Mnzavas, J.A., delivered the following considered judgment of the Court:
This is an appeal against the decision of the High Court (Hamid M Hamid CJ), which nullified a deed H of conveyance dated 1 October 1987 which transferred ownership of house No 2328 situated at Sokomhogo Street to one, Ahmed Iddi Mjasir - deceased on the ground that the transfer was null and void ab initio.
Having found that the transfer of the sold property to the deceased was illegal the High Court proceeded and nullified a subse- I
A quent transfer of the house by the deceased to his son Mohamed Iddi Mjasir, the present appellant, and ordered that ownership of the house be restored to its legal owner, before it was transferred to the late Ahmed Iddi Mjasir.
B Aggrieved by the Lower Court's finding the appellant has appealed to this Court.
The following facts which were not seriously disputed by the parties were narrated to the Trial Court:
On 25 January 1956 one, Jayantilal Bhanji Joshi now deceased owned a house, No 2328 along Sokomhogo Street in Zanzibar in which he lived with his family up to 1972 when he left for Canada C where he lived with his son. Before he left he entrusted his house to the late Ahmed Iddi Njassir, appellant's father, who was to collect rent from tenants, effect repairs to the house when the need arose, pay any monies on his behalf such as land rent etc, and to keep any balance of money for D him. In 1987 Jayantilal Bhanji Joshi died.
According to the evidence of his wife Jayalaxmi Jayantilal Joshi, the respondent in this appeal, in 1990 she came to know that their house had been sold and decided to file a suit in the High Court - E Civil Case No 3 of 1992, seeking a declaration that her deceased husband is the lawful owner of the house and that the house be registered in her name as the legal representative of her deceased husband's property.
F There was no dispute in this case that the deceased, Ahmed Iddi Mjasir, smarting under a power of attorney, given to him by the owner of the house prepared a deed of conveyance dated 1 October 1987 purported to be between him and the owner of the house which showed that in consideration of the sum of Shs 150,000/= he paid to the owner of the house as purchase price, the owner of the house had sold and transferred the house to him. Equally it was not in controversy that on the G following day (2 October 1987) Ahmed Iddi Mjasir prepared a deed of gift between himself and his son, Mohamed Iddi Mjasir, the appellant/defendant and in consideration of natural love and affection for his son conveyed the house to him. The deed was registered in the name of the appellant, H Mohamed Iddi Mjasir on the same day.
The question the High Court had to decide was whether or not the transfer of the house to the deceased, Ahmed Iddi Mjasir, and later to his son, the appellant/defendant, was in accordance with I the law. In deciding this question the learned Chief Justice said inter alia:
`There is no proof to the effect that the late Joshi had any knowledge to this type of transfer since no evidence was A adduced by the defendant to that effect and this Court cannot be left to assume that is the case.'
Earlier the learned Chief Justice had rejected respondent's/plaintiff's argument that her deceased B husband had not given Ahmed Iddi Mjasir power of attorney over the house and upheld the appellant's/defendant's evidence that Joshi had in fact given power of attorney to Ahmed Iddi Mjasir over the house.
However despite the power of attorney the Court held that by transferring the house to himself, C Ahmed Iddi Hjasir contravened the provisions of s 5 of the Transfer of Property Decree, cap 150 of the Laws of Zanzibar. Equally it was the Court's view that the transfer was invalid under the doctrine of fiduciary relationship.
In conclusion the learned Chief Justice said: D
`Consequently I hold that the transfer of the suit premises, vide a deed of conveyance dated 1.10.89 conveying the suit premises to the late Ahmed Iddi Mjasir to be illegal and therefore null and void and since the conveyance of the same property to the defendant very much depends upon the conveyance that bestows the ownership of the said E premises to the late Ahmed Iddi Njasir which conveyance is void ab inito it follows therefore the subsequent transfer by the late Ahmed Iddi Mjasir to the defendant automatically becomes illegal and therefore null and void.'
The Court then proceeded and declared the late Jayantilal Bhanji Joshi to be the lawful owner of F house No 2328 situated at Sokomhogo Street, Zanzibar. It was also ordered that all the rent collected from the suit premises as from 1 October 1987 be paid by the appellant/defendant to the respondent/plaintiff. The respondent/plaintiff was ordered to refund the sum of Shs 20,8224/70 which G the deceased Ahmed Iddi Mjasir paid to a bank to redeem the suit premises to the heirs of the late Ahmed Iddi Mjasir.
