Court name
Court of Appeal of Tanzania

Mohamed Idrissa Mohammed vs Hashim Ayoub Jaku () [1993] TZCA 36 (25 November 1993);

Law report citations
1993 TLR 280 (TZCA)
Media neutral citation
[1993] TZCA 36

Mfalila, J.A., read the following considered judgment of the Court: C
In the district Court at Vuga, the respondent Hashim Ayoub Jaku sued the appellant Mohammed Idrissa Mohamed for specific performance of an agreement for the sale of land. The district Court D dismissed the suit holding that the performance of the agreement of sale had been frustrated by the intervention of the appellant's children and clan who blocked the deal on the ground that the land which contains ancestral graves, could not be sold to an outsider. Against this decision, the respondent successfully appealed to the Regional Court sitting at Zanzibar. The Regional Court held E that the appellant's claims that the sale had been blocked by other interested clan members had not been proved because no such clan members came forward to give evidence in support of this claim. The Court therefore ordered specific performance of the agreement of sale. The appellant unsuccessfully appealed to the High Court against this decision. The High Court confirmed the F Regional Court's finding that there was no evidence that there were other clan members interested in this same land who could have lawfully blocked the sale. Against this decision the appellant further appealed to this Court. G
The agreement of sale or its terms are not in dispute. Both the appellant and the respondent agree that on 29 June 1989 they entered into an agreement by which the appellant was to sell his shamba situated at Muyuni to the respondent for Shs 45,000/=. That on two different occasions, the H respondent paid a total of Shs 15,000/= as advance to the appellant to enable the latter to process the Deed of Sale. On the first occasion, the respondent paid Shs 10,000/= and on the second occasion Shs 5,000/=. There was thus a balance of Shs 30,000/= which was to be paid on the execution of the Deed of Sale. At this stage, the agreement got stuck because the appellant alleged I that he could not execute the Deed

A of Sale due to opposition from his clan who maintained that he had no right or power to sell to an outsider clan land containing ancestral graves. The appellant who inherited this shamba from one Abdulfatah also alleged that as there were two other people entitled to inherit a portion of this shamba namely Abdulfatah's widow and one other unnamed person, he could not on his own sell this land. In B rejecting these allegations, both the Regional and the High Court held that there was no evidence to support them.
In his appeal to this Court, the appellant's memorandum of appeal contains four grounds; the sum C total of which is that the Chief Justice was wrong in holding that there was no evidence to support his contention that the sale agreement had been frustrated by the opposition of his clan. The appellant was granted leave to appeal to this Court by the Chief Justice who certified the following point of law for determination:
D `That the contract of sale of the land (shamba) is null and void since at the time of the sale of the said land, the applicant (in this application) had no title to that land as the inheritance formalities which could have otherwise conferred the title to him are yet to be finalised.'
E We think the best way of formulating the point of law for determination by this Court is to put it in the form of a question rather than as it was done in this case as a statement of fact. But the important period is that which was raised by Mr Mohora, learned Counsel who appeared for the F respondent. He said that since this appeal involves a case which did not originate from the Primary Court, it did not need a point of law to be certified for determination by this Court. We agree, this appeal does not fall under Part II of the Zanzibar Magistrate's Court Act 1985 because the case G originated from the District Court. All the Chief Justice was required to do was to grant leave under s 5(1)(c) of the Appellate Jurisdiction Act 1979.
Back to the substantive appeal. In all the three Court's below, the appellant's case was that he could H not execute the Deed of Sale in favour of the respondent because members of his clan opposed the sale on the ground that he could not sell clan land with ancestral graves on it to an outsider and that it was forbidden to sell land to non Africans. He added that the widow of the late Abdulfatah and another person had an interest in the same shamba, he could not therefore unilaterally sell it. But at I the hearing of this appeal he advanced a completely new ground for his inability to execute the

Deed of Sale. He said that he could not execute the Deed of Sale because the respondent had A failed to pay the balance of the purchase price of Shs 30,000/=. He even introduced a new element which does not appear anywhere in his evidence at the trial. He said that the respondent failed to pay the sum of Shs 13,000/= in addition to the Shs 15,000/= which would have enabled him to meet the costs of processing the Deed of Sale. The question then is whether the appellant failed to B process and execute the Deed of Sale because the respondent failed to pay the balance of the purchase price or because the claim prevented him.
As to the respondent's failure to pay the balance of Shs 30,000/=, this allegation appears to be C false. There is evidence supported by the Secretary of the Local Authority (PW2) that when the respondent went on a month long visit to Pemba, he left the money with his wife with instructions to hand it over to the appellant.
With regard to the allegation that his children and other interested members of the clan objected to D this sale, we refer to the documents Exhibits A-D produced by a record clerk in the Registry of Titles at the hearing of this appeal. It is clear from these documents that at about the same time the appellant was negotiating and concluding the sale agreement of the shamba to the respondent, he concluded the sale of the same shamba to one Suleiman Seif Masoud for a higher price of Shs 73,000/=. After receiving the additional advance of Shs 5,000/= on 2 August 1989 from the E respondent, only six days later on 8 August 1989 he sold the shamba to Suleiman Seif Masoud for Shs 73,000/= in whose favour he executed a Deed of Sale and registered it on 30 April 1993 after completing all the formalities with the relevant local authorities. This latter sale involving a higher F price, explains the appellant's change of attitude towards his agreement with the respondent. He was doing his best to find any excuse to repudiate his lower priced agreement with the respondent G in order to cash in on the higher priced sale to Suleiman Seif Masoud. But as the appellant will now no doubt realise, albeit a little late, he was trying to be too clever perhaps by half. At the hearing of this appeal, the appellant sanctimoniously preached the virtues of adhering to and fulfilling agreements and how ungentlemanly it was not to keep one's word. We would recommend to the H appellant that he puts his preaching into practice. The appellant was able to execute a Deed of Sale in respect of the name shamba in favour of Suleiman Seif Masoud without any objections from his clan, or children. It is quite clear then to us as it was to the learned Chief Justice that the story of the I clan objections as well as the

A alleged interests of the widow were appellant's own creations designed to defeat the lower priced agreement with the respondent in order to keep the higher priced agreement with Suleiman Seif Masoud. This he cannot be allowed to do. As he himself emphasised, agreements must be adhered to and fulfilled.
B We are for these reasons satisfied as was the learned Chief Justice that the appellant had no good reason not to fulfill his agreement of sale with the respondent and execute the Deed of Sale in his favour. Accordingly we dismiss the appeal with costs both in this Court and in the Courts below. C Exhibits A to D to be returned to the Registry of Titles.

D
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