19950803 TZCA Dar es Salaam

- IN THE COtTT OF APPEAL OF TANZANIA AT NWANZA. (CORAM: LJ.A) CIVIL APPEAL NO. 30 OF 1994 BET;TEEN THE NATIONAL BANK OF COMI€RCE • APPLICANT AND I€THIJSELAMAGONGO PESPONDENT (Appeal arising out of the Ruling/Order of the High Court of Tanzania at Mwanza) (Munyera, J.) dated the 2nd day of August, 1990 in Civil Case No. 18 of 1989

RULING OF THE COURT \IuBu,J&: At -±he commencement of the hearing of this appeal following the Court 9 s prompting it transpired that the record of appeal was not complete. That is, the record of appeal did not incorporate an extract of the order of the High Court dated 2.8.1990 appealed against. When called upon to address the court on this point, Mr. Banturaki, learned counsel for the appellant was apparently not quite clear on the effect of non-compliance with rule 89 regarding the extract of the order. He seemed to be of the view that as the ruling appealed against was already part of the record at page 28 of the proceedings, it was not necessary to have it extracted and itemised in the index However, on further reflection, he correctly in our view bonceded that the record of appeal was incomplete contrary to the provisions of rule 89 (i)(h) of the Court's rules. In these circumstances, Mr. Banturaki left the matter for the Court to decide. -2- For the respondent, Mr0 Kahangwa, learned counsel was brief and precise 0 He stated that the omission t6 incorporate the extract of the order appealed against was a violation of a mandatory requirement of rule 89 of the Court's rules, For this reason, he urged the Court to strike out the appeal which, he said was incompetent. The need for stringent and vigorous adherence to the Court's rules in the processing of appeals before this

Court hardly needs to be overemphasized. There is a series of decisions of this Court to that effect. Time and again we have struck out appeals in which the records of appeal do not incorporate either the decrees or orders appealed against. Among others see for instance: Civil Appeal No 0 -f of 1992 Abdul Aziz All Salim v Hafsa Saleh Mabmoud (unreported) Civil Appeal No 20 of 1996 Euroconsult (Africa) B.U. v French.& Hastings (unreported) In these cases, we struck out the appeals on the ground that the reQords were incomplete contrary to the requirement of rule 89. In the instant case, the appeal arises from the ruling of the High Court at Mwanza (Munyera, J.) dated 2.8.1990. Under the provisioh.s of rule 89 (1)(h) it is a mandatory requirement for the record of appeal to contain copies of the documents listed therein one of which is the order appealed against. This was not included and Mr. Banturaki had no plausible explanation for it except that he said it was due to an oversight. Neither did he apply to be allowed to file a supplementary record in order to rectify the matter. In view of the mandatory requirement of the rule 89, a fact which is as already pointed out was conceded by Mr. Banturaki, there is no way in which we can proceed with this appeal based on an incomplete record. -3- Accordingly, under rule 3 of the Courts ruie, the appeal is struck out, No order as to costs 0 DATED at MNZA this 2nd day of December, i996 / N 0 S. MNZAVAS

JUSTICE OF APPEAL L. i"L MFALIIA JUSTIcE OF APPEAL D. Z. LUBUVA

JUSTICE OF APAL I certify that this is a true copy of the original. B. M. LUM

SENIOPDEPJTTREGISTRAR ~ D p t1DM J N o V tkL IN GTY TiRESIA I'fARIA JOHT LRThIRU RESPONDENT (Appeal from the decision of the High Court of Tanzania at Axusha) (nmuo,_J) dated the 28th day of Augu.st 1992 in High Court Civil Case No, 66 of 1992

JUDGEMENT OF THE COURT J1iJALI,_C.J. This is an appealby one ZAKARIA EARlE BURA, hereinafter called 9 the appellant 9 against the judgeint and decree of the High Court at msia where the respondent 9 neJielf, THRESIA MARIA JOHN MUBIRU, had sixccessfully institute a suit against the appellant. In that suit, the 'espondent sought a declaration to the effect at the sale of the house on Plot No. 64 Block 21 Kaloleni -in Arusha municipality between the appellant and respondents late husband, namely, JOHN EZON MUBIRU is null and void, She also sought vacant possession of the suit premises and costs of the suit. The appellant on his side counter—claimed without success for damages on the ground of trespass by the respondent and in the alternative, a refund of the - -.-----.---- --:-,--T 77 1 2 : purchase price of the suit premises. Aggrieved by the decision of the High Court, Munuo, J., he appeals to thi s Court. He is represented by Mr. Sang'ka, learned - advocate, whereas Mss Bigeye, learned counsel from the - - Tanzania Legal Corporation, represents the respondent. Seven grounds of appeal have been submitted in support - of the appeal. It is-common ground between the parties to this case that the respondent was the wife of one JOHN LEZON - MUBIRU - who died in September 1986. - Furthermore, it is common ground that sometime before that death, the married couple had agreed to jointly

