19820308 TZCA Dar es Salaam

- ' _ _ .1, r~· •'r:--.. - - ,., .. ._.,·} p-~;J' IN TII8 COUTIT OJ' APVi:i/\L 01, TANZANIA , . AT DAR :GS SA.Lt..AM CIVIL APT:CAL NO. 1 OF 1982 MOHill!D::;DALI AKE;:i";R RJ,. JPAR) !/IBHIDOB AKillR HAJI ) ' • .. 0 Q e O .- • 0 • e • • • APPELLANTS A lJ D 1. KASSAM.ALI M3RALI BHARWAlJI ) e • • • • • • • • • r , RESPONDENTS 2. MRS. GULSHAN KASSAT!ILLI IlI·lAJ.WAlH) (Appeal from· the JuC:r:,'111ertt and decree of the High Court of Tanzam,a at Dar es Salaam -(Kimicha, J.) dated 20th October, 1981. in Civil Case No. 144 of 1977 JUJ)GIJ::;HT OF 'riiE COURT There are two short 11oin-cs fer G.2cision in this appeal (1) whether consent from the Registrar of fuildinr.;s had be0n obtained for the transfer of flat No. 3, Plot 399/9 a'c I:::-1dependence Avenue, Dar es Salaam by respondents Bharwani to appellm:t Ibjp,u (2) if no_ .consent had been /'- , obtained -;,he ther consent rvas not foTtlwomin_z at the instance of Bharwani. The agreement of sale? w.::i s d::, ted 29th June, 1976 and was duly signed I by both Bharwani and ?.B.j;)al', It v,12s an express term of the agreement that the sale vms subject to consent being obtained from the . Registrar of Mldings, In the High Court l3harvmni hnd successfully applied for a de:il.aration that the agreement 1:vas void for lack of consent and for consequenti2l relief. • The following facts are not in :.:ispute, After the sale agreement was signed, Ilharwani left fol' the United. Kingdom on or about 18th July, 1976. Possession of the flat vms given to Rajpar in or about September, 1976 and the purchase price, Shs. 75,000/= was paid over at •.• 0 •• /2 ••• .. . ' 2 ( about the same time. Patel & Co. lidvocates for the parties in this sale trcmsaction, had. a1,plied for co:r,sent in or about June, 1976 and a receipt for Shs. 100/= in respect of consent fee for the sale was issued by the Registrar of b1.J.ildings in the name of Bharwani on 12. 7. 76. However it is common grounc~ that u J.etter granting consent would normally issue fro~ the ~egistrar of Bu.ildings. No such letter had been issued. . DW3 Tonzi was an official in the Registrar of Buildings dealing with this matter. He had drafted and or sicned several letters in connection with this trc:msaction. Eis testimony in Court has been seriously challenged by Nr. Iakha for the r2spondent Bharwani. Mr. Iakha has submitted that DW.2 R'.mzi is completely unreliable and that his testimony is contradictory anct worthless. We do not propose to go into nny detailed examination of his evidence or the contents of the letters he had sicned. It is true th2t some of his evidence is in conflict with evidence t_;i ven by other ·:i tnesses and some of his evidence C vmuld appear to be in sone w2.ys self contradictory. fut unfortunately to a greater_ or. lesser e:ctent thot criticism would apply to the other principal witnesses v-rho had testified. We agree that DW.3 funzi is not a satisfactory witness and :,e will only accept those parts of Bhanzi's evidence wl'1ich 8re corroborated or GLc:::ported by other credible independent testimony. rnv.3 Ilanzi had testified that J]1a:r'N::ni h2.d. aJproached him prior to the preparation of the agreement of sale. He stated that he had asked Bharwani to go -to J?2iteJ. & Co. fo:c the preparation of the legal document and that consent would ~wt be any problem. A receipt for Lhs. 100/== for consent 1Nc,S issued to J3harwani on 12.7.76. He then prepared a letter of consent on 14.7.76 but before it could be despatched Bharwani came to him and. asked him to cancel the letter of consent as the deal had fallen through. IIe then put a line across the letter and it was never sent out. It is not disputed that iliarr.1ar1i a11d. lbjpar a11proached Patel & Co. for the preparation o? the leg:::,l document of sale. In one of the recitals to the agreement it i:::: stated that the fcegistrar of Buildings has indicated that there ,,ocJ.d 1i?. no objection to consent being granted. This would support JJVl.3- ::bn,::;i 1s evidence that Bharwani c2me to him before the agreement was prep2red and th::d; }10 had told Bharv,ani that consent would be no problem. In hj_:::: testinony :Gharwani stated inter alia ........ . /3. QI • - ~ 3 ~ n I w~nt to the Unitod Kiri-[;dbw. (~bout· . . . . 1-8.7;:jG} the negotiations• with Raji:ia'r .,.1ere completely c:mcelled ••.••••••• ,. Liy brother lmew of the canoellah~n of the n~·.sc:-:i::.ti~!l by 14~••~ . ~11 m~· also produced a letter e:~hibit P,18 dated 22.6.77 and addressed to the Registrar of Buildings in which he in:formed the Piegistrar that before · •• he left for the United Kin,:dom he hs.~".ccncelled t4e agreement concerning Flat No. 3 that he had entered into with :Rajpar. 0 The evidence of' Dl11.2r1vani clearly il'::dic·ites that he, had unilaterally cancelled the agreeri1ent on or about 14. 7. 76; this corroborates substanti- ally what DW.3 Tonzi ha:~ t:,st:L:fied aboiit Bhar-.,rani asking him to cancel the letter oi: consent Tonzi h:::id prep.::red. Mr. Raithatha who appe8rec1 foT th::; a,:pellants has submitted that ·c; the consent receipt wns evidenco tli3t consent .was given. In our view it could be some evidence o:? consent, tut we are satisfied that some further act vras necessary, ltlc2 a letter to the parties ::;rantinc. consent. We clo not think this com,::mt receir,t -::i;i, itself was sufficient evidence of consent, it was merely a step tm·:c1rds cranting consent. We are however satisfied 1 from l:.is 01-r.;:1 mouth, that Bhanvani himself had cancelL:d the agreeEent by ;/:..ich Vie ui1c:erst,,nd him to mean that he had taken steps to do so. Iie .;::aust have (lone so by informing J.'Jlf.3 llinzi that the <leaJ. had f2llen t1,Tough, c,r,'. that the letter of, consent prepared by Ibnzi should there:.?ore be cancelled, \,j1ich I'enzi did. Consent to the sale agreement waG tL,::refore, in our opinion, not forthcoming at the inst2nce of the., r~spondent 13.hanvani. Prom the evidence there did not ,)eem to be ,my ob::t2cle to consent being granted to the so=-;le agreement in normal ci.rcutistances. This sale agree:rp.ent was a normal one anc1, was rn.a(Le in nonlfil circur.1~::tances, and it seems ·co us that if both the parties ever,, nov: o.p:c,ly for consent, it couid be forthcoming. It ii3 difficult to comprehenc, why- ]Jharwani should have acted as he did, in blockin;:; consent on 14.7.76 1 and thereafter o.ccepting pFyment of Shs. 75,000/= and handin&; ov-eT ro ·,::.,er;sion of the flat to the aJpell[!llt Ilajpar in September, 1976. IIov:ever t::c.:.t is not a problem we are called upon to solve. We think that ·;;:::1e na'i:urn o' thL; ;:,greement of sale would necessarily imply that both the parties ,mulcl uue their efforts to obtain consent. We have found t~1at :iJ112:cF12ni hnc: ).:reYonted the cistntinc; of consent. We are of opinion that lliarw2ni cec:'.'mot tc:.ko ::cidvantac;e of his own wrong, and • 4 cannol succeed in having the agreer.1ent declared null anc} void for lack • of consent. Indeed, if any party coulc~ have asked for such a decla.rotion, it would have been the a;_:>pel1a11t · ajpar. Vie will only refer to Aida Hunes v. J.M.Iif. J0FJ0 _._ ..... ~;,, ----- & Another (1962) EA 88 at 92 in this connection. The appeal suceeds. 'i"/e set aside the judgment, declaration and order of the High :-:!ourt. As the appellnnts are in possession of the flat no further order need _be made. The appellants shall have the costs here and below. \ DATED at DAR ES SALMIJ. this 8th day of March, 1982. A. MUSTAFA JUS'l'ICE OF APPEAL y .:M.r,'I. r,MAKASEIIDO JU~TICE OF APPEAL I certify ( r