IN THE COURT OF APPEAL OF TANZANIA

AT PAR SS SALAAM

(CORAM:NYALALI, C.J., MFALILA, J.A., LUBUVA, J.A., SAMATTA, J.A.

And LUGAKINGIRA, J.A.)

MTSC, CIVIL APPEAL NO. 1 -01' 1999

ABUALY ALIBHAI AZI2I ................ APPELLANT

VERSUS

BHATIA BROTHERS LTD. ............. r...f. RESPONDENT

(In matter ef Misc. Civil Appejil No. 1 ■

of 1999 and in the matter of Conflict
of Decisions in Court of Appeal in
Civil Appeal No. '15 of 1988 and- in Civil
Appeal No, 19 of 1995 and in the matter
of the fij.1 bench of the Court)

RULING OF THE COURT

NYALALI, C.J.:

By Order dated 30th November 1998, a bench of three justices

•f the Court of Appeal sitting as an ordinary court under Article

122 (1) •f the Constitution of the United Republic of Tanzania,

referred a matter of law for decision by the same court sitting as

a Full Bench of five justieys under Article 118 (1) ef the samo

Constitution. The matter arose in Civil Appeal No. ^2 of 1995

bitween ABUALY ALIBHAI AZIZI, Appellant, and BHATIA BROTHERS Ltd.,

Respondent. That order stated,

‘‘After discussions between the Bench and the

representatives of the parties, it is directed
that .the matter of the legal effect of lack «f
consent to a sale of registered land be
referred for decision by the Full Bench, as
there are conflicting decisions by the Court
•n the issue, and that pending such decision
by the Full Bench, the case is stayed and will
be fixed for continuation r.f hisaxing after
such decision. Amicus Curiae to be appointed*.'1
 Obviously the court followed this procedure in the light of

what is stated in the case of F.H.B. Poole v R (i960) E.A. 62,

that is:

:A full Court of Appeal has no greater powers

than a division of the court, but if it is to
be contended that there are grounds, upon
which the court could act, for departing from
a previous decision of the court, it is
obviously desirable that the matter should,
if practicable, be considered by a bench of
five judges1’.

The parties in the proceedings before this Full Bench are

the same as the parties in Civil Appeal No. 42 of 1995. As in

that appeal currently pending in the court, the Appellant is

represented in these proceedings by Mr. Mustafa Chandoo, learned

advocate. The Respondent, who is not represented by counsel in

the pending appeal, is represented before us by Mr. Jadeja, learned

advocate. Pursuant to the terms of the court order which initiated

these proceedings, Professor Fimbo, learned advocate, was appointed

by the court to be Amicus Curiae. We must at this stage express our

profound appreciation for the industrious research made by all

advocates in general, and by Mr. Jadeja and Professor Fimbo in

particular. As it will presently be apparent, this extensive

research has had a direct impact on the quality of our decision.

The matter referred to us relates specifically to a conflict

between the decision of this Court in the case of NITIN COFFEE

ESTATES Ltd & 4 OTHERS vs UNITED ENGINEERING WORKS Ltd & ANOTHER

(1938) T.L.R. 203 and the decision of 'Che same Court in the most

recent case of GEORGS SHAMBWE vs NATIONAL PRINTING CO. Ltd, Civil

Appeal No. 19 of 19951 as elaborated upon both in the majority and

dissenting opinions in Civil Application No. 58 of 1995* Basically

the conflict concerns the interpretation and application of statutory

provisions requiring a contract for the sale of land to be approved

or consented to by a specified public authority.

Professor Fimbo's research has revealed a long history of

these provisions. This history includes Article 6 of the BRITISH

MANDATS FOR EAST AFRICA, REGULATION 2 OF THE LAND REGULATIONS, 1926;

REGULATION 2 OF THE LAND REGULATION 1931; REGULATION 3 OF THE LAND

REGULATIONS 19^8 and REGULATION 3 OF THE LAND REGULATIONS, 1960.

As to precedents, the research by both Professor Fimbo and

Mr. Jadeja similarly reveals a long history of judicial decisions

on the status of a contract of sale which lacks the requisite consent.

