IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM VERSUS

Transcription

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM RASHIDI SELUHOMBO VERSUS RESPONDENT. Date of last Order 14/08/2007 Date of Judgment 23/10/2007 The respondent RASHID SELUHOMBO sued the appellant JUHUDI Y. CHAMBI in Mkuza Primary Court Civil Case No. 20/2002 for delay or failure to perform a contract for building a house including a kitchen and a latrine in consideration for a piece of land. The primary court found that the appellant had built 900/0 of the house and that the respondent had breached the contract by including the construction of a kitchen and a latrine which were not included is the contract. The trial court gave judgment to the

2 appellant and ordered the respondent to pay the sum of Shs. 1,290,000/- as compensation of the construction costs. Being aggrieved by the decision of Mkuza Primary Court, the appellant appealed to the District court of Kibaha in Civil Appeal No. 5 of Like the Primary court, the District appellate court found that the oral agreement between the parties did not include the building of a latrine and a kitchen. The District magistrate stated at page 2 of the judgment, as follows. "The appellant wanted the trial court and this appellate court to assume that an agreement to build a house should mean building a house together will a latrine and a kitchen I am not prepared to make that assumption in the absence of any evidence to support the same". ((Itis not clear from the parties agreement that as to when the respondent will be ready to handle the new house to the respondent and (whether) the respondent will be given a piece of land to use before completion of the agreed house. Under the

3 circumstances the court can presume that there is an implied term of the contract between the parties, to the effect that the parties will exchange their properties on completion of the house. It appears from the lower court decision that appellant was found to be in breach of the contract... In my view the appellant is not in breach of the contract because that he has not yet received the completed house. The order of compensation of Tshs.l,290,800 was not deserving upon him". The District court therefore allowed the appeal and set aside the order for payment of compensation and ordered that; ((the appellant should immediately give acre of Land to the respondent on completion of the agreed premises without latrine nor a kitchen". The respondent who is the present appellant, was aggrieved by the decision of the District Court and filed an appeal to this court, initially on seven (7) grounds, which in an amended petition filed by K. M Nyangarika advocates on 19/4/2004, were reduced to the following 4 grounds:

4 1. That the learned Magistrate erred in law and fact by holding that there was no breach of contract as founded by the lower court. 2. That the learned Magistrate erred in law and facts by deciding that the appellant should built (sic) a kitchen and toilet in order to fulfill the contract 3. That the learned magistrate erred In law and fact by putting into consideration things like kitchen and toilet that should be built while there was no evidence depicting such requirement as found by lower court. 4. That the learned Magistrate misdirected himself by holding that the respondent should bear own costs while he is not responsible for the breach of contract. At the hearing of the appeal the appellants counsel did not appear and the appellant undertook to prosecute the appeal on his own. The appellant, very wisely in the light of the clear findings in the judgment of the District Court, decided to drop the 2 nd and 3 rd grounds of appeal. He was therefore left will the 1st and 4 th grounds. In the 1st ground the appellant submitted that pursuant to the oral agreement, the respondent gave to him the use of the piece of land until he completed the house when the respondent would formally handover ownership of the land to the appellant.

5 He contended that he cultivated the said piece of land for one season but on the second season the respondent stopped the appellants children form planting on the land. He submitted that the respondents conduct indicated to him that he had breached the agreement. He also submitted that as a second indication of breach of the agreement the respondent wrote to him a letter giving him an ultimatum to complete the construction of the house including a kitchen and a latrine, before the end of July 2003, giving the appellant only two weeks or else the agreement would come to an end. The appellant contended that while the pnmary court considered these factors, the Distinct court did not do so when determining that the respondent had not breached the agreement. On the remaining ground, the appellant submitted that the primary court awarded him the costs because it was the respondent who had taken the matter to court and since he won, he was entitled to the costs. In reply, the respondent submitted that he was satisfied with the decision of the District Court that the appellant should complete the house and he, to hand over the piece of land to the appellant.

