OMARI YUSUFU v RAHMA AHMED ABDULKADR 1987 TLR 169 (CA)

 

OMARI YUSUFU v RAHMA AHMED ABDULKADR 1987 TLR 169 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Omar JA, Mfalila Ag JJA and Mapigano Ag JJA

18 December 1987 E

Flynote

Land Law - Disposition - Of Right of Occupancy - Allegation disposition is tainted with fraud -

Rights of bonafide purchaser for value.

Evidence - Disposition of Right of Occupancy - Allegation disposition is tainted with fraud -

Standard of proof. F

-Headnote

The dispute between the parties is over a plot of land described as no. 75 block L, Mhoro Street,

Dar es Salaam held on a Right of Occupancy. On 23/4/87 the High Court held and decreed that

the plot was the property of the plaintiff (respondent) G Rahma. The defendant (appellant)

Omari being yet dissatisfied appealed to the Court of Appeal.

Held: (i) A bonafide purchaser who is a stranger to the decree does not lose his title to H the

property by the subsequent reversal or modification of the decree;

(ii) when the question whether someone has committed a crime is raised in civil

proceedings that allegation need be established on a higher degree of probability than that

which is required in ordinary civil cases. I

1987 TLR p170

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA

Case Information

Appeal dismissed. A

[zJDz]Judgment

Mapigano and Mfalila, Ag. JJ.A. and Omar, J.A.: The dispute between the parties in this case is

over a plot of land described as No. 75 Block L, Mhoro Street, Dar es Salaam, now held on a

Right of Occupancy. On 23/4/87 the High Court at Dar es B Salaam (Bahati, J.) pronounced on

the matter and held and decreed that the plot was the property of the plaintiff Rahma Ahmed

Abdulkadri. The defendant Omari Yusufu has come to this Court on appeal.

To get an objective idea of this case one must recapitulate the past and I will, therefore, C start

by stating the events of the last ten years in outline. In 1977 probate proceedings, Misc. Case

No. 1 of 977, were instituted in the Primary Court at Kariakoo by one Mwajuma Yusufu against

Omari Yusufu the present appellant. On one hand Mwajuma Yusufu was claiming that the plot

in question was part of the estate of her D deceased father one Yusufu Selemani, and on the

other Omari Yusufu was claiming that the property had been transferred to him by the deceased

during the deceased's lifetime. The Primary court found for Omari Yusufu, but Mwajuma

Yusufu was dissatisfied and she appealed against the decision to the District Court of Ilala. The

appeal, Civil Appeal E No. 17 of 1977, was dismissed on 4/4/81 and Mwajuma took a second

appeal to the High Court at Dar es Salaam. The appeal, (PC) Civil Appeal No. 20 of 1981,

succeeded and the judgement of Kimicha, J. who heard the appeal is dated 13/9/81.

Next, and that was about three years later, Omari Yusufu brought an appeal to this F Court

from the decision of Kimicha, J. It was Civil Appeal No. 27 of 1984. In the meantime, in

February, 1982 to be exact Mwajuma and her sister Fatuma had, at the instance of the High

Court, procured a right of occupancy over the plot from the Land Office. Not only that. The

two sisters had thereafter, on 22/9/82, sold the right of G occupancy to one Rukia Mzee Alli

who had in turn sold the same to Rahma the present respondent on 15/10/82. There is no

question but that both the transfers had been approved by the Land Office on 8/10/82 and

28/10/82, respectively, and that they took place before Omari Yusufu lodged a caveat in the Land

Office in respect of the H property. The validity or otherwise of these dispositions is the

centre-piece of the instant case.

Omari's appeal was allowed by this Court on 55/6/85. The decision of Kimicha, J. was set aside

as a nullity and the record was sent back to the High Court for it to hear I Mwajuma's appeal

afresh. But Mwajuma never pursued the appeal in the High Court. Probably

1987 TLR p171

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA

she thought that it was not worth her while in view of the dispositions that had taken A place.

The present case started on 13/11/85 and it is essentially a sequel or offshoot of the above

litigation. After the delivery of the judgement of this Court in Civil Appeal No. 27 of 1984

Omari Yusufu apparently took certain legal steps to enforce the judgement of B the District

Court. At his instance the court bailiff went to the house and stood on the plot and tried to evict

the people who occupied it. He encountered stout resistance and the incident prompted Rahma

to file a suit in the High Court. The principal relief claimed C in her plaint was a declaration

that she was the sole holder of the Right of Occupancy over the plot. Omari contested the

action, contending that there was a taint of fraud in the dispositions of the Right of Occupancy

to Rukia Mzee Alli and to Rahma, and making reference to the other litigation.

Four issues were formulated and recorded by Bahati, J. viz: D

(1) Whether the two transfers of the property to Rukia and to Rahma are good in law.

