hader m gulamali vs ahmed sheiban abdallah 2017 tzhc 2219 9 february 2017

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM f ORIGINAL JURISDICTIONS LAND CASE NO. 63 OF 2014 HADER M. GULAMALI...................................................... PLAINTIFF VERSUS AHMED SHEIBAN ABDALLAH........................................DEFENDANT Date of Last Order: 12/10/2016 Date of Judgment: 09/02/2017 JUDGMENT FELESHL J. The plaintiff sues the defendant for declaration that the sale agreement in Plot No. 1 Kongowe Area, Kibaha Township in Coast Region with Certificate of Title No. 44129 between the plaintiff and the defendant is valid, lawful, binding to the parties and enforceable. He sought for declaration that the plaintiff is the lawful owner of the suit property by virtue of the sale agreement between the parties, declaration that the defendant's decision and or attempts to rescind and or terminate the said sale agreement are wrongful, invalid, unlawful and void. Besides, the plaintiff seeks an order compelling the defendant to accept payment of the purchase price as agreed in the sale agreement and an order for set off of all the monies repaid to the tenant by the plaintiff on behalf of the defendant and any payment made under the tripartite agreement. Also, for an order of permanent injunction restraining the defendant from terminating or rescinding the agreement or disposing of Page 1 of 25 • the suit property to any person, specific performance of the agreement, payment of general and punitive damages and costs of the suit. In his Written Statement of Defence, the defendant basically, avers that the referred sale agreement was tainted with misrepresentation, deceit and ill motive thus invalid, unlawful, non binding and unenforceable adding that, any act by the defendant to rescind and or terminate the said sale agreement is valid and unjustifiable. The defendant sought for declaration that the sale agreement is voidable at the defendant's option. Moreover, he also filed a Counter Claim for declaration that title has not passed from the defendant to the plaintiff and that the purported transfer was unlawful tainted with fraud, an incidental order to cancel the purported transfer, compensation by way of set-off from the initial purchase price, an eviction order, general damages and costs of the suit. Eleven issues were framed and shared to wit:- 1. Whether the plaintiff and defendant had entered into a sale agreement in respect of Plot No. 1, Kongowe area at Kibaha Township. 2. If (1) is yes, whether the executed sale agreement is binding between the parties. 3. Whether the plaintiff and defendant had, apart from the signed sale agreement executed all other statutory land transfer documents. 4. Whether the defendant has received part payment of the purchase of land proceeds as per the sale agreement. 5. Whether the defendant has refused/rescinded receiving the remaining purchase price contrary to the sale agreement. 6. Whether the defendant had signed a new tenancy agreement with third party which agreement ends in the year 2016 contrary to the sale agreement? Page 2 of 25 7. Whether the defendant handed to the plaintiff the original title Deed No. 44129 for the purposes of effecting transfer of the Certificate of Title from the defendant's name to the plaintiff's name. 8. Whether the defendant's decision to terminate the sale agreement is lawful. 9. Whether the plaintiff took the statutory land transfer documents from the custodian contrary to the sale agreement. 10. Whether the plaintiff stands to suffer irreparable loss as claimed. 11. What reliefs are the parties entitled to? To establish his claims, the plaintiff paraded three (3) witnesses, that is, the plaintiff as PW1, PW2 Ahmed Salim Bahashwani and PW3 Nilesh Hash. On his part, the defendant also had three (3) witnesses, that is, the defendant as DW1, DW2 Emmanuel Mugambila Augustino and DW3 Kassim Mbaga Nyangarika. The plaintiff engaged services of KMVB Law Chambers whereas the defendant was represented by Alpha & Associates Attorneys. In his evidence, PW1 testified that, Ahmed Sheiban Abdallah (DW1) sold to him Plot No. 1, Kongowe, Kibaha in Coast Region which had a petrol station whereas both the plot and petrol station were subjects of the sale agreement concluded on 16/10/2012 at a consideration of Tshs. 400,000,000/=. They engaged an advocate who prepared a sale agreement whereas after it was read over to them, the same was signed in presence of the said advocate. They also prepared transfer forms and notification for disposal, that is, land forms number 29, 30 and 35. A sale agreement between Ahmed Sheiban Abdallah and Hader M. Gulamali dated 16/10/2012 was admitted and marked Exhibit "PI". During the sale agreement, PW1 was told that Ahmed Sheiban Abdallah was married and that the said wife consented and was present on Page 3 of 25 - the date of sale. Consent to dispose the matrimonial property signed by one Mariam Ahmed Sheiban Abdallah was admitted and marked Exhibit "P3". It was agreed in the sale agreement for the said Tshs. 400,000,000/= to be paid in two installments drawn in various cheques. The 1st, 2nd, 3rd and 4th cheques valued at Tshs. 25,000,000/= each were paid through NBC on 16/10/2012, 30/11/2012, 31/12/2012 and 30/01/2013 respectively. The last cheque valued Tshs. 100,000,000/= in the 1st installment was paid on 30/05/2013 but not paid to the vendor. PW1 did not pay the last installment because of allegations of ongoing construction at the disputed plot. Besides, it was because the said Ahmed Sheiban Abdallah had received rental from January to December, 2015. Thereafter, the defendant received rent from January to December, 2016 contrary to the sale agreement. Additionally, the 2nd installment of Tshs. 200,000,000/= was agreed to have been paid by 31/12/2014. PW1 saw the payment vouchers made by Ahmed Salim Bahashwani (PW2) to Ahmed Sheiban Abdallah (DW1). PW1 consulted a lawyer who held the cheque valued at Tshs. 100,000,000/=. Ahmed Sheiban Abdallah conceded to have received the 2015 and 2016 rentals from Ahmed Salim Bahashwani and to have received Tshs. 100,000,000/= for sale of the plot in question. Thereafter, a tripartite agreement was executed by the defendant (DW1), plaintiff (PW1) and Ahmed Salim Bahashwani (PW2) which was admitted as Exhibit "P5" whereas PW1 had to pay Tshs. 120,000,000/= to the tenant (PW2) for and on behalf of the defendant (DW1) being part of Page 4 of 25 -PW2's paid rent the defendant that the defendant had to refund for PW1 to take over the petrol station business. Moreover, upon guarantee of Nilesh, on 04/09/2013, the tenant was paid Tshs. 40,000,000/= with the remaining balance of Tshs. 80,000,000/= payable later. On 04/10/2013, PW1 paid Tshs. 40,000,000/= with the remaining balance of Tshs. 40,000,000/= paid in November, 2014 as evidenced by Exhibit "P6". With the tripartite agreement, PW1 demanded the title deed whereas the vendor Ahmed Salim Bahashwani did not object. The title deed was handed over to him on 04/09/2013. Thereafter, PW1 proceeded with the transfer which was lastly done after payment of various transfer fees. The tax fees paid by PW1 were agreed by the vendor to be paid by PW1 on agreement for the same to be deducted from the purchase price. The defendant however did not honour his promise. Furthermore, in May, 2014, parties were summoned by the Coast Regional Commissioner whereas it was resolved that the defendant be paid the outstanding Tshs. 300,000,000/= within a week. After a week, PW1 issued a Tshs. 100,000,000/= cheque the remaining payable within 30 days but the defendant denied receive it. Instead, the defendant demanded payment of Tshs. 900,000,000/= in a single installment. He said though the market value of the subject matter as per Exhibit "P8" regarding value of the suit property prepared by the Government was Tshs. 347,000,000/= he had consented to the agreed payable amount thus deposing that it was not him who breach the contract, but it was the Page 5 of 25 'defendant adding that, he did not know who had carried construction on the disputed plot. Another testimony was by PW2 who testified that, the defendant was his landlord from January 2005 to December, 2015 in accordance with Exhibit " P ll" . PW2 knew the plaintiff after a dispute arose between him and the defendant over sale of the disputed plot to which he was a tenant as told by one Nilesh, his co partner in business. After signing the sale agreement, the landlord asked PW2 for two years rent evidenced by petty cash vouchers dated 01/03/2013 and 13/02/2013 collectively marked Exhibit "P13" totaling at Tshs.24,000,000/= covering the period from 1st January, 2015 to December,2016 where he paid Tshs.l2,000,000/= per year. Lastly, a tripartite agreement was entered into, that is, Exhibit "P6". PW2 was paid Tshs. 120,000,000/= by the plaintiff (PW1) and handed over the title deed to the plaintiff. Another witness was PW3 who testified that, he was told by PW1 that the defendant wanted to sell him his Petrol Station where he (PW3) also told him (the plaintiff) that the defendant had equally offered to sell to him the said petrol station but he could not afford his terms. That he further briefed PW1 of the lease agreement existed between the defendant and Ahmed Salim Bahashwani (PW2) on the plot that would come to an end on 31st December, 2014. Besides, PW3 said that he learnt from Ahmed Salim Bahashwani (PW2) that the defendant had executed other two years lease agreements with him for 31st December, 2014 to 31st December, 2016. It was his Page 6 of 25 * further testimony that he was the one who prompted the three to meet for the tripartite agreement where he served as a guarantor to the plaintiff