Kanji and others v. Christie. Civ. Case 25-A-68; 20/12/69; Platt J.

Kanji and others v. Christie. Civ. Case 25-A-68; 20/12/69; Platt J.

A preliminary point was taken, as to whether the consent of the Commissioner for Lands was obtained to the transaction between the parties. The plaintiffs claimed that consent having been obtained to an agreement for sale, the defendant refused to sign the transfer. The plaintiffs claimed damages. The defendant.

claimed that the agreement was void for lack of consent. The facts were not in dispute. By a letter, the defendant confirmed his offer to purchase the farm. Part of the money was to be paid on acceptance, part on ‘provisional consent being obtained’, and the rest on registration of the transfer. The document then recited that the transfer when approved, would be made in the name f a private company to be formed in Tanzania and the purchase price and other finance was to come from outside. The plaintiff accepted thereafter. The document therefore became an agreement for sale and a disposition within s. 19 of the Freehold Titles (Conversion) and Government Leases Act Cap. 523. Counsel for the plaintiffs wrote on the 15^th August 1966 to the Commissioner applying for provisional consent to the sale. The letter set out the terms of the sale. The Commissioner replied that he gave ‘consent in principle’, but without prejudice to the right of the Commissioner to refuse formal consent should all legal and other requirements not be complied with when formal consent was sought.

            Held: (1) “it is clear that the Commissioner for Lands did not sign the letter himself but it was signed for him and nothing turns on that point after the views expressed in ODENDAAL v. OFFICIAL RECEIVER & GRAY (1960) E. A 263 at page 276” (2) It is also clear that the Commissioner referred to the “proposed disposition” explained in Mr. Reid’s letter of the 15^th August 1966, extracts of which have been set out above. It is to that disposition, I am obliged to reiterate, that consent in principle was given. If that is a proper consent, then section 19 was complied with, and the preliminary point fails.” (3) “It will be seen of course that a disposition under section 19 (1) of Cap. 523 shall not be operative without the consent of the Commissioner; and section 19(2) defines the types of dispositions contemplated. Sub-paragraph (a) of subsection (2) sets out the first of these types in the words – “an assignment, sub-lease, mortgage or settlement of the terms whether in the whole leased land or a part thereof. It is the assignment of the term of the whole land leased to which the parties refer as the “sale”. Then sub-section 2(d) provides another class of disposition – “a deed or arrangement or declaration or trust binding any party thereto to make any such disposition aforesaid, including a deed or agreement entitling a party thereto to require any disposition to be made.” The disposition in question is therefore, as the parties concur, the agreement to the assignment of the whole lease. It is true that there might be a disposition under subsection 2(a) distinct form one under sub-section 2(d). But it is difficult to imagine the first without having passed through the process of the second, or to begin with the second without contemplating the first. The substance of the matter is to transfer the land, and in the land, and in the course of attaining that object, the parties might, of course, fall out at some stage. It may also be a matter of prudence in these days to keep the Commissioner in touch with developments. Nevertheless, it seems an extraordinary repetition of work if it is to be considered a legal necessity for the Commissioner to give consent at several stages. What, in my view, the Commissioner has done here is to give what he calls consent in principle to the whole transaction as contemplated by the parties. He must have taken note who the principal parties were initially, and that a company will be one of the parties in the final form of the transaction. He has intimated that he finds no objection to any of the proposals set out in the document put before him. He has not said, for instance, that he would prefer to suspend judgment until he has seen the draft documents of the proposed transfer, including the manner in which the new company is to be formed. It seems to me that he has accepted the agreement in the offer and acceptance as the basis of the proposed dispositions

