omary athuman mohamed vs rajesh kumar shivji ram aggarwal 2023 tzhc 21698 11 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CIVIL APPEAL NO. 6 OF 2023 (Appeal from the decision of the Resident Magistrates Court of Moshi at Moshi dated 6th April 2023 in Civil Case No. 3 of 2020) OMARY ATHUMAN MOHAMED ……………………..………… APPELLANT VER SUS RAJESH KUMAR SHIVJI RAM AGGARWAL……………………..… RESPONDENT JUDGMENT 8th Sept. & 11th October 2023. A.P.KILIMI, J.: The respondent sued the appellant jointly with other three persons at the Resident Magistrate’s court of Moshi at Moshi in Civil case No. 3 of 2020. Therein the respondent prayed against them payment of specific damages of TZS. 105,000,000/= for the money paid by the respondent as the purchase price of the suit land; General loss and damages as a result of the defendants' breach of contract, mental anguish and fraud; Interest at 20% per year from the date of payment to the date of filing the suit to the date of judgment; Interest at Court's rate from the date of decree to the date of full payment and costs. 1 The appellant at the trial court was the second defendant. The brief facts which gave rise of this appeal discerned from the record of the trial court were to the effect that; It was on February 2014 the appellant and the first defendant at the trial court one, James Salakana who disguised by the name Ebenezer Shilekiromuu Mwasha and the owner of Plot No. 17 Farm 147/1 Block D, Moshi Municipality “suit property” located at Shanty Town, informed that the suit property was offered for sale. The respondent upon being shown the above title deed, he directed one Jitendar Manilal (PW3) to conduct official search which was done and found the said property is encumbrance free, thereafter the respondent and the said first defendant entered into a sale agreement of the suit property registered under Certificate of Title No. 7111 for the consideration of TZS. 145, 000, 000/= which was agreed to be paid in two instalments. The first instalment of TZS. 100,000,000/= was paid by the plaintiff to the first defendant on 1st March 2014 and later on 4th April 2014 TZS. 5, 000, 000/= was paid the 3rd defendant, who also disguised to be the wife of the first defendant. The above transactions were witnessed and attested by a lawyer (the 4th defendant at the trial court) who drafted transfer deed and consent deed by purported spouse above. 2 Believing he is now a landlord at Shanty town, the respondent sent his servants to clean the said Plot, thereon those servants met a woman who introduced to them as Stela Ebenezer Mwasha and restricted them to take possession of the said property claiming that she is the real wife of the owner of the said land and informed them his husband is dead and never sold the said property. It is when the respondent became aware his money has gone. He then decided to report the matter to police station and also to institute this suit against the defendants. The first defendant at the trial did not enter appearance despite of substituted service done, the three remaining defendants briefly both denied to be involved on the above sale transaction or persuaded the respondent to purchase the same. In conclusion of the case, the trial court found the 4th defendant not liable. But for 1st ,2nd and 3rd found them liable and ordered them jointly to make payment to the respondent of TSZ. 105,000,000/= as sale price of the suit property; Payment of general damages at the tune of TZS. 5, 000,000/=; Payment of interest on principal sum at court rate of 7% per month from the date when cause of action arose to the date of 3 judgment; Payment of interest at court's rate of 21% per year of the decretal sum from date of judgment to the date of final payment and Costs of the suit. The appellant who was the 2nd defendant at the trial court, being dissatisfied with the decision or orders thereto has knocked the door of this court by way of appeal basing on the following grounds; 1. That the Trial Magistrate erred in law and fact by trying the suit which as above the pecuniary jurisdiction of the trial Court. 2. That having determined the first issue in affirmative that there was a sales agreement entered between the Respondent and the 1st Defendant only the Trial Magistrate erred in law and fact by shift the burden of performing terms of the said agreement to the appellant. 3. That having admitted several exhibits which indicated that the Respondent admit to have personal knowledge of the sold property after inspected the same and conduct an official search the Trial Magistrate erred in law and fact by holding that the appellant induced Respondent to purchase the landed property. 4. That having admitted exhibit P8 being the cheque issued by Road force Ltd the Trial Magistrate erred in law and fact by ordering refund of the said Tshs. 100,000,000/= to the Respondent. 5. That the Trial Magistrate erred in law and fact by holding that the appellant fraudulent, falsely represented and concealed truth and induced Respondent to enter into sales agreement without proof of any ingredients of fraud committed by Appellant and any takes representation or concealment of truth made by the appellant. 