prim aloyce mushi another vs ibrahim twahili kasundwa others 2019 tzhclandd 70 20 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 601 OF 2018 (Originated from Land Case No. 274 o f 2017) PRIM ALOYCE MUSHI....................................... ^APPLICANT EPIMAKI S. MAKOI.......................................... 2NDAPPLICANT VERSUS IBRAHIM TWAHILI KUSUNDWA...................... 1st RESPONDENT IBRAHIM TWAHILI KUSUNDWA {the Administrator o f the Estate o f the ate TWAHILI SELEMANI KUSUNDWA) ..............2nd RESPONDENT CRDB BANK LIMITED Alias CRDB BANK PLC.... . 3rd RESPONDENT MEM AUCTIONEERS AND GENERAL BROKERS LTD................................. 4™ RESPONDENT RULING. S.M. MAGHIMBL J: On the 07th September, 2018, the Applicants herein filed this Application under the provisions of Order XXXVIII Rule 1 (1) (a), (b) and 2 of the Civil Procedure Code Act 33 R.E. 2002 ("The CPC"). In their Chamber Summons the applicants are seeking for the following reliefs: 1. That this Honourable Court be pleased to appoint a receiver who shall manage and collect house rent on Plot No. 13 Block 30 Nyamwezi Street Kariakoo under Certificate T. 32350 whose registered owners are Prim Aloyce Mushi and Epimark S. Makoi, but possession thereof is currently in the hands and control of the 1st Respondent one Ibrahim Twahili Kusundwa, pending the determination of Land Case No.274 of 2017. 2. That the 1st Respondent one Ibrahim Twahili Kusundwa or his agents be removed and prevented from collecting rent, and the amount already collected from tenants up to the date when the receiver is appointed be handed to the receiver. 3. Order fixing the amount to be paid as remuneration for the service of the receiver. 4. Costs for the Application be borne by the 1st Respondent. 5. Any other relief(s) this Honourable Court may deem fit and just to grant in the interest of justice. The Application is supported by the Affidavit of the 1st Applicant, Prim Aloyce Mushi dated 07/09/2018 which in their submissions, the applicant prayed that it forms part of the submissions. By an order of this court dated 29/05/2019, the application was disposed by way of written submissions. Before this court the applicants' submissions were drawn and filed by Mr. Godwin Musa, learned Counsel while 1st and 2nd respondents were represented by Mr. Rutabingwa and their reply submissions were drawn and filed by Mr. Erick Simon, learned Counsel. In his submissions to support the application Mr. Musa submitted that according to paragraphs 2,3,4,5 and 6 of the Affidavit in support of the Application, on 21st July, 2017 the Applicants purchased the house on Plot No. 13 Block 30 Kariakoo at a public auction conducted by the 1st and 2nd Respondents. Thereafter the 1st and 2nd Respondents filed Land Case No.274 of 2017 challenging the sale, and on the other hand the Applicants filed a counter claim against Respondents. He submitted further that the Applicants are registered owner of the house in dispute referring to Annexture PM3, the official search report. He also argued that the applicants have been prevented from entering and collecting rent from tenants on the 2 ground that there is a pending suit before this court and that the rent is being collected by the 1st Respondent who is not registered owner of the suit property. Mr. Musa submitted further that in event the main suit that is Land Case No. 274 of 2017 is terminated in favour of the Applicants herein, then it will not be possible to obtain back the rental amount collected by the first Respondent. That the current application does not defeat the interest of any of the parties to the main suit but rather intend protect all the parties from abuse of the amount being paid by tenants, until when this Honourable Court decides who is entitled to the fruits of the suit property. He argued that the application will serve two purposes: (1) It will prevent future litigation on matters that may arise on the same suit property. (2) It wiii put the parties at equal footing, as none of the parties hereto wifi be having an advantage o f utilizing the rents to the detriment of the others. In conclusion he prayed that on the strength of his submissions, the Application be granted as prayed. In reply, Mr. Simon submitted that by virtue of the provisions of Order XXXVIII Rule 1(1) (a) of the CPC, the appointment of a receiver is a matter resting on the discretion of the Court as the language used under that provision is "may". However, the discretionary powers have to be exercised judiciously taking into account the prevailing circumstances of the case, that is, having regard to the facts of the case it should be just and convenient to appoint a receiver. He submitted further that the application at hand is not justified as applicants have failed to establish a prima facie 3 case with the probability that it would be determined in their favour. He argued that the mere allegations that the property was purchased through the auction while the auction as alleged is in issue, do not give the probability