Mohamed Rajuu Hassan vs Almahir Mohsen Ghaleb & Others (Civil Appeal No. 05 of 2020) [2025] TZCA 1306 (22 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: LILA, J.A., FIKIRINI, J.A, And RUMANYIKA, J.A.) CIVIL APPEAL NO. 05 OF 2020 MOHAMED RAJUU HASSAN .................................................. APPELLANT VERSUS ALMAHIR MOHSEN GHALEB (Administrator o f the Estate o f the late Salim Ally A! Saad) ................................................ 1s t RESPONDENT FATMA SALIM ALLY SAAD (Administratrix o f the Estate o f the late Salim Ally A l Saad) . ........................... . ............ . .... 2n dRESPONDENT MATHIAS ERASTO MANGA ..... . ....................... . ............. 3r d RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Qpivo. 3 .) dated the 19th day of June, 2017 in Land Case No. 11 of 2015 JUDGMENT OF THE COURT 6th Oct & 22n d Dec, 2025 FIKIRINI, J.A.: This appeal is against the judgement and decree of the High Court of Tanzania at Arusha in Land Case No. 11 of 2015 dated 19th June, 2017. The judgment declared the 3r d respondent as the rightful owner of the disputed property, ordered the 1s t and the 2n d respondents to pay the plaintiff the sum of TZS 217,069,320.00, less the amount of TZS 130,069,320.00, which shall be paid to the 3r d respondent. The court declared further that the 3rd respondent is entitled to vacant possession of the disputed property and payment of general damages to the tune of TZS 87,000,000.00. Aggrieved by the decision, the appellant preferred a current appeal. Briefly, facts are that the appellant was the lawful owner of landed property registered under certificate of title No. 4664, Plot No. 433, Block X, Area F, Arusha City, Arusha Region (suit premise). On 25th February, 2010, he entered into a sale agreement with the late Salim Ally Al Saad for the consideration of TZS 300,000,000.00. On the date when the contract was executed, the late Salim Ally Al Saad paid the sum of TZS 82,930,680.69, and the remaining amount of TZS 217,069,320.00 was to be paid within 3 months from the date of the contract. The appellant never received the outstanding balance. To his dismay, he was informed that the 3rd respondent is the registered owner of the suit property and that he was required to give vacant possession of the suit premises to the 3r d respondent. In 2015, the appellant conducted an official search and discovered that the suit premise had been registered in the name of the 3r d respondent. That being the case, the appellant sued the three respondents herein claiming a declaration that the late Salim Ally Al Saad had breached the sale agreement dated 25th February, 2010, entered into between the appellant and the late Salim Ally A! Saad, nullification of the sale and restoring the parties to their original position. The appellant further claimed to be declared the lawful owner of the suit premises, general damages, costs, and any other reliefs. During the defence phase of the case, the 1s t and 2n d respondents alleged that, after signing the sale agreement, the parties to that agreement orally agreed that the late Salim Ally Al Saad purchased a residential house for the appellant in place of payment of the outstanding amount. Further, with the appellant's knowledge and approval, the late Salim Ally Al Saad fulfilled the arrangement and purchased the residential house from one Samwel Andrew Urio on 8th December, 2010. Again, pursuant to an oral agreement, the late Salim Ally Al Saad sold the suit premise to the 3r d respondent herein, and the deed of transfer was signed from the appellant directly to the 3rd respondent, to circumvent the normal transfer process, which would entail payment of several fees and duties. After everything was concluded, the appellant reneged on the oral agreement, refused to take possession of the house bought for him, and insisted on payment of the outstanding amount. The 3r d respondent, on his part, claimed to have acquired the suit premise by virtue of a disposition, which the appellant voluntarily entered into for a valuable consideration. This was done after the late Salim Ally Al Saad purchased the residential house from the appellant. Despite that, the appellant has refused to offer vacant possession of the suit premise and has refused to enter into possession of the residential house purchased for him by the late Salim Ally Al Saad. During the hearing of the suit, the court framed five issues that; (i) whether the 1s t and 2n d respondents had breached the sale agreement dated 25th February, 2010, (ii) whether there was a valid transfer of the house between the appellant and the 3r d respondent; (iii) whether the 3r d defendant is entitled to vacant possession; (iv) whether there was an oral agreement subsequent to the written agreement between the plaintiffs, the 1st and 2n d respondents, and (v) to what reliefs are the parties entitled to. The decision of the court is as stated above. The High Court decision, as mentioned earlier in this judgment, is in favour of the respondents, hence the present appeal. At the hearing of the appeal, Messrs. Salim Mushi and Gwakisa Sambo, both learned advocates, appeared and argued the appeal on behalf of their respective parties, and adopted their earlier written submissions. In his memorandum of appeal, the appellant has raised five grounds of appeal, of which the second and third grounds were argued jointly. In his submission on the first ground, the learned advocate for the appellant submitted that written agreements cannot be varied by oral evidence, citing UMICO Limited v. Salu Limited (Civil Appeal