Mario v. Merali Civ. Cas. 30-D-71; 3/9/1971; Saidi, C. J.

 

Mario v. Merali Civ. Cas. 30-D-71; 3/9/1971; Saidi, C. J.

The defendant leased the house on land over which he had a right of occupancy, to the plaintiff for a period of two years commencing on 22^nd January, 1970 at the monthly rental of Shs. 800/= payable in advance. Paragraph 4(e) of the lease gave the plaintiff the option to purchase the house at any time during the pendency of the tenancy at the reserved price of Shs. 200,000/= upon his paying to the defendant the some of Shs. 24,000/= in consideration of the option. It was agreed that if the option to purchase was exercised the sum of Shs. 24,000/= would be set off. Paragraph(f) made provision for extension of the option by 24 months so long as an extra sum of Shs. 24,000/= was paid to the defendant by the plaintiff. In accordance with these terms the plaintiff paid to the defendant the sum of Shs. 24,000/= in consideration of the option. Subsequently he tendered the lease to the Commissioner for Lands for him to consent under the land Regulations to the exercise of the option. The Commissioner refused to give his consent and the plaintiff demanded refund of his money. The defendant argued that the claim of the plaintiff was premature, because he still had ample time to re-apply for the consent of the Commissioner for Lands.

            Held: (1) [Quoting s.3 of the Land Regulations] “It seems clear from the wording of Regulation 3 that the option to purchase the house being an agreement to a disposition of a right of occupancy could not be operative unless and until it had received the approval of the Commissioner for Lands. In the present case the Commissioner has refused his consent to the option …… It was contended on behalf of the defendant that the plaintiff still had opportunity of obtaining the consent for the option from the Commissioner and this being so the suit was premature. I would concede that there is still five months time before the lease expires within which another application would succeed. In his letter the Commissioner had clearly stated that “after careful consideration, consent is refused”. In the light of this statement it is most unlikely that any further consideration would be given to a second application for consent. Now if consent for the Commissioner to the option to purchase the house cannot be obtained it therefore means that the option to purchase is inoperative for lack of consent.” (T.H. Patel v. R. Lawrenson and Anders Matzen, (1957) E.A. 249).” (2) Judgment for plaintiff.