20201103 TZHC Dar es Salaam

..,.,r. i /,; ,' L. • IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 250 OF 2012 DECENT INVESTMENTS LTD ....................................... PLAINTIFF VERSUS~. NATIONAL TREASURY REGISTRAR .. :........................ DEFENDANT JUDGMENT 18/08/2020 & 03/11/2020 Masoud, l. The plaintiff filed a suit against the above-named defendant. The suit arose from assets sale agreement between Best Lint (T) Ltd, referred to by the plaintiff herein as the original buyer, on one h_and, and the PSRC whose assets and liabilities vested in the defendant herein by operation of law, on the other hand. The agreement was for a consideration of Tshs 265,000,000/-. The assets which were a subject of the said agreement were described by the plaintiff in her 16 paragraph plaint as: -- s ..... NMC Shinyanga Rice MfII Complex that comprised.of . ,,,- :,. among others, the main godown, the old milling machine building, unprocessed rice store, new rice mill bqilding, ablution block, old plant, new plant, administration block, accounts block, car port, century general house, and land comprising the itemized items and others best described as MNC Shinyanga rice mill complex, hereinafter "the property'~ \ 1 The plaintiff s clam against the defendant was for a declaration that the plaintiff is the rightful purchaser of the property described herein above. Her further claim is for an order that the defendant release and 1, handover and execute the transfer of the said property to her, and for an additional claim for damages for the delay of transfer. The plaintiff's action against the defendant was hinged on the allegation that the original buyer failed to pay the remaining balance of the purchase price within time. The plaintiff was, consequently, invited by, and concluded a memorandum of understanding with, the original buyer to purchase the property from the defendant. The only condition in the agreement concluded was for the plaintiff to reimburse the original buyer the money already paid to the PSRC which was Tshs 132,500,000/-, and to pay the balance of the purchase price which was Tshs 180,000,000/-. It was also alleged by the plaintiff that prior to the implementation of the agreement concluded with the original buyer, a tripartite meeting was, held with the plaintiff, the original buyer and the PSRC. In the said meeting, the PSRC approved the said agreement without any objection whatsoever. As a result, the plaintiff fulfilled the condition of the agreement. She paid the final balance of Tshs 132,500,000/- of the purchase price to the PSRC, and reimbursed the original buyer the sum of Tshs 180,000,000/- already paid to the PSRC as part of the purchase price. Subsequently, the PSRC concluded a deed of handover of the property to the plaintiff and the original buyer which were _clearly named in the said deed as, Best Lint (T) Ltd, and Decent Investments Ltd. It was the complaint of the plaintiff that despite the payment of the purchase price in full, and the conclusion of the deed of handover of the property, the PSRC handed over to the plaintiff a few items only, namely, machineries and buildings. The plaintiff is still yet to be handed over title deeds, transfer documents, and other ownership documents for the entire property. The plaintiff has, as a result, suffered loss and is entitled to damages. Given the nature of the suit and its determination herein after its crucial to reproduce a selection of paragraphs of the plaint, in particular, paragraphs 3, and 6 -15, whose averments are at the heart of the issues to be resolved subsequently. They read and I hereby quote as thus: 1 ..... . 2...... . 3. That the Plaintiff's claim against the Defendant is for a declaration that the Plaintiff is the rightful purchaser of the property described hereinbelow✓ and for an order that the defendant release and handover and execute the transfer of the said property to the plaintiff, and for a further claim for damages for delay of the transfer. 4...... . 5..... . 6. That on or about Efh June 2005, PSRC sold the property to an entity know as Best Lint {T} Ltd (hereinafter the original buyer) for the consideration of Tshs 265,000,000/- 7. That it was agreed between the PSRC and the said original buyer that the purchase price shall be paid in instalments · wherein, the first instalments of Tshs 25,500,000/- was paid by the original buyer on the day of initiating the Asset Sale Agreement. The second instalment of Tshs 106,000,000/- was paid on the day of execution of the Asset Sale Agreement. 8. That it was further agreed by parties that the balance of the purchase price 'i.e 132,000,000/-.... would be paid be . paid within six months from the date of execution of the Asset Sale Agreement. A copy of the said Asset Sale Agreement is annexed to hereto as Annexure P1 and the plaintiff craves leave to refer to it as part of this plaint. 3 Iv 9. The original buyer failed to pay the remained balance of the purchase price within time and in consequence thereof it invited the plaintiff to purchase the property from the defendant on condition that the plaintiff would reimburse the original buyer the money already paid to the PSRC and would further pay the PSRC the balance of the purchase price. 