MOHAMED IDDI MJASIR v MRS. JAYALAXMI JAYANTILAL JOSHI 1993 TLR 274 (CA)

MOHAMED IDDI MJASIR v MRS. JAYALAXMI JAYANTILAL JOSHI 1993 TLR 274 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

B CIVIL APPEAL NO. 36 OF 1993

25 November, 1993

C (From the decision of the High Court of Zanzibar at Zanzibar, Hamid, C.J.)

Flynote

Power of Attorney - Whether creates a fiduciary relationship between the donor and

the donee of such power.

Land Law - Transfer of property - Whether a person can transfer property to himself

alone - Section 5 of the D Transfer of Property Decree, Cap. 150.

Contract - Contract of sale of a house - Failure of consideration - Effect thereof.

-Headnote

E One Jayantilal Bhanji Joshi, now deceased, owned a house in Zanzibar. He left for

Canada in 1972 leaving his house to one Ahmed Iddi Mjasir under a power of

attorney. Ahmed Iddi Mjasir had power to receive rent from tenants, effect repairs

and also had power to sell the house if he thought the price offered was reasonable. In

1987 Jayantilal B. Joshi died. In 1990 Jayantilal B. Joshi's wife, the respondent, came

to know that their house had been sold and filed a suit in the High Court of F

Zanzibar seeking a declaration that her deceased husband was the lawful owner of the

house and that the house be registered in her name as the legal representative of her

deceased husband's property.

G Ahmed Iddi Mjasir, smarting under a power of attorney, prepared a deed of

conveyance dated 1 October 1987 purported to be between the owner of the house

and himself which showed that the owner had sold the house to Ahmed Iddi Mjasir at

the price of Shs 150,000/=. On 2 October 1987 Ahmed Iddi Mjasir prepared a deed of

gift between himself and his son, the appellant under which he conveyed the house

to the son. The deed was registered in the name of the appellant.

H The learned Chief Justice of Zanzibar considered the legality of the transfer of the

property from Jayantilal B. Joshi to Ahmed Iddi Mjasir and then from Ahmed Iddi

Mjasir to his son the appellant and held that the transfer of the suit premises from

Jayantilal B. Joshi to Ahmed Iddi Mjasir was illegal and therefore null and void and

therefore Ahmed Iddi Mjasir had nothing to transfer to his son the I appellant. The

Chief Justice based his decision on the provisions of s 5 and s 6(11) of the Law

1993 TLR p275

of Property Decree, Cap 150 of the Laws of Zanzibar and breach of fiduciary

relationship created by A the power of attorney between Jayantilal B. Joshi and

Ahmed Iddi Mjasir.

On appeal to the Court of Appeal of Tanzania the appellant attached the decision of

the Chief Justice arguing that there was no fiduciary relationship between the

Jayantilal B. Joshi and Ahmed Iddi Mjasir. It was further argued that the transfer of

the property to Ahmed Iddi Mjasir was legal because B the power of attorney vested

into Ahmed Iddi Mjasir the power to sell the property. In addition it was contended

that the transfer of the house was backed by good consideration in the sum of Shs

150,000/=. The Court of Appeal considered all the arguments advanced. C

Held: (i) The provisions of s 5 of the Transfer of Property Decree, Cap. 150, are

to the effect that if a person decides to convey property to himself (as it was in this

case) such conveyance to be lawful must include one or more other living persons;

(ii) The purported transfer of the house by the late Ahmed Iddi Mjasir to

himself is invalid; D

(iii) In law therefore Ahmed Iddi Mjasir owned no property capable of

being transferred to his son, Mohamed Iddi Mjasir, the appellant;

(iv) Due to the power of attorney there was a fiduciary relationship

between the late Jayantilal B. Joshi and the late Ahmed Iddi Mjasir, which

relationship estopped Ahmed Iddi Mjasir from E obtaining advantage from the

fiduciary relationship without first obtaining consent from Jayantilal B. Joshi. No such

consent was sought and obtained;

(v) There was no evidence that the consideration of Shs 150,000/= as

purchase price passed to the alleged vendor, the late Jayantilal B. Joshi as such the

contract of sale is rituated by lack of consideration. F

Case Information

Appeal dismissed.

No case referred to:

Mbwezeleni, for the appellant.

Kagambo, for the respondent. G

[zJDz]Judgment

Mnzavas, J.A., delivered the following considered judgment of the Court:

This is an appeal against the decision of the High Court (Hamid M Hamid CJ), which

nullified a deed H of conveyance dated 1 October 1987 which transferred ownership

of house No 2328 situated at Sokomhogo Street to one, Ahmed Iddi Mjasir - deceased

on the ground that the transfer was null and void ab initio.

