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Evarist Peter Kimathi & his wife v. Protas Lawrence Mlay, 2000,(breach of written contract)




     1. EVARIST PETER KIMATHI                   ……….………. APPELLANTS

(Appeal from the Judgment and Decree of the
 High Court of Tanzania at Arusha)

(Nchalla, J.)

dated the 14th day of June, 1995
HC Civil Case No. 17 of 1985


25 September 


         The two appellants, who are husband and wife respectively, were jointly sued by the late Protas Laurence Mlay (the Plaintiff hereinafter) in the High Court of Tanzania at Arusha.  The cause of action rested on an alleged breach of an undisputed written contract of sale of a house, between the plaintiff and the 1st appellant dated 5th May, 1984.  The house (the suit house) which was the subject of the said contract is situated on Plot No. 17 Block BBB Section III within the Municipality of Moshi.
                The appellants reside at Weruweru Village in Moshi rural district.  The 1st appellant is a farmer and was the second born to the late Mr. Peter Kimathi and the late Mrs. Pudenciana Peter Kimathi.  His other siblings are Fidelis Kimathi (1st born), Gido Kimathi, Hildegard Kimathi (sister) and the late Demetria Kimathi who died in 1995.  Prior to her death in 1976, Mrs. Pudenciana Kimathi was the registered owner of the suit house.  Following her death, the 1st appellant and Ms Hildegard were duly appointed as the joint administrator and administratrix of her estate which included the suit house.  In 1984 the 2nd appellant was a Primary Court Magistrate stationed at the Moshi District Urban Primary Court.  The deceased plaintiff was by then a businessman residing and working for gain in Kibondo district, Kigoma region.  He had a brother in law named Calist Temu.  The said Calist Temu and the 1st appellant, by 1984, were well acquainted with each other, as Calist owned a shop next to the suit house.
        According to the plaintiff (PW1), in March 1984 the 1st appellant had offered the suit house for sale.   Calist Temu, who testified as PW2 at the trial, informed the plaintiff, who was then at Kibondo, of this offer.  The plaintiff travelled to Moshi to see both the 1st appellant and the suit house.  He met the 1st appellant and after discussing the issue, the 1st appellant took the plaintiff and Calist Temu (PW2) to the suit house for a physical inspection of the same.  The plaintiff became interested in buying it.  They agreed on the purchase price of Tshs. 400,000/=.  After receiving an advance payment of Tshs. 10,000/- for the purpose of redeeming the Right of Occupancy certificate (Exhibit P1) which he had used as security for securing a loan, the 1st appellant gave the plaintiff three weeks within which to pay the remaining Tshs. 390,000/=.  The plaintiff returned to Kibondo, sold his shop merchandise and managed to raise the amount required.  He was back in Moshi by 3rd May, 1984, when together with his elder brother Michael Mlay and Calist Temu (PW2),  met the two appellants at their Weruweru residence.  Also present was the 1st appellant’s paternal uncle, Mr. Mselle, then a District Magistrate.  After showing them Exhibit P1 and a certificate of occupancy (Exhibit P2) which were in the name of Mrs. Pudenciana P. Kimathi, the 1st appellant took the plaintiff and his party to the suit house.  There the plaintiff was introduced by the 1st appellant to the tenants of the suit house as their new landlord to whom they had to pay the subsequent house rents. 
        On 5th May, 1984 the 1st appellant and the plaintiff executed a sale agreement before advocate Shayo.  On the side of the 1st appellant, the agreement was witnessed by his two brothers, Fidelis and Gido while Calist Temu (PW2) and Laurence Mlay were witnesses on the side of the plaintiff purchaser.
        In the sale agreement, the 1st appellant is categorically identified not only as the seller but also as the owner of the suit house which he had inherited from his deceased mother Mrs. Pudenciana Peter Kimathi.   The sale agreement contained these key provisions:-
4.   Muuzaji anakiri kuwa yeye binafsi ndiye atakayewajibika kulipa kodi ya aina yeyote ile kama capital gains tax, kodi ya ardhi ambayo haijalipwa mpaka wakati wa mauzo haya.
5.   Muuzaji anakiri pia kuwa atashirikiana na mnunuzi kuhamisha nyumba hiyo katika jina la mnunuzi.
6.   Muuzaji anamthibitishia mnunuzi kwamba nyumba hiyo haina deni lolote inayodaiwa na wadeni wa marehemu na kuwa haiko kwenye rehani kwa mtu au shirika lolote, na ENDAPO kutakuwepo na madai ya aina yoyote ile basi muuzaji ndiye atakayedaiwa na siyo mnunuzi wa sasa.
