John Rashid Mghamba vs Masunga Tungu Shija (Civil Appeal No. 278 of 2024) [2025] TZCA 1134 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA, J.A.. MGEYEKWA, J.A. And MLACHA, J.A.^ 1 CIVIL APPEAL NO. 278 OF 2024 JOHN RASHID MGHAMBA........................................................... APPELLANT VERSUS MASUNGA TUNGU SH IJA .............. ...................................... RESPONDENT (Appeal from the Judgment and Decree of the Resident Magistrate's Court of Tabora atTabora) (Momba, PRM. Ext.l dated the 29th day of March, 2023 in Land Appeal No. 7 of 2021 JUDGMENT OF THE COURT 6th & 15th Octooer, 2025 MLACHA, J.A. The respondent, Masunga Tungu Shija, sent the appellant, John Rashid Mghamba, at the District Land and Housing Tribunal for Nzega at Nzega (the DLHT) in Application No. 25 of 2020 seeking to be declared the lawful owner of a house situated at Bukene village, Nzega District Tabora Region. He won the case and was declared the lawful owner of the house. The appellant was ordered to vacate from the suit property. His appeal to the High Court was transferred to the Resident Magistrate's Court to be heard by a Resident Magistrate with extended jurisdiction. The appeal was heard and dismissed hence this second appeal. i

It was the respondent's case at the DLHT that while in his shop on 13/10/2019 at around 10:00 hours, the appellant came and told him that he was selling his house. They agreed the purchase price to be Tzs. 9.500.000.00. They executed the sale agreement (exhibit PI) on 15/10/2019. It was witnessed by Joseph Kishimiza (PW2) who is also the hamlet leader, Charles James (PW3), Obama Yasin, Godfrey Shija and the appellant's wife (Fatuma Majumba). It bears the passport size photographs of the appellant and his wife. PW2 testified that the parties came to him and said that they wanted him to witness their sale agreement as he was their leader. He agreed and witnessed execution of the sale agreement. The appellant was the seller and the respondent was the buyer. PW3 told the DLHT that the appellant came to him on 3/8/2019 to borrow Tzs. 6,000,000.00 saying he had family problems. He gave him the money. The appellant promised to return the money on 30/9/2019. He did not pay back as agreed. One day he came and asked him to make a top up of Tzs. 4,000,000.00 so that he could buy the house at Tzs. 10.000.000.00 in a bid to settle the debt. He declined the offer. He advised him to look for another buyer. The appellant called him on 15/10/2019 saying he had a buyer who happened to be the respondent. PW3 came and witnessed the sale of the house to the respondent at the purchase price of Tzs. 9,500,000.00. Other witnesses signed as well. Upon receiving

the money, the appellant paid the debt of Tzs. 6,000,000.00 on the spot. As for him and the appellant the matter ended there. But before he left, he heard the appellant praying to be given 2 months or so to prepare his exit. The respondent allowed him to proceed to stay in the house as prayed. The defence of the appellant at the DLHT was that, he was called by PW2 and requested to sign two documents on 15/10/2019. Thinking that they were from the NMB for a loan, he agreed and signed. His wife was also asked to sign and she signed. His understanding was that they were going to process a loan with the NMB Bank but he was later told that he had sold his house something which was not true. He complained that he could not sell his house at Tzs. 9,500,000.00 while its value, as per the valuation report (exhibit Dl), was Tzs. 36,000,000.00. He denied to sell the house. The DLHT was not impressed by the defence of the appellant. Based on the evidence presented by the respondent, it found that there was a valid sale agreement between the parties and declared the respondent the lawful owner of the house. It also made orders for vacant possession as intimated above. This finding was confirmed by the Resident Magistrate with extended jurisdiction. 3

The appellant lodged a memorandum of appeal containing eight (8) grounds of appeal but he abandoned six (6) grounds at the first hearing. He remained with two (2) grounds which carry the following complaints. One, that, the sale agreement (exhibit PI) was illegal and; two, that, the DLHT failed to record the names and opinion of assessors. At the hearing of the appeal, both parties appeared without legal representation. When the appellant was invited to address the Court on the grounds of appeal, he adopted his written submissions earlier on filed in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009. Amplifying on ground one, the appellant contended that, the sale agreement was illegal because he did not intend to sell the house. He was just called by the hamlet leader (PW2) who requested him to sign on blank papers. He signed them without knowing that he was selling his house because he thought it was an NMB loan. He went on to submit that the documents were prepared by the hamlet leader, PW3 and the respondent. He just signed. On ground two he contended that the opinion of assessors was read in court before them but their names were not disclosed. He also argued that their opinions are also missing in the record of appeal. When he was 4

