Juma Sultani Mkugenzi vs Ramadhani Amin Athuman [1991] TZHC 30 (3 December 1991)


Mkwawa, J.: In this case the plaintiff, Juma Sultan Mkugenzi, basically prays for an order for specific performance of a sale of a house. The prayer is based on the following events:
Sometime in June, 1988 one Mgeni d/o Mawazo who is the mother of the instant defendant, Ramadhani Athumani, C approached the plaintiff (to whom for brevity sake I will be referring to as PW.1) and asked him for a loan of Shs. 200,000/= to enable her to finalize payments against her in a court proceeding. It is common ground that the said Mgeni d/o Mawazo is now dead and that her son Ramadhani Athumani is her sole heir and legal representative (for D brevity sake I will be referring to them as the deceased and PW.1 respectively). It is further not in dispute and clearly demonstrated in the testimony is of PW.1 and DW.1 that though the deceased had initially received from PW.1 Shs. 200,000/= to enable her to secure a house No. 13, Plot No. 49 Block 'B', Magomeni, Dar es Salaam E which was a subject matter in the High Court in Probate and Administration Cause No. 63 of 1985; the deceased subsequently offered for sale the said house to PW.1 as she could not secure a loan in respect of the same from PW.1.
F It is in the evidence of both PW.1 and DW.1 that on June 29, 1988 the deceased and PW.1 entered into a written agreement for the sale of the said house. This agreement was drafted by a practising advocate (Exhibit P.1). The agreement inter alia provided for the payment of the purchase price as follows: Shs. 200,000/= to be paid at G once and the seller acknowledged receipt of the same. The balance of Shs. 500,000/= to be paid after the finalization of Probate and Administration Clause No. 63 of 1986. It is further common ground that Messrs. Mchora and Company Advocates were to ensure the transfers and ownership of the property were effected. It is common H ground that the deceased did not live to effect the said transfer of property, PW.1 being the sole heir and legal representative of the deceased committed himself in writing in what was described as "Declaration of Intent" (Exhibit Pa) to ensure that the transfer and ownership of the said property is effected. Once again this document was drafted I by and attested before practising advocates respectively.

It is further in the testimony of PW.1 that the deceased and later on DW.1 had declined to effect the transfer and A collect the balance of Shs. 500,000/= though the said monies were in possession of their advocate i.e. Mr. Mchora. It is on these basis that the instant proceedings were instituted and hence the prayers for specific performance against the defendant to execute the Transfer Deed. B
On the other hand DW.1 blames PW.1 for defaulting in paying the said balance of Shs. 500,000/=. Briefly, these are facts culminating to the instant proceedings.
Mr. Semgalawe, the learned advocate for PW.1, urged this court to compel DW.1 to carry out the intention of the C parties by executing the Transfer deed as PW.1 had partly conformed the intended sale agreement by paying Shs. 200,000/= to DW.1's mother who at the relevant period was the owner of the house in question.
In rebuttal Professor Fimbo, learned advocate for DW.1, contended that part performance i.e. payment of Shs. D 200,000/= is without legal effect so long as the consent of the commissioner was lacking. He sentenced that the said consent was a necessary requisite in dispossession of an interest in land. In support of this proposition the learned advocate cited several authorities regarding the necessity of receiving the consent in land disposition. The learned E counsel will forgive me for not referring to the numerous authorities cited in support of this argument. I will only refer to one of them i.e. Nitin Coffee Estate Ltd. v United Engineering Works Ltd. - Ci v App. No. 15 of 1988 Ar. Registry (unreported) Prof. Fimbo argued that having regard to regulation 3 of the Land Regulations 1948 K as F amended in 1960 - G.N. 101 of 1960 and the decision of the Court of Appeal - Tanzania in Nitin's case (supra) the agreement - Exhibit P1 - is in operative and can not be enforced for want of consent.
Prof. Fimbo further argued that having regard to paragraph 2 of the said agreement (Exh. P.1) the parties had G envisaged entering into the agreement in future. This being the state of affairs Prof. Fimbo contended that issue No. 1 of the agreed issues should be answered in the negative and the sum of Shs. 200,000/= advanced by PW.1 to the deceased should be considered as a loan. Prof. Fimbo further argued that the said loan is not recoverable in the H instant court proceedings as PW.1 did not cover this issue in his plaint and/or his advocate's submission in this court. Lastly but not least Prof. Fimbo argued that the prayer for specific performance can not be granted to PW.1 as he has not shown reasons why such discretionary I

