IN THE COURT OF APPEAL OF TANZANIA

ATTABORA

(CORAM: KOROSSO, 3.A., GALEBA. 3.A.. And MWAMPASHI. J.A.T

CIVIL APPEAL NO. 227 OF 2019
30SEPH F. MBWILIZA .........,..... ...... .................... ......................APPELLANT
VERSUS
KOBWA MOHAMED LYESELO MSUKUMA
(Legal Representative/Administratrix of the
estate of the late Rashid Mohamed Lyeselo) ............. ........... 1st RESPONDENT

RASHID MOHAMED.................. ...........................................2nd RESPONDENT

JUMA MOHAMED............ ........... ,.... ................................... 3RD RESPONDENT

(Appeal from the Judgment and Decree of the High Court Of Tanzania
atTabora)
(Muaeta. J.1
!
dated the 27th day of June, 2019
in
Land Case No. 30 of 2017

JUDGMENT OF THE COURT

2* & I ff1' November, 2022

KOROSSO, 3.A,:

The dispute that gives rise to this appeal is over a residential house

built on a surveyed piece of land iocated on Plot No. 1 Block "A" within

Kasulu District, Kigoma Region (suit property/premises). In the High Court

of Tanzania at Tabora, the appellant, Joseph F. Mbwiliza (then the

plaintiff), in Land Case No. 2017, sued Kobwa Mohamed Lyeselo

Msukuma, in her capacity as the Legal Representative/Administratrix of

the estate of the late Rashid Mohamed Lyeselo, Rashid Mohamed and

Juma Mohamed, the 1st, 2nd and 3rd respondents (then, the 1st, 2nd and 3rd
i
defendants respectively) jointly and severally for a declaratory order that

the appellant was the lawful owner of the suit property. Other claims

included general damages accrued from the respondents' unwillingness to

vacate from the suit property; costs and any other relief the Court may

grant at its discretion. Through the filed joint written statement of defence

(WSD) the respondents vigorously resisted the appellant's claims.

The appellant's case was expounded through his own evidence as

PVV1, and that of two other witnesses Yahya Muhanga (PW2) and Douglas

Mabuga (PW3). He also tendered six exhibits. PWI claimed that he is the

lawful owner and occupier of the suit property having purchased it from

the late Rashid Mohamed Lyeselo (the deceased) on 18/12/1989.

According to PWI, upon agreement between them on the sale of the suit

property, he, and the deceased had drawn a sale agreement which was

concluded within the premises of the Urban Primary Court of Kasulu. PWI

contended that thereafter, he could not take vacant possession of the suit

premises because he had granted a request from the deceased for him

and his family to remain there until the time he can shift to other

premises. Unfortunately, before the handing over of the suit property to

him, the appellant visited Kasulu around 1/4/1990 and found the

deceased critically ill, such that before taking possession of the suit

property, Rashid Mohamed Lyeselo, died. Upon his death, it is alleged that

the first respondent, the deceased's widow requested the appellant to let
the family remain in the house until the deceased's funeral and burial

processes have been finalized. The appellant had no qualms and agreed

to the said request.

According to PW1, on various dates, that is, 12/08/1991,

13/09/1995, and sometimes in 1999, he had requested the respondents to

hand over to him the suit property to no avail, The appellant claimed that

thereafter he had served the respondents with vacation notice which was

to expire on 12/12/1991, but still, the respondents, this time, claiming to

be the owners, refused to vacate the suit property. PW1 contended

further that with the 1st respondent's refusal to freely vacate the suit

property, he suffered the loss of peaceful use and occupation of the suit

premises and in consequence, he and his family have been prevented

from exercising proprietary rights to the same. Additionally, apart from the

physical hardships, PWl stated that the refusal by the respondents to

vacate the suit property has also prompted some economic challenges

caused by unending foliow-ups from Dar es Salaam to Kasulu for an

amicable settlement between the contending parties which unfortunately

ended in vain, notwithstanding the involvement of various authorities of

different levels including the Street Chairperson, Village Executive Officer

(VEG), and the Hon. Magistrate of the Kasulu Urban Primary Court.

