GEORGE SHAMBWE v NATIONAL PRINTING COMPANY LTD 1995 TLR 262 (CA)
Court Court of Appeal - Dar Es Salaam
Judge Omar JJA, Mnzavas JJA and Lubuva JJA D
Civil Appeal No 19 of 1995
October 27, 1995
E (From judgment of the High Court of Tanzania at Dar es Salaam, Mkude, J)
Flynote
Contract - Contract of Sale of Land - Agreement reached but vendor refuses to sign it
despite benefiting from consideration furnished by purchaser - Effect thereof. F
Land law - Disposition of interest in land - Agreement is made but vendor despite
receiving and benefiting from consideration under the agreement, refuses to sign it -
Consent to transfer not sought and obtained from the Commissoner for Lands -
Whether there was a sale agreement - Rule 3 of the Land Regulation. G
-Headnote
After an agreement had been reached between a vendor and purchaser of an interest
in land and after the vendor had benefited from the consideration under the
agreement the vendor refused to sign the written agreement and sought to disown the
agreement altogether. The vendor sued the purchaser claiming vacant H possession
of the suit premises. The vendor argued that there was no agreement because the
consent of the Commissioner for Lands had not been sought and obtained as required
by reg 3(1) of the Land Regulations 1948. The High Court found that there was an
agreement between the vendor and the purchaser, that the vendor had breached that
agreement by his refusal to execute the written agreement and that though
inoperative for lack of approval of the I
1995 TLR p263
LUBUVA JA
Commissioner for Lands the agreement was nevertheless binding as between the A
vendor and the purchaser. The vendor appealed to the Court of Appeal of Tanzania
arguing that there was no agreement of sale of the house.
Held:
(i) On the basis of the evidence there was a concluded agreement for sale
of the house between the appellant and the respondent; B
(ii) It is not correct to say that because the approval of the Commissioner
for Lands had not been obtained therefore there was no agreement of sale between
the appellant and the respondent;
(iii) Though the agreement for sale of the house was inoperative as it was
not C approved by the Commissioner for Lands, it did not also mean that there was
no binding agreement as borne out by the evidence;
(iv) An agreement for disposition of a right of occupancy is inoperative in
the sense that property does not pass unless and until the approval of the
Commissioner for Lands is obtained.
(v) Having breached the agreement the appellant cannot validly resort to
reg 3(1) of the Land Regulations, 1948 in defence; D
Case Infomation
Appeal dismissed.
Cases referred to:
(1) Peter Karanti and 48 others v. Attorney General Civil Appeal No 3 of 1988
(unreported) E
(2) J M Kasuka v. George Humba, Civil Appeal No 35 of 1990
(3) Millen Richard v. Ayub Hoza [1992] TLR 385
(4) Fazal Kassam v A N Kassam [1960] EA 1042
Semgalawe for the appellant. F
Maira for the respondent.
[zJDz]Judgment
Lubuva JA delivered the following considered judgment of the Court: G
This appeal arises from the decision of the High Court (Mkude, J) in Civil Case No 123
of 1990. In that case the plaintiff, George Shambwe (hereinafter called the appellant)
had instituted a suit against the defendant, the National Printing Company Limited
(hereinafter called the respondent) seeking among other reliefs, H a declaratory
judgment that the sale agreement between the appellant and the respondent for the
purchase of the house was inoperative and an order for vacant possession of the suit
premises by the respondent.
