Edina Anna Mwansasu & Another vs Superior Financing Solutions & Others (Civil Appeal No. 426 of 2022) [2025] TZCA 872 (22 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A.. MASOUD. J.A. And AGATHO. J.A.^ CIVIL APPEAL NO. 426 OF 2022 EDINA ANNA MWANSASU............... ................................. 1 st APPELLANT RACHEL DANIEL SOZIGWA................................................2 nd APPELLANT VERSUS SUPERIOR FINANCING SOLUTIONS .... . ...........................1 st RESPONDENT ISAACK W. KASANGA ............ . .................... . ................... 2 nd RESPONDENT MARIA K. BARNET........................................... . ...............3 rd RESPONDENT SHEMA WENDO MWAPACHU........................................... 4™ RESPONDENT (Appeal from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam) (Wambura, J.) dated the 9th day of September, 2017 in Land Case No. 249 of 2015 JUDGMENT OF THE COURT 2.9'! July & 22n dAugust,, 2025 AGATHO, 3.A.: The appellants preferred the present appeal challenging the High Court's decision which dismissed their suit on account of lack of evidence to prove the claim on the balance of probability. This appeal arises from the decision of the High Court of Tanzania (Land Division) in Land Case No. 249 of 2015, in which the appellants, Edna Anna Mwansasu and

Rachaet Daniel Sozigwa, sued the respondents for an alleged fraudulent transfer and sale of the suit property situated at Plot No. 578, Old Kinondoni, Dar es Salaam. The High Court dismissed the suit for want of merit. Aggrieved, the appellants lodged the present appeal. According to the appellants, sometime in February 2015, the 2n d appellant approached the 1s t appellant, who is her relative, and requested her to act as a guarantor for a loan of TZS 30,000,000/= from the 1s t respondent (a micro-financing institution). The 1s t appellant agreed and deposited the title deed of her house as security. It was their understanding that the house was to be used solely as a loan guarantee. They alleged that after signing the loan and guarantee documents, they were not furnished with copies despite several requests. The 2n d appellant managed to repay part of the loan (approximately TZS 23,000,000/=), but subsequently defaulted. The appellants claimed they were neither served with a notice of default nor informed of any impending sale. To their surprise, they discovered that the 1s t respondent had allegedly forged a sale agreement and transfer forms and sold the house to the 4th respondent, Shema Wendo Mwapachu, without conducting a public auction or involving the 1s t appellant.

The appellants contended that the entire transaction was marred by fraud, misrepresentation, and conspiracy among the respondents. They sought, inter alia, a declaration that the sale was null and void, recovery of the property, discharge of the loan guarantee, general damages amounting to TZS 87,000,000/=, and a permanent injunction against further interference with the property. During the trial at the High Court, the respondents did not appear to defend their case, but from their Written Statement of Defence, they denied the allegations, asserting that the 1s t appellant had voluntarily sold the property to the 1s t respondent, who subsequently transferred it to the 4th respondent. They insisted that the transfer was lawful and supported by valid documentation. At the end, the trial court dismissed the suit for want of merit, finding that the appellants had failed to prove the existence of a formal loan or mortgage agreement linking the property to the alleged loan. Dissatisfied, the appellants lodged this appeal before the Court, raising several grounds, including misappreciation of evidence, failure to assess admissions in the defence, and failure to detect fraud and conspiracy. They are namely: 3

