Sheik Ahmed El Haj v. Abdulla Saheh Salim Dhiyebi Atwo Salim Dhiyebi and Fatma Ali Salim Dhiyebi Civ. Case 46-D-68 20/2/69; Hamlyn J.

Sheik Ahmed El Haj v. Abdulla Saheh Salim Dhiyebi Atwo Salim Dhiyebi and Fatma Ali Salim Dhiyebi Civ. Case 46-D-68 20/2/69; Hamlyn J.

The plaintiff, a widow, sought to recover Shs. 68,000/- and interest hereon by her share of her deceased husband’s estate and she claimed in the alternative an order for the distribution of the estate in favour of the beneficiaries. The case proceeded against the second defendant, the administrating of the estate, the plaintiff having reached an agreement with the other defendants. The plaintiff’s case was based upon certain documents. In one of these she renounced he rights in the estate in subject to certain cash payments being made and the transfer of a plot of land with a house thereon. Another was an agreement between deceased and second and third defendants in which a clause admitted that a sum of Shs. 78,000/- was owed to the plaintiff by the estate. The defendant objected to the production of these documents on the ground that no consent had been given to them by the Land Office in accordance with regulation 3 of the Land Regulations 1948 as amended by the Land (Amendment) Regulations 1960. It was not disputed that the land involved in the documents was rights of occupancy and a disposition thereof needed the consent of the Land Office to be operative.

            Held: (1) “I was referred by learned counsel to T. H. Patel v. R. Lawrenson and another, 2 T. L. R. 309. That was a case in which the appellant entered into an agreement for the purchase form the first respondent of a piece of land held under a right occupancy. A deposit was paid the balance of the purchase-price being payable when the Governor’s approval was given. No approval was obtained nor was the balance paid and the vendor thereafter sold the land to a third party. The court held that the whole agreement was inoperative, no approval having been obtained from the Governor. A similar decision was given by the court in Fazal Kassam (Mills) Ltd. v. Abdul Nagji Kassam and another, (1960) E.A. 1043. It is not disputed by learned counsel for the plaintiff that the plots concerned are rights of occupancy, though he contends that it is the duty of the other party to see that consent has been obtained. I am not guite sure what this argument is intended to convey, but it seems clear that where consent is an essential and is not obtained; the document concerned simply fails to effect anything and is inoperative. It matters not which of the parties had a duty to obtain consent, for the court will look at the facts and will refuse to move where such consent is not shown upon the fact of the document; neither party can remove such disability by merely blaming the other. That may or may not found a claim different from the present case.” (2) Preliminary points upheld.