ntwa ambokile mwakasanga vs ambokile ntwa mwakasanga another 2022 tzhclandd 12803 23 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO 50 OF2020 NTWA AMBOKILE MWAKASANGA.............................................. PLAINTIFF VERSUS AMBOKILE NTWA MWAKASANGA........................................ 1st DEFENDANT KIZITO AUGUSTINI KAUMBA.............................................. 2nd DEFENDANT JUDGMENT 3/12/2022 & 20/12/2022 L, HEMED, J, Like in the parable of the prodigal son in the Bible where the son squandered in wild living all his wealth given to him by his father, in the present case, the son, opted to dispose of by way of sale the landed property given to him by his father. The plaintiff, who is the father of the said son is in this Court trying to claim and restore back the suit landed property already sold to the 2nd defendant. In the Amended Plaint filed on the 19th May 2022, it has been claimed that on 9th August 1970 the plaintiff, NTWA AMBOKILE MWAKASANGA bought a piece of unsurveyed land situated at Kiwalani i Migombani Area, Minazi Mirefu from the late Ally Mtimburiko. The plaintiff claims that the suit landed property ascribed by residential license No. ILA.019165 Plot No. ILA/KWN/MZF.8/22 situated at Kiwalani Minazi Mirefu Ilala District Dar es Salaam, is part of the land which he purchased in 1970. According to the plaintiff, the 1st defendant (the Son), AMBOKILE NTWA MWAKASANGA, while at Mafinga established sexual relationship with the housemaid one Riziki Kaono. Due to such relationship a baby boy, the grandson of the plaintiff was born. It was claimed further that since the 1st defendant had no means of living, the Plaintiff decided to register the suit landed property in the name of the 1st defendant so that he could use it to take care of the child. The plaintiff alleges that the 1st defendant instead of using the suit landed property for the intended purposes, he refused to take care of the said child and instead sold the property to the 2nd defendant, KIZITO AUGUSTINI KAUMBA at a throw away price of Tshs. 10,000,000/=. The plaintiff is thus praying for judgment and decree against the defendants jointly and severally as follows: - 2 "(a) Declaration that plaintiff is the legal owner of land ascribed as Land license ILA. 019165 Plot No. ILA/KWN/MZF.8/22 situated at Kiwaiani Minazi Mirefu I/a/a District Dar es Salaam. (b) For revocation of registration and rectification of land licence no. ILA.019165 Plot No. ILA/KWN/MZF.8/22 situated at Kiwaiani Minazi Mirefu Haia District Dar es Salaam from the names of the 1st defendant to be reregistered and rectified in the name of the plaintiff. (c) For declaration that the 1st Defendant has breached the agreement of the use of the suit property made at the end of November 2006 and repeated it on 11/6/2017. (sic) (d) For order that the inhuman behavior of 1st defendant to Plaintiff, deserves not to be a child of the Plaintiff hence that not a heir of the plaintiff therefore that return the suit property to the Plaintiff who is the legal owner, (sic) (e) For order that said the two sale Agreement of the suit property are enfoeabie and void on the ground that are contracting each other, are fraudulent as a result of a conspiracy between 1st Defendant and 2nd defendant to defraud plaintiff, (sic) (f) For permanent injunction restraining both defendants from living, and/or using the suit property for their own 3 benefit jointly and severally and vacate the place forthwith, (sic) (g) For order of paying compensation of Tshs. 350,000,000/= (three hundred and fifty million Tshs) against the defendants to the plaintiff the estimated value of the two houses i.e. suit property, which were demolished and a bar built there on. (sic) (h) For payment of costs and court fees of this case, (sic) (i) For any other relief as this Honorable Court may deem fit andjust to grant." In his written statement of defence the 1st defendant disputed all the claims and stated that the suit property described as land residential licence No.ILA 01965 Plot No. ILA/KWN/MZF 8/22 situated at Kiwalani Minazi Mirefu Area in Ilala District within the city of Dar es Salaam was formerly his and he sold it to the 2nd defendant. He prayed for this Court to declare the 2nd defendant the owner of the suit property. In his defence, the 2nd defendant pleaded to have lawfully purchased the suit plot described as Land Residential licence No.ILA.0196 Plot No.ILA/KWN/MZF 8/22 located at Kiwalani Minazi Mirefu within Ilala 4 Municipality at the price of Tshs. 10,000,000/= on 29/12/2020 from the 1st defendant. On the date when the matter was called for final pretrial Conference, the following issues were framed to mark guidance of the trial of the matter: 1. Who between the parties is the lawful owner of the suit landed property located at Kiwalani Minazi Mirefu with Residential Licence No. ILA/KWN/MZF.8/22. 