NA TZCA Dar es Salaam3 1

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AT DAR ES SALAAM ~ '-'-4 ~ ~ - Iv£ ~ e..o-. l4 L'j L (CORAM: OMAR, J.A.• , MNZAVAS, J.A., And LUBUVA, J . A . ) ~ , f ~ He_ ., ~ ~ A.....«' 1s--r.__ ~ CIVIL APPEAL NO. 19 OF 1995 ~~.,~ l<h;L c.r_ ~ ~ ..,,_µ ~

BETWEEN . , \ ~ h ~-N),.._,/ ~ v~ ~ GEORGE SHJi.. MBWE • • • • • • • • • • !.PPELL1''NT ,. \ ~I~ #~ ~~4 - .._. ~ ~ , AND ~-v,: .. ' .. I .~ ~ , · ~ -f.·vll_. NATIONAL PRINTING COMPANY LTD ••• RESPONDENT - r--· ' ~ ~ re¼ i1-,r,,:._; ~ 'P~-v - (Appeal from Judgement of the High ttt' 1J:I-A......J "if.. Ke... V11-J,L.v _ Court of Tanzania at Dar es Salaam) L A __ • , '1)--.. . . ~ 'V~ J _...c-.,.. (Mkude, J.) ~ Jo~K... r?-~ • I ~cj.~ ~ ~ - - , ,-,.,_,('_ ~ d.ated the 9th day of March, 1994 ~ ~ f-(,_ l;lrrt.. ~ ' "'"'yut°-, ~.....,/J ~ in CJLc,.,:_ f.,r-v<!..<.P....J 7r--.~- Civil S~~se No. 123 of 1990 ~ P - . > - f ( , c _ / ~ ft.e_ ( ~ ~ ~ ~ c.L....:.._.j ~ ~cl--z. ~,._,,_ J-UDGEMENT OF THE COURT ~"- L... LJ. ~ Ke. N~c.. ~~ J..<.-'y-e ~ a;J. ¼...J_...,, /1.,.,. ~ ~ ~ ~ V LUBUVA, J.A.: ~ 'P-----. J'G,._, ~ .L.. ~ Je.:_ ~ . --, This appeal arises from the decision of the High Court (Mkude, J.) in Civil Case No. 123 of 1990. In that case the· plaintiff, George Shambwe (hereinafter called the appellant) had ~ instituted a suit against the defendant, the National Printing Company Limited (hereinafter called the respondent) seeking among other reliefs, a declaratory judgment that the sale agreement between the appellant and the respondent for the purchase of the house was in operative and an order for vacant possession of the suit premises by the respondent. ~ . The background

to the case is simple and the facts are .-.. also not disputed. The appellant owned a house on Plot No. 86 Wakulima Road, Kinondoni District within the City of Dar es Salaamo The house was mortgaged to the National Bank of Commerce as security for the loan which the appellant had raised from the bank. For the -~-./2 2 initial period up to 30.7.1987 the respondent/defendant had rented the house from the appellant/plaintiff. While still in occupation of the house -under rental arrangement, the respondent expressed his interest to purchase the house from the owner, thP appellaPt. Negotiations started and it w2s agreed that the purchase price for the house would be shillings 850 1 000/=. It was further agreed that the respondent would pay part of the purchase price to the National Bank of Commerce in order to redeem the mortgage and the balance of shillings 143,000/= to be paid to the appellant through his lawyers M/S Kijugo and Company, Advocates, who, it was intended would settle the appellant• s other financial commitments. On the other hand, for the purpose / of effecting the sale transaction of the house, the defendant company had sought the services of the Tanzania Legal Corporation. It: is· apparent however, that though the respondent company had as agreed, paid certain sums of money towards the redemption of the appellant's mortgage, the mortgage still remained unredeemed

at shillings 483,631/= by-December, 1989. In these circumstances, the appellant decided to recieem the mortgage directly. With the- assistance of his wife, the appellant paid to the National Bank of Commerce Shs. 455,000/=. The respondent was notified by letter from the 3ppellant that wh::itever amcunt of money the respondent had paid to the bank would be treated as rent fer the period that the respondent had occupied the house. This, it appears sparked off controversy between the appellont and the respondent over the house in dispute. The appellant was pressing for the respondent to vacatP. the house in which he wanted to effect repair works. On the other hand, the respondent was refusing to vacate the house for 3 i which he was demanding the plaintiff to effect the transfer in terms of the sale agreement. Before the High Court at Dar es Salaami as indicated, the appellant/plai~tiff instituted a suit against the respond~nt company. The learned trial judge dismissed the suit with costs to the defendant. Aggrieved by that decision~ the appellant has appealed to this Court. Mr. Sem!alawe, 1JaPned adv6eate f~• the appellant has filed and argued the following two grounds of appeal:- 1~ That the trial Honourable Judge erred in law in holding that the appellant was in breach of the sale agreement, which agreement was not executed, and consented to by the Commissioner for Lands.

