said mohamed abubakar vs kinondoni municipal council others 2018 tzhclandd 368 29 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 81 OF 2014 SAID MOHAMED ABUBAKAR PLAINTIFF VERSUS KINONDONI MUNICIPAL COUNCIL 1st DEFENDANT JACOB M. NGOWI 2nd DEFENDANT MWANAHAMISI MUSSA 3rd DEFENDANT JUDGMENT Date o f Last Order: 05/04/2018 Date o f Judgment: 29/06/2018 MZUNA, J.: Said Mohamed Abubakar has instituted this suit against Kinondoni Municipal Council, Jacob M. Ngowi and Mwanahamisi Mussa claiming among others for a declaration that he is the lawful owner of the disputed property, a house being and situated on Plot No. 19 Magomeni, Dar es Salaam plus rental charges, mesne profit, damages and costs of the suit. The defendants strongly disputed the plaintiff's claims on account that his possession is tainted with fraud and prayed for the dismissal of the suit with costs. The plaintiff was represented by Mr. Ukwonga assisted by Mr. Stephen Urassa the learned counsels whereas the 1st defendant was represented by Ms. Tausi Kheri assisted by Mr. Mohamed Solicitors. The 3rd defendant appeared in person and unrepresented. The 2nd defendant was sued in his personal capacity as an employee of the 1st defendant and the suit proceeded in his absence. Both counsels filed their final written submissions as scheduled. I am thankful to them for their well-researched submissions which have been taken on board in this judgment. In order to prove the plaintiff's claim against the defendants, the plaintiff was the only witness as PW1. For the defence side the 1st defendant invited one witness namely Astamius Rugemalira (Dw 1) while the 3rd defendant testified as DW2 and called in Zena Yahaya Mkangara (Dw 3). Briefly stated the facts are as follows:- Parties are disputing over ownership of a house on Plot No. 16 Block 19 Magomeni, Dar es Salaam. The basis upon which the plaintiff's claims is based is that he says bought the suit premise since 2001 from Mwanaisha Juma (now deceased) as per the sale agreement (exhibit PI). He is challenging the 3rd defendant's interference over his possession. He tendered other documents showing how Mwanaisha came into possession of the suit house including deed of transfer Exhibit PI), transfer of right of occupancy (exhibit P2) and deed of transfer from the late Juma Dunia to Mwanaisha Juma (exhibit P3). The argument raised by the defence is that Mwanahamisi Juma being the administratrix of the estate of the late Juma Dunia, after the first administrator of the estate of Juma Dunia one Issa Hamisi Pama passed away she stepped into his shoes. It is argued that Mwanaisha Juma never passed title as she had no such mandate. It was not controverted that Juma Dunia was the owner of the suit premise before he passed away in 1990. The point which raised concern was whether he passed ownership to the said seller, Mwanaisha Juma who purported to be her daughter. At the hearing, three (3) issues were agreed by both parties for the determination of this case, namely:- 1. Who is the rightful owner o f the land in dispute? 2. Whether the intended revocation o f title o f ownership by the 1st defendant against the plaintiff is lawful? 3. What reliefs to which the parties are entitled thereto? Let me start with the first issue, that is, as between the parties, who is the rightful owner? 3 The evidence adduced by Said Mohamed Abubakar (Pw 1) is based on the fact that he bought the disputed Plot from one Mwanaisha Juma in 2001as per the sale agreement Exhibit P 1. He further tendered an affidavit (Exhibit P 3) showing that Juma Dunia confirmed the house was his and had transferred to Mwanaisha Juma. That after he was given all the documents by the said Mwanaisha Juma, Pw 1 including the transfer (exhibit P2) went to the Land office of Magomeni for the process of changing the name of which he did and he changed the name. Later on he was given the offer for right of occupancy which was admitted as Exhibit P 4. What prompted the institution of this case is for the reasons that his tenants were harassed by Mwanahamisi, the 3rd defendant who directed them to pay rent to her alleging that the house was hers. He therefore prayed to this court to restrain the defendants from interfering with his possession. In other words, he claims to be the lawful owner of the disputed land having purchased it legally from one Mwanaisha Juma. The defence case by Dw 1 Astamius Rugemalila was that he is an employee of the 1st defendant. He stated that the 3rd defendant went to their office claiming to be allocated the plot in dispute while it was already allocated to the plaintiff. He stated that the plot was first allocated to Mr. Juma Dunia in 1964 and later on it changed to Mwanaisha Juma in 1988. Then Mwanaisha Juma transferred the ownership to the plaintiff in 2001. He contended that they noted that Mwanaisha illegally changed ownership to her name hence they revoked the ownership of the plaintiff and told him to return back the letter of offer within two weeks so that the appointed administrator Mwanahamisi