ossy muganga julius kasilo vs jafari mbegu abdallahadministrator of the estate of the late hussein abdallah mbegu 2021 tzhclandd 194 11 may 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 47 OF 2018 OSSY MUGANGA JULIUS KASILO............................................... PLAINTIFF VERSUS JAFARI MBEGU ABDALLAH (as the administrator of the estate of the late) HUSSEIN ABDALLAH MBEGU................................................... DEFENDANT Date ofJudgment26/05/2021 Date of the last order 11/05/2021 JUDGEMENT I. MAIGE. 3 The Plaintiff OSSY MUGANGA JULIUS KASILO, has brought this action against the defendant JAFARI MBEGU ABDALLAH (as the administrator of the estate of the late HUSSEIN ABDALLAH MBEGU ("the deceased"). The dispute revolves around the following 12 pieces of land which for the purpose of this suit shall be referred to as "the suit properties":- i. A twin house situated at Barange Area, Mbutu Mkwajuni, Kigamboni, Dar es salaam. i ii. An-unsurveyed land measuring about half an acre situated at Somangila area, Shirikisho street, Kigamboni Dar es salaam. in. A house situated at Magogoni Area, Kigamboni Dar es salaam. iv. A house situated at Kibugumo Area, Kigamboni Dar es salaam. v. A house situated at Tungi Muungano, Mparangise area, Kigamboni, Dar es salaam. vi. An-unsurveyed land measuring about quarter of an acre situated near UjenziSecondary School, Mkuranga Coastal region. vii. An-surveyed land measuring about four o f an acre situated at Tuangoma, Malela area, Kigamboni, Dar es salaam. viii. An un-surveyed measuring about four (4) acres situated at Dege area Kigamboni, Dar es salaam. ix. A house stuated at Mbutu, Mwanzomgumu area, Kigamboni Dar es salaam. x. A house situated at Ungindoni Mnadani area, Kigamboni, Dar es salaam. xi. A house situated at Ungindoni Kwamadadi area, Kigamboni Dar es salaam. xii. A house situated at Kichangani area, Kisarawe II, Kigamboni, Dar es salaam. The plaintiff claims for two substantive reliefs. First, declaration that she is the lawful and beneficial owner of the suit properties. Two, perpetual injunction to restrain the defendant and/ or his agents from occupying or in any way dealing with the suit properties. The plaintiff traces title on the suit properties from his contractual relation with the deceased entered into on 30th December 2010 wherein she constituted the deceased as her agent for acquisition and development of landed properties for and on her behalf (exhibit PI). 2 Pursuant to the agreement in exhibit PI, it is claimed, the deceased acquired the suit properties having collected from the plaintiff's account the sum of USD 604,396.00. Some of the suit properties, it is further claimed, were acquired in the name of the deceased and others in the name of the plaintiff. It is further claimed that, upon the death of the deceased in 2016, the plaintiff had a formal discussions with the beneficiaries of the deceased as a result of which a memorandum of understanding was entered wherein the said beneficiaries acknowledged that some of the properties which were in the names of the deceased belonged to the plaintiff. To the surprise of the plaintiff, it is further alleged, the defendant, in his petition for the administration of the deceased estate, listed the suit properties as part of the deceased estate. This is what prompted the plaintiff to initiate the instant suit. In his written statement of defense, the defendant denies that the suit properties belong to the plaintiff. He further denies of there being entered a valid memorandum of understanding between the plaintiff and the beneficiaries of the deceased. In the alternative, the defendant challenges the said agreement to be illegal. At the final pretrial conference, the following issues were framed for determination 1. Whether the plaintiff has entered into an agency agreement with the fate Hussein Mbegu Abdaiiah for the purchasing o f the suit properties. 2. Whether, pursuant to the said agreement the late Hussein Mbegu Abdaiiah purchased the suit properties for and on behalf o f the plaintiffas alleged or at all. 3. Whether the relatives o f Hussein Mbegu Abdaiiah had ever acknowledged that the plaintiff is the legal owner o f the suit properties. 4. To what reliefs are the parties entitled to. In the conduct of this matter, advocate Mkoba represented the plaintiff whereas advocates Benard Nkwabi, Lupogo and Elizabeth Majuva represented the defendant. Due the challenges brought by Covid-19, the parties testimonies in chief were presented by way of affidavits of proof in terms of Order XIX rule (1) and (2) of the Civil Procedure Code. Cap 33 R.E 2019. The production of documentary evidence, cross examination and reexamination were made orally. In support of her case, the plaintiff deposed an affidavit of proof and testified in Court as PW1. There were, in addition, affidavits of proof deposed on her behalf by Adelhem Msiagi, a branch manager of Stanbic Bank Tanzania (PW2), Saidi Abuulrahman Amanzi, a