These precedents include the following cases in their chronological

order: MOHAMEDBHAI KHANBHAI & BROS vs MTOO BINTI TAFAKARI BIN SALUM

& OTHERS (1955) 22 EACA 8^; ALEXANDER GRAY PATTERSON £■ ANOTHER vs

BANDRUDIN MOHAM2D SALEH KANJI & ANOTHER (1956) EACA 106; MOTIBHAI

MANJI vs KHURSHID BEGUM (1957) E.A. 101; T.H. PATEL vs R. LAWRENSON

& ANOTHER (1957) E.A. 2^9; FAZAL KASSAM (MILLS) Ltd vs ABDUL NAGJI

KASSAM 8- SHUBANU BAI GULAMHU3SEIN (1960) E.A. 10^2; MLAY vs PHONEAS

(1968 ) E.A. 563; SYV3NI MUSHUNGA vs THEONESTINA RWEKANIKA (197*0

LRT. NO. 30; CHADKANKAT VINUBHAI PATEL vs FRANK LIONEL MAREALLE &

ANOTHER (198^) T.L.R. 31; METHUSEIA PAUL NYAGWASWA vs CHRISTOPHER

MBOTE NYIRABU (1985) T.L.R. 103; NITIN CD'SFEE ESTATES Ltd & b OTHERS

vs UNITED ENGINEERING WORKS Ltd & ANOTHER (1988 ) T.L.R. 203; WAYAI

LONGOI & ANOTHER vs ISRAEL SOLOMON KIVUYO (1988 ) T.L.R. 263; PETER

KARANTI & ^8 OTHERS vs ATTORNEY-GENERAL & 3 OTHERS, CIVIL APPEAL

No. 3 OF 1988 (not yet reported); J.M. KASUKA vs GEORGE HUMBA, CIVIL

APPEAL NO, 35 OF 1990 (not yet reported) and GEORGE SHAMBWE vs

NATIONAL PRINTING Co. Ltd, CIVIL APPEAL No. 19 OF 1995 (not yet

reported)i
 The relevant statutory provisions which are pertinent to

Civil Appeal Noi ^2 of 1995 currently pending before three justices

of this court, and which is the origin of these proceedings before

us are contained in regulation 3 (1) to (3) of the Land Regulations

1960, These state as follows:

::3 - (1) A disposition of a right of occupancy shall

not be operative unless it is in writing and
unless and until it is approved by the
Governor.

( 2) In this regulation ''disposition'-' means -

(a) A conveyance or assignment other than

by way of mortgage, or a gift, settle­
ment, deed of partition, assent,
vesting declaration, or a sale in
execution of an order of court;

(b) a mortgage other than -

(i) an Equitable mortgage by deposit

1 of title deeds; or

(ii) a Mortgage which by law is only

effectual if registered in the
Register of Documents or the
Land Register;

(c) a deed or agreement or declaration of

trust binding any party thereto to
make any such disposition as aforesaid,
including a deed or agreement entitling
a party thereto to require any such
disposition to be made;

(d) a decree of foreclosure of a mortgage.

The arguments for the Appellant, which have been very ably

put by Mrt Chandoo, learned advocate, are to the effect that non-

compliance with the provisions of regulation 3 of the Land Regulations

1960 does not render such contract to b€: void. Mr. Chandoo cited

the provisions of sub-section (2) of section (2) of the Law of

Contract Ordinance, Cap. 4-33 of the Revised Laws in support of that

position. That sub-section (2) states:

;:(2) Notwithstanding the provisions of paragraph (g)

or (j) of sub-section (1 ) of this section, where
any written law in force in Tanganyika on the
date when this Ordinance comes into operation
provides that an agreement (howsoever described),
of the kind specified therein, shall not be
enforceable by action unless or until certain
requirements specified therein are complied with,
or certain consents are obtained, no such agree­
ment shall be void by reason only that it is not
enforceable by action under the provisions of
that law for want of compliance with any such
requirement or the obtaining of any such consent1
'-.

The provisions of paragraphs (g) aid (j) referred to under

sub-section (2 ) state as follows:

!t(g) an agreement not enforceable by law is

said to be void:;;

"(j) a contract which ceases to be enforce­

able by law becomes void when it ceases
tp be enforceable”.

