civil decision 2024 OMARY IBRAHIM MUMBA VS PELES MKUMBO NSUNZA

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA LAND APPEAL NO. 000014077 OF 2024 OMARY IBRAHIM MUMBA .............................. COMPLAINANT / APPELLANT / APPLICANT /

PLAINTIFF

VERSUS PELES MKUMBO NSUNZA .............................. RESPONDENT / DEFENDANT

JUDGMENT A. MATUMA, J, In the District Land and Housing Tribunal for Mwanza, the appellant herein sued the Respondents for ownership of a landed property on Plot no. 138 Block “E” located at Mkolani area within Mwanza City. His claim was that he purchased the suit house way back in 2014 from the 1st Respondent Peles Mkumbo Nsunza for Tshs. 89,000,000/= which he paid by instalments. That after he had finished the payments of such purchase price in 2018, they made a written contract to authenticate such sale. That immediate as he entered into the purchase transactions, he started the process to have the area surveyed through the so called “Upimaji shirikishi” under which he was formerly allocated and recognised as the owner thereof in 2015 and later in 2019 he was issued with a Certificate of Occupancy. He further complained that later the 2nd and 3rd Respondents unlawfully sold that house to the 4th Respondent on allegations that the 1st Respondent had Mortgaged such property for the loan he was advanced by the 2nd Respondent but failed to repay it. He thus asked the trial tribunal to declare him as the rightful owner of such property and some other reliefs. On their part the 2nd and 3rd Respondents in their respective defence they stated that the 1st Respondent mortgaged the suit property when it was not yet surveyed in 2017 and obtained a loan of Tshs. 25,000,000/=

but defaulted to repay such loan. In that respect they sold the property to the 4th Respondent the late Consolata Mashauri at Tshs. 18,000,000/=. They thus asked the trial tribunal to dismiss the claim and declare the 4th Respondent a lawful owner of the said property. The 4th Respondent through the administrator of her estate Alexander Mashauri Magukura on his part testified that the property in question was bought by the late Consolata Mashauri on 01/06/2019 and issued with a Certificate of Sale. That they developed the said house at the costs of Tshs. 90,000,000/= and are currently residing in that house. The 1st Respondent on his part filed the Written Statement of Defence but later deserted the suit which was ordered to proceed ex-parte against him. In his Written Statement of Defence, he did not dispute to have entered Page. 1 into the sale agreement of the property with the Appellant but averred that the appellant had made some defaults in their agreements. He did not either dispute to have obtained the loan and mortgaged his house. After full trial, the trial tribunal adjudged that the suit property mortgaged by the 1st Respondent for the loan he obtained from the 2nd Respondent was uncertain because the mortgage deed bears no clear description of the property and thus the current property cannot be said to have been mortgaged. On the other hand, the trial

tribunal ruled out that the appellant is the lawful owner of the suit property because he lawfully purchased it from its owner and he is currently in possession of the title deed to the said property. Despite of such findings the tribunal declared the 4th Respondent as new owner of such property being a bonafide purchaser and ordered the 2nd Respondent to refund the appellant his purchase price and some damages. Such decision aggrieved the appellant, the 2nd respondent and the 3rd Respondent hence this appeal by the Appellant and Cross objection by the 2nd and 3rd respondents. The appellant preferred three grounds of appeal are to the effect that; 1. The trial chairman having ruled out that the suit property was not mortgaged for lack of proper description of the mortgaged house wrongly declared the 4th Respondent as a new owner by virtue of being a bonafide purchaser.

2. The trial chairman erred to raise and determine the issue of bonafide purchaser which was not pleaded nor the parties were accorded opportunity to be heard on it.

3. The trial chairman erred to rule out that the 4th Respondent developed the suit property contrary to the pleadings and evidence on record. The 2nd and 3rd Respondents in their cross objection raised a total of six grounds to the effect that; 1. The trial chairman erred to rule out that the appellant purchased the suit property in 2014 while there was no evidence to that effect.

