Odilo Mugasha v. Samweli Mutelani, (PC) Civ. App. 33-M-72, 25/7/72.

Odilo Mugasha v. Samweli Mutelani, (PC) Civ. App. 33-M-72, 25/7/72.

            JONATHAN, Ag. J. – This is a second appeal following a decision of the primary court ordering the appellant to hand over his land to the respondent in enforcement of an agreement by the parties to that effect.

            One Mr. Marcis Mugyaburo working in the Ministry of Foreign Affairs in Dar es Salaam was desirous of selling his “Kibanja”. For this purpose he arranged with the appellant to get him a buyer duly authorizing him to sell the land for Shs. 5,000/=. It seems approaches were made and the respondent agreed to but the land and in November, 1968, he made a deposit of Shs. 400/= followed by other payments of Shs. 1,600/= and 650/= respectively made in the months of February and May, 1969. The respondent then asked the appellant to let him take possession of the land while paying the balance by installments. It seems, however, that that was not possible just then because there was a woman occupying that land who claimed that the Kibanja was Nyarubanja land so she could not be dispossessed of it. That seems to have made it necessary for Mr. Mugyabuso to take leave in July, 1970 to settle the dispute and then effect sale of the land.

            The respondent and Mr. Mugyabuso met when the latter was informed that the respondent had already paid the appellant a total sum of Shs. 2,650/= towards the agreed price of the land. It transpired that the appellant had not paid the money over to Mr. Mugyabuso nor informed him of its receipt from the respondent. The trio then met and the appellant admitted receiving the money and converting it to his own use, whereupon Mr. Mugyabuso retracted from the arrangement. Upon the respondent demanding the money and threatening institute criminal proceedings, the appellant undertook to sell him his own land. Such under –taking was in writing and was duly witnessed by Mr. Mugyabuso as Exhibit  “A”. The price was to be agreed on the next day, the 31^st July, 1970 after an inspection of the land. This was done and according to the respondent another written agreement – exhibit “B” – was reached in the presence of witnesses whereby the appellant agreed to let him have his land for Shs. 3,250/=, that is to say, in view of the money he had given him, he had only to pay him a further sum of Shs. 600/= in order to have vacant possession of the land. The settlement was to be concluded on 30/8/70. On that day the respondent traveled from Bukoba township where he worked to the village where appellant lived to pay him the money and take possession of the land. But the appellant was not to be seen and although the respondent spent a night in the area and called at the appellant’s house again on the next day, he could not be found.

            Some days later the respondent traveled again to see the appellant. This time he was present, but when he gave him the agreed balance of Shs. 600/= the appellant refused to take delivery and promised instead to pay up by installments. The respondent would not agree and would accept nothing short of immediate payment of the whole sum with interest thereon. That left the respondent with no alternative but to file civil proceedings.

            As already indicated, there is no dispute that the appellant came to owe the respondent a sum of Shs. 2,650/= in the circumstances outlined above. The appellant’s defence was, however, that he was coerced into signing the agreement to sell his land. It appears from the original proceedings that according to the appellant such coercion took the form of threats to use violence in that the respondent went to his house accompanied by several people when signing the second agreement. His two witnesses, however, do not seem to bear out this allegation. Significantly enough, this mode of coercion is not stated in the memorandum of appeal to the district court. There, the appellant claimed that he was made to sign the agreements after the respondent threatened to take legal action I am satisfied, as both the courts below seem to have been, that no violence was threatened when the appellant signed the agreements. It may be, as he says in his first memorandum, that he dreaded legal action, and if I may say so, certainly he had cause to know that, legal proceedings, civil or criminal, would not be in his best interest, after his indulgence in dishonesty. In my view threat to take legal action to which the respondent was entitled, did not in any way detract from the agreement, thereby entitling the appellant to avoid it, and I respectfully agree with the unanimous decisions (the district magistrate sat with assessors that it was just and proper to grant the respondent’s claim.

            At the hearing of his appeal the respondent was agreeable to the appellant paying the whole sums at one go within a reasonable time. Having regard to the remarkable patience he has shown all along, I would consider this a magnanimous overture. In view of this, while dismissing the appeal with costs, I would order that the appellant should pay up within one month of delivery of this judgment the sum of Shs. 2,650/= plus interest thereon, at court rate, calculated from the 1^st of July, 1970 to date of payment, failing which, the respondent shall be entitled to be put into possession of the land on payment to the appellant of Shs. 600/=