10. That in consequence of the invitation stated in para.9 herein above/ the plaintiff and the original buyer executed a Memorandum of Understanding (MOU) reflecting the above state of affairs. A copy of the said MOU is annexed hereto as Annexure P2 and the plaintiff crave leave to refer to it as part of this plaint. 11. That before implementing the agreement with the original buyer as stated herein above/ the Plaintiff and the original buyer held a tripartite meeting with the PSRC in which the latter indicated that it did not object to the agreement between the Plaintiff and the original buyer and approved the said arrangement/ and undertook to release all the documents relating to the property in favour of the Plaintiff upon receipt of the final purchase price. 12. That on the strength of the commitment made by the PSRC as stated in para. 11 herein above/ the plaintiff went ahead and paid the original buyer a total of Tshs 180/000/000/- being reimbursement for the payments of the original buyer had made [toJ PSRC as consideration for purchase of the property and paid the Defendant a total of Tshs 132/500/000/-.... being the final purchase price of the property. A copy of Bankers cheque No. 000298 drawn in favour of the PSRC together with letters to PSRC are annexed hereto as Annexure P3 collectively/ and the plaintiff craves leave to refer to them as part of this plaint. 13. That upon receipt of the full purchase price/ the PSRC handed over to the plaintiff only a few items/ namely, machineries/ and buildings but has not released, filled and handed over titled deeds/ transfer documents/ and other ownership documents for the entire property to the plaintiff to date. A copy of the deed of handover from the defendant to the plaintiff and Best Lint Ltd is annexed as Annexure P4 and the plaintiff craves leave to refer to it as part of this plaint. 4 , 14. That in consequence of the failure by the PSRC to ----handover -the said documents, the- Plaintiff has suffered-- substantial loss and the plaintiff submits that it is entitled to damages as the Honourable Court may deem just. 15. That the cause of acrion arose in Dar es Salaam and for purposes of jurisdiction and court fees, the subject matter of the suit is above Shs. 150,000,000/- which is well within the jurisdiction of the Honourable Court. The defendant, in her written statement of defence, urged the court to dismiss the suit with costs. Of the 16 paragraphs of the plaint, t~e defendant in her written statement of defence only disputed generally the contents of paragraphs 3, 13, 14 and 15 of the plaint, and noted generally the contents of paragraphs 1, 2, 4, 5, 6, 8, 9, 10,11,12 and 16 of the plaint. The written statement of defence was also silent on the contents of paragraph 7 of the plaint which is on how the first and second instalments of the purchase price were paid by the original buyer to the PSRC. The contents of the relevant paragraphs of the written statement of defence speak for themselves in relation to the fore-going observations as to how they relate to the plaint: Written Statement of Defence to the amended plaint 1. The contents of paragraphs 1,2,4,6✓ 8,9,10 and 16 of the Amended Plaint are noted. 2. That the contents of paragraph 3 of the Amended Plaint are denied and the Plaintiff is put to strict proof thereof. 3. That save the fact that there has never been a general house among the assets of the National Milling Corporation placed under the PSRC, the rest of the contents contained in paragraph 5 of the Amended plaint are noted. 4. That the contents of paragraphs 11 and 12 of the Amended Plaint are noted as facts known to the Plaintiff. The Defendant further avers that there are no letters annexed collectively with the copy of the Bankers Cheque marked as Annexure P3 as claimed by the Plaintiff. Otherwise, the Plaintiff is put to strict proof thereof. 5 5. That the contents of paragraph 13 of the Amended Plaint are disputed and the Plaintiff is put to strict proof thereof. 6. That save for the fact that the defendants resides in Dar es Salaam/ the rest of the contents of paragraphs 14 and 15 of the Plaint are denied and the Plaintiff is put to strict proof thereof. WHEREFORE/ the Defendant prays that this suit be dismissed with costs. As to the disputed contents of the plaint, they related to, firstly, the claim of the plaintiff against the defendant; secondly, the allegation that the defendant handed over to the plaintiff only a few items, but refused to release, fill and handover title deeds, transfer documents and other ownership documents; thirdly, the allegation that the plaintiff has suffered loss due to the failure of the defendant to handover the said documents; and fourthly, the claim that the cause of action arose in Dar es salaam. The contents of the plaint noted by the defendant in her written statement of defence related to assets which constituted the property covered by the assets' sale agreement. The defendant, however, disputed that there was a general house referred in the plaint. The contents of the plaint which were noted by the defendant also related to the sale of the suit property to the original buyer for the consideration of 265,000,000/-. They further related to the mode of payment of the purchase price in three instalments, of which the first and second instalments were respectively paid when the assets sale agreement was initiated and executed. 