concluded thcfc such plot, vide Exh.P.5 - title deed No. 15328, was extended to cover the area in front of it and makes a total of 23, 296 square fe e t Mr. Sangaw e counter-subm itted that Plot No.35 Block 1 Industrial Area is different from Plot No.35A Block 1 Gofu Chini Industrial Area. He added that the property which w as transferred to the plaintiff is Plot No.35 Block 1 Gofu Chini Industrial Area with the size o f 15080 square feet. Mr. Sangaw e referred this court to consider Exh.P.2 - the transfer deed and Exh. D .l, the title deed No.520. He concluded that Plot No.35 vide C.T. No. 15328 should n o t'h a v e incorporated Plot No.35A Block 1 Gofu Chini Industrial Area. \ The fifth issue is, w hether the area square feet - 23, 296 comprised in C.T. No. 15328 issued to the plaintiff is the same as that comprised in C.T.N 0.520 which was transferred to the plaintiff by Prithpal Singh. Mr. Akaro submitted that, going with the evidence of all the plaintiff's w itnesses coupled with the P I - Survey plan, Exh. P3 - the building permit, Exh. P4 -the municipal land officers letter to the plaintiff dated 2nd June 1999 the issue should be answered in the affirm ative. Mr. Akaro contended that it is quite obvious that Exh. D2 - the titie deed No.520 the actual size of Plot No.35 Block 1 Gofu Chini Industrial Area, Tanga M unicipality was inadvertently shown as 15080 square feet instead of 23/296 square feet. Mr. Sangawe counter-subm itted that the answ er should be in negative on the basis that the size of the C.T. 520 when disposed off to the plaintiff was 15080 square feet only. The issues num ber 4 and 5 were dealt with in issue N o .l above that there is no Plot No.35A in the Site Plan and it was confirm ed by the surveyor - P W .l. The sixth issue is w hether there was any misrepresentation and/or fraud in the preparation of C.T. No.15328 to engulf the defendant's Plot No.35A Block 1 Gofu Chini Industrial Area. Mr. Akaro, the learned counsel, submitted that N Exh.P.6 - the letter dated 2.6,1999 addressed to the defendants and Exh. P .l - the survey plan, in respect of Plot No.35 Block 1 Gofu Chini Industrial Area plus oral evidence clearly show that some 8220 square feet were inadvertently omitted in preparing the title deed No.520. He added that the same was therefore, rightly included in the preparation of P.5 - a new certificate of Title * No. 15328. Mr. Akaro concluded that the notion on fraud is a pure misconception. In reply, Mr. Sangawe stated that Exh. P.6 - A letter dated 2 .6.1999.and ^ * P4 - A letter dated 3.6.1998 addressed to the plaintiff to surrender title deed No.520 assisted the plaintiff to get C.T. NO. 15328 in a dubious circum stances. Mr. Sangawe learned counsel urged this court to consider the issue of ■misrepresentation in positive as it goes with the principle of N e m o d a t q u o t n o n d a t - [that you can not transfer what you do not have]. There is no evidence to suggest that there was any fraud or misrepresentation in this case. It appears that both sides had an interest on the extension area. The evidence on record does not show that the plaintiff made any m isrepresentation in order to get/acquire the plot in dispute. The allegation that the form er Title Deed was lost was never disputed by any piece of evidence.' However, the fact that the sam e was later on found and handed over to the authorities does not prove any fraud. It is on evidence that a copy of the former Title Deed was surrendered and a new Title Deed was issued to the plaintiff. The evidence from P W .l and PW.2 indicate that the size of the extension plot was not included in the form er Title Deed but then the size of the new Title included the extention. According to P W .l, there was an error on the part of the Land Office and the plaintiff had nothing to da-with the error. It is on the strength of the above evidence that the allegations of fraud or m isrepresentation are ruied out. This answ er covers as well the issue num ber nine which asks whether the Title Deed N o.520 was lost. There is no evidence to show otherw ise that the title was not lost or misplaced. This was alleged by the ow ner/custodian and there is no evidence to the contrary. Mr. Sangawe submitted that the plaintiff was assisted by the Land Office to manipulate the issuance of a new Title. His argum ent would stand, if at all, Plot 35A exists on the dem arcated plots. Plot 34A exists, according to the Survey and Site Plan but not 35A. All these plots have extensions to the road. According to the Site Plan, the entrance to plot No.35 would be blocked if the extension is to be allocated as a separate plot. The seventh issue, is w hether Plot No.35A Block 1 Gofu Chini Industrial Area was lawfully allocated to the defendants. Mr. Akaro subm itted that it has been abundantly dem onstrated that there never lawfully existed a plou described as plot No.35A Block 1 Gofu Chini Industrial Area, He also added that the same could not and was not lawfully allocated to the defendants. He concluded by- urging this court to consider the issue in