2. The trial chairman erred to rule out that the appellant is the lawful owner of the suit property and that the said property was not mortgaged in favour of the 2nd Respondent.

3. The trial chairman failed to find out that the Certificate of Occupancy in respect of the property to the appellant was invalid and fraudulently obtained.

4. The trial chairman erred for not finding that by the time the appellant bought the suit property if any, the said property was already mortgaged hence the appellant could have not a valid ownership.

5. The trial chairman erred to order the 2nd Respondent to refund the appellant Tshs. 89,000,000/= as a purchase price and Tshs. 100,000,000/= as general damages. At the hearing of this appeal the appellant was represented by Mr. Kassim Gilla learned advocate, the 1st Respondent chose not to attend when he told the court process server that he is not interested in the matter because he is already bankrupt and currently he is travelling to Msumbiji to struggle for his life, the conversations of which were authenticated by the affidavit of the process server and attached print out of phone messages between the process server and the 1st Respondent. The 2nd and 3rd Respondents were represented by Mr. Davis Page. 2 Muzahula and Mr. Yuda Kwaslema learned advoactes while the 4th Respondent was present in person and was as well represented by Mr. Bernad Msalaba and Agnetha Aniceth Kamala learned advocates. I ordered the matter to proceed ex-parte against the 1st Respondent who decided not to attend. Submitting for this appeal Mr. Kassim Gilla learned advocate argued in respect of the 1st and 2nd grounds that it is apparent on record that one of the issues drawn for determination by the trial tribunal was who between the appellant and 4th respondent was the lawful owner of the suit property which was decided in favour of the appellant. The learned advocate argued that even the second

issue which was relating to whether the suit property was mortgaged, the trial tribunal held that the suit property was not mortgaged and was not part of the collaterals. He further submitted that despite of all these findings, the trial chairman declared the 4th Respondent as a bonafide purchaser which was a new issue not pleaded by the parties nor they were accorded opportunity to be heard on it. The learned advocate cited the case of Maria Amandus Kavishe versus Norah Waziri Mzeru (Administratrix of the estate of the late Silvanus Mzeru) & Another, Civil Appeal No. 365 of 2019 in which the court of appeal at Dar es salaam held that parties are bound by their own pleadings and even the court is bound by the pleadings of the parties and the court shall not grant remedy not pleaded for and will not determine issues not pleaded. The learned advocate finalised the two grounds by arguing that the trial chairman having determined that the appellant was the lawful owner of the suit property ought to have ended there. On the third ground of appeal, the learned advocate submitted that the trial chairman erred to rule out that the 4th Respondent effected developments to the suit property. He argued that neither the 4th respondent nor the 2nd and 3rd respondents pleaded such developments of the suit property in their respective Written Statements of defences but such allegations of

developments came through evidence of the 4th Respondent without any supporting proof. Responding against the 1st and 2nd grounds of appeal, Mr. Davis Muzahula learned advocate argued that despite the trial court to have ruled that the suit property was not mortgaged and the appellant is the lawful owner of the suit property, such findings was wrongly made. That the appellant’s evidence as to when exactly he purchased the suit property contradicted his pleadings. He submitted that the appellant’s sale agreement is dated 17th January, 2018 while in his pleadings he alleged to have bought such house in 2014. He further argued that even if the sale agreement is believed then it was entered when the suit property was already a collateral to the loan in question. He argued that even the alleged purchase price of Tshs. 89,000,000/= was not proved. The learned advocate suspected that that there might be a dubious transaction between the appellant and the 1st respondent and that is why the 1st Respondent does not want to show up in Court. About the issue of Bonafide purchaser the learned advocate argued that the same was properly raised and determined because the pleadings of the parties had raised contentions relating to ownership of the property by way of sale and purchase. On the ground of developments to the suit property by the 4th Respondent, the learned advocate submitted that

