Benezeth Rweyemamu vs Mwanaidi Ally Hassani (PC Civil Appeal No. 25 of 1997) [1999] TZHC 121 (18 February 1999)

' ,-.,_ IN THE HIGH COURT OF 'rANZANIA DAR ES SALAAN DISTRICT REGISTRY AT DAR ES SALA#'• PC. CIVIL APPEAL NO. 25 OF 1997 (Originating from TEiVlEK.E CIVIL APfEAL N0.2/96 Original 263/95 TElViEKE Primary Court).; , BE:NEZETH RWEYEMAMU •••••••••••••••••••••••·•• AFFLICANT VERSUS NWANAIDI ALLY HASSANI ·•••••••o••••••oo••o•• RESPONDENT J U D G E M E N T BUBESHI, J: The appellant, unsuccessfully sued the respondent for .brea.ch of contract. He lost the claim and on appeal, the District Court upheld the trial court's decision heJ:1..-:2 this second appeal. The brief facts are that on 22/9/93 the appellant and the respondent executed a sale agreeement where the respondent agreed sell her house No.TN/M/683, situate at Temeke for a considertion of TShs.1,500,000/= Part paymerit of Shsl,250,000/ was made and balance of Shs.250,000/= was to be 1 paid upon completion of transfer formalities.. After execution of sale agreement, misunderstandings arose betwee.n parties culminatir.g .:.r.t:- the appellant filing a suit at the Primary Court praying ·, for an order of vacant possession.· She trial ·court found in.favour of. the re·sponde:nt but ordered her to. refund the · rnon?y calling the agreement defective. The District Cor;..rt dismissed the appeal and held that the appellant had· ·•reached the contract for failure to· comply with paragraph 6 of the sale agreement and formalise ..... transfer formalities. The appellant filed five grounds of appeal which are .... that the District Magistra.te · erred in law to· order the respondent to refund the appellant the purchase, P,rice ·of the disputed house. '

• ·that the District Magistrate erred inlaw in holdind ( { ( .... /2 4

"\ .. 2 . - that the appellant was in breach of the sale agreeme !3-t. · that the District Magi_s.trate erred in.law and in fact in holding th-i-"the-··compliance of para 6 of the sale agreement was a condition precedent and fundamental to the agreement. that the District Magistrate erred i:nJ..aw and infact in not considering the evidence that, the Resporrl.ent has preached paragraphs 1, 2, and 5 of the sale agreement. that the District Magistrate erred in law ani n fact in holding that by the refurrl of TShs.1,270,000/= by the responde·nt, parties would be returned to their status. Parties were ordered to file written submissions, and Mr. Ndyanabo learned counsel, submitted on behalf of the appellant He argued _grounds 2 and 3 together; then 1st and 5th and finally dealt with g_round 4. In his submission Mr. Ndyanabo stated that paragraph 6_of the Sale Agreement, to which the first appellate court had put much emphasis was not a condition precedent for the due performance of the .contract. Mr. Ndyanabo stated . . that, _paragraph merely sets out the subsequent obligations of the purchaser which would ensue once certain facts ar.e in place. He emphasized that the paragraph merely stated who should bear the financial co·sts in the eventual preparation of the agreement and Deed of transfer. He added that the duties created urrler paragraph 6 o:nJ..y arises after the parties have complied with requirements of paragraph 4 and because a transfer deed has not been executed the obligations under paragraph 6 cannot ensue and liabllity of the appellant cannot therefore arise. Mr. Ndyanabo faulted the first appellate court for holding that failure to comply with obligations under paragraph 6 amounted to a breach of contract which would entitle the • seller to rescind the sal·e agreenient. He added that· in this case there was r fundamental breach and neither~was paragraph 6 of the agreement, a condition precedent. • ••• /3 ' I

3 In arguing grounds I arn 5 together, Mr. Ndyanabo again faulted the District Court in ordering the Res:pondent to refund the purchase. price and th.at such re.fund would return the parties to their status quo. Mr. Hdyana.bo submitted that an innocent Party is only entitled to avoid a contract where the:<~ •is repudiation or fundamt=ntal breach, and that courts may order recovery of money paid or re;sti tution v-Jhere there is total failure of consideration. He argued that in t~ case there was no total failure of consideration and. the offer by the purchaser was g.cc2n_tr--'l::. by the buyer, namely the aPPellant. Mr. Ndyanaho subnii tted that where parties cannot be restored to their original Position~ rescission can.ot.be orddred.· Mr• Ndyanabo further submitted that the resp,:ir.1dent has rut been an innocent• party and that there was a.n unreasonable \apse of time to seek for remedy; atxi that it was not the respondent who we·nt to the court but the appellant •. He referred the court to the case of L.E,eJ., v INTERNATI0N1 GALLERIES . • Aa ... ... -~ - .. . (1950) 2 K, B, 86 where the issue a! !:lpse of time arid delay in asking for remedy was dealt with. As for the 4th groun:i of appeal Mr. Ndyanabo submitted th9.t it is the Ref,rondent who had, breached paragrap.tis B 3 and 5. 'That/was stated in para B that the fiml payment would be paid after completion of the transfer. Para .5 statd that the Respondent torould deliver vacant possession upon registration of the deed of transfer. Mr·4' Ndyansbo sul?mi tted ·hat the- respondent has refused to . vacant -oossess.1011 desPJ. te - give·/ Part Per_rormance ot' the agreement on the part of the appellant. He added th2.t it is the respondent who has breached the terms of the contract. He has stated further that as the respon.ic:nt has breached the sale agreement, s1e cannot :.=::void th(= coPtract and demand refund o.f the moneys advanced tc h:2r. He contends that restitution being an equitable rerfledy cannot be availed _to a party who is not innocent; "he who comes to equity must ;ome with clean hams."· r, I

