Court name
High Court of Tanzania

Edwin Simon Mamuya vs Adam Jonas Mbala () [1983] TZHC 50 (03 November 1983);

Law report citations
1983 TLR 410 (TZHC)
Media neutral citation
[1983] TZHC 50
Coram
Lugakingira, J.

Lugakingira, J.: By an agreement in writing dated 7th June, 1982 and in consideration B of the sum of Shs. 300,000/= the defendant agreed to sell and the plaintiff agreed to purchase a residential house on Plot No. 209A, Block "X", Hazina area, in the municipality of Dodoma.  It was a term of the agreement that the purchase price was to C be paid in instalments, the final instalment to be made in September 1982, and the defendant was to hand over the house at the end of that month.  The plaintiff duly paid the purchase price, the final payment being made on 1st September, 1982.  However, the defendant never delivered up the house.  The plaintiff therefore commenced this action on 9th June, 1983 praying for an order of specific performance, mesne profits at D the rate of Shs. 5,000/= per month from October 1982 to the date of judgment and costs of the suit.
In his written statement of defence the defendant admitted the averments regarding the existence of the agreement and the mode and fact of payments.  His defence was E two-fold, namely, that there was a collateral agreement whereby the plaintiff permitted him to remain in the house up to February 1983, and that he had since sought to deliver possession of the house but the plaintiff had neglected or refused to take up the same.  It follows from the foregoing that the basic issues are whether there was a variation of the F terms as regards the time of performance and whether there was a tender of performance which was refused.  On 20th August, 1983, while judgment was reserved, the defendant handed over the house to the plaintiff.  Both parties were unrepresented.
It is common practice to vary the terms of a contract by a subsequent agreement.  This G may be done either orally or in writing save that where the contract is in writing or where the law requires it to be in writing, any variation there to must similarly be in writing.
In the instant case the agreement of 7th June 1982 did not have to be in writing: see Pira H & Ors. v Mawji (1930), 1 TLR (R) 457.  But since it was, its terms could only be varied in writing.  Let us now see the position.
The defendant averred in para. 1 of the written statement of defence that there was an oral agreement extending the time for surrendering the house to February 1983.  But his evidence in court suggested that there was a written agreement.  He testified that on 24th I August his mother with whom he was staying in the suit premises died.  When the plaintiff

turned up to make the final payment he asked the plaintiff for permission to continue in A occupation and wind up the funeral rites.  The plaintiff allegedly agreed.  However, in October or November the plaintiff went to claim the house and told the defendant that if he required a further extension they had to see their lawyer, Mr. Alimwike.  They therefore went to Mr. Alimwike and after discussion the plaintiff took out a piece of B paper ("kikaratasi") on which they wrote and agreed that the defendant would hand over the house in February 1983.  Thereafter, the defendant never saw the plaintiff until he was served with the summons in this case.  On the other hand, the plaintiff denied giving any extension.  The court therefore called Mr. Alimwike for an independent version.  He C confirmed that the parties turned up in his chambers and argued for some time.  He finally intervened and told them they could vary the terms of the contract.  At this juncture the plaintiff asked the defendant to state when he would hand over the house. The defendant replied, "February".  Mr. Alimwike then saw the parties write something, D but he did not involve himself in that and did not know what they wrote.
I find from the foregoing that there was no written agreement to vary the contract.  I say so because such an agreement could not be constituted by a mere "kikaratasi", as the defendant put it.  It had to be formal and witnessed like the contract, Exhibit P5.  The defendant did not even have a copy of the "kikaratasi", so his evidence on the matter E was purely oral and inadmissible.  I will also add, although it is not necessary to do so, that even if there was a written agreement it could not have operated to vary the contract since, on the defendant's evidence, it was exclusively to the defendant's advantage.  The Fplaintiff had nothing to gain; hence there was complete absence of consideration.  It is stated in Chitty on Contract 24th Ed., para. 1378:
   The agreement which varies the terms of an existing contract must be supported by consideration.  In many cases, consideration can be found in the mutual abandonment of G existing rights or the reciprocal conferment of new benefits by each party on the other ....  But an agreement which is made exclusively for the benefit of only one party, or an agreement which, although capable of benefiting both parties, is actually made for the benefit of one alone, will not be effective to vary the contract, since no consideration is present. H
That indeed, is what appears to have been the position here.  From all considerations, therefore, the defendant's reliance on the existence of an agreement varying the terms of I the original contract is bound to fail and fails.