4 6. That having proved that the claimed amount of Tshs. 100,000,000/= was paid to the 1st Defendant and the remained Tshs. 5,000,000/= was paid to the 3rd Defendant the trial Magistrate erred in law and fact by ordering appellant to refund Respondent the claimed amount of Tshs 105,000,000/=. 7. That the Trial Magistrate erred in law and fact in evaluating the evidence presented before him hence ended up issuing an erroneous Judgment. When this matter was placed before me for necessary orders, Mr. Frank Kilian learned advocate appeared representing the appellant while the respondent enjoyed the service of Denis Maro holding brief of Bharat B. Chadha both learned advocates. Both conceded this appeal be argued by way of written submissions and I applaud them for timely filing of the same, the same will be accorded weight in due course when the need arises. Arguing in support of appeal, Mr. Kilian submitted in respect to ground number one that the contract by Respondent falls under the Law of Contract Act which means by nature it was a commercial case. The pecuniary jurisdiction of the District and Resident Magistrate Court in all commercial cases is 70,000,000/= in proceedings where the subject matter is capable of being estimated at money value and TZS. 100,000,000/= in proceedings for the recovery of possession of immovable property. To support this the counsel referred s. 40(3) (a) and (b) of the Magistrate Court's Act [CAP. 11 5 R.E 2019] “MCA” and the case of Dora Sadikiel Meta and Another vs Rosemary Alphonce Assenga, Civil appeal No. 250/2021 (unreported) Mr. Kilian further submitted that; Commercial case is defined under Section 2(iii) of MCA to be any contractual relationship of business. The relief sought by Respondent in item No. (b) of the plaint is for breach of contract valued TZS. 145,000,000/= and item No. (a) is for refund of the specific amount of TZS. 105,000,000/= which is above 100 million. Also, at paragraph 23 of the amended plaint the Respondent declared that the amount claimed for purposes of ascertaining the jurisdiction of the Trial Court is TZS, 105,000,00/= which exceed TZS. 70,000,000/= tried at the District Court on commercial matters. The counsel for appellant moreover argued that, the issue of pecuniary jurisdiction was raised before the Trial Court but the Respondent misled the Trial Court that since his allegations is based on contract entered on misrepresentation and fraud the trial court has jurisdiction. The Trial magistrate misguided herself because there is no saving clause under the Magistrate Act which provides that if the allegation is on contract entered on misrepresentation or fraud the District Court has jurisdiction of trying the 6 matter regardless of the amount claimed. This allegation is unfounded as the issued of fraud, misrepresentation in contract claim exceed seventy million need to be tried by the High Court and not District Court. To buttress these assertions the counsel referred the case of Zanzibar Insurance Corporation Limited vs Rudolf Temba, Commercial appeal no.1 of 2006 (unreported). The counsel for appellant next combined ground of appeal number two, six and seven and submitted that the Trial magistrate was not consistence in her judgment because while holding that the cause of action before him is not for breach of contract at the same page 12, also held that the evidence that were collected proves that there was a sales agreement between the Respondent and the 1st defendant only. Thus, it was not proper to include appellant to refund Respondent the selling price of TZS. 105,000,000/= while appellant was not a party to the said agreement and taking regard the selling price of farm land was not paid to the appellant. Mr. Kilian further contended that, the signed sales agreement (exhibit P2) and the law of contract require only parties to the agreement to perform terms of the contract and each party to the contract to compensate another 7 in case of material breach. Even the contractual agreement signed between the Respondent and the 1st defendant to the amended Plaint (exhibit P-l) has a remedial clause for the affected party. The said remedial clause at paragraph 8 insist that the affected party is at the liberty of preferring a civil suit against each other. Therefore since, the appellant is not neither seller no buyer he is not duty bound to perform or remedial the affected party if any. Arguing in respect to ground number three, Mr Kilian contended that the Respondent at the trial tendered an official Search, this is an admission that the Respondent admit to have made a personal inquiry of the legality of the suit property before entering into the sales agreement, also he tendered the sales agreement (exhibit P2) which contains paragraph 2 where respondent acknowledges to have personally inspected the suit property and becomes knowledgeable about actual status of the suit property, therefore is bound the maxim of caveat emptor, which imposes burden to the buyer to inspect the land property before entering into the sales agreement. He also added the appellant is not liable to the respondent as he was not employed by respondent as his agent in respect of the suit land. 8 In respect to ground number 4, the counsel for appellant argued that, the cheque tendered is a property of Road Force Limited. There is no any proof of relationship between Respondent and the said Company ever tendered in Court. The Respondent never tendered