19881021 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPE;AL. N0.19 OF 1987 (Original HM Civ. Case No.7/87 at Kisu tu HM' s Cour,t - Dar es Salaam} 1- • s:-w;;:.i;..l·T J UM;..) • a ,e. o o o o o • a a • • o • o o • o o • o lJ i';'T r "11.T""S ,. np ~ e • • o c,, o ~ l \ , , L , .L. ?. • :.:..A..J I MO HA.MSD) . - versus J UI-~I'H-f;] ATHUMANI • • •••• ·• ••••••••• o • • • • • • • • RESPONDENT JUDGMENT ?2is appeal is against the decisi•n ef the Resident Masistrate Court, Dar es Salaam. The facts ot the case which s~ve rise to this appeal are that under a written esreement dated 11th October 1984, first appsJ.le,nt Haji Mohamed sold his house (henceforth referT:::c1 cs the suit premise or house) t8 .the resp&ndent for a sum of shs.200,000/~ out o~ which he wa~ paid/ , .,shs .. 1.So 9 000/:::. According to the said written J - ' ,·,: a 6 ree._12nt-, respondent was required to pay the balanee of chs.~o,ooo/= by 16th October 198~. Meanwhile res:_)orAc1en.t was given possession of the house and / occupi,8c1 i t . lie is still in occupation of the hous~ up to r:.ovr. It is in evidence that respondent tailed te pay the belence of shs.40 1 000/= as per the agreement. ~irst a~pellant's reaction to this default WAS to lodge a comple:.int to the CC:M Branch Chairman bef'ore whom the s?.l s c,v.--sement was executed. And according to exhibit D1, on 1st Cctober 1985 the CCM Branch Chairman re~erred the first appellant to the primary court TG~e~o. hfter this ~n 6th December 1985 first appellant accepted from the respondent sh~.23,000/; as pe.rt in·.yr,1ent of the remc¼,ining debt of the shs. L.tO,OOQ/:::. This l)c,Ymcnt was reduced in writing whic~ wa:s produced in cov.1-t c.s exhibit 02. However, •n 14th February, 1986 first appellant swore t\n af':fidavit in which, inter\alia '>"~~,.) .~~ .. • ~. •~--:.1: ,/(~ ..... /2 he ~eposed thut he ht,.d S-0-J.d the .suit premise to the secon6 ,:-,ppellant for a sum of shs.• 8o-~/._,. This- af:fi(c.vit ~,,as followed by execution of a Deed of Trn11.s1'er of Ri5ht of Occupancy from the f ~ ..app,ellemt to. the second appellant. On learning o"r the· alleged seco:1.d sile• respondent .rep.ort.e<i to police and cr.:-nse~_uently first appellant was charged of' obtaining rnonay by false pr~tences in that he sold the suit house to the cecond appellant after the same had Alrea-dy been sold to -the respondent. However, for reasons contained in ·tI-10 judvnent" fir.st ;\ppellAnt ·wns aequit.t~d. But in the .cou.:r.~se of the trin.l it was revealed thc\t the elleccd 3ale to the second appellant was for sh~.J50,000/~ anti net sris.8of600/= as deposed by the first appellant i11. ;::f.s 2:Z:fidevit and repeated in the Deed of TrArisfer of :.:-:i:):'lt of Cccupancy signed by both first etnd second T)ids ~ppeal originates from. a suit filed by the scc,:•:c::.c.: n;3yelle.nt against the respondent for Vl\Cant possession of the suit premise. l 'I'hrGe grounds have been advanced in support ot the cC',ppec:..:O_. First it is contended that since respondent did ~o~ counterclaim for vacant possession, the le~rned · tri0.l ,:1;:,sistr,"lte Wf\S wrong in mri.king an f\Ward . for Vc,Cc.nt possession of the suit premise in favour of the resp6:::1c1 ,m.t'. The secortd ground of app enl is that the join~er cf the first appellant to the suit as a third party -:::ras not done in accordance with the provisions of· the Civil Procedure Code~ And lastly th~ learned Counsel for the appellent is challenging the trial cocrt 's Ze..ilure · to appreciate· the right of the first appellc.nt to terminrtte the first agreement of sale after the respondent hRd de_faul ted pr1yment of the balance a£.r.- t·~e purc.ase ·n · price. Gt2,rting with the first ground it _is true that in ni3 ~Gfence defendant did not counterclaim for vacant· possession of the suit house. To this extent I agree with °i::I-4e learned counsel that it was wrong for the trial e'.)::::::-t to .:.]c.l-<.:e an order for Vf\ca.nt possession in favour •• .,/J I ,. I / - , -- of the respondent. How-ev~r~ at worst the allege<l order is ,·rron 0 :for being superflous. It is in evidenee thei:t respm-:dent had been in posses::1ion of the ~uit house risht ~ro~-..-- the day when•first appellant received the sh.s.,160.o'oo/c: being instalment of the pw:-c_pt'\se price •. It is f~rther in evidence that· to date respondent is still . in cccuoation . of the house. . Hence there was no rec.son :for the respondent to raise a counterclaim for v1;.can:t·;;possession in his defence. -As quite rightly pl.ei,c1ed in his defence, what the respondent required frm:1 th.0 court was a deelarntion that he i.s the lawful ol'mer of the suit house. hs for the alleged irregularity in issuing third pc,rty summons to the first nppellnnt, the learned counn-3l Is 0.rr:ument is ·1egc'\lly sound. The relevant provioio:r:s of the Civil Procedure Code were not co~plied with before first appellRnt was joined to ths suit as a third party. But the.nature of the caso is 5UCh that I cnnnot imegine how justice could be c.:cn-2: without joining him either on the application cf' ·'.;l-ie pl.;,intiff or defendant.. The prime goal of any lititetion is to reach a final solution on the matter in (isputeo For this reason the court is given power to ::-Ct::"I:e order which will enhance the interest of: just.ice in a particular case. Now admitted that there had been irrc3ularity in joining the first appellant as R third party:, the