mansour k scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 335 OF 2023 MANSOUR K. RWEHUMBIZA....................... PLAINTIFF

VERSUS HAMZA B. BYARUSHENGO............................................................. .....DEFENDANT MWANGA HAKIKA BANK LIMITED..................................................... THIRD PARTY

JUDGMENT 13th to 28th February, 2025 E.B. LU VAN DA, J The Plaintiff above mentioned is claiming against the Defendant for the following: One, specific performance of the contract by ordering the Defendant to handover residential licence No. KND024074 to the Plaintiff; Two, the Defendant be ordered to receive the balance of the purchase price TZS 270,000,000 from the Plaintiff; Three, a declaration that the Plaintiff is the lawful owner of the suit property; Four, the Defendant be evicted from the suit property and the same be handed over to the Plaintiff; Five, general damages for breach of contract to be assessed by the Court; interest on the decretal sum at the Court rate counting from the date of judgment till payment in full; the Defendant be condemned to pay costs of the case; Seven, any other reliefs as the Court may deem fit and just to grant. In the alternative: Eight, an order for refund of TZS 50,000,000/= being part payment of the purchase price paid to i the Defendant; Ten, interest on item (8) above at the rate of 20% per annum from the date of filing the suit till judgment. The facts giving raise to this suit can be traced back from the loan transaction between the Plaintiff and Third Party above named (who by that time was styled Mwanga Hakika Microfinance Bank Limited), where the former borrowed from the latter a sum of TZS of TZS 25,000,000 only payable within

twenty-four months, from 4/11/2013 to 4/10/2015, as stated in a demand letter dated 20/09/2023, exhibit D3. The collateral to this loan was a residential licence No. KND024074 located at Msewe Ubungo (the suit house). It appears arose a dispute as to whether the loan was fully serviced or not, where the Defendant herein sued the Third Party at Kinondoni District Court in Civil Case No. 133 of 2015 where he was cleared to had successful serviced the entire loan. Thereafter the Defendant sued the Third Party into this Court, protesting unlawful refusal by the Third Party to release residential licence No. KND024074, along a assorted number of reliefs predominantly in the form of liquidity at the aggregate of TZS 531,350,000 in total, which were pleaded to be chargeable an interest of 30% per annum. This Court in Land Case No. 45 of 2019 ordered inter alia that withholding of residential licence by the Third Party was unlawful and ordered the same to be released forthwith. This Court condemned the Third Party to pay the Defendant general damages at a tune of 2 TZS 50,000,000 which attract an interest of 15% per annum counting from when the judgment therein was delivered on 17/07/2023, as per the decree exhibit DI. It appears both the Defendant and Third Party were unhappy with the verdict of this Court in Land Case No. 45 of 2019, where the Defendant intimated to appeal against

the discretion of this Court in awarding general damages TZS 50,000,000, arguing it being a peanut amount and inadequate as per a notice of appeal filed on 21/07/2023 exhibit D6. The Third Party, on the other hand filed a notice appeal on 31/07/2023 (exhibit D5) against the whole of the judgment and decree. Exhibit D5 was served to the Defendant on 2/08/2023. On 11/08/2023, being only twenty-six days from the date of decree in exhibit DI, the Defendant herein disposed of the suit house to the Plaintiff for a consideration of TZS 320,000,000/= vide a sale agreement exhibit Pl. In exhibit Pl, disclosed that the residential license was mortgaged at the Bank and there was an order by this Court for it to be handed over to the Defendant herein. In exhibit Pl it was agreed for the Defendant to handover to the Plaintiff the residential licence within fourteen days. Meantime, on 17/08/2023 the Plaintiff effected payment of initial purchase price a sum of TZS 50,000,000, in fulfillments of the terms of exhibit Pl, as per cash deposit form exhibit P2. 3 On 13/09/2023 the Plaintiff served the Defendant with a demand notice (exhibit P3 or D2, asking for refund of TZS 50,000,000 or handing over of the residential licence as agreed in exhibit Pl). In response, the Defendant herein, crafted a demand letter to the Third Party, exhibit D3, asking for the latter to handover back a residential