that the applicants will succeed in the main case and that the facts as pleaded under the main case tilt in the favour of the 1st and 2nd respondents who are plaintiffs. Mr. Simon submitted further that the order appointing a receiver may be granted where the circumstances permits for the purposes of preserving the end of justice and that the applicants were supposed to prove that, they wont have any means to accomplish/execute the decree in the event it is issued in their favour. He supported his argument by citing the case of Roko Investment Company Ltd versus CRDB Bank Ltd, Commercial Application number 17 of 2013 (unreported) where Mruma J while Citing Mulla in the Code of Civil Procedure 16th Edition stated as follows "appointment o f a receiver is granted on the ground that there is no effective remedy for execution at iaw. Thusf appointment o f a receiver is not a matter o f right A proper case must be made to the satisfaction o f the court to warrant the exercise o f its discretion to that effect" To that end, Mr. Simon argued that the applicants have failed to show that the respondents will not be able to satisfy the decree if issued in their favour or whether the 1st and 2nd respondents have no properties other than the suit property that would be attached in execution of a decree if granted in their favour. That the applicants are merely relying on the accusations to 1st respondent by his sister Asha Twahili Kusundwa pointing out that even the affidavit being relied upon (Annexture PM4 to the affidavit of applicants), is not supported by any proof to show how the 1st respondent is utilizing the rent to his advantage. He argued that in fact, those are matters which were determined by the High Court (District Registry) in a decision to the case filed by the said Asha Twahili Kusundwa and another versus Ibrahim Twahil Kusundwa vide Misc. Civil Application No. 14 of 2014 (unreported) where at page 7 of that Ruling Hon. Mwandambo, J (as he then was), stated the following "There is no proof o f the manner in which the respondent is benefiting from the estate o f the deceased to the exclusion of other heirs." He then submitted that this Court should not act on mere accusations by Asha Twahili Kusundwa which have no the legs to stand on and which have already been rejected as indicated above. That the Orders sought under the application for appointing a receiver, have the effect of depriving the rights of the 1st respondent and the beneficiaries of the second respondent and that apart from the renting tenants, the proceeds of which are accounted for towards the loan account with the third respondent, the beneficiaries of the 2nd respondent are entitled to enjoy the fruits of the estate of their late father as stated under paragraph 7 of the 1st and 2nd respondents' counter affidavit. Further that the 1st respondent is neither exposing the said property to danger nor to loss thus, no sufficient reason is adduced to warrant the appointment of a receiver other than maintaining its status quo as applied by 1st and 2nd respondents / applicants under Misc. Land Application No.468 of 2018 pending for the determination before this court. 5 Mr. Simon submitted further that Mulla, In the Code of Civil Procedure 16th Edition, page 3801 while commenting on temporary injunction under Order 39 Rule 2 of the Indian Code of Civil Procedure vis a vis Appointment of a receiver under Order 40 Rule 1 of the said Indian Code of Civil Procedure which are in parimateria with Order XXXVII Rule 1 and Order XXXVIII Rule 1 of the CPC state the following "while in either case it must be shown that the property should be preserved from waste or alienation; in the former case it is sufficient if it be shown that the plaintiff in the suit has a fair question to raise as to the existence o f the right alleged, while in the latter case a good prima facie title to the property over which the receiver is sought to be appointed has to be made out" He then argued that the applicants have no good prima facie title over the property as they are alleging that they purchased it vide the auction while that auction is at issue in the main case. Further that even the purported registration in the names of applicants was never lawfully carried out and was in contempt of this Court orders issued by Hon. Madame Justice Makuru dated 1st August, 2017 vide Misc. Land Application No. 629 of 2017 and therefore, the applicants have no good prima facie title and they have brought this application without clean hands hence it should be dismissed. On Mr. Musa's argument that a receiver if appointed, will prevent future litigation over the suit property, Mr. Simon denied that arguent submitting that for instance, if we assume that a receiver is appointed and the amount for remuneration of his service fixed from the suit property and the suit is concluded in the favour of 1st and 2nd respondents (plaintiffs under the main 6 case), how can the amount utilized for remuneration of a receiver be recovered if not through litigation? That