2. That the Honourable Judge erred in law in not granting reliefs sought by the appellant because he found it would be inequitable to grant reliefs as the appellant was in breac~ of the sale agre~ment. Arguing on ground one before us, Mr$ Semgalawe, learned Counsel was brief but pertinent. He strongly critisized the learned trial judge in holding that the appellant was in breach of the sale agreement. Learned Counsel took the view.that the decision of the matter depended on the~law governing the disposition of a right of occupancy as provided in the Land Regulations, 1948. Repeating the appellant's argument before the High Court, learned Counsel submitted that in terms of Regulation 3(1) of the Land Regulations, 1948, a disposition of a Right of Occupancy is •••• /4 ' 5 National Bank of Commerce satisfied as the respondent effected the payment for the s.=.ile price to the bank (NBC) as agreed. It was Mr. Maira's further submission that the appellant should not be allowed to benefit from his own conduct which resulted in the breach of the sale agreement at a time when the respondent had complied with the terms of the agreement. In. conclusion, Mr. Maira argued that by refusing to sign the sale agreement, the approval of the Commissioner for Lands could .not be obtained as there was no executed legal accuments upon which such appro~al could be sought. We have given anxious and

close consideration to these submissions. It is our considered view that the decision of this C8Se turns around a narrow issueo That is, whether there was an agreement which was breached by the appellant/plaintiffo With respect, we c1gree with ·Maira, learned Counsel for the respondent that in order to determine the issue concerning the agreement, ' it is necess2ry to take full account of the historical background and circumstances of the case. As already indicated, it is common ground that the appellant and the respondent had come to an agreement to have the appellant's house purchased by the respondent. That it was agreed that out of the purchase price of shillings 850,000/= part of it was to be paid to the National Bank of I Commerce in order to redeem the appellant's mortgage and the balance was to be paid to the appellant through his lawyer lfl/S I Kijugo and Company advocatese The issue as raised by Mr. Semgalawe, learned Counsel for the appellant is that there was no binding agreement because the approval of the Commissioner for Lands was not· obtained c1fter the ini tirJ agreement between the "'ppellant 6 and the responrl.2ntft Mr. Maira, on the other hand ardently submitted that thEi/ nppell,nt was in breach of the sale agreement. In or0.er to have a clear picture of the historical background to the case we deem it approprinte to closely examine the following document

on record. First, there is the letter of 11.1101986 which was addressed to M/S Kijugo and Company, Advocates for the appellant by the Te.nzania Legal Corpor~tion, on behalf of the respondent. With that letter, three copiP.~ of the sale agreement were enclosed for execution by the appellant. The appellant was required to return the copies of the sale agreement nfter signing for further \ processing and Cnpital Gains Tax assessment. This, as indicated earlier,. the appellant did not comply. There is also the letter of 28.701988 addressed to the Chief Corporation counsel by the App<::!llant' s advocates M/S Kijugo ;::md Company, Advocates. In that letter it is clearly stated that there w,s an agreement between the appellant and the respondent regarding the sale cf the house and the conveyanciPg process that was being handled by the Tanzania Legal Corporation. It is also inoic~ted in the letter th~t any palance of the purchase price if any, Wf'S to be p.::iid to the advocate in oroer to sRttle the vendor's (appellant) other liabilities. Then there is the letter of 280 2.1990 exhibit D6 written tc, the NBC by M/S Kijugo and Company, advOcfltes for the respondent in connection with the sale of the house and the outstanding balance on the mortgege. In it, it is ~hewn that the respondent had as at·S.9.1985 paid Shs. 540,000/= fer the mortgaged amount of ·, Shs. 593,407/50.

Specifically, the respondent's advocates request for a stntement of acccunt on the mortgeige so that "we may pay the balance of the amount owing in~luding interest in orrler that 0 0 ,0 0 /7 7 the mortgage could be discharged in our favour". On these facts, which are not disputed, it seems clear to us that an agreement for the sale of the house had been reached between the appellant and the respQndent. Following on the agreement, the various correspo- ndences including the letters referred above ensued. They all refer to an existirtg agreement which the parties i.e. the appellant and the respondent had entered. On the basis of this evidence, we are satisfied that the learned trial judge was entitled to the conclusion that there was a concluded agreement for sale between the appellant antl the j respondent. The evidence was duly considered. With respect, we are unable to accept Mro Semgalawe 1 s argument that there was no binding agreement becau~e the Commissioner for Lands had not sanctioned the sale transaction. We agree with Mr. Semgalawe's statement that under the Lands Regulations, 1948, the sale agreement was inoperative, as the correct position of the law on this point. Needless to labour more on it, suffice it to say that the cases I cited by the appellant at the hearing of this appeal and the trial Court, have among other points underscored tl").is position of the

