IN THE COURT
OF APPEAL OF TANZANIA
AT ARUSHA
(CORAM: LUBUVA, J.A., RUTAKANGWA, J.A., And
KIMARO, J.A.)
1. EVARIST PETER KIMATHI ……….………. APPELLANTS
2. MRS. BERTHA EVARIST KIMATHI
PROTAS LAWRENCE
(Appeal from
the Judgment and Decree of the
High Court of Tanzania
(Nchalla,
J.)
dated the 14th
day of June, 1995
in
HC Civil
Case No. 17 of 1985
JUDGMENT
OF THE COURT
25 September
RUTAKANGWA,
J.A.:
The
two appellants, who are husband and wife respectively, were jointly sued by the
late Protas Laurence Mlay (the Plaintiff hereinafter) in the High Court of
Tanzania at Arusha. The cause of action
rested on an alleged breach of an undisputed written contract of sale of a
house, between the plaintiff and the 1st appellant dated 5th
May, 1984. The house (the suit house)
which was the subject of the said contract is situated on Plot No. 17 Block BBB
Section III within the Municipality
of Moshi
The appellants reside at Weruweru Village Moshi District Urban Primary Court
According
to the plaintiff (PW1), in March 1984 the 1st appellant had offered
the suit house for sale. Calist Temu,
who testified as PW2 at the trial, informed the plaintiff, who was then at
Kibondo, of this offer. The plaintiff travelled
to Moshi to see both the 1st appellant and the suit house. He met the 1st appellant and after discussing
the issue, the 1st appellant took the plaintiff and Calist Temu
(PW2) to the suit house for a physical inspection of the same. The plaintiff became interested in buying
it. They agreed on the purchase price of
Tshs. 400,000/=. After receiving an
advance payment of Tshs. 10,000/- for the purpose of redeeming the Right of
Occupancy certificate (Exhibit P1) which he had used as security for securing a
loan, the 1st appellant gave the plaintiff three weeks within which
to pay the remaining Tshs. 390,000/=.
The plaintiff returned to Kibondo, sold his shop merchandise and managed
to raise the amount required. He was
back in Moshi by 3rd May, 1984, when together with his elder brother
Michael Mlay and Calist Temu (PW2), met
the two appellants at their Weruweru residence.
Also present was the 1st appellant’s paternal uncle, Mr.
Mselle, then a District Magistrate.
After showing them Exhibit P1 and a certificate of occupancy (Exhibit
P2) which were in the name of Mrs. Pudenciana P. Kimathi, the 1st
appellant took the plaintiff and his party to the suit house. There the plaintiff was introduced by the 1st
appellant to the tenants of the suit house as their new landlord to whom they
had to pay the subsequent house rents.
On 5th
May, 1984 the 1st appellant and the plaintiff executed a sale
agreement before advocate Shayo. On the
side of the 1st appellant, the agreement was witnessed by his two
brothers, Fidelis and Gido while Calist Temu (PW2) and Laurence Mlay were
witnesses on the side of the plaintiff purchaser.
In the sale
agreement, the 1st appellant is categorically identified not only as
the seller but also as the owner of the suit house which he had inherited from
his deceased mother Mrs. Pudenciana Peter Kimathi. The sale agreement contained these key
provisions:-
4.
Muuzaji
anakiri kuwa yeye binafsi ndiye atakayewajibika kulipa kodi ya aina yeyote ile kama capital gains tax, kodi ya ardhi ambayo haijalipwa mpaka wakati
wa mauzo haya.
5.
Muuzaji
anakiri pia kuwa atashirikiana na mnunuzi kuhamisha nyumba hiyo katika jina la
mnunuzi.
6.
Muuzaji
anamthibitishia mnunuzi kwamba nyumba hiyo haina deni lolote inayodaiwa na
wadeni wa marehemu na kuwa haiko kwenye rehani kwa mtu au shirika lolote, na
ENDAPO kutakuwepo na madai ya aina yoyote ile basi muuzaji ndiye atakayedaiwa
na siyo mnunuzi wa sasa.
7.
Mkataba
huu wa mauzo unategemea kibali cha Waziri wa Ardhi, Nyumba na Maendeleo Mijini. Iwapo Waziri hatatoa kibali hicho kwa ajili
hii muuzaji atamrudishia mnunuzi fedha zake pamoja na gharama zozote
atakazokuwa ametumia kuendeleza nyumba.
8.
