MOHAMED IDRISSA MOHAMMED v. HASHIM AYOUB JAKU 1993 TLR 280 (CA)

 MOHAMED IDRISSA MOHAMMED v. HASHIM AYOUB JAKU 1993 TLR 280 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

D CIVIL APPEAL NO. 34 OF 1993

25 November, 1993

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

Flynote

Contract - Contract of sale - Party fails or refuses to perform an agreement - Court

can order specific F performance.

Court of Appeal - Appeals to the Court of Appeal originating from District Courts in

Zanzibar - Whether point of law should be certified for determination by Court of

Appeal - Appellate Jurisdiction Act 1979.

G Court of Appeal - Appeals to Court of Appeals in cases originating from District

Courts in Zanzibar - Leave of the High Court is required - Appellate Jurisdiction Act

1979.

-Headnote

The appellant was unsuccessfully sued by the respondent in the District Court for

specific H performance of an agreement for sale of land. The District Court held that

the performance of the contract had been frustrated by the intervention of the

appellant's children and clan members. The respondent appealed to the Regional

Court which held that the appellant's claims of frustration had not been proved. He

was therefore ordered to fulfill the agreement. The appellant appealed to the I High

Court which confirmed the Regional Court's decision. He further appealed.

1993 TLR p281

Held: (i) An appeal to the Court of Appeal of Tanzania in a case originating from

the District Court of A Zanzibar does not need a point of law to be certified for

determination by the Court of Appeal; such a case only requires leave from the High

Court;

(ii) Where a party to the contract has no good reason not to fulfill an

agreement, he must be forced to perform his part, for an agreement must be adhered

to and fulfilled. B

Case Information

Appeal dismissed.

No case referred to.

[zJDz]Judgment

Mfalila, J.A., read the following considered judgment of the Court: C

In the district Court at Vuga, the respondent Hashim Ayoub Jaku sued the appellant

Mohammed Idrissa Mohamed for specific performance of an agreement for the sale of

land. The district Court D dismissed the suit holding that the performance of the

agreement of sale had been frustrated by the intervention of the appellant's children

and clan who blocked the deal on the ground that the land which contains ancestral

graves, could not be sold to an outsider. Against this decision, the respondent

successfully appealed to the Regional Court sitting at Zanzibar. The Regional Court

held E that the appellant's claims that the sale had been blocked by other interested

clan members had not been proved because no such clan members came forward to

give evidence in support of this claim. The Court therefore ordered specific

performance of the agreement of sale. The appellant unsuccessfully appealed to the

High Court against this decision. The High Court confirmed the F Regional Court's

finding that there was no evidence that there were other clan members interested in

this same land who could have lawfully blocked the sale. Against this decision the

appellant further appealed to this Court. G

The agreement of sale or its terms are not in dispute. Both the appellant and the

respondent agree that on 29 June 1989 they entered into an agreement by which the

appellant was to sell his shamba situated at Muyuni to the respondent for Shs

45,000/=. That on two different occasions, the H respondent paid a total of Shs

15,000/= as advance to the appellant to enable the latter to process the Deed of Sale.

On the first occasion, the respondent paid Shs 10,000/= and on the second occasion

Shs 5,000/=. There was thus a balance of Shs 30,000/= which was to be paid on the

execution of the Deed of Sale. At this stage, the agreement got stuck because the

appellant alleged I that he could not execute the Deed

1993 TLR p282

MFALILA JA

A of Sale due to opposition from his clan who maintained that he had no right or

power to sell to an outsider clan land containing ancestral graves. The appellant who

inherited this shamba from one Abdulfatah also alleged that as there were two other

people entitled to inherit a portion of this shamba namely Abdulfatah's widow and

one other unnamed person, he could not on his own sell this land. In B rejecting

these allegations, both the Regional and the High Court held that there was no

evidence to support them.

In his appeal to this Court, the appellant's memorandum of appeal contains four

grounds; the sum C total of which is that the Chief Justice was wrong in holding that

there was no evidence to support his contention that the sale agreement had been

frustrated by the opposition of his clan. The appellant was granted leave to appeal to

this Court by the Chief Justice who certified the following point of law for

determination:

D `That the contract of sale of the land (shamba) is null and void since at the

time of the sale of the said land, the applicant (in this application) had no title to that

land as the inheritance formalities which could have otherwise conferred the title to

him are yet to be finalised.'

