Antony Adabu Mmassy vs Juma Sylvester Mfumia (Civil Appeal No. 289 of 2024) [2026] TZCA 632 (5 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MWANDAMBO. 3.A., KENTE, J.A. And MGONYA, 3.A.) CIVIL APPEAL NO. 289 OF 2024 ANTONY ADABU MMASSY..................................................................... ...» .... ........ AP VERSUS JUMA SYLVESTER MFUMIA ................................................. RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Tanga at Tanga) (Sabuni, PRM-Ext. Jur.) dated the 24th day of February, 2023 in Land Appeal No. 68 of 2022 JUDGMENT OF THE COURT 27th April & 5th June, 2026 MWANDAMBO, J.A.: The parties to this appeal have been battling over a house on Plot No. 409, Block Z, Usagara East Area in Tanga. The District Land and Housing Tribunal ("the DLHT") for Tanga before which the appellant instituted his application founded on trespass, found it proved that the respondent had trespassed into that house which had been lawfully sold to him by an administrator of the estate of the late Sylvester Michael Mfumia. The Resident Magistrate's Court (M. I. Sabuni, Principal i

Resident Magistrate exercising extended jurisdiction) to which the appeal was transferred for determination by the High Court, overturned the appellant's victory. It vacated the DLHT's decision having taken the view that the purported sale of the disputed house was marred by fraud. The appellant now appeals against that decision. The genesis of the dispute surrounding the appeal is from a disputed sale transaction of the disputed house described shortly before. It is common ground that, Sylvester Michael Mfumia (the deceased) was the owner of that house as evident by a certificate of right of occupancy admitted in evidence as exhibit Al. There was equally no dispute that, that property was mortgaged to the National Bank of Commerce (the Mortgagee) to secure a loan advanced to Fidelis Michael Mfumia; the deceased's younger brother. Until the death of the owner, who died in Dar es Salaam on 16 January 2005, the loan had not been fully repaid and so the mortgage had not been discharged. It was the appellant's case supported by Sadiq Mfumia (AW2) and Ludovick Tumainieli Kaale (AW3) that the deceased had sold the house to him prior to his death. Although no sale agreement was tendered in evidence, the appellant produced transfer documents, comprising, Notification of a disposition, Application for Approval of disposition and the Transfer of a Right of 2

Occupancy all shown to have been signed by the deceased on 19 September 2004 and witnessed by one Wenceslaus Mramba, Advocate. The transfer documents which became a subject of contention before the DLHT were admitted in evidence as exhibit A2 collectively. The above notwithstanding, until the deceased's death, the transfer of the right of occupancy from the deceased to the appellant had not yet been finalized. It is also not in dispute that, at some point in January 2005, the appellant travelled to the deceased's home in Dar es Salaam only to be informed that Sylvester Michael Mfumia, the vendor had passed on four days earlier. All the same, the appellant's case, supported by AW2 was that the elders, AW2 included, assured him that nothing will go wrong. He was, in that regard, asked to return later during the 40th day ceremonies of the deceased's death. According to the appellant, he went again to the deceased's home during the 40th ceremonies and met one Fidelis Mfumia; the deceased's younger brother at which he was introduced to Sadick Mfumia (AW2) as the person who had been appointed as administrator of the deceaseds estate. Subsequently, AW2 facilitated the appellant towards discharge of the mortgage after the outstanding loan to the Consolidated Holding Corporation which took over the assets and liabilities of the default 3

National Bank of Commerce. Afterwards, the processes of transfer of the right of occupancy followed was finalized which saw him as the new owner of the right of occupancy involving the disputed house. The appellants case had it that, all went well until 2012 when the respondent began interference into the property claiming that he was the administrator of the deceased's estate unaware of the sale of that house to anybody. A lot of turbulence occurred in the process involving criminal complaint against the appellant in a bid to recover the house but to no avail. Left with no other option amidst persistent "disturbance" and interference with quiet possession, the appellant filed an application before the DLHT praying for, amongst other reliefs, a declaratory order that he was the lawful owner of the disputed house and a permanent injunction restraining the respondent from interfering with the suit house. In his defence, the respondent refuted the appellant's claims on the ownership of the disputed property through sale from the deceased. On the contrary, the respondent maintained that, the house was part of the deceased's estate falling under his administration as the lawfully appointed administrator of the deceased's estate. He claimed that the 4