4 Finally Mr. Ndyanabo stated that where a party wrongfully repudiates a contract while the other party refuses to accept the repudiation, the contract survives and the rights of the innocent party are preserved; citing the case WHITE & CARTER (COUNCINS) Lilv1ITED vs MR GREGOR (1961) 2 1! .LoR 17 .. - Whei~e it was held that such an innocent party may !r?e:lt'f.6'Ft1his part of the contract and recover on that basis, for there is - nci- duty c4_s:t·. ,pj,m::tt,d

• . , vary the contract at the request of the other party so as to deprive himself of_its benefits.
• '.::::s As for the Responient she submitted that it is the appellant who has breached the contract fc:' having failed to fulfil his part of the contract. She stated that a reminder was sent to the a:;,pellant on 5/9/94 askir him to pay the balance but the appellant failed to do ·soo • Central to this appeal is the agreement entered bee-n parties on 22/9/1993,, The agreement -,,.jas signed before advocate JVit'\1 11 ~"la,'- +q Eialient features of' ti:1e agreeruent are contained in paragraphsB, 1 3, 4 5 and 6. f'.aragraph B stipulates the purch3se price of Shsol,500,000/= and Shs.1,250.;000/= was to be paid immediately and balance after completion of tr:::nsfer 8 Paragraph '3 stipulates that . was - · vacant possession;to be delivered on registration of the -Deed of Transf 21-· a Now has registration of the Deed of transfer hee:n'?done? According to Pcii'agTaj,,:rl '-+ o:r the sale agreement: Parties agreed to simultaneously execute (on) a. Deed of Transfer for th2 conveyance of the property by the 31ender to the purchaser and shall use trwir best end P r·ou:;,~s to see·k _ and obtain or c2use to be sought and obtained consent from the Director,for Larn or other officer ,,. authorised in hi.s .. behalf to this disposi tion 11 n ( " .. /5 ' < .. '

Again in terms of paragraph 5 "The -rendrr hereby covenents with the purchaser to pay, satisfy and discharge all outgoi.pgs, ·~ liabilities in respect of the property until regisiraton of the Ded of Transfer is effected and undertakes to indemnify the r,urchases out of and in connection with.or inciidental to the breach by the :·encL•r or of his undertaking a:t;d covi.enants herein contained. 11 I will revec't to these paragraphs in due course but it suffices at this juncture to state that I agree with Mr. Ndyanabo' s submission that on the facts on record the appellant had not brached the agreement for failure to pay the necessary fees indicated in paragraph of the agreement. The appellant could only py those fees once paragraph 4 of the agreement had been complied witho The next issue is vrho was to execute the Deed of Transfer and:obtain the consent from the Director for Land Development Services. According to paragraph 4 of the agreement both parties had agreed simultaneously to execute the agreement and also execute. the Transfer Deed .. Fi.n1.ther they were to use their endea:V'ours to seek and obtain or cause to be sought and obtain . consent from . ' the Director-of Lands. It is therefore plain clear that both parties had a duty to execute the .transfer Deed~ I was not the responsibility of the respondent alone. As for paragraph 5 of the agreement the respondent agreed with the appellant.to pay, satisfy, and discharge all outgoings and liabilities whatever that meant all unt,tl r.gis.tration .. oL the Deed of Transfer. I must state that I have re read this paragraph as drafted but have failed to grasp the intended meaning thereof. This was supposd to be a straight forward simple agreement between two ordinary citizens. But the way this. agreement was drafted leaves alot to b desired. The obligatiol'lp of the parties were not, in viev.r, clearly speal t out in as far . : . as paragraphs 4 and 5 of the agreement are concerned.

... < 6 what was the respondent supposed to do under paragraph 5 of the agreement? to me, the duties and obligations are not clear. If the obligations under--paragraph 4 rested upon both parties to seek and obtin consent, to execute ·- the transfer deed and registE;r it. how then can either . . . party blame the other for the breac?? In my view both parties did not perform .in terms · of paragraph 4. And yet each party awaited the other to fulfil their part of the bargain. I agree with the trial court that the agreement had patent· defects It is not stated when the balance of Shs·.250,000/ = was to be paid. Again, it is in evidence that there were residing i.n the suit properly but it is not stated how these tenants were to be affected by docume_nt referred as 'G Counsel who drafted the agreement wrote a "to whom it may concern 11 letter explaining about the balance of Shs.250,000/= to be paid after handing over and that all the tenants had been notified accordingly 0 In the same letter counsel stated further that handing over has not taten Place when the agreement he drafted did not indicate the handing over date. While I agree with Mr. Ndyanabo o.n the principles of law he has cited, I find.myself constrained to admit that they do .not apply in the appeal before me. The agreement 7 f as drafted. by the counsel was so vaguely drafted that ' . parties could not perform their obligations. Infact there was no date indicated when ·property-was· to change hands, and relationship between parties became sour and that forced the respondent to change her mind. I cannot blame her 0 In the final event, and for reasons I have tried to explain. I dismiss this appeal with costs. Delivered before Mr. Ndyanabo for the Appellant and - in absence of the Respondent. I' l I ) ( r l ~ r ,,-, A. G. BUBESHI I JUDGE ( I 18/2/99 I