Adolf Malekia Sendeu vs Silver Sendeu & Others (Civil Appeal No. 551 of 2022) [2025] TZCA 897 (28 August 2025)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: SEHEL. 3.A., MGONYA. J.A. And FELESHI, 3.A) CIVIL APPEAL NO. 551 OF 2022 ADOLF MALEKIA SENDEU (Holding Power of Attorney of Betty Huber® Elizaberth Sendeu Huber) . .......................................... . .......... . APPELLANT VERSUS SILVER SENDEU .............................. . ............................... 1s t RESPONDENT CHARLES STANSLAUS MALLYA ......... . ............................. 2n d RESPONDENT SYLVESTER PAUL MOSHA ..... . ....... . ................................ 3r d RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division, at Dar es Salaam) fWambura, 3.) dated the 29th day of September, 2017 in Land Case No. 34 of 2013 JUDGMENT OF THE COURT 20th June & 28th August, 2025 FELESHI. 3.A.: In this appeal, the essence of three siblings from the Sendeu family taking part into court actions rests on a parcel of land which Bi Hadija sold to Betty Huber @ Elizabeth Sendeu Huber in early 1985. A Land Case No. 34 of 2013 filed in the High Court of Tanzania, Land Division, (the trial court) by Adolf Malekia Sendeu holding a Power of Attorney donated by his sister Betty Huber @ Elizabeth Sendeu Huber i
(the appellant) against their elder brother Silver Sendeu (the 1s t respondent) along with Charles Stanslaus Mallya and Sylvester Paul Mosha, 2n d and 3r d respondents respectively, from which the instant appeal is founded, as will be exposed later was the second court action. The brief antecedent background giving rise to this appeal is that, the appellant (PW1) and the 1s t respondent attended the purchase of a parcel of land from Bi. Hadija in early 1985. The 1s t respondent was the appellant's witness. On 21.2.1985 the suit land was registered as Plot No. 833, Block "E", Mbezi, Medium Density, Dar es Salaam (exhibit Dl). Thereafter, the appellant entrusted it to the 1s t respondent and left for Switzerland. The 1s t respondent continued to supervise it together with the construction of the appellant's house and regularly sent to the later some photos exhibiting the construction progress (exhibit P5). However, in 1999 the construction was countermanded by the Dar es Salaam City Commission which re-surveyed the land around, including Plot No. 833 for purposes of acquiring land for school construction. In view of that, the appellant wrote a letter to the Commissioner for Lands and authorized the 1s t respondent as her caretaker in all matters relating to compensation resulting from her acquired land. Fortunately, the scope changed, and the re-surveyed Block "E" was subdivided into Plots No.
2069/2/1, 2069/2/2, 2069/2/3, 2069/2/4 and 2069/2/5 without fully extinguishing the appellant's interest on her suit land. According to the appellant, the aforesaid re-survey ended up acquiring a small portion of her Plot No. 833 and the remaining was subsequently renamed as Plot No. 2069/2/2 and 2069/2/3 under the same Block "E". To that effect, she was later granted a Certificate of Tittle No. 124452 (exhibit P4). She said, at one time the 1s t respondent asked her to allow him to sale her Plot No. 833, fearing the loss she could suffer due to the aforesaid acquisition, but she refused. Despite her refusal, on 24.11.2009 the 1s t respondent sold it to the 2n d respondent (exhibit D4) relying on an alleged forged Power of Attorney who, on 25.2.2010 further sold it to the 3r d respondent (exhibit D9). The appellant reported to the police on her alleged forged power of attorney and obtaining money by false pretence. Following her report, the 1s t respondent was charged, tried and convicted of forgery by the Court of the Resident Magistrate of Kinondoni in Criminal Case No. 311 of 2013 and was on 25.7.2014 sentenced to one-year conditional discharge and ordered to pay compensation to the appellant at TZS. 20,000,000.00 within a year. That judgment was not appealed against. As the appellant's attempts to resolve the dispute within the Sendeu