In defence, the first respondent, Kobwa Mohamed Lyeslo Msukuma

(DW1) refuted having knowledge of any sale agreement on the suit

3
property between the appellant and her late husband, Rashid Mohamed

Lyeselo. She claimed that her deceased husband had been a Lorry driver,

they had started their lives living with relatives, and later when they got

some money, they purchased the plot of the suit property for Tsh.

10,000/- from Seif Kaduguda. They started construction of a house and

when it was finalized, they moved into the house, the suit property, where

they have lived for all the years. Upon hearing both sides, the trial court

decided in favour of the respondents, holding that the relevant contract

was voidable for the appellant's failure to pay the balance of Tshs.

50,000/= or for want of sufficient consideration.

Aggrieved, the appellant has preferred an appeal to this Court

through a memorandum of appeal containing five grounds paraphrased as

follows:

1. That, as per evidence on record and while admitting that the sale

agreement was executed, the trial Judge erred in law to hold that

the contract was voidable for want o f sufficient consideration.

2. That, the honorable triai Judge erred in law to raise the issue o f

legal representative which was neither an issue during the trial nor

was it disputed by the defendant

3. That, having admitted that the sale agreement was executed, the

trial Judge erred in law not to order a refund to the appellant

 4, That, the trial Judge erred in iaw to apply the principle o f adverse

possession which was at variance with the evidence on record.

5. That, the trial Judge erred in law and in fact in failing to evaluate

the evidence before it on the balance o f probabilities thereby o f

reaching a wrong decision.

On the day the appeal came before us for hearing, the appellant

had the services of Ms. Stella Thomas Nyakyi, learned counsel whereas,

Mr. Kanani Aloyce Chombala, learned counsel entered appearance for all

the respondents.

When provided an opportunity to amplify the appeal, Ms. Nyakyi

commenced her submissions by adopting the appellant's written

submissions filed on 6/9/2019 and the five grounds of appeal. Expounding

on ground one, the learned counsel for the appellant was of the view that

the issue for determination is whether considering the evidence on record

and having admitted the validity of the sale agreement, the trial Judge

was correct in law to hold that the contract was voidable for want of

sufficient consideration.

Ms. Nyakyi contended that in declaring the sale agreement voidable

the trial Judge relied on the fact that the appellant failed to pay the

balance amount of Tshs. 50,000/- for the sale of the suit property as

stipulated by the agreement. She argued that this position was faulty
 because section 39 of the Law of Contract Act [Cap 245 R.E. 2002, now R.

E. 2019] (the LCA) directs the course to be taken in the circumstances

where one of the parties fails to perform his part of the contract. She thus

argued that since there was non-performance of the contract on one part

for non-payment of the balance amount for the purchase of the suit

property, thus, relying on section 39 of the LCA, upon the death of Rashid

Mohamed Lyeselo, the respondents were entitled to do one of the

following acts; first, put an end to the contract or second, to signify, by

words or conduct, to acquiescence its continuance.

Arguing further, the learned counsel for the appellant was of the

understanding that section 39 of LCA provides for the way one may be

taken to have acquiesced: in the continuance of the contract. That it

provides that, a person may signify so, by words or conduct, however, it

does not provide for the way under which a person may put an end to the

contract. The modality of how a party can end a contract is provided

under section 66 of the LCA, she argued, where this may be effected by

notice of revocation from the proposer to the other party, which in the

instant case, it was not done. Ms. Nyakyi thus contended that this being

the case, in terms of section 39 of the LCA, failure to communicate such

notice as it happened on the part of the respondents, signified

acquiescence to the continuance of the contract.

 The learned counsel asserted that consequential to such failure to

communicate such notice, the respondents should have indicated their

intention to comply with the provisions of section 65 of the LCA, which

requires a person who has received any advantage under the respective

agreement or contract, to restore it or to make compensation for it, to the

person who received and, in this case, the appellant. This is because they

had already received Tshs. 100,000/- for the purchase of the suit

property, she argued.

