Oplustil v. Gaganakis Civ. Cas. 139-D-1970; 28/2/72, Saidi, C. J.

 

Oplustil v. Gaganakis Civ. Cas. 139-D-1970; 28/2/72, Saidi, C. J.

The plaintiff claimed the refund of Shs. 22,000/= being part payment made to the defendant for the purchase of a hotel the latter advertised for sale. Under the agreement the plaintiff undertook to deposit the balance of the purchase price within 14 days of the signing of the contract and the defendant undertook to refund the deposit if the sale was called off through no fault of the plaintiff. The agreement fell through because the Commissioner for lands refused to approve the disposition. Counsel for the defendant contended that the part payment was not refundable as it was paid out as an option to purchase. He also argued that the refusal of the Commissioner to consent to the transfer is not necessarily final for if a second application is made it might be obtained.

            Held: “With respect I do not agree ……… In fact in his own letter addressed to the defendant after the consent of the Commissioner for Lands was refused he had advised that this part payment should be refunded to the plaintiff. There is no reason whatever why the plaintiff should lose his money when he is not responsible in any way for the failure of the sale to go through. Without the consent of the Commissioner for Lands the transfer cannot be affected. This is clearly so provided in Section 19 of the Freehold Titles (Conversion) and Government Leases Act, the material

Part of which reads: - ’19 – (1) A disposition of a Government lease shall not be operative without the consent of the Commissioner. (2) In this section, ‘a disposition’ means – (a) an assignment, sub-lease, mortgage or settlement of the term whether in the whole leased land or a part thereof …..’ I would accordingly enter judgment for the plaintiff for Shs. 22,000/= with costs and interest.”