It is Mr. Chandoo1 s contention in effect that the words,

>>... shall not be operative”' contained in sub-regulation (1 ) of

regulation (3 ) cannot be construed to mean :;shall be void':,

because such a construction would be contrary to the express

provisions of sub-section (2) of section 2 of the Law of Contract

Ordinance. It is part of Mr. Chandoo1s contention that the cases

decided prior to i960 are relevant only to that period, but not

thereafter. According to him, a transaction falling within the

 of -regulation. 3 is. valid, notwithstanding the'failure-to .oomply-•

-•■with the requirements of..sub-scctions (1) t o (3). ■ _------- »

To that extend. Mr«. Jadeja and Profraaor-'Fifflbo-cpGi?aa:--with-- '

».'rM£V"Chandra*•••Mrv Jadfcja:'and Profes»>r.-Fijnbo-'h&wover part 'company'

with" Mr. .Chandoo in submitting to the effoct that suefa_.contractf •"

tbmigh -valid, is inoperative by virtu© of sub-regulation (l) .pf“'

regulation 3 *-- •— - ... ... .-?•

- .''"tfe-have' closely '-examined and considered-'the ‘moro than ample .

-precedents: sited to us by counsel...These, precedents appear to — ....

fall into three broad categories. The first category consists of .

cases, in. which the judicial decision is to the affect that a .

transaction, which dues not fulfill tho-requisitc ©cnditicns is

••void "in. tptality. ' Such cases include the case of MOTIBHAI IIAKJI

'ir» KHORSHID. BEGUM (195'7)E.A. 101, wherein. it, was stated,.,i'Xn:our..-

•view, ..it “is quite clear that the Governor's consent to tho agroo-- —

ment has never been-obtained .for on each ..oorasion there was & " -

substantial misdescription of its subject matter and also a. failure-

to submit for -the Governor's consideration the-agreement as a. whole.

.vWe thinkthat the' learnedtrial judge-correctly held that- the ''■ '

~ agreement was prohibited by law and wasthereforevoid.ab initio.

That being so, nothing done subsequently could oonvert.it into an

» '
■ -
ehforipeable contract". Similarly, in. the case pf FAZAL KASSAM (MILLS)

Ltd vs ABDUL NAGJI KASSAM AND’SHUBANU BAI SULAMHUSSEIN- (1960). E.A.

,"10^2 wherein it was stated, The alleged agreement-that the _____

first defendant should- hot mortgage his right, of occupancy to the

plaintiff company was void ab inltit-.i.,r want writing -and .for

want ef-the Governor's consent, and this-court .has"no power to -

♦rder speoifr? performance of that agreement. I:- my opinion it

l - •

...would make no' difference if fraud was proved against the first
defendant. The plaintiff company must be assumed to have knovm the

law”.

Undoubtedly, these cases were decided before the Law of Contract

Ordinance, hence sub-section (2) of .section 2 therein, had not come into

being in this country. The position however was essentially reaffirmed

in subsequent decisions, including the case of CHADRAKANT VINUBHAI

PATEL vs FRANK LIONEL MAREALLE & ANOTHER (198*0 T.L.R.31 where it was

stated, We are of the view that the agreement is void and

since the trial judge has based his decision entirely on a void

agreement, his judgement is vitiated as it is based on a fundamental

flaw'-, A similar position is to be found in the case of METHUSELAH

PAUL NYAGWASWA vs CHRISTOPHER MBOTE NY IRABU (1985 ) T.L.R.103, where

it was stated, 'I am of the view that the sale by Patrick to

the appellant of the land in Mbezi was void and ineffectual as it

took place without the approval of the village council These

cases of course do not purport to interpret the specific expressions

t* (3 )
used in regulation 3 (l)^of the Land Regulations, i960 . To that

extent, they axe not very helpful to us- apart from being part of

the framework within which we must make our decision.

