LAND APPEAL NO

© THE JUDICIARY OFT ANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANTA AT KJGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND APPEAL NO. 000028003 OF 2023 ABEID G.HUSSEIN COMPLAINANT/ APPELLANT I APPLICANT I PLAINTIFF VERSUS RAMADHANI MSIGWA NYAMWELU RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 16th of August 2024 Hon. RWIZILE.: The respondent owns land at Basanza village in Uvinza district. It seems parties had an oral agreement where it was agreed that the appellant builds three business premises (room) in the respondent's land. Construction costs, it was agreed be deducted from monthly rent at the tune ofTZS15,000.00 per each, per month. They further agreed, the costs incurred during construction, will be deducted from rent. Later thereafter the appellant constructed other two huts constituting five of them in the same land. However, things did not go well, terms were changed at the instance of both parties. A misunderstanding arose. To deal with it the respondent filed a claim before the District Land and Housing Tribunal of Kigoma registered as Land Application No.24 of 2022, praying for the following reliefs; that a lease agreement between the parties in respect of the said huts be terminated, the appellant be paid the sum of 1,775,000 as costs of building three huts, and so return ownership of the same to the respondent and that the same amount of rent be deducted from rent that ought to be paid since April 2021, the appellant be forced to pay general damages at the tune ofTZS 2,000,000.00, payment of7% interest and costs of the case. The tribunal beard the case and was satisfied that the respondent proved his case and granted the application. It was ordered, the appellant pays TZS 870,000.00 as arears of rent at a tune of TZS 15,000.00 per month from July 2021 to November 2023, and compensation in terms of general damages at the tune of TZS 1,000,000.00 with 5% interest and costs of the suit. Page. I Hon. AUGUSTINE RWIZILE The appellant was aggrieved by the judgement and decree hence this appeal with the following 6 grounds: - 1. That, the trial tribunal grossly erred in both law and facts in entertaining the dispute on breach of lease agreement without having requisite jurisdiction since it is normal courts with original jurisdiction. 2. That, the tribunal erred in law and in fact by failure to analyze evidence and hold that appellant constructed two other vibanda vya biashara without respondent's consent while the evidence on record proved that there was an agreement and the respondent did not stop the appellant from constructing them. 3. That, the trial tribunal erred in both law and fact in holding that the lease agreement by tile parties herein expired on 1st Sept 2023 and went further in not reimbursing the appellant for the actual costs he incurred in constructing three vibanda vya biashara while there was evidence on record that the parties herein in 2018 agreed that respondent will be the one collecting rent in those three vibanda vya biashara and thus the appellant was not the one collecting it. 4. That, the trial tribunal grossly erred in both law and facts in ordering the appellant to pay a respondent a sum total of Tanzania Shillings TZS 870,000.00, being the rent for two new constructed vibanda vya biashara from July 2021 - September 2021 while the evidence on record proved that the parties herein in 2018 entered into new agreement whereby they agreed (sic) that appellant will be collecting rent in two new constructed shops and the respondent will be collecting rent on other three vibanda vya biashara constructed/ built by the Appellant. 5. That, the trial tribunal erred in both law andfacts in not declaring the appellant as the lawful tenant and in alternative ordering the respondent to pay the appellant the cost he incurred in building five vibanda vya biashara upon the disputed vibanda be evaluated by the valuer. 6. That, the trial tribunal erred in both law and fact by ordering appellant to pay respondent a sum total of TZS 1,000,000.00 as general damages and 5% interest from the date ofjudgement to the date ofpayment unjustifiably. The appellant before this court was under the services of Mr. Moses Rwegoshora learned advocate, while the respondent was unrepresented.The appeal was argued through written submissions. Submitting on the first ground, Mr. Moses argued that the Tribunal has no jurisdiction to entertam the dispute of breach of the lease agreement as it is in the jurisdiction of normal courts in terms of sub part 4 of the Land Act [Cap 113 R.E. 2019] and, as held in the case of Charles Rick Mulaki vs William Jackson Magero, Civil Appeal No. 09 of2019 (He) On the second ground, it was contended that the Tribunal did not evaluate the evidence before it, to the extent of pronouncing that the appellant constructed two additional huts without the consent of the respondent. According to him, reference was made to page 13 of the proceedings of the trial tribunal that the appellant and the respondent agreed on that construction. To elaborate further, it was submitted that after construction, the respondent allowed the appellant to collect rent in 2 huts while from the remaining 3, rent was to be collected by the respondent. Arguing the third ground, it was stated that, parties entered the first agreement in 2016, the second in 2018 and that it was oral. There is no agreement that expired in 2023. He added, it was agreed that the appellant in April 2021, rent was collected by the respondent after preventing the appellant from doing so. It was further argued that Page. 2 Hon. AUGUSTINE RWIZILE if that was true, tenants could have been called to testify and were not mentioned. He said, a negative inference has to be drawn as held in the case of Paschal Yoya @ Maganga vs The Republic, (CAT), Criminal Appeal No.248/2017 and Bonifas Kundakira Tarimo vs The republic, criminal Appeal No. 350 of 2008. Mr. Moses was clear that in the absence of the evidence that the appellant collected rent, there is no justification of reimbursement. On the fourth ground, it was argued that in 2018, parties agreed that