1. That the trialjudge erred in taw and fact for failure to reason the motives o f the exhibits tendered by the appellants in correspondence with the intended pledge for mortgage to the 1st respondent.
2. That the judge erred in law and facts for failure to scrutinize on balance o f probability the essence o f the loan granted to the 2n d appellant to have persuaded by the security demonstrated by the valuation report and the repayment receipt obtained from the 1st respondent's authority and the questionable controversial pleaded in the joint WSD.
3. That the trial judge failed to appreciate the respondents' admission to key facts in theirjoint written statement o f defence (paragraphs 3, 5,7,8 and 9).
4. That the court erred in failing to detect an organized conspiracy by the respondents to defraud the 1st appellant o f her property, contrary to section 116(1) o f the Land Act [Cap. 113 R.E. 2019]. When the appeal was called for hearing Mr. Harry Mwakalasya, learned advocate, represented the appellant while Mr. Wilson Ogunde and Mr. Andrew Magai, both learned advocates, appeared for the respondents. Mr. Ogunde began by withdrawing the notice of preliminary objections to which Mr. Mwakalasya had no objection. We thus marked the same withdrawn and proceeded with the hearing of the appeal. As preliminary, Mr. Mwakalasya with our leave amended the 4th ground of appeal to read section 120 the Land Act, Cap 113 R.E. 2023

(the Land Act) instead of section 116(1) of that Act. Embarking on his oral submission, he combined 1s t and 2n d grounds of appeal and challenged the High Court's finding that the appellants did not tender any exhibit to show that they entered into loan agreement and mortgaged the house. In rebutting, he referred us to pages 74 -111 especially page 95 of the record of appeal containing exhibit PI - the valuation report titled Superior Financing Solution. According to him the exhibit is about property in dispute whose valuation was for mortgage purposes in favour of the 2n d appellant. He highlighted page 96 of the record of appeal where the 1s t appellant is mentioned as the legal owner. Mr. Mwakalasya faulted the trial judge's findings and contended that, since there was a valuation report and receipts of payment of the loan, it was wrong for the trial court to demand the mortgage deed as proof. He implored the Court to re evaluate the evidence on record and draw a finding that, the appellants took the loan, and the property was the security. The appellants complained on the 3r d ground of appeal that the respondents admitted the claim in their written statement of defence paragraphs 3, 5,7, 8 and 9. The appellant's counsel contended that page 8 of record of appeal, which is the plaint paragraphs 7-10 have been replied vide paragraph 3 of the written statement of defence where there is an evasive denial of the allegation, Order VIII rule 3 of the Civil

Procedure Code, Cap 33 R.E. 2023 (the CPC) requiring the defendant not to deny allegations generally was cited to drive the point home. They ought to deny each allegation specifically, he insisted. He added that, the allegation that the 2n d appellant had applied for a loan has not been denied categorically as required by Order VIII rule 4 of the CPC. He thus suggested that failure to deny the allegation specifically amounts to admission. He referred us to the testimonies of PW1 and PW2 (the appellants) that they signed the loan agreement and mortgage, but they were not supplied with copies. He was surprised that the witnesses were not cross-examined on this point. He beseeched the Court to re-evaluate the evidence. The complaint on the 4th ground of appeal is that section 120(1) of the Land Act was contravened. The provision provides that, a mortgage shall operate as security and not transfer. Mr. Mwakalasya submitted that the 1s t respondent sold the property which was pledged as security. He reasoned that any subsequent sale was invalid. Besides that, he revealed that the defendant did not enter appearance at the hearing and consequently no sale agreement was tendered in evidence. On the protection of a Bonafide purchaser, Mr. Mwakalasya invited the Court to depart from its previous decisions on this aspect. According to him, the 4th respondent is not a Bonafide purchaser because he was

aware of the flaws. He went on contending that the LVC firm drew the written statement of defence and represented the respondents at the trial court. They were agents of the appellants and the respondents. In the end, he urged the Court to allow the appeal with costs. In his reply, Mr. Ogunde submitted on the 1s t and 2n d grounds of appeal that they support the trial court's decision that it was the duty of the appellant to prove their allegation that there was mortgage between the 1s t appellant guaranteed by mortgaging her house for the loan in favour of the 2n d appellant extended to her by the 1s t respondent. He underscored that the trial court examined the valuation report and the two receipts tendered in evidence, and it was satisfied that they were for repayment of TZS 7 million which was not a proof of mortgage. Mr. Ogunde insisted that, the court rightfully dismissed the case because the appellants failed to prove the case on the balance of probability. He added that the trial court properly analysed the evidence and was satisfied that there was no mortgage deed to prove the mortgage which ought to be registered under section 113 of the Land Act. For that reason, he invited the Court to dismiss the 1s t and 3rd grounds of appeal. Regarding the alleged admissions as depicted on the 3rd ground of appeal, Mr. Ogunde beseeched the Court to dismiss it as in the respondents' written statement of defence, there was no admission of