share certificate, Memorandum of the Company or any documentary evidence to prove that he is the director or signatory of Road Force Limited hence he was capable of effecting payment on behalf of the Company. Also, no proof that other shareholders of Road force Limited ever convened a Board meetings and authorized money being withdrawn and paid to the landed property for personal interest of the Respondent, therefore the Respondent being a plaintiff before the Trial Court was duty bound to prove if he has paid the money and he is entitled for refund. In respect to fifth ground, Mr. Kilian contended that, the trial magistrate observed that appellant is the one introduced first defendant, a seller to the respondent, this holding of the trial magistrate is not from the pleadings in court. Paragraph 19 of the amended plaint contains allegations for particular of fraud but the appellant is not mentioned to the said particular of fraud. He further added the trial Magistrate was well aware that there was a criminal case 226 of 2017 pending at the Resident Magistrate 9 Court of Dar es Salaam and the charges was in relation to fraud and obtaining money by false pretends. Therefore, ought to have stay civil proceedings until the issue of fraud and obtaining money by false pretends is resolved for purposes of ascertain if the appellant is responsible or not. Responding to this appeal Mr. Chadha started by contending that this Appeal is incompetent for failure to include names of other parties as they appeared at the trial Court and there is no leave of this Court, to support his contention he invited me to see the case of Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another [2023] TZCA 33 (TANZLII) Responding in respect to jurisdiction of the trial court, Mr. Chadha contended that it had pecuniary jurisdiction and was right in law and in fact to entertain the suit. The same issue was raised at the trial Court and upon submissions by both parties; the learned trial magistrate overruled and held that the case was not commercial. The counsel distinguished the case cited by appellant of Zanzibar Insurance Corporation Limited vs Rudolf Temba (supra) by saying in the same there were supply and business 10 activities of insurance while in the present case there was no any business activities. In respect to the ground no. 2 and 6, Mr. Chadha argued that, the trial Court did not shift the burden to the Appellant to perform the terms of sale agreement. But ordered the Appellant, 2nd and 3rd Defendants jointly and severally to refund TZS 105,000,0001= to the Respondent as a sale price of the suit property due to their engagement on fraud to induce the money be paid by respondent. Therefore, no order as to specific performance was given. The counsel added that the first issue at the trial was proved because the Appellant being accompanied with the 1st Defendant told the plaintiff that the 1st Defendant was selling the property which to their knowledge was a false and untrue deal. Submitting in respect to ground no. 4, the counsel for respondent argued that, the Respondent is the owner and Director of Road Force Limited and the Appellant has failed to disprove this fact, therefore, the Appellant has no locus to challenge the use of neither funds of Road Force Ltd including drawing of Cheque or authorization of the use of company's funds as he is neither a shareholder nor a registrar of companies. 11 In respect to ground no. 5 which the appellant alleged that at the trial the ingredients of fraud were not proved to show that appellant fraudulently, falsely represented and concealed the truth and induced the respondent to enter into sales agreement. Mr. Chadwa contended that, it is clear and concise evaluation of the Respondent's testimony at the Trial Court showed that the Appellant fraudulent, falsely represented and concealed the truth and induced the Respondent to enter into sales agreement, this is because he was a close friend of the Respondent and acted as broker, a fake close friend, core player and mastermind in the whole fraudulent transaction and successfully obtained money from the Respondent. In brief rejoinder, Mr. Kilian reiterated what he submitted but he rejoined to the effect that, there is no document tendered to prove that the appellant ever introduced seller to the Respondent. I have considered the rival submissions above, before I proceed, I am mindful this being the first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary. This was the observation of the Court of Appeal in Future 12 Century Ltd vs TANESCO, Civil Appeal No. 5 of 2009 when it had this to say; "It is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision." In responding this appeal, the counsel for respondent claimed that this Appeal is incompetent for failure to include names of other parties as they appeared at the trial Court and there is no leave of this Court. In my view, as rightly submitted by Mr. Kilian in rejoinder the appellant has dissatisfied with the decree awarded by the trial court, thus no law hinder him to appeal in this Court alone. Also, the case cited of Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (supra) is distinguishable from this case because in that case, the Attorney General was added in the application for extension of time while he was not a