6 There were other contents of the plaint, which were noted by the defendant in addition to the above. Firstly, the balance of the purchase price which the original buyer failed to pay within six months of the execution of the agreement, and the fact that the plaintiff was invited by the original buyer and agreed to purchase the property on the condition set out in the memorandum of understanding. Secondly, the fact that the implementation of the memorandum of understanding was preceded by a tripartite meeting with the PSRC in which the PSRC approved the agreement without objection. And thirdly, the plaintiff effected the payments under the memorandum of understanding on the strength of the PSRC commitment. The above pleadings gave rise to four issues which were duly recorded. They were, firstly, whether the plaintiff is a lawful owner of the suit property herein described; secondly, whether the defendant is in breach of the assets sale agreement for her failure to transfer title over the suit premise to the plaintiff, more particularly, to the release, handover, and execute transfer documents of the suit property in favour of the plaintiff, as agreed in the assets sale agreement; thirdly, whether the defendant's omissions have caused the plaintiff to suffer losses and is thus entitled to damages; and fourthly, to what reliefs are parties entitled. The plaintiff, advocated at the trial by Mr Elisa Msuya, learned counsel, called only one witness, namely, Mr Narendra Champsi Seth, who testified as PW.1. The defendant, represented by Mr Benson Hossea, learned State Attorney, also called only one witness, namely, Mr Hamisi 7 Rajabu, who testified as DW.1. Unlike DW.1 who did not tender any exhibit, PW .1 tendered several exhibits. There was Exhibit P.1 which was the assets sale agreement between the original buyer and the PSRC on behalf of the government in respect of the sale of the property. There was the memorandum of understanding dated 11/11/2005 referred in the plaint which was admitted as Exhibit P.2. There were equally copies of bankers cheques dated 12/11/2005 and 12/01/2006 collectively admitted as Exhibit P.3, an undated letter from the original buyer addressed and copied to the PSRC and the plaintiff respectively which was admitted as Exhibit P.4, a copy of a letter from the plaintiff to the PSRC dated 28/3/2007, which was accompanied by a copy of banker's cheque No. 000298 for a sum of Tshs 132,000,000/- payable to the PSRC and copy of a letter from the plaintiff to the PSRC dated 9/01/2007 collectively admitted as Exhibit P.5. The other exhibits were Exhibit P.6 and Exhibit P.7, which were a copy of a letter dated 8/03/2007 and a deed of handover dated 30/4/2007 referred above respectively. As to whether the plaintiff is a lawful owner of the suit property herein describe and whether the defendant breached the assets sale agreement, the pleadings in the plaint were to the effect that the plaintiff was the rightful purchaser of the suit property, having agreed with the original buyer and purchased the property from the defendant. Before dealing with the ownership and the pleading as to breach of the contract, it is pertinent to appreciate what was indeed the suit property. The assets constituting the suit property were described under 8 paragraph 5 of the plaint. The same was only noted by the defendant in her written statement of defence, but she disputed that the suit property was also constituted by a general house. The testimony of PW .1 was not explicit as to the existence of a general house pleaded in paragraph 5 of the plaint as one of the assets constituting the suit property. However, Exhibit P.1 which was tendered by PW .1 defines and lists the assets which constituted the suit property. The same is defined under clause 1.1 to mean: the assets that comprise the MNC Shinyanga, which are all physical assets, land, buildings, plant, furniture, utensils, chattels, and equipment situated at the property belonging to the Vendor including the assets described in AnnexureA. The said Annexure A which is a list of the assets referred to in clause 1.1 of the Exhibit P.1 reads thus: ANNEXUREA-L5tOFASSETS 1. Main Godown 2. Old Milling Machine Building 3. Unprocessed Rice Store 4. New Rice Mill Building 5. Ablution Block 6. Old Plant 7. New Plant 8. Administration Block 9. Accounts Block 10. Car Port 11. Century 12. Generator House Century 9 It is evident from the above that there was nothing in the list described as a general house, but a generator house. I would think that it is proper to find that there was no asset constituting the suit property described as a general house. In view of the above evidence whose pleadings were not disputed at all in the written statement of defence or controverted by DW .1 in any material particular, I am also of the finding that the assets described above are the ones which constitute the suit property, and which were also a subject matter of the Exhibit P.1. Having sorted out and established the breadth of the suit property, I am now set to determine the remaining issues. As already shown herein above, the plaintiff's pleading was that the plaintiff was the rightful purchaser of the suit property. The pleading was based on Exhibit P.2 which was pleaded and tendered by PW.l in evidence to evidence the sale of the suit property to the original buyer by the PSRC on behalf of the government of the United Republic of Tanzania. PW.1 testified that the Exhibit evidenced the agreement which was entered in 2005 at a consideration of Tshs 265,000,000/- in respect of the sale of the suit property. PW.1 told the court that the mode of payment was provided in clause 3.1.1, 3.1.2, and 3.1.3 of the said exhibit of which 10% of the purchase price was paid on the date of initiating the agreement, 40% of the purchase price was paid at the execution of the agreement, and the last instalment which was 50% of the purchase price was to be paid within six months of the signing of the agreement. According to the written statement of defence and the testimony of DW.1, it is clear that there was no dispute on the agreed 10 mode of payments and how the first and second instalments were paid pursuant to Exhibit P.1. The pleading that the plaintiff was the rightful purchaser of the suit property was equally based on Exhibit P.2 which was pleaded in paragraph 10 of the plaint as annexure P2, and tendered in evidence by PW.1. Exhibit P.2 was meant by PW.1 to evidence the agreement between the original buyer and the plaintiff herein for the purchase of the property by the plaintiff. As pleaded in paragraph 10 of the plaint and as testified by PW.1, Exhibit P.2 was entered on 11/11/2005 following the failure of the original buyer to pay the remaining balance of Tshs 132,000,000/- to the PSRC. As was Exhibit P.1, there was no pleading in the written statement of defence disputing Exhibit P.2 in any particular terms. According to PW.1, Exhibit P.2 was entered pursuant to clause 4.8 of Exhibit P.1 which allowed the original buyer to assign or transfer the agreement (i.e Exhibit P.1) and transactions contemplated under such agreement to any of its affiliates without a requirement of a consent from either of the parties. The said clause 4.8 reads: 14.8 No party may transfer or assign this Agreement to any other person, firm or corporation without the prior written consent of the other parties; Provided that the PURCHASER mav transfer or assign this Agreement and its respective rights and obligations hereunder to anv of its affiliates on the condition that the PURCHASER remains liable for the execution of anv of its obligations under this Agreement. This Agreement shall inure to the benefits of and be binding upon the Parties and their respective successors and permitted assigns.[Emphasis suppied] 11 In his testimony, PW.1 had it that the plaintiff is, as an affiliate of the original buyer, the rightful purchaser of the suit property. In relation to Exhibit P.2, PW.1 told the court that the suit property was under clause 4 of Exhibit P.2 to be transferred to the plaintiff once the plaintiff effect payments in terms of the Exhibit P.2. It was a further testimony of PW.1 that the original buyer would under clause 5 of Exhibit P.2 write to the PSRC as she rightly did by an undated letter (i.e Exhibit P.4) copied to the plaintiff requesting the PSRC to transfer the suit property in the name of the plaintiff. Consistent with the agreement reflected under Exhibit P.2, and the pleading about a tripartite meeting which was not disputed in the written statement of defence, PW.1 testified on how the plaintiff, an affiliate of the original buyer, reimbursed the original buyer a sum of Tshs. 180,000,000/- paid to the PSRC, and paid the remaining balance of the purchase price of Tshs. 132,500,000/-, as respectively evidenced by Exhibit P.3 and Exhibit P.5. Exhibit P.5 consisted of a letter dated 28/03/2007 requesting transfer of the suit property into the plaintiff's name, an indorsement by one, Mr Thobias Laizer, an officer of the PSRC, acknowledging receipt of a banker's cheque in respect of payment of the remaining balance of the purchase price paid in response to the PSRC's letter dated 8/3/2007 ref PSRC/1/13, and a copy of the said banker's cheque drawn by Stanbic Bank in favour of the PSRC. With the above evidence, PW.1 showed the court how the plaintiff conformed to the memorandum of understanding (i.e Exhibit P.2) which had the following requirements for the plaintiff and the original 12 buyer. Firstly, the plaintiff to pay the remaining balance of the purchase price and reimburse the original buyer the sum already paid as first and second instalment. And secondly, the original buyer to write to the PSRC requesting her to transfer the suit property in the name of the plaintiff after the payment of the balance of the purchase price. The relevant clauses of the Exhibit P.2 read and I quote: 1. The first party [i.e the plaintiff] will pay Tshs. 180,000/- ..... only to the second party [i.e the original buyer] and Tshs 132,000,000/- ...... only (50%) balance sale consideration as per agreement dated 2(1h April 2005 between PSRC and second party to PSRC 2. Tshs. 180,000,000 referred in clause 1 will be paid as follow: I. The first party will give a cheque of Tshs 100,000,000/ ... only on the date of execution of this MOU to the second party (cheque No. 012195). II. The first party will give a cheque of Tshs 80,000,000/- ···only on the 6(1h day from the date of execution of this MOU (cheque number-012196). 