No. 91 of 2015) [2018] TZCA 90 (7 June 2018; TANZLII), in which the Court stated that "so long as the lease agreement was in writing, there is no room for oral evidence to come in. Despite admissions of a written agreement, the judge improperly entertained disputed oral evidence from the respondents. Mr. Mushi further argued that Section 64(l)(a) of the Land Act, Cap. 113 mandates written contracts for land dispositions, leaving no room for oral variations. He cited Madam Mary Sylvanus Qorro v. Edith Donath Kweka, (Civil Appeal No. 102 of 2016) [2019] TZCA 47 (4 April 2019; TANZLII), emphasizing that transfers must be preceded by written sale agreements, contesting that Form No. 35, is merely a transfer instrument under Section 62, not a contract, and was fraudulently executed without the appellant's consent. Submitting in support of the second and third grounds, the learned advocate for the appellant faulted the trial judge for finding a valid transfer between the appellant and the 3r d respondent, as there was no agreement for the sale. The 3r d respondent claimed a verbal purchase from the late Salim, but land forms (Nos. 29, 30, 35) list the appellant as transferor. The appellant criticizes DW3's (the lawyer's) testimony as illogical "ingenuity" to avoid double transfers, citing cases like Abualy Alibhai Azizi v. Bhatia Brothers Ltd. [2000] T.L.R 288 and Malmo Montagekonsult Ab v. Margaret Gama, Civil Appeal No. 86 of 2001 (Unreported), which require a contract for the disposition of a right of occupancy to be in writing. The second sale transaction is between the late Salim Ally Al Saad and the 3r d respondent, not the appellant. It is his submission asking the court to declare that the 1s t and 2n d respondents breached the agreement. This is due to failure to complete the payment of the agreed purchase price in full. Only the initial amount was paid. He also urged the Court to pronounce and order the suit property to be a valid property of the appellant, citing the case of R.F. Real Estate Limited v. Coca-Cola Kwanza Limited & Another, (Civil Appeal No. 11 of 2021) [2022] TZCA 163 (31 March 2022; TANZLII) at page 102 of the record. In the said decision, we strongly discouraged the courts from blessing fraudulent business transactions. Submitting on the fourth ground, the learned advocate for the appellant faulted the trial judge in awarding the 3r d Respondent vacant possession and TZS 87,000,000. He argued that there is no relationship between the appellant and the 3r d respondent, who purchased the property from Salim Al Saad, and that the appellant had no duty to pay the 3r d respondent. The late Salim Al Saad never paid the second instalment of TZS 217,069,320, as per exhibit PI, so he lacked legal title to pass to the 3rd respondent. On this point, he referred us to the case of Farah Mohamed v. Fatuma Abdallah [1992] T. L.R 205, in which the Court stressed that: "he who doesn't have legal title to land cannot pass good title over the same to another . " The Appellant's counsel concluded that the property belongs to the appellant, and the purported transfer was fraudulent. Mr. Sambo, for the respondents, submitted that each case be discussed and decided on its own peculiar facts. Commenting on the application of Sections 62 and 64, he contended that the provisions were complied with via Form No. 35, which incorporates the elements of a contract under Section 10 of the Law of Contract Act, Cap. 345 (the Law of Contract). He distinguished Madam Mary Sylvanus Qorro's (supra) decision as inapplicable, arguing Form No. 35 evidences the agreement between the appellant and 3r d respondent, signed with the appellant's knowledge. The appellant's four-year delay in suing, despite knowledge from 2011, suggests acquiescence, per Ashraf Akber Khan v. Ravji Govind Varsan (Civil Appeal No. 5 of 2017) [2019] TZCA 86 (9 April 2019; TANZLII). Moreover, there is no proven fraud, and the appellant's retention of possession and collection of rent did not justify the damages claimed. He thus prayed for dismissal of the appeal with costs. In rejoinder, Mr. Mushi reiterated the absence of the privity to the contract, incompleteness of Form No. 35, and the respondents' burden to prove the signature. Having thoroughly considered both the written and oral submissions presented by counsel for the parties, we are now invited to assess the merits and demerits of the appeal before us. In doing so, we shall examine each ground in the order presented and as argued by the respective counsel. On the first ground, the complaint is that the High Court erred in holding that there was an oral agreement that varied the written agreement on the disposition of the suit premise. At the outset, it is our observation that the appellant has misconstrued the decision of the trial court about the issue of the existence of the oral agreement. The trial court discussed whether there was an oral agreement between the appellant and the late Salim Ally Al Saad on pages 221, line 16, to page 224, line 5. The court admitted that there was no written agreement regarding the manner of payment of the outstanding amount between the appellant and the late Salim Ally Al Saad. As the respondents suggested the existence of an oral agreement, the trial court, at page 223, line 10, explicitly stated that there was no concrete proof of the subsequent oral contract between the appellant and the late Salim Ally Al Saad. Despite the evidence on record, the court concluded at page 224 iine 1 to 5 that; "Thus, their evidence remains hearsay evidence which is not admissible, in such