the trial chairman was not wrong in his decision. That the evidence on record shows that at the time she purchased the Page. 3 said plot it had unfinished house. But the same has been developed and people are living there. On the part of the 4th Respondent, advocate Bernard Msalaba reiterated what Mr. Davis Muzahula submitted in relation to the issue of Bonafide purchaser. He only added that the law requires the Bonafide purchaser to be protected. To that effect he cited the case of Ladislaus Rogert Mushi versus Diamond Trust Bank Limited & others, Land case No. 58 of 2022 (HC). In respect of the 1st and 2nd grounds, he argued that the suit property was mortgaged and therefore the trial chairman erred to rule out that the suit property was not mortgaged while the descriptions of the suit property was highly dealt at the trial and finally concluded that the house allegedly bought by the appellant from the 1st Respondent is the same house which was mortgaged to the loan at issue. About developments to the suit property, the learned advocate submitted that the appellant himself declared in evidence that the suit property is now developed and people are living in. In his rejoinder submission Mr. Kassim Gilla mainly reiterated his submission in chief. The parties having exhausted the grounds of appeal, I invited them to address on the grounds of cross objection. It was Mr. Davis who

started to address the grounds. He argued in respect of the first ground that the trial chairman erred to conclude that the appellant bought the suit property in 2014 while there was no proof of such purchase. On this ground the learned advocate mainly repeated what he submitted when responding against the appellant’s grounds stating that there was no evidence that the appellant bought the suit area in 2014 and the alleged purchase price of Tshs. 89,000,000/= was not proved. On the second ground, the learned advocate also repeated that the trial chairman erred to rule out that the appellant is the lawful owner because of the certificate of occupancy and that the said property was never mortgaged while it is on record that the Certificate of tittle was issued in respect of the very plot which was mortgaged. On the third ground the learned advocate argued that the trial chairman erred for failure to detect that the certificate of Occupancy was issued under fraud circumstances because there was no evidence of the alleged purchase price of Tshs. 89,000,000/= and the the appellant’s evidence as to when he bought the property contradicted his own documentary evidence. On the 4th ground the learned advocate submitted that the trial chairman erred for failure to find that the certificate of tittle by the appellant was invalid because even if there was a sale then such sale was done

when the property was already mortgaged by the 1st respondent to the 2nd respondent because his contract for the purchase of the property is dated 2018 while mortgage deed over that particular property was created on the 20th March, 2017. On ground five, the learned advocate argued that the trial chairman erred to order the 2nd Respondent to refund the appellant Tshs. 89,000,000/= the amount which was not proved and doubtful and in any case it ought to have been ordered against the 1st Respondent so that he does not benefit from his own wrongs. Page. 4 On the last ground the learned advocate submitted that the trial chairman erred to order the 2nd Respondent to pay Tshs. 100,000,000/= as general damages to the appellant because such amount was not substantiated and the 2nd Respondent was no how guilty to be condemned as such. Responding against the cross objection, Mr. Kassim Gilla learned advocate in respect of general damages and the refund of the purchase price, he argued that the trial chairman properly awarded the general damages to the appellant and stated the reasons for such award. About the purchase price of Tshs. 89,000,000/= the learned advocate submitted that even the appellant is not interested with such award. His interest is the suit property. He disputed that there is no evidence to prove such amount or that the deposit receipts do not tally to such