Muuzaji
na Mnunuzi wamekubaliana kushirikiana kikamilifu kuhakikisha kuwa masharti ya
Mkataba huu yanazingatiwa kikamilifu kwa ajili ya kuhamisha miliki hiyo kwa
jina la Mnunuzi.
Thereafter the parties paid Mr. Shayo Tshs. 30,000/= and
commissioned him to prepare the conveyancing deed and the 1st
appellant surrendered Exhibits P1 and P2 to advocate Shayo, and gave Tshs.
8,000/= he had already received in advance as rent for the months of June –
August, 1984 to the plaintiff. He also
handed the tenancy agreements between him and the tenants (Exhibit P4) over to
the plaintiff as well as the keys to one of the rooms in the suit house which
he was occupying himself.
The effort
of the plaintiff and Mr. Shayo to obtain the statutory consent of the Director
of Lands Development Services for the transfer of title in the suit house
proved abortive because of the interference of the 2nd appellant. The 2nd appellant secretly obtained
an injunctive order (Exhibit P5) from the Moshi Urban Primary Court
In their
evidence at the trial the appellants did not dispute the sale of the suit house
to the plaintiff. However, the 1st
appellant came up with an ingenious explanation why the sale agreement was not
fully enforced. His defence was simply
that the sale transaction fell through because Mr. Shayo failed to apply for
the statutory consent of the Minister for Lands and further that Mr. Mselle
opposed the sale.
On her part
the second appellant Bertha, (DW2), denied harassing and/or interfering with
the plaintiff in his quiet possession of the suit house. She said that on the authority of “a special
power of attorney” donated to her by Hildegard, she applied for an injunctive
order against the sale of the suit house, which order was issued by the Moshi Urban Primary Court
At the
trial some of the controlling or key issues were whether or not the 1st
appellant had the authority to sell the suit house, and whether the plaintiff
was entitled to compensation. After
carefully scrutinizing the entire evidence before him the learned trial judge
answered the first issue in the negative.
To him the 1st appellant “had
no capacity to sell the suit house as the same had not been bequeathed to him”
and Hildegard had not consented to the sale.
He further held that even if Hildegard had given her consent “the sale would not have been legally
operative without the prior consent of the Commissioner of Lands who was then
known as the Director of Lands Development Services”. Having so found the trial judge proceeded to
hold that the plaintiff could not, therefore, become the lawful owner of the
suit house, as no title passed to him, although he found him to have been a bona
fide purchaser for value.
Another
equally significant issue at the trial was whether the second appellant
prevented the plaintiff from occupying the suit house. This issue was answered by the learned trial
judge in the affirmative. He reached
this conclusion after correctly, in our view, holding that Hildegard being a
court appointed administratrix could not in law appoint another administrator
of her own as she purported to do in the power of attorney she granted to the 2nd
appellant (Exhibit D1). He accordingly
held, again quite correctly, that the 2nd appellant had no locus standi to institute the so called
objection proceedings in 1984, which in our view were totally misconceived and
wrongly entertained, in the Moshi Urban Primary Court Mirathi No. 83 of 1979
and “cause a prohibitory order to be
issued in her favour against the plaintiff”.
On the
basis of these findings, the learned trial judge proceeded to deny the
plaintiff most of the reliefs he was seeking except the ones in respect of
compensation and damages for breach of the contract, refund of the equivalent
of the purchase price as of the date of judgment (i.e. 14/06/1995), interest on
the decretal amount and costs. The
counter-claim was also dismissed.
On the
issue of Compensation the learned judge had this to say:-
…
It is my finding that the plaintiff is entitled to compensation for being
deprived of the use of his money now for 11 years including the depreciation
factor of our shilling due to devaluation.
I believe that compensation is proper on the principle of economics and
commerce applicable in the present world.
The appellants were accordingly ordered to refund the
plaintiff the purchase price and to pay him Tshs. 4,000,000/= being compensation
and damages (both general and punitive) for their “acts in frustrating the deal thereby depriving the plaintiff the house
which he would have lawfully acquired”.
The appellants were also ordered to pay interest on the decretal amount
at the rate of 5% p.a. from September, 1984 until final payment and costs of
the suit.
The two
defendants were aggrieved and hence this appeal. Unfortunately, the plaintiff died before the
appeal was heard and determined. Therefore,
when the appeal was called on for hearing his legal representatives, his son,
Honest Temu and his wife, Mrs. Lucia K. Temu were caused under Rule 98 of the
Rules of the Court, 1979, to be made parties to this appeal in his place. Mr. Mwaluko, learned advocate, appeared for
the two appellants.