The second category of cases are those in which it was decided

to the effect that a transaction which d>es not comply with the

requisite- conditions is in#p»ratrve only as to change of title,

otherwise, it is operative. Such cases include the case of MLAY

vs PHONEAS (1968 ) E.A.563 wherein it was stated, ” ... In my opinion

a distinction must be drawn between those terms of the agreement which

concern the disposition and those which are collateral to it so

that while the former may be inoperative, the later remain operative

and can be enforced in the event of the Commissioner failing or

refusing to give consent, of course, if the Commissioner merely fails

to give consent it may be that a new agreement can be drawn up and

r«submitted to him;-. This case gives an indication of the meaning

that may. be attached to the w*rd 'inoperative1 used in regulation (3 )

By using the expression that, ‘-the later remain operative and can .be

enforced • a clear indication of the meaning of the opposite* that is

the meaning of i:inoperative- may be surmised as l»eing “unenforceable;-

The second case in'this eategory-is the case of ALEXANDER

GRAY PATTERSON & ANOTHER vs BANDRUDIN MOHAKED SALEH KANJI.& ANOTHER

(1956) EAGA 106 wheroin it was stated, "I cto not think the respondent

can. get assistance from the.variation in the wording of the-1926 and

19^8 Regulations. ... Hf>w far the present regulation nullifies a

•dealing which is not subsequently approved may be a matter .of ..

argument. Such a transaction may still be valid for some purposes

e,g. if there are collateral undertakings. But at least it is

«Lear that without approval ne dsaling fan pp^rate to effect a

sale or mortgage or to create:a charge or a gublease”-.- This-cage .

is significant in its pronouncement to the effect that a-.transaction

which does not comply with the requisite condit.ioilEl is not totally....

■devoid *f legal effect but, !;may still be valid some purpose^,.

.

e.g.- if there are collateral undertakings- . ■

Th« position that a transaction which djei' rt#t eomply with

the statutory conditions is not necessarily devoid of any legal

affect had of course been stated the year bcf6r* in th* castt of

MOHAMEP HUSSEIN ALLADITTA vs ABDALLA BIN SALIM 8c OTHERS (1955)

far frojn eaying that such an agreement could not be lawfully and
 »ffactively made, though it seems unlike]y that it would be

specifically enforced and it is difficult to see what damages could.

f f
proved on its broach; but however that may be we think this is

B*-t"'such an agreement. There is no express undertaking to do either

• f the things contended for. At best a c.uty to do them may be

implied. There is no separate or severable c.ansideration for the

premises which are said to be aeverablo The significance of

the decision in this case lies *f course in the pronouncement to the

effect that an agreement which does not comply with the statutory

conditions may be partly inoperative and partly operative depending

on the nature of the agreement.

The fourth ease in this second, category of cases is MUSHUNGA

vs RWEKANIKA (197*0 E.A.318 wherein it wsjs stated :I think regulation:

3 •fvthe Land Regulations 19*^8 may be abused by unscrupulous sellers.

I think regulation 3 is applicable only to situation where the

President's Consent has been nought and refused. A contract of-sale _

is n»t fontemplated by regulation 3. This regulation refers to

dispositions which are defined ... to mean, conveyances «r assignments.

A contract of sale is neither of these

The decision in this case was of course per 'incuriam to the

•xtent that it excluded contracts from the scope of regulation 3*

as correctly pointed «ut by this court in. the NITIN COFFSE ESTATE

case.. However, the significance of this case-in the history of

judicial decisions relevant td the matter before us is the

pronouncement therein that I think regulation 3 is applicable

•■'ftnly tfc. situations where the President's eonsent has been sftught-

refused . 1 * the lack of consent is only a defence ah Action

for specific performance or damages, but cannot be a reason for

holding the agreement to sell void"'.

 The other case in this category is the recent case of GEORGE

SHAMBWE vs NATIONAL PRINTING COMPANY Ltd, Civil Appeal No. 19 of

1995 (not yet reported) wherein it was stated inter alia:

With respect, we are unable to accept Mr. Semgalawe's argument

that there was no binding agreement because the Commissioner for

Lands had not sanctioned the sale transaction. We agree with Mr.

Semgalawe's statement that under the Land Regulations, 19^8, the

sale agreement was inoperative, as the correct position of the law

on this point ...

However, though that is the position of the law on this

point, we wish to make it clear that Mr, Semgalawe, learned counsel

is not, with respect, correct in his assertion that because the

approval of the Commissioner was not forthcoming there was therefore

no agreement for sale between the appellant and the respondent.

The learned triajL judge correctly in our view took the view

that the appellant, the vendor was in breach of the agreement even

though the approval of the Commissioner had not been obtained. ...