what if a receiver fails to account what he received? He concluded that if a receiver is appointed, there will be no end of litigation over the subject matter as suggested. He summarized that the Applicants have no good prima facie title over the property, no proof that thel51 respondent who is in occupation of the property in dispute is exposing it to danger or to loss and that no proof to the effect that applicants would have no effective remedy for execution in the event the main case is concluded in their favour. Owing to that summary, he prayed that the application is dismissed and further that the Applicants have filed this application without clean hands and their conduct is full of blame for violating the orders of this court. Having considered the records of the application and the parties submission thereto, I must start by noting what is apparent on the record of this application. It is trite law that the best and prima facie evidence to prove ownership of a registered property is the Title Deed. Therefore as correctly so prescribed by Mulla, in the Code of Civil Procedure 16th Edition, page 3801 cited by Mr. Simon, at this juncture, what I am to look at are the records of the main Land Case No. 274/2017 pending before this court and those records show that it is the applicants herein whose names appear on the title that has already been transferred, although the said transfer is challenged by the respondents herein. Therefore the status quo as we speak is that the disputed property is registered in the name of the applicants and it remains so unless and until that registration is revoked by any competent authority, they are the registered owner of the suit property. The 1st and 2nd respondents are only sailing on the fact that prior to the auction sale which appoint a receiver is a discretionary one, hence as correctly argued by Mr. Simon, the word "May"used in the statute. Therefore there are no hard and fast rules as to when the Court will appoint a Receiver, neither is there a formal requirement as to who can act as a Receiver. However, it may suffice to say that the circumstances to which a receiver may be appointed can be categorized into two, one is to preserve property from some danger threatening it and two is to allow someone who has a right over property to obtain the benefit of that right where ordinary legal remedies are not effective. In the first scenario, the danger to the property may include the fear by the applicant that a defendant intends to dissipate their assets prior to judgment. Having made those observations let me now come back to the application at hand. The applicants' fear that moved them to make this application is that the grant of the application will prevent future litigation on matters that may arise on the same suit property and that it will put the parties at equal footing, as none of the parties hereto will be having an advantage of utilizing the rents to the detriment of the others. With due respect to the learned counsel, those two reasons do not suffice to fulfill the circumstances I have elaborated above. For instance, the applicant has failed to establish any danger that is threatening the property or any intention whether implied or obvious that the 1st and 2nd respondents have, to dispose the property. Furthermore, the other condition for granting such application is to obtain the benefit of that right where ordinary legal remedies are not effective. As for the case at hand, the applicant has failed to show that right that he will deprived of which legal remedies to obtain will not be effective. The only reason advanced is that money is liquid and it can be easily stolen or spent and that in collecting the rent the first respondent is not 10 accountable to anyone. What I gather from this reason is more of convenience of the applicants to recover the mesne profits in case that the case is decided in their favour. In fact as submitted, they are avoiding future litigations to recover mesne profits, something which has to be put on the balance with the process of appointing a receiver and the costs and consequences incidental to the appointment. For instance and as correctly argued by Mr. Simon, the receiver will be appointed by court and he will have to be remunerated, account for collections etc. All these are costs incidental thereto and on balance of convenience and given the hearing stage that the case has reached, they will not be watered down to the convenience of the applicants to recover their mesne profits should the matter end in their favour. On all those observations and findings, I must conclude that the applicants have failed to convince the court as to the need of appointment of a receiver at this stage before the decree is passed. The application is therefore rejected at this point. However, I must point out that this application shall not be a bar to a future application of this nature to any decree holder of the outcome of this matter. As of now, this application is rejected. Application Not Allowed 11