Having found that the transfer of the sold property to the deceased was illegal the

High Court proceeded and nullified a subse- I

1993 TLR p276

MNZAVAS JA

A quent transfer of the house by the deceased to his son Mohamed Iddi Mjasir, the

present appellant, and ordered that ownership of the house be restored to its legal

owner, before it was transferred to the late Ahmed Iddi Mjasir.

B Aggrieved by the Lower Court's finding the appellant has appealed to this Court.

The following facts which were not seriously disputed by the parties were narrated to

the Trial Court:

On 25 January 1956 one, Jayantilal Bhanji Joshi now deceased owned a house, No

2328 along Sokomhogo Street in Zanzibar in which he lived with his family up to

1972 when he left for Canada C where he lived with his son. Before he left he

entrusted his house to the late Ahmed Iddi Njassir, appellant's father, who was to

collect rent from tenants, effect repairs to the house when the need arose, pay any

monies on his behalf such as land rent etc, and to keep any balance of money for D

him. In 1987 Jayantilal Bhanji Joshi died.

According to the evidence of his wife Jayalaxmi Jayantilal Joshi, the respondent in

this appeal, in 1990 she came to know that their house had been sold and decided to

file a suit in the High Court - E Civil Case No 3 of 1992, seeking a declaration that

her deceased husband is the lawful owner of the house and that the house be

registered in her name as the legal representative of her deceased husband's property.

F There was no dispute in this case that the deceased, Ahmed Iddi Mjasir, smarting

under a power of attorney, given to him by the owner of the house prepared a deed of

conveyance dated 1 October 1987 purported to be between him and the owner of the

house which showed that in consideration of the sum of Shs 150,000/= he paid to the

owner of the house as purchase price, the owner of the house had sold and transferred

the house to him. Equally it was not in controversy that on the G following day (2

October 1987) Ahmed Iddi Mjasir prepared a deed of gift between himself and his

son, Mohamed Iddi Mjasir, the appellant/defendant and in consideration of natural

love and affection for his son conveyed the house to him. The deed was registered in

the name of the appellant, H Mohamed Iddi Mjasir on the same day.

The question the High Court had to decide was whether or not the transfer of the

house to the deceased, Ahmed Iddi Mjasir, and later to his son, the

appellant/defendant, was in accordance with I the law. In deciding this question the

learned Chief Justice said inter alia:

1993 TLR p277

MNZAVAS JA

`There is no proof to the effect that the late Joshi had any knowledge to this

type of transfer since no evidence was A adduced by the defendant to that effect and

this Court cannot be left to assume that is the case.'

Earlier the learned Chief Justice had rejected respondent's/plaintiff's argument that

her deceased B husband had not given Ahmed Iddi Mjasir power of attorney over

the house and upheld the appellant's/defendant's evidence that Joshi had in fact given

power of attorney to Ahmed Iddi Mjasir over the house.

However despite the power of attorney the Court held that by transferring the house

to himself, C Ahmed Iddi Hjasir contravened the provisions of s 5 of the Transfer of

Property Decree, cap 150 of the Laws of Zanzibar. Equally it was the Court's view

that the transfer was invalid under the doctrine of fiduciary relationship.

In conclusion the learned Chief Justice said: D

`Consequently I hold that the transfer of the suit premises, vide a deed of

conveyance dated 1.10.89 conveying the suit premises to the late Ahmed Iddi Mjasir

to be illegal and therefore null and void and since the conveyance of the same

property to the defendant very much depends upon the conveyance that bestows the

ownership of the said E premises to the late Ahmed Iddi Njasir which conveyance is

void ab inito it follows therefore the subsequent transfer by the late Ahmed Iddi

Mjasir to the defendant automatically becomes illegal and therefore null and void.'

The Court then proceeded and declared the late Jayantilal Bhanji Joshi to be the

lawful owner of F house No 2328 situated at Sokomhogo Street, Zanzibar. It was also

ordered that all the rent collected from the suit premises as from 1 October 1987 be

paid by the appellant/defendant to the respondent/plaintiff. The respondent/plaintiff

was ordered to refund the sum of Shs 20,8224/70 which G the deceased Ahmed Iddi

Mjasir paid to a bank to redeem the suit premises to the heirs of the late Ahmed Iddi

Mjasir.

It was the Trial Court's order that each party was to bear its own costs. H

Before us Mr Mbwezeleni, learned Counsel for the appellant vigorously challenged

the Lower Court's finding, arguing that the learned Chief Justice erred in holding that

there was fiduciary relationship between the late Ahmed Iddi Mjasir and the late

Jayantilal Bhanji Joshi. It was the learned Council's submission that the power of

attorney empowered the deceased Ahmed Iddi Mjasir to transfer I

1993 TLR p278

MNZAVAS JA

A the house to himself as, it was submitted, para 7 of the power of attorney vested

that power to him.