2. To what reliefs are the parties entitled. To prove his case the Plaintiff, had two witnesses, himself (PW1) and his daughter who testified as PW2. The 1st defendants case could not be heard because on the date the matter was called for hearing, he did not enter appearance without assigning reasons thereof. The 2nd defendants case had three witnesses, himself (DW1), the vendor (DW2) and the daughter of the plaintiff (DW3). The first issue framed for purposes of determining the matter at hand was that, who between the parties is the lawful owner of the suit 5 landed property located at Kiwalani Minazi Mirefu with Residential Licence No. ILA/KWN/MZF.8/22. It is a trite law that in civil cases, he who alleges has a burden of proof as per section 110 of the Evidence Act, [Cap.6 R.E.2019]. It is until the person alleging has proved his allegation to the required standard the opponent party is called upon to rebut. This was cemented by the Court of Appeal of Tanzania in Lawrence Magesa T/A Jopen Pharmacy v. Fatuma Omary & Rimina Auction Mart & Company Limited, Civil Appeal No.333 of 2019 regarding the burden of proof that: - "It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act. It is equally elementary that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and the said burden is not diluted on account of the weakness of the opposite party's case." In the matter at hand, my task is to find out who between the Plaintiff and the 2nd Defendant is the owner of the suit landed property located at Kiwalani Minazi Mirefu with Residential Licence No. ILA/KWN/MZF.8/22. To prove the said issue, the plaintiff who testified as 6 PW1 told the Court to have purchased the suit land on 9th August 1970, from one ALLY MTIMBULIKO for Tshs. 18,000/=. According to him, the size of the land he purchased was 34 acres. He tendered the Sale Agreement (Exhibit "Pl")- It was his testimony that he erected a residential house at the center of the plot, which was later given the Residential Licence No. ILA 009781 ILA/KWN/MZF.8/23. In 2003, he constructed other buildings, a store, three frames, kitchen and toilets. He fenced them together with the residential house which was later in 2007 registered as ILA.019165 AREA ILA/KWN/MZF.8/22, Kiwalani, Minazi Mirefu Ilala. It was testified further that, when he retired from public service in 2004, the plaintiff used the premises as offices for Court Broker's activities and for day care Centre. PW1 told the court that in December 2006 the mother of Riziki Kaono informed him that the 1st defendant left Mafinga without any arrangements of his son born to Riziki Kaono. Since the 1st Defendant was jobless, PW1 decided to register the suit premises ILA 019165 AREA ILA/KWN/MZF.8/22, Kiwalani Minazi Mirefu, Ilala District in the name of Ambokile Ntwa Mwakasanga, (1st Defendant). 7 PW1 told the Court that the 1st defendant refused to take care of his son and thus he has decided to take back the landed property given to him for purposes of taking care of the 1st defendant's son. It was the testimony of PW1 that he instituted this case as a means to claim back his house, which he gave to the 1st Defendant. PW1 confessed to be aware that the suit premises has been sold to the 2nd defendant who once was his tenant in one of his frames. The testimony of PW1 was supported by one MARY MWAKASANGA (PW2), the daughter of the Plaintiff who told the Court that the suit property was acquired by the plaintiff and later was given to the 1st Defendant one Ambokile Mwakasanga for purposes of taking care of his son. She concluded by saying that the suit premises has been sold to the 2nd defendant. The 1st defendant's case could not be heard as the matter was ordered to proceed exparte against him hence, the matter proceeded to the 2nd defendant's case. The 2nd defendant testified as DW1 that on 24th December, 2019 he purchased the suit house from the 1st defendant for 8 Tshs. 10,000,000/= which was registered in the name of one Ambokile Ntwa Mwakasanga. The testimony of the 2nd defendant was confirmed by DW2 one AMBOKILE MWAKASANGA who testified to have sold the suit premises to the 2nd defendant in 2019. He tendered the residential licence (exhibit "DI") which he gave to the 2nd defendant at the time of executing the Sale Agreement. He told the Court that the suit