appellant's alleged purchase of the suit house from the deceased was fraudulent and tainted with several irregularities. The appellant called three witnesses and tendered a number of documentary exhibits to prove his case. One of his key witnesses was Sadick Michael Mfumia (AW2) who introduced himself as the deceased's step brother said to have been appointed as administrator of the deceased's estate of the Tanga Urban Primary Court. As mentioned earlier, it is AW2 who facilitated the appellant to have the transfer of the ownership of the suit property from the deceased to himself after liquidating the outstanding mortgage debt with the defunct National Bank of Commerce through Consolidated Holding Corporation; its successor in title. It is instructive that, in his defence, the respondent tendered several exhibits to prove the alleged fraudulent sale of the house. These included: a letter from the Deputy Registrar of the High Court, Tanga District Registry (comprised in exhibit R2 collectively) meant to prove that there was no evidence of any probate and administration cause before Tanga Urban Primary Court granting letters of administration to AW2 as administrator of the deceased's estate. Similarly, the respondent's witness; SP. Maria Tryphone Njenga (RW4) tendered 5

exhibit R3 comprising documents examination report from the police forensic bureau Ref. No. FB/DOC/LAB/i04/2020/TAN/CID/PE/60/2019 meant to prove the alleged fraud and irregularities behind the purchase of the suit property. In the end, the DLHT was satisfied that the evidence adduced by the appellant was more probable than that of the respondent. It accordingly entered judgment for the appellant on the reliefs set out in the application. Disgruntled, the respondent preferred an appeal to the High Court at Tanga upon a petition of appeal comprising six grounds of complaint. That appeal was transferred to the Resident Magistrate's Court of Tanga and determined by M. I. Sabuni, Principal Resident Magistrate (PRM) with extended jurisdiction. Both the respondent and the appellant addressed the first appellate court by way of written submissions on all grounds of appeal. Nevertheless, the learned PRM with extended jurisdiction saw it fit to dispose the appeal on the 3r d ground. That ground faulted the DLHT for disregarding the weight of evidence adduced by the appellant (respondent in this appeal) on the non-existence of Probate & Administration Cause No. 60 of 2005 which granted letters of administration to Sadick Mfumia as Administrator of the estate of the 6

late Sylvester Mfumia. Upon its own re-appraisal of the evidence, the first appellate court was satisfied that the DLHT misapprehended the evidence in relation to the grant of letters of administration to Sadick Mfumia through a non-existent Probate & Administration Cause No. 60 of 2005 against the documentary evidence to that effect. Finally, the court concluded that Form No. IV comprising the letters of administration was fake before invoking revisional power under 43(1) (b) of the Land Disputes Courts Act (the LDCA). In consequence, the court made several orders, namely; one, nullification of the judgment; two, restoration of the disputed house to the deceased's estate; and, three, arrest of the fake administrator; Sadiq Mfumia to account for the manner he managed to secure the fake form No. IV. According to the court, using the fake Form No. IV, Sadiq Mfumia facilitated the withdrawal of the title deed which was pledged as security by way of mortgage with NBC Bank before presenting it to the land offices to which the appellant managed to sell the land himself. The appellant resents the above upon six grounds of complaint but abandoned the 5th ground in the written submissions lodged on his behalf by Mr. Egbert Colonel Mujungu, learned advocate and subsequently the 6th ground in the course of hearing of the appeal. After

abandoning the 5th and 6th grounds, the appeal is now upon four grounds of complaint namely:

1. That, the honourable Resident Magistrate with Extended jurisdiction grossiy erred in law by declaring ownership o f a suit property to a party who has never been a party to a suit
2. That, the Honourable Resident Magistrate with Extended jurisdiction grossly erred in aw by wrongly invoking revisionary powers to nullify sale o f the suit property.
3. That, the Honourable Resident Magistrate with Extendedjurisdiction grossly erred in aw by declaring a document (form No. IV) issued by the Court as a forged one in absence o f any presumption o f genuineness as directed by the law o f evidence.
4. That, the Honourable Resident Magistrate with Extended jurisdiction grossly erred in law by shifting the burden o f proof in civil cases from the parties (particularly the respondent herein) to the trial tribunal. Mr. Mujungu, representing the appellant lodged written submissions in support of the grounds of appeal. The respondent who had no legal representation did not lodge his reply submissions but we heard him orally at the hearing of the appeal. Closely examined, we are 8

