Court name
Court of Appeal of Tanzania

Omari Yusufu vs Rahma Ahmed Abdulkadr () [1987] TZCA 19 (18 December 1987);

Law report citations
1987 TLR 169 (TZCA)
Media neutral citation
[1987] TZCA 19

Mapigano and Mfalila, Ag. JJ.A. and Omar, J.A.: The dispute between the parties in this case is over a plot of land described as No. 75 Block L, Mhoro Street, Dar es Salaam, now held on a Right of Occupancy.  On 23/4/87 the High Court at Dar es B Salaam (Bahati, J.) pronounced on the matter and held and decreed that the plot was the property of the plaintiff Rahma Ahmed Abdulkadri.  The defendant Omari Yusufu has come to this Court on appeal.
To get an objective idea of this case one must recapitulate the past and I will, therefore, C start by stating the events of the last ten years in outline.  In 1977 probate proceedings, Misc. Case No. 1 of 977, were instituted in the Primary Court at Kariakoo by one Mwajuma Yusufu against Omari Yusufu the present appellant.  On one hand Mwajuma Yusufu was claiming that the plot in question was part of the estate of her D deceased father one Yusufu Selemani, and on the other Omari Yusufu was claiming that the property had been transferred to him by the deceased during the deceased's lifetime.  The Primary court found for Omari Yusufu, but Mwajuma Yusufu was dissatisfied and she appealed against the decision to the District Court of Ilala.  The appeal, Civil Appeal E No. 17 of 1977, was dismissed on 4/4/81 and Mwajuma took a second appeal to the High Court at Dar es Salaam.  The appeal, (PC) Civil Appeal No. 20 of 1981, succeeded and the judgement of Kimicha, J. who heard the appeal is dated 13/9/81.
Next, and that was about three years later, Omari Yusufu brought an appeal to this F Court from the decision of Kimicha, J.  It was Civil Appeal No. 27 of 1984.  In the meantime, in February, 1982 to be exact Mwajuma and her sister Fatuma had, at the instance of the High Court, procured a right of occupancy over the plot from the Land Office.  Not only that.  The two sisters had thereafter, on 22/9/82, sold the right of G occupancy to one Rukia Mzee Alli who had in turn sold the same to Rahma the present respondent on 15/10/82.  There is no question but that both the transfers had been approved by the Land Office on 8/10/82 and 28/10/82, respectively, and that they took place before Omari Yusufu lodged a caveat in the Land Office in respect of the H property.  The validity or otherwise of these dispositions is the centre-piece of the instant case.
Omari's appeal was allowed by this Court on 55/6/85.  The decision of Kimicha, J. was set aside as a nullity and the record was sent back to the High Court for it to hear I Mwajuma's appeal afresh.  But Mwajuma never pursued the appeal in the High Court.  Probably

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA
she thought that it was not worth her while in view of the dispositions that had taken A place.
The present case started on 13/11/85 and it is essentially a sequel or offshoot of the above litigation.  After the delivery of the judgement of this Court in Civil Appeal No. 27 of 1984 Omari Yusufu apparently took certain legal steps to enforce the judgement of B the District Court.  At his instance the court bailiff went to the house and stood on the plot and tried to evict the people who occupied it.  He encountered stout resistance and the incident prompted Rahma to file a suit in the High Court.  The principal relief claimed C in her plaint was a declaration that she was the sole holder of the Right of Occupancy over the plot.  Omari contested the action, contending that there was a taint of fraud in the dispositions of the Right of Occupancy to Rukia Mzee Alli and to Rahma, and making reference to the other litigation.
Four issues were formulated and recorded by Bahati, J. viz: D
   (1)   Whether the two transfers of the property to Rukia and to Rahma are good in law.
   (2)   What is the effect of the judgement of the Court of Appeal in Civil Case No. 27 of 1984 nullifying the High Court judgement in (PC) Civil Appeal No. 20 E of 1981.
   (3)   Which of the parties is the legal owner of the suit premises.
   (4)   To what reliefs are the parties entitled.
Evidence was adduced by the appellant with a view to establishing that a notice of F appeal to this Court had been lodged by the appellant Omari and was lying in the High Court at the time of Rukia's purchase of the property from the two sisters Mwajuma and Fatuma.  The probity of Mr Ismail, the advocate who drafted the deed by which Rukia G transferred the unexpired portion of the term of the right of occupancy to the respondent Rahma, was called into question.  Considerable efforts were made to show that Mr Ismail was fully aware at that point in time that the property was still being litigated upon, and that he purposely prejudiced the interests of the appellant Omari who H happened to be his former client.  An attempt was also made to show that Rukia, the first purchaser, and the respondent, the second purchaser, were close relations.
All those allegations were strenuously denied by the witnesses for the respondent, and the substance of the respondent's case was that both Rukia and the respondent were I bona fide purchasers for