That, however, does not conclude the issue.  There can be no doubt that the plaintiff, A even if reluctantly, did accede to the defendant's request to remain in the house till February.  I reach that view having regard to the independent testimony of Mr. Alimwike.  There was thus a forbearance or a concession on the part of the plaintiff, and although that did not amount to a variation one is entitled to say that the plaintiff had by B his word and conduct waived his rights under the contract.  In such circumstances equity intervenes to hold a person to his word.  The same para. 1378 in Chitty hence goes on to state:
   A mere forbearance or concession afforded by one party to the other for the latter's C convenience and at this request does not constitute a variation, but operates as a waiver.  Such a forbearance or concession need not be supported by consideration, and can be made orally even when the contract is one which is required to be evidenced in writing. D
In Robertson v Minister of Pensions [1949] 1 KB 227 Denning, J. (as he then was) similarly said:
   ....  If a man gives a promise or assurance which he intends to be binding on him and to be E acted on by the person to whom it was given, then, once it is acted on he is bound by it.
In Combe v Combe [1951] 1 All E.R. 767 Denning, L.J. (as he then was) again said, at p. 770: F
   The principle, as I understand it is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between G them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself had so H introduced, even though it is not supported in point of law by any consideration, but only by his word.
I am satisfied that the plaintiff agreed to postpone delivery of possession to February.  The defendant, although without furnishing consideration, took the plaintiff at his word I and so continued to occupy

the house.  On the authorities cited, which I respectfully adopt, the plaintiff cannot be A allowed to resile from his concession and to insist on his rights as stipulated in the contract.  I think what is important now is to determine the date in February on which the handover was to be done.  The written statement of defence speaks of "February 1983".  In evidence the defendant said, "in February 1983".  Mr. Alimwike spoke of B "February".  In considering these expressions, and doing my best to give them meaning, I think the intention of the parties was that delivery takes place on 1st February, 1983.
I now come to the second issue.  Did the defendant offer to hand over the house?  Once again I find the evidence elusive.  In para. 2 of the written statement of defence the C defendant asserted that he had since February, 1983 "been all along for the plaintiff to go and take possession of the premises".  In evidence he also stated: "I did not see the plaintiff ... until I was served with the summons in this case".  On the other hand, the plaintiff stated that when delivery was due he went to see Mr. Alimwike but the D defendant could not be found.  In the end he decided to bring this suit.  Mr. Alimwike confirmed that the plaintiff met him and complained that the defendant had not handed over the house.  Subsequently, Mr. Alimwike met the defendant and communicated the complaint but the defendant replied that the plaintiff had not turned up to take possession E of the house!
Once parties bind themselves in contract for lawful consideration they are obliged to perform their respective promises.  But a party would be absolved from liability if he offered to perform his part of the agreement and the other party wilfully refused the offer. F   Nevertheless, for there to be an offer in law it must inter alia be unconditional, it must be communicated, and it must be made in such circumstances as to leave no doubt that the party offering to perform is presently able and willing to do so:  See generally s. 38 of the Law of Contract Ordinance, Cap. 433 and Alidina v Globe Mercantile Corporation Ltd.[1968] E.A. 114.  I think what calls for consideration in the instant G case is whether there was an offer at all, for if there was none, the other matters do not rise.  I have just stated, and I think demonstrated, that the evidence is elusive.  It does not indicate how the defendant offered to hand over the house.  In his own words, he was "waiting for the plaintiff to go and take possession of the premises".  In other words, H at no time did he, himself, take any step to hand over the house or manifest any intention of doing so but left it to the plaintiff to take the initiative.  Admittedly, the contract did not stipulate the manner in which the handing over was to be done.  Nevertheless, the Court can discern the intentions of the parties from their conduct and I the surrounding circumstances.  First, we have seen that in their negotiations

and wrangles the parties sought the assistance of Mr. Alimwike.  One would then expect A that the offer to hand over the house would be made through Mr. Alimwike.  Secondly, from October the defendant had been in occupation of the house free from any liability for rent.  In these circumstances it is patently unreasonable to expect the plaintiff to go on his bended knee pleading for the house.  Interestingly, the plaintiff did in B fact plead with the defendant but the latter threatened him with assault if he ventured at the premises!  The parties are physically unmatched.  The defendant is athletic and seemingly equal to his threat.  I am satisfied that there was no offer to hand over the house.  Indeed, the defendant could not at any time have been able and willing to fulfil C such an offer for when this Court visited the premises on 10th August, 1983 it found the defendant's family very much there.  In the final analysis, I find that the defendant breached the contract for which an order for specific performance is the remedy.
The plaintiff also prayed for damages in the form of mesne profits from October 1982 to D the date of judgment.  Generally speaking, mesne profits or damages are recoverable, in addition to specific performance, when a party delays to perform his part of the contract without reasonable cause.
In Jones v Gardiner [1902] 1 Ch. 191, 195, Byrne, J. said: E
   Jacques v Miller (1907), 6 Ch. D. 153) is a distinct authority for giving damages against a vendor, in addition to specific performance, in respect of delay caused by wilful refusal to carry F out a contract, and for the measure to be applied in ascertaining the damages, namely, such damages as may reasonably be said to have naturally arisen from the delay, or which may reasonably be supposed to have ben in the contemplation of the parties as likely to arise from the partial breach of contract. G
See also the Kenya case of Shah v Abdulla [1964] E.A. 742 where it was held that there is no impediment in the fact that a conveyance has been completed to an action by a purchaser for damages for delay.  On the measure of such damages it is again stated in Chitty para. 1588: H
   If the vendor or lessor delays in completion ( not because of a defect in title), the normal measure of damages is the value of the use of the land for the period of the delay, viz. usually its rental value. I
There is justification in the instant case for awarding damages. The

