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IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT PAR ES SALAAM
LAND CASE NO. 36 OF 2011
CHANDU POPAT................................................ .......... PLAINTIFF
VERSUS
BHARAT K. RU PARE LI A....................................... 1st DEFENDANT
ESSEN INVESTMENT LIMITED............................. 2nd DEFENDANT
JUDGMENT
14 Dec. 2017 & 21 Mar. 2018
DYANSOBERA, 3:
The plaintiff claims against the two defendants the following reliefs:
a) An order that the 1st and 2nd defendants are jointly and
severally liable to pay the plaintiff the sum of USD 1,610,000 as
damages.
b) An order that the 1st and 2nd defendants are jointly and
severally liable to pay the plaintiff damages to be assessed by
the court for the sum of USD 3,800 being monthly rental due
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on the property from 10th February,2011 until the final
determination of this suit.
c) An order that the 1st and 2nd defendants are jointly and
severally liable to pay the plaintiff interests on the damages at
the commercial rate of 10%
d) An order that the 1st and 2nd defendants are jointly and
severally liable to pay the plaintiff interest on the damages at
the court rate of 7% from the date of judgment up to the date
when the damages have been fully paid to the plaintiff.
e) A declaration that the right of occupancy dated 4th December,
1994 of the house situated at Plot No. 579A Upanga, Dar es
Salaam with Title No. 186171/57 and Land Office No. 142488
issued to the 2nd defendant by the Commissioner for Lands is
set aside as having been procured by fraud.
f) An order declaring the plaintiff as the lawful owner of a house
situated on Plot No. 579A Upanga, Dar es Salaam
g) An order that the Registrar of Titles rectifies the register by
removing the 2nd defendant's name as owner/title holder of the
house on Plot No. 579A Upanga, Dar es Salaam from the
Registry.
h) An order that the house on Plot No. 579A Upanga, Dar es
Salaam belongs to Chandu Popat.
i) An order that the Registrar of Titles to rectifies the register by
registering Chandu Popat as the owner of the house on Plot
No. 579A Upanga Dar es Salaam.
j) An order that the Registrar of Titles cancels the Title
Deed/Certificate of occupancy issued to and presently in the
possession of the 2nd defendant and issues a duplicate title
deed in the name of Chandu Popat.
k) An order that the 1st and 2nd defendants are jointly liable to pay
the plaintiff costs of this suit.
I) Any other relief which this Honourable Court may deem just.
It is the plaintiff's case, on one hand, that following the revocation of
his title to the suit premises, he engaged the 1st defendant to act as his
agent in processing the restoration of the title to him (plaintiff). That in
breach of his fiduciary duties, the 1st defendant fraudulently induced the
Commissioner for Lands to transfer the suit premises to the 2nd defendant
without the 2nd defendant providing consideration for the transfer. As a
result, the plaintiff suffered loss and damages of which the 1st and 2nd
defendants are jointly and severally liable.
Denying the claims, the two defendants, on the other hand, aver that
the plaintiff and the 1st defendant agreed that the 1st defendant would
follow up on the restoration of the suit premises and then purchase the suit
premises. That the suit premises was transferred to the 2nd defendant with
the consent of the plaintiff and that there was neither agent relationship
nor conversion of the suit premises but rather a vendor and purchase
relationships between the parties and thus, the plaintiff is not entitled to
the reliefs claimed.
Having prefaced my judgment with the above brief back ground, let me
now revert back to the matter at hand.
The pleadings have basically raised six issues which the court framed
and recorded on 22nd day of May, 2015. They are the following:
a. Whether the 1st defendant was an agent of the plaintiff in
relation to the processing the plaintiff's claim on restoration of
the revoked title.
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b. Whether the 1st defendant breached his fiduciary duties/trust to
the plaintiff
c. Whether the 1st defendant fraudulently induced the
Commissioner for Lands to transfer the property to the 2nd
defendant
d. Whether there was an agreement for sale and/or transfer of
Plot No. 579A, Kalenga Street between the Plaintiff and the 2nd
defendant
e. If issue No. d. is answered in the affirmative, whether the
transfer of the property to the 2nd defendant was in breach of
the 1st defendant7 s fiduciary duty and/or breach of the 1st
defendant's trust owed to the plaintiff.
f. What reliefs are the parties entitled to?
In proof of his case, the plaintiff called in three witnesses, namely,
NIMISH S/O POPAT (PW 1), ITISH S/O POPAT (PW 2) and CHANDU POPAT
(PW 3) who is the plaintiff in this suit.
On the other hand, the two defendants called one witness only that is
BHARAT K. RUPARELIA (DW 1).
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The plaintiff's case according to the three witnesses was as follows.
NIMISHI S/O POPAT (PW 1) and ITISH S/O POPAT (PW 2) are sons of
the' plaintiff CHANDU POPAT (who testified as PW 3) and all reside in
England; London. Before moving to London, PW 3 was staying at Plot No.
597A Upanga, DSM as the owner. In 1976 the title was revoked by the
President. After the revocation and at the time of leaving the house was
occupied by member staff of PWl's cousin one Gautham Ruparelia. There
after it was occupied by PW l's uncle who put the staff in the house. He
stayed up to the point the 1st defendant Bharat K. Ruperalia (DW 1)
moved into the house. DW 1 owns the factory for the Chemical Textile and
he wanted to use the house, to PW l's knowledge, for his staff. PW 1 was
with his father all the way through in his business until it came to an end.
He was helping him on his day today business including taking care of his
business as well as his personal affairs. Both were, by the time, living in
London. The first defendant is related to the plaintiff's sister called Viju
married to Gautham who is PW l's father's brother; he is father in law to
the marriage. The 1st defendant is Gautham's young brother. The house
was being managed by the family Gautham. The 1st defendant moved in
the house and allowed his staff to stay therein. The consideration was to
pursue the restoration of the title and paying taxes and all the bills. He was
to pursue the restoration of title by communicating with the Ministry of
Lands, to with the Commissioner of Land. He was supposed to make follow
up and report or update them about the restoration of the title. He did
update PW l's father in writing (Exh. P.l) inquiring why it was taking too
long to restore the ownership of the plot and was, at the same time asking
the Ministry to speed up the process. That PW l's father was being kept
aware of the Exh. P. 1 by verbal communication, faxes and letters sent to
PW 3 in London while he, the 1st defendant keeping the original copies.
Regarding the development process of restoration, PW 1 told the court that
in 1990 there was a letter dated 31st October, 1990 from the Ministry (Exh.
P. 2) confirming that the title had been surrendered by Gautham and the
restoration process had commenced. That the letter was addressed to the
plaintiff care of the 1st defendant. PW 1 emphasized that Bharat was
representing his father's interest in the house/ title of the property. The
expectation was that the title would be restored to his father. 1st
defendant duty was to ensure that PWl's interest was protected.
Later, it was found that through the letter (Exh. P.3), the 1st defendant
was asking the Ministry to issue offer to the defendants claiming that PW
l's father was no longer interested in the property which fact was not true
and the Ministry was thereby misled.
