THE High Court’s Land Division has ordered prominent businessman Marijani Abubakar, alias Papaa Msofe, and two others to pay 300m/- to the family of the deceased Onesphory Kituly, following unlawful eviction from his house situated at Mikocheni in Dar es Salaam.
Judge Agathon Nchimbi ruled in favour of
one, Brayson Nalogwa Kituli, who was suing as personal legal
representative of his brother Onesphory Nalogwa Kituly, as plaintiff,
after declaring that the defendant’s act over the suit property was
unlawful and illegal. Apart from Papaa Msofe, other defendants in the
land dispute were Alex Sirimara Machare, sometimes known as Alex Massawe
and Capt. Makongoro Nyerere. The judge declared the plaintiff as lawful
owner of the house on plot 288 Mikocheni Medium Density Area.
“The defendants are hereby ordered to
immediately return the Certificate of Title No. 41319. An order for
restoration of the plaintiff’s family to the suit property is hereby
grated and further to that the defendants are restrained from any
interference in the suit premises,” Judge Nchimbi declared. The court’s
decision ends the dispute that has been pending for several years.
At some point in time, the dispute had
resulted into criminal proceedings with Papaa Msofe and Nyerere charged
with murder of Kituly. However, the Director of Public Prosecutions
(DPP) dropped the charge against them.
It was contended that on December 12,
2003, the deceased attained a loan of 30m/- from Massawe and the two
exchanged a loan agreement to accommodate the said transaction. Basing
of the agreement, the deceased was required to repay the loan by June
2004 and pledged his house, as security for loan.
But on October 30, 2007, under the
company of other defendants, Nyerere invaded the suit property by
broking the doors and took away the deceased’s properties and evicted
the family.
Having been dissatisfied by such
conduct, the plaintiff decided to file the suit in question. The
defendants filed written statement of defence to oppose the claims by
the plaintiff.
They also raised a counter-claim,
claiming that the plaintiff was not the lawful owner of the house and
that the title deed had passed to Papaa Msoffe from Massawe. They
contended further that the plaintiff ever repaid the loan and continued
to take more loan until the amount reached 160m/-.
According to the defendants, upon
failure to repay the loan, the plaintiff surrendered the house by way of
sale to Massawe with the consent of his wife. They maintained,
therefore, that the plaintiff had no claims against them.
In the counter-claim, Papaa Msoffe
claimed against the plaintiff payment of 9,000 US dollars a month as
profit for occupying and using the house from January 2006 to October
2007, while he was not the owner.
In his judgment, the judge noted that
the eviction from the suit premise was conducted without court order and
without any notice and that the defendant did not give any piece of
evidence to prove their counter-claim. For that matter he dismissed the
same for want of prosecution
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