7.   Mkataba huu wa mauzo unategemea kibali cha Waziri wa Ardhi, Nyumba na  Maendeleo Mijini.  Iwapo Waziri hatatoa kibali hicho kwa ajili hii muuzaji atamrudishia mnunuzi fedha zake pamoja na gharama zozote atakazokuwa ametumia kuendeleza nyumba.
8.   Muuzaji na Mnunuzi wamekubaliana kushirikiana kikamilifu kuhakikisha kuwa masharti ya Mkataba huu yanazingatiwa kikamilifu kwa ajili ya kuhamisha miliki hiyo kwa jina la Mnunuzi.
Thereafter the parties paid Mr. Shayo Tshs. 30,000/= and commissioned him to prepare the conveyancing deed and the 1st appellant surrendered Exhibits P1 and P2 to advocate Shayo, and gave Tshs. 8,000/= he had already received in advance as rent for the months of June – August, 1984 to the plaintiff.  He also handed the tenancy agreements between him and the tenants (Exhibit P4) over to the plaintiff as well as the keys to one of the rooms in the suit house which he was occupying himself.
        The effort of the plaintiff and Mr. Shayo to obtain the statutory consent of the Director of Lands Development Services for the transfer of title in the suit house proved abortive because of the interference of the 2nd appellant.  The 2nd appellant secretly obtained an injunctive order (Exhibit P5) from the Moshi Urban Primary Court indefinitely prohibiting the plaintiff from doing anything in relation to the suit house.  She then padlocked the plaintiff’s room in the suit house and used policemen to prevent the plaintiff from accessing the suit house.  The plaintiff was left with no option other than resorting to the courts of law.
        In their evidence at the trial the appellants did not dispute the sale of the suit house to the plaintiff.  However, the 1st appellant came up with an ingenious explanation why the sale agreement was not fully enforced.  His defence was simply that the sale transaction fell through because Mr. Shayo failed to apply for the statutory consent of the Minister for Lands and further that Mr. Mselle opposed the sale.
        On her part the second appellant Bertha, (DW2), denied harassing and/or interfering with the plaintiff in his quiet possession of the suit house.  She said that on the authority of “a special power of attorney” donated to her by Hildegard, she applied for an injunctive order against the sale of the suit house, which order was issued by the Moshi Urban Primary Court.
        At the trial some of the controlling or key issues were whether or not the 1st appellant had the authority to sell the suit house, and whether the plaintiff was entitled to compensation.  After carefully scrutinizing the entire evidence before him the learned trial judge answered the first issue in the negative.  To him the 1st appellant “had no capacity to sell the suit house as the same had not been bequeathed to him” and Hildegard had not consented to the sale.  He further held that even if Hildegard had given her consent “the sale would not have been legally operative without the prior consent of the Commissioner of Lands who was then known as the Director of Lands Development Services”.  Having so found the trial judge proceeded to hold that the plaintiff could not, therefore, become the lawful owner of the suit house, as no title passed to him, although he found him to have been a bona fide purchaser for value.
        Another equally significant issue at the trial was whether the second appellant prevented the plaintiff from occupying the suit house.  This issue was answered by the learned trial judge in the affirmative.  He reached this conclusion after correctly, in our view, holding that Hildegard being a court appointed administratrix could not in law appoint another administrator of her own as she purported to do in the power of attorney she granted to the 2nd appellant (Exhibit D1).  He accordingly held, again quite correctly, that the 2nd appellant had no locus standi to institute the so called objection proceedings in 1984, which in our view were totally misconceived and wrongly entertained, in the Moshi Urban Primary Court Mirathi No. 83 of 1979 and “cause a prohibitory order to be issued in her favour against the plaintiff”.
        On the basis of these findings, the learned trial judge proceeded to deny the plaintiff most of the reliefs he was seeking except the ones in respect of compensation and damages for breach of the contract, refund of the equivalent of the purchase price as of the date of judgment (i.e. 14/06/1995), interest on the decretal amount and costs.  The counter-claim was also dismissed.
        On the issue of Compensation the learned judge had this to say:-
… It is my finding that the plaintiff is entitled to compensation for being deprived of the use of his money now for 11 years including the depreciation factor of our shilling due to devaluation.  I believe that compensation is proper on the principle of economics and commerce applicable in the present world.