party to the original proceedings hence the Court of appeal rejected. But in this case no new party who did not exist at the trial court appear hereinabove, it is just for one defendant who was at trial 13 has decided to appeal which is allowed. Thus, this claim is dismissed for want of merit. Another allegation was raised by the appellant on ground no.1 that, the trial court had no pecuniary jurisdiction to try this matter. Although this issue was raised at the trial court and ruled thereto, the appellant has risen it again in this appeal. In my view is like appealing on interlocutory order. The Court defined the phrase "interlocutory order" in Seif Sharif Hamad v. S.M.Z. [1992] T.L.R. 43 at p. 46 by quoting from Black's Law Dictionary, Revised 4th Edition, to mean "An order which decides not the cause, but settles some intervening matter relating to it.... "See Tanzania Posts Corporation v. Jeremiah Mwandi, [2021] TZCA 311 (TANZLII). Be that as it may, for purpose of clarity I find suitable to reproduce the meaning of commercial case as provided under Section 2 part I of the MCA; "Com m ercial case" means a civil case involving a matter considered to be of commercial significance including but not limited to— (i) the formation of a business or commercial organizations; 14 (ii) the governance of a business or commercial organization; (iii) the contractual relationship of business or commercial organization with other bodies or persons outside it; (iv) the liability of a commercial or business organization or its official arising out of its commercial or business activities; (v) the liabilities of a commercial or business person arising out of that person’s commercial or business activities; (vi) the restructuring or payment of commercial debts by or to business or commercial organization or person; (vii) the winding up or bankruptcy of commercial or business organization or person; (viii) the enforcement of commercial arbitration award; (ix) the enforcement of awards of a region court or tribunal of competent jurisdiction made in accordance with a Treaty Mutual Assistance arrangement to which the United Republic is a signatory a which forms part of the law of the United Republic; (x) admiralty proceedings; and (xi) arbitration proceedings” 15 I have considered the pleading at the trial court, as rightly pointed out by the learned trial Magistrate when ruled on same matter, this a purely contractual case, this is because Respondent herein was the plaintiff at the trial court sued the appellant herein and others who are not part of this appeal for repayment of Tshs. 105,000,000/= being amount paid as consideration of the sale of the suit land. In my view, this claim is civil in nature and based on contract, thus the relevant provision is Section 40(2) and not section 40 (3) of the Magistrates Courts Act (CAP 11 R.E 2019). Also, as rightly submitted by Mr. Chadha the case cited by appellant’s counsel of Zanzibar Insurance Corporation Limited vs Rudolf Temba (supra) is distinguishable with this matter since in the same there were supply and business activities of insurance while in the present case there was no any business activities. Therefore, I am settled the transaction on the suit land between the respondent herein and the 1st defendant at the trial court was a normal sale contract and not commercial transaction that would fall within a commercial case as described under Section 2 stated above. Thus, in view thereof I find this ground devoid of merit and fail forthwith. 16 Next, for convenience purpose I will start dealing concurrently on ground no. 3 which is in respect with official search done by the respondent and ground number 5 which is in respect to allegation that trial magistrate erred to hold appellant due to fraud and concealments truth induced the respondent to enter the contract. Having carefully assessed the evidence on record and considered the submission for and against the claims, before I proceed to the merit of these two grounds, I feel obliged to state the law as to the burden of proof. The burden of proof in civil cases rests on the person who alleges the existence of a certain fact. This cardinal principle is embodied under section 110(1), 111 and 112 of the Evidence Act [Cap 6 R.E. 2019] (See Ernest Sebastian v Sebastian Sebastian Mbele & 2 others, Civil Appeal No. 66 of 2019, CAT (unreported). However, this burden never shift to the adverse party as it was held in the case of the Registered Trustee of Joy in the Harvest vs Hamza R. Sungura, Civil Appeal No. 149 of 2017 CAT (unreported). Nonetheless, in propounding the above, in the case of Paulina Samson Ndawavya vs. 17 Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 The court observed that:- "It is again trite that the burden of proof never shift to the adverse party until the party on whom the burden lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party case.” Moreover, the standard of prove changes depending on the nature of each case, in this case at hand the appellant is alleged fraudulently caused the respondent to enter fake agreement. Therefore, since fraud imputes criminal offence proof of it is above mere preponderance of probabilities. See: Omary Yusufu vs. Rahma Ahmed Abdulkadr [1987] TLR 169; Ratilal Gordhanbhai Patel vs. Layi Makany [1957] EA 314 and