E We think the best way of formulating the point of law for determination by this

Court is to put it in the form of a question rather than as it was done in this case as a

statement of fact. But the important period is that which was raised by Mr Mohora,

learned Counsel who appeared for the F respondent. He said that since this appeal

involves a case which did not originate from the Primary Court, it did not need a

point of law to be certified for determination by this Court. We agree, this appeal

does not fall under Part II of the Zanzibar Magistrate's Court Act 1985 because the

case G originated from the District Court. All the Chief Justice was required to do

was to grant leave under s 5(1)(c) of the Appellate Jurisdiction Act 1979.

Back to the substantive appeal. In all the three Court's below, the appellant's case was

that he could H not execute the Deed of Sale in favour of the respondent because

members of his clan opposed the sale on the ground that he could not sell clan land

with ancestral graves on it to an outsider and that it was forbidden to sell land to non

Africans. He added that the widow of the late Abdulfatah and another person had an

interest in the same shamba, he could not therefore unilaterally sell it. But at I the

hearing of this appeal he advanced a completely new ground for his inability to

execute the

1993 TLR p283

MFALILA JA

Deed of Sale. He said that he could not execute the Deed of Sale because the

respondent had A failed to pay the balance of the purchase price of Shs 30,000/=. He

even introduced a new element which does not appear anywhere in his evidence at

the trial. He said that the respondent failed to pay the sum of Shs 13,000/= in addition

to the Shs 15,000/= which would have enabled him to meet the costs of processing the

Deed of Sale. The question then is whether the appellant failed to B process and

execute the Deed of Sale because the respondent failed to pay the balance of the

purchase price or because the claim prevented him.

As to the respondent's failure to pay the balance of Shs 30,000/=, this allegation

appears to be C false. There is evidence supported by the Secretary of the Local

Authority (PW2) that when the respondent went on a month long visit to Pemba, he

left the money with his wife with instructions to hand it over to the appellant.

With regard to the allegation that his children and other interested members of the

clan objected to D this sale, we refer to the documents Exhibits A-D produced by a

record clerk in the Registry of Titles at the hearing of this appeal. It is clear from

these documents that at about the same time the appellant was negotiating and

concluding the sale agreement of the shamba to the respondent, he concluded the sale

of the same shamba to one Suleiman Seif Masoud for a higher price of Shs 73,000/=.

After receiving the additional advance of Shs 5,000/= on 2 August 1989 from the E

respondent, only six days later on 8 August 1989 he sold the shamba to Suleiman Seif

Masoud for Shs 73,000/= in whose favour he executed a Deed of Sale and registered it

on 30 April 1993 after completing all the formalities with the relevant local

authorities. This latter sale involving a higher F price, explains the appellant's

change of attitude towards his agreement with the respondent. He was doing his best

to find any excuse to repudiate his lower priced agreement with the respondent G

in order to cash in on the higher priced sale to Suleiman Seif Masoud. But as the

appellant will now no doubt realise, albeit a little late, he was trying to be too clever

perhaps by half. At the hearing of this appeal, the appellant sanctimoniously preached

the virtues of adhering to and fulfilling agreements and how ungentlemanly it was

not to keep one's word. We would recommend to the H appellant that he puts his

preaching into practice. The appellant was able to execute a Deed of Sale in respect of

the name shamba in favour of Suleiman Seif Masoud without any objections from his

clan, or children. It is quite clear then to us as it was to the learned Chief Justice that

the story of the I clan objections as well as the

1993 TLR p284

A alleged interests of the widow were appellant's own creations designed to defeat

the lower priced agreement with the respondent in order to keep the higher priced

agreement with Suleiman Seif Masoud. This he cannot be allowed to do. As he

himself emphasised, agreements must be adhered to and fulfilled.

B We are for these reasons satisfied as was the learned Chief Justice that the

appellant had no good reason not to fulfill his agreement of sale with the respondent

and execute the Deed of Sale in his favour. Accordingly we dismiss the appeal with

costs both in this Court and in the Courts below. C Exhibits A to D to be returned to

the Registry of Titles.

1993 TLR p284

D