licence immediately as practicable. In exhibit D3, the Defendant did not plead any facts showing if he filed any application for execution of a decree exhibit DI. In exhibit D7 which is an ex-parte order for stay of a decree in Land Case No. 45/2023, the apex Court intimated at page one and two, that the Defendant had filed an application for Execution No. 5053 of 2024, seeking to enforce the decree subject for stay. After parties were referred to the Dar es Salaam Mediation Center, they settled an issue relating to handing over of residential licence No. KND024074, as per consent settlement order exhibit D4 or D8. Surprisingly, thereafter the Plaintiff made a U-turn, shunning away from his claim for specific performance, for explanation that he was no longer interested more in receiving a residential licence. In his testimony in chief, the Plaintiff (who testified as PW1) abandoned prayers for reliefs number one to four, as appearing at paragraph one of this judgment. 4 Therefore, the remained issues for determination are: One, whether the Defendant has breached the sale agreement; Two, if the first issue is in affirmative, whether the Plaintiff suffered loss for such breach; Three, whether the Third Party is liable to the Defendant; Four, whether upon the Plaintiff abandoning his claims that is (a),(b), (c) and (d) in paragraph 3 of the plaint and in the relief claimed,

whether this Court has pecuniary jursidiction to determine the prayers for refund of part payment of purchase price of 50 million; Five, upon the Plaintiff abandoning his claims under paragraph three of the plaint that is paragraphs (a), (b) (c) and (d), whether the Court now has jursidiction to entertain this suit as a land matter; Six, to what reliefs are the parties entitled. Issue number one, as to whether the Defendant has breached the sale agreement. Of course, according to the terms of exhibit Pl, there was a breach on the part of the Defendant who failed to discharge his obligation of handing over to the Plaintiff a residential licence for the suit house within a period of fourteen days, as stipulated under clause four of exhibit Pl. Indeed, during re­ examination, PW1 conceded a fact that he had breached the terms of the sale agreement along a demand letter. However, as I go along, I will be giving more broader perspective of the general case and cause of action. Be as it may, to 5 sum-it-up-in-a-line of what has been said above, I rule the first issue as having being answered in affirmative. Issue number two, if the first issue is in affirmative, whether the Plaintiff suffered loss for such breach. In the plaint, the Plaintiff pleaded to have suffered considerable embarrassment and great mental torture, and asked to be rewarded by way of general damages. In the

testimony in chief, PW1 made a replica of the same facts pleaded in the plaint, without clarifying more as to what extent he suffered on the alleged embarrassment and mental torture. Instead, PW1 pleaded for a specific sum of TZS 50,000,000 which he gauged at his own accord being the amount of general damages subject for assessment by this Court. However, as per the general rule which is elementary, award of general damages falls under exclusive domain of court's discretion. No party can gauge, guess, bet, fix, mention any specific amount, and then task the Court to embark on deliberating or assessing it. Neither in the testimony in chief, nor in cross examination or re-examination, PW1 gave particulars vindicating that he is indeed entitled to award of general damages. It is to be noted that exhibit Pl is hinged on disposition of a suit house, however no facts were forthcoming from PW1 if he was denied access 6 to physical occupation of a suit house by denial to a residential licence. Nor stated if the bank had precluded him from occupying a suit house. PW1 could not explain the purpose of purchasing a suit house, whether for residential or commercial. Even exhibit Pl could not tell as to when the Defendant could give vacant possession of the suit house to the Plaintiff, The whole case rest on receiving a residential licence encumbered to the Third Party. Taking possession of

a suit house was not among the terms and conditions contemplated between the Plaintiff and the Defendant. It is a fallacy idea to say that fact could be taken into board in the future contract. The way, the suit is framed and the terms in exhibit Pl are couched, portray that parties were focusing much on the mere paper other than physical structure. No wonder, there is no mention of taking possession of a suit house by PW1, rather his main target was a residential licence. Indeed, PW1 could not tell if he wanted the residential licence for purpose of mortgaging to obtain loan or doing any acts adding something value to it or profitable to him. Nothing tangible was mentioned by PW1 upon which this Court can lean to exercise its discretion to assess any amount of money for general damages befitting to remedy the said breach. The rule is, award of general damages is not automatic upon proof of breach of contract, rather there must be facts to prove that the 7 Plaintiff suffered materially upon breach by a wrongdoer. PW1 could not tell as to how the alleged embarrassment and mental torture caused him to suffer loss. Winfield & Jolowicz on Tort, Fifteenth Edition, at page 757, the prominent author writes, 'The basic principle for the measure of damages in tort as well as in contract is that there should be restitutio in integrum. Apart from the special cases we have