The appellants were accordingly ordered to refund the plaintiff the purchase price and to pay him Tshs. 4,000,000/= being compensation and damages (both general and punitive) for their “acts in frustrating the deal thereby depriving the plaintiff the house which he would have lawfully acquired”.  The appellants were also ordered to pay interest on the decretal amount at the rate of 5% p.a. from September, 1984 until final payment and costs of the suit.
        The two defendants were aggrieved and hence this appeal.  Unfortunately, the plaintiff died before the appeal was heard and determined.  Therefore, when the appeal was called on for hearing his legal representatives, his son, Honest Temu and his wife, Mrs. Lucia K. Temu were caused under Rule 98 of the Rules of the Court, 1979, to be made parties to this appeal in his place.  Mr. Mwaluko, learned advocate, appeared for the two appellants.
        The memorandum of appeal which was filed by the late Mr. Lobulu contains seventeen (17) grounds of appeal.  When the appeal was called on for hearing Mr. Mwaluko, alive to the fact that what is actually at issue in this appeal is the propriety of the reliefs awarded by the trial High Court, abandoned six (6) grounds of appeal and proceeded to argue the remaining ones together as one.  His main ground of complaint against the High Court decision then was that the trial judge erred in law in not holding that as the plaintiff was not a bona fide purchaser and the statutory consent to the transaction had not been sought and obtained, was not entitled to any moneys, be it damages or compensation, except for the refund of the purchase price as provided for in the sale agreement, Exhibit P3.
        In his bold attempt to elaborate on this ground of complaint, Mr. Mwaluko first began by concurring with the learned trial judge on his finding that the 1st appellant “had no capacity to sell the suit house”.  He proceeded to submit very forcibly that in view of this holding the learned judge then erred in law in awarding compensation in the form of both general and punitive damages.  He advanced the following reasons in support of his submission.
        Firstly, the sale of the suit house was not legal because the seller had no legal authority to sell it as he had not obtained the consent of Hildegard to do so.  Because of this fact, Mr. Mwaluko further submitted, the purchaser was not entitled to any compensation or damages for he knew from the start that the seller (1st appellant) had no authority to sell.
        Secondly, the sale of the house was contingent upon obtaining the consent of the Director of Lands Development Services.  Relying on paragraph 7 of Exhibit P3, Mr. Mwaluko urged the Court to hold that since the said consent was not granted, the buyer was only entitled to the refund of the purchase price.
        Thirdly, that the learned trial judge did not consider the most pertinent issue in the case, namely that the appellants were not responsible for the failure to obtain the statutory consent.  In support of his submission Mr. Mwaluko relied on the decision of this Court in TANGANYIKA STANDARD (N) LTD & ANOTHER v. RUGARABAMU A. MWOMBEKI (1987) TLR 40, wherein it was held that the quantum of damages is justified where the trial judge takes into account all pertinent and relevant considerations.
        Fourthly, the plaintiff was not a bona fide purchaser as  wrongly found by the trial judge.  According to Mr. Mwaluko this was evident from the fact that from the start of the negotiations the plaintiff knew that the seller was not the owner of the suit house and as the sale agreement was executed before an advocate of their own choice, the purchaser ought to have known this fact or had, at least, constructive notice of this fact.  For this proposition, Mr. Mwaluko referred the Court to the commentaries found in the books entitled, LAND LAW by J.G. RIDDAL 6th edition (1997) at page 84 and MODERN LAW OF REAL PROPERTY by CHESHIRE & BURNS, 15th edition (1994) at page 60.
        Fifthly, that there was no provision in the sale agreement for payment of compensation in the event the statutory consent was refused.
        Lastly, that although costs are awarded at the discretion of the court, in this case as the plaintiff had lost on most of his major claims there was no justification to be awarded costs.  At best, according to Mr. Mwaluko, the  parties ought to have been ordered to bear their own costs in the suit.
        On their part, the legal representatives of the late plaintiff, the  respondents, simply urged the Court to dismiss the appeal with costs.  It was their submission that it would be preposterous to hold that the 1st appellant had no authority to sell the house when he had openly asserted to be the owner of the same, thereby inducing the plaintiff to purchase it.  They firmly maintained that the appellants were correctly held liable to pay damages for breach of a valid contract.  On top of that they strongly submitted that the 1st appellant had the authority to sell and the deceased plaintiff honestly believed so and was accordingly a bona fide purchaser for value.  They argued that if the appellant had no such authority, then the sale agreement would not have been witnessed by his two brothers and he would not have handed the suit house over to the plaintiff after receiving the purchase price.  They submitted, therefore, that the learned trial judge was justified in law and on the facts in awarding damages and costs, and went further arguing that actually the plaintiff deserved much more than what was awarded to him given the effect of devaluation on the value of the shilling since 1984 to-date.  Mrs. Lucia Temu emphasized that had it not been for the unjustified interference of the 2nd appellant, who abused her office, the contract of sale would have been fully executed.
