19920124 TZHC Dar es Salaam

IN THE HIGH CJunT OF TANZANIA .AT ~:Jill ES SALAAM CIVIL A:2I'EAL NO. 41 OF ljJ[3 IlAllliY IBRAHIM RWEGASIRA • • • • • • 1li'PELLANT versus HAMISI RAMAliHANI MELI ..• ... .•• . E.ESPONDENT :• .JUDGMENT Thia is an appeal a3.cdnst the j uGg □ ent of. the Resident Magistrate's Court of Ilala at Kisutu, nar es Salaam~ The ta~ts of. the case as f(jund py the trial court and not disputed ·by 'the parties can conveniently be stated as follows: ~he respondent/plaintiff had on ~5th Maj 198, sold his housej situated on ~lot Na.564, Block E, at Sinza I• • in ])ar es Salaam, to the appellant/defendant for a, eonsiceration of shs .195, OvC/=. It is coe1mon gr.::,unc that the sale trartsaotion was oonductef thruu~h an advocate namely Kr. Kijugo •. It had· been contende6 by the appellant I s advocate both in :ihe court second and in this court_that the responuent/plaintitf had declined to collect !rom his aClv-~;cate Mr. Kijugo a sum of shs. lv,_', ~;vr./= which was part of the purchase price .1.f"or the said house. It is here that the parties j0in issues. It is oollltlon 6 r,Jund that the, appellant/def enc:ant ·does not possess the ti~le iri respect of the said h0use because the same ..has not to-date been transferred to the appellant. It is equally not in dispute th.st -:,c.r,.sent i.,r the sale has not to-date been obtaineJ fr,_,r1 the 1)0nunissioner of Landds ana tha~ t_he appellan-t/def end ant took _possession of the suit premises upon payment of the first i~stalruent on 2•.,ith May 1985. In the subor~.tt~court the reswonJent/plainti~f had inter alia _successfully pleaded that the appellant/defenJant had brea"hed the oJntra~t for non-yayment of the balanoe ~~ shs .lOO;''iCJ/=. The le;::nmed trial '1ogistrate helc inter alia 2 that the parties shculd vev0rt to their original ponitions obtaining prior to the making o1 the sale agreement. It was consequently ordered that the Dppellant/,~:efenclant should be evicted from the auit ,remises antl that she should reoo~er th~ monies given t0 adv0~ate Mr. Kijugo from the latt~r and not the res pone~ ent/plainti.flf ~ I am bohe~~ained to mention riJht from the out set that the question o! the agreement for salij being void fo~ la~k of I the ~onsent of the Commissioner was not at all ~anvassed by the learned oounsel for the parties both in the lower oourt and in this A,Jurt. This being the .sta-i.,e of af:Oairs I deoline to express an opinion on this point indep~h. rt is however oer·~ain from the recorded evidence that this se.le agreer.mt was a normal one and was· made in n,,rrn:il circu:.1stanoes, and :l. t Jeems to me _that there Jid not seem to be any obsta~le to \onsent .being ]ranted to the sale agreement in n0rmal · circumstances. It seems to me that if both p~rties were now apply for consent, it cuula be forthc:Jming. But as I -have indicated that this is not a problem I an called upon · t0 solve. Looking at the recorded ·eviden~e it is <lifficult to comprehend how the learned trial magistrate 3rrived at the decision she did e The lJwer court findin<.5_s are in my vj_ew against the weiGht of e·vidence acct uced o In the final analyses theref0re after ,_:ue <'lonsideration o:f the pe-si tion of a1,>peol anc1 its evidence : Gm b:>und to allow this appeal Erid I so du. The aypeal succea .s, I set aside the jud~ement and orders of the bordinate ciurt. ~s the appellant/de~tendant is in possession of thE: house in question no iurtber oi"'der need be made. The appell2nt/defenclant shsll have the costs here and below. Or<ler ace .~:iL~lYo J. J, MKWAWA ... 2-;/..i.a. JlIT1GE --- C .u-r-t. 24/1/92 • Court: · Juugment deli"\ ered in "bhe yresenoe o{ both 1 ,:::unsel~. i. J. M10tlAWA JlDGE \.. I CERTIFY THAT THIS ~S THE TRUE :rc~Y.~61I.~•·~L~ .;1~1:G:ut.~.1t:.- · ,. _;·:·:~r, . ~. -:_.;. ~· .!~ . .\. ;~; ~-.r-\_~~~~ It ,\. .,, ~ - . ..... ACTING Dh.i._l;·~ ~- :·:.:r:;v_._ .... .:..-..:i:.