salum omari elias vs nazir omar elias 2018 tzhclandd 447 6 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE N0.222 OF 2015 SALUM OMARI ELIAS................................................ PLAINTIFF Versus NAZIR OMAR ELIAS...................................................DEFENDANT Date of Last Order: 29.6.2018 Date of Judgment: 6.7.2018 JUDGMENT S.A.N WAMBURA, J: Two brothers Salum Omari Elias (plaintiff) and Nazir Omari Elias (defendant) are herein battling over a plot situated on Plot No. 127 Msasani Beach with CT.No.25552 (herein to be referred to as the disputed plot). The disputed plot was purchased from one Joginder Singh Saggu sometime in 1986. The brief facts of this matter are that the parties are sibling who grew up together running family businesses named as Associated Chemical Industries supervised by their deceased father. Some of the said businesses included iron smith, panel beating, repairing and painting, car radiating business, fabricating (done by Farida). They also purchased a number of properties from the money which accrued from the businesses including but not limited to buildings at Mindu Street Upanga, Mathuradas and Lugalo Flats at Upanga, Plots at Masaki, Regent Estate and at Msasani Beach. That after their father passed away the defendant who had already been married moved out of family home and went to live at Upanga, a flat also acquired under their joint projects. It is not on record that a probate matter was ever filed, but Nazir the defendant herein being the elder brother automatically took over the supervision of all the family businesses. However later due to family misunderstandings and change of life style the plaintiff decided to demand to be given his Certificate of Title in respect of Plot No. 127 Msasani Beach which was in the custody of the defendant but he refused. After various family meetings and the death of their mother, the defendant prepared a Memorandum of Understanding (herein referred to as MOU) tendered in Court as Exhibit D2 as narrated by both Pwl and Pw2. Though the plaintiff says he was not paid anything, the defendant and Dw2 Salim Esak Chaki say he was paid accordingly and so he has no claims against the defendant. That even under paragraph 3 of the said MOU, it categorically states that the plaintiff had no further claims against the defendant. As the plaintiff is challenging this propositions and the whole MOU he filed this suit. In his counter claim the defendant states he paid the plaintiff all monies as agreed in the MOU and so prays that the suit be dismissed or he be refunded all the monies paid to the plaintiff 3 as well as construction costs he incurred when building the house on Plot No.127 Msasani Beach. Before the hearing of the suit three issues where framed to be resolved by this Court. They are:- 1. Who is the lawful owner of Plot No.127 Msasani Beach Dar es Salaam. 2. Whether the defendant is entitled to his claims set up in the counter claim. 3. To what reliefs are the parties entitled to. I will now resolve the issues as framed herein:- 1. Who is the lawful owner of the suit property? Whereas the plaintiff who was supported by their sister Farida Mansoor Jira (Pw2) stated that the disputed plot was purchased by their late father in 1986, and that the said title was transferred into his name as ordered by their father in 1992; the defendant states that he purchased the same in 1992 and since his child was a minor he was advised by his lawyer to write the name of his brother due to the then Ujamaa Policy. That even the construction contract (Exhibit D l) was done by the defendant and the plaintiff conceded that the plot in 4 dispute belonged to him vide a letter dated 16/11/1999 and admitted in Court as Exhibit D3. Unfortunately neither party tendered a sale agreement to that effect. What I can say is that as the transfer was effected on 22/10/1992 then it is obvious that the purchase ought to have been before 22/10/1992. It is not in dispute that the disputed plot was purchased and transferred to the name of the plaintiff, whether as directed by their late father or on the advise of the defendants lawyer, the plot was in the plaintiffs name. The only issue is whether by signing the MOU he also surrendered the plot in dispute to the defendant. In the first place I would say that if at all the plot belonged to the defendant as alleged there was no need of signing the MOU in respect of the said plot. By signing such an agreement it meant the said suit premises belonged to the plaintiff. But I have gone through the provisions of paragraph 3 of the MOU. The said paragraph states and I beg to quote:- "3. That Salim Omar Elias also confirms that he has no claim and or any rights against his brother towards his properties of any kind which his brother Nazir Omar Elias holds