20151231 TZHC Arusha

IN THE UNITED REPUBLIC OF TANZANIA ' ' I IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ' AT ARUSHA PC. CIVIL APPEAL NO. 26 OF 2015 (Arising from Civil Appeal No. 01/2015 of the District Court of K/teto at Kiteto, ·Original case No. 11/2014 of the Primary Court of Kibaya at Kibaya) / MAJUTO IDD MHANDO .. ■■■■■■■1 ■■■■■ ••···································APPELLANT . :VERSUS ZAHARA MO HAM ED ..... ■■ • I •• I ■■ II■■ I ■ •• 111 ■■■ •• II • • ■ I I ■■•■■• I I • • ■ • ■ I ■■■ • RES PON DENT Date of last Order: 18/12/2015 Date ofJudgment: 29/12/2015 JUDGMENT MASSENGI, l This matter has its genesis from the ·Primary Court of Kibaya at Kibaya in which the appellant herein instituted a case against the I . respondent claiming that in 2010 the respondent and the appellant entered into sale agreement of house for Tshs. 3,000,000/=. The appellant paid Tshs. 2,200,000 and remained balance of Tshs. 800,000 but the I I /- respondent refused to handle a title deed of that house hence the appellant instituted a case before the court. After hearing of both parties, . the trial court found that the respondent still had right over the house as } I the appellant failed to finalize the payment and ordered that either the respondent to breach the contract and refund the money which was 1 already paid by the appellant or the appellant to pay the remained amount and being handled the title deed .. Aggrieved by the decision: of the Primary court, the respondent appealed before the District Court. The District Court found that the appellant failed to perform his obligation on the contract due to his unreasonable delay to finalize payment and ordered that if the respondent was still willing with the contract to be performed, he has to pay the remaining balance together with damages for his failure to pay the i remaining balance within time and the damage has to be computed according to the value of the currency since 2011. .Failure of that, the I respondent will be at liberty to pay back Tshs 2,200,000/= and remain with her land. Dissatisfied with the decision of the District Court, the appellant appealed before this court on the following grounds; 1. That, the District Court erred in law and fact by not considering the documentary evidence adduced by the Appellant. In records of the primary court it is crystal clear that the respondent neglected to fulfill her contractual obligation hence the appellant took the matter to the i court. 2. That, the District Court erred in law and fact by awarding damages to the respondent while in record of the primary court the respondent did not claim neither special damages nor general damages. 3. That, the District Court erred in law and fact by deciding in favour of the respondent while in the records of primary court the Appellant proved that contract was not terminated. 2 4. That, the District Court err~d in law and fact by not considering the I contract between the Appellant and the respondent where every party had contractual obligJtion to perform. The delay of payment of Tshs. 800,000/= was not caused by the Appellant but rather it was the fault of the respondent! as she wanted to sale the same land to another person. 5. That, the District Court erred in law and in fact in failing to observe i the law by deciding the matter basing on extraneous matters .. . In the hearing of this appjal, I both the appellant and the respondent appeared in person and unrepresented and this appeal was argued orally. During the hearing, the a1ppellant prayed to adopt his grounds of I appeal and added that the respondent was avoiding to receive the final payment as agreed in their agreement. He contended that the avoidance caused a lot of inconvenience ~s the respondent run away as such he I reported to police and later the respondent was arrested for obtaining j money by false pretence as she was avoiding to hand over the sold property. The respondent wasl charged before the court but she was acquitted and he was advised to file a suit before Kibaya Primary Court in I which the court ordered him to pay the final payment in order to be I . handled the house. He further stated that he deposited to the court the said amount as the respondent was avoiding him and her bank account was closed. When the court lummoned her, she refused to sign the summons and on 2/2/2015 she wrote a letter to the court claiming that she will not honour the contract Jnd required to refund the appellant the 3 money which had already paid. The respondent appealed to the District Court and the court ordered the appellant to compensate the respondent for not honouring the contract while he is not the one who didn't honour the contract. In reply, the respondent submitted that she has never entered in any sale agreement with the appellant. She contended that she had family problems and borrowed money from the appellant and agreed that they will sell the house on a price of Tshs. 3,000,000/=. He paid Tshs. I 2,200,000/=, the remaining balance of Tshs. 800,000/= has not been paid to date. She further stated that~ the appellant instituted a suit before the · Primary Court and she appealed to the District Court which decided that the appellant is the one who I didn't honour the contract and he was ordered to buy that house at the current price or the respondent should refund the money to the respondent. I have considered the submissions of both parties and thoroughly gone through the records of the lower courts. Having gone through the grounds of appeal, I find that_ all grounds of appeal boil on one issue I whether the District court was proper to order that if the appellant wished 'I the contract to be performed, had to pay the respondent the remaining balance that is Tshs. 800,000 together I with damages for failure to pay the ' said amount within reasonable '.time. I have gone through the records of I I the trial court and find that it is certain that parties entered into sale I agreement of the suit property for consideration of Tshs. 3,000,000/=. The agreement show that the app~llant paid Tshs. 1,500,000/= and agreed i that respondent will hand over the title deed after full payment. In diverse 4 . dates, the appellant managed to pay in installments to the extent of Tshs. 2,200,000/=. As stated by the lower courts, the contract does not show when the final payment was to be done. Section 55 ( 1) of the Law of . Contract, Cap. 345 R.E 2002 provides that when a party to a contract fails to perform the contract at a specified time, the contract become voidable I at the option of the promisee bu~ if time is not the essence of the contract l then the promisee is entitled to/ compensation from the promisor for any ' loss occasioned to him by such failure as indicated under section 55 (2) of the Law of Contract Act. From cdnstruction I of the law under section 55 (1), ' the respondent could have optibn I to terminate the contract only if their contract provided for a specific 'time I for performance of that contract but I I since the contract did not provide for a specific time for its fulfillment then l I the respondent had no option under the law to terminate the contract I unless the appellant could have ~onsented. Neither the first appellate court I had justification under the law to order the appellant to pay damages for failure to pay the remaining balance within a reasonable time unless the respondent could have specifically proved before the court that failure to pay the remaining balance withip a reasonable time occasioned loss to her ' as per section 55 (2) of the law flbove. Basing on the above, I therefore find that the first appellate court i erred in law and in fact for ordering the appellant to pay the remaining balance of Tshs. 800,000 together with compensation. As such I hereby quash and set aside the decision of the District Court and uphold the decision of the trial court. For :ease of clarity, I order the respondent to ., collect the final payment of Tshs. 800,000/= which is deposited in the I 5 Primary Court and immediately hand over the title deed to the appellant. Order accordingly. SGD: F.H. MASSENGI JUDGE 29/12/2015 Judgment delivered in Court this 29th day of December, 2015 in the presence of both parties in person. Right of appeal fully explained to Court of Appeal after obtaining leave and certification on point of law. SGD: F.H. MASSENGI JUDGE 29/12/2015 I hereby certify this to be a true copy of the original. D UTY REGISTRAR ARUSHA 3/ /1 ~ t {/ 6