3.As soon as the formal handing over of the assets is conveyed from PSRC to the second party, the second party will handover the assets to the first party. 4. The first party will pay Tshs 132,500,000...... only directly to PSRC after six months from the date of execution of this MOU. All parties have agreed that the assets will be transferred in the name of the first party on completion of final payment to PSRC 5. On execution of MOU the second party will write a letter to PSRC to transfer the assets in the name of the first party after completion of the final payment to PSRC Reinforcing the evidence on how the plaintiff conformed to the Exhibit P.2 by effecting the requisite payments, PW.1 drew the attention of the 13 court to the indorsement in the Exhibit P.5 by one, Thobias Laiser, a Chief Legal Counsel for the PSRC, acknowledging the receipt of the banker's cheque No. 000298 for a sum of 132,500,000/- in response to a letter by the PSRC Ref. PSRC/1/13 dated 08/03/2007 to the original buyer. The said letter Ref. PSRC/1/13 dated 08/03/2007 was in this suit tendered by PW.1 and admitted as Exhibit P.6. The letter (i.e Exhibit P.6) had earlier required the remaining balance of the purchase price to be paid to the PSCR within six months, failure of which the sale agreement ( i.e Exhibit P.1) would have terminated automatically. As pleaded in the plaint, PW.1 told the court that once the payment of the purchase price was effected in full, the suit property was handed over to the plaintiff who is since 30/04/2007 in actual possession of the property. He also said that although the plaintiff has been in possession and occupation of the suit property since 30/4/2007, the same is still yet to be transferred in her own name. Accordingly, a deed of handover was tendered by PW.1 and admitted in evidence as Exhibit P.7. PW.1 had it that the Exhibit P.7 evidenced the handover of the suit property, which was effected on 30/4/2007 after the payment in full of the purchase price, and receipt of the purchase price by the PSRC. The handover deed was concluded between the government as represented by the PSRC and a finance manager of MNC, on one hand, and the Best Lint (T) Ltd/Decent Investments Ltd, on the other. Whilst in cross-examination, PW.l admitted that there was neither a letter from the PSRC evidencing receipt of the remaining balance of the purchase price nor a bank statement shown by the plaintiff evidencing 14 the payment, he was also clear that the suit property was nonetheless handed over to the plaintiff. PW.1 was also cross-examined on the allegation that the plaintiff was an affiliate of the original buyer; on the fact that Exhibit P.6, a letter addressed to the original buyer was dated 8/3/2007 after the execution of the memorandum of understanding (i.e Exhibit P.2); on the requirement of consent from the PSRC before . assigning or transferring the agreement (i.e Exhibit P.1) to a third party as provided under clause 4.8 of the agreement; the absence of consent from the PSRC before concluding the memorandum of understanding (Exhibit P.2); on the indorsement on the Exhibit P.5; and the absence of a demand letter on which a claim for damages could be found in respect of an established wrongful act complained of. In so far as the defence case was concerned, DW.1 testified on the existence of Exhibit P.1. He testified that the original buyer failed to pay the remaining balance of the purchase price. She was thus given an extension of seven days to pay the balance (Exhibit P.6), failure of which the letter would save as a notice for automatic termination of the agreement. According to DW.1, since the payment was not effected within the period of extension, there was no effective sale of the suit property as the contract automatically terminated pursuant to Exhibit P.6. He denied that the PSRC executed the deed of handover (Exhibit P.7). He reasoned that the alleged deed was firstly, not authorized by the Executive Chairman of the PSRC, secondly, it was signed by one Richard Mhana, a Documentalist, and above all, it was signed after the PSRC's letter dated 8/3/2007 (i.e Exhibit P.6) terminating the sale agreement (i.e Exhibit P.1). 