19870512 TZCA Dar es Salaam

,, L-~~ \.. .... ~.-~ -·- ......,.. • - . •.·-::J • • ( . l . ~ • . • 4 • , . ' IN TI:IE COURT .oF· APP~AL OF TJi.112.AflIA: AT DAR ES 3ALAAfVI ... ' 1 CORAMi M.AKAME9 J .A.s KISANGA2 J.A. And Oiwl.,_l_.A_. \ i CIVIL APPEAL NO. 20 OF 1983 ATHUJ\1ANI KHALFANI. • APPEL ANT v.r::;i.srn M1iliUSSJTIN SAL UM. • • , • 0:1 (\ .RESPO JDENT ;.. 1· (Appea.l" •.-from tp,~ decisioni of tl1e ~Iigh ourt 1 ., o:t: T2nzap:ia .. ~·t Dod;0ma (1'1?in13 9__ J •. ) dat d • 7th. day of· April, 198·1 •.; J 1 ... in •,• . .. Civa.R ,-case No. l! ·ef,1_1976 ".. .,;· -•.•.:· ·.-- ---- -.._. ., . . ,. . I:~;: ·~ ~ ••, ••,., ,,. • • 3lfi)Gi'Ii3F'Ii O) 'E-Ik COURT 111, ,. ••• <II .. . .--- .' \: - i~ The present DP;JClJ..8nt 1 !" ·I" ,I a' house in i II o,,me~ odoma Township a.t i;he ; 1 ma.t~ri,al tirri~~ He enh·red. into ~;;i:r:i. agroement i·ch the present .., __., i, 'I • respondent.1 fo.r. -the latter to ocdu·-).C· a portion of the said house ..·- "!' - ... •: "when completeg_i!. The_ agreement\ wa'.s uii,bod ied. in a document 9 • :i"~h.Pl 9 .. !~- . I. which document ·is remarkable for: i 'ts ombin'uit and. la.ck of clarity. - ~ \ ,,i . It is our considered view tl12t the .i1.[;reemcnt 9 :-Jx:h. Pl 9 contributed ! a great desl to the difficulty in ,, rrnolvin::;- t1c pa.rties 1 differences - I .. - , once the· respondent took tl1c ap1.J0lkmt to the High Court alleging I breach of .contract 2nd G3king

for I, 9 inter alia the refund of some ,, monies he had pa id. 8s advanae mages for the ;alleged brea.ch. The appellant fil_ed. a which was dismissed ' ' ' ~ toto, while the respondent I s isu:i:'t succeed.e only on the t\·10 items • ; . :j . • ,> ref erred to a,bove. ~4 The responden_t ~was .awa.rde I ' " a total sum of • ~ ,. ~ ·. Shs. 31 9 81 o/35, ·plus . costs sncl ~~te'rest. The sum awarded was . 9omprised of Shs. 9 9 810/35. bulan'ce of c::dvance rent paid 9 and :1 Shs. 22,000/= to compensate the reqpondent fo the Shs. 500/= per . month extra rent he wc1s :(arced. to ppy for the more e~pensive . • I,. alternative a.ccomra~datio'n he had· tc\ occupy fo ' . ' 1 . . forty four .months, ~from 1st ·September,· 1.972 to thu 'end. of April 9 1976. ,a•ooo,/2 ... - • - 2 - Mr. J!il-Maamry 9 lec::rned Advocate 9 appecr•..:·:l f r the oppellant before us, while the respondent was represented b I-'ir. Muccadam, learned Counsel. The appellant has no qu,:,rrel ,,:ith the award of Shs. 9 ,810/35 but his advocate has argued, in essence 9 that the agreement was terminated mutually by the po;:t ies some five mont s after the respond.ent had found. alternative accorrr:..1ocla.tion fo himself and before the house was acquired by the Government. here was thus no question of broach of contract. ~uite seriously it is difficult to be sure at the :intendment of Eich. P.l is 9 and this was one of

the- points I-Ir. El-r.iaamry vigorously / made before us. For what ~-t i.J wcrt'.,.r it w::;·,:ld ap'J"or that time was not of the essence .in the coat::-act w\1ic~1 c.1lso l)rov d.e:cl that the appellant would. make substantial payments ,!in futu e·11 by way of advance rent "t? complete the builcline on the said. plot 11 • The appellant I s position was thot · tho _;~cs::;iondent wos v ry tc.1rdy in making the payments and Mr. El-M:iomry suggested th t substantial payments must mean rr,ore tl1r1n 50,, ..,;_' :.'.::: price of c struction costs, which the respond.ent did not pay a In our that would not be the end. of the rmt ter 9 as one e to discover ,· and. ascertain the 50% or any percent of the constr tion costs is that of what - of the said portion when complet d 11 or rrof the 11 building on the snid plot" as the Agreement various y provided? We note that there was lack of c0rt0inty as' o which .portion of the building the respondent was intended to occu y. The .Agreement was not specific enough. The lea.med. trial judge w. o visited the property found in his judgement that the portion of· the first floor :i,mmediately above the part of the e;round floor let o the C.R.C.U •. was ideal for th:: respond.ent 's purpose and that it v as the portion the parties agreed on as asserted by tho re.Jpondent. The learned /3 • _. o o • •• I . - 3 - judge proceeded from this to S8Y