when paying Tshs. 120,000,000/= to the Ahmed Salim Bahashwani (PW2) in three installments for and on behalf of the defendant. As such, he said, he had no grudges with any of the three to the tripartite agreement. In defence, DW1 testified that, he knew the plaintiff from August, 2012 when he met him at his petrol station in Kongowe, Kibaha. After a detailed discussion with the plaintiff offered to sell him his petrol station. On 30/10/2012 whilst at the office of Mr. Ngalo, advocate, the two (PW1&DW1) executed Exhibit "PI" valued at Tshs. 400,000,000/= payable in two installments involving four cheques valued at Tshs. 25,000,000/= payable in October, November & December, 2012 with one cheque valued at Tshs. 100,000,000/= payable on 30/05/2013 for the first installment. The remaining Tshs. 200,000,000/= were agreed payable on 30/12/2014 upon expiry of his lease agreement with Nilesh Surchack (PW3) for the 2nd installment. DW1 also signed other documents at Mr. Ngalo's office including Transfer Forms and Spouse's Consent whereas all those documents remained under custody of Mr. Ngalo advocate. He added that, only Tshs. 100,000,000/= out of the agreed Tshs. 400,000,000/= was paid to him. Moreover, Nilesh (PW3) refunded DW1 a total of Tshs. 21,000,000/=. DW1 testified that he did not give Ahmed Salim Bahashwani (PW2) mandate to sub lease the petrol station in terms of the addendum (Exhibit "P12"). DW1 only entered into the agreement marked Exhibit " P l l " and Page 7 of 25 ’ the sale agreement, that is, Exhibit "PI". DW1 denied to have executed Exhibit "P5". Additionally, DW1 testified that, the transfer of title is based on forged documents. As aforesaid, the documents DW1 signed before Michael Ngalo advocate included a sale agreement, land transfer forms and spouse's consent which all remained in custody of Mr. Michael Ngalo, advocate. Besides, DW1 conceded to have written Exhibit "P10" which is a letter written to the then Coast Regional Commissioner on 04/06/2015. DW1 signed the approval of disposition, that is, Exhibit "P2" whereas he denied being a party in the tripartite agreement, that is, Exhibit "P5". Another defence witness was DW2 testified that, he knows both Ahmed Salim Bahashwani (PW2) and Ahmed Sheiban Abdallah (DW1). DW2 did not know one Ally Mrisho Said. He added that, the office stamp and address in Exhibit "P5" are of his office but the signatures affixed thereon as Commissioner for Oaths are not his. He said, he is the head of his office assisted by Said Mteule, advocate and Beatha Kamara, an intern. DW2 did not know PW1 and PW2. DW2 did not also know who signed Exhibit "P5" for the Commissioner for Oaths. In May, 2015, DW2 lost his stamp, computer and several documents all valued at Tshs. 5,000,000/= an incident which was reported at Mabatini - Kijitonyama Police Station. The last witness was DW3. He testified that, he once attended the defendant while practicing as an advocate. The defendant had an agreement with PW2 whereas Exhibit " P l l " was signed before him Page 8 of 25 • between DW1 and PW2. Besides, DW3 did not witness any other execution of document whereas he did not know about the addendum (Exhibit "P12"). In final submission, the defendant's counsel submitted for the 1st issue that, it is undisputed that the defendant and the Plaintiff entered into a sale agreement in respect of Plot No. 1, Kongowe area within Kibaha Township, Coast region. Regarding the 2nd issue, he submitted that, the executed sale agreement is not binding the parties because Exhibit "P I" in clause 3 prescribes the modes of payment which were not adhered to. On the other hand, the defendant being the vendor, performed all his undertakings including executing all statutory transfer forms on the date of executing the sale agreement, that is: Land Form No. 29 (Notification of Disposition), Land Form No. 30 (Application for Approval of Disposition), Land Form No. 35 (Transfer of a Right of Occupancy), Land Form No. 38 (Contract of a Transfer of a Right of Occupancy) and the Spouse's Consent. Pursuant to Clause 6.3 (a) of Exhibit "PI", the vendor was obliged to retrieve Certificate of Title from PW2 and hand it over to Ngalo & Company Advocates for safe custody with release to the purchaser upon completion of payment of the first installment and on condition for the purchaser issuing to the vendor postdated cheque(s) worth Tshs. 200,000,000/= kept by Ngalo & Company Advocates for release to the vendor on the due dates as warranted by the purchaser under clause 6.4.1 (c) of Exhibit "PI". The defendant's counsel further submitted that, the title was to pass upon completion of all purchase prices on 31/12/2014 thus arguing that, Page 9 of 25 • the defendant was and still is legal owner of the disputed landed property adding that, he could not be precluded from carrying on other normal activities not