Ngurumahamba Estates Ltd. v. Agare Ltd. and three other Civ. Case 81-D-69; 10/6/71; Biron J.

Ngurumahamba Estates Ltd. v. Agare Ltd. and three other Civ. Case 81-D-69; 10/6/71; Biron J.

       The plaintiff claimed Shs. 510,000/- being the balance of the purchase price and the interest thereon in respect of the sale of a sisal estate comprising seven Rights of Occupancy and a Government lease. In their defence, defendants averred that: (a) the agreements on which the action is filed are agreements to vary the terms of the original mortgages and as they are not registered as required by the Law of Registration, they were void; (b) the agreement of sale of the Government lease and seven Rights of Occupancy were agreements for disposition of land and as the Commissioner of Lands had not consented to it, the agreement was void, and therefore the agreement by which the second, third, and fourth defendants guaranteed payment of the price of the sale were also void.

                        Held: (1) [After referring to the pleadings and the agreements] “As remanded, the facts and the position as disclosed by the plaint and the annexures thereto must be assumed to be correct. Thus it must be assumed that the sisal estate comprising the seven Rights of Occupancy and one Government Lease were conveyed to the first defendant company. As very rightly submitted by Mr. Kanji the assignments and conveyances could not have been effected without the consent of the Commissioner for Lands. Further more, Mr. Kanji produced and exhibited transfers and assignments in respect of the Rights of Occupancy and the Government Lease, all of which bear the consent of the Commissioner for lands. It must also be assumed that the mortgages of the Rights of Occupancy and the Government Lease were properly affected and subsequently discharged and remortgaged in accordance with the statement in the deeds. This arises if only be necessary implication, in that the balance of the purchase price is only Shs. 510,000/- Therefore acting as I said, on the assumption that the conveyances and mortgages have been properly effected which one must at this stage, and there is also the presumption that omnia praesumantur legitime facta donec probetur in contrarium, it must be assumed that all the dispositions which required consent have in fact been consented to by the Commissioner for Lands.” (2) “In this instant case all the dispositions which require the consent of the Commissioner for Lands in fact been conserved to by the Commission. Therefore the collateral undertaking, in this case then guaranteed by the third and fourth defendants, the consideration for which was the payment and variation of the payment by instalments, is a fortiori valid and enforceable, as all dispositions which required consent, have in fact been consented to by the Commissioner for Lands.” (30 Preliminary objections overruled.