It was the Trial Court's order that each party was to bear its own costs. H
Before us Mr Mbwezeleni, learned Counsel for the appellant vigorously challenged the Lower Court's finding, arguing that the learned Chief Justice erred in holding that there was fiduciary relationship between the late Ahmed Iddi Mjasir and the late Jayantilal Bhanji Joshi. It was the learned Council's submission that the power of attorney empowered the deceased Ahmed Iddi Mjasir to transfer I
A the house to himself as, it was submitted, para 7 of the power of attorney vested that power to him.
Mr Mbwezeleni further argued that the High Court erred in not ordering that the sum of Shs 20,824/70 should be refunded to the appellant/defendant with interest.
B The Court was asked to allow the appeal and declare the appellant the lawful owner of the house.
In rebuttal Mr Kagambo, learned advocate for the respondent, supported the High Court decision and reiterated that the deceased, Ahmed Iddi Mjasir, acted unlawfully in transferring the house to himself.
C It was also submitted that the transfer was in contravention of the provisions of s 5 and s 6(II) of the Law of Property Decree, cap 150 of the laws of Zanzibar. The learned Counsel also argued that there was no evidence that the alleged purchase price of Shs 150,000/= for the house said to be paid D by the late Ahmed Iddi Mjasir to the late Jayantilal Bhanji Joshi passed to Joshi. And therefore, it was submitted, the sale was bad for lack of consideration. The Court was invited to dismiss the appeal.
E In reply Mr Mbwezeleni countered that there was consideration because Mr Joshi did not complain.
First and foremost we agree with the learned Chief Justice's finding that the late Jayantilal Bhanji Joshi did give power of attorney to the late Ahmed Mjasir. There was undisputed evidence that under the power of attorney the late Ahmed Mjasir had power to receive rent from tenants occupying the F house and to effect repairs on the house as and when the need arose. He also had power under para 7 to sell the house if he thought the price offered was reasonable.
However despite the fact that the late Ahmed Mjasir received rent from tenants in the house neither G the record nor the appellant in his evidence in the High Court showed that the deceased, Ahmed Mjasir kept accounts of the monies he received as rent or any monies he may have used in effecting repairs of the house. When this serious anomaly was put to Mr Mbwezeleni, learned Advocate for the H appellant, he merely said that a record of accounts may have been misplaced after the death of Ahmed Iddi Mjasir. With respect to the learned Counsel this reply is not good enough taking into account the fact that Ahmed Mjasir was entrusted with the house over twenty years ago.
Because there was no record of accounts kept by the donee it is our considered view that the I inescapable inference is that the late
Ahmed Iddi Mjasir was not wholly honest. And, as rightly observed by the learned Chief Justice, there A was no evidence at all that Jayantilal Joshi knew of the transfer of the house to the late Ahmed Mjasir; leave alone his consent to such transfer.
Coming to the question whether the late Ahmed Mjasir had power (under the power of attorney) to transfer the house to himself the law is clearly set out under s 5 of the Transfer of Property Decree B cap 150 which says:
`Transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and `to transfer property' is to perform such C act.'
It is clear from the above language that if a person decides to convey property to himself (as it was in this case) such conveyance to be lawful must include one or more other living persons. That being D the law, the purported transfer of the house by the late Ahmed Iddi Mjasir to himself is invalid. Under the law there was no transfer of the property to him at all. He in law therefore owned no property capable of being transferred to his son, Mohamed Iddi Mjasir. E
In the event we agree with Mr Kagambo's argument that the learned Chief Justice was, on the evidence, entitled to declare that the house No 2328 situated at Sokomhogo Street, the subject matter of the suit, belongs to the late Jayantilal Bhanji Joshi. F
We would also like to add, if only in passing, that due to the power of attorney there was a fiduciary relationship between the late Jayantilal Joshi and the late Ahmed Mjasir. That being so Ahmed Mjasir was estopped from obtaining advantage from the fiduciary relationship without first obtaining consent from the other party, the late Jayantilal Joshi. As we have shown above no such consent was sought. G
We also, after considerable reflection, agree with Mr Kagambo that even if for the sake of argument we were to accept the argument that the transfer of the property to the late Ahmed Mjasir was lawful there was not evidence whatsoever to show that the said consideration of Shs 150,000/= as H purchase price passed to the alleged vendor, the late Jayantilal Joshi. Needless to mention that lack of consideration vitiates a contract of sale.
In conclusion we are at a loss to know why the learned Chief Justice ordered that each party should pay its own costs. The law is that the party that wins is entitled to have his costs. One of the I
A exceptions to this rule of practice is where the parties are spouses; which is not so in this case.
It is our view that the respondent is entitled to her costs in this Court and in the Court below. It is so ordered.
B Apart from the question of costs, this appeal is dismissed.