affecting the subject matter of sale. Regarding allegations that PW1 was told by PW2 that the defendant received more rental fees for two years from the tenant while the tenancy was to end in 2014, he argued that, nowhere PW1 stated that he looked for verification from the defendant as to correctness of the allegations. The defendant's counsel submitted that, the plaintiff misrepresented himself to the defendant that upon signing Exhibits PI, P2 & P3, ownership of the defendant would not be affected as the documents would have remained in custodianship of Michael T. Ngalo until payment in full. The counsel thus argued that, the agreement is voidable in terms of section 19(1) of the Law of Contract Act, Cap 345 [R.E 2002]. He added that, the act of not drawing post-dated cheques in favour of the defendant, non completion of payment of the first installment, the act of taking the documents which were supposed to be under custody until the completion date and the act of the plaintiff effecting transfer of the Title from the defendant into his name (the Plaintiff) constitutes breach of fundamental terms going into the roots of the contract. He cited Avtar Singh in "Contract & Specific Relief", 11th Edition at page 435 where breach is defined in the following words:- "A breach of contract occurs when a party thereto renounces his liability under it, or bv his own act makes it impossible that he should perform his obligations under it or totally or partially fails to perform such obligations. The failure to perform or Page 10 of 25 renunciation may take place when the time for performance has arrived or even before that". Besides, Singh (supra) on anticipatory repudiation states that:- "An anticipatory repudiation occurs when, prior to the promised date of performance, the promisor absolutely repudiates the contract. It is an announcement bv the contracting party of his intention not to fulfill the contract and that he will no longer be bound bv it..." The same Singh (Supra) has the following at page 436 that:- "In the first place the other party is excused from performance or from further performance. The obligation under the original contract comes to an end and is replaced bv operation of law bv another obligation, namely to pav money damages. ... Secondly, it entitles the injured party to an option either to sue immediately or to wait till the time the act was to be done". In respect of the 3rd & 4th issues, the defendant's counsel submitted that, the two do not form an issue in terms of Order XIV Rule 1(1) of the Civil Procedure Code, [CAP. 33 R.E, 2002]. Regarding the 5th issue, he submitted, this issue is partly in the affirmative, as the defendant having been troubled since May, 2013 he thus referred his complaint to the Coast Region Commissioner's Office in May, 2015. The defendant thus maintains that, the refusal per Exhibit "P10" was not contrary to the Sale Agreement as the Sale Agreement had already been vitiated by fundamental breach by the plaintiff (PW1). Regarding the 6th issue, the defendant's counsel submitted that, PW2 tendered a lease agreement (Exhibit " P ll" ) between him and the defendant dated 01/01/2005. However, the disputed Addendum (Exhibit Page 11 of 25 • "P12") dated 01/07/2007 was not witnessed by advocate Kassim Mbaga Nyangarika as did in Exhibit " P l l " for its authenticity was proved forged. As to the 7th, 8th, 9th, 10th and 11th issues, the defendant's counsel submitted, the allegations that the defendant handed the Title to him are unfounded for no proof was availed. Regarding the 8th issue, the defendant's counsel submitted, the defendant's decision to terminate the sale agreement is lawful in terms of section 73(l)(b) of the Land Act, [CAP. 113 R.E, 2002] in compensation for loss or damage in breach of contract. The defendant's counsel argued, section 74(l)(e) of the Land Act (supra) gives a vendor a remedy in Court to rescind the contract and repossess the land. Besides, section 75 of Law of Contract Act (supra) provides for relief to a party who rightfully rescinds a contract with compensation for damages suffered for breach of contract. On the other hand, the plaintiff's counsel submitted for the 1st and 2nd issues that, it is undisputed that, parties by consent in terms of section 10 of the Law of Contract (supra), entered into a sale agreement dated 16/10/2012 in respect of Plot No. 1 Kongowe, Kibaha Township held under Certificate of Title No. 44129 together with the Petrol Station. Besides, he argued the sale was pursuant to section 64(l)(a) of the Land Act (supra) that reads:- ”A contract for disposition of a right of occupancy...is enforceable in a proceeding only if - (a) The contract is in writing or there is a written memorandum of its terms, Page 12 of 25 (b) The contract or the written memorandum is signed by the party against whom the contract is sought