figure arguing that the appellant gave explanation on the alleged differences. The learned advocate also disputed ground No. 4 to the cross objection arguing that the suit property was sold to the appellant even prior to the alleged mortgage. He referred this court to exhibit P1 and P3 which shows that the purchase was in 2014 and survey was made in 2015 the year which the appellant was formerly allocated such property by the relevant land authorities. He further responded to ground three stating that the allegations of fraud are new matters which were not pleaded nor there was evidenced to prove it contrary to the law which requires the allegations of fraud to be properly pleaded and its particulars to be stated for the opponent party to prepare his defence. To that effect the learned advocate cited the case of Amina Maulid Ambali & others versus Ramadhan Juma, civil Appeal No. 35 of 2019. He went on that the 2nd Respondent was not due diligence to accept the collateral which was not certain. In respect of the 2nd ground, Mr. Kassim Gilla argued that the trial chairman properly declared the appellant as a lawful owner of the suit property because the evidence on record is clear that the appellant is the registered owner of the suit property and thus recognised under section 2 of Cap 334 R.E 2019. He winded up by arguing that the evidence on record proved the case in favour of

the appellant to the required standard. Mr. Bernard Msalaba learned advocate on his part supported the cross objection and subscribed the arguments made by advocates of the 2nd and 3rd Respondents. In his rejoinder Mr. Davis reiterated his submission in chief and added that proving the case on the balance of probabilities is not tantamount to no evidence at all. That there must be tangible evidence proving the case. In respect of the argument that the appellant was allocated the suit land in 2015 as exhibited by exhibit P3 the learned advocate argued that ownership of land cannot be proved or established by a mere letter. From such complaints in both the main appeal and the cross appeal or cross objection and the submissions made by the parties as herein above I find that this appeal and the cross objection can be conclusively determined by re- evaluating the evidence on record to find out whether in the eyes of the law the tittle of the house in question passed to the appellant or to the 4th Respondent. By answering this issue all the grounds raised by both aggrieved parties shall be taken on board and the resultant of the said issue will guide this court to the propriety of the remedies granted for and against the parties by the trial tribunal. Page. 5 First and foremost, it is apparent that the 1st Respondent is the key party to this case because the cause of action for both

parties trace its origin from him. It is from him the appellant alleged that he obtained the title in the suit land and it is from him the second and third respondents alleged that the suit land was mortgaged and thus properly sold to the fourth respondent after the 1st respondent’s failure to repay the loan. Despite of such fact, the 1st Respondent went at large during trial and even on this appeal. In that respect the appellant is not better positioned to dispute the transactions the 1st respondent made with the second respondent because he was not party thereto. Likewise, the 2nd, 3rd and 4th respondents cannot dispute the transactions made between the 1st respondent and the appellant because they were not party to such business. More so when the 1st respondent was properly served and filed the defence but disappeared from the trial leaving the evidence by the other parties against him go without being cross-examined by him. In the circumstances, the evidence of the appellant that the 1st respondent sold him the suit property cannot be challenged by any person other than him or his recognised agent. It is actually in the Written Statement of Defence by the 1st Respondent at paragraph 2, 3 and 4 that he admitted to have sold such house to the appellant as claimed at paragraphs 9(a)(i),(ii),(iii),(iv) and (v). In the same manner the evidence of the second respondent that the

1st respondent borrowed money from him, mortgaged his house and defaulted repayment cannot be challenged by any person other than him or his recognised agent. The only issue would therefore be; which house the 1st respondent sold to the appellant and which one he mortgaged to the second respondent. When such house is determined, we will have to determine further when did he sale such house to the appellant and when did he mortgaged it to the second respondent. That will automatically carry us to who acquired the interest in the property and better title before the other between the appellant and the second respondent. I will be guided by section 100 of the Evidence Act, Cap. 6 R.E 2019 which provides that when any disposition of the property is reduced in writing in the form of a document, proof of the contents of such documents shall be by the document itself and not otherwise. In the instant matter the appellant brought several documents to establish that the suit property was sold to him by the 1st respondent and later allocated to him by the land authority. The second respondent on the other hand brought some documents to establish that the suit property was mortgaged by the 1st respondent to her. Let us now revisit these documents. The appellant’s documents are deposit receipts exhibit P1 in which at first in 2014 he deposited Tshs. 30,000,000/= to the 1st respondent’s