negative. In reply, Mr. Sangawe stated that on the strength of D1 - the letter of offer, Plot No.35A Block 1 Gofu Chini Industrial Area exists. He urged this court to consider the letter of offer and determine the issue in positive. It is submitted by-the plaintiff's counsel that there is no Plot 35A in the area in dispute. I agree with the learned counsel that although the defendants were allocated the alleged Plot 35A in 1998, the same never existed. I say so because the Survey Plan does not indicate the existence of Plot 35A. The Plan shows that it is an extension to plot 35. As stated earlier, all the.p lo ts nos.34,35,36 and 37 had extensions which were marked in 1961'when the am endm ents were done. It was therefore im proper to issue a letter of offer to the defendants in respect of the same extension plot. These argum ents dispose of the issue num ber eight, that is, whether the defendant's offer was legally revoked. The plot never existed and therefore he was allocated a plot which in fact, is not existing. The issue num ber ten is also answered. The issue is w hether the new C.T. No. 15328 issued to the plaintiff could incorporate the defendants' plot No.35A and if so, w hether the inclusion was lawful. This issue is answ ered in affirmative. As long as Plot 35A never existed on the site Plan of 1961, there is nothing to point out that it existed in 1998 in the absence of an approved plan. The evidence adduced by P W .l and PW.3 confirm that this plot 35A does not exist according to official records. These two witnesses, Benjamin Rodger (PW1) and Ombeni Eliad Mnzava (PW.3) are both land officers whose office is the custodian of all records concerning allocation of plots. They denied to know plot 35A in dispute. The w itness - PW.2 testified that the offer to the defendant was signed by one G.C. Maungu - a surveyor and that the offer did not indicate the Block number of the plot issued. I now turn to the issue num ber eleven, that, w hether the defendants had any spare parts stored in their godown and if such spare parts w ere stolen upon the plaintiff refusing entrance of the defendants' watchmen. This issue covers the counter claim field by the defendants. W hile Mr. Akaro subm its that there is no tangible evidence to prove the existence of the alleged spare parts, Mr. Sangawe subm its that there is sufficient evidence on record. The only evidence to support the defendant's case came from the first defendant alone. He testified tc the effect that he had two godowns on the plot in dispute and that there were spare parts in the godown. It is the defence case that the plaintiff chased away the w atchm an and stopped the defendants from entering the premises. As a result their spare parts were stolen. There is no dispute that the defendants had a business in the area. The 1st defendant produced pictures, Exh.D.9 taken from the godow ns to show the damaged wall. Apart from saying that the watchm an was using the ooen space where the plaintiff is allegedly constructed a sem i-finished structure, the defendant did not disclose the type of spare parts and/or their value. In short, there are no details to enable the court to assess this issue in affirmative. This applies to the 12th and 13th issues - w hether construction of building made by the plaintiff was on the defendants land, and if so, w hether the construction caused the defendants to suffer damages. Again, if so, w hat was the extent of damage. Issue num ber 13 is whether the watchman was chased away by the plaintiff. Mr. Sangaw e subm itted that the plaintiff encroached to the defendants' building as shown by pictures Exh.D.9. It is true that there is a dam aged wall but as to who caused the dam age, this question is stiii hanging without an answer. Assuming that the dam age was caused by the plaintiff, is there any justification for the action? The fact th a t'th e extension plot is said to be part of Plot 35, which belongs to the plaintiff, it goes w ithout saying that the plaintiff can not be a trespasser on the plot. The last issue is about reliefs the parties entitled to. As already discussed above, the plot in dispute is an extension to plot 35 Block 1, Gofu Chini Industrial Area, and it rem ains so unless there are lawful changes to be approved by the Land authorities. ' The defendants' structure was built w ithout a building perm it and they did so-on their own peril. The alleged plot num ber 35A Block 1, Gofu Chini, Industrial \ area does not exist and the defendants' structure was illegally constructed on the extension plot. The same has to be demolished. The fact that the defendants were misled by unfaithful land surveyor(s), I decline to grant any dam ages to the parties. Each party should bear own costs. It is so found and decided. ■■ R.A. TEEMBA, J. 28/10/2011 Coram - R.A. Teem ba, J. Plaintiff - Mr. Akaro Defendants - Mr. Sangawe C/C Peter C o u rt:- i he Judgm ent is delivered today in the ire se rc - e ooth counsel for w • . ' v - s - t i s c , : ■ _ c ~ • . V . ; V . V of appeal explained. " R.A. TEEMBA, J. , 28 / 10/2011 -*// . V* G