H Kisanga, Mustafa and Makame, JJ.A.: The first appellant Wayani Langoi is the husband of the second appellant. The first appellant entered into a written agreement with the respondent for the sale of land, with a building thereon, which is held under a Right of Occupancy by the second appellant. Pursuant to the agreement, the I respondent duly paid the purchase price, but
KISANGA JJA, MUSTAFA JJA AND MAKAME JJA
the first appellant failed to hand over the property to him, hence the filing of this suit. The first appellant claimed that A he had concluded the agreement in the hope that his wife, the second appellant, would ratify it, but then she did not. The second appellant, on the other hand, asserted that she was never aware of the agreement to sell her land, nor was she ever consulted, by the first appellant about it. The trial judge found that the first appellant concluded the sale agreement as an agent for the second appellant and that the second appellant was well aware of the sale. B Accordingly he decreed specific performance in the following terms:
The state of affairs demand that the defendants (present appellants) do all acts, on their part, to transfer ownership of the C property in question to the plaintiff (present respondent), in terms of para 4 of the sale agreement. They are so ordered.
There was also an order of compensation for Shs. 10,000/= against the appellants for withholding the certificate of D occupany i.e. for failing to transfer the property to the respondent. The appellants have now appealed through their advocate, Mr. J.C. D'Souza, while Mr. F.B. Mahatane for the respondent resisted the appeal.
Mr. D'Souza filed a total of eight grounds of appeal. Ground No. 5 of his memorandum of appeal reads: E
5. The High Court erred in law in ordering specific performance of an agreement inoperative for want of requisite writing and consent under Reg. 3 Land Regulations 1948 (G.N. 232 of 1948) as amended by the Land (Amendment) F Regulations 1960.
The question of consent had also been raised at the trial as one of the issues framed, but the learned judge in his G judgment disposed of it simply by stating that matters of consent by the Commissioner for Lands became relevant only after the appellants had discharged their obligation under the agreement. The relevant parts of Regulation 3 of H the 1948 Regulations cited by Mr. D'Souza provide as follows:
3-(1) A disposition of right of occupancy shall not be operative unless it is in writing and unless and until it is approved by I the President.
KISANGA JJA, MUSTAFA JJA AND MAKAME JJA
A (2) ...
(3) In this regulation "disposition" means-
(a) a conveyance or assignment other than by way of mortgage
(b) ....
B (c) a deed or agreement or declaration of trust binding any party thereto to make any such disposition as aforesaid, including a deed or agreement entitling a party thereto to require any such disposition to be made.
C It is quite clear that the purported sale of the right of occupancy in the instant case was subject to the provisions of this Regulation. Admittedly the agreement complied with the Regulation only to the extent that it was in writing, but there was no consent by the Commissioner for Lands to whom the President has delegated his powers under the D provision. As stated before, the learned judge took the view that the issue of such consent would arise only after the appellants had discharged their obligation under the agreement. With due respect, however, we think that that was a wrong interpretation of the Regulation. What the provision really means is that unless and until such consent E was obtained, the agreement could not be enforced by suing on it. It remained a gentlemen's agreement, if you wish, but it could not form the basis of a suit in a court of law. Since the trial judge's decision was based wholly on an F agreement which was inoperative at law, the judgment itself was thereby vitiated and it would not stand.
Mr. Mahatane referred us to the decision of the High Court in the case of Sylveri Mushunga v Theonastina G Rwakanika [1974] L.R.T. No. 30 in which Mfalila, J. held a different view. When dealing with that case, the learned judge had been referred to previous decisions in which it was consistently held that the courts would not enforce a claim which could only be established by relying upon a transaction declared by law to be inoperative for H lack of approval under the Regulation. He specifically considered the cases of Patterson and Another v Kanji [1956] 23 E.A.C.A. 106, Patel v Lawrenson and Another[1957] E.A.C.A. 249 and Kassam v Kassam and Another [1960] E.A. 1042, but took the view that those cases were distinguishable from the one he was dealing I with. With respect to the learned judge, however, this is not so. We have looked at those cases ourselves but could find no basis for the distinction. In those cases, like in the one under consideration by
KISANGA JJA, MUSTAFA JJA AND MAKAME JJA
the learned judge, the issue was raised whether an agreement which had received no approval or consent as A required by the Regulation was inoperative, and hence underforceable at law, and the answer was yes.
In yet another dimension the learned judge took the view that consent under the Regulation applied only to B dispositions as defined under the Regulations to mean conveyance or assignment but did not include a contract of sale of a right of occupancy. Once again this was wrong. Regulation 3(3)(c) as reproduced above makes it clear that an agreement to sell a right of occupancy is a disposition within the meaning of the Regulation. C
On these two grounds, therefore, we are satisfied that the case of Sylveri Mushunga v Theonastina Rwakanika was wrongly decided. The view that an agreement to sell a right of occupancy, which agreement has received no consent under the Regulation, is inoperative, and hence unenforceable at law, was re-affirmed by this Court in the D more recent cases of Patel v Marealle and Another C.A. 5 of 1984 and Nitin Coffee Estate Ltd. and Four Others v United Engineering Works Ltd. and Another C.A. 15 of 1988 (both unreported).
We also heard arguments on whether the first appellant concluded the agreement as an agent for the second E appellant, and whether the second appellant subsequently ratified the agreement. On the evidence we are satisfied that both contentions cannot be maintained. It is clear that the first appellant concluded the agreement as a principal and the respondent accepted him as such, and there is nothing to indicate or suggest that the second appellant ever F ratified the transaction.
It therefore follows that the judgment of the High Court, based as it was wholly on an agreement which was inoperative at law, cannot be sustained and it must be set aside. G
It is further ordered that the first appellant shall refund to the respondent the purchase price plus the money spent on the property which according to the evidence comes to Shs. 232,240.00; the property to remain vested in the H second appellant. The first appellant is also to refund the respondent the money paid for rates and services which he is shown to have been paying since 1979 or 1981. On the other hand the respondent is to refund to the first appellant the amount of money received as rent from tenants in three rooms which on the evidence is shown to be Shs. 200.00 per room per month, i.e. Shs. 600.00 per month, from the date of possession of the property by the I respondent until the property is handed back to the second
A appellant. The property is to be handed back within 30 days of the date of this judgment. There will be no order as to costs.
Appeal allowed.
B
