Antony Haji vs Kingsway Properties Limited & Another (Civil Appeal No. 95 of 2024) [2026] TZCA 615 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWARI3A. J.A.. MASOUD. 3.A. And NANGELA. 3.A.1 ) CIVIL APPEAL NO. 95 OF 2024 ANTONY HAJI APPELLANT VERSUS KINGSWAY PROPERTIES LIMITED YASMINE HAJI ................................ .1 st RESPONDENT 2 nd RESPONDENT (Appeal against the Ruling and Drawn Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) 11th November, 2025 & 2n d June, 2026 MWARIJA. J.A.: The appellant, Antony Haji has appealed against the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam in Miscellaneous Commercial Cause No. 5 of 2023 (the Petition) between him and the respondents, Kingsway Properties Ltd (the Company) and Yasmine Haji (the 1st and 2n d respondents respectively). In the petition, which was filed in the trial court on 14/2/2023, the appellant petitioned the Court for the following orders: (Mbaqwa, 3.^ dated the 11th day of September, 2023 in Miscellaneous Commercial Cause No. 5 of 2023 JUDGMENT OF THE COURT

"(a) A court declaration that the affairs o f the 1st respondent are being conducted in a m anner that is unfairly prejudicial to the interests o f the petitioner and non-com pliance with Tanzania Tax Laws and the Companies Act, 2002. (b) A court declaration that the petitioner is a law ful shareholder o f the 1st respondent and any refusal to recognize the petitioner as the law ful shareholder o f the 1st respondent is unlawful. (c) A court order com pelling the petitioner, 1st and 2nd respondents to hold statutory m eetings in accordance with the Memorandum and A rticles o f Association o f the 1st respondent. (d) A court order com pelling the 2nd respondent to subm it the required docum entation and credentials for the online updating o f the 1st respondent in com pliance with the directives o f the Business Licensing and Regulatory Authority (BRELA). (e) Costs o f this petition be borne by the 2nd respondent (f) Any other re lie f (s) this Honourable Court may, in the circum stances, deem fit and ju s t to grant".

The background facts leading to the institution of the petition by the appellant may be briefly stated: TTie appellant was a shareholder and one of the directors of the 1st respondent, a private company incorporated on 12/10/1992 under the Companies Act, Chapter 212 of the Revised Laws (the Act). It was formed by family members of the late Abdul Haji and Claude Haji who were a husband and wife respectively together with Antony Haji and Yasmine Haji, the sons and a daughter of the said couple, respectively. All of them were the directors and shareholders, each one of them owning one share in the company. After the demise of their parents, the appellant and the 2n d respondent entered into misunderstandings on the running of affairs of the company. According to the appellant, the 2n d respondent had not only failed to observe the legal requirements in the operation of the company, including the directives issued by the Business Licensing and Regulatory Authority (BRELA), but also misused the company's house situated on Plot No. 23, Laibon Street, Dar es Salaam. The 2n d respondent allegedly refused to recognize the appellant as a shareholder and a co-director of the company on account that, he had in 2010, transferred his share to her. Discontented with the reasons given by the 2n d respondent for her stand that the appellant had

ceased to be a shareholder and a director of the company, the appellant filed the petition seeking the orders stated above. During the hearing of the petition, it transpired that the parties' discord centred on the issue whether the appellant transferred his share to the 2n d respondent and consequently, relinquished his positions as a shareholder and a director of the company. It was his argument that, although it is true that he offered to transfer his share to the 2n d respondent, the transfer was incomplete because the provisions of section 137 read together with section 233 (1), (2), (3) (a) and (b) of the Act were not complied with. He explained that, whereas the transfer was made on 15/11/2010, the approval by the Board of Directors of the company was made on 17/11/2010 hence a breach of clause 8 of the Articles of Association of the Company which required a prior approval for a transfer to be effective. On his part, the (earned counsel for the 2n d respondent argued that, the irregularity relied upon by the appellant did not render the transfer invalid, more so because, the appellant signed it and further that, there was no allegation of fraud. He argued also that, the principle of the majority rule under section 233 (1) of the Act was, under the circumstances of this case, inapplicable because his interest was not prejudiced as he had voluntarily transferred his share.