acquire a plot of land and - -- build a matrimonial house thereon. Towards that end the couple applied for a Right of Occupancy in respect of - Plot No.. 64 Block '21 1 , KALOLENI, in Arusha municipality. In response to the application, the couple were jointly given an offer of Right of Occupancy-for a tern of 33 years under a letter Ref. No. ARD/1420/7/F.AK dated 1 3th May 1 977 from the Land Develoent Department in Arusha Area Commissioner'â Office, That Offer was - produced at the trial as exhibit P.2.. Furtherore, - the couple jointly paid various fees in satisfaction of the conditions stipulated in the offer of Right of - - Occupancy and were issued with receipts acknowledging such payments as shown in exhibit p.3 , It is also common ground that the hou.se on Plot No. 64 Block '21' KALOLENI, was built through a- loan given by the National Housing Bank on security of a 3 mortgage of the title to the Right of Occupancy. That mortgage was contained in a mortgage deed produced at the trial as exhibit P.4. Furthermore 9 it is common ground that subsequently, respondent's. husband entered into a written aTreement to sell the suit premises to the appellant. The agreement was dated 27th June 1984 and was in two documents produced at the trial as exhibits 2.8 and D.1 for the resDondent and appellant respectively. Both documents read the sane except that the purchase price reads as

shs0 500,000/= in exhibit 2.8, whereas it reads as shs.. 900,000/= in exhibit D.I. There is also an addendum in exhibit D.1 permitting the vendor to continue in occupation of the suit premises for a prescribed period. • The respondent's case is that the agreement between the appellant and respondent s late husband was • fraudulently made for the purpose of depriving the respondent of her rights in the suit premises. it is • part of the respondent's case that in furtherance of that fraud, respondent! s husband fraudulently obtained a title deed, produced aithe trial as exhibit D.3, purportedly issued in the sole name of respondent's husband, instead of the joint names of the respondent and her late husband. It is part of respondent's case that the appellant was either a party to or knew the fraud. Furthermore, it is respondent's contention that the appellant is entitled, if at all, to a refund • of only the purchase price of shs, 500,000/= shown 4 in exhibit P.3, which was deposited in court by respondent on receipt No. EPLV No 654854 dated 29-7-88. The appellantTs case on the other hand is that the arrangement between the respondent and her late husband • to jointly acquire and build a matrimonial house collapsed as a result of matrimonial problems between • the couple 9 and thereafter respondent's late husband proceeded alone to acquire the plot of land and alone built the

house in question. It is appellant' s contention that no fraud was committed either in obtaining the title deed or the sale of the suit premises. It is part of appellantts case that he is entitled to vacant possession of the suit premises, or in the alteiative to a refund of the purchase price of shs. 900,000/=plus interest, and not the lower sa of shs. 500,000/=, whichwas shown in exhibit p.8 only for the purpose of enabling respondent's husband, as vendor, to pay less tax to theTreasury. It is apparent from the proceedings of this case • that there are two main issues upon which the outcome of this case depends. The first issue is whether the title deed, otherwise known as the Certificate to Right of Occupancy, produced at the trial by the • appellant as exhibit D.3, was fraudulently obtained. The second issue is whether the sale agreement of the • suit premises has any legal efect. 4 I 6 (exhibit D.3) bearing solely the name of respondent's late husband was obtained fraudulently - that is, by deceit and for the purpose of depriving the respondent of he rights in the suit premises. With regard to the second main issue, the 1eaaed trial judge specifically found that "... the late Tkthiru had no capacity to solely sell the house to the defendant because the house was jointly owned by himself and his wife. Without the consent of his wife, the joint owner, the vendor could not

pace the title of the house to the defendant purchaser. We agree with the learned trial judge. We thirk that there are two other reasons why the appellant carnot obtain title to the suit premises on the basis of the sale agreement. The first reason was noted by the learned trial judge when she stated in a part of • her judgement.. The vendor and purchaser colluded j tI and in pari delicto_gue.jwo diffezent sale agreements in order to pass lower taxes. By agreeing to sign \ the shs 500,000/= sale agreement, Exhibit p.8, the purchaser stained his hands and tainted himself with • illegality whether for his benefit or for the benefit of the vendor ,. . • • The learned trial judge of course did not sufficiently articulate the law concerning contracts aimed at defrauding the internal revenue. The law on this point, as established throughout the conimon 7 law system 9 is that such contracts are unenforceable. See the case of "ETILER KARLINI (1954) 62 T.L.R. 85 and NAPIER vs NATIONALBUSIIESS AG-ENCY (1951) 2 ALL er 264. The contract of sale of the suit premises in this case was made under two documents aimed at deceiving the Treasury as to the proper tax liable to be paid for the transaction. Clearly such contract was void, without any legal effect right from the beginning. Of course this does not mean that the appellant has lost ever y- thing including the money he paid as purchase

price. In law 9 he is entitled to the sum of shs. 500 9 000/= which he paid under the illegal contract and which appears to have teen deposited in court by the respondent. The second reason why the appellant could not have obtained the title to the suit premises 9 even if the sale agreement had not been tainted with illegality, is the fact that neither document containing the agreement bears any indication of payment of stamp duty according to the Stamp Duty Act. By law, such omission renders the sale areement inadmissible as evidence in court, unless the party concerned pays the stamp duty before the document is admitted as evidence. See the case of NIZAN vs DEVONSHIRE STORES (1958) EA 72 and SUETDERJI NANJI Ltd. vs MOHAIJEIDALI KASSAN BHALOO EA. (1958) 762. For all the reasons stated above, we are thus satisfied that this appeal has no merits whatsoever