MBAROUK MOHAMED HAJI +1 VS MUNIRA ABDU KHAMIS (CIVIL APPEAL NO. 26 OF 2024 FROM CIVIL CASE NO. 37 OF 2022, MBAROUK MOHAMED HAJI +1 VS MUNIRA ABDU KHAMIS) [2025] TZZNZHC 125 (21 July 2025)

Key Facts

Transaction Type

Issues

• The court examined whether the first Appellant is the true owner of the house in dispute. The judgment found that the first Appellant did not produce evidence to prove he purchased the house from PW2, and admitted he had no signed agreement to prove the transfer. The court concluded that the first Appellant is not the owner of the house based on the principle that no one can give title which they do not have to another person.
• The court determined if the second Appellant was a bona fide purchaser for value without notice. The judgment found that the second Appellant purchased the house in good faith, without knowledge of any fraud or prior claims, and paid valuable consideration. The court concluded the second Appellant was a bona fide purchaser for value.

Holdings

• The court dismissed the appeal and declared the Respondent as the true and rightful owner of the house at Fuoni Mambosasa. The transfer between the first and second Appellants was revoked, and the first Appellant was ordered to refund the whole amount from the second Appellant within six months from the date of judgment.
• The house must be returned to the owner within six months from the date of judgment. Based on circumstances of this appeal, each party bears their own costs.
• The transfer made on 3rd January, 2021 between the first and second Appellants was revoked. The first Appellant is ordered to refund the whole amount from the second Appellant not more than six months from the date of this judgment.

Remedies

Contract Value

Legal Principles

• The Nemo dat quod non habet rule establishes that no one can give title to another person which they do not possess. This principle was central to determining whether the first Appellant had ownership rights to transfer the house to the second Appellant.
• Caveat emptor doctrine was discussed regarding the Respondent's purchase of a house already sold to another person. The second Appellant purchased in good faith for valuable consideration without knowledge of the prior fraudulent transfer.
• The principle of estoppel was applied where a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. The first Appellant's failure to cross-examine witnesses was noted.
• The bona fide purchaser for value without notice doctrine was applied, defining a buyer who has paid a stated price for property without knowledge of existing or prior claims or prior equitable interests. The second Appellant purchased in good faith without notice of the fraud or encumbrances.

Precedent Name

• Mire Artan Ismail & Another V. Sofia Njati
• Hamisi Bushiri Pazi & Others V. Saul Henry Amon & Others
• Melchiades John Mwenda V. Gizelle Mbaga & Others
• Lwanga V. Mubiru and Others
• Lazarus Estates Limited V. Beasley
• Nyerere Nyague V. Republic

Key Disputed Contract Clauses

• PW2 sought to revoke the offer and sale to the first Appellant due to non-compliance with agreed conditions including part payment. The first Appellant argued that the breach cannot waive the obligation between parties and that the law of Contract Decree Cap 149 provides for compensation as remedy for such failure.
• The dispute centered on whether the first Appellant fulfilled his contractual obligations under the agreement with PW2. The first Appellant claimed the sale to the Respondent was void ab-initio for misrepresentation, but failed to object to his own failure to complete payment obligations as specified in the contract.
• The contract between PW2 and the first Appellant required instalment payments with an agreed amount of TZS 9,500,000. The first Appellant only paid TZS 3,500,000 and failed to pay the last installment. This failure was central to PW2's right to revoke the offer and sell the house to the Respondent.

Cited Statute

Judge Name

Passage Text

• I find the second Appellant was a bonafide purchaser for value, as she purchased and received the property in good faith and without knowledge of any fraud.
• For the foregoing reasons, I find the entire appeal to have no merit and is hereby dismissed. Consequently, with that dismissal, I order the following: a) The Respondent is declared the true and rightful owner of the house.
• I conclude that the first Appellant is not owner and the first issue is answered in affirmative.

Damages / Relief Type

• Transfer made on 3rd January, 2021 between first and second Appellants revoked
• House ordered to be returned to the owner within six months from judgment date
• First Appellant ordered to refund whole amount from second Appellant within six months from judgment date
• Respondent declared true and rightful owner of the house at Fuoni Mambosasa