Mr Mbwezeleni further argued that the High Court erred in not ordering that the

sum of Shs 20,824/70 should be refunded to the appellant/defendant with interest.

B The Court was asked to allow the appeal and declare the appellant the lawful

owner of the house.

In rebuttal Mr Kagambo, learned advocate for the respondent, supported the High

Court decision and reiterated that the deceased, Ahmed Iddi Mjasir, acted unlawfully

in transferring the house to himself.

C It was also submitted that the transfer was in contravention of the provisions of s

5 and s 6(II) of the Law of Property Decree, cap 150 of the laws of Zanzibar. The

learned Counsel also argued that there was no evidence that the alleged purchase

price of Shs 150,000/= for the house said to be paid D by the late Ahmed Iddi Mjasir

to the late Jayantilal Bhanji Joshi passed to Joshi. And therefore, it was submitted, the

sale was bad for lack of consideration. The Court was invited to dismiss the appeal.

E In reply Mr Mbwezeleni countered that there was consideration because Mr Joshi

did not complain.

First and foremost we agree with the learned Chief Justice's finding that the late

Jayantilal Bhanji Joshi did give power of attorney to the late Ahmed Mjasir. There was

undisputed evidence that under the power of attorney the late Ahmed Mjasir had

power to receive rent from tenants occupying the F house and to effect repairs on

the house as and when the need arose. He also had power under para 7 to sell the

house if he thought the price offered was reasonable.

However despite the fact that the late Ahmed Mjasir received rent from tenants in

the house neither G the record nor the appellant in his evidence in the High Court

showed that the deceased, Ahmed Mjasir kept accounts of the monies he received as

rent or any monies he may have used in effecting repairs of the house. When this

serious anomaly was put to Mr Mbwezeleni, learned Advocate for the H appellant,

he merely said that a record of accounts may have been misplaced after the death of

Ahmed Iddi Mjasir. With respect to the learned Counsel this reply is not good enough

taking into account the fact that Ahmed Mjasir was entrusted with the house over

twenty years ago.

Because there was no record of accounts kept by the donee it is our considered view

that the I inescapable inference is that the late

1993 TLR p279

MNZAVAS JA

Ahmed Iddi Mjasir was not wholly honest. And, as rightly observed by the learned

Chief Justice, there A was no evidence at all that Jayantilal Joshi knew of the transfer

of the house to the late Ahmed Mjasir; leave alone his consent to such transfer.

Coming to the question whether the late Ahmed Mjasir had power (under the power

of attorney) to transfer the house to himself the law is clearly set out under s 5 of the

Transfer of Property Decree B cap 150 which says:

`Transfer of property means an act by which a living person conveys property,

in present or in future, to one or more other living persons, or to himself and one or

more other living persons; and `to transfer property' is to perform such C act.'

It is clear from the above language that if a person decides to convey property to

himself (as it was in this case) such conveyance to be lawful must include one or more

other living persons. That being D the law, the purported transfer of the house by

the late Ahmed Iddi Mjasir to himself is invalid. Under the law there was no transfer

of the property to him at all. He in law therefore owned no property capable of being

transferred to his son, Mohamed Iddi Mjasir. E

In the event we agree with Mr Kagambo's argument that the learned Chief Justice

was, on the evidence, entitled to declare that the house No 2328 situated at

Sokomhogo Street, the subject matter of the suit, belongs to the late Jayantilal Bhanji

Joshi. F

We would also like to add, if only in passing, that due to the power of attorney there

was a fiduciary relationship between the late Jayantilal Joshi and the late Ahmed

Mjasir. That being so Ahmed Mjasir was estopped from obtaining advantage from the

fiduciary relationship without first obtaining consent from the other party, the late

Jayantilal Joshi. As we have shown above no such consent was sought. G

We also, after considerable reflection, agree with Mr Kagambo that even if for the

sake of argument we were to accept the argument that the transfer of the property to

the late Ahmed Mjasir was lawful there was not evidence whatsoever to show that

the said consideration of Shs 150,000/= as H purchase price passed to the alleged

vendor, the late Jayantilal Joshi. Needless to mention that lack of consideration

vitiates a contract of sale.

In conclusion we are at a loss to know why the learned Chief Justice ordered that

each party should pay its own costs. The law is that the party that wins is entitled to

have his costs. One of the I

1993 TLR p280

A exceptions to this rule of practice is where the parties are spouses; which is not so

in this case.

It is our view that the respondent is entitled to her costs in this Court and in the

Court below. It is so ordered.

B Apart from the question of costs, this appeal is dismissed.

1993 TLR p280

C