to be enforced". Additionally, the learned Counsel reasoned that the Sale Agreement, that is, Exhibit "P I" is stamped as required pursuant to the decision of the Court of Appeal in Malmo Montagekonsult AB Tanzania Branch vs. Margaret Gama, Civil Appeal No. 86 of 2001, (Dar es Salaam Registry), (Unreported) that:- "Now, the Sale Agreement - Exhibit P3 - was not stamped and, therefore, ought not to have been admitted as evidence. Since the sale agreement was not lawful evidence in the case, it cannot be considered in deciding the rights of the parties regarding the disputed property. So far, it is a well settled law that, a land disposition agreement must be stamped". Regarding the 3rd & 9th issues, the plaintiff's counsel submitted that, parties signed transfer of a Right of Occupancy and Land Form No. 35. Besides, the defendant signed Notification of Disposition Form No. 29 notifying the Commissioner for Lands of the intended disposition. Also, the defendant filled Land Form No. 30, that is, an application for approval of disposition in compliance with section 58 of the Law of Marriage Act, [CAP 89 R.E, 2002] and the Land Act. He also obtained consent from his wife. The plaintiff's counsel argued that, that was in compliance with what was held by the Court of Appeal in the case of Abualy Alibhai Azizi vs. Bhatia Brothers Ltd, [2000] T.L.R. 288 specifically at page 289 that:- "A Right of Occupancy is something in the nature of a lease and a holder of a right of occupancy occupies the position of a sort of lessee vis a vis the superior landlord. A right of occupancy is for a term, and is held under certain conditions. One of the conditions is that no disposition of the said right can be made without the consent of the superior landlord". Page 13 of 25 Later, the Court in Abualy Alibhai Azizi case above, further observed that:- "... A transaction for the disposition of a right of occupancy is necessarily a tripartite transaction involving not only the holder of the right of occupancy and the purchaser or donee, but also involving the superior landlord". The plaintiff's counsel argued, the transfer and disposition were complete. He added, there is no clause in the sale agreement for custody of the executed documents to remain with the advocate. The learned advocate thus argued for the 3rd & 9th issues to be answered in the affirmative. Regarding the 4th, 5th & 7th issues, the plaintiff's advocate submitted that, the defendant received Tshs. 100 million but rescinded collection of Tshs. 100 million bank cheques about two months before collection time. Hence, PW1 invoked clause 8.1 of the sale agreement in solving the dispute leading to a Tripartite Agreement, Exhibit "P5" dated 04/09/2013. The learned counsel argued that, the documents were properly signed and witnessed by a Commissioner for Oaths. Besides, DW1 failed to substantiate that the said documents were as such, forged in terms of section 69 of the Law of Evidence, [CAP 6. R.E, 2002] that provides:- "Proof of signature or handwriting of person alleged to have signed or written document If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". Page 14 of 25 As to the 6th issue, the plaintiff's counsel submitted that, clause 6.2 (b) and (d) of the Sale Agreement (Exh.Pl) provides:- "The property is leased to Mr. Ahmed Salim Bahashwani of P.O BOX 21531, Dar Es Salaam (herein the tenant) (d) the Tenant's lease will expire on 31st December, 2014." He added, the defendant was paid tenancy fees amounting to Tshs. 24,000,000/= for 2015 & 2016 per Exhibit "P13" paid to the defendant by PW2 though denied by DW1. The plaintiff's counsel argued that, conduct of the defendant in denying truth per the lease agreement is untrustworthy thus urging for the 6th issue to be is answered in affirmative. As to the 8th issue, he submitted that, the defendant's complaints were probable under Section 73 of the Land Act [CAP 113 R.E 2002] that:- "where, under a contract for sale of right of occupancy, the purchaser has entered into possession of the land, the vendor may exercise any contractual right to rescind the contract by reason of breach of the contract by the purchaser on by - (b) Obtaining an order for possession of the land from the court in accordance with the provisions of Section 74. He thus argued, the defendant did not adopt the requisite procedures per the law thus arguing the defendant's act to terminate the agreement was unlawful. He urged the 8th issue to be answered in affirmative. Regarding the 10th issue, the plaintiff's counsel submitted that, transfer of the disputed landed property was properly conducted with the defendant's remaining balance payable to him after deduction of all the expenses incurred by the plaintiff in the Sale Agreement. It is from the above the learned counsel argued that the plaintiff stands to suffer Page 15 of 25 • irreparable