In the circumstances te period of five months though

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involved were not common articles and were specifically identified by their owner. “In the circumstances ……. Te period of five months, though long, is within the period which would be considered recent enough to justify the (accused) being called upon to explain.[Citing Shabani Juma v. R. (1953) 20 E.A.C.A. 199] Con- viction upheld. TANZANIA HIGH COURT DIGEST 1968 (1968) H.C.D.
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- 1- Pascal Joseph Mlay v. Anthony Phoneas, Civ. Case 16-A-66, 28/10/67, Platt J Plaintiff and defendant agreed that plaintiff would purchase two farms held by de- fendant under a Government lease pursuant to the Freehold Titles (Conversion) and Government Leases Act, Cap. 523. Plaintiff agreed to deposit Shs. 10,000/- upon the signing of the agreement, (and did so in October, 1964), and to attempt to obtain credit for the remaining shs. 490000/- by January, 1965. A certain pe- riod of grace was provided for, whereupon the defendant would have the right to sell the land to another buyer; in the event of such sale, defendant would repay the deposit together with a sum to be agreed upon for the running expenses of the farm incurred by plaintiff in the interim. At the expiration of his time to obtain credit, and the period of grace, plaintiff was unable to pay, and defendant rec- laimed the land. He did not resell it, however. Plaintiff entered a claim for the de- posit and expenses in running the estate; on the latter claim, he alleged an un- derstanding between the parties that such expenses would be refunded if the sale did not go through for any reason. In the alternative, he alleged that the en- tire agreement had been void for failure to obtain the consent to the disposition of the Commissioner, as required by section 19 of the Act; he argued that he was entitled to the deposit and expenses under section 65 of the Law of Contract Or- dinance, Cap. 433, as “advantages” obtained under an agreement “discovered to be void.” The case originated in the High Court, and the defendant raised the preliminary objection that the plaint stated no cause of action. Held : (1)”Understandings” between the parties must be included within the written contract, where an agreement is reduced to writing and executed by them. Plaintiff’s claim cannot here be based upon the alleged “understanding”, which was not so included. (2) Under the Act, “disposition” includes “assignment, sub-lease, mortgage or settlement of the term whether in the whole leased land or a part thereof …….” A disposition “shall not be operative without the consent of the Commissioner.” [Citing Cap. 523, s. 19.] Section 20 of the Act provides that a disposition “shall become void” where the Commissioner refuses his con- sent, or merely does not give it within six months of the application. (3) Although
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the agreement here was called a “sale” by the parties, it was a transaction to dis- pose of the vendor’s whole interest in land held on a term of years; it was thus an “assignment” within the meaning of the Act, and therefore required the consent of the Commissioner to become operative. [Citing Williams and Eastwood on Real Property, 24 th ed., …. P. 112.] (4) Although the agreement here was not opera- tive as a “disposition” --- i.e., could not operate to dispose of defendant’s interest
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  • Fall '17
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