resident of Kibada, Kigamboni (PW3), Riziki Hamis Athumani, a resident of Tungi Street, Kigamboni (PW4> and Jerald Mkoye Kishiwa, a resident of Somangila, Kigamboni (PW5). In addition, she produced 17 documentary evidence. In defense, the defendant was the sole witness. He testified as DW1 and produced 15 documentary exhibits. After conclusion of the trial, I allowed the parties to address me generally on the suit by way of written submissions. Mr. Mkoba for the plaintiff presented the written submissions for the plaintiff. For the reasons better known to themselves, the advocates for the defendant did not file any written submissions. I take it that they have waived their right to remark generally on the merit or otherwise of the case. With the above brief exposition of the factuality of the case, it is appropriate that I address the issues raised. I will start with the first issue as to the existence of the agency agreement between the plaintiff and the 5 deceased. In the. plaint, the same was pleaded in paragraph 4 of the plaint. In paragraph 4 of his written statement of defense, the defendant generally and evasively denied the fact. In her factual deposition in paragraph of the affidavit, the plaintiff testified on the existence of the said agreement. It was produced into evidence and marked PI without any objection. From the oral testimony of PW1 on cross examination, it would appear to me, the existence of the agreement in exhibit PI was not challenged but its effect. In the circumstance and without much ado, it is my finding that, the plaintiff has been able to establish the first issue. It is accordingly answered in the affirmative. This now takes me to the second issue as to whether or not pursuant to exhibit PI, the deceased purchased the suit properties for and on behalf of the plaintiff. As I said above, in a bid to prove the issue, the plaintiff has produced 12 documents purporting to be the purchase agreements of the suit properties. Of them, seven are in the names of the deceased and five in the names of the plaintiff. The first one is an agreement dated 24/3/2016. It is between Aisha Muhaji Mohamed as the vendor and the deceased. It is in respect of the property at Ungindoni Street, Mjimwema, Kigamboni. It was received in evidence 6 as P4. In the plaint, it has been pleaded in item x of paragraph 3. It shall, for the purpose of this decision, be referred to as "the suit property number one". The second one is an agreement dated 27/4/2012. It is between Aisha Abdallah as the vendor and the deceased. It was received as exhibit P5. Though the size of the property has been described in the said exhibit and the boundaries therein, the whereabouts of the said property is not in the agreement. Neither in any of the affidavits deposed for and on behalf of the plaintiff. In the circumstance therefore, this Court is left with no factual basis to link the said exhibit with any of the properties pleaded in paragraph 3 of the plaint. It will therefore not be accorded any weight. The third one is an undated agreement. It is with reference number MGGN/TUNGI/2011/2014. It is between Zuwena Khalifan Salehe as the vendor and the deceased as the purchaser. It is in respect of the property at Magogoni Street, Mjimwema, Kigamboni. It was received in evidence as P7. In the plaint, it has been pleaded in item iii of the paragraph 3. It shall, for the purpose of this decision, be referred to as "the suit property number two". The fourth one is an agreement dated 06/06/2014. It is between Issa Salim Amani as the vendor and the deceased as the purchaser. It is in respect of the property at Ungindoni Street, Kigamboni. It was received in evidence as P8. In the plaint, it has been pleaded in item xi of paragraph 3. It shall, for the purpose of this decision, be referred to as "the suit property number three". Next is an agreement dated 04/6/2016. It is between Salehe Salum Mkande as the vendor and the deceased as the purchaser. It is in respect of the property at Kichangani area, within the Temeke District. It was received in evidence as P12. In the plaint, it has been pleaded in item xii of paragraph 3. It|shall, for the purpose of this decision, be referred to as "the suit property number four". Then comes an agreement dated 05/2/2016. It is between Khalifan Mwanyanyi as the vendor and the deceased as the purchaser. It is in respect of the property at Malela Street, Tuangoma, Temeke. It was received in evidence as P13. In the plaint, it has been pleaded in item x of paragraph 3. It shall, for the purpose of this decision, be referred to as "the suit property number five". 