15 With regard to Exhibit P.5, DW.1 also told the court that the letter and banker's cheque which constituted the said Exhibit were not received by the PSRC as the covering letter was not stamped and dated as was the practice of the PSRC. He testified further that the indorsement on the said letter was not of an employee of the PSRC. He denied that there were payments effected to PSRC as alleged by the indorsement and the banker's cheque because there were no payment vouchers shown, neither was the indorsement the practice of acknowledging payment at the then PSRC. He told the court that the suit property was leased to Mohamed Enterprises although the lease agreement was due to be terminated. He said that he did not know the plaintiff. In cross-examination, DW.1 told the court that he was 15 years old when the sale agreement (Exhibit P.1) was entered and was then still at school. Nonetheless, he was competent to testify as he read the official records of his employer on the matter at hand. He denied that one, Thobias Laizer, was an employee of the PSRC for he never saw his name in the data management system which kept names of those who worked with the then PSRC. He denied that he knows the said Thobias Laizer. Pressed further in cross-examination, DW.1 admitted that despite seeing the letter with such indorsement by Thobias Laizer, the defendant took no action in relation to the said Thobias Laizer and the indorsement. There were no plausible explanation by DW.1 in that the failure to take any action by the defendant was notwithstanding his assertion that the said Thobias Laizer was never employed by the then PSRC and the fact 16 that the indorsement involved banker's cheque for a sum of money required to be paid to the PSRC. DW.l admitted in further cross-examination that he was already employed by the defendant when the Exhibit P.5 was filed in this court in 2018 amongst documents to be relied upon by the plaintiff in court in relation to this suit. He maintained that the said Exhibit P.5 was never received to the PSRC as there is no record of such letter in their office. Again, there was no plausible explanation why there were no actions taken in relation to the indorsement by Mr Thobias Laizer who was never employed by the then PSRC. While also in cross-examination, DW.1 said that there was no record of the alleged cheque in the defendant's office, and that the Se//Pro system excel sheets, which kept records of all payees of the defendant, had no payment record of the plaintiff according to information he received from one, Kenneth Andendekisye who was never called as witness. He admitted that the written statement of defence of the defendant noted and did not dispute the contents of paragraph 8, 9, 10, and 11 relating the assets sale agreement (Exhibit P.1), how the plaintiff was invited to pay off the remaining balance, the memorandum of understanding (i.e Exhibit P.2) and the deed of handover (Exhibit P.7). Still in cross-examination, DW.1 told the court that he did not know who supplied the information which informed the written statement of defence. He further told the court that the defendant did not have any staff who worked with the PSRC, save for only one Secretary whose 17 name he could not remember and who was also not called as a witness. And further that he saw the deed of handover (i.e Exhibit P.7) when the suit was filed in the court. He claimed that those who signed the deed of handover on behalf of the PSRC were neither employees of the PSRC, nor did not they have the mandate to execute it. In connection with the foregoing testimony, DW.l admitted to have not taken trouble to ascertain whether those who executed the deed of hand over were employees of the then PSRC. But on reflection, DW.1 quickly changed·. his testimony and said that he checked and found that they were not employed by the then PSRC. There were, consequently, no · plausible explariations from DW.l as to actions taken against those individuals, who according to him were never employed by the then PSRC or mandated by the PSRC to execute the deed of handover (Exhibit P.7). DW.l disputed that the plaintiff was to date in occupation and possession of the suit property. He, however, said that he was aware that the property was leased to Mohammed Enterprises Ltd, but he was not sure whether the said company was affiliated to the plaintiff. He told the court that he knew that one of the clauses of the Exhibit P.1 was on termination of lease agreement relating to the suit property. He also testified in cross-examination that the said lease was terminated following the sale of the suit property, although he did not know how the termination was effected. He testified that there was no rent which was at the moment payable from the suit property. 