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IN THE HIGH COURT OF TANZANIA

(IN THE LAND DIVISION)
AT DAR ES SALAAM

LAND CASE NO. 42 OF 2006

ASGAR HUSSEIN SULEIMAN

DATOO (suing through MUSSARAT
MURTAZA VIRJI) ................................................. 1ST PLAINTIFF
AFZAL ASGHAR HUSSEIN DATOO
(suing through MUSSARAT MURTAZA
VIRJEE) .. 2ND PLAINTIFF

VERSUS

YUSUF ABDUL CHAKI ................................... DEFENDANT

WRITTEN STATEMENT OF DEFENCE TO THE COUNTER

CLAIM

The Defendant in the above-named suit submits as hereunder:-

1. That paras. 1, 2 and 3 of the coumter claim are admitted, save to

the extent of the Defendant’s proper address for service in this
suit, which is in the care of:-

M. R. M. LAMWAI & CO.,

ADVOCATES,
CORONATION BUILDING,
AZIKIWE STREET,
P.O. BOX 3929,
DAR ES SALAAM.

2. That para. 4 of the counter claim is denied and the Plaintiffs are
put to very strict proof thereof.

3. That para. 5 of the counter claim is denied and the Plaintiff is put
to very strict proof thereof. The Defendant submits that
Annexure “A” is null and void since at the time of the alleged
sale, the portion of the building which was occupied by the
Defendant and his family had been sold to the Defendant and
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thus there was nothing to sell to the Plaintiffs in respect of the

said flat.

4. That as to para. 6 of the counter claim, the Defendant submits

that the alleged consent was given in the ignorance of the fact
that there was already a binding agreement between the
Defendant and the joint owners of the premises. In the premise,
the said consent is void since there was nothing to consent to, and
by virtue of its having been obtained fraudulently by concealing
the fact that the flat had been sold to the Defendant. The
Defendant contends that in consequence of the said concealment,
the registration is also void.

5. That para. 7 of the counter claim, is denied and the Plaintiffs are
put to very strict proof thereof.

6. That para. 8 of the counter claim, is denied and the Defendant

asserts that he cannot move out of premises he lawfully owns and
that the Plaintiffs are not entitled to any mesne profits.

7. That save as to the jurisdiction of the Honourable Court, which is

admitted, the rest of counter claim is denied and the Plaintiffs are
put to very strict proof thereof. The Defendant submits that the
Plaintiffs are not entitled to the reliefs sought for in the prayers or
any at all.

8. That save as to what is specifically admitted herein, each and

every allegation of fact contained in the counter claim is denied
as if the same were set forth seriatim and specifically traversed.

AND BY WAY OF A COUNTER-CLAIM

9. That on the 2nd day of September, 1997, the Defendant purchased

from the former owners of the suit premises the residential flat he
and his family are occupying in the suit premises, Flat No. 4,
from the former owners of the suit premises. A copy of the sale
agreement and the receipt for the payment of the purchase price
is annexed hereto as Annexure “D1” and the Defendant craves
for leave to refer to it as part of this counter-claim.
10. That upon the payment of the purchase price, the Defendant was
given full possession of the said Flat, with an undertaking by the
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former owners that the necessary transfer will be effected after

purchasers of the remaining flats had been obtained. The
Defendant submits that upon payment of the full purchase price
coupled with the grant of possession, the Defendant became the
owner of the said premises in law and in equity.

11. That the Plaintiffs have been interfering with the Defendant ’s
peaceful enjoyment of by him and his family of the said Flat, by
constructing structures above the said Flat without the
Defendant’s consent and by obstructing and/or using the
compound of the suit premises to the exclusion of the Defendant.
The Defendant submits that the are owners in common of the suit
premises and that the Defendant has a right to the compound and
to the space above his Flat.

12. That the Defendant’s claim against the Plaintiff, therefore, is for a
Declaration that the Defendant is the lawful owner of Flat No. 4
at Plot No. 233 Maweni Street, Upanga, Dar Es Salaam, and for
an order of perpetual injunction restraining the Plaintiffs, their
agents, assigns, workmen, successors in title and whomsoever
will be claiming a right to the suit premises from interfering with
the Defendant’s peaceful possession of Flat No. 4 Plot No. 233
Maweni Street, Upanga, Dar Es Salaam and its surrounding
compound, and for an order that the Plaintiffs demolish any
structures put up on the suit plot by the Plaintiffs without the
Defendant’s consent.

13. That despite several demands that the Defendant stops the
interference referred to in para. 11 herein, the Plaintiffs have
refused and/or refused to heed to the same.

14. That the cause of action arose in Dar Es Salaam, and for purposes
of jurisdiction and court fees, the subject matter of the suit is Shs.
50 million/= and a declaration and injunction, which is well
within the jurisdiction of the honourable court.

WHEREFORE, the Defendant prays for judgment and decree as

follows:-

i. The Plaintiffs’ suit be dismissed in its entirety with costs;

ii. A Declaration that the Defendant is the lawful owner of Flat

No. 4 Plot No. 233, Maweni Street, Upanga, Dar Es Salaam;
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iii. An order of perpetual injunction restraining the Plaintiffs,

their servants, workmen, assigns, agents and whomsoever
will be acting through them from interfering with the
Defendant’s peaceful enjoyment and possession of the suit
premises;

iv. An order that the Plaintiffs forthwith demolish the structures

they have constructed above the Defendant’s Flat and on the
compound without the consent of the Defendant;

v. The Plaintiffs pay the costs of and incidental to the suit and
the counter-claim;

vi. Any other relief(s) that the Honourable Court may deem fit.

DATED AT DAR ES SALAAM this 6th day of April, 2006.

DEFENDANT

VERIFICATION

I, YUSUF ABDUL CHAKI, being the Defendant in the above-

named suit, do hereby states that all what is stated above from para.
1 to para. 14 is true to the best of my own knowledge.

DATED AT DAR ES SALAAM this 6th day of April, 2006.

.
YUSUF ABDUL CHAKI

Presented for filing this .... day of April, 2006.

.....................................
REGISTRY OFFICER
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DRAWN AND FILED BY:-

M. R. M. LAMWAI & CO.,

ADVOCATES,
CORONATION BUILDING,
AZIKIWE STREET,
P.O. BOX 3929,
DAR ES SALAAM.

COPY TO BE SERVED UPON:-

M. A. ISMAIL & CO.,

ADVOCATES,
20 SEA VIEW, OCEAN ROAD,
P.O. BOX 1553,
DAR ES SALAAM.