bank account. He later deposited some other instalments in 2016. In his oral evidence he explained that all these were payments for the purchase of the house in question. In fact, one of these receipts disclosed such purpose. These receipts were pleaded under paragraph 9(a)(iii) of the Application form by the Appellant during trial in which the appellant pleaded that he paid the purchase price of the house in question by instalments through the 1st Respondent’s Bank account. To substantiate such averments, he attached the deposit Page. 6 receipts which were later received in evidence as exhibit P1. The 1st Respondent under paragraph 4 of his defence did not dispute such averment. From these documents and the pleadings of both the Appellant and the 1st Respondent, I have no doubt that the 1st respondent transacted with the appellant for the sale of his house at Mkolani. The respondents are not better positioned to dispute this evidence nor could examine it in the absence of the 1st respondent himself to deny it and produce another evidence to the contrary. Such evidence is corroborated by exhibit P3 which is a letter from the land allocating authority dated 4th July, 2019 which expressly states that the land in dispute was surveyed in 2015 and the suit land allocated to the appellant on 27/03/2015 through “upimaji shirikishi or urasimishaji makazi”. That was the letter of City Director department of Urban Planning to Assistant Commissioner for Land forwarding the Certificates of Occupancy for signature. It reads; “YAH: L.O NO. 654119 KIWANJA NA. 138 KITALU ‘E’ MKOLANI WILAYA YA NYAMAGANA JIJI LA

MWANZA Kichwa cha Habari hapo juu chahusika. Kiwanja hiki kilipimwa kwa utaratibu wa uboreshaji wa makazi (urasimishaji makazi holela) ambapo uliwahusisha wamiliki wa maeneo husika kwa kuchangia gharama za upimaji kulingana na makazi yalivyo kwa kukubaliana wahusika wote wa maeneo hayo ukihusisha ngazi ya mtaa na kata. Mchoro wa mipango miji wa maeneo haya ulibuniwa kwa kufuata makazi/maeneo ya asili yalivyo kwa makubaliano yao wenyewe yakihusisha viongozi wa mtaa na kata na ramani yake ilipata kibali cha Mkurugenzi wa upimaji na Ramani na kusajiliwa kwa Na. 104352. Katika kikao cha kamati ya ugawaji viwanja cha tarehe 27/03/2015, kiwanja hiki kiligawiwa kwa ndugu OMARY IBRAHIMU MUMBA na Ofisi ilimmilikisha kiwanja hiki kwa miliki ya muda mrefu miaka 99 na kutayarishiwa ushuhuda wa malipo wenye kumbukumbu Na. MCC/L/100179/4/AGM. Ninakutumia nakala mbili za hati ili uziwekee Saini, nakala ya tatu ni kwa ajili ya kumbukumbu za ofisi yako, nakala ya ushuhuda wa malipo, nakala ya uthibitisho wa uraia, na nakala ya Land Form No. 19 ya maombi zimeambatanishwa kwa hatua zako muhimu”. From the contents of such letter I find that all neighbours and local leaders to the locality were involved when such land was being allocated to the appellant against the interest of any other person be it within the vicinity or from outside such locality. In that respect the interests of any person to

the property including the 1st respondent were extinguished since then in favour of the appellant. To date no any person appeared to challenge such allocation claiming interest in the property. The allocation is thus valid as from 2015 to date because it has not been challenged by any person or revoked by the appropriate authority. Page. 7 The appellant also tendered the sale agreement exhibit P2 dated 17th January, 2018 and it is from this exhibit the learned advocates for the 2nd, 3rd and 4th respondents argued that in any case if the 1st respondent sold the suit property to the appellant it was in such year 2018 while the mortgage was executed in 2017 and thus the second respondent acquired interest in the property prior to the appellant. On my part, I find that the said contract is without any legal impact because it was entered when the property in question had already been allocated to the appellant. Such contract was not the source of the land authority to allocate the said plot to the appellant. In that respect the land allocating committee allocated the suit property to the appellant not on the ground of such sale. It might be that since the 1st respondent started the business with the appellant in 2014 when the survey was not yet carried on, he lost interest in the property and when the survey was initiated the 1st respondent left the appellant to stand in the