The background to the case is simple and the facts are also not disputed. The appellant
owned a house on Plot No 86 Wakulima I
1995 TLR p264
LUBUVA JA
A Road, Kinondoni District within the City of Dar es Salaam. The house was
mortgaged to the National Bank of Commerce as security for the loan which the
appellant had raised from the bank. For the initial period up to 30 July 1987 the
respondent/defendant had rented the house from the appellant/plaintiff. While still B
in occupation of the house under the rental arrangement, the respondent expressed
his interest to purchase the house from the owner, the appellant. Negotiations started
and it was agreed that the purchase price for the house would be Shs 850,000/=. It was
further agreed that the respondent would pay part of the C purchase price to the
National Bank of Commerce in order to redeem the mortgage and the balance of Shs
143,000/= to be paid to the appellant through his lawyers M/S Kijugo and Company,
Advocates, who, it was intended would settle the appellant's other financial
commitments. On the other hand, for the purpose of effecting the sale transaction of
the house, the defendant company had sought the services of the Tanzania Legal
Corporation. D
It is apparent, however, that though the respondent company had as agreed paid
certain sums of money towards the redemption of the appellant's mortgage, the
mortgage still remained unredeemed at Shs 483,631/= by December 1989. In E these
circumstances, the appellant decided to redeem the mortgage directly. With the
assistance of his wife, the appellant paid to the National Bank of Commerce Shs
455,000/=. The respondent was notified by letter from the appellant that whatever
amount of money the respondent had paid to the bank would be treated as rent for
the period that the respondent had occupied the house. This, it appears F sparked off
controversy between the appellant and the respondent over the house in dispute. The
appellant was pressing for the respondent to vacate the house in which he wanted to
effect repair works. On the other hand, the G respondent was refusing to vacate the
house for which he was demanding the plaintiff to effect the transfer in terms of the
sale agreement. Before the High Court at Dar es Salaam, as indicated, the
appellant/plaintiff instituted a suit against the respondent company. The learned Trial
Judge dismissed the suit with costs to the defendant. Aggrieved by that decision, the
appellant has appealed to this Court. H
Mr Semgalawe, learned advocate for the appellant has filed and argued the following
two grounds of appeal:
'1. That the trial Honourable Judge erred in law in holding that the
appellant was in breach of the sale agreement, which I
1995 TLR p265
LUBUVA JA
agreement was not executed, and consented to by the Commissioner
for Lands. A
2. That the Honourable Judge erred in law in not granting reliefs sought
by the appellant because he found it would be inequitable to grant reliefs as the
appellant was in breach of the sale agreement.' B
Arguing on ground one before us, Mr Semgalawe, learned Counsel was brief but
pertinent, He strongly criticized the learned Trial Judge in holding that the appellant
was in breach of the sale agreement. Learned Counsel took the view that the decision
of the matter depended on the law governing the deposition of a right of occupancy as
provided in the Land Regulations 1948. C
Repeating the appellant's argument before the High Court, learned Counsel submitted
that in terms of reg 3(1) of the Land Regulation 1948 a disposition of a Right of
Occupancy is inoperative if it is not in writing and is not approved by the D
Commissioner for Lands. In support of this proposition, Mr Semgalawe referred us to
the decided cases listed at page 94 of the proceedings which among others include our
decision in Peter Karanti and 48 Others v Attorney General (1), J M Kasuka v George
Humba (2) and Millen Richard v Ayub Hoza (3). On the basis of reg 3(1) and the fact
that the Commissioner for Lands had not approved the E disposition, Mr Semgalawe
maintained there was no agreement which the appellant was held by the learned
Trial Judge to have breached. Alternatively, it was Mr Semgalawe's submission that if
there was such an agreement, it was not legally enforceable. This aspect, the learned
Counsel asserted, was not taken into account properly by the learned judge. F
Mr Maira, learned Counsel for the respondent, submitted that the learned Trial
Judge's decision could not, in the circumstances of the case be faulted. Elaborating on
this, Mr Maira referred to the time-honoured maxim 'he who resorts G to equity
must come with clean hands'. He submitted that it would be inequitable, unjust and
repugnant to justice to sustain the appellant's appeal because his case was fraught with
fraud which was admitted by the appellant at page 58 of the proceedings. He also
submitted that having regard to the H background of the case as a whole, it was clear
that the appellant and the respondent had entered into a sale agreement which was
legally binding upon them. That on the basis of the agreement, there was
consideration from the respondent which the appellant benefited, i.e. the appellant
had his mortgage with the National Bank of Commerce satisfied as the respondent
effected I
1995 TLR p266
LUBUVA JA
A the payment for the sale price to the bank (NBC) as agreed. It was Mr Maira's
further submission that the appellant should not be allowed to benefit from his own
breach which resulted in the breach of the sale agreement when the respondent had
complied with the terms of the agreement. In conclusion, Mr Maira argued that B by
refusing to sign the sale agreement, the approval of the Commissioner for Lands could
not be obtained as there was no executed legal document upon which such approval
could be sought.