question should be whether this irregularity has occaticned failure of justice. I don't think so. hs I seic, for the interest of justice, the first ap~,:,ell"'n.t he,d to be a party to this case anyway·. This eJ:_plains why neither the first appell~nt nor second appell~nt objecte~ against respondent's application for the seid third party summons •. There is then the ~rgument th~t the le~rned trial resident m~gistrate ha~ overlooked the right of the first e~pGllnnt to terminate the first sale agreement after responcGnt had defnulted payment of the remaining purchc:ise price.. It is true th.at accor·aing to law first ap90llent had the option to rescind the sale agreement with 1~e:spondent after respondent had det"aul ted payment of -::~1.e be.le.nee cf the purchase price.. What hAppened is ttnt aftor the defaul~, the said agreement became voic:e.ble e:nc.1 not voi<l. In other words first appellant coulc outri 0 htly ignore the contract or take steps to enforce ito Tlie agreement could only come to an end i:f first o.pr:·ellnnt had dcciclcd to ignore it. However, whc:t T.:.c.j_,:pened is thc\t first appellant opted to enforc~ tha nureecent by seeking the assistance of the Party Sranch office where the agreement wns executed to press the :cespondent pay the purchase price. And when the Party Branch office failed, th~ matter wa~ referrecl I to tl-i.o prir:,ary court for the Seline purpose. Consequently respo~dent paid the first eppellant shs.23 1 OOO/= thereby leeving a balance of shs.17,OOO/ •• First 1 ap~ell&nt s n6ceptance of the shs~2J,OOO/= clearly n8cetes any sugsestion thAt he decided to terminaJe the c,sreer:oent after respondent hn.d r1efaul ted payment oZ the rcmnining purchase price. ht this juncture let me say something about firat ap?ell~nt 1 s timid deninl th~t he received the shs.~3,000/= from the respondent. In support of this ' p,'~,y:::.12::."lt TGsponc]ent produced a chit in which it is shm-rn tl-:.c:t the alleged payment wns witnessed by two rel;:;:tives of the first appellant; viz. H~mza llaji and Kassiu1 He.ji.,. If at all it is true as alle&_ed by the :firs-'.:. a~)~:,zllant, that· responcen t did not pay him this ~oney, rte would not have mentioned these relatives of the first appellant as witnesses of the transaction. 1-L!ld quite strangely, first appellant did not cross \ exnmine the responc}en t after he had deposed c~uring the trial that he paid him shs.2),OOO/= on 6/12/85.- It is there~ore true that despite the respondent's f~ilu~e to Pc\Y tbe balance of the purchase price,· first appellc1.nt had not dec•ided to t-erminn.te the agreement, but instead he took steps to enforce the ngr~ement ancl thereby resulting tb the paymont of the shs.2) 1 OOO/=•. hs for the second appellant·, the position is that his clc.im is based on the alleged second agreement of ••• /5 - 5 - sale between himself and-the first appellant. But in my ~espaetfu+ opinion the alleged a5recment of sale is not legally enforceable for two main rensons. First at the tirae when appellants purported to execute . the ~lleged contrect of sale, the suit premise had already been sold to.the respondent,under a contract which, as pointec-l- out earlier, was still valid. There had been no ei::;_Jress or implied attempt by the first appellant to ter~inate the first agreement notwithstanding the fact that he was legally entitled to do so. To the contrary, there are clear indicationst one of which bein;~ his subsequent e.cceptance of shs.2J,000/= as part pqyraent of the remaining purchase price, that first appell~nt intended to uphold the agreement. ht the time wheh the alleged second agreement was purpotedly entered, first appellant.~ad already received the shs.2J 1 000/= from the respondent thereby manifestating his option to uphold tho agreement. First appellant had c"a. r i 0 1-it to choose one of the two options; either to terminate the agreement or enforce the fulfilment of the payment of the balance of the purch~se price. He coulc not have both for that would mean 1 a~ it ' were, blowing hot and cold at the same time. But even if the first agreement was effectively termine,ted ,. still the alleged second agreement would not be enforceable as it was soiled with illegality aimed at perpetuating the commission of a crime. hppellc.nts conspired' to evade paymen:ti of correct income tax by declaring lesser purchase price than the real, one... The Deed for Transfer of Right of Occupancy together with the first appellant 1 s affidavit in sup9ort of the -purported contract of sale cteposed that the purchase price is shs.80 1 000/= when in actual.fact it is shs .. J50 9 000/=.- To crown· up this criminal conspiracy, with appa~ent fraudulent intention, appellants caused to appear that the Deed of Transfer wes signed by -0ne Shabani Juma, who is supposed to be the second appellant·, when in actual fact the same was signed by one Ramadhani Bakari who actually filed this suit a 0 e1.i:Q.st the respondent.. It has been revealed that .• ·... /6 6 - the alleged vendee one Shl\han Jwnn ia a minor. Yn the ' ·absence of clear disclosure by Ramadhani Sakari that he was signing on behalf of Shaban Juma who is a minor the purported Deed of Transfer is of no legal validity. All in all lam of the respectful view that this appeal is devoicl of merits. It is accordingly dismissed with tosts. H;A-.· Ms·umi JUDGE For the J.ppellants: M~. Rahim. For the Respondent: ··Mr. Ismail .. Ji '--