Having considered the arguments made by the parties advocates, the learned trial Judge found that, the appellant's act of filing the petition in 2021 after he had voluntarily transferred his share in 2010, was an act which left a lot to be desired. He observed further that, the petition, which challenged the transfer on technical grounds, was an attempt by the appellant to regain the status which he had voluntarily relinquished. On the irregularity of approving the transfer after it had been effected, having found that the appellant was not prejudiced, the court held the defect curable under the overriding objective principle, On these findings the court dismissed the petition with costs. Aggrieved by the ruling of the High Court, the appellant has lodged this appeal which, according to his memorandum of appeal, is predicated on the following five grounds of appeal: "(i) That the tria l Judge erred in iaw and fact by failin g to expunge a defective reply to the petition whose verifying affidavit is incurably defective. (ii) That the tria l Judge erred in law and fact by approving share transfer from the petitioner/appellant to the 2nd respondent despite the legal procedural irregularities that contravened the Com panies A ct [No. 12 o f

2002] and the Memorandum and A rticles o f Association o f the 1st respondent (Hi) That the tria l Judge m isdirected him self by raising and determ ining irrelevant issues leaving behind relevant issues undetermined. (iv) That the tria l Judge erred in law and fact by holding that the appellant/petitioner did voluntarily transfer his share to the 2nd respondent (v) That the tria l Judge erred in law and fact by invoking the overriding objective principle to uphold the acts and conducts perform ed extrajudicially". At the hearing of the appeal, the appellant was represented by Mr. Norbert Mlwale assisted by Mr. Benedict Ishabakaki, learned advocates while the respondents had the services of Mr. Simon Barlow Lyimo, also learned advocate. Mr. Mlwale, had earlier on filed written submissions in support of the appeal. Before he proceeded to highlight those submissions, he informed the Court that, he had decided to abandon the 1st and 3rd grounds of appeal. Submitting in support of the 2n d ground of appeal, Mr. Mlwale argued that, the learned trial Judge erred in holding that, the transfer of the appellant's share was not invalid for having breached the

procedure for transfer of shares as provided under section 74 of the Act which states as follows: "The shares or other interests o f any mem ber in the company sh aii be a movabie property transferable in a m anner provided by the articies o f the company". He submitted that, a notice to the directors was not given and further that, the meeting of the Board of Directors said to have been convened on 17/11/2010 did not, in fact, take place. Furthermore, he argued, the approval, which according to him, was signed by the chairperson alone, was for the transfer made on 15/11/2010, meaning that, the transfer was made before being approved by the Board of Directors. He argued that, the transfer was for that reason, invalid. He cited the decision of the High Court in the case of Shirin Moosajee v. Juzer Zakiuddin Mohamedali and 2 Others (Miscellaneous Commercial Application No. 2 of 2021) [2022] T7CA 155 and the Indian case of John Tinson and Co. Pvt Ltd v. Surjeet Malhan and Another, AIR 1977 SC 1411 to support the argument that, failure to comply with mandatory requirement of obtaining the consent of the Board of Directors as per the articles of association of a company, renders the transfer of a share invalid. Citing also section 77

of the Act, the learned counsel submitted that, registration of a transfer of a share does not become valid unless the transaction instrument is stamped and signed by the company. He also argued that, the transfer document lacked the essential requirements of a valid contract; that the same was not signed by the transferee, the 2n d respondent. He cited section 10 of the Law of Contract Act, Chapter 345 of the Revised Laws to support his argument. With regard to the 4th ground of appeal, the learned counsel for the appellant reiterated the submission made in the High Court, that the transfer did not materialize because the appellant withdrew the offer and also because, the transfer was tainted with procedural irregularities as contended in the submissions made in support of the 2n d ground of appeal. To substantiate his contention that he withdrew the offer of transferring his share to the 2n d respondent, he referred the Court to the email appearing at page 40 of the record of appeal. Submitting further on the 5th ground of appeal, the learned counsel argued that, the trial court erred in invoking the overriding objective principle enunciated under section 3A of the Civil Procedure Code, Chapter 33 of the Revised Laws (the CPC) to hold that, the irregularities in the transfer document were inconsequential. He cited in ter alia, the case of Mondorosi Village Council and Others v. s

