Court name
Court of Appeal of Tanzania

Millen Richard vs Ayub Bakari Hoza () [1992] TZCA 53 (18 December 1992);

Law report citations
1992 TLR 385 (TZCA)
Media neutral citation
[1992] TZCA 53

Omar, Kisanga and Mnzavas, JJ.A.: The appellant Millen Richard entered into a sale agreement with the respondent Ayub Bakari Hoza whereby the semi detached house erected on plot No. 239 Block "B" in Sinze Area belonging to the appellant would pass H to the respondent as the latter's property. Among the terms of agreement was the one concerning the sale price of Shs.550,000/= to be paid by the respondent. The parties agreed that first payment of Shs.400,000/= would be paid on the date of the signing of the agreement on 9/7/86, and it was paid by the purchaser, Ayub Hoza, on that date. I The balance of Shs.150,000/= was mutually agreed to

be paid after a period of two months, that is on 9/9/86, this was not paid, till 1991, A even after repeated letters of demand and the filing of the suit in the High Court. The High Court (Rubama, J.) did not rescind the contract as argued by the appellant because it was considered that the letters of demand by the appellant altered the terms of agreement by extending the time for payment of the balance of 150,000/=. In one B letter dated 17/6/87 the respondent was given a period of 10 days in which to pay this balance. In a subsequent letter the respondent was given four more days from the date of this other letter in which to pay. Then there was the last letter by the appellant's advocate to the respondent dated 11/2/88 informing him that the agreement had been C rescinded and the down payment of Shs. 400,000/= was ready for collection by the respondent.
At the end of the trial in the High Court the defendant was ordered to pay Shs. 150,000/= and he did pay to the Court on 26/3/92. The trial judge forgot to award D general damages, which the Court felt it should be paid. All in all what we consider crucial in this matter is the consent by Commissioner for Lands to the transfer of this building to the respondent. This requirement is contained in Land regulations of 1948, regulation 3 (1). It is also in Clause 7 of the sale agreement which states that lack of E consent to the disposition Clause 2 (b) vitiates the agreement which stipulates the two months for payment of the remainder of the Sale Price, also has been contravened. Nor do we think that the extension of time through the letters of the appellant to the respondent in anyway alters the terms of agreement. Extension of time was merely to F facilitate payment. The conduct of the respondent in this deal with the appellant leaves much to be desired. The respondent himself admitted in this Court thus "I was not replying to her letters (of demand) nor did I engage any advocate because I had done no wrong (in connection with this contract)". G
We have reached the following decision. (a) The contract was in-operative because the disposition lacked consent of the Commissioner for Lands. The agreement was therefore unenforceable. The breaking of Clause 2 (b) of the Sale Agreement also is a factor which justifies rescission of the agreement. H
We therefore allow the appeal with costs. We also make the following orders. (a) general damages at the bank rate of 30% on 150,000/= for six years i.e. 1986 to 1992 amounting to Shs.270,000/= to be paid to the appellant. Costs of improvements to the house effected by the respondent to be paid to the respondent by the appellant. High I Court to appoint a Valuer agreeable to both parties

who would assess costs of improvements of the house in dispute and to do so any A time between 15/1/93 and 15/2/93. (b) Respondent to give vacant possession of the premises to the appellant within the period of three months from 15th February, 1993. (c) The Appellant to return 400,000/= to the respondent within one month from the date of judgment. (d) Shs. 150,000/= received by the High Court to be returned to the B respondent.
Appeal allowed.