loss, hence urging for the 10th issue to be answered in the affirmative. He thus prayed for the prayers per the plaint for the 11th issue. Having considered the pleadings, evidence on record and the respective submissions by counsels for the parties, the following are the deliberations of this Court in disposal of the suit. Starting with the 1st issue as to whether the plaintiff and defendant entered into a sale agreement in respect of Plot No. 1, Kongowe area at Kibaha Township, the testimonies by PW1 & DW1 who are the plaintiff and defendant respectively are clear that, the two entered into a sale agreement dated 16/10/2012 before Michael J.T. Ngalo, advocate. This is supported by Exhibit "P I" on the Court record. Notably, this fact was not disputed by DW1 as also submitted by the defendant's counsel. Thus, the 1st issue is undoubtedly answered in the affirmative. Regarding the 2nd issue, that is, if (1) is yes, whether the executed sale agreement is binding between the parties, that issue should not detain us because in principle, once there is proof of existence of a contract, the same binds parties in accordance with the agreed terms. It is from the above the 2nd issue is answered in the affirmative that the executed sale agreement is binding between the parties pursuant to the agreed terms. In respect of the 3rd issue as to whether the plaintiff and defendant had, apart from the signed sale agreement, executed all other statutory land transfer documents, according to the evidence by the defendant (DW1), basically, the defendant did not dispute signing of Exhibit "P2", but Page 16 of 25 • that, the same was to remain in the custody of the said advocate Mr. Michael Ngalo with its release upon payment of the agreed amount. Notably, DW1 admitted to have entered into the agreement marked Exhibit " P ll" and the sale agreement, that is, Exhibit "P I" but denying to have executed Exhibit "P5". Though no expert was engaged or summoned to ascertain whether the signatures appearing in Exhibits "P I" are similar to that in Exhibit "P5", noticeably, the signatures appearing in the two sets of documents are different unlike the view shared by the plaintiff's counsel. DW2 added, he did not know Ally Mrisho Said who is said to have identified the said Ahmed Sheiban Abdallah who signed Exhibit "P5". The signatures by Ahmed Sheiban Abdallah who is Vendor in Exhibit "PI", Lessor in Exhibit " P ll" , Complaint in Exhibit "P10" and both the applicant and transferor in Exhibit "P2" appearing in the same document (Notification of disposition, Application for approval of disposition and the transfer of a Right of Occupancy, that is, Land Forms No. 29, 30 and 35 respectively, on one hand and his disputed signature in Exhibit "P5", when examined under section 75(1)&(2) of the Evidence Act, Cap.6 R.E.2002 in the light of the trial proceedings differ significantly. Being the case, the averments by DW1 that he did not allow one Ahmed Salim Bahashwani (PW2) to sub lease the petrol station per the addendum (Exhibit "P12") and Exhibit " P ll" , that is, the Lease Agreement, holds merit. It is further noted that a signatures of the advocate who witnessed the signing of Exhibit " P l l " is quite different from that alleged belonging to the same advocate one Kassim Mbaga Ngangarika (as he then was), that Page 17 of 25 . is, DW3, appearing in Exhibit "P12", that is, the addendum. As both documents did not affect the subject of the sale agreement, that is, Exhibit "PI" as agreed on 16/10/2012 the parties may wish, for practical purposes, pursue the disputed authenticity of Exhibit "P5" and "P12" in relevant forum considering the grave serious attack mounted against them by DW1,DW2 and DW3. Therefore, as correctly submitted by the defendant's counsel, the defendant conceded to have executed some of the executed documents that is, Land Form No. 29 (Notification of Disposition), Land Form No. 30 (Application for Approval of Disposition), Land Form No. 35 (Transfer of a Right of Occupancy), Land Form No. 38 (Contract of a Transfer of a Right of Occupancy) and the Spouse Consent, that is, the transfer documents on reservation that the same were to remain in custody of advocate Michael Ngalo until payment in full. From the above, the 3rd issue on whether the plaintiff and defendant had, apart from the signed sale agreement executed all other statutory land transfer documents is thus partly answered in the affirmative with the above noted reservations. As to the 4th issue as to whether the defendant has received part payment of the purchase of land proceeds as per the sale agreement, the testimony by PW1, DW1 and Exhibit "P4" are undoubtedly clear that, as such, the defendant (DW1) was paid Tshs. 100,000,000/= vide 1st, 2nd, 3rd and 4th cheques valued at Tshs. 25,000,000/= each paid through NBC on 16/10/2012, 30/11/2012, 31/12/2012 and 