that because the ap 1)c lant had. let the part of the ground floor he let to the C.J. .C.U. an . wos himself occupying the portion immediately c;ibove it, the 8po:,er!ant was in breach of the contr::-ct. Of course the o ppcllant sa,id that the portion of the first floor yet to be done was the one meant for the respond.ent. He let the part , of the erouncl-floor o the C.R.C.U. merely a.s a sto:?-gap arron{;eP.1cnt 2nd :not in breDch of the Agreement ,· 'Which was not operc:tive 9 2n0 would not be 9 until 11 the said portion 1 when completed 11 was ready. i be parties had the serv · es of a. lawyer who d.rew up the Agree,:ient for thems rmd. he ::;hould no have left such ioose end.s. If D.1:J.2 SIL.AYO [12d himE3elf to fix a. cloor to his room on the first floor in 1968, th2t cannot be pro• f th8t that portion of the first floor was not recc.y ull,m the Ar:; eement was entered into in il.ugust 9 1969 :· nor con it ::1t:ces.:arily be correct, what the tr isl court oss2rt,: s the~ bec::.,u:::e r..;oin.c: door and. windows on the ground floor were not complete :m,~ t!::.:> floor 1eeded levelling, the floor immed.iDtely 8,bove it wnr:.; not r2ady for oc9 .pation.. It just does not follow. and 9 lMked cJt superficially 9 it would not ·oe oind ng on the 1 respondent. However, it says cmo:1c other things 9 ; una kipindi tulipa.tanD kulipa kila mwezi 0 ho. 5(lG/~. c. a 1 rhis must

be referring to an earlier Tu'1dc:rst3n~ing tl:.2t the apl)e lant would refund the money he had recEiv<:d fron the responde The mention the appellant was unable to continue with th2 reft d instolments immediately. We cannot in thG ~ircur.1St2nces accep what the . respond.ent told. the court that 11 The Daf end,mt brea hed the Agreement when he told. me that the suit preri;ises was acquire by the Government and he was unable to ld uc tol~e posses 'ion 11. We should add that this is quite apart frc..i th2 fact thGt ev n if the appellant _.:: , r ' --- I - ? - 4 - . had soid. thot 9 the contr2ct would have bcc::1 fru::;tr2t2d by e cnts beyond the o:J:;;cllant I s control. What d.id the respondrnt hissc1f 3':y obout :Sxh. P3'? Ie said Afterwcirds, the· .00.: 2::'.!:\r.nt refuG2d to let me t1:1 11 possassfon of the cui t ;1reDise.s c:irld we entered into £mother ogreer,1ent ul1c,reby it was agreed th'. t the Defendc:int would refund the anount of money I hod j_)aid to him. The :Ocfendont wrote an agre E1ent in his hDndwr::..ting to th.'.'1t £'£feet. This i:J the cigreemont for the refund of 1:ry noney. The ogr ement is d[!tGd 2 ,July, 1973 I did :oot sign it. Th s document was written by tho Dcf.:mc.>mt Dnd it wos addres ed. to me. The defendcnt fs8Ve it to me. I tend.er t e document dated 2 July 9 1973 as :C:X:hibit" • I ' •' • Q So iI:lch. P. 3 was composed, albeit by the

appGllant to express what the parties hDd earlier on agreed upon - thot the efend.Dnt would refund. the rent - and therefore they hzd terminoted th· contract. Elsewhere the respondent add.s g "If the Defend.ant. had me in full the amount of money I h8d. poid him I would not hD e sued him for breDch of the agreement 11. We ere satisfied that , here the -respondent told the truth~ only th~1t be should hove b .en advised by his lawyer that tbc::it course wos not open to him i the circumstances. He should have sued on the seconc contract - for the belonce of his money. '.!.'here wos no longer a tcnoncy Bgreem.ent and o there could be no damages to pray for. We are incidentally of thC:> view thot the J.\gre ment wDs so loose and casuDl that the O:;.Jpellant did. not offend the 1 eement by letting a. portion of the property to the C.R.C.U. s long as what was envisaged was not I co1:1pleted 1 • We .olso think that we have already provided an answer to I1x. I'Iucoad.cm I s con tent ion t Dt the agreement was not mutually ter,,iincted b,:.'couse hiG client di not sign the 1 proposal 1 • Hr. Uucc2d.a1r; fu.!'.'thcr sub:::itt2d thct ' he respondent was ad.vised only subol:'q_uontly thot l:.c cot~lc~ ::;v.e :for :nages. We can only sny that the learr..ed c:iv~cc c2:::.: too L~4.;c i, th(' day • • ! • ~ • • /5 / r -· 5 - 1 We allow the ap:po,,l with co3·t::,. :/o accordingly. set R. H. KISANGA _ JUSTICE ,...OF_.---- li.PPEAL A. N. A. Gt Ju;3rlJCE ~ OF APP --.---'---~;_ .... is a true copy of the origina,l. (J. H. MSOFF DEPUTY R$1S ·-~.