        In the circumstances of the case, it is our view that the pressing issues in this appeal are two.  First, whether or not on the credible evidence available the 1st appellant had the authority to sell the suit house.  Second, whether the plaintiff was a bona fide purchaser of the suit house.  Apparently, the thrust of Mr. Mwaluko’s submission was based on this issue.  We have found it convenient to start with the second issue.
        The contention of Mr. Mwaluko in this appeal that the plaintiff was not a bona fide purchaser as he knew that the 1st appellant had no authority to sell the suit house is based on the principle of law quoted by J.G. Riddal and Cheshire and Burns in their respective books referred to above on constructive notice.  J.G. Riddal, (supra) for instance, states this principle at page 84 as follows:-
A person has constructive notice of all those things which he would have discovered if he had made inquiries a reasonably prudent person would have made.  If this were not so, purchasers could “shut their eyes”.
The learned author goes on to say that:-
A person is deemed to have knowledge of all those things that have come to the knowledge of his agent, for example, his solicitor.  This is termed ‘imputed notice’.  Imputed notice includes matters which a person’s agent would have discovered if the agent had made the inquiries he should have made.  In practice, imputed notice is treated as being a form of constructive notice, so we merely say, “without notice, actual or constructive” (emphasis is ours).
        We accept the principle of law as lucidly stated by the learned author.  All the same we are settled in our minds that it is of no assistance to the appellants in this case.  Mr. Mwaluko has not told us those things or matters which the plaintiff or his agent would have discovered had they made a diligent search or reasonable inquiries which he (Mr. Mwaluko) asserts they never did.  The undisputed facts before the plaintiff and Mr. Shayo were that the original owner of the suit house had died long before May, 1984 and the 1st appellant had been appointed as one of the administrators of the deceased estate in 1979.  The 1st appellant was in actual possession of the right of occupancy certificate for the suit house which he had pawned for a loan of Tshs. 10,000/= which amount was advanced to the 1st appellant by the plaintiff in order to redeem it.  The 1st appellant after redeeming it at the time of signing the sale agreement surrendered it to Mr. Shayo for safe custody pending the transfer of title in the suit property to the plaintiff.  The 1st appellant in the presence of his two brothers who, very likely were beneficiaries of their late mother’s estate, went on to bind himself by asserting unequivocally that he was the owner of the suit house as he had inherited it.  He further bound himself by promising to work closely with the plaintiff and Mr. Shayo to ensure that the necessary statutory consent of the Director of Lands Development Services was obtained and the title in the suit house transferred to the plaintiff. 
In view of all this the plaintiff and even Mr. Shayo (who happened to be the vendor’s solicitor) had no duty in law to make any inquiries.  It would have been different if there had been a registered caveat or injunctive order against the disposition of the suit house.  Therefore, in the circumstances of this case, the principle of law tenaciously relied on by Mr. Mwaluko has no application to this case.  We wish to make it clear that any laxity in the application of this principle would enable parties to escape from the full performance of their obligations under contracts unquestionably entered into by them.  All the more so, it would have the effect of lessening the authority of written contracts.  Was the plaintiff then, in view of this, a bona fide purchaser of the suit house?
        The term bona fide purchaser is defined as follows in Black’s Law Dictionary:-
One who has purchased property for value without any notice of any defects in the title of the seller; and/or one who pays valuable consideration, has no notice of outstanding rights of others and acts in good faith, [at page 121 of the Abridged sixth edition (1991).]
