rehema farid administrator of the estate of the late farid b magari vs fatuma mwinshehe vogogo 2018 tzhclandd 429 20 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO 348 OF 2015 REHEMA FARID (As the Administrator of the estate of the Late FARID B. MAGARI....................................... PLAINTIFF VERSUS FATUMA MWINSHEHE VOGOGO................................ DEFENDANT JUDGMENT 10/5/2018 & 20/7/2018 MZUNA, J.: Farid B. Magari who passed away when the matter was at the defence stage but is now represented by his wife one Rehema Farid said that he purchased the disputed land in November, 2007 from one Aloyce Joseph Kuhuni, being the Administrator of estate of the late Joseph Kuhuni, the original owner of the suit land. The subject matter in this suit is a piece of unsurveyed land measuring about 2.5 acres located at Pugu Kingongwe, Ilala Municipality Dar es Salaam. The plaintiff says Fatuma Mwinshehe Vogogo trespassed into the disputed land. i The defendant on the other hand says the disputed land was bequeathed to her by her late grandfather not as alleged by the plaintiff that her late husband was a mere caretaker of the farm. It is from this background that the plaintiff instituted this suit seeking for the following reliefs: a) A declaratory order that, the plaintiff is a lawful owner o f the land in dispute. b) Declaratory orders that, the defendant refrain from trespassing and interfering with the land in dispute. c) Cost for this suit takes its course. d) Any other relief(s) as this honorable court deems fit andjust to grant. Parties appeared in person and unrepresented. The following issues were agreed upon by the parties for determination 1. Who is the lawful owner o f the suit land? 2. To what relief(s) are the parties entitled thereto? Let me start with the first issue, that is as between the parties who is the lawful owner of the suit land. PW1 Faridi Baton Magari testified that he purchased the disputed land for Tshs 25,000,000/= in 2007 as per the sale agreement tendered as exhibit PI. The agreement according to Exhibit PI was between the plaintiff and the 2 administrator of the estate of the late Joseph Kuhuni Milanzi who according to Exhibit P3, purchased the suit plot from Athuman Mwinyijuma Mvogogo. What alerted the plaintiff is that in 2005 when the plaintiff installed poles, they were demolished as the defendant claimed to be the owner of the plot. Upon Pwl inquiring from the sellers, he was told that the defendant was just a care taker and that she might have confiscated the land illegally. PW2 Mathias s/o Joseph confirmed that they sold the disputed land to the plaintiff in their capacities as the administrators of the estate of their late father Joseph Kuhuni Milanzi. PW2 informed the court further that their late father purchased the suit land from one Athumani Mwinyijuma Vogogo in 1971 as evidenced by the sale agreement Exhibit P3. Apparently, their father Joseph Kuhuni had registered the suit land to be in the name of his children namely Alloys, Grace, Mathias and Stella as evidenced by Exhibit P2. PW3 Juma Said Shomvi testified that he witnessed the sale agreement between Joseph Kuhuni Milanzi and Athumani Minyijuma Vogogo and the one between the plaintiff and Alloyce Joseph Kuhuni in the year 1971. The sale price was for Tshs 250/=. He informed the court further that the witness 3 on the part of the seller was one Abdallah Shomvi (the late) who was a husband of the defendant. The defence case by DW1 Fatuma Mwinshehe Vogogo is that the disputed shamba is her lawful property which was given to her by her grandfather one Athumani Mwinyijuma Vogogo in the year 1972 and she had been using the same since then. When it was given to her it had cashew nuts. Dwl went further to narrate that, Abdallah Shomvi, her late husband had never been a casual laborer at any point in time. She strongly disputed the allegation that her late husband signed Exhibit P3 by a thumb print as he knew how to read and write as he worked even to Kilitex. She tendered the CCM membership card of 1977 (Exhibit Dl) as proof that he could sign not as alleged in P3 that he was illiterate. The witness further mentioned her neighbours including DW3 Rose Kyando Ngogo who neighbous her at the South Eastern side since 1991. Actually, even the 18 acres' farm which she owns, was bought from three members of the Vogogo family. Other neighbours to DW1 were her grandfather. The second plot has now been taken by her uncles' while the 4 present plot according to DW2 Hashimu Mwinshehe Vogogo was bequeathed to DW1, their sister and is at Pugu Kigongwe. Based on the above summation of the evidence, it is clear that issue of ownership centers on the reliability and credibility of witnesses. More so, whether the tendered documents by PW1 and DW1 are worth of belief? There is no dispute that the disputed land was originally owned by one Athumani Mwinyijuma Vogogo. The plaintiff's case is based on evidence that he purchased the disputed land from one Aloyce Joseph Kuhuni, the administrator of the estate of the late Joseph Kuhuni Milanzi. It is also in evidence that the said Joseph Kuhuni Milanzi purchased the disputed land from Athumani Mwinyijuma Mvogogo in 1971. To support his evidence the plaintiff tendered the two sale agreements and the will of Joseph Kuhuni Milanzi. Although the plaintiff summoned one of the sellers (PW3), it was prudent to join them as the defendants. I say so based on