8 The next one is an agreement dated 18/9/2015. It is between Zuhura Salumu Tulale as the vendor and the deceased as the purchaser. It is in respect of the property at Mkuranga village. It was received in evidence as P14. In the plaint, it has been pleaded in paragraph 3(vii). It shall, for the purpose of this decision, be referred to as "the suit property number six". The last one is an agreement dated 16/8/2015. It is between Theresia Menrad Mlimira as the vendor and the deceased as the purchaser. It is in respect of the property at Tungi Street, Kigamboni. It was received in evidence as P15. In the plaint, it has been pleaded in paragraph 3(v). It shall, for the purpose of this decision, be referred to as "the suit property number seven". Though the above properties have been purchased in the name of the deceased, neither of the vendors therein was called as a witness. No reason for such omission has been testified upon. It is the law, according to section 101 of the Evidence Act that if there be a contract which has been reduced to writing, verbal evidence will not be accepted so as to add to or subtract from or in any manner vary or qualify the written contract. The rationale behind the rule is to uphold the value of written proof and effectuate the finality intended by the parties. The applicability of the rule, 9 according to the authority in JOS HANSEN AND SOEHNE VS. GK. JETHA LIMITED (1959) E.A. 1563 is conditional upon there being established that the terms of the parties agreement are wholly contained in the written document. From the evidence adduced, it would seem to me, there is nothing to suggest of there being a separate agreement to supplement the agreements in the said exhibits. The plaintiff has tendered a memorandum of understanding in exhibit P17. In his submissions, Mr. Mkoba learned advocate for the plaintiff has invited the Court to infer from the respective exhibit that, the beneficiaries of the deceased including the defendant consented that the suit properties be changed from the name of the deceased to the name of the plaintiff. I have taken time to carefully study the said exhibit. With respect to the learned counsel, neither of the suit properties is expressly mentioned therein. Come what may therefore, the document under discussion is incapable of rebutting the documentary evidence in the purchase agreements in question. The plaintiff has also placed reliance on a document entitled "Release and Indemnity Fax, Telephone, Scanned and Email Transmissions" which was exhibited as P2. It is in between the plaintiff and her Bank. The name of the deceased does not feature out therein. Such an evidence cannot in 10 my view operate as to rebut the documentary evidence in the purchase agreements in question. Neither can the testimony of PW2 do. In my view therefore, the plaintiff has not been able to establish, in the required standard that, the suit properties number 1,2,3,4,6 and 7 was purchased in her name. Issues number 2 is therefore answered negatively in respect to the said properties. I will now address the issues in relation to the properties referred to in exhibits P3, P6, P9, PIO and P l i which appear to have been purchased in the name of the plaintiff. For clarity, I will consider one document after another. Exhibit P3 is an agreement dated 13/01/2010. It was entered into before the agency agreement in exhibit PI had been executed. It pertains to a landed property at Mwanzomgumu, Somangila. The vendor being the deceased and the purchaser the plaintiff. In the plaint, it has been pleaded in paragraph 3 item IX. It shall herein be referred to as suit property number 8. In paragraph 14 of his affidavit, I have noted, the defendant did not comment on the suit property number 8. Neither in paragraph 15 in relation to the properties which the defendant claims that they were changed into the name of the plaintiff illegally. However, in paragraph 18 li item (i) thereof, it is suggestive that, a property located at Mbutu- Mwanzomgumu was acquired by the deceased on 28/06/2010 with an exchange with one Zuberi Mbegu Abdallah in respect of the property at Mbarajange Mbutu. The purported exchange agreement was exhibited as D13. As I observed above, the defendant has not expressly made any comment on the suit property number 8 in his affidavit of proof. More so, the depositions of the plaintiff in her affidavit in respect thereof has never been doubted by way of cross examination. In the circumstance therefore, I have no reason to doubt the documentary evidence in exhibit P 3. Since the deceased executed the agreement in exhibit P3 on 13/01/2010, on 26/10/2010 when exhibit D13 was being executed, he had no title to transfer by way of exchange or at all, to Zuberi Mbegu Abdallah. I will therefore answer the second issue in relation to the suit property number 8 in the affirmative. Exhibit P6 is an agreement dated 12/09/2013. It is between the plaintiff as the purchaser and Baya Salumu Marande as the vendor. It is in respect of the property at Magogoni Street, Temeke. While in the plaint, and affidavit, there is only one property located at Magogoni, in evidence, the plaintiff, has, without clarification, produced two documents purporting to 12 establish a purchase of a landed property at Magogoni. One of such documents which was in the name of the deceased was admitted