International Commercial Bank Limited vs. Jadecam Estate Limited [2021] TZCA 673. According to Blacks Law Dictionary 8th Edition, fraud is defined as an intentional perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to 18 surrender a legal right. The Halsburys Laws of England considers fraud as a representation deemed to be false if it was, at the material date, false in substance and in fact. To start with the transaction made, according to the testimony of respondent at the trial, there is no dispute that he entered sale agreement with the first defendant at the trial, the same was reduced in writing and was attested by a lawyer (the 4th defendant at the trial). The said sale agreement was admitted at the trial as exhibit P2. The law of evidence is clear on the proof by documentary evidence, i.e. Section 100(1) of the Law of Evidence Act, Cap 6, RE 2022 provides; "When the terms of a contract, grant, or any other disposition of property, have been reduced to the form o f a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.” 19 The excerpt above, entails that where evidence is reduced into writing, no other evidence shall be given to prove the terms of such matter except the document itself. (See also Tanzania Fish Processors Ltd vs Christopher Luhanyula Civil Appeal No. 21 of 2010. Therefore, having observed above, the first issue raised at the trial court Whether there was a sale agreement between the Plaintiff and the Defendants, was answered that there was a sale agreement between the Plaintiff (herein respondent) and first defendant at the trial. This is in according to the deed they signed proved above. Mr. Chadwa in his submission acknowledged that, the Appellant and others were not part to the agreement between the Respondent and the 1st Defendant. But said they engineered the signing of the agreement and the payment Tshs. 105,000,000/= Thus, the Respondent suffered damages as a result of fraud and misrepresentation by them. This leads me now to deliberate on the three ground. In this ground, I have asked myself whether the respondent decided to enter the agreement of purchased alleged land due to inducement from the appellant or is when he was acquainted that the land is really exists, 20 owned by seller and is encumbrance free. According to the evidence at the trial, despite the seller of alleged land went to the respondent with the appellant, still the respondent was not simple to belief to enter into transaction. What he did as a last resort was to make official search, and the evidence shows it is the last official search which caused the respondent to enter the said agreement with first defendant at the trial. The said official search was tendered as evidence and admitted as exhibit P1. Therefore, it is my considered opinion that the respondent was enough diligence and did not depend to the appellant to enable him to execute the said sale agreement. I may say the respondent executed the maxim buyer beware, and actually did to the Authority concern. Mr. Chadwa in his submission contended that, despite of his due diligence to make official search, there are exceptions to the maxim of buyer beware, and that is the seller must not misrepresent the product or provide the buyer with false information about the product. Therefore, defendants induced and fraudulent misrepresented the respondent to enter into the said agreement for purchase of the said landed property, therefore the maxim cannot apply, and referred to me the case of Crescent Impex (T) Limited vs Mtibwa Sugar Estates Limited [2023] TZCA 17501 (TANZLII). 21 I concede with the contention of Mr.Chadwa but merely to the parties who are privy to the agreement, therefore ,in my view the facts of the cited case are distinguishable from this case at hand, the above exception is only applicable for the seller or a part to the sell agreement misrepresent or provide false information to the buyer. In this matter the appellant was not a seller of the said suit property. That is why as said above, it was the duty of the respondent to prove fraud against him to the required standard stated above. Be it as it may, the allegation of fraud above to the appellant cannot go undecided, this cause me to look on the second issue raised at the trial court, which is Whether the said agreement was fraudulently engineered by all Defendants jointly. Also, this is the gist of the fifth ground in this appeal. For purpose of this appeal, thus, the issue is whether the appellant fraudulently engineered the respondent to enter the said agreement. Mr. Chadwa in his submission insisted that the Appellant fraudulent falsely represented and concealed the truth and induced the Respondent to enter into sales agreement, this is because he was a close friend of the 22 Respondent and acted as broker, a fake close friend, core player and mastermind in the whole fraudulent transaction and successfully obtained money from the Respondent. Having considered the evidence tendered at the trial court by respondent. With respect it is my view the above submission by Mr. Chadha are submissions from the bar, the above stated praise ought to have proved specifically at the trial court to mandate the counsel stating so, I think he is misconceived to infer facts by looking outside the box. It is trite law that, submissions are