of the considered view that the disposal of the appeal turns on the correctness of the determination of the 3r d ground of appeal and the consequential orders in the exercise of revisional jurisdiction in particular, ownership of the suit property to a party who was not a party to the suit. However, before doing that, we feel constrained to address the complaint in the 2n d ground of appeal to the extent it relates to the 1s t court's omission to determine a point which Mr. Mujungu submits it touched on the jurisdiction of the 1s t appellate court. Mr. Mujungu pointed out that, the petition of appeal at page 159 of the record of appeal indicated that the appeal was against the judgment and decree of the ward tribunal which not only did not exist but also, the High Court had no jurisdiction to determine an appeal from the ward Tribunal. The learned advocate complained that, although he addressed the 1s t appellate court in his written submissions running from page 176 to page 186 of the record of appeal, the said court made no determination on that issue which according to him went to the root of its jurisdiction. The lay respondent who did not lodge any reply written submissions said nothing on this complaint in his oral address through a video conference platform from Dar es Salaam. 9

We find it apposite to preface our discussion on this ground by stressing that, a point involving jurisdiction is fundamental to any court or tribunal such that, a wrongful assumption or exercise of jurisdiction renders the resultant decision a nullity. We agree with Mr. Mujungu that the High Court before which the respondent preferred Land Appeal No. 57 of 2022 had jurisdiction to entertain provided that, it emanated from the ward tribunal in terms of section 19 of the LDCA in its original jurisdiction. It is evident at page 159 of the record that, the respondent indicated that he was aggrieved by the judgment and decree of Tanga Ward Tribunal in Land Case No. 69 of 2019 delivered on 17 August 2022. To that extent, Mr. Mujungu is right in submitting that the High Court had no jurisdiction to entertain the appeal from the Ward Tribunal. We equally agree with him that the 1s t appellate court was bound to determine the point raised in the respondent's (appellant's) submissions, regardless of the fact that, in the ordinary course of things, such a point ought to have been taken up by way of a notice of preliminary objection. With respect, failure/omission by the 1s t appellate court to determine the point raised in the written submissions constituted an irregularity. Nevertheless, whilst we cannot guess what would have been the 1s t 10

appellate court's decision on the point raised, the issue for our determination is whether, in the circumstances of the case, the indication that the appeal before the 1s t appellate court was against Tanga Ward Tribunal was fatal to the court's jurisdiction. Be it as it may, we do not agree with the learned advocate considering that, despite the erroneous citation of Tanga Ward Tribunal in the petition of appeal, the appeal was, in actual fact from the DLHT in Land Case No. 69 of 2019 involving the same parties whose decision was delivered on 17 August 2022 as evident at page 157 of the record of appeal. It has not been suggested that the parties to the appeal had ever been litigating in the Ward Tribunal over the same matter involving the same case number. Indeed, the respondent's submission at page 162 of the record of appeal correctly reflects an indication that the appeal originated from the DLHT at Tanga. So are the appellant's written submissions at page 176 of the record. In our view, the error in the petition of appeal was a result of the slip of the pen which could have been corrected by amendment and not warranting the consequences touted by Mr. Mujungu. In the upshot, save to the extent indicated hereinabove, we find no merit in the complaint and dismiss it which takes us to the 3r d ground. l i

As alluded to earlier on, the complaint in the 3r d ground the relates to the determination of the 3r d ground before the 1s t appellate court and the consequential orders. However, it is our view that the manner in which the appellant's advocate formulated the ground is not free from difficulties. In our view, the correct formulation should have been: "That the Honourable Resident Magistrate with extended grossly erred in law by declaring a document (Form No. IV) issued by the court as a forged one regardless o f presumption o f genuiness ness pursuant to the Evidence Act". The gravamen of the appellant's submissions is that the 1s t appellate court's finding that Form No. IV (exhibit A3) comprising grant of letters of administration to AW2 was fake was made contrary to section 88 (1) of the Evidence Act prior to its redesignation as section 95(1) by the Revised Laws of 2023. That section provides that: "95.-(1) A court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which: (a) is by law declared to be admissible as evidence o f any particular fact; (b) purports to be duly certified by a public officer in the United Republic; and 12

