A.D. MASHOTO v A.H. KAUNGA 1986 TLR 67 (HC)

 

A.D. MASHOTO v A.H. KAUNGA 1986 TLR 67 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

9 May, 1987

CIVIL CASE 18 OF 1983

Flynote

Civil Practice and Procedure - Objection proceedings - House of judgment debtor attached in

execution of decree - House G already sold to objector - Objector given possession of the

premises and the title deed - Transfer of ownership not finalized - Requisite consent to transfer

not yet obtained - Whether the house liable to attachment

-Headnote

H The respondent sold his house to one Fifi M. Fifi. Possession of the house and the title deed

were given to the latter. The transfer of ownership was, however, not finalized because

requisite consent was yet to be obtained. The plaintiff sought to attach the house in execution of

a decree. Fifi M. Fifi objected. I

1986 TLR p68

CHIPETA J

A Held: Since the agreement was with a consideration and possession of both the property and

the title deed passed as long as consent has not been refused the objector has an interest in the

property which interest a court of law ought not to disregard with abandon.

Case Information

B Objection succeeds.

No case referred to.

Kwikima, for the plaintiff

C Ntabaye, for the objector

[zJDz]Judgment

Chipeta, J.:This is a ruling in respect of objection proceedings. The background of the matter is

that sometime in 1983, the plaintiff in these proceedings, A.D. Mashoto, successfully sued one

A.H. Kaunga for a principal D sum of Shs. 112,129.20.

Meanwhile, the said A.H. Kaunga, hereinafter referred to as the judgment-debtor, entered into a

written agreement with the objector in these proceedings, Fifi M. Fifi, for the sale of the

judgment-debtor's house on Plot No. 93, Block G., E Kazeh Hill, Tabora, to the objector for Shs.

200,000/=. The purchase amount was duly paid, and the objector was given possession of the

premises as well as the title deed. Besides the judgment-debtor gave the objector another

document to enable the objector to transfer the property into his own name. Thereafter, the

objector embarked upon the F process of effecting the transfer, a process that is yet, to be

finalized.

Some two years later, the plaintiff instituted execution proceedings in execution of his decree

against the judgment - debtor and the house in question was attached. Hence these objection

proceedings. G

Mr. Kwikima, learned counsel for the plaintiff contended that since the consent to transfer by

the Regional Land Officer was yet to be obtained, the property was still that of the judgmentdebtor

and so is liable to attachment, and that the objector was no more than a mere occupier.

H Mr. Ntabaye, learned counsel for the objector, countered by submitting that since the

objector has taken all the necessary steps to effect the transfer and as consent has not been

refused, the objector has a claim to the property.

I Since the agreement was with a consideration, and possession of both the property and the

title deed passed, it seems to me

1986 TLR p69

A that as long as consent has not been refused the objector has some interest in the property,

an interest which, in my opinion, a court of law ought not to disregard with abandon.

I am fortified in this view by a commentary in the Indian Transfer of Property Act by B.B. Mitra

(11th Edition) where the B author states:

But if the contract of sale is followed by delivery of possession and payment of purchase

money, then, though there is no registered conveyance, the transaction is more than a mere

contract. ... In such a case the vendor cannot say that the buyer has C obtained no interest in

the property. Nor can the property be attached as the property of the vendor in execution of a

decree against the vendor.

D With respect, I fully associate myself with that statement. To hold otherwise in such cases

would be to encourage unscrupulous people to "sell" their properties as many times as their

whims would permit.

On these grounds, the objection succeeds. The property in question ought not to be a subject to

attachment in execution E of a decree against the judgment-debtor. The attachment thereon

shall forthwith be raised. The objector shall have his costs.

Objection succeeds.

1986 TLR p69

F