MILLEN RICHARD v AYUB BAKARI HOZA 1992 TLR 385 (CA)

 

MILLEN RICHARD v AYUB BAKARI HOZA 1992 TLR 385 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Kisanga JJA, Omar JJA, Mnzavas JJA

18 December, 1992 B

Flynote

Land Law - Disposition of land - Failure to comply with Regulation 3(1) of the Land

Regulations, 1948 - Effect.

Contract - Delay in payment of balance of price - Repeated demand letters - Whether

right to be paid as per contract thereby waived - Whether breach of contract -

Whether right to C rescind contract accrues.

-Headnote

This case involved the disposition of land. Part of the price was paid. The balance of

the price was not paid within the contract time. Consequently reminder letters were

sent in which dates of payment were extended. The appellate court considered the

legal effect D of the reminder letters on the contract and also the effect of failure to

get statutory consent from the Commissioner for Lands as required by the Land

Regulations, 1948. E

Held: (i) Failure to pay the balance of the price within the two months stipulated in

the agreement constituted breach;

(ii) extension of time through the letters of the appellant to the respondent did

not constitute waiver and as such did not alter the terms of the agreement; F

(iii) the contract was inoperative because the disposition lacked consent of the

Commissioner for Lands. The agreement was, therefore, unenforceable.

Case Information

Appeal allowed. G

[zJDz]Judgment

Omar, Kisanga and Mnzavas, JJ.A.: The appellant Millen Richard entered into a sale

agreement with the respondent Ayub Bakari Hoza whereby the semi detached house

erected on plot No. 239 Block "B" in Sinze Area belonging to the appellant would pass

H to the respondent as the latter's property. Among the terms of agreement was the

one concerning the sale price of Shs.550,000/= to be paid by the respondent. The

parties agreed that first payment of Shs.400,000/= would be paid on the date of the

signing of the agreement on 9/7/86, and it was paid by the purchaser, Ayub Hoza, on

that date. I The balance of Shs.150,000/= was mutually agreed to

1992 TLR p386

OMAR JJA, KISANGA JJA, MNZAVAS JJA

be paid after a period of two months, that is on 9/9/86, this was not paid, till 1991, A

even after repeated letters of demand and the filing of the suit in the High Court. The

High Court (Rubama, J.) did not rescind the contract as argued by the appellant

because it was considered that the letters of demand by the appellant altered the

terms of agreement by extending the time for payment of the balance of 150,000/=. In

one B letter dated 17/6/87 the respondent was given a period of 10 days in which to

pay this balance. In a subsequent letter the respondent was given four more days from

the date of this other letter in which to pay. Then there was the last letter by the

appellant's advocate to the respondent dated 11/2/88 informing him that the

agreement had been C rescinded and the down payment of Shs. 400,000/= was ready

for collection by the respondent.

At the end of the trial in the High Court the defendant was ordered to pay Shs.

150,000/= and he did pay to the Court on 26/3/92. The trial judge forgot to award D

general damages, which the Court felt it should be paid. All in all what we consider

crucial in this matter is the consent by Commissioner for Lands to the transfer of this

building to the respondent. This requirement is contained in Land regulations of

1948, regulation 3 (1). It is also in Clause 7 of the sale agreement which states that

lack of E consent to the disposition Clause 2 (b) vitiates the agreement which

stipulates the two months for payment of the remainder of the Sale Price, also has

been contravened. Nor do we think that the extension of time through the letters of

the appellant to the respondent in anyway alters the terms of agreement. Extension of

time was merely to F facilitate payment. The conduct of the respondent in this deal

with the appellant leaves much to be desired. The respondent himself admitted in this

Court thus "I was not replying to her letters (of demand) nor did I engage any

advocate because I had done no wrong (in connection with this contract)". G

We have reached the following decision. (a) The contract was in-operative because

the disposition lacked consent of the Commissioner for Lands. The agreement was

therefore unenforceable. The breaking of Clause 2 (b) of the Sale Agreement also is a

factor which justifies rescission of the agreement. H

We therefore allow the appeal with costs. We also make the following orders. (a)

general damages at the bank rate of 30% on 150,000/= for six years i.e. 1986 to 1992

amounting to Shs.270,000/= to be paid to the appellant. Costs of improvements to the

house effected by the respondent to be paid to the respondent by the appellant. High

I Court to appoint a Valuer agreeable to both parties

1992 TLR p387

who would assess costs of improvements of the house in dispute and to do so any A

time between 15/1/93 and 15/2/93. (b) Respondent to give vacant possession of the

premises to the appellant within the period of three months from 15th February,

1993. (c) The Appellant to return 400,000/= to the respondent within one month from

the date of judgment. (d) Shs. 150,000/= received by the High Court to be returned to

the B respondent.

Appeal allowed.

1992 TLR p387

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