property as the owner thereof so that the survey is made in his own name. That being the case any payment made by the appellant to the 1st respondent be it before or after such allocation in 2015 had no any legal impact. It was a private arrangement for the already deal done. That being the case I don’t find any contradictions in these documents because payments of the money by the appellant to the 1st respondent was independent of the allocation made by the land allocating authority of the property to the appellant. Unfortunately, the land allocating authority was not sued by the appellant along with the respondents nor the respondents summoned such authority by way of third-party notice or as a witness to explain under what grounds the allocation was made. Such allocation cannot therefore be easily argued without affording the opportunity of the right to be heard to such authority. Nevertheless, such contract of 2018 was explained by the appellant at paragraph 9(a)(iv) of the application form to the effect that such contract was made between the parties after payment of the final instalment just for the purposes of being used to process the Certificate of title. Such averment was accepted by the 1st Respondent on his WSD at paragraph 4. In that respect the said contract was not to mean that the sale agreement was made in 2018 but it was to mean of acknowledging the sale made

way back in 2014. That being the position I rule out that the evidence relating to purchase and payments of the money by the appellant to the 1st respondent was not even important to prove his ownership in the property because he was already allocated such land way back in 2015 and the certificate of occupancy issued later in 2019. Since the survey and the allocation way back in 215 was not a secret deal as reflected in the quoted letter supra, the presumption is that the 1st respondent who had prior interest was aware of such allocation and did not object. The inference of his silence signifies that what the appellant said was the only truth. They had a sale business in the property and that is why he stood aside leaving the appellant to be allocated the property without any objection to date. In that respect the trial chairman properly determined that the appellant is the lawful owner of the suit plot. Thus, it was wrong for him to subsequently declare the 4th respondent a new owner under the doctrine of bonafide purchaser. That doctrine was improperly invoked against the appellant. It could have been properly invoked against the 1st respondent had it been ruled out that he was still the owner of such property and had mortgaged such house which was later sold due to his own mischiefs. At such moment it is when the doctrine of bonafide purchase can be invoked to forgive

mistakes made in the auction. Page. 8 The doctrine of Bonafide purchaser cannot be invoked against a third party whose house is wrongly sold without any cause of action against him. In the instant matter the appellant is a third party to the transactions between the respondents and thus his interests or title to property cannot be defeated by reasons of transactions he was not a party. Back to the documents by the second respondent, I have no doubt as I have said that she contracted with the 1st respondent for the stated loan and the stated mortgage. In the absence of the 1st respondent such contract cannot be impeached by a third party. Now, which house did the 1st respondent mortgaged to the second respondent. According to the mortgage deed exhibit SU1 the mortgaged house is located at “Mkolani-Mummys ya ndani Haijulikani”. The said mortgage deed states further that the ownership of the said property to the 1st respondent was confirmed by Chiwa Makage at the north, Agricola Rite at the south, Germin Lutha at the west, and Paul Mahina at the east. But none of these people counter signed against their names to authenticate that they really affirmed that the 1st Respondent was the owner of the suit property at that particular time nor were summoned to give evidence to establish whether they really confirmed such ownership or they boarded the 1st respondent. Failure by the 2nd