The
memorandum of appeal which was filed by the late Mr. Lobulu contains seventeen
(17) grounds of appeal. When the appeal
was called on for hearing Mr. Mwaluko, alive to the fact that what is actually
at issue in this appeal is the propriety of the reliefs awarded by the trial
High Court, abandoned six (6) grounds of appeal and proceeded to argue the
remaining ones together as one. His main
ground of complaint against the High Court decision then was that the trial
judge erred in law in not holding that as the plaintiff was not a bona fide purchaser and the statutory
consent to the transaction had not been sought and obtained, was not entitled
to any moneys, be it damages or compensation, except for the refund of the
purchase price as provided for in the sale agreement, Exhibit P3.
In his bold
attempt to elaborate on this ground of complaint, Mr. Mwaluko first began by
concurring with the learned trial judge on his finding that the 1st
appellant “had no capacity to sell the
suit house”. He proceeded to submit
very forcibly that in view of this holding the learned judge then erred in law
in awarding compensation in the form of both general and punitive damages. He advanced the following reasons in support
of his submission.
Firstly, the sale of the suit house was
not legal because the seller had no legal authority to sell it as he had not
obtained the consent of Hildegard to do so.
Because of this fact, Mr. Mwaluko further submitted, the purchaser was not
entitled to any compensation or damages for he knew from the start that the
seller (1st appellant) had no authority to sell.
Secondly, the sale of the house was
contingent upon obtaining the consent of the Director of Lands Development
Services. Relying on paragraph 7 of Exhibit
P3, Mr. Mwaluko urged the Court to hold that since the said consent was not
granted, the buyer was only entitled to the refund of the purchase price.
Thirdly, that the learned trial judge
did not consider the most pertinent issue in the case, namely that the appellants
were not responsible for the failure to obtain the statutory consent. In support of his submission Mr. Mwaluko
relied on the decision of this Court in TANGANYIKA
STANDARD (N) LTD & ANOTHER v. RUGARABAMU A. MWOMBEKI (1987) TLR 40, wherein it was held that
the quantum of damages is justified where the trial judge takes into account
all pertinent and relevant considerations.
Fourthly,
the plaintiff was not a bona fide
purchaser as wrongly found by the trial
judge. According to Mr. Mwaluko this was
evident from the fact that from the start of the negotiations the plaintiff
knew that the seller was not the owner of the suit house and as the sale
agreement was executed before an advocate of their own choice, the purchaser
ought to have known this fact or had, at least, constructive notice of this
fact. For this proposition, Mr. Mwaluko referred
the Court to the commentaries found in the books entitled, LAND LAW by J.G. RIDDAL 6th edition (1997) at page 84 and MODERN
LAW OF REAL PROPERTY by CHESHIRE & BURNS, 15th edition (1994) at page 60.
Fifthly, that there was no provision in
the sale agreement for payment of compensation in the event the statutory
consent was refused.
Lastly, that although costs are awarded
at the discretion of the court, in this case as the plaintiff had lost on most
of his major claims there was no justification to be awarded costs. At best, according to Mr. Mwaluko, the parties ought to have been ordered to bear
their own costs in the suit.
On their
part, the legal representatives of the late plaintiff, the respondents, simply urged the Court to
dismiss the appeal with costs. It was
their submission that it would be preposterous to hold that the 1st
appellant had no authority to sell the house when he had openly asserted to be
the owner of the same, thereby inducing the plaintiff to purchase it. They firmly maintained that the appellants
were correctly held liable to pay damages for breach of a valid contract. On top of that they strongly submitted that
the 1st appellant had the authority to sell and the deceased
plaintiff honestly believed so and was accordingly a bona fide purchaser for value.
They argued that if the appellant had no such authority, then the sale
agreement would not have been witnessed by his two brothers and he would not
have handed the suit house over to the plaintiff after receiving the purchase
price. They submitted, therefore, that
the learned trial judge was justified in law and on the facts in awarding
damages and costs, and went further arguing that actually the plaintiff
deserved much more than what was awarded to him given the effect of devaluation
on the value of the shilling since 1984 to-date. Mrs. Lucia Temu emphasized that had it not
been for the unjustified interference of the 2nd appellant, who
abused her office, the contract of sale would have been fully executed.
In the
circumstances of the case, it is our view that the pressing issues in this
appeal are two. First, whether or not on the credible evidence available the 1st
appellant had the authority to sell the suit house. Second,
whether the plaintiff was a bona fide
purchaser of the suit house. Apparently,
the thrust of Mr. Mwaluko’s submission was based on this issue. We have found it convenient to start with the
second issue.