18 In relation to Exhibit P.2, DW.1 said that he was aware of clause 4.8 of the sale agreement (Exhibit P.1) relating to assignment and transfer which required consent and the other assignment and transfer which did not require consent in so far it involved an affiliate and not a third party. In re-examination, DW.1 was content that it was not averred by the plaintiff in her plaint that the plaintiff was an affiliate of the original buyer. Applying the issues at hand to the above evidence whilst having due regard to the final submissions filed by the learned Advocate and learned State Attorney for the plaintiff and defendant respectively, it is clear to me that it was not disputed that there was a sale agreement (i.e Exhibit P.1) between the PSRC on behalf of the government and the original buyer (i.e Best Lint (T) Ltd) over the sale of the suit property. It was however disputed as to whether the agreement (i.e Exhibit P.2) was automatically terminated by the defendant (i.e PSRC) pursuant to Exhibit P.6 for non-payment of the remaining balance of the purchase price; and whether the plaintiff was an affiliate of the original buyer for the purposes of clause 14.8 of Exhibit P.1. The plaintiff's pleading which was only noted by the defendant without being specifically disputed was to the effect that the plaintiff, was invited by the original buyer to purchase the suit property; concluded a memorandum of understanding (Exhibit P.2) with the said original buyer; had a tripartite meeting with the original buyer and the defendant (i.e PSRC) in which the defendant approved Exhibit P.2; paid the purchase price by reimbursing the original buyer the instalments already paid and paying 19 ,. the remaining balance and requested the transfer of the suit property in the name of the plaintiff, as per the Exhibit P.3, Exhibit P.4, Exhibit P.5; and the suit property was ultimately handed over to the plaintiff by the defendant pursuant to Exhibit P.7. In so far as Exhibit P.5 is concerned, it is crucial to emphasis that its covering letter dated 28/3/2007 which preceded Exhibit P.7 is as argued by the counsel for the plaintiff in his final submissions self-explanatory and significant in the following terms: (i)lt makes reference to letter by PSRC dated gth Januaf'½ 2007 (ii)Jt is enclosed with cheque No. 000298 which is payment of 50% balance of the purchase price of Tshs 132/500/000/-✓ (iii}lt requests the defendant to transfer the assets composed in Annexure A of Exhibit P.1 to the plaintiff, and (iv}It contains acknowledgement by the defendant(through its officer Mr Thobias Laizer) of the following:(a) receipt of cheque No. 000298/ and (b)that payment of the sums above is in respect to PSRCs letter dated l!h March 2007 with ref PSRC/1/13. It is clear to me that the testimony of PW.l, in which all the above exhibits were tendered and admitted in evidence, was consistent with the pleadings of the plaintiff. There was a clear nexus between the pleadings of the plaintiff and the evidence adduced. On the contrary, the defendant's written statement of defence at best noted almost all facts which were pleaded in the plaint and which were at the very heart of the plaintiff's claim. Although paragraph 3 of the plaint in which the plaintiff's claim was pleaded was expressly disputed, the subsequent paragraphs of the written statement of defence did not expressly dispute or admit other 20 paragraphs of the plaint on which the claim in paragraph 3 of the plain rested other than noting them in principle. In the case of Dalforwarding (T) Limited vs National Insurance Corporation of Tanzania Limited and Presidential Parastatal Sector Reform Commission, Commercial Case No. 70 Of 2002, from which I drew inspiration, Massati J (as he then was) observed as follow with regard to averments that are noted by a defendant: Although "noted" is not an express admission it is not a denial either. In the law of pleadings, this is an evasive answer; and in terms of 0. VIII rule 5 of the Civil Procedure Code Act 1966, it is as good as an admission of the pleaded fact. (Page 12 of the typed Judgment). The defendant, in my view, having disputed the claim, was required to have set out the factual basis as to how she disputes the claim in the respective averments of the plaint. In so doing, the defendant would have set a solid basis for her evidence in defence. Since the defendant did not do so, there was nothing in the written statement of defence to ground and support the evidence of OW .1. I say so because the evidence was, as demonstrated herein below, based on matters which were never explicitly or impliedly pleaded. The evidence of DW.1 was that there was no valid contract (Exhibit P.1) which could be relied upon by the plaintiff as the same was already automatically terminated by the PSRC. According to the said witness, the said assets sale agreement was terminated by the defendant pursuant to Exhibit P.6, because of non-payment the balance of the purchase price within the extension period of seven days. There was, however, nothing in the written statement of defence to support and ground such evidence 21 I' since the same was not raised as a defence in the written statement of defence. While the plaint specifically pleaded that there was a tripartite meeting which involved the PSRC, the averment was not specifically disputed but noted by the defendant. This is notwithstanding that the pleading of the plaintiff as to the tripartite meeting expressly averred that the defendant participated in the meeting and approved the memorandum of understanding (Exhibit P.2) between the original buyer and the plaintiff and that it was, as a result of the approval that the plaintiff went ahead to perform the agreement envisaged in the said memorandum of understanding. I am of a decided opinion that the evidence about, firstly, the