Family and by engaging the respondents failed, she resolved to institute the aforesaid suit against the respondents. In her suit, she basically sought declaratory orders over ownership over Plots No. 2069/2/2 and 2069/2/3, nullification of sale agreements executed by the respondents and other consequential orders and reliefs set out in the amended plaint found at page 59 of the record of appeal. In turn, the respondents basically denied the claims. The 1s t and the 2n d respondents, DW1 and DW3 respectively, disputed the appellant's ownership and claimed the sale agreement (exhibit D4) based on the valid appellant's Power of Attorney dated 5.6.2007 (exhibit D3). DW1 also deposed that after selling the appellant's Plot No. 833 he bought her another house at Kimara Tern bon i. DW2 said he sold to the 3r d respondent (DW6) Plot No. 833 which was on Plot 2069/2/3. The 3r d respondent claimed he purchased the plot from the 2n d respondent and raised a counterclaim that he be declared as a bona fide purchaser for value or he be compensated TZS. 340,340,950.00 for the development he made in the suit land, the value (exhibit D10) which was established by a Efreim Daniel Temba, a Quantity Surveyor (DW5). Besides, one Paul Kija (DW2) also testified for the defence. His evidence was on the re-survey made to Block "E" Mbezi Beach under
Survey Plan E 255/476 registered as No. 589 which was approved on 7.8.2009 (exhibit D6). That survey subdivided Plot No. 2069/2 to five plots. He also deposed that under Survey Map No. E 255/338 registered as No. 32115 which was approved on 2.7.1999 (exhibit D7) Plot No.833 changed to Plot No. 2118. He said, he was around when Plot No. 2069 was subdivided to get land for school. That they divided it as on one side was already developed with residential houses. So, the evidence from DW1-D6 marked the end of the defence case with total urge to the trial court to dismiss the appellant's suit with costs. In determining the dispute, the trial court framed seven issues: one, whether the plaintiff entrusted the 1s t defendant to oversee the affairs of the suit plot; two, if the 1 s t issue answered in the affirmative, whether the 1s t defendant did abuse that trust; three, who was the lawful owner of plot No. 2069/2/2 and No. 2069/2/3 Block "E" Mbezi area-Dar es Salaam; four, whether the plots were the same or formerly known as plot No. 833 Block E Mbezi area Dar es Salaam; five, whether the defendants demolished the plaintiff's house; six, whether the 3r d Defendant was entitled for compensation from the plaintiff, the 1s t and 2n d defendants. If the answer is in the affirmative, to which amount of money; and seven, to what reliefs were the parties entitled.
After evaluating the evidence, the trial court settled the 1s t and 5th issues in the affirmative. On other issues it found that: the 1s t respondent had not abused the trust; the ownership of plots No. 2069/2/2 and 2069/2/3 could be determined by the Ministry of Lands and Human Settlement; plots No. 2069/2/2 & 2069/2/3 and Plot No. 833 were different; the 3rddefendant was a lawful owner of Plot No. 833 and so he was not entitled to compensation. In sum, it dismissed the appellant's suit with costs and declared the 3r d respondent as a bona fide purchaser for value. Not amused by the trial court's decision, the appellant preferred this appeal on the following six grounds:
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That the learned trial Judge erred In law and fact In holding the J d defendant is a bona fide purchaser o f the suit property. In doing so the learned trial Judge failed to take into consideration the evidence o f forger/ committed by the 1st respondent including his conviction for the offence by the Court o f the Resident Magistrate o f Kinondoni in Criminal Case No. 311 o f 2013 between Republic v . Silver Sendeu.
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That the learned trial Judge erred in law in delivering an incomplete judgment by requiring the parties to seek clarification from the Ministry o f Lands and Human Settlement Development on the identity o f the plots/ possession o f which is being claimed. 6
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The learned trial Judge erred in law and fact in failing to take note o f the evidence o f title which the appellant was given by the Commissioner for lands as conclusive proof o f her tittle to the suit land.
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The learned trial Judge erred in law and fact in dealing with issues which did not arise from the pleadings by the parties . In doing so the learned trial Judge erred in law in holding that Plot No. 833 Block "E" Mbezi Beach was now Plot No. 2118 Block "E" Mbezi Beach.
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Upon finding that Plot No. 833 Block "E" Mbezi Beach was now the Plot No. 2118 Block "E" Mbezi Beach the learned trial Judge erred in law in holding that the 3rd respondent was a bonafide purchaser o f Plot No. 2069/2/3 Block "E" Mbezi Konondoni.