C We have given anxious and close consideration to these submissions. It is our
considered view that the decision of this case turns around a narrow issue. That is,
whether there was an agreement which was breached by the appellant/plaintiff. With
respect, we agree with Mr Maira, learned Counsel for the respondent, that in order to
determine the issue concerning the agreement, it is necessary to take full D account
of the historical background and circumstances of the case. As already indicated, it is
common ground that the appellant and the respondent had come to an agreement to
have the appellant's house purchased by the respondent. That it was agreed that out
of the purchase price of Shs 850,000/= part of it was to be E paid to the National
Bank of Commerce in order to redeem the appellant's mortgage and the balance was
to be paid to the appellant's through his lawyer M/S Kijugo and Company advocates.
The issue as raised by Mr Semgalawe, learned Counsel for the appellant, is that there
was no binding agreement because the approval of the Commissioner for Lands was
not obtained after the initial F agreement between the appellant and the respondent.
Mr Maira, on the other hand ardently submitted that the appellant was in breach of
the sale agreement.
G In order to have a clear picture of the historical background to the case we deem
it appropriate to closely examine the following documents on record. First, there is
the letter of 11 November 1986 which was addressed to M/S Kijugo and Company,
advocates for the appellant, by the Tanzania Legal Corporation, on behalf of the
respondent. With that letter, three copies of the sale agreement were enclosed for
execution by the appellant. The appellant was required to return the H copies of the
sale agreement after signing for further processing and Capital Gains Tax assessment.
With this, as indicated earlier, the appellant did not comply. There is also the letter of
28 July 1988 addressed to the Chief Corporation Counsel by the appellant's advocates,
M/S Kijugo and Company, Advocates. In that letter it is clearly stated that there was
an agreement between I
1995 TLR p267
LUBUVA JA
the appellant and the respondent regarding the sale of the house and the A
conveyancing process that was being handled by the Tanzania Legal Corporation. It is
also indicated in the letter that any balance of the purchase price was to be paid to the
advocate in order to settle the vendor's (appellant) other liabilities. Then there is the
letter of 28 February 1990 exhibit D6 written to the NBC by M/S Kijugo B and
Company, advocates for the respondent in connection with the sale of the house and
the outstanding balance on the mortgage. In it is shown that the respondent had at 5
September 1985 paid Shs 540,000/= for the mortgaged amount of Shs 593,407/50=.
Specifically, the respondent's advocates request for C a statement of account on the
mortgage so that 'we may pay the balance of the amount owing including interest in
order that the mortgage could be discharged in our favour'. On these facts, which are
not disputed, it seems clear to us that an agreement for the sale of the house had been
reached between the appellant and the respondent. Following on the agreement, the
various correspondences D including the letters referred above ensued. They all
refer to an existing agreement which the parties, i.e. the appellant and the
respondent, had entered.
On the basis of this evidence, we are satisfied that the learned Trial Judge was entitled
to the conclusion that there was a concluded agreement for sale between E the
appellant and the respondent. The evidence was duly considered. With respect, we
are unable to accept Mr Semgalawe's argument that there was no binding agreement
because the Commissioner for Lands had not sanctioned the sale transaction. We
agree with Mr Semgalawe's statement that under the Land F Regulations 1948 the
sale agreement was inoperative, as the correct position of the law on this point.