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA
value.  Mr Ismail was called as a witness and he related as to how and why and to what A extent he was retained by the parties.  His account ran as follows:
Omari Yusuf once engaged his services, that was after Kimicha, J. had allowed Mwajuma's appeal in (PC) Civil Appeal No. 20 off 1981.  Omari instructed him to B lodge an appeal against that decision on his behalf.  He had to start by drawing an application for leave to appeal.  He let one Mwajasho who was a pupil-advocate in his chambers to prepare the application and the requisite affidavit.  On 7/5/82 he "blindly" swore to the statements set out in the affidavit and then had the application as well as a C notice of appeal presented to the High Court.  He did not know the other party Mwajuma Yusufu.  He did not pursue the application on account of a certain difference between him and Omari Yusufu.  On or about 15/10/82 he drew the transfer deed.  According to him he did not know then that there was any dispute over the property in D question.  As pointed out above, subsequent to the delivery of the judgment of this Court in Civil Appeal No. 27 of 1984 Omari Yusufu tried to take possession of the property.  The relatives of Rahma sought his assistance to resist Omari's action.  He agreed and went to the plot and argued with the court bailiff and the police.  Omari was E absent but he (Mr. Ismaili) recognized, upon perusal of the court warrant, that Omari whose name appeared in that warrant had once been his client.  He nevertheless continued to carry out the instruction of his new client.  He stated, in reply to a question, that he did not deem it improper to do so. F
As pointed out at the very start, the learned trial judge gave judgement in favour of the respondent.  The judge dealt with all the four issues that had been framed.  His answer to the first issue was in the affirmative.  He found that by 22/9/82 when Mwajuma and Fatuma transferred the property to the first purchaser Rukia Mzee Alli there was neither G an appeal from the decision of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981 dated 13/9/81 nor a notice of appeal in that respect.  He held that in those circumstances the successful party in the High Court was free to dispose of the property as Mwajuma H did.  The judge was not satisfied that there was any fraud in any of the two transfers.
On the effect of the judgment of this Court in Civil Appeal No. 27 of 1984 which nullified the judgement of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981 Bahati,J. observed the obvious, to wit, that the judgment was given after the property had actually I been sold to third parties and changed hands twice.  He stated that

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA
since these dispositions were not tainted by fraud the judgment of this could not affect A the interests of those third parties and that the only recourse the appellant could well-advisedly have is to claim damages from the two sisters Mwajuma and Fatuma.  In the event the judge proceeded to answer the third issue in the affirmative and to grant the B respondent the reliefs she was praying for.
This appeal rests on four grounds but some of the grounds can conveniently and properly be dealt with together.  We have had the same representations as those in the High Court:  Mr Rutashobya for the appellant Omari and Mr El-Maamry for the respondent Rahma.  And in substance the arguments put forward before this court are C the same as those urged before the learned trial judge.
The first point taken is that the judge erred in holding that by the time the property was transferred to Rukia Mzee Alli no notice of appeal had been presented by the appellant D in respect of the decision of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981.  There is merit in this ground and I understood Mr. El-Maamry to concede the point.  The fact of the matter is that a notice was lodged in the High Court at Dar es Salaam by Mr Ismail in May, 1982, and it appears at page 22 of the record of this appeal.  That was E when Mr. Ismail was advocating for the appellant.  The transfer of the property to Rukia, as already shown, took place on 22/9/82.  All the same, for reasons that I am going to state presently the lodging of the notice mattered for little.
The second point taken is that the judge "misdirected himself when interpreting the legal F effect of the decision of this Court in Civil Appeal No. 27 of 1984 and the application of section 43 of the Evidence Act. 1967".  Mr Rutashobya has argued that the decision of this Court in effect revived the judgment of the District Court and that since Mwajuma did not prosecute her appeal in the High Court after the nullification of the decision of G Kimicha, J. the position at law was that the appellant became the holder of the Right of Occupancy by reasons of his success in the District Court.  I can see the force of this submission but in my view it all depends on whether Rukia was an innocent purchaser.  If she was, then in my view this case comes almost four square within the principle stated H in Mulla Code of Civil Procedure 12th edition at page 268, which was approved by this Court in Mboweto v Kulala and Another [1981] TLR 335, a decision that was cited to us by Mr. El-Maamry, namely that a bone fide purchaser who is a stranger to the decree does not lose his title to the property by the subsequent reversal or I modification of the decree; in such a case the judgment - debtor