not evidence, they are thereby reflecting the general exposition of the party's case. In the case of Registered Trustees of the Archdiocese of Dar es Salaam versus The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006 (unreported) "Submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence." 23 I am saying above because, in law it is clear on how the pleadings should be when a party relies on fraud in Civil matter. Order VI Rule 4 of the Civil Procedure Code (Cap 33 R.E. 2019) provides: " In all cases in which the party pleadings rely on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all others cases in which particulars may be necessary to substantiate any allegation, such particulars (With dates and items of necessary) shall be stated in the pleading". This position of the law was also stated in the case of Musoke vs Mayanja [1995-1998] 2 EA 205 where it was observed that; "It is well established that where the party relies on fraud, that the fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of the pleadings" In view of the excerpt above, it is my considered opinion, any allegation of fraud in Civil cases, the particulars of fraud, being a very serious allegation must be specifically pleaded and the burden of proof thereof, that 24 is why the standard of proof may not be so heavy as to require proof beyond reasonable doubt, but it is heavier than a balance of probabilities as generally applied in Civil Cases. (See City Coffee Ltd vs The Registered Trustee of Ilolo Coffee Group [2019] TZCA 386 (TANZLII) and Omary Yusuph vs Rahma Ahmed Abdulkadr [1987] TLR 169). According to the amended plaint filed at the trial court the respondent put particulars of fraud at para 19 and for ease of reference I reproduce hereunder; “ P AR TI CULAR S OF FR AUD i. That the 1st and 2nd defendants made a representation about their interest in the suit land which they knew or ought to have known to be untrue. ii. The 4th defendant made negligent misstatement that she knew the 1st and 3rd defendant personally a lawful owner of the suit land which she knew or ought to have known to be untrue. iii. The 1st defendant used the fake voter registration card with Registration 46725718 purported to be issued by National electoral commission (NEC) on 25.03.2010 showing that the 1st defendant was born on 25 26.4.1958 at Hai District Kilimanjaro Region as EBENEZER SHILEKIROMUU MWASHA and the 3rd Defendant used the voter Registration card with No 52923583 purported to be issued by the National Electoral Commission on the 27 March 2010 and he adopted the name of Joyce S. Mwasha, While they knew that the said names are not true. Photocopies of the said voters Registration cards are annexed herto and collectively marked as Annex P9. iv. In further fraud, the 1st Defendant on 25th April 2014 swore the affidavit before the 4th defendant that he is the one and same person, who signed Deed of transfer Annex P5 and the Certificate of Title No. 711 Annex P3. Photocopy of the said affidavit iis annexed hereto and marked as Annex P10. I have scanned the above particulars, no complaint and no particulars of alleged fraud in respect to the appellant (the second defendant at the trial). Therefore, it is my settled view the law above was not abided to, and I am not ready to believe that the standard of proof of alleged fraud against appellant was met if was not pleaded above. This is because as said above the Court should not raise or entertain anything not forming part of the 26 parties’ pleadings. As doing so will be offending the settled rule against departure from the pleadings set out under Order VI rule 7 of the Civil Procedure Code [CAP 33 R.E. 2019]. Further, Court’s finding must be based on what was pleaded by the parties, so that to substantiate the settled principle that, parties as well as the court are bound by what is pleaded in the pleadings in order to avert consideration of extraneous matters. (See Simba Papers Converters Limited vs Packaging & Stationery Manufacturers Limited & Another [2023] TZCA 254 (TANZLII). Thus, for the foregoing above, it is my considered opinion and settled, that the respondent in this appeal indeed failed to prove that the appellant fraudulent, falsely represented and induced him to enter into the said sales agreement of the suit property Plot No. 17 Farm 147/1 Block D, Moshi Municipality to the standard stated above of proving Fraud. In the premises, I find the above third and fifth grounds of appeal to have merit thus sustained. Furthermore, having considered the remaining grounds of appeal, I find that the determination of the first, third and fifth above are sufficient to dispose of this appeal and thus I find no need to consider and determine the remaining grounds of appeal. Consequently, this 27 appeal is allowed and I hereby order the appellant Omary Athman Mohamed not liable to pay anything to the respondent Rajesh Kumar Shivji Ram Aggarwal. In the circumstances I grant no order as to costs. It is so ordered. DATED at MOSHI this day of 11th October, 2023. X JUDGE Signed by: A. P. KILIMI Court: - Judgment delivered today on 11 October, 2023 in the presence of the Appellant, while Mr. Frank Kilian and Mr. Bharat B. Chadha absent. Sgd: A. P. KILIMI JUDGE 11/10/2023 Court: - Right of appeal explained. Sgd: A. P. KILIMI JUDGE 11/10/2023 28