considered: "when any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation " Herein the Plaintiff did not submit enough materials for this court to gauge the assessment of general damages available to him. This being a court of law, must maintain its practice and standard of proof for awarding general damages. To my view, the court cannot venture into assessing and awarding general damages, where the Plaintiff fails to meet even the minimum threshold for establishing that he is entitled to the award. 8 At page 763, Winfield & Jolowicz (supra), commented, "However, in the middle 1960s the courts practically abolished the jury in personal injury actions, principally because juries were considered to be incapable of achieving a measure of uniformity in essentially similar cases. Since then it has become normal for judges to have cited to them previous awards and there is a pattern for various common kinds of injury' I therefore rule that the Plaintiff failed miserably to prove any loss suffered from the said breach. Issue number three, whether the Third Party is

liable to the Defendant. Having ruled that PW1 failed miserably to prove any loss suffered from the said breach, there is no liability which can be shouldered upon the Defendant and thereby extending to the Third Party. However, for the sake of arguments and for purpose of answering the sixth issue, I will deliberate on this issue in view of events giving raise to this case with eventuality of bringing in the Third Party. First and foremost, the Third Party was not privy to exhibit Pl. Her liability depends on the transaction done between her and the Defendant. As prefaced above, the relationship between the Defendant and Third Party was that of a borrower and lander, respectively. In particular, their dispute is centered on the mortgage of a residential licence No. KND024074, which this Court in exhibit 9 DI, decreed in favour of the Defendant commanding the Third Party to release it forthwith. As prefaced above, at the time of executing exhibit Pl, the said residential licence was still in possession of the Third Party (mortgagee). Indeed, that fact was made clear in exhibit Pl. When the Defendant agreed to hand over it within fourteen days, as stipulated in exhibit Pl, he was aware that it was not in his control. Arguably, this Court has already ruled it to be handed over to the Defendant. However, it is common ground that satisfaction of the Court decree can be done out of

court or by way of formal request to the court which issued a decree, asking for its assistance to have the decree executed. Now, for our case here, the decree in exhibit DI was delivered on 17/07/2023 and extracted on 2/08/2023. Exhibit Pl was executed on 11/08/2023. A demand letter (exhibit D3) for releasing a residential licence was send to the Third Party on 20/09/2023. According to exhibit Pl, the Defendant ought to hand over the residential licence to the Plaintiff within fourteen days from the date of payment of advance payment. Exhibit P2, depict advance payment was effected on 17/08/2023. Therefore, when a demand letter exhibit D3 was served to the Third Party on 20/09/2024, already the Defendant was on breach of the terms of exhibit Pl, because fourteen days counting from 17/08/2023 appearing in exhibit P2, expired on 31/08/2023. In that regard, even if it is assumed that the Third Party could release and handover the residential licence to the Defendant io on the same date on 20/09/2023, upon receiving a demand notice exhibit D3, still the Defendant was on breach of the terms of the exhibit Pl read together with exhibit P2, for reason that the Defendant ought to have demanded not later than 31/08/2023 for the Third Party to release the residential licence, which could had the effect of bringing the Third Party within the deadline of exhibit P2. The contention by the

defendant that the Third Party ought to release the residential licence forthwith as decreed in exhibit DI, to my view, it was not such an automatic action. As I have said above, decrees of the court are satisfied by way of the Decree Holder mounting an application for execution of a decree. Herein, the said application was not preferred by the Defendant herein. As I have said, the application for execution which was mounted by the Defendant herein, reflect to have been registered as Execution Application No. 5053 of 2024, as reflected at page two, first line of exhibit D7. Meaning that in the whole of 2023, the Defendant herein did not make any application before this Court which issued a decree exhibit DI asking it to assist him to have the residential licence formerly handed over to him by the Third Party. To my view, the said phrase forthwith appearing in exhibit D7, could be said to be meaningful, if the Court issued a decree had fixed a specific date for handing over. To be more precise, the obligation by the Third Party compliance to the decree of the court for handing over the residential to the Defendant, could be ii an automatic where a specific date or deadline for compliance or handing over, was fixed by the Court. But reading the decree exhibit D7 on its plain meaning, suggest that the Defendant herein was under obligation to request to this Court to have its