delay was wilful.  However, in view of what I have said about waiver, I am of the view A that damages can only be awarded from 1st February.  In view, also, of the fact that the plaintiff took possession of the house from 20th August, the damages cannot be recovered beyond 19th August.  I will now go into the assessment.
The plaintiff claimed Shs. 5,000/= per month, saying that even this was concessionary. B   He claimed that the house was built as a lodging comprising twelve rooms.  He said that if he were in possession he could have rented each room at Shs. 70/= per day and thus make Shs. 25,200/= per month from the entire house.  It was out of kindness, he said, that he was claiming Shs. 5,000/= only per month.  I visited the house.  It is not built as a C lodging; it is a single family dwelling.  It has six bedrooms, which include a self contained master bedroom, and the remaining rooms comprise of three unmistakable sitting rooms, a store, a kitchen, a bathroom and a W.C.  Its design and facilities are such that even if it were rented out it could conveniently be rented to a single family D unless it were significantly modified.  I can see no basis for the plaintiff to think otherwise.  Nevertheless, it is settled that a purchaser may claim the loss of profit he intended to make from a particular use of land, e.g. by converting a building into flats and offices, if the vendor had actual or imputed knowledge of special circumstances showing E that the purchaser intended to use the land that way: Diamond v Campbell - Jones & Ors. [1960] 1 All E.R. 583.  In the instant case the agreement between the parties is silent about use.  But in para. 9 of the plaint the plaintiff stated that he purchased the suit premises for his own use.  While testifying; he also conceded that he had no evidence to F show that the house was intended to be a lodging.  On the other hand, the letter offering the defendant a right of occupancy over the plot of land, exhibit Cl, and which was in the plaintiff's possession from the date of the agreement, stipulates the use as "Residential: Use Group A, Use Class (a) as defined in the Town and Country Planning (Use Class). G
Regulations 1960.  "Regulation 2 of these regulations defines "Use Group A, Use Class (a)" as:
   Individual dwelling houses designed for use as dwelling by single families together with such H outbuildings as are normally used there with, but not including dwelling houses designed for occupation by more than one family ....
From all available evidence, therefore, the defendant knew that the house would be used as a single family dwelling and there is no evidence that the plaintiff indicated that he I intended to use the house differently.

Damages which a party may receive are such as may be supposed to have been in the A contemplation of both parties at the time of contracting.  It follows, in my judgment, that the plaintiff can only receive damages for being denied the use of a single family dwelling.
The difficulty which arises is that the house is new and has never been rented.  We B therefore do no know its rental value.  I took it upon myself to determine this having regard to the following facts and circumstances.  The defendant stated that he constructed the house at a cost of Shs. 380,000/= but sold it for less to liquidate some pressing liabilities.  He is also paying an annual ground rent of Shs. 200/=.  He did not C pay a premium for the right of occupancy and it appears that local rates are yet to be assessed and imposed.  In accordance with the provisions of s. 4(1) (c) of the Rent Restriction Act, 1962, as amended, the standard rent would therefore be the total of an amount equal to fourteen percentum of the cost of construction and the ground rent.  This, I think, comes to Shs. 53,228/= p.a. or Shs. 4,435/66 p.m.  It is interesting that his D figure is not very far from the Shs. 5,000/= claimed by the plaintiff.  Certain factors have then to be considered.  When I visited the premises I found that they were wanting in some respects, although undoubtedly attractive.  Electrical wiring was already done E but power was not yet connected.  A portion of the rear section had no ceiling board.  The roofing required final touches.  The cesspit was unfinished.  There was water.  The fronting road was yet to be made up.  The neighbourhood, Hazina Area, is also not so fashionable.  Against these factors one has also to consider the following.  The house is in fact habitable as demonstrated by the presence of the defendant's family therein.  Besides, there is an acute shortage of housing in town and this has to be matched with F the prevailing inflationary tendencies.  Considering all these factors and having in mind the provisions of s. 4(2)(a) of the Act aforesaid, I would for the purpose of this judgment fix the rent at Shs. 3,000/= per month.  As stated earlier, the plaintiff can be paid mesne G profits from 1st February to 19th August, 1983.  It works out to Shs. 19,900/=.
In conclusion, therefore, this suit succeeds and there will be an order for specific performance despite the informal handover.  The plaintiff is also awarded mesne profits H of Shs. 19,900/= together with costs of the suit.  It is to be hoped that it will not require further litigation for the purpose of transferring the title over the land.
I Judgment for the plaintiff.

A