(c) is substantially in the form and purports to be executed in the manner directed by law in that behalf." The learned advocate contended that, contrary to the learned PRM, exhibit A3 met the necessary criteria of the genuine document in accordance with the provisions of the Magistrate's Courts Act (the MCA) and that there has never been any court order declaring it to be a fake document to justify the impugned finding. Counsel further argued that, in any event the sale of the disputed house preceded the administration of the deceased's estate and therefore, the finding of the court that form No. IV was a fake document could not have invalidated the sate which had already been completed before the death of its registered owner. Replying, the respondent fully supported the impugned decision and maintained that Form No. IV was a forged document in the absence of probate and Administration Cause No. 65 of 2005 at Tanga Urban Primary Court. He contended that, no tetters of administration could have been granted in 2005 whilst the deceased's death certificate was issued by RITA in 26 September 2012. He insisted that, no sale agreement was executed between the deceased and the appellant. 13

In his short rebuttal, Mr. Mujungu contended that, the claim on forgery was an afterthought. Responding to a question from the Court, counsel impressed upon us that the 1st appellate court did not determine the appeal before it on merit and invited the Court to quash the impugned decision and direct it to be determined afresh by the High Court instead of the Resident Magistrate's Court with extended jurisdiction. We have given due consideration to the arguments for and against the appeal on the issue for our determination in the light of the impugned decision. However, we are of the considered view that the decisive issue turns on the point raised in the course of hearing on which Mr. Mujungu and the respondent had opportunity to address us. The point relates to the validity of the judgment from which the appeal has emanated. We are mindful that, writing a judgment is a matter of personal style; what is important is, as stressed in Mkulima Mbagala v. Republic, Criminal Appeal No. 267 of 2006 (unreported), in which the Court stressed: "For a judgment o f any court o fjustice to be held to be a reasoned one, in our respectful opinion, it ought to contain an objective evaluation o f the 14

entire evidence before it This involves a proper consideration of the evidence for the defence which is balanced against that of the prosecution in order to find out which case .... is more cogent. In short, such an evaluation should be a conscious process of analysing the entire evidence dispassionately in order to form an informed opinion as to its quality before a formal conclusion is arrived at", [emphasissupplied] See also, the Court's decision in Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited [2025] TZCA 361 [2025] TZCA 36. Regarding judgments in appeal, Malmo Montagekonsult AB Tanzania Branch v. Margret Gama, Civil Appeal No. 86 of 2001 (unreported) the court stressed that, the appellate court is expected to address all grounds before it either generally or separately or address the decisive grounds of appeal. It was reiterated in Simon Edson @ Makundi v. Republic [2020] TZCA 1730, that: "... the appeiiate court is bound to consider the grounds o f appeal presented before it and in so doing, need not discuss ail o f them where only a 15

few will be sufficient to dispose o f the appeai. It is aiso necessary for the first appeiiate court to re evaluate the evidence on record before reaching to its conclusion..."(A t page 13). All things being equal, the approach adopted by the 1st appellate court determining the appeal on the 3r d ground was not a novel one. It was quite in order in view of the Court's decision in Montacjckensult AB's case (supra). Nevertheless, the issue is whether the court's decision met the quality of a proper judgment in line with the Mkulima Mbagala (supra). The thrust of the respondent's complaint in the 3r d ground of appeal before the first appellate court was against the DLHTs alleged failure to consider his and RW2's evidence on the non- existence of the impugned Probate & Administration Cause No. 60 of 2005 granting letters of administration to AW2. As the court sat in a first appeal, it was expected, and indeed, bound to re-evaluate the evidence of both parties to the appeal and come to its own findings, concurring or disagreeing with the trial tribunal. In its determination of the 3r d ground considered to have been dispositive of the appeal, the court reasoned: "The trial Tribunal Chairman instead o f blaming the appellant that he had to call registry officer to prove the existence o f the Probate Cause No. 60 o f 16