existence of a loan guaranteed by mortgage of the house of the 1s t appellant. In his view, the respondents said there were sales effected. The first sale was effected on 16/04/2014 between the 1s t appellant and the 1s t respondent. The 2n d sale was done on 03/04/2015 between the 1s t respondent and 4th respondent. He contended that nowhere did the respondents make any admission as correctly held by the trial judge. To contradict the appellants' allegation, Mr. Ogunde argued that if there was any admission the plaintiffs would have applied for judgment on admission. Despite the above argument, Mr. Ogunde conceded that in paragraph 3 of the Written Statement of Defence that the 2n d appellant borrowed money from the 1s t respondent and the receipt was to discharge her obligations to the borrower that is the 1s t respondent. To him what is disputed is that the 1s t appellant did not mortgage her house to secure the 2n d appellant's loan taken from the 1s t respondent. Responding further on the allegation of admission, he referred to paragraph 3 of the written statement of defence to which he submitted that there is no evasive denial. In his view, the defendants said that there was a sale agreement. The learned counsel for the respondent admitted that there were four transactions: One is a loan between 2n d appellant and 1s t respondent; two, a mortgage between 1s t appellant and 1s t 8

respondent guaranteeing the loan taken by the 2n d appellant; third, a sale of the property between the 1s t appellant and 1st respondent and the fourth is the sale of the property between the 1st respondent and the 4tfl respondent. Nevertheless, he submitted that as pleaded in paragraph 3 of the written statement of defence, the loan between the 2n d appellant and the 1s t respondent had nothing to do with the payment receipt from the 2n d appellant. In respect of the complaint that the appellants were not given the copies of the mortgage agreement, it was Mr. Ogunde's contention that the 1s t appellant admitted in her testimony that she signed the mortgage agreement, but she did not read it. Again, it is on record that the 2n d appellant testified that she did not read what the 1s t appellant signed. It was the learned counsel's submission that the trial court was right in dismissing the suit because the appellants failed to prove their claim even though the evidence of the respondents was not given. That is why the trial judge cited the case of Kalyango Construction and Building Contractors Ltd v. China Chongqing International Construction Corp (CICO) [2012] TZCA 19. He thus urged the Court to dismiss the 3r d ground of appeal. Turning to the 4th ground of appeal, Mr. Ogunde referred us to paragraphs 14-19 of the plaint stating why the 4th respondent should not

be termed a Bonafide purchaser on account of the alleged conspiracy/fraud. He invited the Court to consider Order VI rule 4 of the the CPC which requires that in all cases where the plaintiff claims fraud or misrepresentation the particulars should be pleaded in the plaint. To his surprise, the particulars for claimed conspiracy and fraud are not stated in the plaint. Nor are the particulars in the plaint that the lawyers in the VLC firm signed the mortgage, sale and the pleadings. Reading paragraph 16 of the plaint simply says that the respondents conspired, while paragraph 17 asserts that the house was not sold on auction. In Mr. Ogunde's view, these do not constitute particulars of fraud. That done, he concluded that there are no faults in the trial judge's decision. Rejoining, Mr. Mwakalasya had nothing to add other than urging the Court to allow the appeal. In our determination of the appeal, we shall analyse the 1st, and 2n d grounds jointly where the complaint is about evaluation of evidence and the mortgage transactions. These grounds essentially challenge the trial court's failure to appreciate the documentary evidence supporting the appellants' claim that the 1s t appellant mortgaged her property to secure the loan taken by the 2n d appellant. But the question is what documentary evidence? If the basis of the suit was a loan secured by a mortgage, we, like the trial court