6 He contended that the appellant is his neighbour and he did not intend to defraud him. The appellant responded that the respondent had breached the agreement by coming to court. The facts in this case are not in dispute that the appellant and the respondent entered into an oral contract under which the appellant would construct a house for the respondent and the respondent would give the appellant V2 of land. It was not in dispute that there was no agreed time frame for the performance of the contract or of any of the obligations under the contract. There was however a dispute as to whether the construction of the house included the building of a kitchen and a latrine. However, both courts below made a finding of fact that the contract did not include such a condition. This court being a second appellate court, has no reason to fault the two courts below on this finding of fact. The finding is clearly supported by the evidence that the contract did not include the building of a kitchen and a latrine. The demand for a kitchen and a latrine was infact made by the respondent in several letters to the appellant, written subsequent to the oral agreement and after the appellant had started the construction of the house. It was not in dispute that the appellant had built the house up to the roofing stage. The issue for determination was whether the respondent was in breach of the agreement and therefore liable to compensate

7 the appellant for the costs of constructing by the primary court. the house, as found The contract between to two parties contained reciprocal promises. The appellant promised to build a house for the respondent while the respondent promised to give the appellant V2 acre of land. There was no provision made in the oral agreement as to the time the promises would be performed or the sequence In which they were to be performed. This situation is guided by the provisions of section 52 of the Law of contract Act, Cap {345 R.E 2002} which state: ((52 where the order in which reciprocal promises are to be performed is expressly fixed by the contract) they shall be performed in that order; and) where the order is not expressly fixed by the contract they shall be performed in that order which the nature of the transaction requires". In the present case the appellant has conceded that the respondent would formally hand over ownership of the land to the appellant after completion of the house. It would be inferred from this fact that in the nature of the agreement, the appellant would first complete the house before the

8 respondent could handover ownership of the land to the appellant. The appellant has made much of the fact that the respondent first gave the appellant use of the land for one season but prevented his children from using it in the second season. There was no agreement to the effect that the respondent would first give use of the land to the appellant before formal handing over after completion of the house. The appellant did not claim this to be part of the agreement. The fact that the respondent withdrew the gratuitous offer of the use of the land was not a breach of the oral agreement. However, the Primary Court found that the respondent's claim that the appellant should complete the construction of the house together with a kitchen and a latrine constituted a breach of the contract. I think the Primary Court had a point. By imposing a condition which was not a part of the oral contract, the respondent made it difficult for the appellant to complete the construction of the house. Section 53 of the Law of contract Act Cap 345 R.E 2002 provides as follows: ((53. When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promises, the contract becomes avoidable at the option of the party so prevented; and he is entitled to compensation from the other party for any

9 loss which he may sustain In consequences of the non performance of the contract". By demanding that the house be completed with a kitchen and a latrine, when the kitchen and the latrine were not part of the contract, the respondent prevented the appellant from performing his part of the promise and this made the agreement avoidable at the instance of the appellant and the appellant became entitled to compensation from any loss arising therefrom. The Primary court was therefore right to give judgment to the appellant and to order compensation for the costs of construction of the house. The order for compensation was in accordance with the law, particularly, section 53 of the Law of contract Act, quoted above. In the circumstances, I will allow the 1 8t ground of appeal and set aside he dismissal order of the District court and restore the decision and the order of compensation made by the Primary Court. As for the second ground which relates to costs, the District court was wrong to order each party to bean own costs, concidering that it IS the respondent who took the

10 matter to court. In any event as the result of this decision the appellant is entitled to the costs in this appeal and in the courts below. The appeal is therefore allowed on the second ground and the order of the District Court on costs is set aside. As stated above, the appellant will have the costs In this appeal and in the courts below. J~ JUDGE. Delivered in the presence of Mr. Nyangarika advocate for the Appellant and the Respondent in person this 23 rd day of October Right of Appeal and needs to certify a point of law is explained. JUDGE, 23/10/2007.