20140311 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DitISION) ' AT DAR ES SALAAM Commercial Case No. 88 of 2011 OYESTERBAY VILLAS LIMITED .................................... PLAINTIFF Versus THE KINONDONI MUNICIPAL COUNCIL ..................... DEFENDANT JUDGMENT [20/01/2014 & 11/03/2014] A.A. Nchimbi, Jhis suit relates to the developments .made on plot No. 322 Ruvu Road and plot No. 277 Mawenzi Road, Oysterbay, Kinondoni Municipality Dar es Salaam. In that regard, the plaintiff's claim, OYSTERBAY VILLAS against the defendant, KINONDONI MUNICIPAL COUNCIL, is for a declaration that the defendant is in breach of contracts entered into by and between them on 13.12.2007, for Joint Venture Development and Joint Ownership of the properties on the two plots above herein, that the defendant be ordered to fully comply with the contents of the contracts executed by undertaking the process of issuance of Certificate of Titles in t joint names of the parties in accordance with the agreed ratio, of 75% for the plaintiff and 25°/o for the defendant, order for payment of $ 30~ 1 000 being compensation for the loss incurred and payment of general and punitive damages. Basically the suit revolves around the construction of the contracts executed by the parties in relation to a joint tenancy and the tenure of the intimated joint ownership. It is not in dispute that the parties herein entered into two joint venture agreements for a development scheme of the two plots referred to above. According"to the agreements the plaintiff was required to construct two blocks of 24 units of residential apartments on the plot along Ruvu Road and 4 blocks of 40 units of residential apartments on Mawenzi Road. The parties also agreed that upon completion of the project the property would be jointly owned by them at a ratio of 75% share by the plaintiff and 25% share by the defendant. Furthermore, according to the addendum to the contracts was made whereby it was agreed that the plain~iff would construct an additional of 4. units on top of the 40 units. Apart from that, the parties mutually agreed on the mode of contribution to the development of the two plots in that the plaintiff was to finance the construction while what prompted the filing of 2 ,.. . this suit was basically the disagreement of the parties with regard to the tenure of the contract. While the plaintiff's construction was that the term of the contract was unlimited the defendant has been persistent that the contract would come to an end upon expiry of the remaining time of the relevant/existing Certificates of Right of Occupancy. Before the hearing of the case commenced five issues were framed to enable the court to go into and determine them. They are: 1. Whether the defendant breached the terms and conditions of the Agreements of Joint Venture Agreement and joint ownership of properties by refusing to transfer the Right of Occupancy into Joint ownership. 2. Whether the agreements entered into between· the plaintiff and the defendant specified the time. limit for Joint ownership of the properties. 3. Whether the Agreements entered into- between the plaintiff and the defendant was Joint ownership of properties or Build Operate Transfer. 3 Ji ,. 4. Whether the plaintiff suffered was as a result of the defendant's refusal to transfer the Right of Occupancy over the properties into Joint ownership. 5. To what reliefs are the parties entitled. During the hearing of the case parties appeared by their advocates namely Mr. Nyamugaruli, Mr. Josiah and Mr. Duncan from the firm of F.K. Law Chambers, Advocates for the plaintiff and Mr. Mahenge, Mr. Deusderit and Mr. Yustus for the defendant respectively. The plaintiff's case is largely based on the testimony of one Samardzic Bakir the Director cum co-owner of the plaintiff's company. He testified as PW I. His testimony was to the effect that the plaintiff's company carries on the business of property development, financing and development. This company entered into a joint partnership venture project · with the defendant on 13.12.2007 as per exhibit P'l' whereby it was to provide complete financing of the project and the defendant's contribution was to provide land. The plaintiff fulfilled its obligation"as a result of which it obtained a Certificate of Occupation, exhibit P '2'. Thereafter, the plaintiff requested the defendant to issue new Certificate of Titles in joint names to no avail at all despite several reminders (exh. P 3). It was·not until the 4 plaintiff sought the ass.istance of the Prime Minister (exh. P 4) that the defendant surrendered the Title Deeds in respect of the two plots to the Commissioner for lafldS (collective exh. P 6) but did not issue the new Certificates of Title as intimated. It is the further evidence of PW I that