19900412 TZCA Dar es Salaam

.. . . IN TITC COURT OF APPEAL OF TAHZAlF.A CIVIL APP?'.,,AL HO., 14 OJ' 1987 . i:IARI7.tl SAID JI.ED BRO'l1IIERS. ~., , .APPELLAHTS versus l\'"J.ANTAR RASIIID. O O O O O < 0 ♦ 0 C O O V ,. 0 > RESPOlJDENT (Appeal :t'rom the Judgment of' the High.,Cou.rt of Tanzania at Mbeya (r,Iwaikasu 2 J.) ' d ·c_ da·Ge " of· 1~1·ebrL1ar.y, 19u0 6 . 'he 6-li'11 a.ay in Cjvil Appeal Noo 4 of' 1985· .ruvGJvIEHT CF 1IHE COlJRT OWill 2 J ~A • ~ This is a second appeal from -~he decision of -t'.1.e Resident Magistrate, Mpanda DisLr·ict. The appellant Harith Said ane. Brothers was cruec1. for the ret1,U'l1 of tl1e house· allegedly sold by him to the responde1it Ma1itax RasJ:1id. The evidence on both sides i:J to the effect that Ilarith borrowed shs. 95,000/- in 1982 from his neighbour Mantar an.cl after two clema:1cl letters of' 26/6/82 aml 1/9/82, ITari th responC.ed by preparing avi agreement in which he agreed to su.:!'.'rend.er his houue to IJantar if after two months from the date of the agreement he was unable to settle the debt,9f 95,000/-. Bat the house war:. sold at 150,000/-. ~1li.s:- was pleased wit:.~ thiG arra.;:1gement and paid the balance of 55,000/- at once wa'itir10 hopefully to be handed. tb.e house in Cfv.estion whic~.1 was si -tu.a.ted on Plot 22 Block E Mpanda. 1:i:his house happened to be mmed by his late brother Ifohaw.ed Said Mohamed who died. in 1979 and. whose name was in· the offer ·of the Riglrc of Occupm1cy.. Ti.1is house wac in!1eri ted b;;r Said IIari th Said, the zon of the appellant II2,rith on 26/10/83 in th~ P:cobate and Ad.1:1inistration Cause Ho .. 9/1933 of Urban: Prima:ry Co1.u~i; I>Ipanda~ .... 2 The argunen-cs on both sides centre on the agreement be~;,-reen -~he pc1.rtics,. .Mr., Ba·ce;yungc, the 1 earned counsel for the appellant, IIarith, s-i;ated that the learned judge erred in lc~w when· ·he .based hie .';\.., . . clecision . Athe written agreement which was not ad.!i1i·:;·~ed • as Ex:hibit in the trial., It was an agTeement in which tb.e parties understood clifferently its Ctiittcrdo.o Harith u...'lderst6od it -~o 'be a mortgage and. Ma:i.1.tar, the respondent, v.11derstood it to be a saleo I:Ie conch;.ded. by sayi.11t· that there was ;10 legal agreement"' entered and -~herefore the house should not pass to Mantar the-respondent. He also drew the a·aention of the court to the statutory requirement of co~1sent by President of the Uni·lied Republic tQ a disposition of this k::.ncl and .• that lack of it nullifies ·che sale. '.i:he respondent Mantar who he,d no cov..nsel stated that he 1::ad lent shs .. 95,090/- to Harith and. vtliert he demanded it back by letters he received instead this ag1·eeme11t for his sit,-nature,. This agreement gave him the option to bt,y the house :i:or shs. 150 1 000/- if after two months the debt of slls. 95 1 000/- is not settled~ So after the e~::,)i:ry of two months he paid the balance of 55,000/- and hopefully waited to be· I handed the house.. IIe has been wai ti.11g ever, zwt1~ About tho conoent to a disposition by the PreGident, he confessed _he had never heard before of this 1·eqL1.ire;uent, anri as far as ha can remember mal'iy peopl(;) had sold their ho1..rnes without being quectioned about the co1rnent to their disposition being obtained. He prayed for this house t9 be given to him. The two courts below gave the houGe to :Mai1·cn.r; we are of a ~ d.i:i:'::e1·ent view al togc·jher.. 