19910924 TZHC Dar es Salaam

~ IK Ti:D;; HIGl:: C'i.'UR'.r (I' T7~HZ,~hI.~ !, T DAR ES Sfl.L.l ..~M • l CIVIL APPEAL NC 35 JF 199J CLEO?HAS HERMAN 1.iUL\;KCZI ............. .A.i?.tlELLANT versus ZACHARY SAM\;EL NYllNZA ••• ,' ••• ., ••••••• RESPONDENT JUDGMENT l'4SUMI,J • In the Court of Resident Magistrate of Dar es Salaa~, respondent suooessfully sued the appellant on contract of sale o~ the suit house· situated on a registered land. i~lliong other reliefs, the Court ordered fo> speoifio performance of the contract as prayed by the respondent. Appellant is disatisfied with the decision hence the present appeal. The evidence on record shows that on 10/0/07 the parties executed a aontraet . - whereby the appellant. offered to sale the suit house -and respondent agreed to buy it at a s1,1u of shs 175,~')J/-. Respona.ent Glade _part payme~t of shs 1~,JJJ/- and it was agreed that the balance was to be paid in three instalments of shs 9:,~J0/-, 5J,J]J/- and 25,JJ0/- by 7/9/D7t "tio/n/07 and 3J/11_/c7 respectively. However, instead of the agreed th:ree instalments, the balance purchase price was settled, as per appellants payment aoknowledg:.1ant notes, in seven instali.:1ents of which the last payment of shs 25,.:•)J/- was raade by Februa~rY 19dG. At the r.iaterial tioe.the suii. hou$e was subdeot to a cio~tagage to the Tanzania Hobsing Bank and appellant undertool~ to discharge it. And on full payJent of the purchase money appellant was required to surrender to the res)ondent the registered title deed of ,the suit house. Appellant failed t0 or serve either of these undertakings. Respondent had thus to disc~arge the Lort-..gage by paying the rederap~ion money totalling shs 64,044/~J. What lad the respondent ·' -~qlt . ~ ' seek for iourt inturventfon is appellant's refusal uo va~~ta the suit house and his written instruction to the Com~ission3r for Lands blocking the transfer of ownership of the house to the responjent. Five grounds of appeal have been filed by Mr M~ira on behalf of the appellant. I will deci.l with eaah of the4J in the ord.:r the.Y ha-d been listed. As a first groun~ of appeal, it is sub~itt~d that tte learned trial ~, •· magistrate erred in law to grant an a 1:;licati:m und:::ir ~rder XII Rule I of f the Civil Procedure Code. It is true that this ~rJvision was wrongly invoked~ There has been no n.otice of ad:;:iission given by the appellant. ·__ 1 · ·: .''·• : . ' i Bowever, it is also true that·in his written statecent of defence appellant specifieally adtli tted th·e fact that he executed the cont:,ac;.t in which he t' . .;.\ . a.greed to sale the suit house to the respondent and that he was·in breaeh .., ,·. '1/1,f the said agreen1ent. These allegations were _pleaded u.nde:r- para~aphs 4 f t ·~: and·S of the plaint. In paragraph one· of his defenGe a~~ellant says:-· ti 1 • That, I admit parus 1,3 anu 4 of the .piaint, and 5 for ,: .. .. ,:. that at .first I did agrecl to sell '.iJ.Y ,t1remises to the . )"I, ; •. plaintiff but later I· chang~ cl wy nind and decided not to sell after I. thought again d.0eply es to wh6re l will ..., .. .. ... /"-·- .. l - 2 It is clear from tr. .s paragraph that appellant is ad~itting the contract in question. Not only that appellant is also admitting that in breach of the said contract ho has changed his minii to sell the suit house •. The said change of uind has nothj_ng to do with any action or inaction of the respondent. He was prohlted to this offensive decision alter realising that be had no alternative accomoodation for his fawily& This cannot be a valid reason to qur l:U:y · hls adt1ission of the breach of the agree cent, Thus <>n ap~lioation by th~ resJondent und8r order XII Rule 4 of the Civil Procedure Code the t~ial court could record these ad~tssions viz that there had been a c0n~raot whereoy -a~pellant aBreed to sell ana respondent agreed to buy the suit r ··· · and that in ore a ch of. the agrea:-.ient appellant has refused to sell ~he said house. The fact that this application was wrongly wade undr ~ t~la I of Crier XII has not prejudioad the appellant . In the seco1 d LTound of appe~l the lea•. t1J:i counsel is submitting that the learned trial magistrate erred in law in holding that· the appellant had waived the b·:c-:J.ches on the part of the respo.ndent, ·rhe question here is whethar afte:r ·i he respondent had defaul te:i paJu.1ent of the instalwents at the agreed tj ill s appellant had done any conduct which aa.nifested his intention to wa-3 ·n the brea.ch6 This is a questiun of fact. ,uter the breach - the contract bec-'u e voidable at the instance rJf the ,•.ppellant. The breach did not make the r ontrac t autot1a tically voiclc ;i.ppel:1 ant had. to overtlf exercise his opV.. , n of voiding the contrat;i_1. nut he never did it. Insteau he accepted the -lrfaulted payments e96h time they nere made. And the way he aoknow::).edged ~l·e payments clearly indicates the·. a:i.Jpcllant had agreed_ with respondent ,,r a re vi sad schedule of ,i_)ayuent~ -~, Jr exaLlple in his no,te of 24.12.07 ackrJwledging receipt of last but one instaloent, appellant wrote,- "Recei•!