Mussa could own it legally. He tendered a letter of 21/11/2007 directed to Mr. Said Mohamed Abubakar which was admitted as Exhibit Dl, letter of 29/9/2010 directed to Mkurugenzi Manispaa ya Kinondoni admitted as Exhibit D2 and letters of 21/1/2011 directed to Commissioner for Lands which were admitted as Exhibit D3. Dw 1 averred further that thereafter they received a complaint from Said Mohamed Abubakar alleging to be the lawful owner of the suit premise. He therefore prayed for this court to nullify the ownership by the plaintiff so that the 3rd defendant be the owner of the disputed land. 5 On the other hand Dw 2 Mwanahamisi Mussa contended that she is the administratrix of the late Juma Dunia after the death of Issa Hamis Pama. She stated that the late Juma Dunia left a house on Plot No. 16 Block 19 Magomeni Mapipa and other farms. That during the burial ceremony one Mwanaisha Juma emerged and alleged to be a daughter of the deceased. Dw 2 contended that when the late Juma Dunia passed away in 1990, her uncle one Issa Pama was appointed as the administrator of the deceased's estate. That later on the said administrator died hence on 2004 she was appointed as the administratrix of the estate of the late Juma Dunia. Dw2 further stated that the plaintiff instituted Applications No. 147/2003, Application No. 245/2003 and Civil Appeal No. 245/2003 at Kinondoni District Court against Issa Pama, Akilimali Ahmed and Mwanaisha Juma. She tendered Orders in Civil Case No. 147/2003 Kinondoni District Court and Misc Civil Cause No. 245/2003 which was admitted as Exhibits D 4, D 5 and D 6. She contended that Mwanaisha Juma was not the daughter of the late Juma Dunia. Dw 2 therefore prayed for this court to order the plaintiff to handle the documents of ownership. 6 Dw 3 Zena Yahaya Mkangara who is the daughter of the 3rd defendant reiterated on what was stated by her mother. She said that she was the first person to be told about the death of Juma Dunia, her grandfather. In their written submissions, the learned counsels for the plaintiff submitted that the appointment of the 3rd defendant as the administratrix was after the transfer in 1988 and sale of the property by Juma Dunia to Mwanaisha Juma in 2001. Further that since Mwanaisha was legally allowed to own some farms left by her late father Juma Dunia, by necessary implication she has the same right to own the house in dispute which was given to her by deed of gift. Above all that the 3rd respondent was residing at Tabora and therefore could not have known all the transactions which were so done by the late Juma Dunia who was residing in Dar es Salaam. The defence submission was that according to Exhibit D1 Mwanaisha Juma was declared as a trespasser of the suit premise. Further that Exhibit D3 and D7 which are official letters showed that Mwanaisha concealed some facts that is the existence of a pending case No. 64/1996 which declared her as a trespasser in the disputed suit house. That on the basis of Exhibit D7 a 7 letter from the Commissioner for Lands to the Director, Kinondoni Municipal Council, there was fraud committed by the said Mwanaisha Juma. The bottom line of their submission was that Mwanaisha Juma being not the executor or appointed Administartrix could not have passed title as provided under section 99 of the Probate and Administration of Estates Act, Cap 352 RE 2002. Based on the above evidence and testimonies from both parties, this court finds as follows:- According to the evidence on record, there is no dispute that the disputed property was legally owned by Juma Dunia. The fact which was confirmed by both Dw 1 and the 3rd defendant. The question to ask, is whether the suit property formed part of the estate of the late Juma Dunia as contended by the defence or it was already transferred to Mwanaisha Juma in 1988. Dw 1 the Land Officer from the 1st defendant's office admitted that the record of their office shows that late Juma Dunia transferred the disputed house to the said Mwanaisha Juma. The same was confirmed by the plaintiff (Pw 1) who tendered Exhibit P3 which was not disputed. 8 However, based on exhibit D7, the Commissioner for Lands such transfer was revoked. The letter reference No. LD/284744/83 of 11/09/2013 speaks it all that:- Ninaagiza Halmashauri ya Manispaa Kinondoni kufuta kibali cha uhamisho wa milki uliofanyika kutoka kwa Mwanaisha Juma kwenda kwa Said Mohamed Abubakar kwa kuwa Ofisi yako inakiri kuwa kulikuwa na udanganyifu...Kwa kufanya hivyo, Barua ya toleo iliyotolewa kwa said Mohamed Abubakar itakuwa batili. Baada ya hapo halmashauri ya Manispaa ya Kinondoni itaendelea kummilikisha anayestahili..." (Emphasis mine). From the wording of that letter, the purported ownership by PW1, the plaintiff is nothing. He cannot claim to be the rightful owner. The alleged bequeath of the house to Mwanaisha Juma on 26/10/1987 for mutual love and affection and the alleged transfer of a right of occupancy of 24/03/1988 as evidenced by Exhibit P2 lacks any basis. Mwanaisha Juma fraudulently purported to have