Alladitta v El-Harthi and Others (Civil Appeal No. 48 of 1954) [1955] EACA 84 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Acting President), SIR ENOCH JENKINS (Acting Vice-President) and BRIGGS, Justice of Appeal.

## MOHAMED HUSSEIN ALLADITTA, Appellant (Original Defendant)

(1) ABDALLA BIN SALIM SAAD EL-HARTHI, (2) NASSER BIN SALIM SAAD EL-HARTHI, (3) HABIBA BINTI SALIM SAAD EL-HARTHI, (4) ASHA BINTI RASHID BIN SALIM SAAD EL-HARTHI, (5) HABOO BINTI RASHID BIN SALIM SAAD EL-HARTHI, (6) HAMED BIN RASHID BIN SALIM SAAD EL-HARTHI, (7) SALIM BIN RASHID SALIM SAAD EL-HARTHI, (8) MANGA BINTI SALIM SAAD EL-HARTHI, Respondents (Original Plaintiffs)

## Civil Appeal No. 48 of 1954

(Appeal from the decision of H. M. Court of Tanganyika, Mahon, Ag. C. J.)

Agreement—Agreement containing statutorily unenforceable term—Whether wholly inoperative or whether terms severable—Specific performance— Implied term-Land (Law of Property and Conveyancing) Ordinance, section 11 $(1)$ .

By section 11 (1) of the Land (Law of Property and Conveyancing) Ordinance: "A disposition of land belonging to a native in favour of a non-native or" conferring on a non-native any rights over the land of a native shall not be operative unless it is in writing and unless and until it is approved by the Governor."

The respondents who were natives within the said sub-section and who claimed to be the owners, under an old Arab title, to land at Ipuri, Tabora, agreed to sell the said land to the appellant who was a non-native within the said section. The Agreement, which is set out in full in the judgment, *infra*, had not received the Governor's approval.

The respondents, to implement the Agreement, handed the Arab title deed to the appellant's advocate, but, later, sued for its return, and the Appellant counter-claimed for specific performance or damages.

The High Court allowed the claim and rejected the counter-claim and the appellant appealed.

The appellant contended that the Agreement was operative in at least two respects. First, that under the Agreement the respondents were bound to do their. best to obtain first registration as freeholders or leaseholders of the land and secondly, that, if successful in that respect, they had to do their best to obtain the Governor's consent to a transfer of their rights to the appellant.

Held (16-7-54).--(1) As to whether an Agreement is wholly inoperative or only inoperative to the limited extent of any terms therein which are statutorily inoperative, depends on whether the terms of the said Agreement are or are not severable. If they are severable, the Agreement is only inoperative to the limited extent aforesaid; if they are not severable, the Agreement is wholly inoperative. Each case must depend on the wording of the Agreement concerned.

(2) In the instant case there was no separate or severable consideration for the<br>promises said to be severable; there was a pure sale Agreement with certain ancillary provisions, none of which was separately enforceable, so that the entire Agreement was unenforceable by reason of section 11 aforesaid.

(3) As a general rule, a court will hesitate to pronounce that any implied term of a written agreement is severable from its express terms and it will hesitate the more if there is no severable consideration.

(4) Semble-Even if the Agreement had been in such form as not to be wholly inoperative, it would not be specifically enforceable and it would be difficult to prove damages on its breach.

Appeal dismissed.

Cases referred to: Branca v. Cobarro (1947) 2 A. E. 101; Mohamedbhai v. Mtoo 1 T. T. L. R. 31; Nasser Ratansi v. Mahomed 1 T. T. L. R. 33.

Master for appellant.

Morrison for respondents.

JUDGMENT (read by BRIGGS J. A.).—This appeal from a judgment and decree of the High Court of Tanganyika was dismissed with costs. As it raises a point of some general interest we record our reasons.