The Ministry then wrote a letter of offer to the 2nd defendant. In the year
2006, PW 1 instructed a lawyer to make a follow up to find out in whose
name the offer was and they discovered that the document was a letter of
offer from the Ministry of Land addressed to the 2nd defendant in respect of
Plot No. 597A, Upanga. The document is Exh. P. 4.a Right of Occupancy
was then issued to the 2nd defendant on 7th September, 1994 (Exh. P 5)
whereby it is indicated that it was granted to the 2nd defendant on 4th
December, 2014.
PW 1 said that the said Exh. P. 5 was not brought to the attention of
his father and nothing was paid to him in relation to the suit plot. The two
defendants paid nothing for their stay in the premises. In other words,
there was no consideration from the two defendants. PW 1 maintained that
he was always with his father as his right hand assistant.
To PW l's knowledge, the 1st defendant is still staying in the house and
that the rent which could be collected is very huge. He said that the house
is at Upanga at Kalenga Street and the Plot measures 1400 sq. metres. It
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has five rooms, a dining area and a kitchen. There is also a garden and a
water well. That the two small building could be let and fetch USD 6000
and USD 10000 per month each and that between 1993 and 1998, the
expected earnings could be USD 2000-3000 per month. According to PW 1,
the 1st defendant is the Director and shareholder to the 2nd defendant and
that by the 1st defendant acting dishonestly, the 2nd defendant was
implicated thereby. His actions were fraudulent and that amount to
conversion or even theft. PW 1 admitted that there was a discussion on the
suit being sold to the 1st defendant but that no conclusion was reached as
evidenced by Exh. P. 6. On cross-examination, PW 1 told this court that he
does practice in London and his business is in London and does not
possess landed property in Tanzania. He said that they immigrated to
London in 1979. His father left to London leaving their cousin in the suit
premises. The cousin is an architect and was house keeping the premises
and paying taxes. As to why his cousin vacated the house, PW 1 told this
court that his uncle wanted the house for his staff. He admitted that the
revpcation was done in 1976 but that he became aware of it in 1984 and
that when they handed the house to their cousin it had already been
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revoked. He had access to the house in 1979. He also admitted that there
was an agreement to sell the house for 100,000 Pound Sterling.
PW 1 also admitted to have filed a counter affidavit and to have
attached a letter (Exh. D 1). He stressed that they demand pament of
money and not return of the house. He said that the process of selling the
house to Mahmoud of Sumbawanga was unsuccessful because by the time
the,title had been revoked. There were also other documents attached to
the counter affidavit (Exh. D 2 collectively) and Exh. D 3 which is a fax
message on negotiation. The plaintiff contended that as he did not sell the
house to the person in Mpanda or to the 1st defendant, they need the
house.
PW 1 further told the court that his father migrated and wanted to sell
the house and that the 1st defendant was asked to make sure that the
house was restored and then if restoration was successful, the house
would be sold to the 1st defendant. He said that negotiation to sell the
house was going on when the title had been revoked. He admitted that his
father did not write to inquire into the progress of restoration of the house.
PW 1 also admitted that his father entrusted the house to Gautham, his
young brother but the one in possession is the 1st defendant and that a
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search made in 2006 revealed that the suit house was in the name of the
2nd defendant.
When cross-examined by Mr. Hussein, PW 1 said that his father had
tried to get the revoked title set aside and the 1st defendant was given
power to make inquiries, discussions and then report back to PW 3.
As to why they were not demanding rent from the 1st defendant, PW 1
said that the restoration process was still underway.
PW 2 ITISH POPAT supported the evidence of PW 1 who is his
brother. He testified that his father, PW 3, was the owner of the suit
premises and that he, PW 2, was also living there but in 1979 he moved to
London but the plaintiff remained in the house for another 3yrs. He
asserted that it is the plaintiff who was supposed to be the owner and not
the 2nd defendant. According to PW 3, the 1st defendant is shareholder and
director of the 2nd defendant. As to the circumstances which led the suit
property move to the two 2nd defendants, PW 2 told this court that he was
helping plaintiff in his business and personal affairs particularly when his
brother, PW 1 was busy and was effectively involved in the conversation
which started in 2006. It was PW 2's evidence that the plaintiff stated that
l i
due to his ill health, he would move back to Dar es Salaam where he still
had his brother and sisters. PW 2 said that he was told by the plaintiff that
the matter was delicate as the 1st defendant was still residing in the house
still reside in the house. That in view of the fact that Vijua was married to
the relative of 1st Defendant the plaintiff did not want to cause problem to
his sister; nevertheless, there was discussion since 1994 to resolve the
matter. PW 2 told the plaintiff that he would get contact with 1st defendant
to ask for house keys back. He told the court that he failed in that there
were negotiations on the price that taking place in 1994. PW 2 insisted that
the plaintiff told him that he wanted the house back because it was a
family house where the children grew up and there were ashes of their
grandfather at the suit premises. He went on telling this court that in June,
2006 he communicated with the 1st defendant by phone requesting the
house back and that the 1st defendant's elder brother promised that he
would talk to the 1st defendant but the 1st defendant said that he wanted
to first talk to Gautham Ruparelia who was also a share holder of the 2nd
defendant but Gautham then reported that it was the 1st defendant who
was to deal with the matter. As there was no positive response, PW 2
resorted to discuss the price of 100,000 pound with interest since 1994 but
was, instead told that if he insisted on the interest he would get nothing.
He said that if I went on asking for interest I would get nothing. It was in
thePW 2's further evidence that the 1st defendant said he was willing to
pay USD 100,000/= but he would pay only a half of it and the rest half
would be paid by the 2nd defendant after discussing with his brother. PW 2
sensed that there was like hood of getting a lower figure. He admitted that
at that time he did not know who Essen investment was and who its
shareholders were. He said that when he spoke to the plaintiff and PW 1,
he was told that the 1st defendant wanted to change 100000 Pounds to
USD 100000. That PW 2's efforts to have the amount of 100000 Pounds
paid with interest and the rental money for twelve (12) years that is from
1994 to 2006 proved futile as the 1st defendant refused to pay arguing that
the house already in the name of the 2nd defendant. PW 2 was shocked
and confused. The 1st defendant then sent him an e-mail but which did not
indicate that the house had been transferred to the 2nd defendant. PW 2
denied to have had the house sold or transferred to the 2nd defendant with
their consent. He said that upon inquiry with the Ministry, he was told that
the house was already transferred to the 2nd defendant. As there were no
documents showing that the house had been transferred to Essen
Investment or any letter from the plaintiff authorising the house to be put
in the name of the 2nd defendant, PW 2 realised that the house was
stolen. He then left the matter to PW 1 who was always dealing and taking
care of the plaintiff's affairs. PW 2 said that the conduct of the defendants
was very bad, dishonesty and fraudulent as he was supposed to fight for
the'house back to the plaintiff.
When cross-examined, PW 2 said that in 1979 when he migrated to
the United Kingdom, he was 7 years old and the plaintiff was doing hotel
business in London. He denied the existence of revocation of the title of
the suit house. He told the court that he was not aware that his father had
attempted to sell the house to a person from Mpanda. As to the delicacy of
thematter, PW 2 told this court that the plaintiff's sister was married to the
1st defendant's family and the 1st defendant was living in the house. He
said that he made an oral request to the 1st defendant to return the house
back to the plaintiff. He insisted that they was a lot of verbal
communication. He admitted to have not known who had proposed
payment of 100000 pounds. PW 2, in the end admitted that the title had
been revoked but argued that despite the revocation, the family was still
owning the house.
