JUMA SULTANI MKUGENZI v RAMADHANI AMIN ATHUMAN 1991 TLR 183 (HC)

 

JUMA SULTANI MKUGENZI v RAMADHANI AMIN ATHUMAN 1991 TLR 183 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mkwawa J

3 December, 1991

Flynote

Land law - Sale of a house on a surveyed plot - Lack of consent of the Commissioner

for Lands - Whether specific performance can be ordered. G

-Headnote

The defendant's mother, now deceased, had taken a loan of Shs. 200,000/= from the

plaintiff. After facing some problems, the deceased undertook to sell her house to the

plaintiff at a price of Shs. 700,000/=. In the agreement, H signed by the parties, it was

agreed that the said debt of Shs. 200,000/= be converted into the first instalment for

the purchase price. The plaintiff deposited the balance of shs. 500,000/= with his

advocate and the defendant was required to collect the same from him but he did not

do so. The plaintiff prayed for an order of specific performance I for the sale of the

house.

1991 TLR p184

MKWAWA J

A Held: On the basis of the agreement and the "Declaration of Intent" the defendant

undertook to perform his part of the contract.

Case Information

Order accordingly.

[zJDz]Judgment

B Mkwawa, J.: In this case the plaintiff, Juma Sultan Mkugenzi, basically prays for an

order for specific performance of a sale of a house. The prayer is based on the

following events:

Sometime in June, 1988 one Mgeni d/o Mawazo who is the mother of the instant

defendant, Ramadhani Athumani, C approached the plaintiff (to whom for brevity

sake I will be referring to as PW.1) and asked him for a loan of Shs. 200,000/= to

enable her to finalize payments against her in a court proceeding. It is common

ground that the said Mgeni d/o Mawazo is now dead and that her son Ramadhani

Athumani is her sole heir and legal representative (for D brevity sake I will be

referring to them as the deceased and PW.1 respectively). It is further not in dispute

and clearly demonstrated in the testimony is of PW.1 and DW.1 that though the

deceased had initially received from PW.1 Shs. 200,000/= to enable her to secure a

house No. 13, Plot No. 49 Block 'B', Magomeni, Dar es Salaam E which was a subject

matter in the High Court in Probate and Administration Cause No. 63 of 1985; the

deceased subsequently offered for sale the said house to PW.1 as she could not secure

a loan in respect of the same from PW.1.

F It is in the evidence of both PW.1 and DW.1 that on June 29, 1988 the deceased

and PW.1 entered into a written agreement for the sale of the said house. This

agreement was drafted by a practising advocate (Exhibit P.1). The agreement inter

alia provided for the payment of the purchase price as follows: Shs. 200,000/= to be

paid at G once and the seller acknowledged receipt of the same. The balance of Shs.

500,000/= to be paid after the finalization of Probate and Administration Clause No.

63 of 1986. It is further common ground that Messrs. Mchora and Company

Advocates were to ensure the transfers and ownership of the property were effected.

It is common H ground that the deceased did not live to effect the said transfer of

property, PW.1 being the sole heir and legal representative of the deceased

committed himself in writing in what was described as "Declaration of Intent"

(Exhibit Pa) to ensure that the transfer and ownership of the said property is effected.

Once again this document was drafted I by and attested before practising advocates

respectively.

1991 TLR p185

MKWAWA J

It is further in the testimony of PW.1 that the deceased and later on DW.1 had

declined to effect the transfer and A collect the balance of Shs. 500,000/= though the

said monies were in possession of their advocate i.e. Mr. Mchora. It is on these basis

that the instant proceedings were instituted and hence the prayers for specific

performance against the defendant to execute the Transfer Deed. B

On the other hand DW.1 blames PW.1 for defaulting in paying the said balance of

Shs. 500,000/=. Briefly, these are facts culminating to the instant proceedings.