According to Ms. Nyakyi, since the respondents had acquiesced to

the continuance of the contract and upon the finding by the trial court

that the sale was executed, then the trial Judge erred in law to hold that

the contract was voidable for want of sufficient consideration. She argued

that the trial court ought to have respected this and ordered for specific

performance of the respective agreement,

The learned counsel concluded by stating that since there was no

dispute on the terms of the contract and the balance amount to be paid

and the fact that it was not paid on the date specified in the contract. The

fact that non-payment was due to the death of the owner of the suit

property, the other party, should have been considered. She argued that

the trial Judge erred in not appreciating that the appellant had exercised

diplomacy not to evict the respondents from the suit property which they

7
took advantage of, He thus prayed that the Court finds so and grants the

claimed reliefs.

On the contending side, responding to ground one which challenged

the validity of the sale agreement and the consequence of breach if any,

Mr. Chombaia submitted that parties are bound by the terms of a contract

and cited some of the decisions including; Simon Kicheie Chacha v.

Aveline M. Kilawe, Civil Appeal No. 160 of 2018, Yara Tanzania Ltd v.

Unyiha Associates Ltd, Commercial Casse No. 66 of 2020 (HC-

Commercial Division Dar es Salaam) (both unreported), and Philipo

Joseph Lukonde v. Faraji Ally Saidi [2020] T.L.R. 576 to reinforce

his arguments. Furthermore, he contended that the appellant had not

fulfilled his contractual obligations and thus remedies for breach of

contract should take effect. He cited the case of Sfri Napita Mtininko

(the Administratrix of the Estate of the Late Abdallah Hamis

Mbuni) v. Rumanyika Clemence and Mkilango Nkida (HC) Land

Appeal No. 12 of 2018 (unreported) to bolster his position. In the cited

case, one party failed to pay his contribution and the High Court held that

failure to fulfill the terms of an agreement is a breach of the terms of the

contract. He argued that in the instant appeal, there is no dispute that

there was a breach of contract upon the appellant's failure to pay the

balance Tshs. 50,000/= amount within the time specified in the

agreement on 01/4/1990.
8
 Arguing further, Mr. Chombala stated that since the said agreement

had not contained a clause stating that oral agreement between the

parties will be part of the contract, then such become mere oral assertions

and not part of the contract. He cited the decision of this Court in Lulu

Victor Kayombo v. Oceanic Bay Limited and Mchinga Bay Limited,

Consolidated Civil Appeals No. 22 and 155 of 2020 (unreported) to bolster

his contention. He contended that in the cited case, the Court held that

where there is a written contract any subsequent oral agreement is not

part of the contract, especially where there is no variation of the terms of

the written agreement.

He concluded by stating that the High Court's holding that the

respective contract in the instant appeal was voidable is proper as it is in

line with section 55(1) of the LCA which states that where there is a

party's failure to comply with the terms of the contract, it should be

rendered voidable at the option of the innocent party. According to the

learned advocate, the trial Judge, apart from considering the breach of

contract, other factors taken into account included the delay to seek

redress on the part of the appellant and the other reasons fronted were a

failure by the appellant to fulfill the terms of the contract, particularly the

term that required him to pay the balance of Tshs. 50,000/= not later

than 01/4/1990. He thus urged us to find ground one to lack merit.

9
 On our part, in the determination of this appeal, we shall begin with

ground one. Having gone through the memorandum of appeal, the

appellant's written submissions, and heard the parties' oral submissions,

we are of the view that the central issue as determined by the trial Judge

is whether there was a valid sale agreement between the appellant and

the late Rashidi Mohamed Lyeselo (the deceased). This is because the

appellant maintained the existence of the sale agreement in his amended

plaint (paragraph 5) and in his testimony as PW1 and other witnesses he

summoned. Yaya Muhanga (PW2) testified that he witnessed the said sale

agreement between the appellant and the deceased on 18/12/1989.

Douglas Mabuga (PW3) also testified that he witnessed the signing of the

sale agreement. The respondents categorically denied this fact as found in

paragraph 3 of the joint written statement of defence and evidence of

DW1, stating that they were not aware of any such agreement.