and has consented to the whole proposed disposition. It seems impossible to say that while he might have consented to the sale he has no consented to the agreement for sale in these circumstances – I might say in any circumstances, but I shall confine myself to the facts in issue. What distinction could he make? How would he judge the so-called “sale” except in terms of the agreement? Suppose conversely that he was doubtful of the company’s bona fides, could he give consent to the agreement? He would be obliged to give qualified consent, perhaps to the defendant Christie alone. Although I acknowledge that I can find no specific authority on the point, it seems to me that in the circumstances before me, that the Commissioner did give consent in principle to the agreement and that it is but casuistry to divide the agreement from the “sale.” (4) “It may not be without interest however to follow the arguments in Odendaal’s case (referred to above concerning the construction to be put on section 7(1) and (3) of the Kenya Land Control Ordinance. Dispositions such as sale and mortgage required consent (s. 7(1)). So did agreements for such dispositions reduced into writing. Windham, J. A. refused to distinguish between the agreement for mortgage and the actual instrument of transfer. The argument was developed at length at p. 279. The conclusion seems to be summed up as follows:- Every sale, lease mortgage etc. must of course, be proceeded by an agreement, but if that agreement is “reduced into writing” in terms of the proposed transaction, It seems to me that this is a sufficient reduction into writing for the purpose of subsection (3), such an instrument signed by the parties cannot of course take effect otherwise than as an agreement until consent of the board has been obtained, but I see no reason why it should not  take effect as a transfer, mortgage etc. upon the necessary consent being obtained within the time limited by the section. If the transaction is preceded by a written agreement and consent is obtained to threat agreement, then it would seem, no further consent is necessary under sub-section (1). In other words, the section requires one consent of the board to any transaction. If the consent is given to a prior written agreement, that consent will cover the transaction. If the “reduction into writing” of the agreement take the form of setting out the terms in the actual form of the final convergence mortgage etc. it still remains a mere agreement and is the agreement referred to in sub-section (3) until consent to the transaction has been given.” Therefore it was incorrect to say that the consent stamped on in “memorandum of charges by deposit of title” in respect of the mortgage in question was not consent to an agreement and was therefore void. It is a converse of the present case but serves as a warning against the proposed distinction between the agreements referred to in sub-section (3) until consent to the transaction has been given.” Therefore it was incorrect to say that the consent stamped on in “memorandum of charges by deposit of title” in respect of the mortgage in question was not consent to an agreement and was therefore void. It is a converse of the present case but serves as a warning against the proposed distinction between the agreement and the sale, and the supposed necessity for several consents. It brings clearly into focus the relation of the steps of the transaction. I think I may safely rule that consent, at least in principle was given to the agreement in this case.” (5) “There is next the question of the quality of the consent. When is consent not consent? The answer is for the purposes of this debate, when it is qualified. I was referred to the well-known observations of Lowe, J. in T. H. PATEL v R. LAWRENSON AND ANDERS MATZEN (1957) E. A. 249. That was a case where a proposed sale of land held on a right of occupancy had got as far as the land officer intimating that it was unlikely that he would refuse his consent. That was not of course consent. Then at the end of his judgment, the learned judge went on the observe that he considered that purchasers should forward their agreement to the land officer for his consent. All matters being satisfactory to the land officer. He could then give his consent, although he would, no doubt, wish to see the final

document of transfer so as to satisfy himself that it was “in proper form and acceptable to him.” “Confirmatory approval could always be endorsed on the actual document which is registered …..” from these remarks, much of the present practice of giving consent in principle has stemmed. It makes no difference for this purpose that lower, J. was dealing with a right of occupancy whereas the present transaction concerns land held for a government leas. The phrase consent in principle has been employed in both. (I use the past tense advisedly because of recent legislation). The Commissioner in this case seems to me to have given all the consent that was necessary. The only qualification that he made was that which Lowe J suggested, namely, all the necessary legal formalities in drawing up the documents and the purchasers properly constituting they a company being carried out to his satisfaction. As far as the transaction itself is concerned, he has consented. I am told that some consent in principle is withdrawn. What the position then is, I leave for further consideration. In this case, the Commissioner has not withdrawn his consent, which therefore stands. In my view consent in principle in this case means unqualified consent to the proposed transaction as embodied in the agreement pleaded.” (6) Preliminary point failed. Suit to go for trial.