The last witness was M. CHANDILLAH POPAT, the plaintiff who
testified as PW 3. He told the court that the 1st defendant is his sister's
brother in law. At the time he was testifying he was living in Iling, London
where he moved in January, 1982. Before immigrating to the United
Kingdom, he was living at Plot No. 597A, Kalenga Street, West Upanga as
the owner of the property in question. When leaving, he left the house in
the care of Gauthambhai Ruparelia, his sister's husband. The 1st defendant
is of Gauthambhai Ruparelia. There were three considerations when
leaving the house that is to pay bills, house expenses and restore the
house back in his name as by the time the house was in the name of His
Excellency, President Ally Hassan Mwinyi. It is in the late 1980's that the 1st
defendant got involved in the affairs of the house. The 1st defendant's
duty, according to the plaintiff, was to restore the revoked title and pay
bills. As to the mode of communication with the plaintiff, it was his
evidence that the communication was through Gautham Ruparelia or in
writing and the plaintiff's elder son that is PW 1 was assisting him by way
of correspondences and phone calls.
In his evidence, the plaintiff told this court that the 1st defendant
wrote a letter to the effect that the house was going to be restored in the
plaintiff's name. The house was never restored back in the plaintiff's name,
he lamented. He said that it was in 2006 when PW 1 found that the suit
property was restored in the name of the 2nd defendant.
The plaintiff denied to have been paid by the 2nd defendant any
consideration for the transfer. He told this court that he trusted the 1st
defendant and that he wished to come back to Dar es Salaam to the house
where the ashes of his father and mother were. He told the court that he
had lost rent since 1983 and has also lost a house. The plaintiff, in main
denied to have either sold the house or signed any document.
On cross-examination, the plaintiff said that PW 1 was assisting him
in correspondences arguing that his (plaintiff's) writing was not good and
he was writing in Gujarat language and not in English and was signing. He
said that it was in 1990 when he received a letter that the house would be
restored in his name. Despite writing a letter in 1990, there was no
response. The same applied in 1999 when he wrote a letter demanding
back the house. As to Exh. P. 6 dated 4.1.1999, the plaintiff said that it
was about payment of rent due and the house. He swore that there was no
settlement at all and that he did not sign any document. He said that
before immigrating to London he could not remember to have wished to
sell the house to one Soud of Mpanda. It was his evidence that in
Tanzania, he had a Textile Shop Industry and Kahawa Shop and his
partner was Abdul Haji while in the Textile Industry, he was with Pratap.
He said that he was speaking to the 1st defendant through Gautham. He
said that he could not recall to have met the 1st defendant in London in
1986.
In his defence, BHARAT K. RUPARELIA, the 1st defendant who
testified as DW 1, informed the court that he is a business man dealing
with chemist business in Tanzania. He said that he is a Director and
shareholder in many companies such Essen Investment Limited (the 2nd
defendant), Holding Satellite Socks Limited, Chaparu Investments Limited,
Sunderji Nanji Limited and Cuses Security System Limited.
As with Essen Investment Limited (2nd defendant), the 1st defendant
told this court that there are other shareholders namely, G.K Ruparelia, H.
K Ruparelia and N. K Ruparelia. G. K Ruparelia who is the 1st defendant's
elder brother is the elder child in the family and is married to B. Viju, the
plaintiff's sister. Protap Rapat, the deceased, was the brother of C. A
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Popat, the plaintiff while Nimish and Itish are sons of the Plaintiff and are
related to the wife of Gauthambhai, one B.Viju.
The 1st defendant told this court that he lives at 597A Kalenga Street,
West Upanga where he has been residing since 1992. Beforehand, he was
living with his parents at Morogoro Road. As to the accusations of the
plaintiff levelled against the 1st and 2nd defendants transferring the revoked
title into the name of the 2nd defendant, the 1st defendant argues that the
accusations are unfounded as he is neither the issuer not the creator of the
said title deed. He said that the matter dates back to 1982 when the
plaintiff immigrated to the United Kingdom in 1982 so as to provide proper
education for his three children. Before his emigration, he had business
she owned in Dar es Salaam which he continued to own even after he
emigrated from Tanzania. He was dealing in Textiles which continued to
under the care of his late brother, Pratap Popat.
In the month of June 1983 the late Protap Popat, upon the
directions by the plaintiff, handed over to Dr. Ruparelia a title deed,
certificate of title, receipts of land rent, service charges and receipts of
penalty of delay in paying land rent together with a copy of a letter
18
addressed to the Commissioner for Lands on the reasons of revoking the
title.
It was the 1st defendant's evidence that before immigrating to the
United Kingdom, the plaintiff sold the suit property to a gentleman residing
in Mpanda, one Soud Salum of P.O. Box 39, Mpanda. The said purchaser
failed to effect the transfer of the title of the suit property because the title
had already been revoked by the President.
As at the time when the title deed was handed over by the late
Pratap Popat, to G. Ruparelia, the house was empty, nobody was residing
therein, it seemed uncomfortable to the plaintiff to have the house empty
and unsecured. As per discussion between the plaintiff and DW l's brother
G.K. Ruparelia, they had to take over the house and in principle, it was
agreed that the house be purchased by the family in the name of the 2nd
defendant and that the family would look into the matter and follow up
with the Ministry of Land. DW 1 followed up the matter to the Ministry of
Land with a view to understand the reasons for revocation.
In his various follow ups to the Ministry, the 1st defendant was given
a copy of revocation registered way back between 1972 and he advised the
Ministry that he should obtain a letter from the plaintiff. In the meantime,
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the value of the price had been set by the plaintiff. The 1st defendant then
travelled to England and met the plaintiff in 1986 and briefed him on the
progress he had made with the Ministry of Lands and requested from him a
letter which he had to address to the Ministry of Lands as to the reasons
for the revocation. It was his further evidence that having briefed the
plaintiff, they both wanted to agree on the price and where the money
should be paid. The plaintiff told him that at that moment there was no
need to settle the price but to rectify the revocation arguing that since it
was a family matter, no urgency for payment was necessary at the
moment but it was agreed that DW 1 should send a letter to the Ministry
with his signature. On returning to Tanzania, the 1st defendant prepared a
letter as agreed which letter was addressed to the Ministry and sent it to
the plaintiff requesting him to return original copy duly signed by the
plaintiff.
On receiving the letter from the plaintiff, the 1st defendant continued
with the follow up with the Ministry. The matter was not, however, smooth
as expected because although by the time the suit premises were being
occupied by the employees, the 1972 revoked title had been registered in
the name of the then President, Ally Hassan Mwinyi, the fact, DW 1 was
20
not aware of. It was the 1st defendant's further testimony that it became a
very difficult task for him but he spoke with various officers and visited
various offices in following up of the matter. At the same time, the house
in which the members of his staff were occupying needed renovation and
rehabilitation and they, as a family decided to renovate the premises so
that either one of the family or one of the directors of the 2nd defendant
would reside therein. This court was invited to admit some photographs of
the premises prior to and after the rehabilitation between 1988 and 1991
but the invitation was turned down after the objection was raised and
sustained on the admissibility.