The trial Judge upon consideration of the evidence on the issue

made a finding on page 87 of the record of appeal that:

"...the purchase price was Tshs; 150,000./=

where Tshs. 100,000/- was paid on the
agreement date and the balance was to be paid
on 1/4/1990. To date the balance is unpaid and
the plaintiffhas been refused vacantpossession".
 Later on, in his judgment on page 88 of the record, the trial Judge

stated further:

"Even if it is disputed by the first defendant that

she neither witnessed the sale agreement nor
knows anything about safe o f the disputed land,
it is my view that the safe agreement was indeed
executed. The plaintiff has managed to prove
existence o f the sale agreement by tendering it
and producing two more witnesses who
facilitated its procurement The evidence o f the
plaintiff on this issue is more credible than that o f
the defendants which is a mere prevarication. I
see no reason why three men, namely, PW1,
PW2 and PW3 aged 75, 87 and 85 respectively,
should He against the first defendant that she
was present at the primary court when the
agreement was executed”.

Therefore, in essence, the trial court held that there was a sale

agreement as claimed and that up to the day of the hearing, the appellant

had not paid the full amount of the purchase price as per the agreement.

On the evidence before the trial court, we find nothing to move us to

depart from the finding of the trial court which had the benefit of

evaluating the demeanor of the witnesses who testified and there being

no apparent misdirection, non-direction, or misapprehension of evidence.

ii
 The trial Judge rejected assertions by the appellant of having had

an ora! agreement with the deceased and later the respondents to delay

vacant possession of the suit property, which was what caused him to

delay finalizing payment of the balance amount of the purchase price of

the suit property as per the sale agreement. It was the finding of the High

Court that the appellant had paved the way for nonpayment of the

balance amount and failure to take vacant possession of the suit property;

first, by allowing the deceased not to shift from the suit premises when he

was alive, and second, upon his death, to allegedly allow for funeral and

bereavement processes to be completed. According to the trial Judge,

once terms of the contract are reduced into writing, oral evidence as to

the terms of that contract is excluded and unacceptable, a statement we

concur with as being the position of the law.

Certainly, it is a cardinal principle of the iaw of contract that parties

are bound by the terms of the agreements they enter on their own free

will and this has been reiterated in various cases including; Simon

Kichele Chacha (supra), Philipo Joseph Lukoride (supra), Lulu

Victor Kayombo (supra) and Uniliver Tanzania Ltd v. Benedict

Mkasa Trading as BEMA Enterprises, Civil Appeal No. 41 of 2009

(un reported).

Indeed, the doctrine of sanctity of contract must prevail and

deliberate or inordinate breach of the terms of the agreement should not

12
be allowed. Parties must fulfill their obligations to the contract they

willingly entered. The principle of sanctity of contract was discussed in the

case of Abuaiy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288

which held:

" The principle o f sanctity o f contract is

consistently reluctant to admit excuses for non­
performance where there is no incapacity, no
fraud (actual or constructive) or
misrepresentation, and not principle o f public
policy prohibiting enforcement'.

Another general rule that governs contracts pertinent to the instant

case is that once parties to a contract reduce their agreement into writing,

the written agreement prevails in terms of section 101 of the Tanzania

Evidence Act, Cap 6 R.E 2019 (the Evidence Act). This principle was

restated by the Court in the case of Lufu Victor Kayombo (supra)

stating that:

"Documentary evidence reflected repositories

and memorial o f truth as agreed between the
parties and retained the sanctity o f their
understanding'.

Plainly, it is uncontested that the appellant entered into an

agreement with the late Rashid Mohamed Lyeselo on 18/12/1989. The

sale agreement, admitted as exhibit P2, and stipulates the sale price of
 the suit property between the appellant and the deceased to be Tshs.

150,000/-. It states that Tshs. 100,000/= have been paid and the

balance payment is 50,000/= which is to be paid on 1/4/1990. There is no

evidence of the agreement having been altered or amended through

agreement or the consensus of the parties and added any clause

embracing the alleged oral agreements between the appellant and the

respondents or the deceased prior to his demise.