(2) What is the effect of the judgement of the Court of Appeal in Civil Case No. 27 of

1984 nullifying the High Court judgement in (PC) Civil Appeal No. 20 E of 1981.

(3) Which of the parties is the legal owner of the suit premises.

(4) To what reliefs are the parties entitled.

Evidence was adduced by the appellant with a view to establishing that a notice of F appeal to

this Court had been lodged by the appellant Omari and was lying in the High Court at the time

of Rukia's purchase of the property from the two sisters Mwajuma and Fatuma. The probity of

Mr Ismail, the advocate who drafted the deed by which Rukia G transferred the unexpired

portion of the term of the right of occupancy to the respondent Rahma, was called into question.

Considerable efforts were made to show that Mr Ismail was fully aware at that point in time that

the property was still being litigated upon, and that he purposely prejudiced the interests of the

appellant Omari who H happened to be his former client. An attempt was also made to show

that Rukia, the first purchaser, and the respondent, the second purchaser, were close relations.

All those allegations were strenuously denied by the witnesses for the respondent, and the

substance of the respondent's case was that both Rukia and the respondent were I bona fide

purchasers for

1987 TLR p172

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA

value. Mr Ismail was called as a witness and he related as to how and why and to what A

extent he was retained by the parties. His account ran as follows:

Omari Yusuf once engaged his services, that was after Kimicha, J. had allowed Mwajuma's

appeal in (PC) Civil Appeal No. 20 off 1981. Omari instructed him to B lodge an appeal against

that decision on his behalf. He had to start by drawing an application for leave to appeal. He let

one Mwajasho who was a pupil-advocate in his chambers to prepare the application and the

requisite affidavit. On 7/5/82 he "blindly" swore to the statements set out in the affidavit and

then had the application as well as a C notice of appeal presented to the High Court. He did

not know the other party Mwajuma Yusufu. He did not pursue the application on account of a

certain difference between him and Omari Yusufu. On or about 15/10/82 he drew the transfer

deed. According to him he did not know then that there was any dispute over the property in

D question. As pointed out above, subsequent to the delivery of the judgment of this Court in

Civil Appeal No. 27 of 1984 Omari Yusufu tried to take possession of the property. The relatives

of Rahma sought his assistance to resist Omari's action. He agreed and went to the plot and

argued with the court bailiff and the police. Omari was E absent but he (Mr. Ismaili)

recognized, upon perusal of the court warrant, that Omari whose name appeared in that warrant

had once been his client. He nevertheless continued to carry out the instruction of his new

client. He stated, in reply to a question, that he did not deem it improper to do so. F

As pointed out at the very start, the learned trial judge gave judgement in favour of the

respondent. The judge dealt with all the four issues that had been framed. His answer to the

first issue was in the affirmative. He found that by 22/9/82 when Mwajuma and Fatuma

transferred the property to the first purchaser Rukia Mzee Alli there was neither G an appeal

from the decision of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981 dated 13/9/81 nor a notice of

appeal in that respect. He held that in those circumstances the successful party in the High

Court was free to dispose of the property as Mwajuma H did. The judge was not satisfied that

there was any fraud in any of the two transfers.

On the effect of the judgment of this Court in Civil Appeal No. 27 of 1984 which nullified the

judgement of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981 Bahati,J. observed the obvious, to

wit, that the judgment was given after the property had actually I been sold to third parties and

changed hands twice. He stated that

1987 TLR p173

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA

since these dispositions were not tainted by fraud the judgment of this could not affect A the

interests of those third parties and that the only recourse the appellant could well-advisedly

have is to claim damages from the two sisters Mwajuma and Fatuma. In the event the judge

proceeded to answer the third issue in the affirmative and to grant the B respondent the reliefs

she was praying for.

This appeal rests on four grounds but some of the grounds can conveniently and properly be

dealt with together. We have had the same representations as those in the High Court: Mr

Rutashobya for the appellant Omari and Mr El-Maamry for the respondent Rahma. And in

substance the arguments put forward before this court are C the same as those urged before the

learned trial judge.

The first point taken is that the judge erred in holding that by the time the property was

transferred to Rukia Mzee Alli no notice of appeal had been presented by the appellant D in

respect of the decision of Kimicha, J. in (PC) Civil Appeal No. 20 of 1981. There is merit in this

ground and I understood Mr. El-Maamry to concede the point. The fact of the matter is that a

notice was lodged in the High Court at Dar es Salaam by Mr Ismail in May, 1982, and it appears

at page 22 of the record of this appeal. That was E when Mr. Ismail was advocating for the

appellant. The transfer of the property to Rukia, as already shown, took place on 22/9/82. All

the same, for reasons that I am going to state presently the lodging of the notice mattered for

little.