memorandum of understanding (Exhibit P.2) assigning the agreement to the plaintiff from the original buyer; secondly, the payment of the purchase price by the plaintiff (Exhibits P.3 and P.5); and thirdly, the deed of handover (Exhibit P.7) between the defendant and the original buyer/plaintiff, discharged the burden of the plaintiff of proving that the tripartite meeting, which was nonetheless not disputed, was indeed held, and that the termination of the contract was not effectuated and if anything it was vacated as argued by the counsel for the plaintiff in his final written submission. Of significance to bear in mind is that Exhibit P.7 named the original buyer and the plaintiff, and was duly executed by officers of the then PSRC. I am of a settled view that there was nothing in the evidence of 22 . DW .1 which is consistent with the written statement of defence to convince the court that those officers had no mandate of executing the deed. Needless to say, the argument that such deeds should have been signed by the Executive Chairman of the PSRC lacks merits in so far as even the Exhibit P.7 was just executed by one, Dr H.E. Kavishe (coordinator) and M. Mahaya (Senior Legal Counsel) as was Exhibit P.6 by one, Joseph Mapunda. It was, seemingly, in the same logic and manner that the Exhibit P.7 was executed by one, Richard Mahana (Documentalist), and one, E.S. Kahema, (Meneja wa Fedha NMC). In view of the evidence revisited and analysed herein above, it was not convincingly proved within a balance of probability that the latter were strangers to, and had nothing to do with, the PSRC. On the other hand, the plaintiff's evidence whose pleadings were evasively answered discharged the plaintiff's burden within a balance of probability. The testimony of DW.1 that the allegation that the plaintiff is an affiliate of the original buyer was not specifically raised by the plaintiff in her plaint lacks merit either. This is because of the evidence of, firstly, the receipt of the balance of the purchase price by the PSRC (Exhibit P.5), the undisputed tripartite meeting and the deed of handover (Exhibit P.7). I am of the view that the fact that the plaintiff pleaded the assets sale agreement, the invitation to purchase the property from the defendant, the memorandum of understand reached, the tripartite meeting held and the deed of handover entered correspond well with and fall within the purview of the evidence of PW .1 that the plaintiff was an affiliate of the original buyer, and therefore covered by the import of 23 clause 14.8 of the assets sale agreement (Exhibit P.1) which did not require written consent of the PSRC. In the above respect, I have had regard to the fact that the written statement of defence had no specific response disputing the pleading of the plaintiff about the invitation of the plaintiff for assignment of the suit property other than noting that the plaintiff was so invited and entered the relevant agreement (Exhibit P.2) which led to the deed of handover (Exhibit P.7). There was, glaringly, nothing in the written statement of defence suggesting that it was the defence of the defendant that the invitation was in consistent with the agreement (Exhibit P.1) as it required written consent from the then PSRC. I also took note that there were no steps taken by the defendant in respect of and against those who were alleged by DW.1 to have signed the deed of handover (Exhibit P.7) and indorsed and collected the cheque (Exhibit P.5) although they were allegedly not employed or authorized by the then PSRC. Accordingly, I find against the testimony , that the relevant deed was not valid because it was not signed by the authorized officers of the PSRC. In the light of the above findings, I would answer the first and second issue in the affirmative. However, as to the third issue, I would decline to find in the favour of the plaintiff. The plaintiff is admittedly in the possession and occupation of the suit property since 30/4/2007 and without payments of rents. There were no steps shown to have been taken in relation to the complaint of the failure of the defendant to 24 • transfer the suit property in her name before the suit was instituted in this court in 2012. The agreement (Exhibit P.1) provided room for amicable settlement before a dispute arising from the agreement was preferred to the court. It was not shown how such avenue was utilized to mitigate if at all the damages allegedly suffered. In the end, judgment is entered for the plaintiff against the defendant. Consequently, the plaintiff is declared the lawful purchaser of the suit property and the defendant is accordingly ordered to release, handover, and execute transfer documents of the suit property in favour of the . plaintiff. The plaintiff is also awarded costs. Ordered accordingly. Dated at Dar es Salaam this 3rd day of November 2020 B. S. Masoud Judge Court Judgment delivered this 3rd day of November, 2020 in the presence of Mr Benson Hossea, State Attorney for the Defendant, and Mr Fredirick Masawe, Advocate, for the Plaintiff assisted by Mrs Marry Lamwai, Advocate. --------~-----------· ~S~ M_asoud Judge 25