the plaintiff kept on reminding the defendant to fulfill its obligation of issuing new Title as evidenced by exhibit P '5 'and insisted by the Ministry of Lands in writing (exhibit P '7'). All this did not bear any fruits. More efforts were exerted with a view to compelling the defendant to issue the new Certificate of Title and this time around on 20.10.2011 a meeting was convened. Unfortunately in that meeting the defendant came up with new terms hence having to institute the instant suit. He also thinks that the defendant is in breach of the contract. He also takes the view that the term unexpired residual term appearing in clause 2: 1 of the contract means unlimited term of the lease. PW I admitted to have rented about 70% of the apartments but qualified since there is no title deed it means there can be no business with the other flats. The other two witnesses Shi Yuan (PW 2) and HU BO (PW 3) did not say much on the substance of the dispute because they were not parties to the contracts in question. Save that PW 3 was interested in 5 , • buying some of the apartments but was unable to do that for lack of titles deeds. On the other hand the defence case is that the full performance of the contract between the parties herein was precipitated by the plaintiff on account of misinterpretation of the same. Speaking by Einhard Chidanga, (DW I), a valuer and secretary of the defendant counsel's Investment Committee, Palmon Raymond Rwegashorwa (DW 2), a Land Officer and Jacob Mashan_gg (DW 3) Principal Land Officer it was categorically stated that according to clause 2: 1 of the agreements the lease period as per title deeds is 47 years meaning unexpired residual term computing from the time the agreements were executed in 2007. The Title Deeds tendered as exhibit D I show that plot No. 277 with Title No. 10383 was issued on 22/10//1955 and Title No. 103012 on plot No. 322 was also issued on 22/10/1995 both of which for a term of 99 years. The other limb of defence is that there was no agreement for separate Title deeds or subtitles and, therefore, there could be no right of sale of the apartments, because the law on unit Titles was enacted in 2008 and became operational in 2009. In view of the above it was emphasized that joint ownership was not acquired because the plaintiff came up with a 6 • claim for perpetual ownership instead of the 47 years limit of tenure and for sale of units contrary to clause 9:6 of the agreements where it provides . that each of the partners to manage its percentage of shares and there is no mention of sale. What is all in the contract is founded on tenancy in common and not joint tenancy as claimed by the plaintiff. Therefore, if the property is sold it will have gone outside the possession of the parties. It is the firm position of the [inset 25% share not relationship with the unexpired residual term] defence side that sale fo units is not in accordance with the law and that the defendant did not breach the contract because the surrender of Title Deeds meant readiness to honour the said contract. Upon closure of the defence case the respective counsel owed duty to file written final addresses to which they duly fulfilled. I am respectfully indebted to t~eir arguments and where necessary I will be referring to them in my judgment. I will turn now to discuss the issues before me in the order they appear. The first issue is whether the defendant breached the terms and conditions of the Joint Venture Agreement and joint 7 • ownership of properties by refusing to transfer the Right of Occupancy into joint ownership. In embarking on this issue I propose to start setting out the thrust of the respective counsels' final submissions. It is submitted for the plaintiff that according to the terms of Article II (Clause 2:2) of the contracts read together with Article lX (Clause 9:1) and the recital 'D' of the said contracts, it was agreed that the developed properties will be jointly owned · by the parties at the ratio of 75% by the plaintiff and 25% by the defendant. The ownership of the properties was required to be on complete floors or apartments for each party as provided under clause 9:3 of the terms of contracts· and that the plaintiff shall contribute the construction costs while the defendant's contribution shall be land. It is the plaintiff's further submission that the construction of the properties was. completed as evidenced by exhibit P '2' and P '3' and after that the defendant was requested to issue new Certificate of Titles bearing joint names·of the parties as reflected in Article IV (Clause 4:1) of the contracts. That whereas the plaintiff fulfilled its obligatory part of the contracts defendant, even after several reminders as evidenced by exhibit P 3, did not take any remedial measures instead