Tanzania Breweries Ltd and Others (Civil Appeal No. 66 of 2017) [2018] TZCA 303 to support his stance that, under the circumstances of this case, the irregularities went to the root of the matter rendering the transfer of the share invalid. He urged us to find that, the appeal has merit. In reply, through the written submissions lodged by their advocate, Mr. Thobias Mathias, learned counsel, the submissions which were highlighted by Mr. Simon Barlow Lyimo, learned advocate, the respondents opposed the appeal. On the 2n d ground of appeal, the learned counsel submitted that, the appellant had unambiguously admitted that he transferred his share to the 2n d respondent. In the circumstances, the learned counsel argued, the appellant's act of filing the petition giving rise to this appeal after a period of 12 years from the date of the transfer of the share, amounted to filing of vexatious proceedings. Pointing to the appellant's inordinate delay in lodging the petition, the learned counsel attributed that act to an ill motive against the 2n d respondent, more so because, the move was taken by him after the death of their parents. On the email which the appellant relied upon as evidence of his withdrawal of the transfer, the respondents' counsel submitted that, the same related to transfer of shares of house No. 23, Laibon Street

and Cannes property to which the appellant did not own any share as prior to its transfer, his share was in the 1st respondent company. The learned counsel added that, even the email itself does not show that it was from the appellant and again, the same was never received by the respondents. On the argument that the transfer did not materialize, it was the respondents' position that, after the approval by the Board of Directors and upon the payment of taxes on 26/11/2010, the transfer was complete. As for the cited decision of the High Court in the case of Shirin Moosajee and the Indian case of John Tinson & Company (supra), it was submitted for the respondents that, apart from being the decisions which are not binding on this Court, they are, in the particular circumstances of this case, distinguishable because the conditions for transfer of the share were complied with. It was submitted also that, since the appellant had in his custody, a copy of the share transfer agreement and the board resolution and had remained silent for a period of 12 years, he cannot be heard to complain about the authenticity of those documents or on the contention that, a notice was not issued prior to the transfer of his share. The learned counsel stressed that, such complaints are meritless given the fact that, the appellant was one of the directors of the 1st 10

respondent who participated in the meeting which approved and executed the transfer. On the signing of the Board resolution which authorized the transfer of the share, the learned counsel submitted that, the same did not require to be signed by all the directors rather, according to sections 148 (1), (2), (3) and 149 (1) and (2) of the Act, it is sufficient if it is signed by the chairman of the Board or a director or the secretary. On the import of section 77 of the Act, it was argued in reply that, the same does not prohibit a company to register a transfer of a share unless a proper instrument of transfer duly stamped, has been signed and delivered to the company. The learned counsel argued that, the section prohibits registration of transfer of shares unless a proper instrument of transfer is duly stamped and delivered to the company. He added that, notwithstanding the undisputed fact that, the company did not have a secretary, his signature is not a mandatory requirement. He stressed that, the meeting of the Board, which approved the transfer, was held on 17/11/2010 and later the transfer was registered in accordance with the procedure where upon the appellant did not complain until after the period of 12 year. In any case, the learned counsel submitted, even if there would have been some irregularities, the appellant has not shown how the same have prejudiced him. ii

With regard to the argument that, the transfer agreement did not comply with the condition provided under section 10 of the Law of Contract Act, the respondents' advocate opposed that contention arguing that, the appellant, who was competent to contract, signed the document voluntarily. He referred the court to pages 41, 42 and 43 of the record of appeal to support his argument that, the conditions for transfer of the share were complied with. On the 4th ground, the respondents' counsel submitted in reply that, as found by the trial court, the appellant transferred his share voluntarily and for that reason, he was not justified to complaint later that, the transaction breached the law. He quoted the submission made by the appellant's counsel at pages 10 and 11 to bolster his argument that the appellant had admitted to have transferred his share to the 2n d respondent. According to the respondents' counsel, after having been executed, the transfer of the share agreement could not be reverted to become an offer capable of being withdrawn. He stressed that, the transfer was executed in his presence and other directors and for that reason, the contention that, the same did not materialize, is an afterthought. On the email relied upon by the appellant, the learned counsel argued that, even though there was no offer which could be 12