::As found by the learned trial judge, it was at the stage

when the appellant was required to execute the sale agreement that

he refused to sign the document. With this refusal to sign, nothing

further could be done in executing the agreement. As a result, the

approval of the Commissioner could not be obtained. For that reason,

we agree with the learned trial judge that the appellant was in

breach of the sale agreement reached between him and the respondent,

the buyer. Having breached the agreement in these circumstances,

the appellant cannot validly resort to regulation (1) of the Lands

Regulations, 19^8 in defence ........... .................... .

 •'•As the relief sought at the trial was a declaratory judgement

that the agreement was inoperative and as there was no counterclaim

filed by the respondent for specific performance or damages the

learned trial judge correctly made no further orders. The respondent

hairing spent sums of money towards the redemption of the mortgage

and other liabilities of the appellant, the matter is left open for

further processing and execution of the documents in order to effect

the transfer in terms of the law::.

This decision was subsequently confirmed in a majority opinion

in Civil Application No. 58 of 1995 between the same parties. In a

■dissenting opinion, Ramadhani, J.A., stated, inter alia, ‘As I have

said, I would have no difficulty to refuse this application for

review if NITIN had been distinguished or even departed from as

being bad law. Since neither was done, and in fact NITIN was not

even mentioned in the judgement, despite the fact that it was cited

to the court, then the decision was per incuriam;!.

The significance of the decision in GEORGE SHAMBWE13 case both

in the appeal and in the application for review, is the statement to

the effect that the contract of sale was binding between the parties,

notwithstanding the lack of the requisite consent. The decision

however is unclear as to its effect upon the Commissioner for Lands.

If the decision meant that the binding contract between the parties

obliged the Commissioner to consent to the disposition, then, for

the reasons apparent hereinafter, such a decision would be wrong.

The third and last category «f cases is that in which it was

decided to the effect that a transaction which does not comply with

the statutory conditions is inoperative and unenforceable. Such

cases include the case of MOHAMEDBHAI KHANBHAI & BROS vs MTOO BINTI

TAFAKARI & MBONI (1953) T.L.R. *+33 wherein it was stated, "In my
judgement the plaintiff cannot succeed in the absence of the

G$vernor^s approval to the transaction „„, section 11 of the Lav;

of Property and Conveyancing Ordinance, 1923 provides that such a

disposition :shall not be operative unless it is in writing and unless

and until it is approved by the Governor. ... The plaintiffs have

not fulfilled the condition precedent to their right to enforce the

conr>eyance and in the tabsence of the performance of the condition,

apart from any other consideration, the court is powerless to give

■effect to the transaction1 . The significance of this decision lies

in the clarity in which it explains the helplessness of the court in

providing relief to an aggrieved party. It is clear according to

this ease that an inoperative transaction ::

.s wholly unenforceable.

The second case under this category is T.H. PATEL vs L.

LA.WRENSON & ANOTHER (1957) E.A. 2*+9, wherein it was stated that

;tI am satisfied the whole agreement is inoperative because of a

lack of approval and that being so this court is precluded from

enforcing any part of the agreement. It is wrong to suppose that

any position in which the appellant finds himself could be rendered

by an order for specific performance up to the stage of the first

respondent executing a transfer of the right of occupancy to see

y/hether or not approval could now be obtained. That in effect,

v/ould be for this court to defy the lav; by ordering dealing without

approval in pursuance of an agreement which itself is inoperative-r.

The significance of this case is that it is the strongest voice

against the enforcement of any part and any stage of a transaction

which does not comply with the statutory conditions.

The third case within this category :1s, the famous case of

NITIN COFFEE ESTATES & h OTHERS vs UNITED ENGINEERING l/ORKS Ltd &

ANOTHER (1988) T.E.R. 203, wherein it was stated inter alia, that,
!?In my view an oral agreement of the type sued on to sell land held

under a right of occupancy is inoperative and of no effect. There

is a long line of authority to that effect .„.....................

