IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM. (From the decision of the RM's Court at Kisutu before Msongo, RM) JUDGMENT

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1 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM EMMANUEL P. KYAUKA RESPONDENT (From the decision of the RM's Court at Kisutu before Msongo, RM) Date of last order - 12/9/2007 Date of Judgment - 18/10/2007 Shangwa, J. JUDGMENT This is an appeal against the decision of the Court of the Resident Magistrate at Kisutu in RM Civil Case No. 389 of 1999 which was delivered by Msongo, RM. In that case, the said Magistrate ordered the defendant now Appellant to give vacant possession of the suit premises to the plaintiff now Respondent. The Appellant was aggrieved with the said order and appealed to this court. His memorandum of

2 2 appeal contains seven grounds of appeal which I need not mention one by one. In general, the Appellant is faulting the trial Resident Magistrate for holding that the house at Plot No. 34/32 P Magere Street, Kinondoni area, Dar es Salaam Region belongs to the Respondent and not to him. In holding in favour of the plaintiff now Respondent, the trial Resident Magistrte based his decision on exhibit P.S, a Sale Agreement, which shows that the house in issue was sold by the National Housing Corporation to one Joseph Mlay who later sold it to the Respondent in 1999 at a sum of Tshs.4,7S0,OOO/= as per exhibit P.6 which is a Sale Agreement between Joseph Mlay and the Respondent. In addition to that, the trial Resident Magistrate based his decision on oral evidence given by PW1 Joseph Mlay who told the court that he bought the house in issue from the National Housing Corporation and sold it to the Respondent, and that Steven Mlay who is now the Appellant is his relative

3 3 who used to reside with him in that house and that when he was retrenched by STAMICO,he left him in that house and shifted to Vikindu Village. In his defence, the Appellant Steven Mlay posed as Joseph Simon Mlay and said that he bought the house in issue from the National Housing Corporation. He tendered a Sale Agreement which was admitted as exhibit D4. This Agreement was not given any weight by the trial court as it was not dated and stamped. Also, he tendered a letter dated 20/5/1996 which was admitted by the trial court as exhibit D5 and said that the Author of that letter namely the National Housing Corporation confirms that he is the lawful owner of that house. The trial Resident Magistrate did not find the said letter of any importance to his case as it was addressed to Joseph Mlay and not Steven Mlay which is his name. I have read this letter and found that there is nothing in it to show that the National Housing Corporation

4 4 did confirm that he is the lawful owner of that house. It simply requires Joseph Mlay and not him to sign the Agreement forms for the Sale of the house in issue which were attached to it and send them back to the National Housing Corporation for record purposes. In his written submissions, the Appellant Steven Mlay stated that the trial Magistrate was wrong in holding as follows:- (a) That there was no Sale Agreement between him and the National Housing Corporation while he had paid the purchase price. (b) That his standard VII Certificate (exhibit D6) is defective.

5 5 (c) That his deed poll (exhibit 010) which supports the change of his name is defective. (d) That he came into possession of the Sale Agreement by virtue of being a licence in the house in issue. He argued among other things that the trial magistrate erred in law for failing to take into consideration the fact that he bought the house in issue from the National Housing Corporation and paid shs.820, cts as its purchase price after obtaining a valuation report. It was submitted by counsel for the Respondent MSK Law Partners (Advocates) that the documents which were tendered in evidence by the Appellant do not prove that the title of the house in issue was transferred to him by the National Housing Corporation, and that he pretends to be

6 6 Joseph Mlay to whom the house in issue was sold by the said Corporation. They further submitted that the trial Resident Magistrate was right in declaring exhibit D4 illegal as it was not signed, dated or stamped. They contended that if at all the Appellant paid any money to National Housing Corporation for the purchase of the house in issue, he is at liberty to sue it for breach of contract and pray for the necessary remedies. They finally submitted that this appeal has no merit and prayed this court to dismiss it with costs. After going through the evidence which was tendered before the trial court and the written submissions which were presented by the parties to this appeal, I find that the trial Resident Magistrate did not err in holding in favour of the plaintiff now Respondent Emmanuel P. Kyauka and by ordering the Appellant Steven Mlay to vacate from the suit premises. Therefore, the trial Magistrate was correct in

7 finding that the house in issue was bought by Joseph Mlay from the National Housing Corporation and that the said Joseph Mlay sold it to the Respondent. From the evidence on the trial court's record, it is plain that the Appellant Steven Mlay is pretending to be Joseph Mlay who bought the house in issue from National Housing Corporation. For these reasons, I hereby dismiss this appeal with costs. ~-,- A. Shangwa JUDGE 19/10/2007 Delivered in open court this 18 th day of October, 2007 in the presence of the parties. A. Shangwa JUDGE 19/10/2007