circumstances, under the Evidence Act. This issue is therefore answered in negative that there was no proof o f existence o f oral contract subsequent to written contract o f 2$h Feb, 2010, between the plaintiff and the late Salim Ally." Consequently, it is our considered view that the appellant is mistaken, as the trial court declined to find an oral agreement subsequent to the written agreement for the disposition of the suite premises. We think this is the case, as any existing agreement would have been between the appellant and Salim Ally Al Saad, who had passed away by the time the appellant filed the suit in question, which is the subject of the present appeal. Therefore, without such evidence, as rightly concluded by the trial court, it cannot be said conclusively that there was an oral agreement altering the written one. The ground is without merit. On the second ground that, the court erred in holding that there was a valid transfer between the appellant and the 3rd respondent despite the fact that there was no agreement between the parties for the sale of the suit property. On the third ground, the court erred in holding that there was a valid transfer between the appellant and the 3rd respondent, even though there was no valid and lawful consideration which passed from the 3rd respondent to the appellant. Indeed, the trial court reached the finding that there was a valid transfer between the plaintiff and the 3r d respondent. The court reached 10 that finding because the appellant signed transfer forms, including land forms No. 29, 30, and 35, consenting to and notifying the transfer of the property in favour of the 3r d respondent, as evidenced by exhibit D3 collectively, which the appellant never objected to. Analysing and assessing the exhibits, the court reasoned that Form No. 35 contains all the ingredients of the contract as required under section 10 of the Law of Contract Act; therefore, it suffices as the contract for the sale of land. The trial court declined to find that the signature on the purported documents was forged, as the appellant merely alleges it in his oral testimony without any proof. Further, the trial court relied on the failure to cross-examine the 3r d respondent (DW 4) regarding the issue when he tendered exhibit D3 collectively and DW3, in whose presence the said documents were signed. In Browne v. Dunn [1893] 6R. 67, H.L, it was held that a decision not to cross-examine a witness at all or on a particular point is tantamount to an acceptance of the unchallenged evidence as accurate, unless the testimony of the witness is incredible or there has been a clear prior notice of the intention to impeach the relevant testimony. In Hussen Bakari Kadogoo v. R, (Criminal Appeal No. 54 of 2006) [2009] TZCA 103 (19 March 2009; TANZLII), a duty to cross-examine was underscored. In the present appeal, there was li nothing suggesting incredible evidence to consider the appellant's failure to cross-examine on the points warranted. What is obvious is that the appellant, throughout, maintained that there was no valid transfer. However, upon perusal of the evidence on record, we conclude that there was a valid transfer between the appellant and the 3r d respondent herein. PW1 testified at page 90 of the record that after searching on 15th April, 2011, he realized that there had been a transfer from him to the 3r d respondent, the late Mathias Erasto Manga. As reasoned by the High Court, one might wonder why it took the appellant almost four years, from 15th April 2011 to 10th March 2015, to file the case at hand. The appellant declines to know the 3r d respondent or to have entered into an agreement with him over the disputed property. The appellant denies that the signature in Exhibit D3 is his, and his signatures are as they appear in the pleadings in Land Case No. 11 of 2015. It is the settled principle that serious allegations with criminal implications, like forgery, must be specifically pleaded and proved by the one who alleges. See the case of Bomu Mohamed v. Hamisi Amiri (Civil Appeal No. 99 of 2018) [2020] TZCA 29 (27 February 2020; TANZLII). Although the appellant has pleaded forgery in paragraph 18 of 12 his plaint, the allegations of fraud were not specifically proved. On fraud, the burden lay on the appellant as per Section 110, Evidence Act. Mere allegations of cheating are insufficient; no concrete evidence, such as proof of a forged signature, was presented. The R.F. Real Estate (supra) is inapposite, as fraud was proven there; here, the trial judge rightly found none, crediting the respondents' narrative of an oral agreement, a house purchase as per exhibit D2, and a direct transfer with consent. The appellant's silence from May 2010, when a balance was due, through 2015, without reminders, as admitted in cross- examination, undermines his breach claim. No breach occurred if the variation was agreed and executed. As highlighted earlier, the appellant did not object to the tendering and admission of the said documents into the proceedings. Further, the purported forged documents were tendered by DW3 as indicated on page 113. Still, during cross-examination, no questions were asked as to the signature in the documents tendered or the fact that the appellant was personally present at DW3's office on the date of signing the said documents. It is trite that the failure to cross-examine the witness on an important point amounts to acceptance of the truth of the witness's evidence. See: Bomu Mohamed (supra). 