The contention
of Mr. Mwaluko in this appeal that the plaintiff was not a bona fide purchaser as he knew that the 1st appellant
had no authority to sell the suit house is based on the principle of law quoted
by J.G. Riddal and Cheshire and Burns in their respective books referred to
above on constructive notice. J.G.
Riddal, (supra) for instance, states this principle at page 84 as follows:-
A
person has constructive notice of all those things which he would have
discovered if he had made inquiries a reasonably prudent person would have
made. If this were not so, purchasers
could “shut their eyes”.
The learned author goes on to say that:-
A
person is deemed to have knowledge of all those things that have come to the
knowledge of his agent, for example, his solicitor. This is termed ‘imputed notice’. Imputed notice includes matters which a
person’s agent would have discovered if the agent had made the inquiries he
should have made. In practice,
imputed notice is treated as being a form of constructive notice, so we merely
say, “without notice, actual or constructive” (emphasis is ours).
We accept
the principle of law as lucidly stated by the learned author. All the same we are settled in our minds that
it is of no assistance to the appellants in this case. Mr. Mwaluko has not told us those things or
matters which the plaintiff or his agent would have discovered had they made a
diligent search or reasonable inquiries which he (Mr. Mwaluko) asserts they
never did. The undisputed facts before
the plaintiff and Mr. Shayo were that the original owner of the suit house had
died long before May, 1984 and the 1st appellant had been appointed
as one of the administrators of the deceased estate in 1979. The 1st appellant was in actual
possession of the right of occupancy certificate for the suit house which he
had pawned for a loan of Tshs. 10,000/= which amount was advanced to the 1st
appellant by the plaintiff in order to redeem it. The 1st appellant after redeeming
it at the time of signing the sale agreement surrendered it to Mr. Shayo for
safe custody pending the transfer of title in the suit property to the
plaintiff. The 1st appellant
in the presence of his two brothers who, very likely were beneficiaries of
their late mother’s estate, went on to bind himself by asserting unequivocally
that he was the owner of the suit house as he had inherited it. He further bound himself by promising to work
closely with the plaintiff and Mr. Shayo to ensure that the necessary statutory
consent of the Director of Lands Development Services was obtained and the
title in the suit house transferred to the plaintiff.
In view of all this the plaintiff and
even Mr. Shayo (who happened to be the vendor’s solicitor) had no duty in law
to make any inquiries. It would have
been different if there had been a registered caveat or injunctive order
against the disposition of the suit house.
Therefore, in the circumstances of this case, the principle of law
tenaciously relied on by Mr. Mwaluko has no application to this case. We wish to make it clear that any laxity in
the application of this principle would enable parties to escape from the full
performance of their obligations under contracts unquestionably entered into by
them. All the more so, it would have the
effect of lessening the authority of written contracts. Was the plaintiff then, in view of this, a bona fide purchaser of the suit house?
The term bona fide purchaser is defined as
follows in Black’s Law Dictionary:-
One
who has purchased property for value without any notice of any defects in the
title of the seller; and/or one who pays valuable consideration, has no notice
of outstanding rights of others and acts in good faith, [at page 121 of the
Abridged sixth edition (1991).]
The
learned trial judge after properly evaluating the entire evidence before him
believed the evidence of the plaintiff and his witness (PW2). After accepting as true their evidence he
reached the conclusion that the
plaintiff was a bona fide purchaser
of the suit house. He cannot be faulted
in any way on this. We entirely agree
with him on this finding. What is more
it is not stated in the sale agreement that the sale was conditional upon
obtaining the consent of Hildegard or any other person other than the consent
to the transfer of title by the Director of Lands. With these facts in mind we hold without any
demur that the 1st appellant was lying when he testified to the
effect that he had told the plaintiff and PW2 Calist Temu that it was
impossible for him to sell the suit house as it was not his property and he was
only an administrator. He was equally
lying when he testified that the plaintiff and Calist Temu (PW2) had told him
that their legal expert (Mr. Shayo) “was permitted at law to facilitate the
sale of estate property by an administrator”.
We are saying so advisedly because all these allegations were raised by
him for the first time when he was testifying.