It was the further evidence of the 1st defendant that before the
Ministry agreed to change the title there were about four successive
Ministers in the same Ministry. He, however, happened to have audience
with the Chief Secretary Mr. Rupia, who, after a briefing, asked him to go
and follow up the matter with the officer in the Ministry and was given his
cellular phone number. The 1st defendant persistently made a follow up but
he was later told that the only way was to ask the President Ally Hassan
Mwinyi to surrender the title issued in his name. Communication then
started between the office of the Principal Secretary, Ministry of Lands and
the State House. The 1st defendant was later told that the said President
had some documents to sign so that the title could be restored. The efforts
by the 1st defendant resulted into a Notice being published in the Daily
Newspaper in which Ally Hassan Mwinyi ordered a duplicate file to be made
for the title. The Ministry then gave the 1st defendant some letters in which
he indicated that the plaintiff was no longer interested with the suit
premises. The letters were to be signed by the plaintiff for transfer
purposes. The valuation was carried out and the 2nd defendant paid. The
Ministry looked for a possible way to issue the title to the 2nd defendant.
Finally, after all the documents were made available, the title deed was
issued in the name of the 2nd defendant.
According to the 1st defendant, the letter of offer was issued first
betweem 1992/1993. After payment of stamp duty to the Internal
Revenue, the Ministry issued a title deed to the 2nd defendant. The 1st
defendant went on stating that after the process was over, G.K. Ruperalia,
the 1st defendant's elder brother who was also one of the 2nd defendant's
directors went to his brother in law, the plaintiff, with a view finalising
payments left in abeyance by the plaintiff. A meeting was held and a
number of documents were presented to the plaintiff. In proof of this
aspect, the 1st defendant produced in court a Memo dated 21st December,
1994 (Exh. D 5). According to the 1st defendant, the Exhibit D 5 was
written to the plaintiff after a discussion was held between the plaintiff and
his brother in law and the plaintiff had indicated that he needed 100,000
Pounds though in 1983, the agreed price was 10,000 Pounds, so the
difference became a bone of contention as it was considered to be the
value of the property in Tanzania at that time.
The 1st defendant told this court that from 1983 to 1990 nothing took
place as the land officers were hesitant to contact the then President. Due
to the long time that elapsed, the plaintiff was to know and the 1st
defendant had to establish reasons for the delay. A receipt of special
delivery was tendered and admitted in Court as Exh. D 6. On 6th January,
1983 Advocate Majithia wrote a letter to the Hon. Minister for Lands and
Housing Development seeking reasons for the revocation of the title deed-
Exh. D 7. Later a letter of reminder was written by the same Advocate
Majithia to the same Ministry-Exhibit D 8. Also there was a handwritten
memo dated 21st May, 1986 which the 1st defendant authored on the
property at Upanga House which he sent to the plaintiff -Exhibit D 9. In
evidence was also tendered and admitted as Exhibit D 10 a receipt issued
by the Income Tax Department in respect of the Capital gain sales tax paid
for and on behalf of C.A. Popat, the plaintiff. Tendered also in court
collectively as Exhibit D. 11 were two Exchequer Receipts issued by the
Internal Revenue Office on 23rd day of October, 1982; one of the receipts
being for land rent and service charge from 1st July, 1974 to 30th June,
1982. The other Exchequer Receipt of 23rd October, 1982 issued by the
Internal Revenue. Land rent service charge penalty for 1st July, 1971 to 1st
July, 1974. These documents were handed over together with a certificate
of title by the late Popat to the 1st defendant's brother. Together with the
said documents, there were also a notice for payment of a land rent and
service charges which informed Mr. C.A. Popat, the plaintiff, to issue
payment. The date of the notice is 22.10.1982. There was also a notice of
land rent for the bill of 1st July, 1971 to 30th June, 1974 which all of them
were handed over by the late Pratap Popat to the 1st defendant's brother.
The 1st defendant also tendered in court a letter from Income Tax
Department issued on 29th January, 1993-Capital Gain Sales Tax and a
certificate in respect of payment whose original copy was given to the
Ministry-Exhibit D 12.
A flimsy file copy of the letter addressed to the Director of Land and
Development Services dated April, 1987 relating to the Right of Occupancy
with a certificate of a title. According to the 1st defendant, he was drawing
the attention on the previsions letter and is a reminder, a copy of which
was endorsed to the plaintiff-Exhibit D 13. Tendered in court also was a
Valuation Report in the form of a letter dated 23rd August, 1989from the
Ministry of Land and Natural Resources and Tourism addressed to the 2nd
defendant-Exhibit D. 14.
The 1st defendant told this court that the value of the property by
22nd August, 1989 was Tshs. 5,000,000/= according to the valuation by the
officer from the Commissioner for Land and Development Services which
amount could be equated to 150,000 Pounds in that year.
The fact that there was possibility of resolving the matter was
evidenced by the letter from the Ministry dated 25th day of August, 1989
addressed to Mr. C.A Popat c/o B. K. Ruparelia in respect of the house at
Upanga-Exhibit D. 15. The 1st defendant prepared a statement of fact
dated 10th May, 1990 which was signed by his assistant and addressed to
the Ministry -Exhibit P. 1. In addition, there are two documents -letters
addressed to the plaintiff dated 31st day of October, 1990 which is the
matter relating to the revocation and requesting Ally Hassan Mwinyi to hve
signed a deed of surrender (Exh. P. 2). There was a letter on wrongful
revocation signed by the 1st defendant addressed to the Ministry relating to
certificate of occupancy (Exh. P. 3). In further evidence, the 1st defendant
produced a letter dated 25th February, 1993 addressed to the Internal
Revenue office which was in respect of transfer and stamp duty -Exhibit D
16. A notice on the issuance of a duplicate of title as evidenced in a cutting
from a Daily News of 3rd October, 1995 - Exhibit D. 17. Exhibit P 4 was a
letter of offer dated 2th day of February, 1993 accompanied by original
receipts in respect of land rent and service charges from 1st January, 1993
to 30th January, 1993.
The evidence of the 1st defendant went further to indicate that after
the discussion, it was agreed that since the payment was basically a family
matter, he told the plaintiff that in 1999 he was prepared to pay 100,000
USD instead of 100,000 Pounds and that he was retaining the house for
the family which was unable to pay. The 1st defendant admitted to have
authored Exh D 3 stating that he went to visit the plaintiff in London and
intimated to him that 100,000 Pounds was high and told him that their
26
intention was to maintain family relationship. The 1st defendant admitted to
recognise Exh. D 1 which is a letter he himself authored to the plaintiff.