transferred the ownership of the disputed land from the late Juma Dunia to herself. No property which passed. As a matter of fact the Municipal council which is the overseer of ownership and transfer of title deed on behalf of the Commissioner for Lands, 9 observed there was something fishy "Mwanaisha Juma hakuwa mkweli" (see exhibit D3). She concealed a fact that there was a Court decision by Hon. Wambali, RM of December, 1996 that she was a trespasser. As a result, the plaintiff was ordered to return all his documents within two weeks as per exhibit D1 but never complied. How then can this court nullify such letter given the shaky evidence by the plaintiff? They were issued to him unknowing of the existing facts which was made known to them in 2001 by DW2, the 3rd defendant. It is therefore found that the house in dispute forms part of the estate of the late Juma Dunia. The property never passed to Mwanaisha Juma and later on to the plaintiff as at no point in time did it pass to another person from the late Juma Dunia. The first issue is therefore adjudged in favour of the 3rd defendant that the plaintiff is not the rightful owner of the disputed premise because his possession was based on fraud. I say so while fully aware that when the question as to whether someone has committed fraud is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is required in ordinary civil cases. That was held 10 in the case of Omari Yusuf v. Rahma Ahmed Abdulkadir [1987] TLR 169. The court further said:- " .. . The logic and rationality o f that rule being that the stigma that attaches to an affirmative finding o f fraudjustifies the imposition o f a strict standard o f proof..." I say so while fully aware that DW2 admitted never reported to the police about such fraud. I find and hold that fraud was committed and therefore the intended revocation by the 1st defendant is legally sound under the circumstance. This is based on the fact that Mwanaisha Juma never at any point in time was she appointed as the administratrix or even the executor of the deceased estate. I revert to the second issue, that is:- Whether the intended revocation o f title o f ownership by the 1st defendant against the plaintiff is lawful? This issue is based on exhibit D7 quoted above. The defence argument is that the Municipal Council blessed the move for the plaintiff to be the owner and therefore by the principle of estopel provided under section 123 of the Tanzania Evidence Act, Cap 6 cannot have a u-turn on the matter. ii The defence on the other hand says there was misinformation. A fact which was learnt in 2001 after DW2 notified them so. From what I have said above, no title which passed as Mwanaisha Juma committed fraud on the transfer of the ownership from the late Juma Dunia to herself as indeed DW1 said. She then purported to pass it to the plaintiff illegally. Section 123 of the Evidence Act, cap 6 RE 2002 would be valid if there was no evidence of fraud. The alleged sale was done at the time when there was a pending case against the seller. It was a void contract of sale and therefore unenforceable under section 10 of the Law of contract Act, cap 345 RE 2002. It says:- '1 All agreements are contracts if they are made by the free consent o f parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void..." The second point is that there cannot be transfer of Right of occupancy without consent of the relevant authority. I am fortified to this view by the case of Wayani Longoi and Another v. Israel Solomon Kivuyo [1988] TLR 262 (CAT) where the court held that:- 12 "1. What Regulation 3(1) o f the Land Regulations, 1948 means is that unless and until consent has been obtained the agreement cannot be enforced by suing on it; 2. An agreement to sell a right o f occupancy which has received no consent (approval) under the Regulation is inoperative and hence unenforceable at law - Nitin Coffee Estates Ltd and Four Others v United Engineering Works Ltd and Another fC.A. 15 o f 1988) unreported, was followed and applied." Based on the above position of the law, I hold this issue in the affirmative. The revocation was lawful. Section 123 of the Evidence Act would be valid if there was no fraud. If consent was given it was withheld on account of fraud. Lastly, on the reliefs to which the parties entitled thereto? This court finds that since the plaintiff has totally failed to prove his case albeit on the balance of probabilities, I proceed to dismiss the suit with costs. The reliefs sought by him equally fails. I would therefore say that the plaintiff is not the lawful owner of the disputed property for the reasons that his ownership was marred by fraud. Above all he did not exercise due diligence when he purchased it. If he has any claim it should have been against Mwanaisha Juma not otherwise. He is 13 accordingly ordered to handle all the ownership documents to DW 2 Mwanahamisi Mussa who with the assistance of the 1st defendant should proceed to do what the law demands them to do. Judgment for the defendants with costs. 14