Neither PW1 nor PW2 were cross-examined on these claims in spite of the
apparently searching cross examination by Mr. Lobulu. Furthermore, if that was the case the 1st
appellant ought to have cross-checked with his undisclosed legal adviser, who
had advised against the disposition of the suit house by him. If he was so advised, why did he enter into
the sale agreement? It is for these
reasons that we have accepted the evidence of the plaintiff and PW2 Calist that
advocate Shayo was the choice of the 1st appellant and not vice
versa.
Regarding
the 2nd appellant, the plaintiff was categorical in his evidence
that on 3rd of May, 1984 she was present at her residence (Weruweru)
when the final details of the sale were worked out. She did not, in any way, deny this piece of
damning evidence against her. We take it
as a fact, therefore, that she acquiesced in the sale of the suit house, in her
capacity as the wife of the 1st appellant.
It is for
these reasons, therefore, we reject Mr. Mwaluko’s submission on this
point. We agree with the learned trial
judge’s finding that the plaintiff was a bona
fide purchaser for value of the suit house.
This we think would still be the position even if it was accepted that
the 1st appellant was not the owner of the suit house. In that case he would be guilty of fraudulent
misrepresentation, that is a representation made knowingly with a deliberate
intention to deceive. Such a
misrepresentation does not, in law, render the contract void, but voidable and
remains binding until set aside. We
think it was correctly stated with sufficient lucidity by Jessel, M.R. as
follows:-
If
a man is induced to enter into a contract by a false representation, it is not
a sufficient answer to him to say, “if you had used due diligence you would
have found out that the statement was untrue.
You had the means afforded you of discovering its falsity and did not
choose to avail yourself of them”, in REDGRAVE
v. HURD, Court of Appeal, (1881) 20 Ch.D. 1.
In such a situation, damages are recoverable by the
injured party. All in all, it is crystal
clear that the two appellants set the stage for the sale transaction so elaborately
that even the most incredulent purchaser would not have thought otherwise. In this regard, we do not think that it would
make any difference on this point even if it is granted that the 1st
appellant had no authority to sell the suit house.
The next
question which follows is whether or not the 1st appellant had
authority to sell the suit house. This
question was answered in the negative by the learned trial judge, because he
believed that the second administrator had not consented to the sale. Mr. Mwaluko is emphatically of the same
view. With due respect, it is our
considered opinion that the 1st appellant, either as one of the
administrators, if the estate was yet to be distributed or as the owner of the
house, having inherited it as he asserted had such authority.
The holding
of the learned trial judge that Hildegard had not consented to the sale is not
supported by any credible evidence on record.
We have had the opportunity of dispassionately scanning the evidence of
both appellants. We failed to glean
therefrom an iota of evidence going to indicate, even remotely, that Hildegard
did not consent to the sale. The
evidence of the 1st appellant bears us out on this. This is what he told the High Court:-
“I
told Calist that it was not easy for me to sell the suit house because I was
only an administrator, the house was not my property. So I told Calist to wait I would inform him
later. I wanted to get first the legal
position, i.e. legal advice whether an administrator of an estate can sell the
estate property. I was the first
administrator of the estate property of our late mother. The second administrator was my sister one
Hildegard Peter Kimathi, who is also alive.
Later after two weeks in the beginning of May, 1984, the plaintiff and
Calist came to me again at my farm house at Weruweru … I told the plaintiff
and Calist that I had got legal advice that an administrator cannot sell estate
property so I was not legally capable to sell the suit house to the plaintiff. The plaintiff, however, told me that he and
Calist had also made investigations and have been legally advised that an
administrator could legally dispose of the estate property … (emphasis is ours).
They then went to meet advocate Shayo
forthwith.
The
evidence of 2nd appellant (DW2) shows that she was given by
Hildegard “a special power of attorney in respect of the suit house”. The said power of attorney (Exhibit D1) was
executed by Hildegard on 21st August, 1984, before advocate Jonathan
of Shayo, Jonathan & Company advocates, and was only duly registered with
the Assistant Registrar of Titles at Moshi on 13th April, 1995. It was this document which she used to obtain
an injunctive order in November, 1984 against the plaintiff. That was all she told the trial High Court.