Needless to labour more on it, suffice it to say that the cases cited by the appellant at
the hearing of this appeal and the trial Court, have among other points underscored
this position of the law. That list of authorities includes the decision of this Court in J
M Kasuka v George Humba (2) and Millen Richard v Ayub Hoza (3). G
However, though it is the position of the law on this point, we wish to make it clear
that Mr Semgalawe, learned Counsel, is not with respect correct in his assertion that
because the approval of the Commissioner for Lands was not forthcoming H there
was therefore no agreement of sale between the appellant and the respondent. This is
so because, in the instant case though the agreement for sale of the house was
inoperative as it was not approved by the Commissioner for Lands, it did not also
mean that there was no binding agreement as borne out by the evidence. In our
understand- I
1995 TLR p268
LUBUVA JA
A ing an agreement for a disposition of a right of occupancy is inoperative in the
sense that property does not pass unless and until the approval of the Commissioner
for Lands is obtained. In this sense, being inoperative, and as we stated in the case of J
M Kasuka v George Humba (supra), where a disposition is B inoperative by virtue of
reg 3(1) it is void ab initio, and, therefore all the terms of the agreement to the
disposition are void and therefore unenforceable. In the instant case, the situation is
distinguishable. The learned Trial Judge correctly took the view that the appellant,
the vendor was in breach of the agreement even though the approval of the
Commissioner had not been obtained, In his judgment, the learned judge stated: C
'The position as it is now is that it is the vendor who is guilty of breach of
contract by refusing to sign the sale agreement. The reason he has given for not
signing the agreement is a lame excuse which he has concocted against his agreement
with the purchaser/defendant. By D refusing to sign the agreement and return it to
M/S Tanzania Legal Corporation for further processing to its logical conclusion he has
brought everything to a stand still. It would be letting the plaintiff benefit from his
own breach to give (L) (sic) him the remedies he is seeking....' E
From this, it is crystal clear that in this case, unlike the situation obtaining in the case
of J M Kasuka v George Humba (supra) and Fazal Kassam v A N Kassam (4) an
agreement for sale had been reached prior to the stage when the F Commissioner's
approval was to be sought. As found by the learned judge, it was at the stage when the
appellant was required to execute the sale agreement that he refused to sign the
document. With this refusal to sign, nothing further could be done in executing the
sale agreement. As a result, the approval of the G Commissioner could not be
obtained. For that reason, we agree with the learned Trial Judge that the appellant
was in breach of the sale agreement reached between him and the respondent, the
buyer. Having breached the agreement in these circumstances, the appellant cannot
validly resort to reg 3(1) of the Land Regulations 1948 in defence. The
Commissioner's approval is sought after all the H initial formalities including the
signing of the sale agreement are completed. Due to the appellant's conduct,
execution formalities could not be accomplished and the Commissioner's approval
could not be obtained. It is our considered view that the learned judge's finding that
the appellant had breached the agreement was justified. Therefore, ground one fails. I
1995 TLR p269
LUBUVA JA
Before dealing with the next ground, we wish to make brief mention of an aspect A
which was raised by Mr Maira, learned Counsel for the respondent. This he did when
he was addressing on ground one. As already pointed out, Mr Maira had submitted
that the appellant's appeal should not be entertained because the appellant did not
come to seek justice with clean hands. He referred to page 58 of B the proceedings in
which the appellant had admitted to have told lies in court. On record, the appellant
had stated:
'I wrote a personal letter to Mr Kusaga, the NPC GM on 2/4/85 in which I said
I had signed the agreement. By this time I had not signed the agreement so I lied to
Mr Kusaga because I was in a hurry.' C
During the hearing of the appeal, at the prompting of the Court, Mr Maira, learned
Counsel correctly in our view, did not press any further on the issue of fraud. This is
because it is common knowledge that as the issue of fraud was not raised in the
pleadings, that issue was never before the High Court. With respect, we find D no
basis upon which this court as an appellate Court could entertain at this stage the
issue of fraud.
We come to the last ground of appeal i.e. ground two. This ground is closely linked E
with ground one. Under this ground, the appellant seeks to fault the Trial Judge for
not granting the reliefs sought. Arguing this ground, Mr Semgalawe briefly reiterated
his arguments in support of ground one, Essentially, it was his submission that there
was no legally binding agreement which could be enforced against the appellant. He
urged that in the absence of an enforceable agreement F the Trial Judge should have
granted the reliefs sought by the appellant. Having taken the view that the appellant
was in breach of the sale agreement, we think it is unnecessary to go any further into
this matter. The reliefs sought were based on whether or not there was a breach of
the agreement. This ground also fails. G
As the relief sought at the trial was a declaratory judgment that the agreement was
inoperative, and as there was no counter-claim filed by the respondent for specific
performance or damages, the learned Trial Judge correctly made no further orders.
The respondent having spent sums of money towards the redemption of H the
mortgage and other liabilities of the appellant, the matter is left open for further
processing and execution of the documents in order to effect the transfer in terms of
the law.
In the event, the appeal is dismissed with costs to the respondent. I
1995 TLR p270
A
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