Mr. Semgalawe, the learned advocate for PW.1, urged this court to compel DW.1 to

carry out the intention of the C parties by executing the Transfer deed as PW.1 had

partly conformed the intended sale agreement by paying Shs. 200,000/= to DW.1's

mother who at the relevant period was the owner of the house in question.

In rebuttal Professor Fimbo, learned advocate for DW.1, contended that part

performance i.e. payment of Shs. D 200,000/= is without legal effect so long as the

consent of the commissioner was lacking. He sentenced that the said consent was a

necessary requisite in dispossession of an interest in land. In support of this

proposition the learned advocate cited several authorities regarding the necessity of

receiving the consent in land disposition. The learned E counsel will forgive me for

not referring to the numerous authorities cited in support of this argument. I will

only refer to one of them i.e. Nitin Coffee Estate Ltd. v United Engineering Works

Ltd. - Ci v App. No. 15 of 1988 Ar. Registry (unreported) Prof. Fimbo argued that

having regard to regulation 3 of the Land Regulations 1948 K as F amended in 1960 -

G.N. 101 of 1960 and the decision of the Court of Appeal - Tanzania in Nitin's case

(supra) the agreement - Exhibit P1 - is in operative and can not be enforced for want

of consent.

Prof. Fimbo further argued that having regard to paragraph 2 of the said agreement

(Exh. P.1) the parties had G envisaged entering into the agreement in future. This

being the state of affairs Prof. Fimbo contended that issue No. 1 of the agreed issues

should be answered in the negative and the sum of Shs. 200,000/= advanced by PW.1

to the deceased should be considered as a loan. Prof. Fimbo further argued that the

said loan is not recoverable in the H instant court proceedings as PW.1 did not cover

this issue in his plaint and/or his advocate's submission in this court. Lastly but not

least Prof. Fimbo argued that the prayer for specific performance can not be granted

to PW.1 as he has not shown reasons why such discretionary I

1991 TLR p186

MKWAWA J

A prayer should be granted particularly in the absence of consent as statutorily

required in such dispositions.

I find it pertinent to mention at this juncture that though the parties in this suit did

not impress one as being sophisticated persons it has been amply demonstrated from

the brief resume of facts that right from the very B beginning the parties and their

eye "on the law". This, they did by engaging the services of practising advocate. That

not withstanding it is now evident that their caution did not bear fruits. Their efforts

had fallen on barren land and the C once good relationship between the parties has

now gone sour and they now come to "law" to seek for redress.

Though the matter before this court stems from very simple facts the matter is far

from being easy. Having regard to the issues raised in this matter I must confess that

the matter is not an easy one to decide one way or the other. The D issues formed by

the court with the assistance of both learned counsel are as follows:

1. Was there an agreement for the sale for the house in disputed?

2. Is the agreement in-operative for lack of approval of the Commissioner

of Land?

E 3. Is the agreement void for impossibility?

4. To what relief are the parties entitled to?

F In answering the first point raised, namely whether there was an agreement for

the sale of the house, one has to look on the versions of PW.1 as these are the only

witnesses before this court and Exh. P.1 and Exh. P.4. On a careful and sober

evaluation of the testimonies of the parties to this suit and the contents in exh. P.1

(The agreement G for a sale of a house) and Exh. P.4 (Declaration of Intent) it leaves

no doubt in my mind that the deceased who is DW.1's mother badly and urgently

needed money from PW.1. It is uncontroverted that PW.1 did not loan the same to

her. Undoubtedly PW.1 took advantage of the situation i.e. the deceased's plight and

managed to have the house H now in dispute sold to him for the sum of Shs.

700,000/=. Issue No. 1 is thus some what answered in the affirmative. I shall revisit

this matter.

The central issue/question that I have now to consider is whether as agreement

obtained under such circumstances I and having regard to the fact that it was a land

disposition issue can be enforced by this court. In my view this point embraces issues

no. 2 and no. 3 collectively.