'•Mr. Marando for the respondents submitted that there is

some confusion on this matter in the High Court. He referred to

a High Court decision in SYLVENI MUSHUNGA vs THEONESTINA RWEKANIKA

(197*0 L.R.T. Mo. 30. Mfalila, J. in that case purported to

distinguish it from Patterson vs Kanji (supra). Mfalila, J. stated:-

'I think that Regulation 3 of the Land Regulations

19^8 may be abused by unscrupulous sellers. I
think that regulation 3 is applicable to only
situations where the President's consent has been
sought and refused. ... A contract of sale is
not contemplated by regulation 3» This regulation
refers to dispositions vrhich axe defined ... to
mean conveyances or assignments. A contract of
sale is neither of these'.

•Obviously Mfalila, J, had overlooked Regulation 3(3)(c)

where such a contract is a disposition. With respecfe,
that decision of Mfalila, J, was wrong.

!:Out cf courtesy for Mfalila, J, and other judges of his way of

thinking perhaps some subsidiary observations may be in order. A

Right of Occqgaacy is somethin# in the nature of a lease and a holder

of a right of occupancy occupies the position #f a sort of lessee

vis-a-vis the superior landlord, A right of occupaney is for a term,

and is held under -*ertain #onditi»ns. One gf the conditions is that

■L disposition gf the said right can be made without the consent of

the superior landlord. There is now n* freehold tenure in Tanzania.

All land is vested in the Republi*. land held .under a right of

upancy is not a freej.y diapo#ahle or marketable ^mmodity like

a motor car. Its disposal is subject to the consent of the superior

sr paramount landlord as provided for under the relevant Land

Regulations-. This case is famous not only because it was the

basis of the dissenting opinion of Ramadhani, J.A., in George Shambwe's

case, but als<» because it states the principle underlying regulation 3 «

The last case in this category is the case of WAYAHI LONGO ?<

.ANOTHER vs ISRAEL SOLOMON KIVIJYO (1933) T.L.R. 263, wherein it was

stated that, ''The view that an agreement to sell a right of occupancy,

;which, agreement has received no consent under the Regulation is

m^perat ive, and henoe unenforceable at law, was re-affirmed by this

court in more recent cases of PATEL vs RAREALLE & ANOTHER, Civil

Appeal No. 5 of"1988 and NITIN COFFEE ESTATE Ltd AMD FOUR OTHERS

vs UNITED ENGINEERING WORKS Ltd AND ANOTHER, Civil Appeal No. 15

#f 1988 . It therefore follows that the judgement of the High Court

based as it was wholly on an agreement which was inoperative at

lav;, cannot be sustained and it must be sat aside-'-'.

It" must be deaf by how that the deSiSiSflg ef the eeufts

both in this country and in East Africa on the matter before US

has not been consistent, contrary to what appears to be asserted

in NITIN’s case. As we have attempted to demonstrate, three

positions can be discerned from the numerous precedents. If our

decision is going to depart from any of these positions,ittcannot

be construed to be violative of the rule laid down in the case of

JIVRAJ vs DEVRAJ (1908) E.A. 263, wherein it was stated that

•
’’There is a principle of law, however, thiit where a court has

interpreted the law in a certain manner particularly an interpretation

which affects property rights, and that interpretation has been acted

upon for a considerable time, then that interpretation should not be

departed from unless it is clearly wroing smd gives rise to injustice-'.

 In ascertaining what we consider to be the correct interpretation

of the expression, :shall not be operative in regulation 3 of the Land

Regulations, 19*+8 and 1968, we are going to be guided by two under­

lying principles. The first principle is explained in NITIN's case,

that is, a Right of Occupancy is something in the nature of a lease

and a holdor of a Right of Occupancy occupies the pesition of a sort

%f lessee vis-a-vis ths superior landlord-. The collorary of this

principle is that a transaction for the disposition of a right of

.occupancy is necessarily a tripartite transaction involving not only

the holder of the right of occupancy and the purchaser or donee,

but also involving the superior landlord. The second principle

.concerns the law of contract and originates from the English Common

Law, That principle is the principle of SANCTITY OF CONTRACT as

stated in CHITTlTs LA.W OF CONTRACTS, Vol. I, 2*+th Edition, at page 5

thus:

'■:
'A concomitant of the doctrine of freedom of
contract is that of sanctity nf contracts; and
it is still a cardinal principle »f English
law because it suits the needs of a commercial
commun ity ......................... .......

English law ia consistently reluctant to

admit excuses for non-performance where there
is no incapacity, no fraud (actual or construc­
tive) or misrepresentation, and no principle of
public policy prohibiting enforcement1.