'l7.he ow.aer of this house wa:::: not Hari th ' at a;ny time, and therefore HaTHb. had no legal right to sell it wi·;;hout the consent of the O1-mer. Al though. the agreement signed 1)y both hiiu.sel:f and Mantar showed tlud; he waa willing to part with it if his rela-ci..res would agree, he be:i.ng a·~ the ti::1e the personal rei)resentative of the deceased, the evidence sl:ows that the relatives had not agreed to its sale and when the house develved on to his son· in 1983 there is 110 incHcation that the son consented to its sale a.n(: ev-e1:. if he were to agree t·o his :father celling it: there is the prior statutory co11cent from the President of ·i;he unHed Republic which -is delegated. to the Director of Land Development 0ervic0s for any ,:iuch clisposi ti@. to be ... - • -; 3 ef:i:ective. See La11dRe2,1.1.la·~i~ns_19.1.8 (Cap." 113\ Sec •. 3 (1)·which f:J"~a-:;oo llA disposition of a Right o.f Occupancy shall not.be LO..I.J ~,.e •T,•lG·"'"' O·•JeraJ-1' V Li..L- 1.· -'- ;··,. •- ,:::,1...: .J ~ -·r1.· .•.;-~" .&..I.J l:.u.l.t:, ""c1 ----,-•-; \I V.J.-lt-- O,:.A.1. - l 1.· -:-~ 13 · approved b;T the Pi•e:::;ident (later to be Di:-ector of Land Developmen-'.; Services) .e 11 Sec. 3 (3) In this re::;1.1J.ation 11 disposition" means:- 11 (a) a conve,y:ance or assig1:1ment other than .by way of' mortgage. 11 It was argued in the IIigh Court decision. that an offer of the right of occupancy need to be accepted first by the offerer by payment of fees before ·it can be conside:ced for consent by the President on its disposition.. This pa,rticula3: _o:ff'er was not so accepted, therefore the consent of the President is not· necessa.ry., T.1.1e evidence on record -does not bear this. out. As long as there is a l1ouse on the plot which has merely an 11 of:fer 11 then clearly the permit to build ·chat house could not have been obtained without first accepting the 11 offer11 by paying the necessary land fees, stamp _duty and other charges for all the · yea1·s since the date of -~he offer - thi::; would consti tu.te acceptance of the offex. The pl"ocess of' converting the of.cer into the Right of Occupancy is sometimea lop.g and --.r.duous.. It involves j:i.-cptirt~tion of the deed plan and' 'the f.t'C~~nro.ticn of the document _6-.r the right' -of occupancy and the EJignature of the Director of Lancl Development Services and its registration in the Land Registry based in' Dar es Salaam in the J)llinir:rcr;y- of Lands,. It is no wonder that ·ma:rlY. -I.-- people remain with o:fferG of the Right of Occupancy instead of t).1e Right of Occupancy proper• But the requirement of conse11.t is always there which the Director of Land Development Services mu.st sig;.1i.fy ~ - In the result we :find that the house of Sr::,icl. P'.tarith caYL."lOt be deemed to have been transfei·;ced, whatever his intention was, to Man-ta1• the respondent, for lack of consent by the President,, 'We therefore allow the appeal but order ., ·cll;:i;(; the appellant pay -~o the respondent his debt of ohs. 150,oco/-:- a! once (a fact which he, lia.rith agreed to uhen he gave his defence 011 oath before tb.e District Court). .. ••/ 4 .. own costs in this Cr- ,!; and the L. M. MA.KAME JUSTICE OF APPEAL A. M.A. ONAR ....m.§!ICE OF APPEAL / N. S. ]'II'JZAVAS JUSTICE OF APPEAL. I certify that this is a true copy of the 01~iginal • ...,... .i.~•\IA ~;" I , ,/P ( J • IT• °rt;QF.7E ) SEKIOR DEPUTY REGISTRAR. ... f