19850312 TZHC Mwanza

I ~ 'j rr THE HIGH CCURT OF T.1NZhNii\ 1 ! I Ci,1il Ci'!sc No. 14/83) ,~ 11 .. ' J1 PP:E'LL!. NT ABDULRf: m11m S11 l'_) FUWDIKIRJ, ~ : : '• RESPONDENT '' "., J UDG ~t'1FN'1 1 ·--···-··- ~lJNYFR,;, J. : I I ' The appellant w.;1.s tho plain-tiff bdoJ:c the Resident ,.o/J.agistrotC; 1 s I co\ll' t of io/J.wanzao He su.od the respond.6nt- zc:ckinc the court to ;nc:ke various orders against him. The desp~ta ~rose out of a leaFe agreeaiento It was undisputed that the :·ppellant leased the respr•1,:Jent 1 , premises in lliwonza town at a :nonthly rcntfl of Shso 400/.. 0 It i~as 11s0 I a com:non ground that th~. appellant hac':., c:,d,1c: Lced Shs. 12 1 961/25 ta the 1 respondent which wero used on repairotof! ,1 ' the premises., it was agr0ad ,( 'i that the appellant would r eco-.1 er the ~cl:vrn ce by way of er edit g~.,, en by the r8spondrnt in relation to the rcn~, The lease was to run f...•o,n 1/6/78 to 31/1/81. Soon afte:::- the leJ s:.:'. expired disagr ee.nE:llt b etwcen the parties arcse~ The &ppellant continued to stay and wanted to. 1 continue pnyinr the rent of Snsc /J.00/2 11 h0reas the respondent ser~ied " him with a notice to e:_uit,,. T:i.e 3ppclt<'n:..~ =trgued that the responco:tt wanted to raise the ?IOir; to Shso 600/di:·1 wHhout assess;nent by the Rcn-t,'1 I Tribunal, a ;no·,,e which :1e resistedo \iith the e,,iction threats ha:!i1ging o"er hi,n he filed this sui to He pr.::ycd [o;: the following orders: I' 'i L Injunction Order? I' 2,., Court order for the defend:;t!i1ot. to raise the existing :.'e:1-t. I 3o 1in or::ter restraining the def6nc1Dnt fro.n e"icting the I, plc:in-:iff fro;n the said portion': of pe:aises until I he pro,,ides suitable alternati·vo ,, acco;n:nodation to 'I the pl~intiff's sotisfoction! lj 4. Costs of this suit a~d any ofhLJr rcliefo The learned Senior Recident iagistrJt~, ofter hebring the ~hole disputt I and ,,isi ting tne suit premises, dis:ni~s..=:c1 the suit in its en ti:r et,/" ,I I Th-e appellant -orought this appec..:L He en,.,.igcd ~1iro Kah,mgwi:. to ,H£Ue the appeal for hi:n,. In this a,peal tbore ure t,✓,O .n2in i:::suE:s for consider'1tion~ First that the trial J1c:gistr::::J,;e e:r~ed in holding th..;t the appella~t hac~ I. fip.ding. That he erred in not h~'lding th.:,t the appella.i:it was a statutory tenant after the lc..;:se had expired., Secondly that the ;nagistrE: -te was biased against the appellcint so that l1e c1icl not ha,, e .a fair trial (see para 6 to 9 of t-nc ,1\e;norandu,n) o I shall c1 Oci l with the bias fir sto In p&ra 6 he a~erred th~t the magistr~te, by visiting the suit pi~~ises, he took the role oi' e. witness rather th;:m of an adjudica_toro \~,C.1-.ny part I u,1\ not aw1Jrc that it is wrong fo~:- a court to .no,1e to o dispute . . site. I £eel it is a wise thing to do so to ,1erify the position instec.:d· of 'c>eing left in dcrknoss especially whore the pcrties give conflicti.nc descriptions of it, provided the ~isit is done in presence of both par ties, the find in gs put on r eoord and parties given oypor tuni ty to comment on. them. In, re:.ading the record I find the trial magistrate had oo:nplied wi-th t.hc procedure. Therefore tha :t ground fails. 