A prayer should be granted particularly in the absence of consent as statutorily required in such dispositions.
I find it pertinent to mention at this juncture that though the parties in this suit did not impress one as being sophisticated persons it has been amply demonstrated from the brief resume of facts that right from the very B beginning the parties and their eye "on the law". This, they did by engaging the services of practising advocate. That not withstanding it is now evident that their caution did not bear fruits. Their efforts had fallen on barren land and the C once good relationship between the parties has now gone sour and they now come to "law" to seek for redress.
Though the matter before this court stems from very simple facts the matter is far from being easy. Having regard to the issues raised in this matter I must confess that the matter is not an easy one to decide one way or the other. The D issues formed by the court with the assistance of both learned counsel are as follows:
1. Was there an agreement for the sale for the house in disputed?
2. Is the agreement in-operative for lack of approval of the Commissioner of Land?
E 3. Is the agreement void for impossibility?
4. To what relief are the parties entitled to?
F In answering the first point raised, namely whether there was an agreement for the sale of the house, one has to look on the versions of PW.1 as these are the only witnesses before this court and Exh. P.1 and Exh. P.4. On a careful and sober evaluation of the testimonies of the parties to this suit and the contents in exh. P.1 (The agreement G for a sale of a house) and Exh. P.4 (Declaration of Intent) it leaves no doubt in my mind that the deceased who is DW.1's mother badly and urgently needed money from PW.1. It is uncontroverted that PW.1 did not loan the same to her. Undoubtedly PW.1 took advantage of the situation i.e. the deceased's plight and managed to have the house H now in dispute sold to him for the sum of Shs. 700,000/=. Issue No. 1 is thus some what answered in the affirmative. I shall revisit this matter.
The central issue/question that I have now to consider is whether as agreement obtained under such circumstances I and having regard to the fact that it was a land disposition issue can be enforced by this court. In my view this point embraces issues no. 2 and no. 3 collectively.

In defendant (DW.1) in paras 5, 6 and 7 of his written statement of defence appeals as follows: A
5. The Defendant denies the contents of paragraphs 5.55 6 and 7 of the Plaint. The Defendant contends that the agreement described in paragraph 3 of the Plaint was merely an agreement to enter into and agreement for the sale B of the house in dispute held under a right of occupancy.
6. In the alternative, the Defendant contends that the said agreement is void for impossibility. The defendant contends that at the date of the said agreement Mgeni Mawazo, deceased had no interest/estate int he house in dispute, the C right of occupancy had not been transferred to her.
7. In the alternative, the Defendant contends that the said agreement is in operative for lack of approval of the D Commissioner for Lands".
Prof. Fimbo's main submission against the Plaintiff's prayer is based on regulation 3 of the Land Regulations, 1948 as amended by G.N. 101 of 1960, so far as it is material, made as follows: E
3.(1) A disposition of a right of occupancy shall not be operative unless it is in writing and unless and until it is approved by the (President) F
(3) In this regulation disposition means
(a) a conveyance or assignment other than by way of mortgage, or a gift, settlement, deed of portion, assent, vesting declaration, or a sale in execution of an order of a court. G
Prof. Fimbo contends that courts will not enforce a claim which can only be established by relying upon a transaction declared by the law to be in operative for lack approval. In support of this proposition Prof. Fimbo has referred me H to several authorities including Nitin's case (supra).
Before I make a finding as to whether the case now under consideration involves an agreement which is in operative or not, I find it pertinent to reproduce all the clauses in Exhibit P.1. The same runs as follows: I

THIS AGREEMENT is made this 29th day of June, 1988 between BI MGENI MAWAZO (the Seller) of Magomeni Plot No. 40 B Block R. House No. 13 Morogoro Road of the one part, and MR. JUMA SULTAN MKUGENZI (the purchaser) of P.O. Box 25218 Dar es Salaam of the other part, it is hereby agreed:
1. That the purchaser shall advance Shs. 200,000/= (two hundred thousand shillings) to the seller to enable the latter to C finalize administration expenses in respect of the estate of the deceased MARIAMU MAWAZO the registered owner of House No. 13 Morogoro Road which is the property to be sold to the said purchaser. The seller hereby D acknowledges receipt of the said amount.
2. The seller undertakes to effect the finalization Probate and Administration Course No. 63 of 1986 and subsequently to enter into a sale Agreement with the purchaser.
E 3. Both parties agree and covenant Messrs MCHORA AND COMPANY, to ensure the transfers of ownership of the property.
4. The agreed purchase price is Shs. 700,000/= (seven hundred thousand only) from which the sum mentioned under F paragraph 1 is mentioned. Wherefore the parties have signified their agreement the terms and conditions in this agreement on the date aforementioned by appending their respective names.
G It is also common ground that on February 23, 1990 DW.1 made what was described as "Declaration of Intent" (Exhibit P.4). This document like Exhibit P.1 was drawn and attested before a practising advocate. I find it H appropriate to produce in full some of the relevant paragraphs of said "Declaration of Intent" these run as follows:
I 2. That I am the only son of the late MGENI BINTI MAWAZO and that I am the only heir of the deceased's estate.