         The learned trial judge after properly evaluating the entire evidence before him believed the evidence of the plaintiff and his witness (PW2).  After accepting as true their evidence he reached  the conclusion that the plaintiff was a bona fide purchaser of the suit house.  He cannot be faulted in any way on this.  We entirely agree with him on this finding.  What is more it is not stated in the sale agreement that the sale was conditional upon obtaining the consent of Hildegard or any other person other than the consent to the transfer of title by the Director of Lands.  With these facts in mind we hold without any demur that the 1st appellant was lying when he testified to the effect that he had told the plaintiff and PW2 Calist Temu that it was impossible for him to sell the suit house as it was not his property and he was only an administrator.  He was equally lying when he testified that the plaintiff and Calist Temu (PW2) had told him that their legal expert (Mr. Shayo) “was permitted at law to facilitate the sale of estate property by an administrator”.  We are saying so advisedly because all these allegations were raised by him for the first time when he was testifying.  Neither PW1 nor PW2 were cross-examined on these claims in spite of the apparently searching cross examination by Mr. Lobulu.  Furthermore, if that was the case the 1st appellant ought to have cross-checked with his undisclosed legal adviser, who had advised against the disposition of the suit house by him.  If he was so advised, why did he enter into the sale agreement?  It is for these reasons that we have accepted the evidence of the plaintiff and PW2 Calist that advocate Shayo was the choice of the 1st appellant and not vice versa.
        Regarding the 2nd appellant, the plaintiff was categorical in his evidence that on 3rd of May, 1984 she was present at her residence (Weruweru) when the final details of the sale were worked out.  She did not, in any way, deny this piece of damning evidence against her.  We take it as a fact, therefore, that she acquiesced in the sale of the suit house, in her capacity as the wife of the 1st appellant.
        It is for these reasons, therefore, we reject Mr. Mwaluko’s submission on this point.  We agree with the learned trial judge’s finding that the plaintiff was a bona fide purchaser for value of the suit house.  This we think would still be the position even if it was accepted that the 1st appellant was not the owner of the suit house.  In that case he would be guilty of fraudulent misrepresentation, that is a representation made knowingly with a deliberate intention to deceive.  Such a misrepresentation does not, in law, render the contract void, but voidable and remains binding until set aside.  We think it was correctly stated with sufficient lucidity by Jessel, M.R. as follows:-
If a man is induced to enter into a contract by a false representation, it is not a sufficient answer to him to say, “if you had used due diligence you would have found out that the statement was untrue.  You had the means afforded you of discovering its falsity and did not choose to avail yourself of them”, in REDGRAVE v. HURD, Court of Appeal, (1881) 20 Ch.D. 1.
In such a situation, damages are recoverable by the injured party.  All in all, it is crystal clear that the two appellants set the stage for the sale transaction so elaborately that even the most incredulent purchaser would not have thought otherwise.  In this regard, we do not think that it would make any difference on this point even if it is granted that the 1st appellant had no authority to sell the suit house.
        The next question which follows is whether or not the 1st appellant had authority to sell the suit house.  This question was answered in the negative by the learned trial judge, because he believed that the second administrator had not consented to the sale.  Mr. Mwaluko is emphatically of the same view.  With due respect, it is our considered opinion that the 1st appellant, either as one of the administrators, if the estate was yet to be distributed or as the owner of the house, having inherited it as he asserted had such authority.
        The holding of the learned trial judge that Hildegard had not consented to the sale is not supported by any credible evidence on record.  We have had the opportunity of dispassionately scanning the evidence of both appellants.  We failed to glean therefrom an iota of evidence going to indicate, even remotely, that Hildegard did not consent to the sale.  The evidence of the 1st appellant bears us out on this.  This is what he told the High Court:-
“I told Calist that it was not easy for me to sell the suit house because I was only an administrator, the house was not my property.  So I told Calist to wait I would inform him later.  I wanted to get first the legal position, i.e. legal advice whether an administrator of an estate can sell the estate property.  I was the first administrator of the estate property of our late mother.  The second administrator was my sister one Hildegard Peter Kimathi, who is also alive.  Later after two weeks in the beginning of May, 1984, the plaintiff and Calist came to me again at my farm house at Weruweru  I told the plaintiff and Calist that I had got legal advice that an administrator cannot sell estate property so I was not legally capable to sell the suit house to the plaintiff.  The plaintiff, however, told me that he and Calist had also made investigations and have been legally advised that an administrator could legally dispose of the estate property  … (emphasis is ours).
They then went to meet advocate Shayo forthwith.
        The evidence of 2nd appellant (DW2) shows that she was given by Hildegard “a special power of attorney in respect of the suit house”.  The said power of attorney (Exhibit D1) was executed by Hildegard on 21st August, 1984, before advocate Jonathan of Shayo, Jonathan & Company advocates, and was only duly registered with the Assistant Registrar of Titles at Moshi on 13th April, 1995.  It was this document which she used to obtain an injunctive order in November, 1984 against the plaintiff.  That was all she told the trial High Court.