The reasons advanced by the appellant oh having oral discussions

and agreements that led to him deferring to pay the balance amount are,

in law, not acceptable. Section 37(1) of the LCA stipulates the fact that

parties are bound by their promises in a contract, it states:

"37 -(1) The parties to a contract must perform

their respective promises, unless such
performance is dispensed with or excused under
the provisions o f this Act or o f any other law".

Having perused through the record of appeal, like the trial Judge,

we find nothing to conclude as urged by the learned counsel for the

appellant that there was an acquiescence in terms of section 39 of the

LCA on the part of the respondents. Evidently, by failing to pay the

balance amount for the purchase of the suit property on the day

stipulated in the sale agreement, renders failure on the part of the

appellant to fulfill the terms of the contract from the time the deceased

14
was alive. Worth noting, is the fact that any oral agreements between the

parties if they ever existed, could not override the written agreement

where there is nothing to show the terms had been amended by the

parties.

Having found that the appellant did breach the terms of the

contract, the question before us is the remedy available. Section 55(1) of

the LCA provides as follows:

"55. -(1) When a party to a contract promises to

do a certain thing at or before a specified time,
or certain things at or before specified times, and
fails to do any such thing at or before the
specified time, the contract or so much o f it as
has not been performed, becomes voidable at
the option o f the promisee, if the intention o f the
parties was that time should be o f the essence o f
the contract".

In the circumstances, having found that the apep Ilant failed to fulfill

his obligation of paying the balance of the purchase price for the suit

property, and recognizing that the schedule of payment was part of the

terms to be fulfilled in the agreement and therefore of essence to the

contract, we are of the view that by virtue of section 55(1) of the LCA, the

sale agreement dated 18/12/1989 became voidable as held by the learned

trial Judge, We thus find ground one to be unmeritorious.

15
 On ground two of the appeal, the learned counsel for the appellant

averred that the issue arising therefrom is whether the trial Judge was

correct to raise the issue of legal representative which was not an issue

during the trial nor was it disputed by the defendants. Ms. Nyakyi argued

that the trial Judge had raised an issue of the propriety of the legal

representative which was neither one of the framed issues during the trial,

nor was it disputed in the WSD. She thus prayed for the Court to find the

trial Judge's finding improper and prejudicial to the appellant.

On his part, Mr. Chombaia contended that the trial Judge's finding

was correct because, at the time of the trial, there was no appointed legal

representative since the 2nd respondent had been unofficially appointed by

the family and not by a court of law.

Having heard the counsel for the parties on this ground, we are

alive to the challenged observation by the trial Judge that there is no

evidence that the 1st respondent was duly appointed as the administratrix

of the deceased's estate. We find this statement to be inconsequential to

the determination of the claims before the trial court. The said statement

did not in any way affect the determination of the suit and therefore it did

not occasion any injustice. We are of the view, that notwithstanding what

we have stated, in the absence of any record to show that the parties

submitted on the issue, it was improper for the trial Judge to raise it at

the time of the Judgment. Thus, the statement shall be disregarded.

16
 In addressing ground three, Ms. Nyakyi urged the Court to find that,

the issue for determination is whether having admitted that the sale

agreement was executed, the trial Judge was correct in law not to order a

refund to the appellant. It was her contention that under such

circumstances the proper order would have been for the person who had

gained an advantage (the respondents) to restore it or to make

compensation for it to the other person (the appellant) whom they

received from or order refund to the appellant based on the current

market value. She cited the case of Phillipo Joseph Lukonde (supra) to

cement her stance. She urged us to allow the ground and order that the

appellant be refunded based on the current market value of the amount

he had paid as the first Installment of the purchase price of the suit

property.

On his part, the respondents' counsel argued that since there was a

breach of contract, the appellant cannot benefit from his own wrong. He

asserted that it was proper for the trial Judge to consider the

circumstances surrounding the contract performance and breach including

the delay to seek redress and find that the appellant did not deserve any

refund in the circumstances. Mr. Chombala also alluded to the fact that

most of the communication alleged by the appellant to have been served

to the respondents did not reach them since they were not part of the
contract, and they were thus unaware of it. He concluded by praying that

the ground be dismissed.