It is our considered opinion that since there is nothing in

the Law of Contract Ordinance, Cap. *+33, which excludes this

principle, there can be no doubt that it is part of the law of

contract of this country, by virtue of the provisions of sub­

section (2) of section 2 of the Judicature and Application of

Laws Ordinance, CAP, *+53 of the Revised Laws.

 Thus guided by these two principles and the provisions of

sub-section (2) of section 2 of the Law of Contract Ordinance,

we are satisfied that the expression, -’shall not be operative'1 as

used under regulation 3 of the Land Regule.tions 19^8 and 1960,

does not mean 'void' or another meaning to the same effect. We

are satisfied that this must be the correct interpretation in

view of the provisions of sub-section (2) of section 2 of the Law

•f Contract Ordinance. We note that the decisions of cases made

before the enactment of the Law of Contract Ordinance and which

held to the effect that non-compliance with the statutory require­

ment of consent or writing rendered a contract void, were correct

according to law applicable then, but ceased to be precedents on

the matter after 1960. As to the decisions which were made there­

after and which were to the same effect as if the provisions of

sub-section (2 ) above mentioned did not exist, there is no doubt

in our minds that such decisions were made per incuriam.

We have asked ourselves if the expression ''Shall not be

operative" does not entail invalidity, what then does it mean’-'

Logically, it means at least that the contract in question is

valid. According to Mr. Chandoo, such valid contract has all the

attributes of a valid contract. That submission is consistent

with the doctrine or principle of sanctity of contract. We note

however, and Mr, Chandoo is likely to agree with us, that the

principle of sanctity of contract is qualified by certain factors,

including that of public policy as stated in the paragraph we have

cited from CHITTY*s LAW OF CONTRACTS. The factor of public policy

in contracts for the disposition of a right of occupancy is

consistent with the second principle guiding us, and which concerns

the relationship between the holder of a right of occupancy and the

paramount landlord as explained in NITIN1s case. It is our

considered opinion that a contract falling within the scope of

regulation J> has all the attributes of a valid contract, except

those, of which performance before the requisite consent is sought

and obtained, is prejudicial to the interests of the paramount

landlord. Such are, for example, terms of which performance has

the effect of replacing the holder of a right of occupancy with

another person without the consent of the paramount landlord, Such

termsj though valid, are unenforceable on the grounds of public

policy which protects the interests of the paramount landlord. In

our considered opinion, this unenforceability of a valid contract

is what is meant by the expression ’’shall be inoperative1' under

regulation 3«

The corollary of what we have stated is that a contract for

the disposition of land, which otherwise its proper but for the

lack of required consent, is inoperative, that is, unenforceable

to the extent that such enforcement is prejudicial to the interests

of the paramount landlord. However, where such enforcement is not

thus prejudicial, a party who has performed his or her part of the

bargain may be assisted by the court to enforce the contract against

the defaulting party. So a party who defaults to submit a written

contract for consent or refusal by the specified authority may be

compelled to do so if the other party has performed his or her

part pf the bargain* Of course where such consent is sought and

is refused, the contract becomes wholly unenforceable, though valid,

and any expenses incurred by the parties may be recovered by legal

option, if necessary.

In ciaRclusion^ w.e fire now; in tfte pgsitio^. tp say that of all

t^e precedents cited to us, those, falling- within the second category

are closerr though not completely in accord with the correct position
which we have endeavoured to explain. This means NITIN's case is bad

in law since it undermines the sanctity of contract; and GEORGE

SHAMBWEj*s case is only partly sound because it does not safeguard

the interests of the paramount landlord. Vie consequently direct

that the ordinary bench ©f this court before whom Civil Appeal

No, bZ of 1996 is currehtly pending, be informed accordingly, so

that the hearing of the appeal may resumet We so order,

DATED at DAB ES SALAAM this 18th day of June, 1999.

F. L, nyalal ;

CHIEF JUSTICE

L, M. MFALILA
JUSTICE OF APPEAL

D. Z, LUBUVA
JUSTICE OF APPEAL

B. A. SAMATTA
JUSTICE OF APPEAL

K.S.K. LUGAKINGIRA
JUSTICE OF APPEAL

I certify that this is a true copy of the original