as P7. With this confusion and the plaintiff being the one who had the burden of proof, it is my view that, the plaintiff has not been able to establish ownership of the suit property number two. Accordingly therefore, issue number two is answered negatively in respect thereof. Exhibit P9 is an agreement dated 27/04/2012. It is between Asha Bushiri and the plaintiff in respect of a property at Mkwajuni Mbutu. It shall herein be referred to as suit property number 9. In the plaint, it has been pleaded in paragraph 3 item I. Of all the purchase agreements exhibited by the defendant, I have;noted, there is none referring to a property at Mkwajuni Mbutu. It is also not mentioned in paragraph 15 of the affidavit of the defendant as among the properties bequeathed to the beneficiaries of the deceased. Neither in the properties mentioned in paragraph 18 of the said affidavit as the properties acquired by the deceased on his own efforts. I will in the circumstance answer the second issue in relation to the said property affirmatively. This takes me to the agreement dated 16/02/ 2016 between the plaintiff as the purchaser and Mohamed Hassan Malimbika as the vendor. This was received in evidence as exhibit P10. It is in respect of a landed 13 property at Dege,Temeke, Dar Es Salaam. In the plaint, it is pleaded in paragraph 3 item viii. It shall herein be referred to as suit property number 10. In his evidence, I have noted, the defendant has produced which was admitted as DIO, a similar document save only that the purchaser is, instead of the plaintiff, the deceased. In accordance with the plaint and her affidavit, the plaintiff is not a resident of Tanzania. She is the resident of Brazzaville, Congo. In accordance with her deposition in paragraph 15 of the affidavit, the plaintiff came back to Tanzania on 11th June 2016 upon being informed of the death of the deceased,* In her evidence, the plaintiff has produced, which was admitted as P16, a copy of her passport. It is express in the said exhibit that, on 15th February 2016, she exited from Tanzania. It follows therefore that, she was not in Tanzania on 16th February 2016 when exhibit P10 was being executed. I am therefore looking at exhibit P10 suspiciously. Incredible as it is, the said document cannot be relied upon. As a result, issue number two is answered in relation to the suit property number 10 negatively. 14 Lastly it is exhibit P ll. This is an agreement which is dated 23rd May 2014. It is between Yahya Hussein Mohamed and the plaintiff in respect of a property at Kibugumo. It shall herein be referred to as suit property number 11. In the plaint, it has been pleaded in paragraph 3 item iv. Of all the purchase agreements exhibited by the defendant, I have noted, there is none referring to a property at Kibugumo. In paragraph 15 (b) of the defendant's affidavit however it has been mentioned as among the properties whose documents of title were illegally changed into the name of the plaintiff. There is no particulars in the affidavit of the said illegality. In the absence of a documentary evidence to the contrary, it is my view that, the verbal testimony in paragraph 15 of the affidavit cannot be strong enough to defeat the documentary agreement in exhibit P ll. In my view therefore, the plaintiff has established, in the required standard, ownership of the suit property number 11. Consequently, issue number two, in relation to the said property is answered affirmatively. With the above discussions and conclusions, issue number three becomes redundant. This is;for two main reasons. First, the purported beneficiaries of the deceased being not the administrator of the deceased estate, could not, assuming they acknowledged the plaintiff's ownership of the suit properties, pass any title to the plaintiff if the same did not exist. Two, 15 the documentary evidence in P17, as I observed elsewhere in this judgment, did not make reference of any of the suit properties. In the final result and for the foregoing reasons therefore, the suit succeeds to the extent of the properties at Kibugumo contained in exhibit P ll pleaded at item iv of paragraph 3 of the plaint (the suit property number 11; at Mkwanjuni Mbutu contained in exhibit P9 pleaded at item I of paragraph 3 of the plaint (suit property no. 9) and at Mwanzomgumu, Somangila area pleaded in item ix of paragraph 3 of the plaint (suit property number 8) and fails to the extent of the rest of the properties. It is so decreed and no order as to costs in the circumstances. I. MAIGE JUDGE 26/05/2021 16 Date 26/05/2021 Coram: Hon. A.S. Chugulu - DR. For the Plaintiff: Mr. Egidi Mkoba, Advocate For the Defendant: Mr. Herman Lupogo, Advocate and Mr. Bernadi Mkwabi, Advocate RMA: Bukuku COURT: Judgment delivered this 26th day of May, 2021 in the presence of Mr. Egidi Mkoba, learned counsel for plaintiff and Mr. Herman Lupogo and Mr. Bernadi Mkwabi, learned counsel for defendant. Right of Appeal fully explained A DEPl R 26/05/2021 17