\ l fror.1 Mr Zacharia S9Nyanza suw c-f shs. seventeen thous·u l five hundred only (17 9 5)J/-) _;;£ing last aoount i-)aicl i; res.pect of the 2nd instalu1ent,. 1..s .fJO,.r agreeuent of puroh1 e of p:ot 54/44 Kijitonya~a. I . .l lance shs 25~J-· ..:/•(Twenty five tiwusand shillings) ~ l l .lE.J.e b;.~·-1.?.,_:~Ll.9..0C 1?.§3 ing the 3r~ _ ind 1 as t instalinen t. 11 · ( empl J :is :i.s m:1.ne ., ) Ae_oording to th€ ,rigj_nal 2greeoent the last pay.;:ient was to be r.:1ade by 32/11/c7. Bui ~s per this receipt note, the p~rties had revised the date and agreed that the las·t payoent was to be a:d.e by February 1900. And there is ev~ d.ence of con1>J.-:'..,H10 .. by the respo:1.lent of this revised date. By acceptjrg the payr.:1ents outside the agreed periods, it clearly shows that appe~.l.'.lnt had wai~·ed tl:!_e breaches., ,:lpfellant: was prepared-to honour th_e contT,.ct despite the breaches~ i;.cting on the a~pellant's implied assura~. _} . that ·he was not in.tending t~ void the contract, the default on paYt:'n t of i_ry_sta~.r:ients n0tw~. th.standing respon.dent continued to pay the balac. -.JG~ It ::.c j_nGq1J.::.·t·.a1Jle that appeJ_lant should be allowed to retract this implied waive~ af~e= full ~ay~ent had jccn Dade and duly acceptud. f • I ( 3 Thirdly it is arqued that the trial illagistrate erred in law in ordering specific perfor~ance when there were other remedies ay~ilable. The law an especific p~~forwanne is quite clear. Generally, as equitable principle, court wiJ.l not grant a decree of specif perfor~anoe of a contract if the pariJ seeking the decre~ can obtain a sufficient remedy by a judgment for duillages an~ JU~h a decree will. not be made where it would be impracticc.ble to secure compltance with it; ThP determining faotor is the existence of sufficient altern~tive remedy. In wost cases where speeific perfoT~ance is prayed for there would inva~iably be available sori1e otht r :tn: · · '.ies, However; the question_ is whether ·s11.~h alternative remedire are aufficiento In dPL~rmining this question eaeh case must be consiierad on its £a~t~ The inGention of the ~espondent was to acquire a hous,·. ·',ii·~h land problem in Dar es Salaam, there· c-an be no sufficient remed. ·ro:r the respondent short of a decree for specific performance. Fourthfly, t ls argued that the learned trial·magistrate erred in not allowing the s ipellant to present his defence oa$El fully. A.ocording ~o the record, a··t~r the appellant had given his aefenc~, the case wae adjourned to ena,l~ hiru call his two witnessese For vaTious· reasons, there had been protrac~cl adjournments ~ntil when the tri l,magistrate decided to olose the defe~ce case and·write ~he judgment ageinst which it is being appealed~ .as in tb. written stateu1ent. of defen-ce, i .. 1 hi·e 'bestimony appellant admitted to huve e-:it.<= ·ed into the C:)ntrac+ in question and that he decided to breach it becPx:se he fail<Jd to g9t another acco,.rr:)dation for hi! l family. The ~holu_case depends on the existence of ~he contract in question and its being brenchedo These facts have been admi·c ~ad both i'n the written defence and in tha appellan·c: s tesau1ony beL>re th~ co".lrt. Thue I oannot see how those two.absent witnesses would have ·chanEJd the defence case. I am of the view ~·hat despite the absen0e ·:Jf tho n icl defence witnesses, the defence case\ qs fully presented to the court- Lastly the-~< ~rned counsel sub~itted th~t th1 learned trial magistrate erred_ in· holding · nat the demise ha<l been coiaple t i,l., 'vii th respect, no where in the judgwent h, .d the trial roc-i.gistrate helJ thut the de'~ise had been completed. Rele\ ,1nt to this_. argui;ient ~ this is whr i; the learned trial magistrate said:- "..... , , According to section i J of the ~fonzania Contra-ot Crdinance, Cap 4?3, the agreeoent is a contract~ :twas made by the cortsent of _t~\e parHes ~ t:ie 1-'"--:- .... ;_ELJ being COIJ)3lent to enter 'into such agreor·ento It was for a lawful consideration and lawful object. If t~c defendant cha~ged_his mind later, he had to revoke the offer ~ ! ~_J;b9 _c~u1-~1a_:f:ion of its ac .:s ~;anne was coL1ple ted as requ.irt:>d b .. i=rnr-:.:.ion 2 (1) of the san, la,1. 11 (emphasis supplied) ••.• /4-_ . " 4. There is nothing objectionable in this state~0nt. It is legally oorreGt· that the cuntract was cJuple~e efter the respondent had a~cepted,, the offer and paid the purcha:se money. What the le2rned counsel appears to suggest is th&t sincH the demise was not cow~lete, appell~nt could decide to rescini th~ contract with i~punity. With respect, this view has no legal support. To support this view will mean tnat neither of the ~arty could legally enforce the contract so long as the demise was ,not COlil_()lete e Fortunately J _ law is not absurd to that extent~ As a whole I oa~ find·nothing faulty in the trial court's judgment~ Thia_ar)eal is therefore diooissede r ,TUDG,": . 24/9/91 For the Appellant. Mairr For the Respondent- Mafhata~ .. ,,. ... . :' . ,,