We
have found the importance of this power of attorney to lie, firstly in the naked fact that it
belies DW2 Bertha in the sense that it does not speak at all of the suit
house. Secondly, as it was executed in August, 1984 it was not meant to
forestall the sale of the suit house, which had already been sold. Thirdly,
it does not in any way contradict the claims of the 1st appellant
that he had inherited the suit house. Fourthly, it is clear evidence that by
August, 1984 Hildegard was in Moshi and if she had any objection to the sale of
the suit house she either would have personally filed a suit against her
brother and the plaintiff to have the sale set aside or applied to the
appointing court to have the appointment of the 1st appellant, if
the estate was yet to be distributed by them revoked. That she did neither of these, she should be estopped
from denying, through a third party, that she did not consent to the sale of
the suit house and/or to challenge the authority of the 1st
appellant to sell the same. Our view on
this aspect is fortified by the witnessing of the sale agreement by their two
brothers and that is why they never testified in favour of the appellants.
All
in all, on the cogent evidence available we are satisfied that the 1st
appellant had the authority to sell the suit house either as the owner of the
same or in his capacity as administrator of their late mother’s estate, with
the consent of all the beneficiaries. We
have not the slightest hesitation in holding that all was well, pending the
consent of the Director of Lands Development Services, until the 2nd
appellant intruded with her dubious obstructions. It was her obstructions
which, in our considered opinion, led unfortunately, to the sad and deplorable
non-enforcement of the otherwise valid sale agreement which was completely
above board. We have no illusions about
the fact that this interference of the 2nd appellant left much to be
desired. It was high-handed and
inexplicable. It is unfortunate that the
plaintiff never appealed, otherwise we would have ordered specific performance
of the contract as this was a clear case of a blatant breach of contract. All the same, where there is a right there is
always a remedy. The appellants cannot
be allowed by the courts to both eat their cake and have it at the same
time. That will be tantamount to a
traversity of justice. This remedy was
rightly given by the learned trial judge.
The
learned trial judge was satisfied that the plaintiff was entitled to damages
and/or compensation because he was prevented from occupying the suit house by
the appellants after purchasing it in good faith for value. Hence his order for refund of the purchase
price and damages to the tune of Tshs. 4,000,000/=. This sum included the depreciation factor on
the purchase price “which money was
withheld from him for 11 years and … was meant to generate profit in business”. We agree.
We
have already accepted as sound the finding of the trial judge that the
plaintiff was a bona fide purchaser
of the suit house. It is our finding
also that it were the appellants who breached the contract by blocking the
genuine efforts of the plaintiff to obtain the necessary statutory consent for
the transfer of title of the suit house, through the so called prohibitory or
injunctive order which was obtained under what appear highly suspicious and
curious circumstances amounting to an abuse of office by the 2nd
appellant. The plaintiff had no share of
blame in this. The reliefs granted by
the trial judge were fully justified on the established facts and in law under
Section 73 (1) of the Law of Contract Act, Cap 345, R.E. 2002. This section provides as follows:-
Where
a contract has been broken, the party who suffers by such breach is entitled to
receive from the party who has broken the contract, compensation for any loss
or damage caused to him thereby, which naturally arose in the usual course of
things from such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it.
The
crucial issue before us is the adequacy of the quantum of damages awarded, in view of the fact that specific performance
of the contract cannot be ordered. It is
common knowledge that damages for breach of contract being pecuniary
compensation which the law awards to a person for the injury or loss sustained
through the act or default of another, may be either general or specific but
not exemplary or punitive. Although the
learned trial judge wrongly awarded punitive damages, there is no doubt that
the plaintiff suffered loss or damage through the established willful breach of
the contract. He was accordingly
entitled to general damages and refund of his purchase money which has been
withheld from him for over twenty one (21) years now. This money has greatly depreciated in value
as the trial judge rightly held. The
plaintiff ought to have been adequately compensated for this loss. We think, therefore, that the amount of Tshs.
4,000,000/= awarded was not adequate enough to cover this loss and injury. We are of the settled mind that he deserved
more.
All
in all, therefore, the award of punitive damages for Tshs. 500,000/= is set
aside as such damages are in law confined only to actions based on the law of
torts. The order for refund of the entire
purchase price is sustained. However, by
invoking the Court’s revisional powers, the amount of general damages awarded
against the appellants is enhanced to Tshs. 20,000,000/=. This amount, which we think takes into
account the depreciation factor on the value of purchase price, will, in our
view, best meet the ends of justice in this case. The entire decretal amount shall carry
interest at the rate ordered by the trial High Court from September, 1984 until
payment in full.
Otherwise,
save to the extent of variation in the amount of damages, the appeal is
dismissed with costs to the respondents.
DATED at DAR ES SALAAM this 16th
day of November, 2006.
D. Z. LUBUVA
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(N.P.Z. CHOCHA)
Ag.
DEPUTY REGISTRAR
COURT
OF APPEAL
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