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The evidence on record does not support the findings o f the learned trial Judge. At the hearing of the appeal, the appellant was represented by M r. Gaspar Nyika, learned advocate, whereas, Messrs. Frank Killian, Kephas Mayenje and Mussa Godwin Mwapongo, all learned advocates, represented the 1s t, 2n d , and 3r d respondents, respectively. All parties had filed their respective written submissions as per rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules). M r. Nyika submitted on the first ground that the trial Judge erred in declaring the 3r d respondent a bona-fide purchaser, ignoring PWl's
evidence regarding forgery of the power of attorney (exhibit D3) found at pages 311-314 of the record of appeal and the 1s t respondent conviction to that effect in Criminal Case No. 311/2013 (exhibit JN1) which is relevant under section 43A of the Evidence Act, Chapter 6 (the Evidence Act). That, PWl's evidence established the sale agreements executed by the respondents was vitiated. To that effect, he cited our decision in Mohamed Enterprises (T) Ltd v. Masoud Mohamed Nasser, Civil Application No. 33 of 2012 (unreported) adding that, as per section 58 of the Evidence Act, facts like the conviction which court take judicial notice require no further proof. M r. Nyika argued that failure by the respondents to cross-examine the appellant left her evidence on forgery intact and the maxim nemo dat quod non / 7 <?£ef principle applies that the 1s t respondent had no valid title to pass. M r. Nyika was emphatic that the 2n d and 3rd respondents knew or ought to have known that the 1s t respondent lacked authority to sell Plot No. 833. That they ought to have drawn keen attention to Clause 4 of exhibit D4 found at page 436 of the record of appeal which provided a fallback for a refund if no authority was established. The learned counsel emphasized that although forgery was not framed as an issue there was sufficient evidence on record to support forgery and breach of trust
which constituted the 2n d issue whether the 1s t defendant did abuse the trust given to him by the appellant. On the second ground of appeal, M r. Nyika faulted the trial Judge for delivering an incomplete judgment and contrary to Order XX rule 4 of the Civil Procedure Code, Chapter 33 (the CPC), as it left the parties uncertain about the court's decision on the ownership of the contested land. He cited decisions in Felician Muhandiki v. Barclays Bank, Civil Appeal No. 82 of 2016 (Unreported) and Stanslaus Rugaba Kasusura v. Pha res Kabuye [1982] T.L.R. 338 to the effect that any judgment must resolve all material issues. However, he suggested that instead of remitting it back, this Court, being the first appellate Court, should revisit the evidence and come to its own conclusion. Regarding the third ground, M r. Nyika submitted that, in terms of section 33 of the Land Registration Act, Chapter 334 which prioritizes registered interests in land, the trial Judge erred in ignoring the appellant's Certificate of Title (exhibit P4) as conclusive proof of her ownership of Plots No. 2069/2/2 and 2069/2/3 as no evidence was led to show that exhibit P4 was fraudulently granted to her. About the fourth ground of appeal, M r. Nyika argued that the trial Judge erred in holding that Plot No. 833 Block "E" Mbezi Beach is now 9
Plot No. 2118, relying on DW2's testimony and exhibits D6, D7, and D8, which were irrelevant to the suit land. To him, all parties agreed on the suit land's location, description and identity and the 2n d and 3r d respondents acknowledged Plot No. 2069/2/3 as part of Plot No. 833 hence contradicting the Judge's finding. It was Mr. Nyika's submission on the fifth ground of appeal that if Plot No. 833 is now Plot No. 2118, the trial Judge erred in declaring the 3r d respondent a bona-fide purchaser of Plot No. 2069/2/3, as he had already ruled out that there is no connection between these plots. He explained that the evidence shows Plot No. 833 became Plots No. 2069/2/2 and 2069/2/3 owned by the appellant, and the 3r drespondent's title is invalid because the forged Power of Attorney (exhibit D3) vitiated all sale transactions for failure to exercise due diligence. While referring to pages 508, 509, 511 and 512 of the record of appeal, M r. Nyika also contended that the impugned judgment contained a lot of extraneous matters which were neither in pleadings nor in evidence. He finally urged the Court to allow the appeal with costs, quash and set aside the judgment and decree. In response, Mr. Killian, for the 1s t respondent, adopted the 1s t respondent's written submission and concurred with other respondents' 10
submissions and added that, the appellant from the beginning was ready to surrender her Plot No. 833 by either receiving compensation or selling it through her authorized agent as correctly held by the trial court and that, as she did not file any caveat she could not claim forgery against the 3r d respondent. Citing Omary Yusufu v. Rahma Ahamed [1987] T.L.R. 169 he argued, fraud in civil cases requires a high standard of proof which the appellant did not meet. He said, exhibit JN-1 (criminal case judgment) is not conclusive proof without further evidence. As to the second ground of appeal, Mr. Killian opposed Mr. Nyika's contention and argued that the trial court's judgment, which is found at pages 501-522, is compliant with Order XX rule 4 of the CPC. The Judge addressed ownership, declaring the 3r d respondent the lawful owner of Plot No. 833 and directing the appellant to locate Plots No. 2069/2/2 and 2069/2/3. According to him, the case of Felician Muhandiki and Stanslaus Rugaba Kasusura, (supra) cited by Mr. Nyika is inapplicable due to differing facts. On the third ground, M r. Killian argued that exhibit P4 is insufficient in proving the appellant's ownership as she could not recall purchase details or provide a sale agreement as per rule 3 (1) of the Land Regulations, 1948. He cited Malmo Montag Ekonsult Ab i i
