Date O F Judgment 15/12/2020 Date O F the Last Order 26/02/2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 289 OF 2017 EMMANUEL CHARLES MALAGILA(As administrator of the estate of the late CHARLES MALAGILA)....................................PLAINTIFF VERSUS MANASE PIUS MALAGILA (also known as MARTIN PIUS MALAGILA)......................................................... 1st DEFENDANT NCBA BANK TANZANIA LIMITED AS THE SUCCESSOR OF THE COMMERCIAL BANK OF AFRICA (TANZANIA) LIMITED ...2nd DEFENDANT ENTERPRISES ALLIANCE LIMITED.... ...................................... 3rd DEFENDANT DEOGRATIUS MWIZARUBI KAJULA .........................................4th DEFENDANT DANSTAN NEHEMIA KABIALO .................................................5™ DEFENDANT Date o fJudgment 15/12/2020 Date o f the last order 26/02/2021 JUDGEMENT I. MAIGE. J The theme of this dispute is a real estate at plot number 2580 Block "Y" Tabata Area, Dar Es Salaam with certificate of title number 87013 ("the suit property7'). The plaintiff has initiated the instant suit in his representative capacity as the administrator of the estate of the deceased. He claims to have been constituted as such in 2016. The registration of the suit property in the name of the deceased was in 2010. Ordinarily, that would appear to be improbable. The deceased who expired in 2007 would not live in 2010 to procure a certificate of title on the suit property in his name. A plausible explanation to rebate the prima facie improbability was therefore i inevitable. In his pleadings and evidence/ it would appear, the plaintiff has attempted to give an account therefor. This is a very pertinent fact in determining the dispute. The plaintiff claims that the suit property while still un-surveyed, was acquired by the deceased way back in 1992 and it had since then been in his occupation. Upon the death of the deceased, the suit property remained in possession of his descendants, including the plaintiff. The plaintiff was not aware of registration of the suit property and subsequent creation of mortgage thereon until in 2016 when the same was in the process of being sold in realization of the mortgage in question. He discovered upon enquiry that, the first defendant who is the cousin brother to the plaintiff impersonated himself as the deceased and thereby procured a certificate of title on the suit property and subsequently mortgaged it to secure a loan advanced by the second defendant to the third defendant. Initially, the second defendant in this suit was Commercial Bank of Africa (Tanzania ) Limited. On 8th July 2020, the said company merged with NIC Bank Tanzania limited to form NCBA Bank Tanzania Limited. Therefore, this Court ordered that the case should proceed against the said company as a successor second defendant. This is in terms of order XXII rule 10(1) of the Civil Procedure Code, Cap. 33, R.E., 2019 (the CPC) which provides as follows:- 10-(1) In other cases o f an assignment, creation or devolution o f any interest during the pendency o f a suit, the suit may, byieave of the court, be continued by or against the person to or upon whom such interest has come or devolved. In his written statement of defense, the first defendant while admitting that the suit property was mortgaged to secure the loan in question, denies the allegation that the mortgage was illegally procured. Equally so for the second defendant. In addition, the second defendant has raised a counterclaim against the plaintiff along with Enterprises Alliance Limited, Deogratius Mwizarubi Kajula and Danstan Nehemia Kabialo who are not privies to the main suit. They shall, for the purpose of this matter be referred to as the third, fourth and fifth defendants, respectively. The reliefs sought in the counterclaim are as follows: First, declaration that the third defendant has defaulted payment advanced by the second defendant. Two, an order that the 2nd defendant be allowed to exercise her right contracted in the said mortgage deeds. Four, the defendants in the counterclaim be ordered to pay the outstanding balance. At the final pretrial conference, the following issues were framed to guide the Court in resolving the controversy:- 1. Whether the plaintiff did not create a mortgage on the suit property. 2. Whether the mortgage on the suit property in favour o f the second defendant was created fraudulently as alleged or at all. 3. Whether the third defendant in the counterclaim has committed any act o f default in terms o f the mortgage. 