decree executed formerly. Short of that, there is no liability whatsoever which can be extended to the Third Party for what was decreed by this Court in exhibit D7. Regard being, execution of a decree is subjected to other procedures like stay of execution. Indeed, after the Defendant herein had preferred Execution No. 5053 of 2024, the same was suspended by the apex Court vide exhibit D7, which at page three goes, I quote, "Accordingly, execution of the decree in Land Case No. 45 of 2019 is hereby stayed pending hearing and determination of this application inter parties before the full Court, except for the order of the taxing officer granting TZS 22,045,515.00 which order is challenged in Civil Reference No. 82841 of2023 pending at the High Court' In view, of the above, legally speaking, no way it can be said that there is any liability arising from compliance of sale agreement exhibit Pl which I have said was subject to execution of a decree in exhibit DI, which could be extended to the Third Party. On the face of the facts, no liability whatsoever can be vested to the Third Party. This is because the terms of exhibit Pl are obvious that parties therein were entering into that contract at their own peril and risk, being 12 aware that the residential licence subject for the contractual terms, was encumbered and in possession of the mortgagee, and subject to court

process like protracted procedures of appeal (with possible reversal), execution of decree, stay and postponement thereof etc. My undertaking, are grounded on the fact that there is a ruling by the apex Court attached to the witness statement of DW2, Civil Application No. 99/17 of 2024 (is brought in by way of judicial notice), where the full Court of Appeal, granted an application for stay of a decree in Land Case No. 45 of 2019. Therefore, all doors and windows for vesting any liability to the Third Party/ are almost closed and shutdown. Any attempt to hold the Third Party liable in respect of the decree stayed by the apex Court, will be contemptuous, which I accordingly escape. Therefore, if there is any contractual obligation, it will be a personal liability of the Defendant. Issue number four, whether upon the Plaintiff abandoning his claims that is (a),(b), (c) and (d) in paragraph 3 of the plaint and in the relief claimed, whether this Court has pecuniary jursidiction to determine the prayers of refund of part payment of purchase price of 50 million. This issue was introduced forcefully by the learned Counsel for Third Party. Arguably, the provisions of section 37 of The Land Disputes Act, Cap 216 R.E. 2019, provides for a minimum amount of 13 a pecuniary jurisdiction over a subject matter for which this Court can exercise jurisdiction, I quote, "Subject to the

provisions of this Act the High Court (Land Division) shall have and exercise originaljurisdiction- (a) in proceedings for the recovery of possession of immovable property in which the value of the property exceeds three hundred million shillings; (b) in other proceedings where the subject matter capable of being estimated at a money value in which the value of the subject matter exceeds two hundred million shillings' Herein a claim for refund of TZS 50,000,000 is indeed below the pecuniary jurisdiction of this Court. However, that sum was not pleaded as a substnative reliefs in the plaint, rather was pleaded as an alternative relief. Therefore it will be wrong to hold a view that upon abandoning his claims in paragraphs (a),(b), (c) and (d) in the relief claimed in the plaint, this Court cease to have pecuniary jursidiction to determine the prayers for refund of part payment of purchase price of 50 million. This is for reasons that, in so far as this Court has jrisdiction to entertain a substantive reliefs for handing over residential licence, it has also jurisdiction to entertain a relief for refund. The situation could be different if the Plaintiff his substantive relief could be a refund of TZS 50,000,000. In that 14 regard, this Court has jurisdiction to entertain a claim for refund of TZS 50,000,000. This adumbration will also take into borad issue number five. Issue

number six, to what reliefs are the parties entitled. Save for a refund from the Defendant, a sum of TZS 50,000,000 paid vide exhibit P2, the Plaintiff is not entitled to any other sum. And the Third Party is absolutely exonerated from any liability whatsoever arising from exhibit Pl where he was not a privy. The said sum of TZS 50,000,0000 will attract a court interest rate of 7% per annum from the date hereof to the date of satisfaction in full. The suit is granted as against the Defendant to the extent adumbrated above. The Plaintiff will have his costs from the Defendant. Also, the Defendant will shoulder all the costs for bringing in the Third Party. -UVANDA JDG 25 Judgment delivered in the presenc^/of Ms. Esther Nyalada learned Counsel for the Plaintiff, also Mr. Ashiru LugyJi^a learned Counsel for the Defendant and in the absence of the Third Party.

VAND DG^ W)25