1991 TLR p187

MKWAWA J

In defendant (DW.1) in paras 5, 6 and 7 of his written statement of defence appeals as

follows: A

5. The Defendant denies the contents of paragraphs 5.55 6 and 7 of the

Plaint. The Defendant contends that the agreement described in paragraph 3 of the

Plaint was merely an agreement to enter into and agreement for the sale B of the

house in dispute held under a right of occupancy.

6. In the alternative, the Defendant contends that the said agreement is

void for impossibility. The defendant contends that at the date of the said agreement

Mgeni Mawazo, deceased had no interest/estate int he house in dispute, the C right

of occupancy had not been transferred to her.

7. In the alternative, the Defendant contends that the said agreement is

in operative for lack of approval of the D Commissioner for Lands".

Prof. Fimbo's main submission against the Plaintiff's prayer is based on regulation 3 of

the Land Regulations, 1948 as amended by G.N. 101 of 1960, so far as it is material,

made as follows: E

3.(1) A disposition of a right of occupancy shall not be operative unless it is

in writing and unless and until it is approved by the (President) F

(2)....

(3) In this regulation disposition means

(a) a conveyance or assignment other than by way of mortgage, or a

gift, settlement, deed of portion, assent, vesting declaration, or a sale in execution of

an order of a court. G

Prof. Fimbo contends that courts will not enforce a claim which can only be

established by relying upon a transaction declared by the law to be in operative for

lack approval. In support of this proposition Prof. Fimbo has referred me H to

several authorities including Nitin's case (supra).

Before I make a finding as to whether the case now under consideration involves an

agreement which is in operative or not, I find it pertinent to reproduce all the clauses

in Exhibit P.1. The same runs as follows: I

1991 TLR p188

MKWAWA J

A AGREEMENT FOR SALE OF A HOUSE

THIS AGREEMENT is made this 29th day of June, 1988 between BI MGENI

MAWAZO (the Seller) of Magomeni Plot No. 40 B Block R. House No. 13 Morogoro

Road of the one part, and MR. JUMA SULTAN MKUGENZI (the purchaser) of P.O.

Box 25218 Dar es Salaam of the other part, it is hereby agreed:

1. That the purchaser shall advance Shs. 200,000/= (two hundred

thousand shillings) to the seller to enable the latter to C finalize administration

expenses in respect of the estate of the deceased MARIAMU MAWAZO the

registered owner of House No. 13 Morogoro Road which is the property to be sold to

the said purchaser. The seller hereby D acknowledges receipt of the said amount.

2. The seller undertakes to effect the finalization Probate and

Administration Course No. 63 of 1986 and subsequently to enter into a sale

Agreement with the purchaser.

E 3. Both parties agree and covenant Messrs MCHORA AND COMPANY,

to ensure the transfers of ownership of the property.

4. The agreed purchase price is Shs. 700,000/= (seven hundred thousand

only) from which the sum mentioned under F paragraph 1 is mentioned. Wherefore

the parties have signified their agreement the terms and conditions in this agreement

on the date aforementioned by appending their respective names.

G It is also common ground that on February 23, 1990 DW.1 made what was

described as "Declaration of Intent" (Exhibit P.4). This document like Exhibit P.1 was

drawn and attested before a practising advocate. I find it H appropriate to produce in

full some of the relevant paragraphs of said "Declaration of Intent" these run as

follows:

I 2. That I am the only son of the late MGENI BINTI MAWAZO and that I

am the only heir of the deceased's estate.

1991 TLR p189

MKWAWA J

5. That the deceased received advance payment of Shs. 200,000/= from the

said JUMA SULTANI MKUGENZI A immediately after the execution of the sale

agreement.

6. That the reminder of the purchase price was deposited by the said

JUMA SULTANI MKUGENZI to Mchora and B Company, Advocates for making

further payment to the deceased.

7. That later, the deceased decided to change her mind on the said sale,

refused to collect the said balance of C payments and also refused to effect transfer

formalities. Hence High Court Civil Case No. 76/89.