Tanzania Branch v. Margaret Gama, Civil Appeal No. 86 of 2001 (unreported) in which it was held that without a valid sale agreement, ownership cannot be proved. In the instant case Mr. Killian contended that the appellant did not prove her title to either Piot No. 833 or Plots No. 2069/2/2 and 2069/2/3, hence rendering this ground meritless. Responding to the fourth ground of appeal, Mr. Killian submitted briefly that DWl's testimony found at page 339 of the record of appeal confirmed that Plot No. 833 is not Plot No. 2069/2/2 or 2069/2/3. He emphasized that the issue of plot identity was part of the pleadings at page 115, contrary to Mr. Nyika's submission. Therefore, he argued, the trial court was correct in its findings. About the fifth and sixth grounds of appeal, M r. Killian was quick to clarify that the trial Judge confirmed the 3rdrespondent's title to Plot No. 833 (now Plot No. 2118) but, not Plot No. 2069/2/3, as the appellant had authorized its sale via exhibit PI and the 3r d respondent purchased it in good faith. The trial Judge's decision is thus supported by evidence. He thus implored the Court to dismiss the appeal. On his part, Mr. Mayenje, for the second respondent, after adopting his written submissions, he also clarified his submission on the grounds of appeal, which, in all fours, supported the submissions by 12
counsel for the 1s t respondent. He emphasized that the trial court was correct in its findings that the conviction of the first respondent in the criminal case does not bind the civil case, as they are independent as held in Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials v, Kinondoni Municipal Council, (Civil Appeal 125 of 2016) [2021] TZCA 337. It was his further submission that the 2n d respondent through his written statement of defence at page 118 of the record of appeal disputed in detail the alleged forgery. He thus prayed that the appeal be dismissed. Submitting on the 1s t ground of appeal for the 3r d respondent, M r. Mwapongo adopted his written submission and supported the trial Judge decision declaring the 3r d respondent a bona-fide purchaser. Relying on the definition of bona-fide purchaser in Suzana S. Waryoba v. Shija Dalawa, (Civil Appeal No. 44 of 2017) [2019] TZCA 66 and Black's Law Dictionary he was emphatic that the 3r d respondent purchased the suit land at the consideration of TZS.a 60,000,000.00 in good faith and without suspicious circumstances. He argued that the alleged forgery by the 1s t respondent does not affect his status for being unaware of any fraud. 13
The learned counsel added that, according to DW2 and exhibit D7 the appellant was not even sure of her land and that Plot Nos. 2069/2/2 and 2069/2/3 did not originate from Plot No. 833 Block "E" Mbezi Beach. Mr. Mwapongo further asserted that any conflicting claim by the appellant should be addressed by the 1s t respondent and not the 3r d respondent who was a bona-fide purchaser. He cited Stanley Kalama Masiki v. Chihiyo Kuisia w/o Nderingo Ngomuo [1981] T.L.R. 143 and Evarist Peter Kimathi v. Protas Lawrence Mlay, Civil Appeal No.3 of 2000 (unreported) to buttress his position. Addressing the 2n d ground of appeal, Mr. Mwapongo's submission, like M r. Killian, did not find any fault in the trial court's judgment as it is compliant with Order XX rule 4 of the CPC. He thus argued that this ground is misplaced and lacks merit. As to the 3r d ground of appeal, the complaint that the trial Judge erred in ignoring the appellant's Certificate of Title from the Commissioner for Lands as conclusive proof of her ownership of the suit land, M r. Mwapongo argued that the Certificate of Title (exhibit D2, pages 417^20) is irrelevant as it was issued in July 2013 after the case was filed and does not mention Plot No. 833. He emphasised that DW2's testimony was clear that Plots No. 2069/2/2 and 2069/2/3 did not 14
emanate from Plot No. 833 which is now Plot No. 2118. He thus urged the Court to dismiss the complaint for want of evidence. The learned counsel reiterated his submission on ground three in respect of the 4th ground which faults the trial Judge for holding that Plot No. 833 is now Plot No. 2118 Block "E" Mbezi Beach. Replying to the fifth ground, Mr. Mwapongo clarified that the trial Judge did not declare the 3r d respondent a bona fide purchaser of Plot No. 2069/2/3 but of Plot No. 833 (now Plot No. 2118), as evidenced at pages 520-522 of the record of appeal. The Judge's reasoning at pages 514-520 supported their ownership of Plot No. 2118 and the appellants claim is baseless. In summing up, M r. Mwapongo requested the Court to uphold the trial court's decision and dismiss the appeal with costs In rejoinder, Mr. Nyika reiterated his submissions in chief and added that, though the 2n d respondent claimed to have replied to the issue of forgery, in absence of a specific denial from the 1s t respondent, who was the subject, they remain incriminated. Besides, on M r. Mwapongo's submission that the 3r d respondent had no means to detect the fraud done by the 1s t respondent, M r. Nyika stressed that the 3r d respondent did not make any diligence especially on Clause 4 of exhibit D4 which clearly exposed that the 2n d respondent purchased Plot No. 15