There was a hard copy of a fax transmission sent by the plaintiff on
4th June, 1999 Exhibit D 18 which is on efforts to resolve the matter
without unnecessary complications. The plaintiff happened to institute a
plaint against the 2nd defendant and the Commissioner fo Lands in the High
Court of Tanzania, Land Registry as Land Case No. 53 of 2009 as
evidenced by a copy of the plaint - Exhibit D 19 whereby the prayers were
on revocation of title and surrender of the title made to the President so
that it was restored to the plaintiff. In the said suit, there was no allegation
of fraud or breach of fiduciary duty. Likewise, no damages, be it special or
general were claimed and no rent was claimed. The suit was dismissed for
being time barred.
The 1st defendant asserted that he was making a follow up for the
restoration of the title not acting for the plaintiff and as such, he was not
his agent. He admitted to have written that the plaintiff had no longer an
interest in the suit property and explained that he had already sold it.
27
As regarding the reliefs the plaintiff is asking from this court, it is the 1st
defendant's contention that they have no any merit because the
documents which resulted into the transfer of ownership of the property to
the 2nd defendant was a creature of the Ministry.
On cross examination, the 1st defendant said that he moved into the
suit house in 1992, though formerly it was being occupied by the staff of
Calico Textiles Company Limited. He told this court that the discussion
between the plaintiff and him was for restoration of the title and then
purchase the property by the family. He admitted that at first, the following
up by the 1st defendant was on behalf of the plaintiff before the house was
occupied by the family. He said that in 1986 he went to London with a view
of knowing how to move forward and also, the plaintiff had to write for the
restoration of the title. He admitted to have no any document by the
plaintiff authorising the transfer of the title to the 2nd respondent. He,
however, explained that there was an agreement to sell the property and
that his family owns the property but then no payments have ever been
made. As to Exhibit D 6 which is a Royal Mail, the 1st defendant admitted
that he was not present at the meeting but he was sure the mail was
delivered to the plaintiff though the envelope is silent on what was
28
delivered. The 1st defendant emphasised that there was always an
agreement to purchase the said property.
The 1st defendant admitted to have no document signed by the
plaintiff authorizing the transfer of title deed to the 2nd defendant and no
payment has been made. He, however, explained that there was an
agreement to sell the property. The same 1st defendant recalled that the
Ministry said that before the registration of the title deed which was in the
name of Ally Hassan Mwinyi, there had to be a deed of surrender by the
said Ally Hassan Mwinyi. According to him, the house was sometimes
occupied and sometimes not occupied. The conversation between
Gautambhai and Popat were partly face to face and partly by telephone.
He maintained that he was making a follow up partly on behalf of
the plaintiff as the house was not yet occupied and partly on behalf of 2nd
defendant as there was an agreement for the purchase of the premises
As to who paid the capital gain tax, the 1st defendant said that it is
the 2nd defendant who paid capital gain tax and not the plaintiff because
(Exh. D 12) is clear that it is Chandu Popat c/o B. K. Ruparelia who paid
the Capital gain tax. It was the further evidence of the 1st defendant that
29
there was a valuation assessment that was carried out on the basis of the
value at that time. The 1st defendant admitted that in Exhibit D4, PW 2 was
demanding payment with interest but that the demand on payment with
interest came later 2nd August, 2006.
The essence of Exhibit D2 dated 8th June, 1992 was vacant
possession and handing over after he was not accepting its and 100,000
and if he accepted and paid the owner is Essen Investment Ltd, it was his
property and I am staying there.
In conclusion, the 1st defendant told the court that the title passed
in 1996 on the submission of the title deed and the 2nd defendant of which
he was the Director is the 2nd defendant was given ownership.
Having restated the evidence unfurled before this court by the witnesses, I
now come to the framed issues.
The 1st issue is whether the 1st defendant was an agent of the
plaintiff in relation to processing the plaintiff's claim on restoration of the
revoked title.
Counsel for the plaintiff in his endeavour of defining the term
agent, cited section 134 of the Law of Contract Act, [Cap. 345 R.E.2002]
30
which defines an agent as "a person employed to do any act for another
or, to represent another in dealings with third persons, and the person for
whom such act is done, or who is so represented, is called the principal".
Counsel for the plaintiff also quote the meaning of the word 'represent' as
defined by Black's Law Dictionary 6th edn. 2nd Reprint, 1992 at p. 1301 to
mean inter alia 'to stand in his place; to speak or act with authority on
behalf of such person.' It is learned counsel's argument that in this suit, it
is not disputed that prior to the revocation of the plaintiff's right of
occupancy over the suit premises the plaintiff was the registered owner of
the suit premises. That he immigrated to England sometime in 1982 and,
therefore, when the restoration process was under way, he was outside
the country. It is thus argued on part of the plaintiff that the 1st defendant
was therefore, acting on behalf of the plaintiff in dealing with the Ministry
of Lands, Natural Resources and Tourism in th restoration process. Counsel
for the plaintiff has also argued that under paragraph 9 (iv) of the Written
Statement of Defence Counsel filed on 8th July, 2011 it is admitted that
'the plaintiff handed over to the defendants a certificate of title under oral
agreement that the defendants would follow up on the restoration of the
title' and that under paragraph 12 of the same written statement of
defence, it is averred that 'they would inform the plaintiff of the
development in the restoration process of the plaintiff's title deed'. It is
argued that the evidence of PW 1 and PW 2 that the 1st defendant was
corresponding with the respective Ministry on behalf of the plaintiff.
Further that under paragraph 6 of Exh. P. 1 the 1st defendant states that
he was following upon the matter with the Ministry of Lands. Moreover,
that the 1st defendant in his testimony said that it was agreed that the
family will look into the revocation and follow up with the Ministry.
According to learned counsel, the 1st defendant confirmed that he
personally followed up the matter with the Ministry in 1983 after the title
deed was handed over to his family and that he testified that he travelled
to the United Kingdom to meet the plaintiff to request for a letter to be
issued to the Ministry and brief the plaintiff on the progress. It was further
submitted by counsel for the plaintiff that the 1st defendant testified that he
obtained a letter from the plaintiff to be submitted to the Ministry and
continued to make a follow up with the Ministry. Further that it was in the
evidence of the 1st defendant that he visited various officials in the Ministry
including the Principal Secretary and the Chief Secretary of the President,
receiving various information from the Ministry in relation to the restoration
process including information that he President was prepared to sign
documents submitted to him with a view of restoring the suit premises and
that he was following up the restoration process on behalf of the plaintiff.
Relying on sections 137,138 and 139 of the Law of Contract Act, learned
counsel said that no consideration is necessary and the authority of an
agent may be express or implied. Learned counsel for the plaintiff
concluded that in this case, the authority was both express and implied.
Counsel for the defendant on this 1st issue, submitted that the
relationship between the plaintiff and the 1st defendant was that of a
purchaser and vendor and not one of an agency. He contended that in his
evidence, the plaintiff asserted that towards the end of 1980's, based on
an oral agreement between the plaintiff and the 1st defendant, the latter
was allowed by the former to occupy the suit property free from rent and
on consideration that the 1st defendant followed up the restoration of the
title to the property in question. It is learned counsel's view that there are
strong factors militating against imparting credence on the claim that there
was an agreement for the 1st defendant to act as an agent based on free
occupation of the suit premises. Counsel elaborated his point as follows.