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA
whose property is sold is entitled only to the sale - proceeds of the property.  The judge A did not say anything about the provisions of section 43 of the Evidence Act, 1967 which relate to the relevancy, conclusiveness and effect of certain final judgments including judgments in probate jurisdiction.  It was not necessary for him to do so.  In my view there was no room for the application of that section in this case in-as-much as the B paramount issue was whether Rukia was an innocent purchaser.  I would thus dismiss this ground.
This brings me to the other ground of appeal, namely that the judge erred in holding that the transfer of the property was good in law.  This entails a consideration of the evidence C in regard to the charge of fraud which is the central question in this appeal.
We have been asked to note that Rukia sold the property shortly after she had purchased it and we have been asked to draw the interference that she was throughout aware that the property was still the subject-matter of litigation.  On my part I regret I D cannot do so.  I see no tangible evidence to justify such a finding.  Indeed, Mr. Rutashobya has conceded before this Court as he did in the High Court that Rukia "might have been a victim of an intentional deceit perpetrated by Mwajuma and Fatuma".
We have also been asked to find that Rukia and Rahma were close relatives.  Again I E regret I cannot see any cogent evidence that can lead me to reach that finding.  In any event I cannot see how such a relationship would help the appellant's case, once it is conceded that Rukia was an innocent purchaser.
Mr. Rutashobya has contended that Rukia was obliged to carry out thorough F investigations into the vendor's title and suggested that Rukia should have approached the local Party leaders in that regard.  The short answer is that since a registration system obtains in Dar es Salaam the extent of investigation of title by a purchaser is limited.  There is no need to undertake a historical investigation into the origins of the vendor's G title beyond the inspection of the register at the Land Office, because the purchaser is justified at law in the assumption that what the register contains is true and is all that there is about the property.  As the learned authors Meggary and Wade observe in their text-book "The Law of Real Property", that is one of the attraction of registration of H title.
The conduct of Mr Ismail was again the subject of heated arguments.  Mr. Rutashobya has lashed at Mr. Ismail, describing him as "a party to the clandestine transfer of the property".  Mr Rutashobya has invited this Court to endorse that description.  Once I again I cannot.  As we have already seen, Mr. Ismail took the witness-

box in the High Court and explained his involvement in this matter.  It was a plausible A account and the learned judge was entitled to accept it as he implicitly did.  Even if it were true that Mr Ismail's conduct was flawed I do not see how a judge would proceed to impute Mr. Ismail's breach to Rahma. B
As shown, the appellant came to court seeking to impunge the transfers of the property alleging criminal conduct i.e. fraud on the parts of the vendors, the purchasers and Mr. Ismail.  I think it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a C higher degree of probability than that which is required in ordinary civil cases, the logic and rationality of that rule being that the stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard of proof, though as Rupert Cross cautions and illustrates in his text-book on Evidence at page 124 the application of that D rule is not always commodious.  In my assessment and as demonstrated above, the evidence that was led against the purchasers and Mr. Ismail fell short of the required standard.  I would accordingly dismiss the third ground.
The last ground is that the learned judge erred when he held that the property belongs to E the respondent.  For the reasons I have stated with regard to the other grounds I would dismiss this ground as well.
In the final event I would dismiss this appeal with costs to the respondent.  As the other Members of the Court agree it is so ordered.
F Appeal dismissed.

G