833 without making due diligence. In the event, the 3rd respondent ought not to have legally developed a suit land purchased from a void contract. In the upshot, he insisted that the appeal be allowed with costs. We have dispassionately considered the grounds of appeal, the rival submissions by the counsel for the parties, the record of appeal and the law. The glaring main issue turns on whether the appeal has merit. Thus, led by the law that, a decision of any court must be grounded on the evidence properly adduced during the trial as held in Shemsa Khalifa and Two others v. Suleman Hamed, Civil Appeal No.82 of 2012, (unreported) and rule 36 of the Rules, as this is the first appeal, we will freely re-apprise the evidence on record to settle the issue. At the very outset, we agree with the trial court finding that exhibit PI entrusted the 1s t respondent to oversee the affairs of Plot No. 833. However, exhibit PI which is found at page 392 of the record of appeal was specific that, it introduced the 1s t respondent to the Commissioner for Lands to receive compensation ensuing from Plot 833 which was intended to be acquired for school under new Plot No. 2069/2. We will next first conjointly dispose the second, third, fourth and fifth grounds of appeal which, in our considered view, challenge the 16
decision of the trial court regarding existence and relationship between Plot No. 833 Block "E" and No. 6069/2/2 and 2069/2/3 under Block "E" Mbezi, Dar es Salaam. The appellant claimed under paragraphs 6, 8, 11, 12 and 13 in the amended plaint at pages 60 and 61 of the record of appeal that, the land formally described as Plot No. 833 Block "E" Mbezi Beach Area is one and the same described as Plots Nos. 2069/2/2 and 2069/2/3 in the suit except about three meters of rear part of land including wall fence of Plot No. 833 acquired by Julius K. Nyerere Primary/Secondary School which remained subject of compensation. The 1s t respondent in his written statement of defence at page 115 of the record of appeal only denied the appellant's claimed ownership contending that Plot Nos. 2069/2/2-5 were reserved for school construction. He took no issue on the existence of the plots. On his part, the 2n d respondent's written statement of defence appearing on page 118 did not refute the existence of the plots and its ownership by the appellant rather stated that he legally purchased it from the 1s t respondent and sold it to the 3r d respondent. The same averment was made by the 3r d respondent at pages 130 and 131 of the record of appeal. 17
Therefore, from the parties' pleading above, we find that they did not dispute existence of the suit land which founded the two sale agreements, exhibits D4 and D9 respectively. This position is fortified by the evidence on record which we wish to briefly demonstrate. The appellant (PW1) at pages 312-313, 317- 318, 320, 321- 322 of the record of appeal asserted on the acquisition and registration of Plot No. 833 and later Plot Nos. 2069/2/2 and 2069/2/3 and the attendant changes following the re-survey of Block "E" Mbezi where her suit land is situated to procure land for school construction. The re resurvey, she said, extended the school area to Plot No. 833for about three meters. Her testimony to that effect is found at page 313 of the record of appeal that: "... that about 3 metres o f my plot was taken by the school...". On his part, the 1s t respondent (DW1) testified at pages 332, 339, 340 and 341 that: "...plot No. 833 Block E Mbez! Is known to me. It was purchased by my young sister, the plaintiff and when she went to pay purchase price, I escorted she bought it from Bi. Hadija. .... We were toid that plot was reserved for school construction. ... I soid my sister's plot which she purchased to Mr. Maliya. .... We had developed 18
the plot by building a house. Wails were erected to iinter stage... physically Plot No. 833 is same with plot 2069. .. We are referring to piot No. 833 which is now referred to Plot No. 2 0 6 9 .. Emphasis added.] DWl's evidence above regarding the physical existence of the appellant's suit land, a subject matter in exhibits D4 and D9, is in all fours shared by the 2n d and the 3r d respondents who apart of their pleadings referred above, testified as DW3 and DW6 respectively. For example, DW6 deposed at page 336 that V the transfer was from Betty HubberSendeu to my name" meaning that, the documents handed over to him by DW3 were those he had received from DW1 who held them on trust from PW1 and were on one and the same parcel of land that is, formerly Plot No. 833 and later Plot Nos. 2069/2/2 and 2069/2/3. Additionally, Paul Kija (DW2), a land Surveyor from the Ministry of Lands and Human Settlement, adduced his evidence regarding Survey Plan E. 255/328 registered as No.31378 which was approved on 20.9.1999. We find his evidence relevant as it was under that 1999 Survey to Block "E" Mbezi, Dar es Salaam the disputed land was involved. DW2's evidence found at page 359 of the record of appeal was
