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SPRY, V-P.
[1] 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.
[2] 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".
[3] 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 sub¬sequently
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.
[4] 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 sub¬stance 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.
[5] It follows that the agree¬ment 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.
[6] 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.
[7] 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 qual¬ified 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.
[8] 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.
[9] In view of our decision on the substantive issue, no useful purpose
would now be served by pursuing that request. The appeal is dismissed. |
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