        We have found the importance of this power of attorney to lie, firstly in the naked fact that it belies DW2 Bertha in the sense that it does not speak at all of the suit house.  Secondly, as it was executed in August, 1984 it was not meant to forestall the sale of the suit house, which had already been sold.  Thirdly, it does not in any way contradict the claims of the 1st appellant that he had inherited the suit house.  Fourthly, it is clear evidence that by August, 1984 Hildegard was in Moshi and if she had any objection to the sale of the suit house she either would have personally filed a suit against her brother and the plaintiff to have the sale set aside or applied to the appointing court to have the appointment of the 1st appellant, if the estate was yet to be distributed by them revoked.  That she did neither of these, she should be estopped from denying, through a third party, that she did not consent to the sale of the suit house and/or to challenge the authority of the 1st appellant to sell the same.  Our view on this aspect is fortified by the witnessing of the sale agreement by their two brothers and that is why they never testified in favour of the appellants.
        All in all, on the cogent evidence available we are satisfied that the 1st appellant had the authority to sell the suit house either as the owner of the same or in his capacity as administrator of their late mother’s estate, with the consent of all the beneficiaries.   We have not the slightest hesitation in holding that all was well, pending the consent of the Director of Lands Development Services, until the 2nd appellant intruded with her dubious obstructions. It was her obstructions which, in our considered opinion, led unfortunately, to the sad and deplorable non-enforcement of the otherwise valid sale agreement which was completely above board.  We have no illusions about the fact that this interference of the 2nd appellant left much to be desired.  It was high-handed and inexplicable.  It is unfortunate that the plaintiff never appealed, otherwise we would have ordered specific performance of the contract as this was a clear case of a blatant breach of contract.  All the same, where there is a right there is always a remedy.  The appellants cannot be allowed by the courts to both eat their cake and have it at the same time.  That will be tantamount to a traversity of justice.  This remedy was rightly given by the learned trial judge.
        The learned trial judge was satisfied that the plaintiff was entitled to damages and/or compensation because he was prevented from occupying the suit house by the appellants after purchasing it in good faith for value.  Hence his order for refund of the purchase price and damages to the tune of Tshs. 4,000,000/=.  This sum included the depreciation factor on the purchase price “which money was withheld from him for 11 years and … was meant to generate profit in business”.  We agree.
        We have already accepted as sound the finding of the trial judge that the plaintiff was a bona fide purchaser of the suit house.  It is our finding also that it were the appellants who breached the contract by blocking the genuine efforts of the plaintiff to obtain the necessary statutory consent for the transfer of title of the suit house, through the so called prohibitory or injunctive order which was obtained under what appear highly suspicious and curious circumstances amounting to an abuse of office by the 2nd appellant.  The plaintiff had no share of blame in this.  The reliefs granted by the trial judge were fully justified on the established facts and in law under Section 73 (1) of the Law of Contract Act, Cap 345, R.E. 2002.  This section provides as follows:-
Where a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
        The crucial issue before us is the adequacy of the quantum of damages awarded,  in view of the fact that specific performance of the contract cannot be ordered.  It is common knowledge that damages for breach of contract being pecuniary compensation which the law awards to a person for the injury or loss sustained through the act or default of another, may be either general or specific but not exemplary or punitive.  Although the learned trial judge wrongly awarded punitive damages, there is no doubt that the plaintiff suffered loss or damage through the established willful breach of the contract.  He was accordingly entitled to general damages and refund of his purchase money which has been withheld from him for over twenty one (21) years now.  This money has greatly depreciated in value as the trial judge rightly held.  The plaintiff ought to have been adequately compensated for this loss.  We think, therefore, that the amount of Tshs. 4,000,000/= awarded was not adequate enough to cover this loss and injury.  We are of the settled mind that he deserved more.
        All in all, therefore, the award of punitive damages for Tshs. 500,000/= is set aside as such damages are in law confined only to actions based on the law of torts.  The order for refund of the entire purchase price is sustained.  However, by invoking the Court’s revisional powers, the amount of general damages awarded against the appellants is enhanced to Tshs. 20,000,000/=.  This amount, which we think takes into account the depreciation factor on the value of purchase price, will, in our view, best meet the ends of justice in this case.  The entire decretal amount shall carry interest at the rate ordered by the trial High Court from September, 1984 until payment in full.
        Otherwise, save to the extent of variation in the amount of damages, the appeal is dismissed with costs to the respondents.

        DATED at DAR ES SALAAM this 16th day of November, 2006.




        I certify that this is a true copy of the original.

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