IN THE COURT OF APPEAL FOR EAST AFRICA
AT DAR ES SALAAM
CORAM: (SPRY, V-P., LAW AND LUTTA, JJ. A.)
CIVIL APPEAL NO 31 OF 1970
CHRISTO KATSANTONI CHRISTIE . . . . . . . . . . . . …………. .APPELLANT
SHAH RAMJI KANJI )
PREMCHAND KANJI SHAH)
NEMCHAND KANJI SHAH )
SHAH KALIDAS LADHU ) . . . . . . . . . . . . …….RESPONDENTS
[Appeal from a Ruling and Decree of the High Court of Tanzania at Arusha (Platt, J.) dated 20th December, 1969, in Civil Case No. 25 of 1968]
JUDGMENT OF COURT
This is an appeal from a decision of the High Court on what was described as a preliminary point. In fact it appears to have been a judgment on a preliminary issue and gave rise to a preliminary decree, but nothing turned on this. The appeal arises out of a suit in which the respondents sued the appellant for damages for breach of a contract of sale of certain land in the Arusha area. A contract had been signed on 9th August 1966, which provided that the eventual transfer was to be to a company to be formed.
The appellant paid a deposit on the signing of the agreement and went into possession. The advocates for the respondents sent a copy of the agreement to the Commissioner for Lands with a covering letter, giving further details, and asked for "provisional approval”. The land was held under a Government lease and consent was required under section 19 of the Freehold Titles (Conversion) and Government Leases Act, 1963 Cap.253). Te Commissioner replied saying, "consent in principle is hereby given to the proposed disposition".
He went on to say that the consent was without prejudice to his right to refuse formal consent should all legal and other requirements not be complied with. It is claimed by the respondents that they subsequently called on the appellant to complete the transaction but that he refused. When the suit came on for hearing, the preliminary point was taken that the agreement was unenforceable for lack of consent.
The learned judge rejected this proposition and it is from that decision that this appeal is brought. Mr. Riegels, who appeared for the appellant, argued that the letter from the Commissioner did not give consent, but only expressed an intention to give consent in the future. He submitted that the language in which the letter is expressed indicates that there was no intention to give consent and that in any case it would not have been competent for the Commissioner to give consent since he did not have all the material facts before him at that time. He went further and submitted that the Commissioner had no power to give consent to a future transaction. In the alternative, Mr. Riegels submitted that if any consent had been given, it was to the proposed disposition and not to the agreement on which the suit is brought. With respect, we are not persuaded by these arguments. It is quite clear that, under section 19(1) (d) of the Act, consent is required to an agreement for the sale of a Government lease. We think that the letter sending a copy of the agreement of sale to the Commissioner and asking for provisional approval amounted in substance to a request for consent to the agreement. We think that the Commissioner's letter, although perhaps somewhat unhappily expressed in that it referred to the proposed disposition, was in substance consent to the agreement.
It follows that the agreement is not inoperative for lack of consent. We would add, for the sake of completeness, that if an assignment had been executed, we think consent to that deed would have been necessary and we think this was what the Commissioner intended to convey when he reserved the right to refuse formal consent. The use of expressions such as "provisional approval", "consent in principle" and "formal consent" has tended to obscure the issues.
We have no doubt that where the Commissioner has given his consent to an agreement, he would rightly consider himself bound to consent to the deed to implement it, unless his consent to the agreement had been induced by any misrepresentation or there had been some radical change in the circumstances and that it is from this that the practice of referring to provisional consent has arisen.
We would, however, agree with Mr. Riegels to this extent, that we do not think there can, under the provisions of the Act, be any qualified or conditional consent. We do not, however, agree with his contention that the Commissioner cannot give consent in advance to a disposition. Those questions do not, however, arise on the present appeal, since, as we have said, we consider that the Commissioner gave his consent to the agreement for sale.
We would stress-that consent is given to dispositions, as defined in the Act, and not to transactions. We heard this appeal de benne, because it appears that there is outstanding a request by Mr. Reid that a decision by the learned judge extending time for filing the record of appeal be referred to a full Court.
In view of our decision on the substantive issue, no useful purpose would now be served by pursuing that request. The appeal is dismissed.