introduced proposed changes to 8 ' th_e terms and conditions of the contract from 75% and 25% ownership basis for unexpired residual term into Build on Transfer form of contract .. The plaintiff's position is that the proposal of the new terms is contrary to the terms and conditions of the agreements entered into by the parties as confirmed by exhibits P '5' and P '8'. The surrender of Certificate of Titles, exhibit P '6', should have been followed by the process of preparing the joint certificates of right of occupancy. In arguing this issue the defendant's counsel found three factors to be essential for consideration, namely; first, what was the defendant obliged to perform as per contract. second, to what extent were the obligations to be performed and third what were the obstacles for not accomplishing the rest of the obligations. These factors have been considered by counsel in the perspective that the defendant surrendered the original certificates of Right of Occupancy to the Commissioner of Lands as evidenced by exhibit P '6' and that this meant the defendant had discharged its contractual duty as this was the first stage in preparing a joint certificate. The defendant contends that after surrendering the certificates of Right of Occupancy there arose some misunderstandings to the effect that the plaintiff took the view that 9 there should be a certificate of occupancy which does not set out conditions on the period of contract while the defendant was relying on clause 2: 1 of the contracts to bolster the point that the contracts required ·the joint certificate of occupancy to contain conditions on the period of the joint ownership. The defendant claims that it was forced to stop with the remaining process because to abide by the conditions imposed by the plaintiff would mean that the contract was now perpetual in nature. It is also argued by the defendant that the otherfactor that led to the frustration of the execution of the joint ownership title was the plaintiff's demand to prepare different unit titles before division of the apartments as per clause 9:3 and 9:4 (a) and (b) of exhibit P '6'. As may be gleaned from the submissions of counsel it is clear that generally speaking all parties to a contract must precisely perform their obligations as expressed in their agreement and· should there be any breach damages can be claimed. There is · no dispute that the defendant did surrender the original Certificate of Titles to the Commissioner for Lands. Article IV of the contracts explicitly addresses the transfer of the Right ~f Occupancy. It spells out that the defendant had the obligation to undertake the transfer 10 of the Right of Occupancy of the property to be in the joint names of the parties as per their joint venture interests. That process was halted due to the fact that the plaintiff introduced the concept of unit titles a condition which the defendant f9und to have not formed part of the terms of the contrl. and which, above all, was not permissible by the law. Clauses 9~3 and9:4(a) and (b) and 9:6 of the contracts (collective exhibit P 6) appear to have been interpreted differently by the parties. For ease of reference I prefer reproducing them verbatim as follows: 9:3 For avoidance of doubt, the ownership of the property shall be on complete floors or apartments, . all apartments will be divided proportional!,:. according · to the ownership. Numbers of apartments belonging to KMC will be identified different from that of partner. 9:4(a) Occupation of the premises by the parties on leasing the same shall commence at a time when the contractor shall hand over any of the fioor(s) to the parties. 9:6 Each party shall be free to deal with its shares ofJoint venture interest without interference from the other provided 11 ,. • each shall hold the other indemnified against any loss or damage resulting from the action of the other. It seems to me the most problematic clause here is clause 9:6. The plaintiff construed this clause to have imported the possibility of the creation of unit Titles such that each party would be free to even sale its shares to the exclusion of the other. At this juncture it is important, I think, to revisit some of. the other salient features of the contracts executed by and between the parties herein. From the outset the agreement was for Joint Venture Development and Joint Ownership on the plots referred to above. Article I of Agreement defines joint venture project. venture interests and the ownership in the following terms: ARTICLE I: · 1.0 In this Agreement unless the context otherwise requires the following are the meanings: (a) ----------------- (b) ----------------- (c) ----------------- 12 ''Joint venture projecr means the association of the KMC (for Kinondoni Municipal Council as per