8. That, consequently, I undertake to collect the balance of the purchase

price from M/S MCHORA & CO. ADVOCATES. D

9. That also undertake to ensure that the house is transferred into the

name of JUMA SULTANI MKUGENZI. E

10. That this declaration has been made voluntarily,consciously and

without any undue influence.

Looking at the evidence adduced by PW.1 and DW.1 coupled with clause 2 of the

said agreement (Exh. P.1) and F paragraphs 7 and 10 of the Declaration of Intent

(Exh. P.4) the intention of parties becomes quite evident. One sees that the purchaser

made an initial payment to the vendor i.e. Shs. 200,000/=. He further deposited the

remaining Shs. 500,000/= with an advocate, presumably, pending consent to the

transaction being given by the commissioner G together with delivery certificate of

title upon execution of Exhibit P.3. It is further evident from exhibit P.1 and PW.4

particularly Paras 7 and 10 Exh. P.4 that the vendor had failed to fulfil the agreement

by failing to deliver an unencumbered title. The defendant (PW.1) has in no

uncertain terms admitted that he was in breach of the H agreement but now

undertakes to execute it. It leaves no doubt in my mind that Exhibit P.1 and P.4 are

executory documents. As the defendant(DW.1) is grantor in this case I think the two

documents (Exhibits P.1 and P.4) should be construed if necessarily contra

proferentum. Then words in these documents albeit not diligently written, should I

be given their proper construction. Besides, it is a general rule that

1991 TLR p190

MKWAWA J

A an instrument should be construed according to its natural meaning in the light of

the circumstances in which it was executed. The decisions in Gathuti Hotel v Fazar

Ilah [1957] E.A. 17 (CA-K) and S.L. Patel and Another v Dhana Singh s/h Hakan

Singh [1962] E.A. 32 (CA-K) are very relevant.

B I have carefully and very soberly appraised the various arguments raised by Prof.

Fimbo. I would have supported them had the defendant (DW.1) not made the

Declaration of Intent - Exhibit P.4. I say so in the light of what I have, hopefully,

demonstrated in my foregone analysis; and I need not repeat myself.

C I now turn to the last issue. The purchaser (PW.1) has brought a suit for specific

performance. As I have already stated the remedy sought is an equitable one. The

question is whether this is a case on which an order for specific performance should

be made. In the instant matter the plaintiff has claimed specific performance of their

agreement D with the Defendant. There has been no alternative claim for damages.

In my view the Defendant cannot rely on his own failure to do that from the doing of

which he would ultimately have no lawful escape. It was implicit in this "Declaration

of Intent - (Exh. P.4) that he thereby undertook to take the E necessary steps to fulfil

what his mother had agreed to do (see Exh. P.1). "Equity looks on that as done which

ought to be done. In favour of persons entitled specifically to enforce a contract,

equity events an agreement to do a thing F as if the thing were already done "per

Dacon, J.A.; Abdul Razak bin Mbarak v Feraj bin Abed el-Aweni and other 23

E.A.C.A. 120 at pp. 122 [1956] who quoted with approval Lindly, L.J. in Re Anstis

(1886) 31 Ch. at pp. 605-606. Another view of the situation is that which was

expressed by the Judicial Committee in Howard v G Miller [1915] A.C. at p. 326 as

follows: "It is sometimes said that under a contract for the sale of an interest in land

the vendor becomes a trustee for the purchaser of the interest contracted to be sole

subject to a loan for the purchase money; but however useful such a statement may be

made as illustrating a general principle of equity, it is H only true if and so far as a

court of equity would under all the circumstances of the case grant specific

performance of the contract".

In the light of the foregoing I think the agreement, though admittedly somewhat

obscure is not too uncertain to be enforced. I would accordingly allow the claim and

order specific performance of the agreement as prayed in para I II(1) of the plaint.

Having regard to the history of the case parties to bear their costs. It is so ordered.

Order accordingly.

1991 TLR p191

A