law. That list of authorities includes the decision of this Court in J.M. Kasuka V Geo~ljul:!}_ba, Civil AJ2Peal No. 35 of 1290 (Unreported t and Millen Richard V Ayub Hoza, .f.ivil Appeal No. 28 of_).992, (Unreported). However, though that is the position of the law on this point,.· we wish to make it clear that Mr. Semgalawe, learned Counsel is not, .J . with respect correct in his assertion that because the approval of the C~mmissioner for Lands was not forthcoming there was therefore l •••• /8 8 no agreement of sale between the appellant and the respondent. This is so because, in the instant case though the agreement for sale of the house was inoperative as it was not approved by the Commissioner for Lands, it did not also mean that there was no binding agreement as borne out by the evidence. In our understanding an agreement for a disposition of a right .of occupancy is inoperative in the sense that property _does not pass unless and until the. approval of the Commissioner for Lands is obtainedo . In this sense, being inoperative, and as we stated in the case o f ~ - Kasuka V 'George Humba (supra), where a dispositi9rL..!~O£erative by virtue ~~l~~i~~ 3 (1) i t is void ab_init~2~ and, tberefore all the terms of the agreement to the ctise~~i tion a.r::,~_~9-id and therefore uneforceable. . In the instant case, the situation· is distinguishable. The learned trial judge

correctly in our view took the view that the appellant, the vendor was in breach of the agreement even thrugh the approval of the Commissioner had not been obtained. In his judgement, the learned judge stated:- "The position as it is now is that it is the ver.dor who is guilty of breach of contract by refusing to sign the sale agreement. The reason he has given for not •signing the agreement is a lame excuse which he has.concocted against his agreement with the purchaser/ defendant. By refusing to sign the agreement and return it to M/S Tanzania Legal Corpbra.tion for further pr("'lcessing to its logical conclusion he has brought everything· to a stnnd still. It would be letting the plaintiff benefit from his own breach to give (L) (sic) Q00•/9 9 him the remectie s he is seeking •••• " From this, it is crystal clear that in this case, unlike the situation obtaining in the case of J.M. Kasuka V George Humba (supra) and Fazal Kassam (Mills) Ltd. (1960) EA _1042 an agreement ror sale had been reached prior to the stage when the Com~issioner's approval was to be sought. As found by the learned judge, it was at the stage when the appellant was required to execute the sale agreement that_ he rcfusi:!d to sign the document. With his refusal to sign, nothing further could be done in executing the sale \. agreement. As a result, the approval of the Commissioner could not be ·obtainedo

For that reason, we agree with the learned trial judge that the, appellant was in breach of the· sale agreement reached between him ar.d the respondent, the buyer. Having breached the agre8ment in these circumstances, the appellant cannot validly resort to Regulation 3 (1) of the Lands Regulations, 1948 in defence. The Commissioner's approval is sought after all the initial formalities including the signing of the sale agreement are completed. Due to the appellant's conduct, execution formalities could not be accomplished and the Commissioner's approval could not be obtained. It is our considered view that the learned judge 1 s finding that the appellant had breach_ed ·the agreement was justified. Therefore, ground one fails. ' Before dealing with the next ground, we wish'to make brief mention of an aspect which was raised by Mr. Maira, learned Counsel for the respondent. This he did wh'en he was addressing on grour..d oneo As alread_y pointed out, Mr. Maira had submitted that the appellant's appeal should not be entertained because the •••• /10 •• 10 appellant did not come to seek justice with clean hancts. He referred to page 58 of the proceedings in which the appellant had admitted to have told lies in Court. On rec6rd, the appellant had stated: "I wrote a personal letter to Mro Kusaga, the NPC GM on 22/4/85 in which I said I had signed the agreement. By this time I had not

signed the agreement so I lied to Mr. Kusaga because I was in a hurry." During the hearing of the appeal, at the prompting of the Court, Mro Maira, .learned Counsel correctly in our view, did not ,press any further on the issue of fraud. This is because, it is common knowledge that as the issue 9f fraud was not raised in the pleadings, tha,t issu'e was never before the High Court.. With respect, we find n"' basis upon which .this Court as an appellate Court could entertain at this stage the issue of fraud. We come to the last ground of appeal i.e. ground two. This ground is closely linked with ground one~ Under this ground, the appellant seeks to fault- the trial judge for not granting the reliefs sought. Arguing this ground, Mr. Semgalawe briefly reiterated his arguments in support of ground one. Essentially, it was his ·submission that there was. no lE::gally binding- agreement which could be enforced against the ap9ellant. He urged that in the absence of an enforceable agree~ent the trial judge should have granted the reliefs sought by the app~ll~nt. Having taken the view that the appellant was in breach of the sale agreement, we think it is unnecessary to go any further into thi~ mattero The reliefs sought Ooo ■ /11