"When plots 2069 was divided into two, I was around. I did not do the survey. It was surveyed as a school. We divided it as it has been developed on one side. I do not know who was developing it, but it was a residential house. "'[Emphasis added.] With the ample evidence above, with due respect to the respondents' counsel, it is clear to us that only one piece of land was purchased by the appellant and later sold to the 2n d and 3r d respondents. That same Plot No. 833 which was subject of the sale agreement in exhibit D4, was later sold by the 2n d respondent to the 3r d respondent as Plot No. 2069/2/3 as it is conspicuously framed in paragraph three of exhibit D9. This to us seems to be a conclusive position because, as correctly argued by Mr. Nyika, no evidence was led to show that CT No. 124452 (exhibit P4) is revoked or was fraudulently granted to the appellant. Consequently, we find merit in grounds two, three, four and five. We think had the learned trial Judge properly examined the evidence on record, she must have established that, the existence of Plot No. 833 was not at issue at all, and she would not have decided that Plot No. 833 and Plot Nos. 2069/2/2 and 2069/2/3 were different plots. On the same account, she would not have left the Ministry of Lands and Human 20
Settlement to determine their whereabouts whilst also assigning no reasons for her failure to visit the focus in quo . We find her holdings on complained decision were misconceived and we allow the second, third, fourth and fifth grounds of appeal. Reverting to the first ground of appeal, the critical issue in our view was whether the trial court's decision that the 3rd respondent is a bona fide purchaser for value was justified. In Suzana S. Waryoba v. Shija Dalawa (supra), we ascribed the term bona fide purchaser as someone who purchases something in good faith, believing that he/she has clear rights of ownership after the purchase and having no reason to think otherwise. See also- Godebertha Lukanga v. CRDB Bank Ltd and 3 Others (Civil Appeal No. 25/17 of 2017) [2021] TZCA 72. So, to us, for a bona fide purchaser to be protected he must have, during the sale, exercised his due diligence and under a situation where in normal circumstances he could not have believed there was fraud. Protection of bona fide purchaser thus, does not arise in a contract which in its prfma facie is void. This emanates from the principle of nemo dat quod non habet meaning "no one gives what he does not have.” \ x \ relation to that, we stated in Ombeni Kimaro v. Joseph 21
Mishili t/a Catholic Charismatic Renewal, (Civil Appeal No 33 of 2017) [2021] TZCA 343 that: "... if at ail she sold land to the appellant, the sale was Invalid as she did not have title to pass to the appellant, for she would not give what she did not have. For this stance - see Pascal Maganga v Kitinga Mbarika, Civil Appeal No. 240 o f 2017 (unreported). In this regard we are settled that the acts o f DW2 in the sale o f the land to the appellant brought her within the famous Latin Maxim nemo dat quod non habet, meaning "no one gives what they do not have". In the instant matter, apart from the uncontested mandate the appellant had given to the 1s t respondent through exhibit PI and that of supervising the construction of her house whose progress is depicted in exhibit P5, PW1 strongly refuted giving Power of Attorney (exhibit D3) to authorize DW1 to sell her Plot No. 833. That led to the prosecution and conviction of the 1s t respondent for forging exhibit D3. We indicated that the trial court settled the issue of abuse of trust by the 1s t respondent in the negative. Upon thoroughly scrutinizing the evidence on record, we have found ample evidence against that holding. Disputing to have entrusted DW1 to sell her Plot No. 833, PW1 testified the following at pages 314 and 315 of the record of appeal: 22
"In 2007 Silver Sendeu sent through DHL. It was power o f attorney. He wanted me to sign to allow him to sell the plot. I refused to sign.. .He threatened that if could not sell it, there were conmen to con my plot...Bob who told me that the plot was in the market It was to be sold. ... After receiving that information from Bob, I phoned my brother Silver Sendeu and told him that I heard that my plot was to be sold. He denied. I asked him to look for documents if they are stiii intact. He confirmed to me that the documents were stiii in his possession. In February 20101 received sms informing me that I had to come to Tanzania as soon as possible because the plot was sold by my brother Silver Sendeu.. .My sister Lucy gave me Silver's phone that he was using at that time. I got him through the phone. I pleaded to him that he should return the money. ..He refused and added that Charles Malya would gun him if he would make follow-up o f the return o f my /'[Emphasis added.] We wish to observe here that, according to the record of appeal at pages 318, 319 and 320, as correctly submitted by Mr. Nyika, PWl's evidence was not cross-examined by both M r. Kariwa and M r. Tarimo, [earned advocates who represented the 1s t and 2n d respondents at 23
hearing before the trial court. That means they let it sail through though at pleading stage they had required strict proof from her. However, M r. Mussa, learned counsel for the 3r d respondent cross-examined PW1 on the matter and her response is found at page 322 of the record of appeal and was that: "The first defendant was not allowed to sell my plot...I did not want my plots to be sold.... We wanted him to return my plot. I need my plots back.. /"[Emphasis added.] As to the 1s t respondent's conviction on the forgery of exhibit D3 and its consequent sentence in the criminal case, DW1 himself, albeit briefly acknowledged it before the trial court in the above-mentioned land case. Quoting him, DW1 deposed the following at page 340 of the record of appeal: "...in a criminal case I was found guilty o f forging Power o f Attorney o f the plaintiff. I have never appeared (sic). I have finished my sentence. "[Emphasis added.] For the sake of clarity and completeness of evidence on record for our determination of the second issue, we find DW1 to have also deposed the following at pages 341 and 342 of the record of appeal: 24