the decision of this court in the case of Juma B. Kadala v. Laurent Mnkande [1983] TLR 103 (HC) the decision I entirely agree. The court held that:- 5 "In a suit for the recovery o f land sold to a third party, the buyer should bejoined with the seller as a necessaryparty defendant; non-joinder will be fatal to the proceedings". (Emphasis mine). Although in that case of Juma Kadala (supra) the court found the need to have joined the person who was in actual possession of the suit plot, however even in this case the seller who seemingly never physically handled the suit plot to the buyer ought to have been joined. I say so because, the plaintiff said that the sale/purchase documents were signed at the Primary court but he never bothered to inquire from the defendant or her husband who was still alive if she was really an overseer of the farm as alleged. More so, the defendant has successfully mentioned her neighbours like PW3 who recognize her as the owner since 1991 unlike the plaintiff. That would mean she was the first to own it. Actually DW3 said runs a school and owns 18 acres of land. The defence case on the other hand is based on evidence that the disputed land was bequeathed to the defendant by her late grandfather. Although there were not tendered documents by the defendant as proof of 6 such bequeath, however her evidence was supported by the evidence of DW2 and the fact that even DW3 said purchased the plot from her close relatives. In other words, the defendant had been there long time ago and is surrounded by her relatives which adds weight to her evidence. The weaknesses of the plaintiff's case which has raised some doubts is the fact that when PW1 testified in court, he never tendered the sale agreement (exhibit PI) until PW2 came and said they were kept by their aunt who reside at Tanga. Actually, even the one who signed the sale agreement Mr. Aloyce Joseph Kuhuni never testified in court for undisclosed reasons. It was his brother who testified as PW2 while he admitted that the appointed administrator was Aloyce Joseph Kuhuni. Another point (s) which raises some doubts is that when PW1 was cross examined by the defendant he said that he was never shown his neighbors and that the street leaders do not know him. He said further that the plot was a bush but it was revealed by PW2 his witness that the plot was a farm. Even PW3 said at the time when PW1 bought it in 2007, it was a farm with 20 palm trees, 20 coconut trees and one mango tree. Although I cannot lay a precedent that every such sale must be witnessed by street leaders, however their presence adds more weight and in fact enhances the fact that there is no other owner at the material time. PW3 confirmed that, the sale was made without street leaders. Further, the allegation that the husband of the defendant was a caretaker, is something PW3 and the plaintiff never witnessed but said based on hearsay. Having carefully analyzed the evidence before me both for the plaintiff and defence, I am of the view that the documents which were tendered by the plaintiff especially Exhibit P3 is nothing but a forged document. First Exhibit P3 was not annexed to the plaint and as per decided case laws even without citing them, it cannot form part of the plaintiff's case and definitely that weakens his case. Even assuming it is anything to go by, still it did not say who were the neighbours to it or its exact location. More so, ordinarily, they ought to have been given to the plaintiff at the time of sale. Of course, DW1 attempted to impress court that the purported sale agreement was not signed by her late husband who signed by thumb print in that he was a Std IV leaver who also worked as an employee. That he 8 knew how to read and write. This evidence featured at the defence stage and this court is not bound to believe it as true in the absence of the said Abdallah Shomvi. Further, such document was not annexed to the written statement of defence and therefore cannot be given any weight without reasons for failure to do so. It is a well settled position of law that the burden of proof in any case lies on the one who alleges as it was so held by the Court of Appeal in the case of Tatu Mohamed v. Maua Mohamed, Civil Appeal No. 31 of 2000 in which Munuo, J.A (as she then was) cited the provisions of section 110 (1) of the Evidence Act, Cap 6 RE 2002 which provides that: "110 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist " On the basis of the adduced evidence by the plaintiff, I am satisfied that he has totally failed to prove that he is the lawful owner of the disputed land. I say so because though he alleges that the defendant was a trespasser, however the defendant was in occupation of the suit plot at the 9 time of the alleged trespass in belief that she owned it legally. It was held in the case of Jela Kalinga vs. Omari Karumwana 1991 TLR 67 (CA) that:- "One o f the defences against an action for trespass is a claim by the defendant that he had a right to the possession o f the land at the time o f the alleged trespass or that he acted under the authority o f some person having such a rig h t" (Emphasis mine) The first issue is therefore decided in favour of the defendant. She is the lawful owner of the suit plot. Lastly, on the reliefs which the parties are entitled thereto. Having found the first issue in the negative, I proceed to dismiss the suit with costs. Judgment for the defendant with costs. 10