Respondent to call these important witnesses or even one of them calls for an adverse inference against her that had she called them they would have given evidence against her favour and in favour of the appellant. Mr. Davis tried to argue that local leaders signed to authenticate that the 1st respondent owned that property but I am far to agree with him. The signatures of local leaders and their respective stamps does not in themselves speak as to what service was rendered therein. The 2nd and 3rd respondents did not even call them to testify as to what is signified by their respective signatures in the mortgage deed. They were not as well called to state whether the house at “Mummys ya ndani haijulikani” was the current house in dispute. It is thus the respondents themselves trying to read words into the loan agreement and the mortgage deed purporting to establish that the mortgaged house was the one at issue. Such argument contradicts their own exhibit Certificate of Sale exhibit SUA3 as rightly argued by Mr. Kassim Gilla in which the house sold is located at Nyanghinghi Mkolani which is currently in dispute. The respondents did not offer any explanation on record as to why the mortgaged house was located at Mummys ya ndani haijulikani but the sale was done against the house located at Nyanghinghi Mkolani. In that respect I agree with both Mr. Kassim Gilla for the appellant

and the trial chairman that the house mortgaged by the 1st respondent to 2nd respondent is uncertain and as such the current house in dispute was not the one mortgaged. Since it was not the one mortgaged, the 2nd respondent had no legal authority to instruct the third respondent to sale such property to the fourth respondent. But even if it could have been the fact that the house mortgaged by the 1st respondent to the second respondent is the very one in dispute, the finding would be that the 1st respondent conned the second respondent by mortgaging the house not owned by him because at that time it was already allocated to the appellant. Page. 9 If he had any interest in the said property, he ought to have first challenged the allocation to repossess it before mortgaging the same. And it is him alone who could challenge ownership of the property to the appellant and not the respondents. I don’t agree with Mr. Davis learned advocate that the house in question at the time of mortgage was on unsurveyed land because the land authority through exhibit P3 supra made it clear that the suit land was surveyed in 2015. The averments by the respondents that such area was unsurveyed by 2017 remains as bare words extinguished by the documentary evidence exhibit P3 from the relevant authority to the effect that such area was surveyed since 2015. In that respect had the second respondent

exercised due diligence before accepting the property as collateral to the loan, she could have discovered that such area was surveyed and the appellant was a registered owner of the property at issue. About development of the suit property by the 4th respondent, I find that such issue is irrelevant in the circumstances of this case. This is because no body pleaded such development and claimed compensation for it. Therefore, any development to the property cannot be used as a ground of giving ownership of the property to the developer or an order for compensation. What follows therefore is Quicquid Plantatur Solo Solo Cedit in the meaning that whatever is affixed to the soil belongs to it. In the circumstances the owner of the property may opt to utilize the development if any, and if such development is not suitable for his use he is at liberty to seek a redress through proper legal channels. With the herein observations, I declare that it is the appellant who is the lawful owner of plot no. 138 Block “E” at Mkolani. The said plot was not the one mortgaged by the 1st respondent to the second respondent and even if it was the one mortgaged then it was mortgaged by the person not owning it. As such the second respondent had no legal right to sale such property to the 4th respondent. The 4th respondent therefore did not acquire the requisite title in the property. I order vacant

possession against him in favour of the appellant. That being the case the order of the trial chairman against the 2nd respondent to refund the appellant Ths. 89,000,000/= is unwarranted and accordingly quashed. The ground of cross objection in respect of this award is thus allowed. About the award of Tshs. 100,000,000/= to the appellant against the 2nd respondent, I agree with Mr. Davis that this amount was unwarranted because the appellant pleaded general damages as an alternative prayer in case the 1st Respondent is ordered to refund him the purchase price in lieu of the house in question. Since I have declared that the suit property belongs to the appellant, general damages which was pleaded as an alternative cannot stand. It is accordingly quashed. Likewise, 12% interest of the purchase price and 12% interest of the decretal sum from the date of judgment to the date of full payment which were as well pleaded as an alternative are hereby quashed. The appellant is only entitled along with the suit plot, the costs of this case both at the trial tribunal and in this court. To that extent, the appeal and cross objection are partly allowed and partly denied to the extent herein above explained. Right of further appeal explained. It is so ordered. Page. 10 Dated at MWANZA ZONE this 17th of September 2024. A. . MATUMA, J

JUDGE OF THE HIGH COURT Page. 11