clause 1.0(a)) and the partner {Partner means M/S Oysterbay Villas Ltd. as per clause 1.0 (b)) for the purpose of constructing----- BLOCKS of---- RESIDENTIAL APARTMENTS on --------------- { d} "Venture interests" Means obligations, benefits and rights of the parties expressed on percentage basis determined in accordance with this Agreement. (el " The ownership" means rights and benefits as a tenant in common. The core features of this part of the agreement are in my view, the following: Firstly, that the parties had ventured to undertake· a joint venture project, secondly, the interest of the parties was based on the percentage of shareholding and thirdly, parties agreed to hold the property as tenants in common. 13 ;· I am quite aware that the legal rules of contractual. interpretation require that as a starting point the· meaning of the document is to be found in the document itself. See the House of Lords' decision in Investors Compensation Scheme V. West Bromwich Building Society (ICS)[1998] I WLR 896. This is because the "courts do not easily accept that people have made linguistic mistakes, particularly in formal documents" See res (supra) at page 913. So the intentions of the parties must be gathered from the,.language of the contract and not from either of them might have had in mind. I am quite alive to the fact that as is the case here, many contractual disputes, in fact the majority, arise out of disagreement concerning the meaning of contractual · provisions. However, the primary rule should always be that effect must be given to the parties' common intention, meaning, what both of them intended on entering into the contract. I gather from the language used in the provisions of the clauses referred to above to be plainly clear that the parties had intended to co-own the property on the basis of holding it as tenants in common. In Board of 14 Trustees of National Provident Fund V. Scotland Securities Ltd. [1996] NZLLR 4 (CA) the New Zealand Court of Appeal held that: " The parties/ particularly knowledgeable and experienced parties legally advise(1✓ are to be taken as having intended what they said. // I fully subscribe to the above holding as it befits the circumstances obtaining in this case. At this juncture I wish to observe that tenancy in common is a form of ownership of real property by two or more parties in equal or unequal shares. It is also important for tenants in common to be clear about the precise agreement between the owners on such matters as the proportions in which the property is owned who can live in the house etc. It follows that the expression in clause 9:6 that "each party shall be free to deal with its share of joint venture" does not exclude the specific- type of concurrent or simultaneous ownership of the property to be held under the mode of tenancy in common as expressly provided under clause 1.0 (e) of the contracts (exhibit P '6' collectively). I will revert to this later below. My conclusion, therefore, is that the defendant had a valid reason for refusing to finalize the process of the transfer of the property despite the 15 initiation to do that by surrendering the Certificates of Occupancy. The misunderstandings which arose go to the substance of the joint venture contracts such that the new Certificate of Titles could not be prepared. While finding so I am quite aware that the defendant had also contributed to the misunderstandings by introducing the concept of Build Offer Transfer. This fact was not controverted. Consequently, as it is basically both parties who caused the misunderstandings the defendant cannot be found to have breached the terms and conditions of the contract. Accordingly, the first issue is answered in the negative because either party has a share of blame. The second issue is whether the agreements entered into between the parties did specify time for joint ownership. From the evidence on record as well as the submissions presented by counsel it is plainly clear that this issue is premised on clause 2: 1 of the contracts (exhibit P '6' collectively). That clause reads as follows: "KINONOONI MUNICIPAL COUNCIL and MIS OYSTERBA Y VILLAS LTD. Shall have joint ownership of 16 the said property to be constructed on plot ------------ within Kinondoni Municipality for the unexpired residual term.,, The interpretation of the expression "unexpired residual term" is what has caused the problem. The plaintiff's position is that the contracts (exhibit P '6') did not specify the time limit of joint ownership of the properties in question. Based on Recital 'C' it is argued that the parties agreed to Jointly develop the properties for commercial gains and any other purp9se that may be agreed upon. It is further argued that under the provisions of Article VI it was agreed that the plaintiff shall contribute to the construction costs while the defendant's contribution shall be the value of the land. In _ view of the term ownership as defined in Article 1 (e) of the contracts it is argued that a distinction has to be made between joint tenancy and tenant in common. In that regard joint tenancy is defined to be a mode of ownership in which all of the joint tenants own the whole whereas a tenant in common owns a share in the land. Consequently, it is contended that when a joint tenant dies the remaining joint tenants continue to hold the whole title by survivorship but when a tenant in common dies her share passes according to her will or the rules of i[ltestacy. It is explained that 17 joint tenancy requires the four unities of possession, time, title and interest whereas a tenancy in common requires only unity.of possession. Article IV (Clause 4:1 and 4:2) of Exhibit P '6' is also referred to in that it was agreed upon by the parties that the defendant shall undertake to transfer the right of occupancy of the properties to be in the joint names of all parties, and that the defendant shall make sure that before the title to the property is partly surrendered from the defendant to the plaintiff, and the property shall be free from any encumbrances or conditions other than those conditions ordinarily contained in the certificate of title. The plaintiff's counsel further hinges the arguments on Article IX clause 9:1 on the proportional percentage of the joint venture interest of the parties and .clauses 9:3 and 9:3 ·which in all allow the parties to be free to deal with its shares of joint venture without interference from the other. This is construed to mean that under joint ownership of properties the parties are free to deal with their shares in their own choice without limitations. On what is meant by the word deal it is argued that according to Black's Law Dictionary, 5th Edition is defined as an arrangement to attain a 18 desired result the prime object being the .purchase, sale or exchange of property for a profit. In view of the aboye, it is argued that the remaining period of joint ownership of the properties in question cannot be 47 years the tenure of the certificate of Titles of both properties being 99 as from 1955. It is submitted clauses 2:1 and 9:6 of the contracts are wrongly interpretated because once the lease period expires then the joint ownership of the properties between the parties will also automatically expire. Following the above, it is submitted that there is no evidence to show that the agreements entered into between the parties does specify the time limit for joint ownership of the propert,ies. The defendant's submissions on this issue have drawn strength from the grammatical meaning of the words unexpired residual term. Reference is made to the Burton's Legal Thesaurus, 4 E 2007 wherein the word unexpired is defined as "remaining term residual time, surplus time unelapsed period." And the word residual as defined in Black's Law Dictionary means "a left over quantity. a reminder ... " Bas~d on share. definitions it is argued that DW I· and DW 3 explained clearly that the tenure of the certificates of occupancy both properties was 19 99 years from 1955 the time they were issued. So the remaining time of the tenure of the same was 47 years at the time the contract, were executed in 2007. It follows that the certificate of Titles were supposed to be prepared for the remaining term of 47 years as from 2007. As stated earlier in this judgment the meaning of a document is to be found in the document itself by deriving ordinary and natural meaning of the words as they are written down. The court first tries to find the ordinary meaning of the words as they are popularly understood unless the context' clearly requires a special or peculiar interpretation. In Hansen, Schrader & Co. V. De Gasper the court, inter alia, held that: "Now it is not for this court to speculate as to what the intentions of the parties were when they entered into the contract. That must be gathered from their language, and it is the duty of the court as far as possible to give to the language used by the parties its ordinary meaning. " _It is, therefore, not doubtful that one of the methods available to the courts to ascertain the ordinary meaning of words is to have recourse to the authoritative dictionaries. It is permissible and often helpful. 20 In this case the clause that brought about this issue _is the expression Unexpired Residual Term as per clause 2:1. That clause clearly states that joint ownership ,of the parties shall be for the unexpired residual term. Black's Law Dictionary defines "residual" as "a left over quantity, a reminder. It is, therefore, clear to me that the remainder period of the certificates of Title on both plots is to be counted from the date the parties herein executed the contracts in 2007. DWI and DW 3 were very clear on this. I am, therefore, not· convinced by the arguments of the plaintiff's counsel because they are not borne out by or derived from the contracts (Collective exhibit P 6). If I may also add the plaintiff's counsel have not offered ·any definition of the term (unexpired residual term"). The contention that parties' liberty to deal with their respective shares of joint ventures without interference from each ·and other that once the lease period expires the joint ownership of the properties between the plaintiff and the· defendant will also automatically expire cannot connote that there is no specific time limit set out in the contracts for joint ownership of the properties. This argument, though it may be indelicate to say, is unformed. The sticking or catch word here is RESIDUAL. 21 Consequently, I answer this second issue in the affirmative in that the specific period for the parties' joint ownership is for the "Unexpired Residual Term" which is 47 years from the date of contracts in 2007. I now move to the third issue which is whether the project was on Build - Operate - Transfer (BOT) or joint ownership. Part of this issue has already been covered in the two issues above. However, I am quick to say that there is abundant evidence that the concept of BOT, as rightly, explained in the defendant's submissions, was introduced after the agreements had been executed between the parties herein. The plaintiff did not accept it nor was it part of any of the agreements executed. The introduction of that concept appears to have been imported from the Public Partnership Act, 2010 which by then (at the time of contracts) was not in existence. It could not, therefore, be permissible for this law to apply retrospectively. In any event, where a contract is in writing, its terms and conditions can only be varied~in writing as well. Further to that consideration is condition precedent for an agreement which varies the terms of an existing contract. In EDWIN SIMON MAMUYA V. ADAM JONAS MBALA [1983] TLR 410(HC), the court made it clear when it put, inter alia, that: 22 (i) Where a contract is in writing, its terms can only be varied in writing, (ii) The agr:eement which varies the terms of an existing contract must be supported by consideration. (iii) --------- (iv) ---------- The defendant is obviously defeated by the principles derived in this case. I will, nevertheless, proceed to attempt a bit more discussion on what the contracts between the parties herein in the ultimate explore about the form of ownership indicated to be joint ownership at the_ same time described as tenant in common. I need pointe>ut here that our laws recognize both joint tenancy and tenancy in common. According to section 159 (3) of the Land Act, Cap 113 RE 2002, an instrument made in favour of two or more persons and the registration giving effect shall: (a) Whether those-persons are joint occupiers or occupiers in common; And (b) Where they are occupiers in common, the share of each other. 23 And sub section 5 of the Act stipulates that land occupied in common each occupier shall be entitled to an undivided share in whole and on death of an occupier, his share shall be treated as part of his estate. From the clear language of the provisions of the law above it is important to emphasize that there is essential distinction between joint occupancy and occupancy in common for joint occupancy arises when two or more owners have ownership of the whole property and no single occupier holds a specific land of that share. Two or more persons share equal ownership of the property and have equal undivided right to keep or dispose of the property. The tenants have right of survivorship, that means the entire share of the deceased joint tenant automatically passes on to the surviving joint tenants, the last survivor become? the absolute and sole owner. Therefore, unlike tenancy in common, property in joint tenancy is not subject to probate or daims of anyone and passes on free. As rightly submitted by the plaintiff's counsel, in summary, the constituents of a valid joint tenancy are: (a) Unity of title: joint tenants must hold property under one document; (b) Unity of time: they must start and end on the same date; 24 (c) Unity of possession: all tenants have equal rights to possess the whole property and ( d) Unity of interest: they must have equal interests in the whole of the property. Now according to the contacts executed by the parties in this ~ase ea~h - f party has distinct shares apportioned in the ratio of 75% fo0the plaintiff and 25% for the defendant respectively. · Article IX clause 9: 1 of the contract provides that: The properties upon completion of the construction work shall be owned by the parties in proportion to the percentage . of their Joint venture interests as provided under clause D ang Article 2 of this Agreement. The difference between joint tenancy and tenancy in common was very well drawn in the case of BUDHSEN V. SHEEL CHANDRA AGRAWAi & OTHERS AIR 1978 ALL 88. The court found that a joint tenancy connotes unity of title, possession of interest and commencement of title, in tenancy in common there may be unity of possession and commencement of title but the other two features would be absent. The 25 - - -- ----- -- - --- ~ " - - -' - - - court then held that even though there was unity of possession in both there would be no unity of title in the case of tenancy in common. And in the case of SHIDHAR GHOSE V. HARIMOHAN SAHU (AIR 1964 ORl 141) the court laid down essential difference that a joint tenancy can be created by only the acts of parties and not by operation of law, while a tenancy in common could arise by operation of law. From the foregoing, there is no room for entertaining any doubt that the fact that the time limit for the jointownership was agreed to be for the unexpired residual term and that each party has a definable share of the properties, as expounded above, it follows that the property must have been intended to be held under occupancy in common. This stance is further given strength in the contracts by the definition of ownership which is the "rights and benefits as a tenant in common" and that also the reference to the parties shall include the respective successors, transferees and assigns and the parties shall own the property in proportion to the percentage of their joint venture interests". In that vein, the contracts spell out clearly under Article IV clause 9:3 that: 9:3 For avoidance of daub~ the ownership of the property shall be on complete floors or apartments, all • apartments will be divided proportionally according to the ownership. Numbers of apartments belonging to KMC will be identified from. that of partner. This is the parties' own agreement which has not been repudiated. It is a conclusive and binding agreement. When dealing with conveyance in favour of co-owners the court in Goodman V. Gallant {1986) Fam 106 explained that where convevance in favour of the co-owners contains an express declaration of how the co-owners should hold the equitable interest in the propertv, this declaration is conclusive. Drawing from S. 159 (5) of the Land Act (supra), and from what has been demonstrated above, it befits the conclusion that where the equity of property is held as tenants in common, as in this case, each party will own definable share which they may sell. mortgage, give away or leave in their will. Each party in this case has a share and that the agreement has a timelimit. The burning lingering question is how are the shares of the individual parties to be dealt with specifically. The plaintiff through PW I thinks that it is not restricted:to deal with it is shares in any manner it' wants. The converse is what the defendant thinks. 27 -r- - - ~ - - - - - - - . ' -~ - - - - - - - - - - - The contracts insert a condition, in general terms, on how to deal with the shares of each individual party. It is simply provided the parties shall be free to deal with each one's own shares of the joint ventures without interference from the other. It is, therefore, important to seek guidance from the law. To this I have in mind S. 159(6) of the Land Act which provides that" no occupier in common shall deal with' his undivided share in favour of any person other than another occupier in common, except with consent in writing or in any other manner which signifies clearly that the consent is freely given and without undue pressure of the remaining occupiers, but such consent shall not be unreasonably withheld. This position_ was better explained in the case of H. N. KEMPA! GOWDER V. THE COMMISSIONER OF AGRICULTURAL INCOME TAX, (1964) 1 MU 51. In that case it was found that, "a tenant in common cannot be said to be a person not in possession or enjoyment of the estate and that when the interest of each tenant is specified and determined there cal} be no objection for holding that he is entitled to possess and enjoy such fractional interest in the estate or holding though no distinct part of it might be set apart for exclusive enjoyment': 28 That answers the rival arguments on the construction of Article IX clauses 9:3 and 9:6 of the agreements. So I will answer the third issue that the project, as per contracts, was not founded on Build- Operate - Transfer (BOT) Scheme as the Private Partnership Act was not inforce b/then. It was instead based on the mode of joint ownership to the extent shown above. The fourth issue is whether the plaintiff has suffered loss as a result of the defendant's refusal to transfer the Right of Occupancy over the properties into joint ownership. I will briefly make the following findings. I have found in this judgment that both parties are to blame, to whatever degree, on what had transpired - culminating in the filing of this suit. Be that as it may, from the evidence the defendant has not been handed over its shares as per the contracts. Further to that the plaintiff, speaking by PW I, testified categorically that around 70% of its apartments are rented. This was done without the involvement of the defendant and it is not known as to how much, in terms. of business, is being realized out of that undertaking. Under. the circumstances i_t would be v~ry unreasonable . to find that the plaintiff has suffered any loss and how much if at all. It is, 29 on the other hand, to be expected or reasonable to think that the plaintiff is ripping profit from· the rentals. In any case there is no iota of evidence which tends to even suggest that the plaintiff has suffered any loss. In the event, this issue is answered in the negative. Finally is the issue on reliefs. In the plaint the plaintiff prays for judgment, decree and orders against the defendant on the following reliefs: (i) A declaration that the Defendant is in breach of the Contracts entered into by and between the Plaintiff and the Defendant· (ii) A declaration that the Plaintiff has suffere~ and is entitled to claim, losses and damages as a result of the Defendant's breach of the Contracts; (iii) The Defendant be ordered to fully comply with/perform the contracts and fulfill the terms, conditions, obligations and requirements of the Contracts by undertaking the process of issuance of new Certificate of Titles in the joint names of the Parties in accordance with the agreed ratio 30 of 75% Plaintiff's and 25% Defendant's asper Articles 11✓ IV and IX (Clause 9:3) of the Contracts; (iv) Order for payment of the total sum of United States Dollars Three Hundred · Thousands only (USD $ 300,000/=), being compensation for losses, damages, costs and expenses incurred by the Plaintiff due to the Plaintiff's failure to utilize and/or commercially deal with developed Properties; (v) Order fot payment of general and punitive damages suffered by the Plaintiff due to the Defendant's failure and neglect to fully comply with and fulfill the terms and conditions of the Contracts as will be assessed by the Honourable Court; (vi) Order for payment of interest on the decre.tal sum at the commercial rate of 2 J% per annum in respect of items (iv) and (v) computed from the month of August 2010,being the date of completion of the buildings, to the date -, . of Judgment, and interest at Court's rate from the 31 date. of Judgment to the date of payment in full satisfaction of the decree; (vii) Costs of this suit; (viii) Any other relief(s) as the Honourable Court may find fit and Just to grant. Reliefs (i) and (ii) are rejected. The reason is as found in first issue the defendant cannot be said to have breached the terms and conditions of the contract. Each of the parties has a share of blame as to why the contracts were oot fully performed and that there is no basis upon which the plaintiff would be entitled to compensation and award of damages. I have no quarrel with relief (iii) as that is what was intimated by the parties herein. It is therefore, ordered that that defendant to fulfill its obligation of processing Certificate of Titles in the joint names of the parties in accordance with the agreed ratio of shares at 75% for the plaintiff a~d 25% for the defendant as per Article II,IV and IX(Clause (9:3) of the contracts. As for relief (iv) I decline awarding a sum of U $ 300,000 because there is no proof of any loss and damages suffered by the plaintiff who 32 as said above, has already rented to tenants 70% of the ap9 rtments. In any case special damages must be specifically pleaded and proved. The plaintiff has not been able to meet this requirement. See ZUBER! AUGUSTION V. VINCENT MUGABE [1992] TLR 137 cited in KINONDONI MUNICIPAL CUNCIL V. EMPIRE PROPERTIES LTD. Land case No. 66 of 2006 referred in the submissions of counsel for the defendant. Most importantly the plaintiff cannot claim for damages or compensation because it has not fully fulfilled its obligation under the contracts. From the foregoing, it follows that the claim for reliefs in items (v) and (vi) are hereby ordered rejected. In the final analysis, judgment is hereby ordered entered in favour of the plaintiff to the extent shown above. On the costs of the suit, I am inclined to order each party to bear its own because of the sharing of the blame for frustrating the performance of the contracts as I have JUDGE 11/03/2014 33 .,