1\ga in 'it was aub~itted tl:.~ t the ,nagistrata was one-sidede He ,deliberately failed to.record ths appellant's important points and fortified ~he respondan\ fro~ anewcring questions put to him by the appellant.· No_r.-nally tho oour t has disor et ion to c:1is,:-;llow i!!r ele,,an t questions~ It· has not, been st,: ted what impor·tant q1..10dion the maristrate euppre~sed or .fortified the r· .. zpondent fro:n answorinr;. J,nother point is o•·er the production of a .lCittor said to ha,,e been written to the appellant by one 1Vlailla Thereza.. T}:la ·:.ppcllent are-ucd tho magistrate denied hi:n lea••e to produce it and allc•·:vod the_respondent to do so (Fx~ D.6)0 This, he sbid, predudioed hi~ case and was a clear sign of the ~a~istrate 1e one sidedness, I reproduce the contents of this oontro,•e:t'sisl letter:-- Teroz~ Lushsiguz~ Box 1036 26/2/82 Kwa Aw~nengu Kiehweko • Sala:::1m pole n~. shughuli zeko z~ kila siku,, ;1li,ni sija.nbo. Kwanza nakupa pole icwa ;oocifa yaliyokupatae N1:.kupa ;na:,1gizo yaliyot6ka Tabore kwemba anataka kodi ulipe ili ;nke wake atakapokwenda tsrehe 9/3/83 aende na zo·o Na hsb~ri kuhusu kupands kwa kodi nafikiri uli::,ipata ni Shs; 600/e::. ·· ~wa hiyo u.f anye hhyo il i tuwe ze kuz i.tu;na. Ter eza Lusha iguzao" To start with I a;n u.-iHble to understand how the letter got into the hands of the respon(ant. It was address2d to the appellarit and he was supposed to ha~,e it n·ot the respondent. It ;-oust ha,,e got into the 0 •• /3 I' Ii 3 ► I! 1!' respondent's hands by consent of the appeJ.ltmt. t ;. Bens it is, the • IJ 'I' respondent disputeii H s genuineness. The f:lleged auther, Tere za ;j . Lushaiguza (Di~ 2), ne,.ier mentioned it il1;ih0r e,,idence nor did the 11 appellant question her about it in his ctoss-ex~mination. I' f, It was not 11 proved that the le·ttc:r. was written by Ther0za c.1nd I do not see its ii i.nportance in his cff~,ir. I therefore d6 n6t agree that there was bi~s and the trial was S9% fair. if I 11 1 I now co,ne to the ;ner its of the c~'. G0. j It was agreed tho t there I, ·I was a lease agr e e,n:.:1t w~ich expired on 3~/1/81 and was not renewed. In para 4 of the ;ncnorandu;n it is averred th~t the trial .nagistrate erred in not holdi~: the appellant a st~tutory tenant after the lease I• expired. It is a ;:<dtled rule of l::1w t).J.,J;t if the landlord quietly ,i· continued to accapt the rent after the 16aa:expired.he will be eee:ned ;i . a statutcry tenanto But from the appcll:..~nt 1 s own e11idence the· respondent had inc::2sed the rent, after f,h~ lease expired, fro:n 11 ' Shs. 400/= to Shs. 600/=• He refused -to \p::,y till the rent was appro,,ed by I the Tribunal. Likc:ise the respondent ::c!'.:fuse:d ·1 to accept the old rent of Shs. 400/ic:. I ther:~fore.do not see how th0 respondent c::m be said to 1 11 ,' ha:.,e acquiesced in rccei~•ing rent. On "i;h0 whole the decision of the :1 i' trial ;nagistr;;;:te w::.s right. The appe~;l i's dis:nissed with costs., •1 JUDGE· ·"'I ',, ,I 'I