5. That the deceased received advance payment of Shs. 200,000/= from the said JUMA SULTANI MKUGENZI A immediately after the execution of the sale agreement.
6. That the reminder of the purchase price was deposited by the said JUMA SULTANI MKUGENZI to Mchora and B Company, Advocates for making further payment to the deceased.
7. That later, the deceased decided to change her mind on the said sale, refused to collect the said balance of C payments and also refused to effect transfer formalities. Hence High Court Civil Case No. 76/89.
8. That, consequently, I undertake to collect the balance of the purchase price from M/S MCHORA & CO. ADVOCATES. D
9. That also undertake to ensure that the house is transferred into the name of JUMA SULTANI MKUGENZI. E
10. That this declaration has been made voluntarily,consciously and without any undue influence.
Looking at the evidence adduced by PW.1 and DW.1 coupled with clause 2 of the said agreement (Exh. P.1) and F paragraphs 7 and 10 of the Declaration of Intent (Exh. P.4) the intention of parties becomes quite evident. One sees that the purchaser made an initial payment to the vendor i.e. Shs. 200,000/=. He further deposited the remaining Shs. 500,000/= with an advocate, presumably, pending consent to the transaction being given by the commissioner G together with delivery certificate of title upon execution of Exhibit P.3. It is further evident from exhibit P.1 and PW.4 particularly Paras 7 and 10 Exh. P.4 that the vendor had failed to fulfil the agreement by failing to deliver an unencumbered title. The defendant (PW.1) has in no uncertain terms admitted that he was in breach of the H agreement but now undertakes to execute it. It leaves no doubt in my mind that Exhibit P.1 and P.4 are executory documents. As the defendant(DW.1) is grantor in this case I think the two documents (Exhibits P.1 and P.4) should be construed if necessarily contra proferentum. Then words in these documents albeit not diligently written, should I be given their proper construction. Besides, it is a general rule that

A an instrument should be construed according to its natural meaning in the light of the circumstances in which it was executed. The decisions in Gathuti Hotel v Fazar Ilah [1957] E.A. 17 (CA-K) and S.L. Patel and Another v Dhana Singh s/h Hakan Singh [1962] E.A. 32 (CA-K) are very relevant.
B I have carefully and very soberly appraised the various arguments raised by Prof. Fimbo. I would have supported them had the defendant (DW.1) not made the Declaration of Intent - Exhibit P.4. I say so in the light of what I have, hopefully, demonstrated in my foregone analysis; and I need not repeat myself.
C I now turn to the last issue. The purchaser (PW.1) has brought a suit for specific performance. As I have already stated the remedy sought is an equitable one. The question is whether this is a case on which an order for specific performance should be made. In the instant matter the plaintiff has claimed specific performance of their agreement D with the Defendant. There has been no alternative claim for damages.
In my view the Defendant cannot rely on his own failure to do that from the doing of which he would ultimately have no lawful escape. It was implicit in this "Declaration of Intent - (Exh. P.4) that he thereby undertook to take the E necessary steps to fulfil what his mother had agreed to do (see Exh. P.1). "Equity looks on that as done which ought to be done. In favour of persons entitled specifically to enforce a contract, equity events an agreement to do a thing F as if the thing were already done "per Dacon, J.A.; Abdul Razak bin Mbarak v Feraj bin Abed el-Aweni and other 23 E.A.C.A. 120 at pp. 122 [1956] who quoted with approval Lindly, L.J. in Re Anstis (1886) 31 Ch. at pp. 605-606. Another view of the situation is that which was expressed by the Judicial Committee in Howard v G Miller [1915] A.C. at p. 326 as follows: "It is sometimes said that under a contract for the sale of an interest in land the vendor becomes a trustee for the purchaser of the interest contracted to be sole subject to a loan for the purchase money; but however useful such a statement may be made as illustrating a general principle of equity, it is H only true if and so far as a court of equity would under all the circumstances of the case grant specific performance of the contract".
In the light of the foregoing I think the agreement, though admittedly somewhat obscure is not too uncertain to be enforced. I would accordingly allow the claim and order specific performance of the agreement as prayed in para I II(1) of the plaint. Having regard to the history of the case parties to bear their costs. It is so ordered.
Order accordingly.


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