20170815 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM LAND CASE NO. 75 OF 2013 EVOD EMMANUEL SHAYO ............................... PLAINTIFF

VERSUS '" .HASSAN I MOHAMED JUMA ..................... .... DEFENDANT

JUDGMENT MURUKE, J. ~ ~. Plaintiff claims amongst others, for refund of purchase price of shs. 50,000,000/= which he had paid to the defendant to J purchase five acres of unregistered land located at Kinzundi, Gaba Ward in Kinondoni District, That by a contract dated the 22 nd day of August 2012 the plaintiff agreed to purchase from .the Defendant and the Defendant agreed to sell to the plaintiff an unregistered piece of land measuring five acres at Kinzudi, Gaba Ward in Kinondoni District for T.shs. 105,000,000.00. That the said contract was signed by both parties on the said date and the plaintiff· paid the defendant a deposit of T.shs .. 40,000,000.oo and deposited another sum of T.shs. 1 10,000,000.00 on 25 th August 2012, the payment of which is acknowledged by the defendant in the contract. The plaintiff alleges that on 28/8/2013 while clearing the suit land he was informed by the neighbours that the area he bought did not belong to the defendant but it belonged to one Charles Senkondo. Plaintiff tried to locate defendant but failed. Upon filing to locate the defendant the plaintiff reported the matter to the police who later charged the defendant and his accomplices with the offence of obtaining money by false pretense. Apart from the Criminal case pending, plaintiff filed present suit to recover party of purchase price of 50 million T.sh. Plaintiff testified as PWl and

tendered sale contract admitted as exhibit Pl. Plaintiff also brought Jafari Ahmed Kunambi who witnessed exhibit Pl as village executive officer of Kinzudi, Goba ward. PW2 testified that he witnessed the contract between the plaintiff and defendant whom he both identified them in court. PW2 identified exhibit Pl sale agreement between plaintiff and defendant because contained his signature and stamp of the office. According to clause 2 of the Sale Agreement it was the agreement of the parties that should any qispute arise concerning 2 the lawful ownership of the suit land by the defendant, all the monies paid as purchase price would be immediately refundable within twenty days from the date of the dispute. This clause in the Sale Agreement has no ambiguity whatsoever but for unknown reasons the defendant has to date neglected or failed to refund the plaintiff the monies paid as purchase price. The fact that the defendant has filed criminal case against Charles Senkondo as testified by DWl Hassan Mohamed Juma, cannot - discharge him from his contractual obligation to refund the purchase price to the plaintiff. Contractual obligations are regarded as absolute and parties are absolutey bond over to perform obligations thereunder, in the old case of Paradine Vs Jane (1647) Aleyne 26 and Style 27 it was held. "When the party by his own contract creates a duty or a charge upon

himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provide against by his contract. And therefore if the lessee covenants to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it." 3 Lord Denning M. R. in Hedley Byrne & Co. Ltd Vs Heller Partners Ltd [1964] A.C. 465 observed that; "if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another be if advice, information or opinion with the intention of inducing him to enter into a contract with him, he is under a duty to sue reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable. If he negligently give unsound advice or misleading ,_i information or expresses an erroneous opinion and thereby induces the other side to enter into a contract with him, he is liable in damages" (underlined is our emphasis). It was stated by the plaintiff in his testimony that the defendant entered into a contract with the plaintiff to purchase 5 acre piece of shamba. In terms of clause 2 of the agreement exhibit Pl, defendant undertook to repay such sums of money to the plaintiff in case of any dispute. The defendant guaranteed that he could repay the plaintiff case of any problem after the sale. The fact that the

amount has not been paid to date, defendant cannot 4 evade liability. Thus, plaintiff in titled to principal sum and damages. As was stated by the Court of Appeal of Tanzania (in A. S. Sajani V CRDB (1991) TLR 44, the cardinal principle governing the award of damages is:- "Restitution in integrum, the law endeavors so far money can do it to place the injured person in the same situation as if the contract had been performed ... " Damages for breach of contract are designed to give the plaintiff as nearby as possible what he would have received, had the defendant performed his obligation. In other words, the purpose of damages in contract is to award the plaintiff the value of his defeated contractual expectation, and thus to compensate him not only for the expenses cause by the breach, but also-for gains prevented by it. As above proved the plaintiff has suffered loss resulted from failing to recover his money advances to the defendant, he is entitled to judgment in his favour. Therefore judgment entered for the plaintiff as follows: (i) Contract dated 22 nd day of August 2012 between the plaintiff and defendant is here by rescinded. 5 (ii) Defendant to pay plaintiff 50.000.000 T.sh. party of purchase price of shamba. (iii) Interest of 50,000,000 T.shs. at the rate of 20% per annum from 22 nd August 2012 to this date of judgment. (iv) Defendant to pay 7% interest rate on item (ii) and . (iii) from date of judgment to date of full payment. (v) General damages of 5,000,000T.sh. be paid by defendant. (vi) Costs of this suit.

JUDGE 15/08/2017 Judgment delivered in the presence of plaintiff and defendant both in persons. Right of appeal explained. Z. G. Muruke

JUDGE 15/08/2017 6