The respondents claim to be the owners under an old Arab title of some land at Ipuri, Tabora. They agreed through their agent, the second respondent, to sell this land to the appellant. The respondents are "natives" and the appellant is a "non-native" within the meaning of section 11 of the Land (Law of Property and Conveyancing) Ordinance, and the Agreement has not received the approval of the Governor. The respondents, in order to implement the Agreement, handed the Arab title deed to the appellant's advocate, who held it for some 19 months. They then apparently repented of their bargain and sued for the return of the title deed. The appellant counterclaimed for specific performance of the Agreement or damages. The High Court allowed the claim and rejected the counterclaim without hearing evidence, on the ground that the agreement to sell was by virtue of section 11 (1) of the Land (Law of Property and Conveyancing) Ordinance inoperative and unenforceable, and the appellant could therefore have no right to retain the title-deed.

The Agreement was in the following terms: —

"To

Mr. Mohamed Hussein Alladita,

Tabora.

Dear Sir,

I, Nasser bin Salim Saad el-Harthi and on behalf of heirs of the estate of Salim bin el-Harthi deceased agreed to sell to you shamba situated at Ipuri, Tabora, as described in a deed of sale of year 1893 between Abdalla bin Salim bin Khalfan and Salim bin Saad el-Harthi.

The price shall be Sh. 6,000 net, if I shall be able to obtain a registered freehold or leasehold title.

The expenses for Application for First Registration, Survey, Stamp Duty, registered and all other expenses will be borne by the purchaser, The vendors shall be entitled for the net purchase price namely Sh. 6,000.

I have this day received the sum of Sh. 500 on account of the purchase price of the above shamba. If the transaction of this sale is refused by the Governor I undertake to refund the said sum of Sh. 500.

In all I have now taken a sum of Sh. 1,000 and this leave actual balance of Sh. 5,000 as our sale price for the above-named shamba.

Mr. Mohamed Hussein agreed to advance further payment in case and after the transaction has been arranged by the Advocate or Government.

## (Sgd.) on 10 cts. stamp $N$ . S. Saad. NASSER BIN SALIM SAAD EL-HARTHI.

(Sgd.) Mohamed Hussein I accepted $\ldots \ldots \ldots$ . 11-7-50. Purchaser."

The deposit of Sh. 1,000 had been paid into court and payment out to the appellant was ordered. He had previously refused it when tendered.

If this Agreement was an Agreement to sell land and nothing more, it was clearly within the terms of section 11, and being "inoperative" it was unenforceable. But the appellant contends that it was operative in at least two respects. He says that under the Agreement the respondents are bound, first, to do their best to obtain first registration as freeholders or leaseholders of the land and, secondly, if successful in that respect, to do their best to obtain the Governor's consent to a transfer of their rights to the appellant. This might extend to execution of a conveyance, as the appellant's counsel in the court below, though not his counsel before use, thought that consent would not be given to a mere executory agreement, but must be endorsed on the conveyance itself.

The question whether the Agreement is wholly inoperative, or operative to the limited extent suggested, must, we think, depend on whether its terms are severable, so as to create an independent and absolute preliminary obligation separate from the subsequent obligation to convey, which is conditional on the Governor's consent. We are far from saying that such an Agreement could not be lawfully and effectively made, though it seems unlikely that it would be specifically enforced and it is difficult to see what damages could be proved on its breach; but, however that may be, we think this is not such an Agreement. There is no express undertaking to do either of the things contended for. At best a duty to do them may be implied. There is no separate or severable consideration for the promises which are said to be severable. We think that as a general rule a court will hesitate to pronounce that any implied term of a written Agreement is severable from its express terms, and it will hesitate the more if there is no severable consideration. Every case of this kind must depend on the wording of the Agreement. Here we think the Agreement must stand or fall as a whole. It is a pure sale Agreement with certain ancillary provisions, none of which in our opinion is separately enforceable. Accordingly the whole Agreement is caught by the provisions of section 11 and unenforceable. The High Court's decision was in our opinion perfectly correct.