property was unconditionally given to him by his parents Ntwa Ambokile Mwakasanga (the plaintiff) and his mother, the late Felicity John Mwaipopo. DW3 one ALICE MWAKASANGA, the daughter of the Plaintiff testified in confirmation of DW2's testimony that the suit landed property was given to the 1st defendant by the plaintiff. She narrated that the 1st defendant was free to sale the suit house because it was his property. Evidence adduced by PW1, PW2, DW2 and DW3, unequivocally show that the plaintiff had given the suit landed property located at Kiwalani Minazi Mirefu with Residential Licence No. ILA/KWN/MZF.8/22 to DW2 (Ambokile Ntwa Mwakasanga), his biological son. He did so by registering the residential licence in the name of the 1st defendant. This has also been 9 evidenced by exhibit 'DI" the residential licence which has the name of DW2. Section 23(1) of the Land Act, [Cap 113 RE 2019] provides thus: - "... A derivative right, in this Act referred to as a residential licence, confers upon the licensee the right to occupy land in non-harzadous land, land reserved for public utilities and surveyed land, urban or peri-urban area for the period of time for which the residential licence has been granted." The above provision implies that the person whose name is registered in the residential licence is the owner of the land referred in the said residential licence. In the present case, it is obvious that the person whose name is registered in the said residential licence of the suit landed property No. ILA/KWN/MZF.8/22, located at Kiwalani Minazi Mirefu is DW2, Ambokile Ntwa Mwakasanga. According to the testimonies of all witnesses who were paraded by the plaintiff and those of the 2nd defendant, including DW2, the suit property has already been sold to the 2nd defendant. Evidence adduced by PW2, DW1, DW2, and DW3 shows that the bearer of the Residential Licence No. ILA/KWN/MZF.8/22 sold the premises to the 2nd defendant for Tshs 10,000,000/=. io The question is whether the 2nd defendant acquired title over the suit premises. Under the principle that no man can transfer a better title than he himself has {nemo dat quod non habet}, in the present case, the fact that the 1st defendant was the registered owner of the suit landed property, he had a good title which he eventually passed it to the 2nd defendant. The plaintiff wants to take back what he had already given away to the 1st defendant. It is my firm opinion that it is quite impossible for the plaintiff to take back the suit property which he once gave it to the 1st defendant who ended up disposing it by sale to the 2nd defendant. In fact, he cannot just take it back to him for whatever reasons. To conclude on the issue as to who is the lawfully owner of the suit landed property between the parties, I have opted to be guided by the principle laid down in Hemed Said v Mohamed Mbilu [1984], T.L.R 113 thus:- "According to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." li In the present case, it is unequivocally shown that the suit property, though still registered in the name of the 2nd defendant (DW2), it has been sold to the 2nd defendant. Therefore, the suit landed property with residential licence No. ILA/KWN/MZF.8/22, located at Kiwalani Minazi Mirefu,Ilala- Dar es Salaam is the property of the 2nd defendant. Let me turn to the second issue as regard the reliefs to which the parties entitled. The Plaintiff prayed for several reliefs including that of being declared the legal owner of the suit land ascribed with residential licence No. ILA.019165 Plot No. ILA/KWN/MZF.8/22 situated at Kiwalani Minazi Miref Ilala District Dar es Salaam. The plaintiff failed to prove all the reliefs he claimed. It is only the 2nd defendant who managed to prove his rights of ownership over the land in dispute. In the premises thereof, the Plaintiff's claims deserve dismissal and the 2nd defendant is entitled to be declared owner of the suit premises. It is thus ordered as follows: - i. The plaintiff's claims are dismissed in their entirety, 12 ii. The 2nd defendant is declared the lawful owner of the suit landed property known by residential licence No. ILA.019165 Plot No. ILA/KWN/MZF.8/22 situated at Kiwaiani Minazi Miref Ilala District Dar es Salaam; iii. In the circumstance of the matter at hand, which involves a biological father, a son and neighbor, each party to bear its own costs. It is so ordered. DATED at DAR ES^ALA^M this 23rd December,2022. COURT: Judgment is delivered in the presence of the Plaintiff appearing in person and Mr. Ndibalema for the 2nd Defendant this 23/12/2022. Right of 13