First, PW 1 and the plaintiff gave evidence regarding the agreement but
the plainlltiff who was privy to the contract did not refer to it in his
evidence in chief instead, in cross examination he admitted to have not
entered into agreement as pleaded. Second, that the agreement that the
1st defendant would follow up on the restoration of the revoked title was
not pleaded in its earlier case that is Civil Case No. 53 of 2009 (Exh. D. 19).
Learned counsel therefore contends that the claim of agency is a post facto
after dismissal of the original suit.
Regarding the evidence of the 1st defendant, counsel for the
defendants told this court that in 1986 he travelled to England and met the
plaintiff on 3.5.1986; briefed him about the restoration of the title and
discussed about the purchase of the property and that upon return, he
prepared Exh. D 9 which was to be signed by the plaintiff and presented to
the Ministry. Further that when the plaintiff was asked on this aspect, he
said that he could not recall. It is the argument by learned counsel for the
defendants that the 1st defendant's involvement with the property prior to
moving into the house puts quietus to the plaintiff tendentious
afetethought that the 1st defendant was an agent. He contended that the
1st defendant's move indicates that he was interested in purchasing the
property and that the inference is enhanced by the fact that the plaintiff
34
never inquired into the progress or conclusion of the restoration of the title
in question; on the contrary, the plaintiff only inquired into the purchase of
the property as it was agreed in December, 1994. Furthermore, the plaintiff
did not bother to follow up what was the fate of Exhibit P. 2 and that the
series of exchanges infer on the purchase rather than on the restoration. It
was also submitted that there was evidence that around 1994 parties had
agreed to purchase price of 100,000 Sterling Pounds which means that the
agreement was precipitated by the plaintiff's receipt of documents on 22nd
December, 1994. Counsel for the defendants was of the view that the
plaintiff was kept abreast of the developments regarding the status of the
property hence the letter Exh. P 3 was neither false nor fraudulent.
The issue before me is whether there was a principal - agent
relationship between the parties to the suit. The evidence suggests that the
answer to this issue is in the negative. I will explain.
I had the occasion of reading Anson on The English Law of
Contract and Agency In Relation to Contract by Sir William Anson,
22nd Edition by A.G. Guert, M.A., The English Language Book Society and
Oxford University Press, Chapter XIX where the learned author, at page
536, observes that:
35
The relations of the principal and agent inter se [between or
among themselves] are made up of the ordinary relations of
employer and employee, and of those which spring from the special
business of an agent to bring two parties together for the purpose of
making a contract - to establish privity of contract between his
principal and third parties. The rights and duties of the principal and
agent depend upon the terms of the contract, whether express or
implied, which exist between them. But in addition to these specific
provisions, the mere existence of the relationship raises certain rights
and duties on both sides............the rights o f the principal against
the agent, and then the rights of the agent against the principal
This legal position was echoed by the Court of Appeal of Tanzania in
the case of Registered Trustees of the Cashewnut Industry
Development Fund v. Cashewnut Board of Tanzania, Civil Appeal No.
18 of 2001. In that case, sometime in 1996, by a mutual agreement, the
respondent undertook to collect an export levy from the cashewnut
exporters and remit the same to the appellant. There was an agreement
that the export levy would be 3% of F.o.b value of cashewnut exports. 2%
of the deducted money would then be remitted to the appellant. The
respondent would retain 1% for administrative expenses. The parties
further concede that the respondent remitted to the appellant, the sum of
Tsh. 1,735,740,135/=. In the course of auditing, the Tanzania Audit
Corporation queried the deduction and payment of the cashewnut export
levy to the appellant; the payment was thence suspended, pending
investigations and directions from the Ministry of Agriculture. It is the case
of the appellants that the respondent collected but did remit a total of Tsh.
1,887,599,526/=, the subject matter of this appeal. The High Court
dismissed the suit with costs. The appellants then appealed to the Court of
Appeal but the Court of Appeal endorsed the judgment of the High Court
and dismissed the appeal with costs.
The principal -agent relationship is an arrangement in which one
entity legally appoints another to act on his behalf. In a principal-agent
relationship, the agent acts on behalf of the principal and should not have
a conflict of interest in carrying out the act.
In the suit on hand, there was no employer - employee relationship
between the parties to constitute an agency relationship. Nor was there a
special agency for the purpose of making a contract. All there was, was
that the defendants were beneficiaries, and, therefore, at the receiving end
37
of the suit premises. In that regard, the plaintiff was not a principal so the
1st defendant was not his agent. That being the position, I am satisfied
and hereby find that there was no agency relationship between the parties.
As far as the second issue is concerned, that is whether the 1st
defendant breached his fiduciary duties and/or trust to the plaintiff, I am in
no doubt that whether the principal agent relationship is expressed clearly
through a written contract or is implied through actions, the principal-agent
relationship creates fiduciary relationship b/n the parties involved. This
means an agent acting on behalf of the principal must carry out the
assigned tasks with the principal's best interest as priority. The agent is
responsible for completing tasks given by the principal so long as the
principal provides reasonable instruction. Additionally, the agent has an
obligation to perform tasks with a certain level of skill and care and may
notjntentionally or negligently complete the task in an improper manner. A
duty of loyalty is also implied within the principal agent relationship, which
requires the agent to refrain from putting himself in a position that creates
or encourages a conflict between his interest and the interest of the
principle.
38
It is the contention of the counsel for the plaintiff, citing Chitty on
Contracts, that it is an established principle that where an agent
undertakes to act for another in circumstances giving rise to a relationship
of trust confidence he owes fiduciary duties to prefer his principal' s
interest to his own and that as a fiduciary, an agent must not, without first
obtaining the informed consent of his principal, put himself in a position
where his duty to his principal conflicts or may conflict with his own
inteests or the interests of another principal. Counsel argues that as an
agent, the 1st defendant was required to act in good faith and in the best
interest of the plaintiff and not to place himself in a position in which his
personal interests might conflict with the interests of the plaintiff. That, the
1st defendant breached his fiduciary duties and /or trusts as an agent of
the plaintiff. How? Counsel for the plaintiff submitted that the breach was
by informing the Commissioner for Lands, through Exhibit P. 3 that the
plaintiff was no longer interested in the suit premises therefore inducing
the Commissioner for Lands to issue the title deed to the 2nd defendant
the,company he happened to have interested on as a shareholder and a
Director. Further that, as tiestified by DW 1 he is one of the shareholders
Director and is currently residing in the suit premises after moving there in
1992 which means that it was his personal interest as the occupier of the
suit premises aiming at residing in the suit premises without paying rent
without having entered into an agreement with the plaintiff. Counsel for
the plaintiff dismissed the evidence that the Exhibit P 3 was issued with the
consent of the plaintiff whereas in fact there were discussions only as
evidence by Exhibits Dl, D 2 collectively, D 3 and D 4 but no conclusion
was reached and that is why the plaintiff asked for vacant possession of
the suit premises in 1998 and 1999 (Exhibit D. 2). Counsel for the plaintiff
also said that the case of Guerin v. Canada cited by counsel for the
defendants is not binding on this court.