sold the plot to Mallya and purchased a house for plaintiff at Kimara Temboni... There Is a tenant in that house. He is paying rent per month TZS 180,000/=. Iam waiting for the court's decision. I convinced her to go and transfer the house in her names, but she refused. I purchased the house in my name as she was away. "[Emphasis added.] While settling the second issue, the learned trial Judge per the record of appeal at pages 549, 550, 551 and 552 had the following: " It is my belief that PW1 and the 1st defendant being siblings agreed on the sale o f the suit premises... Probably what transpired is that alter the said sale transaction by the 1st defendant who later on purchased another house at Kimara , PW1 was not attracted by the house thereto... The allegation o f forgery is alleged to have been proved by Kisutu Resident Magistrate Court as per JN1. But even if there was fraud this cannot be conclusive evidence because what goes on behind the scenes is unknown... the production o f a courtjudgment is in itself not conclusive evidence that there was fraud in this matter. The witness ought to have adduced evidence and be cross examined in this court as not all parties 25
herein were parties in the criminal suit Moreover, the same could be set aside on appeal.... In this case it seems PW1 wants to benefit twice from the same subject matter. She already benefited by authorizing the 1st defendant to sell the suit property, dissatisfied she had decided to accuse him o f forgery. One cannot be left to benefit twice. Therefore, this issue is answered in negative "\Emphasis added.] The reproduced evidence above is meant to fortify why we stated that we are not at one with the trial court's findings on the second issue whether the 1s t defendant abused the trust given to him by the appellant. We have extensively reproduced it together with an excerpt on summation of her findings as we are settled in our minds that, had she keenly and adequately examined the evidence on record, she would have found that: One, PW1 had not authorized DW1 to sell her Plot No. 833; two, DW1 being custodian of PWl's documents, without authorization used them to warrant sate of the appellant's suit land as per exhibits D4 and D9; three, the covenant that the Vendor shall refund the purchaser the full purchase price plus any other costs that the purchaser would have incurred in Clause 4 in exhibit D4 inevitably required the 2n d and 3r d 26
respondents to conduct due diligence before executing exhibits D4 and D9; four, apart from testifying in Criminal Case No. 311 of 2013 where the 1s t respondent was convicted and sentenced of forgery of exhibit D3, the conviction and sentence which were not appealed against, PW1 further adduced evidence disassociating her with exhibit D3 in Land Case No. 34 of 2013 and her evidence was not challenged by the 2n d and 3rd respondents, which required a judicial notice to be taken under section 58 of the Evidence Act; and five, PW1 did not benefit twice from the sale of her Plot No. 833 as no evidence was led that she received the sale proceeds or received rent from the house DW1 purchased at Kimara Temboni house in his own name. Under the circumstance, we are inclined to agree with Mr. Nyika that the 1s t respondent breached the trust that was given to him by the appellant by selling her Plot No. 833 to the 2n d respondent without her authorization. Being a caretaker of Plot No. 833 to the extent alluded to above, that did not de facto make him mandated to dispose of the appellant's suit land. We underscored this stance in the case of Abinur Mohamed v. Primitiva Patrick Kamugisha, (Civil Appeal No. 131 of 2022) [2025] TZCA 577 that: "It is our firm finding that Fatuma Ramadhani was a mere caretaker who could not pass a title to the 27
appellant be it by way o f a sale or any other form o f disposition. In other words, until such time when the appellant (sic) purportedly sold the disputed land to the appellant, which we consider to be unfortunate and void ab initio... In this regard, therefore, we are guided by the popular saying; Once a Care TakerAlways a Care Taker..." Therefore, the finding by the learned trial Judge at page 511 of the record of appeal, specifically the conclusion that the appellant benefited from the sale proceeds of Plot No. 833 is not borne out of the evidence we have presented above, Ordinarily the above would have been sufficient to dispose of the first ground of appeal but, we deem it appropriate to address, albeit briefly, the issue of forgery of exhibit D3. This is because, though as correctly submitted by Mr. Nyika, that the issue of forgery of exhibit D3 was not framed along with the other issues we reproduced above, it formed basis of the findings of the learned trial Judge. At page 510 of the record of appeal the learned trial Judge held that: "... the production o f a courtjudgment is in itself not conclusive evidence that there was fraud in this matter. The witness ought to have adduced evidence and be cross-examined in this court as not all parties herein were 28