withdrawn, the authenticity of that document is questionable on the basis of the shortfalls stated above. On the 5th ground of appeal, the learned counsel for the respondents submitted in reply that, the court rightly invoked the overriding objective principle to disregard the irregularity complained of by the appellant that, the transfer was invalid because it was executed on 15/11/2010 before its approval by the Board of Directors on 17/11/2010. He supported the finding of the learned trial Judge that, the irregularity did not prejudice the appellant. On the case of Mondorosi Village Council and Others (supra), the response was that, the same is distinguishable from the facts of this case in which the appellant has conceded to have transferred his share but later after the demise of his parents, emerged raising technical issues seeking to obtain an order nullifying the transfer. The learned counsel prayed that the appeal be dismissed. We have considered the submissions of the learned counsel for the parties. To begin with the 4th ground of appeal, the issue which arises from the rival arguments of the parties' advocates on that ground is whether the appellant voluntarily transferred his share to the 2n d respondent. From the resolution of the Board appearing at page 43 of the record of appeal, there is no dispute that the transfer was made 13

voluntarily. This is also clear from the submissions of the learned counsel for the appellant. As submitted by the respondents' counsel, at pages 10 -11 of the appellant's written submissions, Mr. Mlwale stated as follows: "It was evident that previously the appellant executed a share transfer agreem ent dated 15th day o f November 2016 in favour o f the 2nd respondent herein in consideration o f natural love and affection " The appellant's contention is that, after execution of the transfer, he wrote an email on 29/11/2010 withdrawing the offer which had already culminated into the transfer agreement. Having scrutinized the email referred to by the appellant, we agree with the respondents' counsel that, the same is unreliable for the reasons that; first, it did not come from the appellant and secondly, the subject matter of the email is shown to be a share in a house on Plot No. 23 Laibon Street, not the transferred share. On those deficiencies, we are of the view that, the change of mind, if at all it related to the transferred share, was an afterthought. With regard to the 2n d and 5th grounds of appeal, the appellant is challenging the transfer contending that, it was ineffective because it

breached the provisions of the Articles of Association of the Company. He also challenged the finding of the High Court that, although there were certain procedural requirements which were breached, the same did not prejudice the appellant and they are therefore, curable under the overriding objective principle. On the issue of notice, as shown above, it is not disputed that on 17/11/2010, the Board of Directors of the company held a meeting which approved the transfer of the appellant's share to the 2n d respondent. That means that the meeting was convened in response to the notice of his intention to transfer his share. It is not disputed further that, the appellant who was a member of the Board of Directors, participated in the meeting. It is also clear from the relevant clause of the Articles of Association of the Company that, the purpose of a notice is to consider the following: "...a price to be agreed upon between the party giving such notice and the Board or in case o f difference to be determ ined by the Auditor o f the Company". That should not have been done if, as agreed by the appellant, had not expressed his intention to transfer his share to the 2n d respondent.

The fact that the meeting was convened and that the transfer of the appellant's share to the 2n d respondent was executed and registered after payment of taxes was not disputed. After the approval of the transfer and registration of the transfer agreement, the appellant allegedly wrote an email expressing his intention to withdraw the offer. However, nothing proceeded until far later in 2023 when the appellant resurfaced and lodged the petition giving rise to this appeal, challenging the transfer agreement on technical infractions stated above. Like the learned High Court Judge, we are of the settled mind that, the irregularity of transferring the share before approval, did not, under the circumstances of this case prejudice him, particularly because he participated in the making of the resolution to that effect. For the grounds, that the transfer agreement was signed by the chairman alone, it was not in dispute that the company did not have a secretary and further more that, it is not a requirement under sections 148 and 149 of the Act that the transferee must sign it. That is also the position as regards the contention that, the transfer agreement cannot be registered unless it is stamped and signed by the transferee. The requirement of section 77 of the Act is that, for an instrument of

transfer to be registered, it must be stamped and delivered to the company. On the basis of the foregoing, we find no merit in the appeal. We are in agreement with the learned counsel for the respondents that, the move by the appellant to challenge the transfer which had been finalized by being registered, was an afterthought. In the event, the appeal is dismissed. Since the dispute involved persons who are siblings, we make no order as to costs. DATED at DODOMA this 1st day of June, 2026. A. G. MWARIJA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 2n d day of June, 2026 in the presence of Mr. Norbert Mlwale, learned counsel for the appellant and Mr. Thomas Mathias, learned counsel for the respondents and Mr. Shafii Kassim, Court Clerk, connected vide video facility, is hereby certified as a true copy of the original.