With this submission, counsel for the plaintiff invited the court to
answer the second issue in the affirmative that the 1st defendant breached
his fiduciary duties to the plaintiff.
Replying to this submission, counsel for the defendants told this court
that there was no such relationship. He said that the evidence is shorn to
indicate that the 1st defendant was imparted with power whose exercise
could adversely impinge on the plaintiff's interest and that PW 2 was clear
that the 1st defendant was given powers to make inquiries, discussions
and report to the plaintiff. The decision whether the revoked title
40
would be restored to the plaintiff was in the discretion of the
Ministry and the 1st defendant could not have any influence other
than making inquiries. This court was told that there are two classes of
fiduciary relationship, namely, recognised or per se categories such as
trustee-beneficiary, agent-principal, director-corporation and solicitor -
client and the second is legal relationship and was implored to examine the
relationship between the parties and determine whether the incidents are
such to warrant imposition of the fiduciary duties. Counsel for the
defendant relied on the case of Guerin v. Canada [1984] 2 SCR 335. He
was of the view that there are three general characteristics of the fiduciary
relationship: first, the fiduciary has scope for the exercise of some
discretion or power, second, the fiduciary can unilaterally exercise that
power or discretion so as to affect the beneficiary's legal practical interests
and third, the beneficiary is peculiarly vulnerable to or at the mercy of the
fiduciary holding the discretion or power. It is the argument of learned
counsel for the defendants that these characteristics were not proved in
evidence and emphasised that a fiduciary relationship involves one person
exercising discretionary power over the practical interests of
another entails that the parties are unequally situated, with the
41
beneficiary dependent upon, and vulnerable to the fiduciary in the
exercise of power by the fiduciary. Further that, vulnerability in
this sense follows from the dependence of the beneficiary on the
fiduciary in the exercise of discretionary power. As a result of the
fiduciary relationship, the principal interests can be affected by,
and are therefore, dependent upon, the manner in which the
fiduciary uses the discretion, which has been delegated to him.
In determining the existence of fiduciary relationship so as to create
a fiduciary duty, threshold consideration in my view is that the potential
plaintiff should examine four important parameters in fiduciary duty cases.
First, what are the parameters of the defendant's fiduciary obligations?
Second, by what standards will the defendant's fiduciary obligations be
measured? Third, who has the burden of proof? And four, are there any
documents or facts to prove the fiduciary's obligations?
In the first place, it was amply proved that parties from the inception of
their relationship, had agreed to on sale and purchase of the of the suit
premises. Second, the 1st defendant was tasked to follow up the
restoration and if succeeded, the house would be sold. Third, the plaintiff
was not precluded from making a follow up with the Ministry of the
42
restoration of his revoked title. Indeed, the evidence of the plaintiff, PW 1
and PW 2 was clear on this. I agree that the fiduciary relationship cannot
be inferred on the basis of the plaintiff's expectations. Fourth, there was no
undertaking on part of the 1st defendant to exercise a discretionary powers
in the practical interests of the plaintiff. It is possible that the plaintiff had
interests in having the revoked title restored to him; but was that a
practical interest? I think not. Neither the plaintiff nor the 1st defendant had
the discretion of restoration of the title. As rightly pointed out by counsel
for the defendants, the decision whether the revoked title would be
restored to the plaintiff was in the discretion of the Ministry and
the 1st defendant could not have any influence other than making
inquiries. Besides, the Ministry had discretion to whom would the
revoked title revert and not necessarily to the plaintiff as the
plaintiff and his counsel wanted this court to believe.
As to whether there was breach of the fiduciary duty on part
of the defendants, the answer must be in the negative. The
reasons are not far-fetched. First, as I have found above, the 1st
defendant did not owe any fiduciary duty to the plaintiff. To prove
a breach of a fiduciary duty, the plaintiff must show existence of a
43
fiduciary relationship. He must also show that the duty owed to the 1st
defendant and the damages approximately caused by the breach. These
elements, the plaintiff has failed to prove, albeit on preponderance of
probability. Conversely, the defendants, through DW 1 have proved on
balance of probability that in the transaction of both making a follow up
and inquiries, the 1st defendant made a reasonable use of confidence that
the plaintiff placed in him, acted in utmost good faith and exercised the
most scrupulous honesty toward the plaintiff and he fully and fairly
disclosed all important information to the plaintiff concerning the
transaction explained above that is of making a follow up and inquiries. As
stated above, the restoration of the suit property to any person, leave
alone to the plaintiff was within the discretion of neither plaintiff nor the 1st
defendant but with the Government of the United Republic of Tanzania,
through its Ministry of Lands.
The second issue is answered in the negative.
On the third issue, that is whether the 1st defendant fraudulently
induced the Commissioner for Lands to transfer the property to the 2nd
defendant, I agree that the plaintiff's case on this issue revolves around
Exhibit P. 3 which is a letter authored by the 1st defendant to the
44
Commissioner of Lands dated 11th February, 1993 that the plaintiff was no
longer interested in the property. The issue is whether there was a
misrepresentation. It is argued on part of the plaintiff that paragraph iv of
the written statement of defence and Exhibits P 1 and P 2 show that the 1st
defendant was required to follow up on the restoration of the title to the
plaintiff firs, and that what would have happened after the restoration is
another issue; that in terms of Exhibit P 2, the Ministry of Lands intended
to return the title of the suit premises to the plaintiff as it was wrongly
revoked it being the position as at 31st October, 1990. That since the title
was not restored to the plaintiff the only conclusion is that, but for Exhibit
P 3, the suit premises would be returned /restored to the plaintiff.
According to learned counsel, the defendants have failed to produce
documents showing that the plaintiff was no longer interested in the suit
premises and that the plaintiff authorised the transfer of the suit premises
to the 2nd defendant, hence the 1st defendant fraudulently induced the
Commissioner for Lands to transfer the title to the 2nd defendant.
Counsel for the defendant, on the other hand submitted that the
claim of fraudulent misrepresentation is an afterthought and that there is
no evidence to prove it but a mere conjecture. Counsel for the defendants
45
explained that prior to the commencement of the evidentiary hearings, the
defendants made an application seeking the enjoinment of the
Commissioner for Lands vide Land Application No. 96 of 2015 but the
plaintiff opposed the application and it was thus dismissed. Further that
failure to enjoin the Commissioner for Lands has left the plaintiff saddled
with the impossible task of proving a clai for fraudulent misrepresentation
without detriment reliance on its part or the Commissioner for Lands and
that the court has to draw adverse inference on part of the plaintiff for his
failure to have the Commissioner for Lands to have been enjoined as had
been requested by the defendants. He relied on the case of Hemed Said
v. Mohamed Mbilu [1994] TLR 113. Learned counsel also pointed out
that the plaintiff failed to prove the requirement of the liability for
fraudulent misrepresentation which are that the defendant made a false
representation to the claimant, the defendant knew that the representation
was false, alternatively, he was reckless as to whether it was true or false,
the defendant intended that the claimant should act in reliance on it and
the claimant acts in reliance on the misrepresentation and in consequence
suffers loss. This court was referred to the decision by Lord Hershell in
Derry v. Peek (1889) 14 App. Cas337 (HL). Counsel for the defendants
contended that the allegations of fraud or dishonesty were not pleaded
with specificity with the primary facts justifying inference of fraud. He
relied on the case of Three Rivers District Council v. Governor and
Company of the Bank of England No. 3 (2003) 2 AC 1 at p. 41. He
explained that there was no proof that the assertion in Exhibit P 3 had
material impact on the Commissioner's decision to transfer the title. In
short, it is argued for the defendants that there was no evidence that the
representation was fraudulently made. Counsel for the defendants
explained that according to the plaintiff's evidence, following his
immigration to the UK in 1983 the suit property was entrusted to
Gautambhai Ruparelia, the 1st defendant's brother for use of his staff on
consideration that he paid and rents, taxes and followed up on the
restoration of the title deed which had been revoked in 1976, the question
arises, was Gautambhai Ruparelia involved in the restoration? Where does
the nexus of the 1st defendant being an agent of the plaintiff arise? This
court was told that PW 1 was not privy to the contract and had no first
hand basis knowledge regarding the existence of the agreement and its
terms. This court was invited to refer to some letters or exhibits of that
existed prior to the breath of dispute between the parties which could
throw clear light on their knowledge and intentions at a particular time.