13 The appellant objected to the transfer on another ground that there was no lawful consideration which passed from the 3r d respondent to the appellant. DW4 testified on page 118 of the record that he paid TZS 80,000,000/= as the purchase price and was handed the title deed. The said amount is clearly indicated in Land Form No. 35, which was admitted as Exhibit D3. Therefore, the complaint is baseless, as the appellant also admitted receiving the said amount via his bank, where he had an outstanding loan. From the foregoing, we find the ground not merited. On the fourth ground that the court erred in holding that the 3r d respondent is entitled to vacant possession plus payment of TZS 87,000,000.00. The appellant submitted that the late Salim Ally Al Saad had no title to pass to the 3rd respondent; therefore, it was an error to order the appellant to pay the 3r d respondent, who derives his title from the late Salim Ally Al Saad, to be entitled to vacant possession of the suit property plus TZS 87,000,000.00 as general damages. As stated earlier in the second and third grounds, there was indeed no transfer between the late Salim Ally Al Saad and the 3r d respondent, but rather between the appellant and the 3r d respondent. Therefore, since he accepted consideration for the transfer and signed 14 the necessary documents, the property legally passed from him to the 3r d respondent. That being the case, the 3r d respondent is entitled to possession of his property as held by the High Court. On the order for payment of TZS 87,000,000/=, the trial court stated that the 3r d respondent is entitled to general damages resulting from the loss estimated to the said value from the appellant, who has been collecting rent from that property since then to the date of judgment. It is the principle that the judge has discretion in awarding general damages, although the judge must assign reasons for the award. For this stance, in the case of Alferd Fundi v. Geled Mango & Others (Civil Appeal 49 of 2017) [2019] TZCA 50 (5 April 2019; TANZLII), the Court held that award of general damages by the trial court is discretionary exercise and interference by the appellate court should be only where no reasons have been stated or the assessment is unreasonable. In the case at hand, the assigned reason for awarding general damages was that the 3r d respondent had lost rent from the disputed premise, estimated at TZS 2,000,000/= per month, from the time he was entitled to it. Since the said amount is not colossal, there are no reasons for the Court to interfere with the assessment and quantum of damages awarded. The ground fails. On the fifth ground that, the court erred by failing to evaluate the evidence and by disregarding the decision of the Court in Civil Appeal No. 86 of 2001 between Malmo Montagekonsult Ab Tanzania Branch (supra). The appellant submitted that, since the 3r d respondent specifically testified to having purchased the property from the late Salim Ally Al Saad in a transaction never put in writing. At the same time, land Forms Nos. 29, 30, and 35 bear the appellant's name rather than the alleged late Salim Ally Al Saad. The evidence is alarming and sufficient to dispose of the suit in favour of the appellant. Therefore, the court misapprehended evidence and disregarded the decision of Malmo (supra). As previously alluded to in this judgment, the circumstances of the present case are clearly distinguishable from those in Malmo (supra). In Malmo, the seller transferred the property to the respondent in the absence of a sale agreement. By contrast, in the case before us, we have affirmed the trial court's findings, based on the evidence on record, that a valid sale agreement existed, and the appellant duly signed the transfer forms, as collectively exhibited in Exhibit D3. His assertion that the signature was forged is unconvincing, particularly given his failure to 16 report the alleged fraud or forgery to the police. This omission led us to regard the claim as an afterthought. Furthermore, the appellant's failure to demand payment of the alleged remaining balance for a period of four years, during which Salim Ally Al Saad passed away and prior to initiating legal proceedings against the 1st, 2n d , and 3rd respondents, raises serious doubts about the sincerity of his breach of contract claim. In this appeal, the appellant stands as the sole surviving witness with direct knowledge of the transaction. Yet, he has failed to rebut critical pieces of evidence: first, that there was no breach of contract, as he himself neglected to demand the outstanding balance prior to filing the present suit; second, that he requested a house be purchased for him instead of receiving the remaining balance; and third, that he signed Forms Nos. 29, 30, and 35, thereby authorizing the transfer of the property to the 3r d respondent. The facts of this case are entirely distinguishable from those in UMICO Limited (supra), where this Court held that a written contract cannot be varied by oral agreement. Given that each case must be decided on its own unique facts, we find the peculiarities of this appeal 17 sufficient to reject the appellant's counsel's submissions and his reliance on the precedent above. In conclusion, we find the appeal devoid of merit and accordingly dismiss it with costs. DATED at DODOMA this 19th day of December, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered through virtual court this 22n d day of December, 2025 in the presence of Mr. Ngereka Miraji, learned counsel for the appellant and Mr. Gwakisa Sambo, learned counsel for the respondents and Ms. Harida Hamisi, Court Clerk; is hereby certified as a true copy of the original.