engaged by the Court that he was the one who had the duty of preparing the record of appeal, he said that he was just assisted by somebody to do so. He was not sure how the opinion went missing. In response, the respondent reiterated what he told the lower courts on how the sale agreement was negotiated and executed in a bid to show the Court that the appellant is not speaking the truth. That, the sale agreement was executed before witnesses and payments made before them. He beseeched the Court to believe that exhibit PI is a genuine document evidencing what happened. That, the appellant and his wife signed the agreement and took the money. His mistake was to give them the 3 month's grace period to vacate from the suit property which has cost him litigation for 5 years. He challenged the submission that the appellant signed blank papers saying the appellant being a teacher could not do so. On the opinion of assessors of the DLHT, he submitted that the opinions were read at the DLHT in their presence and kept in the file. They all opined against the appellant who was ordered to vacate but has not done so todate. On our part, we have examined the record and considered the submissions of the parties. We will start with ground one. It challenges the legality of the sale agreement. The issue is whether there was an offer, acceptance and consideration so as to create a binding contract

between the parties. See sections 10 and 13 of the Law of Contact Act and our decision in Mr. Mathias Erasto Manga vs MS Simon Group (T) Limited, [2014] TZCA 291 and Agreko International Projects Limited v. Triuphant Trade Consultancy Services Limited [ 20 23 ] TZCA 17781. The story of the appellant tends to suggest that, there was no offer, acceptance and consideration because he was merely called by the hamlet chairman who made him to sign on blank papers. He and his wife signed thinking that they were for an NMB Bank loan. The respondent story suggests that there was an offer from the appellant which he accepted and consideration for TZS. 9,500,000.00 which he paid on the sport. He discarded the story that the appellant was merely called to sign on blank papers. He contended that, the appellant being a teacher could not sign on blank papers without reading. This a critical evaluation of the sale agreement. It also goes to the credibility of witnesses. The DLHT examined the sale agreement and had the advantage of examining the credibility of PW1, PW2, PW3 and DW1. It could not doubt the authenticity of the sale agreement and the credibility of the respondent and his witnesses. It could not take as true what was said by the appellant. It found that there was evidence proving that, the appellant executed the sale agreement in the presence of his wife who also signed as a witness. The DLHT was better place in the assessment of credibility

of witnesses than this Court. See our decision in Godson Dan Kimaro v. The Republic, [2022] T7CA 621 where it was stated thus: "One, that the best court for assessing credibility is the trial court and that this Court can rarely interfere with concurrent findings of two lower courts on an issue of credibility. The rationale being that this second appellate court does not have the advantage that the trial court enjoys, that of seeing, hearing and assessing the demeanour of witnesses." See also our decisions in James Msafiri v. The Republic, [2022] TZCA 318 and Khalfan S/O Runyenye @ Mchinjiko V. The Republic, [2022] TZCA 324. The findings of the DLHT on the above issue were upheld by the Resident Magistrates Court making a concurrent finding of facts. It a principle well settled that on a second appeal like this one, the Court should not interfere with concurrent finding of facts of the lower courts save where the decisions were based on a disregard of an established principle of practice, misapprehension of evidence, omissions to consider available evidence, a misapprehension of applicable law and/or misdirection or none directions on the evidence. See Samwel Daud & Mwita Matiko v. Republic Criminal Appeals Nos. 177 and 178 (unreported) and Neli Manase Foya v. Damian Mlinga, [2004] TZCA

53. We do not see such a thing in this case. We should perhaps say, as was contended by the respondent that, the appellant being a teacher and an elite in the locality could not be called before the hamlet chairman and sign blank papers. This appears to be a fabricated story created in a bid of getting more time to stay in the house. We reject it. Ground one is thus devoid of merit and dismissed. Next is ground two. The complaint here is that, the names of the assessors were not disclosed and their opinions are missing. The assessors in this case were Mr. Kigata and Mr. Madafu. Their names were recorded throughout the proceedings. They gave their opinion on 26/11/2020. Truly their opinions are not in the record of appeal but were reproduced in the judgment of the DLHT as appearing at page 72 of the record of appeal which reads as follows: "Baraza hili Utamke kwamba mleta maombi ndiye mmiliki halali wa nyumba inayobishaniwa. Mjibu maombi Pamoja na familia yake wapewe amri ya kuondoka kwenye nyumaba wa/iyokwishauza kihalali, Pamoja na kulipa gharama za shauri hili". This literally means that the tribunal should pronounce that the applicant (now respondent) is the owner of the disputed house. The respondent (now appellant) should vacate and handle the house which he had sold lawfully. He should pay the costs. This opinion is the basis of

the decision of the lower courts. It is thus not correct to say that the names of the assessors are unknown and their opinion is not known. This ground is baseless and dismissed. That said, the appeal is found to be devoid of merit and dismissed in its entirety with costs. DATED at TABORA this 15th day of October, 2025. The Judgment delivered this 15th day of October, 2025 in the presence of appellant and respondent in person unrepresented, and Ms. ; '' " 1 1 -rue copy of the Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL