nicolas selestine mtei vs zena humudi salum 2020 tzhclandd 14 23 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 436 OF 2016 NICOLAS SELESTINE MTEI.......................... ............... PLAINTIFF VERSUS ZENA HUMUDI SALUM........ .....................................DEFENDANT EX PARTE JUDGMENT: I. MAIGE, J The dispute at hand pertains to a landed property described as plot no. 242 Block 41 Kinondoni Area Dar Es Salaam with certificate of title No. 146336 ("the suit property"). It is therefore a registered land. In view of the plaintiff, the title on the suit property is registered in the name of the defendant one Zena Humudi Salum. On that basis, the plaintiff has executed a construction agreement according to which he would construct a 8 floors house on the suit property which would at the end be shared in 60% to 40% percent. The plaintiff would appropriate 60% ownership interests on the suit property and the defendant 60%. The construction agreement was produced into evidence and tentatively admitted as PI with a note that the issue of admissibility, would- 4?e considered in the final judgment. The i- reason why it was admitted tentatively was that though it has the effect of affecting interest on a registered land, the agreement was not registered at ail. The plaintiff in this case enjoyed the service of advocate Jovin Ndugi. The defendant did not appear. Neither did he file any written statement of defence in spite of being duly served. As a result, my predecessor in office, madame Judge Krefu who would, but for her elevation to the Court of Appeal finalized this matter, permitted the plaintiff to proceed, as he did, with the matter ex parte. The case of the plaintiff indeed was built by his sole testimony as PW1. His evidence was essentially documentary. He placed reliance on the agreement in exhibit PI to establish the existence of the construction agreement. He told the Court that while under exhibit PI the defendant was to give vacant possession of the suit property to the plaintiff and execute a transfer agreement, the defendant refused so to do despite the fact that she received, in terms of exhibit PI, a premium of TZS 100,000, 000/=. Payment vouchers evidencing the receipts of the money by the defendant whether by herself or her child Hemed was exhibited collectively as P3. The transfer agreement duly executed by the plaintiff but without the signature of the defendant was exhibited as P2 to establish the proposition that the defendant, in breach of exhibit PI, refused to execute the same. To establish his efforts and^^ceparedness to perform the 2/ construction agreement, the plaintiff produced, which was admitted into evidence as P4, copies of the drawings of would be the joint venture buildings. In the final result, the plaintiff urged the Court to pronounce a judgment compelling the defendant to specifically perform the contract by yielding vacant possession of the suit property and executing the conveyance deed in exhibit P3. In the alternative, he prayed for 80% marked value of the suit property. He prayed for the costs too. In his brief submissions, Mr. Ndungi while admitting that, exhibit PI is compulsorily registrable, was of the humble opinion that in so far as it is not in dispute, the same is admissible notwithstanding that it is not registered. The counsel placed heavy reliance on the authority of the Court of Appeal of Tanzania in Saumu Mohamed Kassim vs. Mohamed Haii Dau (1992) T.L.R. 368. He more so relied on the authority in Ali bin Khatibu vs. Khamis Bin Omar 7 Z.L.R. 113 in support of the view that an unregistered document relating to transfer of land can be admitted not as evidence of title but as evidence that the transferee had entered into the disputed land under the colour of a claim adverse to ownership of the transferor. He therefore urged the Court to hold that, in the circumstance of this case the plaintiff has adduced sufficient evidence to warrant a decree of specific performance of contract. I have examined the evidence and duly considered the submissions. I have as well studied the cited authorities between lines. The authority in Ali bin Khatibu (supra), I have read it, is irrelevant in the instant matter. While in the said case the contract was not used to prove title on a registered property, in this matter the same has been produced with a view to establishing interest of the plaintiff on the suit property. Indeed, the plaintiff is urging the Court basing on the same agreement, to compel the defendant to perform the contract by yielding him vacant possession of the suit property and transferring in his name 60% interests thereon. The authority in Saumu Mohamed Kassim vs. Mohamed Haii Dau (,supra) cannot apply too. It would have applied if the claimed right of the plaintiff on the suit property was indisputably established between the parties. In this ease, while the plaintiff claims that the suit property belongs to the plaintiff, he has not produced into evidence any copy of certificate of title or any document whatsoever establishing title of the defendant on the suit property. He could not afford even to exhibit a copy of a search report establishing title of the defendant on the suit property soon before the execution of PI. The suit property being a registered land, there is no way this Court can declare interests of the defendant on the same capable of being conveyed to the plaintiff by way of exhibit PI. Perhaps, the registration of exhibit PI in the registry of title would have given the Court the basis to imply interest of the defendant on the suit property. A In view of the foregoing therefore, this Court cannot place any reliance on exhibit PI to award the plaintiff the claimed reliefs or any part thereof. Exhibit PI shall therefore not be relied upon in this decision and it is accordingly expunged from the record. With the expurgation of exhibit PI, it cannot be said that the plaintiff has any cause of action against the defendant in relation to the suit property. In the absence of a prima facie factual materials on the title of the defendant on the suit property, this Court cannot assume the risk of making any determination on the existence or non existence of the plaintiff's interest on the suit property against the defendant. In the premises therefore, the plaintiff has not disclosed any land related cause of action against the defendant in relation to the suit property. The suit is accordingly struck out without an order as to costs. I.Maige JUDGE 23/03/2020 Date: 23/03/2020 Coram: Hon. S.H. Simfukwe - DR For the Plaintiff: Mr. Isihaka Yusufu, Advocate For the Defendant: Absent with notice RMA: Bukuku COURT: Judgment delivered this 23/03/2020 in the presence of Mr. Isihaka Yusufu learned counsel for the plaintiff and in the absence of the Defendant S.H. Simfukwe DEPUTY REGISTRAR 23/03/2020 6