4. Whether the fourth and fifth defendant in the counterclaim guaranteed repayment o f the loan involved in this suit. 5. Whether the plaintiff in the main suit, the third, fourth and fifth defendant are liable to repay the loan. 6. To what reliefs are the parties entitled to. In advance of his case, the plaintiff testified as PW1. He was the sole prosecution witness. He represented himself as the administrator of the estate of the deceased (exhibit PI). He told the Court that, the deceased acquired the suit property in 1992 by way of purchase agreement while it was still unregistered, (exhibit P3). He said, the deceased used the names Charles Malagila and Charles Henry Malagila interchangeably. To bolster his claim, he produced, which was admitted as P2, an affidavit of names. Upon purchase, he testifies further, the deceased constructed a house wherein they stayed until he passed away in 2007. To establish the sence death of the deceased, PW1, aside from exhibit PI, produced a certified copy of the death certificate which was admitted as P4 with a note that the reason for overruling the preliminary objection would be incorporated in the judgment. The objection as to the admissibility of the document was raised by advocate Chaula for the second defendant. It was twofold. First, though the witness claims to have lost the origin, he has not demonstrated the efforts he took to trace the same. Two, the document sought to be produced differs with the attached one in that; the former is certified by a resident magistrate and the latter by the Administrator General. For the plaintiff, Mr. Kobus Odhiambo invited the Court to ignore the objection since after the loss of the original, the witness made effort to 4 procure a certified copy from the issuing authority, the Administrator General. It is the one which has been produced into evidence. Since the contention appears to question the authenticity of the evidence in the death certificate, I viewed it as a pure point of fact which would be considered in the course of assessing the probity and credibility of the evidence adduced. It is on that account that, I overruled the preliminary objection and admitted the document into evidence. PW1 testifies further that, after the death of the deceased, the suit property was leased to some tenants (exhibit P5). It continued so until in 2016 when he discovered that, the same was in the process of being sold in realization of the mortgage. Upon inquiry to the second defendant and subsequently effecting a search to the registry of titles, he established that, the first defendant had fraudulently mortgaged the suit property to secure a loan from the second defendant in favour of the third defendant to which he is a shareholder (exhibit P6). To establish the alleged forgery, PW1 compered the undisputed signature in exhibit P3 and the disputed one in the certificate of title (exhibit P7) and informed the Court that, the two signatures are prima facie different. In his understanding, the signature in exhibit P7 which purports to be of the deceased had been forged. He prayed therefore that, the mortgage and the whole process be nullified with costs. On cross examination by advocate Swenya, he told the court that, at the clan meeting subsequent upon the death of the deceased, the first 5 defendant was asked about the mortgage but was not cooperative. On why didn't he take a criminal action of forgery against the first defendant the answer from PW1 was that he did not have adequate cooperation from the law enforcement agencies. On further cross examination by Mr. Chaula, PW1 testified that, although in the RB the alleged offence was "kujipatia fedha kwa njia ya udanganyifu", the fraud in question was duly reported. He further told the court that, at the clan meeting, the intention was to resolve the issue amicably. It was not possible because the first defendant was not cooperative, he said further. He denied to be part of the fraud. He blamed the second defendant's predecessor for not acting with due diligence in the process. The first defendant testified as DW1. He is one of the directors of the third defendant. He admitted that, the suit property belongs to the deceased who was his uncle. He admitted further that, when the deceased expired in 2007, the suit property was yet to be surveyed. He however disclosed that it was the deceased who initiated the survey process during his lifetime. He disclosed further that, in the survey process which started at the level of serikali ya mitaa, he used to assist the deceased. He said, when the certificate of title was due, he was called to sign and collect the same. He subsequently mortgaged the same to procure a loan for business through the third defendant. He believed that he would make profit which would assist the family of the deceased. On cross examination by Mr. Chaula, he admitted that it was him who submitted the certificate of title to the second defendant. He further admitted to have represented himself as Charles Malagila. He admitted too to have deposed an affidavit wherein he represented himself as Charles Malagila. On further cross examination by Odhiambo, he told the court that, the clan meeting was held one day after the death of the deceased.

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