2005, at Tanga Urban Primary Court,f he could have used his power to cail any officer there so as to satisfy himseff o f the existence o f the said Probate Cause... The said form No. TV is the source o f evils committed by the respondent (appeiiant herein) and his agents, starting from the court (which) issued the said form, the said form does not have even a stamp o f the court, no picture o f the administrator as required... That fake administrator (Sadiq Mfumia) has to be arrested and teii the authorities how he secured that Form No. IV which assisted the respondent to commit such evils (May God punish them ail)." At the tail end of the foregoing discourse, the court found it opportune to summon section 43(1) of the LDCA and stated: " . . . from the foregoing analysis, by using revisionary powers vested to this court.... I hereby quash the entire proceedings and judgment o f the tower tribunal for being a nullity. Everything in ownership o f the disputed plot remains as if there was no case filed before. The house on Plot No. 409 Block Z Usagara East within Tanga City will remain the property o f the late Sylvester Michael Mfumia, as its transfer to the respondent is tainted with fraud. The house ....will be part o f [the] estate o f the late

Sylvester Michael Mfumia, liable for distribution to his heirs. Whoever [wants] to challenge the ownership will have to wait till filing o f inventories in the respective court/'[at page 208 o f the record]. In the first place, contrary to what the court referred to as the foregoing analysis, we are unable to discern any such analysis in the judgment. In our view, if the word analysis has anything to go by, one would have expected to see an objective evaluation of the evidence on record and subject it to the findings of the trial tribunal and see whether or not they are supported by such evidence. On the contrary, what appears to be glaring from the so- called analysis is nothing less than biased opinion and conclusions characterized by blames directed to the DLHT for not summoning a witness from the Primary Court. Whatever that meant, we are left wondering why was that necessary for the determination of the main issue before the DLH that meant to investigate who, between the appellant the respondent was the lawful owner of the disputed house. At any rate it has not been suggested that there was any refusal of any prayer by the respondent for the summoning of the said witness. Secondly, as observed above, the conclusion, biased as it is that Form No. IV was fake is not a result of any objective evaluation of the evidence on the record. Indeed, there 18

can be no doubt that due to the approach taken by the court, it went astray and made orders which ought not to have been made had it performed its role as first appellate court. Ordinarily, having found merit in the 3r d ground of appeal which it considered to be sufficient to dispose the appeal, the court ought to have allowed it and reverse the findings of the DLHT which would have resulted in quashing its decision and substituting it with an order dismissing the application. On the contrary, the court jumped into nullifying the proceedings of the DLHT purportedly exercising revisional power. We have serious doubt if the power of revision vested in the High Court under section 43(l)(b) of the LDCA extends to the Resident Magistrate's Court exercising extended jurisdiction as it were. As if that was not enough, the court indulged itself making orders against third parties without affording them right to be heard. That will be enough to illustrate the disquieting features in the impugned judgment. In the upshot, we have no hesitation in concluding as we do that the impugned judgment has not met the qualities of a judgment of a court of law in the light of our decision in Mbagala Mkulima (supra). As we have said in various decisions including, Simon Edson @ Makundi (supra), the impugned judgment fell far below the required

standard. It was not a judgment known in law. It was a nullity. Earlier, in a more or less similar circumstances involving a first appeal from a decision of the High Court in an election petition in Stanslaus Rugaba Kasusura v. The Attorney General & Phares Kabuye [1982] T.L.R. 338, the Court frowned upon the impugned judgment and stated: In our view, the judgment is fataiiy defective, it leaves contested material issues o f fact unresolved. It is not really a judgment because it decided nothing, in so far as material facts are concerned It is not a judgment which can be up-heid or upset It can only be rejected. It is in fact a travesty o f a judgment We find ourselves in a dilemma. After due consideration, we think that the only course we can adopt is the unusual one o f setting aside the judgment o f the High Court and ordering a re-trial. The impugned judgment in this appeal is no better. It falls short of a legal judgment. It is a nullity warranting taking the same and unusual course of setting it aside. In the event, we are constrained to invoke section 6(2) of the Appellate Jurisdiction Act and exercise revisional power as we do and set aside the judgment of the Resident Magistrate Court of Tanga with extended jurisdiction in Land Appeal No. 68 of 2022 dated dated the 24 day of February, 2023 for being a nullity. Going 20

forward, we direct a fresh determination of the appeal by the High Court in accordance with the law. Considering the manner in which we have disposed the appeal, we make no order as to costs. DATED at DODOMA this 3r dday of June, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 5th day of June, 2026, via teleconference in the presence of M r. Egbert Colonel Mujungu, learned counsel for the appellant and the respondent who appeared in person/unrepresented, and Ms. Harida Hamisi, Court Clerk present in Court; is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 21