30/01/2013 respectively. Page 18 of 25 The testimony by PW1 was clear that, the last payment valued at Tshs. 100,000,000/= for the 1st installment was paid on 30/05/2013 though not paid to the vendor. Thus, in terms of the sale agreement, that is, (Exhibit "PI"), out of the agreed Tshs. 400,000,000/= being consideration of the landed property, only Tshs. 100,000,000/= was first directly paid to the defendant. This payment was not only paid but, rather was also admitted by DW1 (the defendant). However, apart from Tshs. 100,000,000/= that was first directly paid to the defendant, there are other payments which were paid to him under express or implied instructions. PW l's evidence and evidence in Exhibit "P9" show that the plaintiff paid Tshs. 17,139,330.02/= to the Tanzania Revenue Authority being capital gain tax which basically ought to have paid by him as owner of the sold landed property. Besides, the evidence adduced by PW1, PW2, PW3 and that in Exhibit "P6" further establish that, in his name but through PW2 the defendant was paid Tshs 120,000,000/= in three installments, that is, 4/9/2013, 4/10/2013 and 4/11/2013. In view of the above, I have thus found it impractical to abstain from considering both direct and indirect payments made to the defendant in relation to the subject matter of the sale (Exhibit PI). This is because, both the directly paid amount of Tshs.100, 000,000/= and the subsequent indirectly paid amount of Tshs. 17,139,330.02 and Tshs.120, 000,000/= respectively, were paid by the purchaser who was contractually obliged to satisfy the purchase price of Tshs.400, 000,000/= and there was no time the parties had agreed to have, say the duty to pay for capital gain tax, Page 19 of 25 shifted to the purchaser. It is from the above the 4th issue is answered positively but also covering Tshs. 237,139,330.02 which was paid later in the instance of the defendant. Regarding the 5th issue as to whether the defendant has refused/rescinded receiving the remaining purchase price contrary to the sale agreement, in terms of Exhibit "P10" which not only the defendant (DW1) did not dispute, rather, also testified in evidence that he as such authored the same, it is undisputed that the defendant did in fact refuse to further receive payments in respect of the sale agreement. Thus, the verification of disposition (Land FormNo. 29) and transfer of Right of Occupancy said to have been signed on 16/10/2012 and the Spouse's Consent cannot override the duty to pay the agreed amount. From the above, likewise, the 5th issue is answered in the affirmative. Regarding the 6th issue as to whether the defendant had signed a new Tenancy Agreement with a Third Party which agreement ends in 2016 contrary to the Sale Agreement, the testimonies by PW1, PW2, PW3 and that in Exh.P6 and P13 is clear that it is true that new tenancy agreements for 31st December, 2014 to 31st December 2016 were executed. However, in the light of the evidence adduced concerning PW l's failure to fulfill his contractual duty under Exhibit "PI" it cannot be said that those further tenancy agreements were contrary to the Sale Agreement. According to the testimony by PW1 and Exhibit "PI", it was agreed for the plaintiff to pay the defendant Tshs. 25,000,000/= on 16/10/2012 (that is the date of signing the agreement), Tshs. 25,000,000/= payable on Page 20 of 25 , 30/11/2012, Tshs. 25,000,000/= payable on 31/12/2012, Tshs. 25.000.000/= payable on 31/01/2013 and Tshs. 100,000,000/= on 30/05/2013 all these for the first installment while Tshs. 200,000,000/= payable on or before 31/12/2014 being for the second installment. Per the evidence on record, the defendant (DW1) was paid Tshs. 100.000.000/= vide 1st, 2nd, 3rd & 4th cheques valued at Tshs. 25.000.000/= each paid through NBC on 16/10/2012, 30/11/2012, 31/12/2012 and 30/01/2013 respectively but the payment valued at Tshs. 100.000.000/= for the 1st installment was paid on 30/05/2013 but not paid to the vendor (the defendant). As such, the plaintiff argued the same to have been paid on the basis of what is referred to as to as the Addendum (Exhibit "P I2" and Tripartite Agreement (Exhibit "P5"). But since the same was not paid to the defendant and considering that the said other agreed agreements as lucidly addressed in the 3rd issue, were properly discontented having been improperly procured, thus, unworthy reliance in law in principle, there is no gainsaying that by the time of entering into lease agreement with the Third Party, there was no existing obligation binding the defendant in the legal understanding. That means, the terms of the then binding contractual agreement had already ceased to bind the defendant for breach on part of the plaintiff. In other words, the plaintiff is the one who frustrated the contract for failure to abide to the contractual terms. For instance, in item 6.4.1 (c) the plaintiff that is, the purchaser (PW1) promised that:- "He shall pay all the agreed payment installments on the due dates and for that purpose, the (sic) has drawn postdated Page 21 of 25 cheques in favour of the Vendor which will be kept by Ngalo & Company Advocates for release to the Vendor on the due dates". Thus, since the plaintiff failed to abide to the contractual terms, the defendant was not encumbered or rather barred from leasing his property whatsoever. An immediate question lies, at what time a sale transaction is complete? In a nutshell, from the foregoing, there is no gainsaying that, a sale transaction involving payment in installments is complete upon payment of the agreed last installment in terms of the agreed mode of payment in consideration, failure of which renders the intended sale voidable at the option of the seller, through forbearance/condonation. In other words, how can a contract be said to exist without payment of price of the agreement? The answer is not farfetched that if the price of the contract in consideration is not paid, an agreement cannot be said to exist at any rate. In other words, a promise is a half way consideration with the other half fulfilled through adherence to the promise, that is, through payment terms, in this case, the agreed payment installments. From the above in a nutshell, the 6th issue is answered in the negative as those further tenancy agreements did not contravene the Sale Agreement (Exh.Pl) which, as aforesaid, was fundamentally breached by the plaintiff. Resorting to the 7th issue as to whether or not the defendant handed to the plaintiff the original title Deed No. 44129 for the purposes of effecting transfer of the Certificate of Title from the defendant's name to the plaintiff's name and the 9th issue as to whether the plaintiff took the statutory land transfer documents from the custodian contrary to the sale agreement, the defendant has been clear throughout his evidence that the Page 22 of 25 „ documents were left to advocate Michael J.T. Ngalo to effect transfer but subject to full payment of the agreed sum in consideration. For that matter, and as said earlier, the transfer cannot be said to have been properly effected for the plaintiff failed to play his contractual obligation in the sale agreement that is, paying the defendant the agreed amount within the agreed schedule of payment per Exhibit "P3". Consequently, thus, the 7th issue is answered in the affirmative subject to the above reservations whereas the 9th issue is also answered in the affirmative. Regarding the 8th issue as to whether the defendant's decision to terminate the sale agreement is lawful, as said earlier, since it was the plaintiff who breached the terms of the sale agreement, termination of the sale agreement was engineered by the fact that the plaintiff was author of the said termination. Hence, the 8th issue is answered in the affirmative. In respect of the 10th issue as to whether the plaintiff stands to suffer irreparable loss as claimed, from all the above in unison, the plaintiff cannot stand to suffer loss and if he so suffered, the same cannot be compensated whatsoever for he is an author of his own peril as above articulated. Moreover, the plaintiff did not substantiate in evidence (if any) how he suffered. Thus, the 10th issue is answered in the negative. Regarding the 11th issue as to reliefs parties are entitled to, since the evidence is clear that the defendant first directly received the said Tshs. 100,000,000/= from the defendant being part of the purchase price and since the plaintiff paid Tshs. 17,139,330.02 to the Tanzania Revenue Page 23 of 25 , Authority as per Exhibit "P9" being Capital gain tax which is the duty and obligation vested to the owner of a sold landed property and the defendant by his name but through PW2 was further paid Tshs 120,000,000/= as per Exhibit P6, the plaintiff stand entitled to a refund of Tshs. 237,139,330.02 from the defendant. Besides, in case the Right of Occupancy in respect of Certificate of Title No. 44129 in respect of Plot No. 1 Kongowe Area, Kibaha Township in Coast Region has reverted into somebody else than the defendant, this Court orders the respective Registrar of Titles or any other authority pursuant to section 99(1) (a) of the Land Registration Act, [CAP. 334 R.E, 2002], to rectify Title Deed and maintain to the original owner of interest in the Certificate of Right of Occupancy. From the above premises, the suit partly succeeds to the above extent. Considering the final decision, parties should shoulder for their own costs. It is so ordered. Page 24 of 25 COURT: Judgment delivered this 9th day of February, 2017 in presence of Mr.Steven Biko, Advocate for the Plaintiff and Mr.Wema Kakomanga, Advocate for the Defendant. Right of Appeal is explained. I. FELESHI JUDGE 09/ 02/2017 Page 25 of 25