Suffice it to say, on ground three, the appellant faults the trial

Judge for his failure to order a refund to the appellant for the effected

payment, having found that the sale agreement was executed. There is no

doubt that the appellant had paid an advance payment of Tshs.

100,000/= for the purchase of the suit property, as adduced by PW1, a

party to the sale agreement, PW2 and PW3 who witnessed the

transaction. It is also plain, that, the appellant did not complete the

balance payment. We have already held herein that the contract was

voidable upon the breach by the appellant. What has taxed our minds on

this issue is the fact that despite the fact that it was presented as a

ground of appeal, a refund was not pleaded by the appellant in his plaint.

In his testimony in the trial court, what the appellant prayed for, apart

from what is stated in the plaint, was compensation, and not a refund.

The Court has had the opportunity to deal with prayers that had not been

pleaded. In the case of Merchiades John Mwenda v. GizeUe Mbaga

(Administratrix of the Estate of John Japhet Mbaga, deceased)

and Two Others, Civil Appeal No. 57 of 2018 (unreported) we held:

"It is elementary law which is settled in our

jurisdiction that the Court will grant only a relief
which has been prayed for."

18
 (See also, James Funke Gwagilo v. Attorney General [2004] T.L.R.

161 and Hotel Travertine Limited and Two Others v. National Bank

of Commerce [2006] T.L. R. 133).

Understanding that the appellant had duly paid the first installment

under the terms of the contract, and considering the prayer found in the

plaint that seeks being granted of any other reliefs the Court may deem fit

to grant, we are of the firm view that the obtaining circumstances and the

interest of justice, warrants us to order that the appellant be refunded

Tshs. 100,000/= by the 1st respondent to recover the advance payment

made for the purchase of the suit property.

According to Ms. Nyakyi, ground four of the appeal essentially

addresses whether the trial Judge was correct to apply the principle of

adverse possession while the evidence on record was the variance of the

application of the principle. She argued that with the evidence on record,

any claims relying on adverse possession cannot succeed since the person

asserting the claim is in possession of the suit property having been

permitted by the owner according to the agreement for sale, a fact which

is on record and was not challenged. She thus faulted the trial Judge for

his findings on this, arguing that they were not based on the evidence on

record before him. She thus urged the Court to allow the appeal and grant

the reliefs sought.

19
 The learned counsel for the respondents, on the other hand, was in

support of the finding by the trial Judge stating that there was no

evidence of any permission from the appellant to the respondents. He

contended that all the letters and communications which the appellant had

presented have never been communicated to the respondents since they

were not parties to the contract. That there is no evidence that such

communications were served to them and thus from 1989 to 2017, the

respondents had no information that the appellant purchased the suit

property. He argued that even if, as stated by PW1, PW2, and PW3 that

the l sl respondent had accompanied the deceased as his wife at the

signing session of the contract, there is nowhere where her name appears

in the contract, so she was not a witness. Thus, Mr. Ghombala urged us to

dismiss the ground.

In determining this ground, it is worth noting that the issue of

adverse possession was never framed as an issue for determination of the

trial court, it just cropped up in the judgment and it is a principle that the

trial court relied upon in finding in favour of the respondents. In the case

of Registered Trustees of Holy Spirit Sisters Tanzania vs January

Kamili Shayo and 136 Others, Civil Appeal No. 193 of 2016

(unreported), the Court held:

"Possession and occupation o f land for a

considerable period of time do not, in
20
 themselves, automatically give rise to a claim of
adverse possession."

The Court was inspired by the decision of a case from Kenya in Mbira v.

Gachumi [2002] 1 EA 137 (HCK) when it held:

" The possession had to be adverse in that

occupation had to be inconsistent with and in
denial o f the title o f the true owner o f the
premises; if the occupier's right to occupation
was derived from the owner in the form o f
permission or agreement, it was not adverse."