in his name”. [Emphasis is mine]. It is my belief that the paragraph does not suggest nor indicate that the plaintiff had surrendered such ownership to the defendant. The paragraph does not state that he is surrending claims on properties in his name to the defendant which would include the suit property. The defendant was not holding the plaintiffs property in his name. It is worth noting that when the MOU was allegedly signed in November, 2009 the plot was still in Plaintiff’s name and not in defendant’s name. So he could not surrender the same to him as it was not in defendant’s name yet. These statement could include any other properties in Nazir’s name but not the suit property. If the defendant was referring to the disputed property he could have the same spelt out clearly as it was in respect of the hosue at Mathuradas Road. In the circumstances, I find that the plot in dispute herein belongs to the plaintiff. I do note that a transfer has been effected. That transfer was unlawfully done for as stated above the provisions of paragraph 3 of the MOU do not state so. The MOU could not be used as a basis of the alleged transfer. The notice of transfer [Exhibit D4] also bears no legal effect to the said transfer. 2. Is the defendant entitled to claims in the counter claim? It is undisputed that from the evidence adduced by the plaintiff to the counter claim these claims are also based on the MOU therein signed. 7 Dw2 alleged that he was the one who was given and asked to count the 20,000 USD. He did so and gave the said sum of money to the plaintiff. I have no dispute with that. However, one would only wonder why did he do so? It is on record and as stated by Dw2 himself, he is a very close friend of the defendant that the two brothers were running family businesses. There are allegations that the defendant had taken over all the businesses and left the plaintiff and their mother staving. So if at all he later decided to give the plaintiff the said monies, he was probably providing for what he was expected and ought to have done earlier. But again their father having passed away and if the defendant wanted to distribute the businesses and family properties amongst his siblings, he ought to have filed a Probate matter and not do so by signing of the MOU alone. 8 This would have effect if there was a probate matter or a resolution under the Companies Ordinance. We are not aware if either of this was done. But again Dw2 (who is a close friend of the defendant) alleged that he only witnessed the payment of 20,000 USD but did not say that he witnessed the 230,000 USD being paid as maintenance. Dw2 was even not sure whether the plaintiff was given the keys in respect of a flat at Mathuradas Street. The lawyer was not called to state if he witnessed the same. So there is not proof that the same was actually paid to the plaintiff though he signed the MOU. As for the refund of the construction costs there is ample evidence that the defendant was not running his own business but family businesses. So he cannot claim to be refunded the same. This is because he signed the construction contract as the 9 “Employer” on behalf of the family and not in his personal capacity as “Nazir Omar Elias”. In the circumstances, I believe the plaintiff to the counter claim has failed to prove that he is entitled to be refunded the amounts herein claimed. May I also point out that the MOU was only signed by an Advocate who did not drew nor witness anything. It is thus unknown as to who drew the MOU contrary to Section 44 of the Advocates Act, Cap.341 R.E. 2002. The dates and the name of person who introduced them to the Advocate cannot be read, despite of being inserted in black ink yet not verified. The same had to be witnessed by witnesses such as Dw2, but that was not the case. As the MOU stands there is even no mention on what their sister is entitled to though she was also contributing to the family businesses before her marriage. 10 It is my observation and belief that the counter claim cannot in the circumstances stand to bind the parties thereto. 3. What are the reliefs entitled to the parties? As to the reliefs, I herein make the following Orders:- 1. Plaintiff is declared to be the lawful owner of the suit property situated at Plot No. 127 Msasani Beach. 2. The transfer of the Certificate of Title from the plaintiff’s name to the defendant’s name is herein nullified for being null and void. 3. Defendant to issue vacant possession of the suit premises immediately. 4. Defendants counter claim is herein dismissed in totality. 5. Division of the family businesses and properties to be undertaken either by way of distribution in a probate matter or by dissolution under the Companies Ordinance as none of the two procedures was complied with. S.A.N. WAMBURA 4 udge 6/7/2018 li