at least expected a loan agreement and mortgage deed to be tendered in evidence by the appellants. It is trite law that in civil cases, the burden of proof lies with the party who alleges, as provided under sections 110 and 111 of the Evidence Act [Cap. 6 R.E. 2023] Equally settled is the rule that the plaintiffs here the appellants bore the burden to prove, on a balance of probabilities, that there existed a valid loan agreement supported by a mortgage or guarantee involving the 1st appellant's house. As evident from the record, that link and evidence was unfortunately missing. As the record shows, the appellants tendered a valuation report and two repayment receipts, but they failed to produce the alleged loan or guarantee agreements. Interestingly, the 1s t appellant admitted she signed documents without reading or understanding them, and no copy of the said mortgage or guarantee agreement was tendered in court. This significantly weakened the appellants' case. As emphasized in Attorney General v. Eligi Edward Massawe & 104 Others [2006] TZCA 187, the plaintiff must adduce cogent evidence to establish her/his case. Mere allegations, however, emotionally persuasive, are insufficient. Furthermore, we find the trial court correctly observed that the evidence presented (valuation reports and receipts) did not establish the ii

essential nexus between the disputed house and the loan. Therefore, we uphold the view of the trial court that the appellants failed to discharge their evidential burden. That is fortified by the case of Agatha Mshote v. Edson Emmanuel and Others [2021] T2CA 223 where we held that: " ...The appellant failed to prove her case on the balance o f probabilities and it cannot be safely vouched that she had discharged the burden as required under section 110 o f the Evidence Act. that said, since the burden o fproof never shifts to the adverse party until the party on whom the onus fies discharges that burden ... the weakness o f the respondent's case , if any cannot salvage the plight o f the unproven appellant's casd\ Such being the position of the law, and for the above stated reasons, the 1s t and 2n d grounds of appeal are dismissed for lacking substance. With regards to the 3rd ground alleging admissions in the written statement of defence, the appellants contended that the respondents admitted material facts in paragraphs 3, 5, 7, 8, and 9 of their written statement of defence. We reiterate an established principle of law that pleadings by themselves are not evidence. The same was observed in the case of Kalyango Construction and Building Contractors Ltd (supra) citing the case of Standard Chartered Bank Tanzania Ltd vs Samwel Nyalla Nghuni [2023] TZCA 73. It follows therefore that, since

the respondents did not enter appearance in the trial court, even if they filed a Written Statement of Defence, the same cannot take the place of evidence. We have also revisited the pleadings and found no admission at all. It is common ground that, if there would have been an admission, the appellants would certainly have applied for judgment on admission. That being the case, this ground of appeal is rejected for being misconceived. On the 4th ground of appeal, the appellants decried conspiracy and violation of section 120 of the Land Act. Briefly, that section provides that a mortgagee must follow prescribed procedures before disposing of mortgaged property, including serving notices of default and intention to sell. In this case, the appellants alleged that the 1s t appellant was not served with any such notice and that the sale was illegally organized. To our dismay, and as we have held above that the appellants failed to produce any documentation showing that a mortgage ever existed under the Land Act. It is clear from the evidence on record that no formal mortgage was registered, and thus the procedural safeguards under section 120 of the Land Act were not triggered. On that basis, we are unconvinced if mortgage existed to bring the said law into play. We are firm that the alleged forgery of sale documents and collusion would have required expert evidence or credible documentary proof, 13

which was not furnished. In the absence of proof of fraud or notice of defect in title, the transfer in favour of the 4th respondent is presumed valid. This is consistent with the principle that a Bonafide purchaser for value without notice is protected under the law as held in Ibrahim Twahili Kusundwa and Another v. CRDB Bank PLC Others [2024] TZCA 7. We are of the decided view that this ground is equally devoid of merit. For the foregoing reasons, we find the appeal lacking merit, and we dismiss it with costs. DATED at DAR ES SALAAM this 20th day of August 2025. Judgment delivered this 22n d day of August, 2025 in the presence of Mr. Harry Mwakalasya, learned counsel for the Appellants in the absence of the Respondents, through virtual court is hereby certified as a true S.A. LILA JUSTICE OF APPEAL B.S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL