19801021 TZHC Mwanza

- .- - 1 •-• -. ' - - IN THE HIGH COURT OF TANZANIA AT MWANZA (pc) CIVIL APPEAL NO.323/1975. (From the decision f the District Court of Bukoba at Bukoba in Civil Appeal No. 185/75 SospaterRushaija ....,............ Appellant versus Yona Rugarabamu •.....-.............. Respondent JUDGMENT RUBAMA. J: In this second appeal, YONA RUGARABAMU claims to have purchased a shamba from one ALFRED KASSIM OBARA for 1,300/= (one thousand three hundred shillings). He paid 9001= (nine hundred shillings), in advance and prOmised to pay 4001= (four hundred shillings) atthe end of,.the month that the claimed sale of the shamba is said to have taken place-. -This balance of 400,1= was not paid as promised. Yona Rugarabamu claims that 3ontrary to the agreement, Alfred Kassim Obara resold this. ahamba to one Sospater Lushaija, the appellant. Alfred Kassim Obara claimed that the original sale betweoi himself and Yona Rugarabamu had been transtrated as a resu't of the failure by Yona Rugarabamu to fulfil a condition precedent to the sale agreement i.e. payment of the.balano,,of-thè agreed sale price - she. 4001=. it has been claimed that the sale agreement was subject to the fulfilment of this condition-. When this case was beforethe PrImary.Court it-was found- for the appellant -the person to whom the-suit sbamba'was 'sold' for the second time. On appeal to the District Court,: this decision was rpversad :L. in favour of thea'igina]!buyer'.of the said shamba. The'f.rst appellate court in handling the appeal rightly drew his attention, to the wording of the sale agreement between Yona-Rugarabamu and AlfrdKas8imObara and conolded that the wording left him in no doubt that there was no oondii-on precedent of any sort to the conclusion of the agreement. Having so arrived to this conclusIon he found there had been a ,vaLid sale of the shamba in dispute to Yona .Rugarabamu - the respondent., Th.e agreement reads:- . • "I Alfred Kassim 'Obara have 'sold my shamba of banana trees together with open lAnd (Mbuga land) to him Yona Rugarabarnu which is. planted with enoulptua trees and , Perebori3 txèes for an agreed price of she. ], 300/. (one thousand three hundred).. He had paid in advance she. 900/=-(leaving. balance.of.shs. •400/ (Four hundred) which he 'willpay at the end of this.: month.' (nphasis supplied) The document was signed by the parties and witnessed. Reading this agreement I can deciphe no condition precedent the lack of which fulfil- ment by'tere,epoiident could have led to the said agreement being transt-. rated / Like th'4oarned district magisi;rate, I find the respondent had 1. botght the shamba ii''dispute from Alfred Kassim Obara and as such the said Alfred Kassim 'Obra had no title to pass to Sospater Lushaija. This appeal is thus withdut merit dnd accordingly dismissed with costs, The ecision of the first 1appellate oount is hereby affirmed. \ I' SGD • YAHYA BUBAMA -' JUDGE -• 21/10/80 I hereby -certify that this-: is 'the true copyf t. flriginal- - -- DISTRI P EGRR