The court was referred to Exhibit D 1. Counsel for the defendants further
contended that the Commissioner could not rely on only Exhibit P. 3
without other valid document. It was concluded that what caused the
transfer is the submission of the documents which were intimated in the
letter dated 11.2.1993 and a transfer perfected upon submission of the
transfer deed, payment of capital gain, tax, stamp duty and payment of
approval and consent fees; and therefore, Exhibit P. 3 did not influence the
judgment of the Commissioner for Lands and had no effect on his decision.
, I think the defendants are right. The elements of fraud and fraud in
inducement are four. First, there must be a representation or concealment
of a material fact. Second, the representation or concealment must be
reasonably calculated to deceive. Third, it must be made with intent to
deceive and it must in fact deceive and four, the deception must result in
damage to the injured party.
As correctly submitted by counsel for the defendants, there was no
proof that in effecting the transfer of the title, the Commissioner for Lands
relied on Exhibit P. 3 only. The plaintiff failed to prove what the actual
material fact was represented or concealed. It was not proved that Exhibit
48
P 3 was reasonably calculated to deceive and in fact deceived the
Commissioner for Lands. As rightly pointed out by counsel for the
defendants, there was an application by the defendants that the
Commissioner for Lands be enjoined in the suit but the plaintiff opposed
the application which application was thus dismissed. The same
Commissioner for Lands was not called in court to support the plaintiff's
assertion that he was deceived by which document. Indeed the evidence
falls short of proving that there was any false representation or
concealment of a material fact made with intent to deceive and in fact
deceived the Commissioner for Lands resulting in damages. Besides, it
difficult to prove any injury to the plaintiff because the revoked title deed
had not and was not restored to the plaintiff.
- The fourth issue is whether there was an agreement for the purchase
and for the transfer of Plot No. 597A Kalenga Street between the plaintiff
and the 2nd defendant. It was the case of the plaintiff he had no interest to
sell the said property; rather, he wanted to return in Tanzania and live at
the property. Counsel for the plaintiff submitted that the proof of the
agreement is lacking. He referred this court to section 64 (1) of the Land
Act. He however, admits that there were negotiations or discussions
between the parties for the purchase of the suit premises as can be seen
from Exhibits D 1 and D 2 collectively and D 3 and D 4 but that no
agreement was reached.
Counsel for the defendants submitted that the evidence is that before
immigrating to the UK, the plaintiff had tried to sell the property to Mr.
Mohamed Soud of Mpanda at an agreed purchase price of Tshs. 600,000/=
but the transaction aborted after the intended purchaser found that the
title had been revoked. To prove this aspect, counsel referred the court to
Exhibit D ll. Further, there was evidence that in December, 1994 the
plaintiff agreed with the family of the 1st defendant to purchase the
premises at a price of 100,000 Sterling Pounds.
I think this issue should not detain me. PW 1, during cross-
examination admitted that Exhibit D 1 was written on 14th October, 1994
while there was discussion of sale of the property. He said that there was
an agreement to sell the property for 100,000 Pounds and that under
Exhibit P 6 there was no condition from the plaintiff to sell the premises.
PW 1 testified further that in 1983 there was negotiation to sell the
property but then it was complained that th4 price was not fair. That the
1st defendant was asked to make sure that the restoration of the title was
successful and then the house would be sold to the 2nd defendant. With the
available evidence, the fourth issue is answered in the affirmative.
The fifth issue was if issue No. 4 was answered in the affirmative,
whether the transfer of the property to the 2nd defendant was in breach of
the 1st defendant's fiduciary duty and/or breach of the 1st defendant's trust
owed to the plaintiff. This is a repetition of issue No. 2 and I need not
repeat it save to emphasise that there was no breach of a recognised
fiduciary duty. This is so because, it is the nature of the relationship that
gives rise to the fiduciary duty and that the particular relationship on which
fiduciary law focuses are those in which one party is given a discretionary
power to affect the legal or vital interests of the other. In this case, the 1st
had no discretionary power to restore the revoke title deed. In other
words, the plaintiff had not ceded power to the 1st defendant and was not
vulnerable to him. The fifth issue is answered in the negative.
As to the sixth issue, since there was no any breach, the liability by
the defendants cannot arise. The reliefs under paragraphs (a), (b), (c), (d)
and (k), thereby collapse.
51
Regarding the declaration that the right of occupancy dated 4th
December, 1994 of the house situated on Plot No. 597A Upanga Dar es
Salaam with title No. 186171/57 and Land Office No. 142488 issued to the
2nd defendant by the Commissioner for Lands be set aside as having been
procured by fraud as claimed under prayer (e) to the plaintiff, this relief
also fails as it lacks both factual and legal proof.
The plaintiff's former title to the suit premises having been revoked
and was never restored back to him, the title having been lawfully
transferred to the 2nd defendant by the proper authority and neither the
Registrar of Titles nor the Commissioner for Lands having not been
impleaded and made parties to this case, the prayers under paragraphs
(e), (0/ (g)/ (h), (i) and (I) to the plaint are declined.
Besides, I must also point out that it is provided under section 122 of
the Tanzania Evidence Act [Cap. R.E.2002] that:
"A court may infer the existence of any fact which it thinks likely to have
happenedregard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the
particular case".
52
This means that under those provisions, there is a presumption
permissible that in case where documents kept and issued by a public
officer, the court is entitled to infer that the documents were issued
regularly. If I am required to cite an authority for this legal position, I
would repeat what Newbold, JA in the case of Commissioner of Income
Tax v. C.W. Armstrong [1963] EA 505 at p. 513 observed that:
"That section authorises the presumption that an official act which is
proved to have been performed, has been performed regularly and
this is a presumption which is not lightly overridden".
Exhibits P 5 and D 16 are such documents and there is no evidence
which has been tendered to override the presumption that they were
official acts and were actually regularly performed.
All said, I find that the suit against the defendants has not been
proved on balance of probabilities. The end result is that the suit is
dismiss
53