parties in the criminal suit. Moreover, the same could be se t aside on appeal ...."[Emphasis added.] At this juncture, we wish to point out that the learned trial Judge was right in addressing the issue of forgery despite that it was not framed. This was because, there was evidence led on it and address made to the trial court by the parties as alluded to earlier. For further guidance, see Odds Jobs v. Mubira [1970] E.A. 476. The extracted excerpt vividly shows that the learned trial Judge made two conclusions: one, that, exhibit JN1 was not conclusive evidence for fraud because the witness in the former case ought to have adduced evidence and be cross-examined in the land case before her as not all the parties were parties in the criminal case; and two, that, exhibit JN1 was open for appeal or revision. From the evidence we recapped above, it is evident to us that the two conclusions were misapprehension of evidence and law. This is because, the evidence clearly showed that PW1 (who was also PW1 in the criminal case) adduced her evidence on how she declined the 1s t respondent's request to dispose of her Plot No. 833. And, that the 1s t and 2n d respondents decided not to cross examine her at all on exhibit D3. On the second conclusion, we have reproduced above the evidence 29
of the 1s t respondent which is to the effect that he was convicted of forgery of the exhibit D3 and that he never appealed against exhibit JN1 until completion of his sentence. At this juncture therefore, we conclude that, it was wrong for the learned trial Judge to find that PW1 did not adduce evidence and be cross examined in Land Case No. 34 of 2013 which was before her and that the Judgment of the Court of the Resident Magistrate of Kinondoni in Criminal Case No. 311 of 2013 between Republic v. Silver Sendeu was not conclusive for want of appeal process. On our part, we find that the said judgment was relevant in terms of section 43A of the Evidence Act which provides that: "A final judgement o f a court in any criminai proceedings shall, after the expiry o f the time lim it for an appeal against that judgement or after the date o f the decision o f an appeal in those proceedings, whichever is the later, be taken as conclusive evidence that the person convicted or acquitted was guilty or innocent o f the offence to which the judgement relates." [Emphasis added.] 30
Therefore, based on the evidence on record, we decline the submissions by Messrs. Killian and Mayenje who resisted consideration of section 43A of the Evidence Act in resolving the first ground of appeal. In our view, that is a good law in the matter at hand and needs no aid in construing its words. Besides, our discussion on the evidence obtained in this appeal distinguishes it from Charles Christopher Humphrey Richard Kombe t/a Humphrey Building Materials (supra) cited to us by M r. Mayenje. In Charles's case, we found, despite the plaintiff being acquitted by the criminal court, the sundry items which were allegedly taken by the respondent, and relied upon to claim compensation, lacked the requisite strict proof which was mandatory in his case. It is in this regard that we underscored in that case that, as the plaintiff's acquittal in the criminal case was not in dispute, what was important before us was its relevance in the civil suit before the High Court. As a matter of emphasis on what we underscored in that case, it is essential for parties to note that section 43A of the Evidence Act cannot be invoked in a civil court without establishing its relevance in the suit before it. In the instant appeal for instance, as alluded earlier, we are satisfied that exhibit JNl:one, was final, meaning that it had not been 31
vacated by further appellate or revisional proceedings in favour of the 1s t respondent; two, it was relevant in Land Case No. 34 of 2013 because its subject matter (exhibit D3) was pleaded and proved by the appellant without objection from the 1s t respondent (who was an accused in exhibit JN1). Under the circumstance, it is thus clear to us that the trial court erred to not find exhibit JN1 was also relevant in disposing the second issue whether the 1s t respondent abused the trust given to him by the appellant. In the end, we find the 1s t ground of appeal is meritorious and we allow it. In view of the above discussion, it is evident to us that there was no good title which could have been legally passed by the 1s t respondent to the 2n d respondent. In this regard, we find the sale between the 1s t and 2n d respondents (exhibit D4) was void ab initio. We are further inclined to agree with Mr. Nyika that, as both the 2n d and 3r d respondents, based on the evidence recapped above, did not conduct the requisite due diligence, the principle of bona fide purchaser for value cannot apply to either the 2n d respondent or the 3r d respondent. The appeal is thus meritorious, and we allow it. The issue we raised is settled in the affirmative. Consequently, we quash and set aside the judgment and decree of the trial court and the resultant orders. It is 32
hereby further ordered that: the appellant is declared lawful owner of Plot No.2069/2/3 Block E, Mbezi Dar es Salaam; the 3r d respondent to give vacant possession of the appellant's plot; the appellant is awarded 7% interest from the date of judgment to the date of execution as well as the costs of the case and this appeal. However, we decline the appellant's claims for compensation and interest on decretal sum. DATED at DODOMA this 27th day of August, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2025 in the presence of Mr. Gaspar Nyika, learned counsel for the Appellant and M r. Kephas Mayenje, learned counsel for the 2n d Respondent also holding brief for Messrs Frank Killian and Mussa Mwapongo, learned counsels for the 1s t and 3r d Respondents vide virtual Court; is hereby certified as a true copy of the original. &\ R. W. CHAUNGU If]] DEPUTY REGISTRAR H COURT OF APPEAL 33