Clearly, in the instant case, what is stipulated in the above excerpt

does not apply, especially with our finding in the first ground of appeal

that the appellant breached the agreement and thus the contract was

voidable. Thus, this undoubtedly leads to a finding that the trial Judge

erred in invoking the principle of adverse possession to justify the lack of

ownership of the suit property for the appellant. Nevertheless, we find

that having found above that the contract was voidable, such an assertion

by the trial Judge on adverse possession, did not prejudice the appellant

since it did not affect the findings above related to the status of the sale

agreement.

In arguing ground five, the learned counsel for the appellant

submitted that the trial Judge failed to consider that PWl's evidence was

21
that the respondents, particularly, the 1st respondent had requested him

to continue to remain in the suit property until the finalization of the burial

ceremony of her deceased husband. She contended that had the trial

Judge properly evaluated the evidence of PW1, PW2, and PW3 on record

then there will have been no concern about when the balance payment for

the suit property as per the sale agreement was supposed to be paid. The

learned counsel thus prayed for the Court as the first appellate court, to

re-evaluate the evidence and come to its own findings which undoubtedly

will be in favour of the appellant's claims. She concluded by imploring the

Court to allow the appeal.

Mr. Chombala responded by conceding to the fact that the evidence

of witnesses was summarized only, but he urged us being the first

appellate court to reevaluate the evidence afresh and reach our own

conclusion.

The duty of the court to evaluate evidence is well settled. Having

gone through the record, we are in tandem with both rival counsel that

the trial judge only summarized the evidence of witnesses and failed to

analyze it as required. However, it is settled that, the first appellate court,

which is the position in the instant appeal, has a duty to re-evaluate the

evidence and come up with its own conclusion as held in some cases

including the case of Peters v. Sunday Post Ltd. (1958) E.A. 424 and

Domina Kagaruki v. Farida F. Mbarak and 5 Others, Civil Appeal No.

22
60 of 2016 and Saihina Mfaume and 7 Others v. Tanzania

Breweries Co. Ltd., Civil Appeal No. I l l of 2017 (both unreported). The

gist of the cited decisions on the matter is that the appellate court has the

power to reevaluate the evidence. This is also provided under Rule 36(1)

of the Tanzania Court of Appeal Rules, 2019 (the Rules).

Suffice it to say, as we have already analyzed the evidence of PWI,

PW2, and PW3 when determining ground one and thus we shall not dwell

on this point any further. The trial court found them to be credible

witnesses on the issue of having witnessed the signing of the contract and

the presence of the 1st respondent at the time. The evidence of the

appellant and his witnesses was mainly to expound on what transpired at

the time of drafting and signing the sale agreement. The adduced

evidence was unable to bring clarity on whether the respondents were

served with all the documents alleged by the appellant to have been

served to them. We thus remained with doubts on whether the

respondents were aware of the letters said to have been sent to them by

the appellant related to notices for vacant possession of the suit premises

or the contents of the sale agreement as alluded to by PWI, upon the

deceased's demise, who was a party.

We are satisfied that the evidence related to there being an oral

agreement between the appellant and the deceased on one hand and the

1st respondent related to handing over the suit premises, cannot support
the appellant's case because as stated herein, in the absence of a written

amendment to the sale agreement, which was in written form, the oral

statements cannot be part of the contract or take precedence. We are

thus of the view that the available evidence on balance of probabilities

was insufficient to prove the appellant's claims.

In the end, for the foregoing, the appeal is substantially dismissed

to the extent provided herein, except for the order that the appellant be

refunded Tshs. 100,000/= by the 1st respondent. Having considered the

peculiar circumstances of this case, each party to bear its own costs.

DATED at TABORA this 9th day of November, 2022.

W. B. KOROSSO
JUSTICE OF APPEAL

Z. N. GALEBA
JUSTICE OF APPEAL

A. M. MWAMPASHI
JUSTICE OF APPEAL

This Judgment delivered this 10th day of November, 2022 in the

presence of Ms. Stella Thomas Nyakyi, learned counsel for the Appellant

also hold brief for Mr. Kanani Aloyce Chombala, learned counsel for the

Respondents, is hereby certified as a true cosy, (^original.

n? A P p ^ E. G. MkANGU
SENIOR DEPUTY REGISTRAR
COURT OF APPEAL
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