The second point taken is that the judge "misdirected himself when interpreting the legal F

effect of the decision of this Court in Civil Appeal No. 27 of 1984 and the application of section

43 of the Evidence Act. 1967". Mr Rutashobya has argued that the decision of this Court in

effect revived the judgment of the District Court and that since Mwajuma did not prosecute her

appeal in the High Court after the nullification of the decision of G Kimicha, J. the position at

law was that the appellant became the holder of the Right of Occupancy by reasons of his

success in the District Court. I can see the force of this submission but in my view it all depends

on whether Rukia was an innocent purchaser. If she was, then in my view this case comes

almost four square within the principle stated H in Mulla Code of Civil Procedure 12th edition

at page 268, which was approved by this Court in Mboweto v Kulala and Another [1981] TLR

335, a decision that was cited to us by Mr. El-Maamry, namely that a bone fide purchaser who is

a stranger to the decree does not lose his title to the property by the subsequent reversal or I

modification of the decree; in such a case the judgment - debtor

1987 TLR p174

MAPIGANO Ag JA, MFALILA Ag JA AND OMAR JA

whose property is sold is entitled only to the sale - proceeds of the property. The judge A did

not say anything about the provisions of section 43 of the Evidence Act, 1967 which relate to the

relevancy, conclusiveness and effect of certain final judgments including judgments in probate

jurisdiction. It was not necessary for him to do so. In my view there was no room for the

application of that section in this case in-as-much as the B paramount issue was whether Rukia

was an innocent purchaser. I would thus dismiss this ground.

This brings me to the other ground of appeal, namely that the judge erred in holding that the

transfer of the property was good in law. This entails a consideration of the evidence C in

regard to the charge of fraud which is the central question in this appeal.

We have been asked to note that Rukia sold the property shortly after she had purchased it and

we have been asked to draw the interference that she was throughout aware that the property

was still the subject-matter of litigation. On my part I regret I D cannot do so. I see no

tangible evidence to justify such a finding. Indeed, Mr. Rutashobya has conceded before this

Court as he did in the High Court that Rukia "might have been a victim of an intentional deceit

perpetrated by Mwajuma and Fatuma".

We have also been asked to find that Rukia and Rahma were close relatives. Again I E regret I

cannot see any cogent evidence that can lead me to reach that finding. In any event I cannot see

how such a relationship would help the appellant's case, once it is conceded that Rukia was an

innocent purchaser.

Mr. Rutashobya has contended that Rukia was obliged to carry out thorough F investigations

into the vendor's title and suggested that Rukia should have approached the local Party leaders

in that regard. The short answer is that since a registration system obtains in Dar es Salaam the

extent of investigation of title by a purchaser is limited. There is no need to undertake a

historical investigation into the origins of the vendor's G title beyond the inspection of the

register at the Land Office, because the purchaser is justified at law in the assumption that what

the register contains is true and is all that there is about the property. As the learned authors

Meggary and Wade observe in their text-book "The Law of Real Property", that is one of the

attraction of registration of H title.

The conduct of Mr Ismail was again the subject of heated arguments. Mr. Rutashobya has lashed

at Mr. Ismail, describing him as "a party to the clandestine transfer of the property". Mr

Rutashobya has invited this Court to endorse that description. Once I again I cannot. As we

have already seen, Mr. Ismail took the witness-

1987 TLR p175

box in the High Court and explained his involvement in this matter. It was a plausible A

account and the learned judge was entitled to accept it as he implicitly did. Even if it were true

that Mr Ismail's conduct was flawed I do not see how a judge would proceed to impute Mr.

Ismail's breach to Rahma. B

As shown, the appellant came to court seeking to impunge the transfers of the property alleging

criminal conduct i.e. fraud on the parts of the vendors, the purchasers and Mr. Ismail. I think it

is now established that when the question whether someone has committed a crime is raised in

civil proceedings that allegation need be established on a C higher degree of probability than

that which is required in ordinary civil cases, the logic and rationality of that rule being that the

stigma that attaches to an affirmative finding of fraud justifies the imposition of a strict standard

of proof, though as Rupert Cross cautions and illustrates in his text-book on Evidence at page

124 the application of that D rule is not always commodious. In my assessment and as

demonstrated above, the evidence that was led against the purchasers and Mr. Ismail fell short of

the required standard. I would accordingly dismiss the third ground.

The last ground is that the learned judge erred when he held that the property belongs to E the

respondent. For the reasons I have stated with regard to the other grounds I would dismiss this

ground as well.

In the final event I would dismiss this appeal with costs to the respondent. As the other

Members of the Court agree it is so ordered.

F Appeal dismissed.

1987 TLR p175

G