the respondent will collect rent of the three rooms while appellant did so in two. Therefore, Moses held the opinion that TZS 870,000.00 was not justified and that the doctrine of the sanctity of contract must be respected. The fifth ground was argued, it was said that breach of a lease agreement was not proved. No terms of the lease agreement which was breached. It was further argued that all rooms constructed by the appellant on agreement. It was added that there is no proof that the respondent was legally bound to take rent in the other rooms. According to Mr. Moses, the tribunal ought to declare the appellant as the lawful tenant and be paid for the money incurred in construction of the said rooms. Lastly, it was argued on the six ground that the tribunal did not assign reasons for awarding compensation of general damages, the sum of TZS 1,000,000.00. According to him, that contradicts the position of the law as put forward by the court of appeal in the case of Abraham Sykes vs Araf Ally Sykes, Civil Appeal No. 226 of 2022. Further, the learned advocate challenged an award of interest on general damages, he said, it was not proper. Instances were drawn in the case of Felician Muhandiki vs Managing Director Barclays Bank Tz Ltd, Civil appeal No. 82 of 2016 and that there was no prayer for general damages and interest apart from fail me to tender any evidence in that respect. Opposing the appeal, the respondent argued that in terms of section 167 of the Land Act [Cap 113 R.E 2019] the District Land and Housing Tribunal has exclusive jurisdiction in land matters. In his view therefore, the tribunal had jurisdiction to determine the dispute before it. It was the view of the respondent on the 2nd and 3rd grounds that the tribunal properly evaluated the evidence as held in the case of Hemed Said vs Mohamed Mbilu [1984] TLR 113, he further cited section 78 of the Law of Contract Act [Cap 345 R.E 2019] and section 64(1) of the Land Act, [Cap 113 R.E 2019] to support his point. The respondent submitted on the fourth ground, that special damages of TZS 870,000.00 was proved, which according to him was equivalent to the rent from 2018 to 2021. It was his submission that, a terms special damages was define in the case ofNjombe Community Bank vs Jane Mganwa, DC Civil Appeal No. 3 of2015 on page 17. It was added, the respondent proved his case as required under section 110 of the Evidence Act, [Cap 6 R.E 2022]. On the fifth ground, the argument was that there was no agreement between the parties to build three rooms. He said, the appellant did so without the consent of the respondent, because their agreement was terminated in 2018 and was not renewed. In his view, the appellant trespassed into his land and therefore should not be allowed to benefit from his own wrong. Page. 3 Hon. AUGUSTINE RWIZILE The respondent's argument on the 6th ground was that, as defined in the Black's Law Dictionary 7th ed. and in the case of P.M Jonathan vs Athman Khalfan [1980] TLR 175 on page 175, damages are compensatory in nature and that since he failed to prove his allegation, the same were rightly granted. He therefore prayed the appeal be dismissed with costs. Having considered the arguments of both parties. It is clear to me that according to the records, the respondent is the owner of the land where the five huts were built. The same were built by the appellant on his own costs. There is therefore no issue of trespass to that land as submitted by the respondent. According to the evidence of the respondent before the tribunal, the appellant was a tenant. The agreement was that he builds three huts at his own costs, but such costs be deducted in terms of rent until it is settled. After settlement of the debt (costs of construction), then huts would exclusively be owned by the respondent and the appellant had to start paying rent. From the facts, there is no doubt that there is no land dispute. The land belongs to the respondent. It is not stated anywhere in the pleadings that the appellant claims ownership of the land or any piece of it. All he said, in his defence before the tribunal is that the lease agreement was terminated by the respondent and came to an agreement that he takes two of the rooms and the rest, remain in the respondent's possession, which was also not followed. It is clear therefore to me that the claim is about termination of a lease agreement as per paragraph 7 (i) of the application before the tribunal. The respondent as I have shown also claimed for payment of costs of building the three rooms and compensation. It is not therefore an issue that deals with land ownership. It was submitted by the respondent that it is a land dispute and falls under section 167 of the Land Act whereby the tribunal has exclusive jurisdiction to try it. Section 167(1) of the Land Act is akin to section 3( 1) of the Land Disputes Courts Acts that establish land courts. Based on the facts as shown, looking at the pleaded facts that constitute the cause of action and reliefs claimed, I do not agree with the respondent, since the appellant did not claim title about the said land. It is a lease agreement which is purely an issue of contract. It is not therefore in the jurisdiction of the District Land and Housing Tribunal. As submitted by Mr. Moses learned advocate this court held (Maige J as he then was) that, under the provisions of section 107(1) (2) of the Land Act, a District court is conferred with jurisdiction to entertain an application for termination of a lease for reason of breach of the same. This position which I share was arrived at in the case of Charles Rick Mulaki vs William Jackson Magero. (supra). The decision was made in 2017, it was relevant then as it is today, since there is no amendment that did away with the position of the law. I have no doubt; therefore, the tribunal had no jurisdiction to try the matter. The first ground of appeal has merit. The effect of the decision is very clear therefore that the proceedings and decision of the District Land and Housing Tribunal is nullified and all orders therefrom set aside. Since the first ground disposes of the entire appeal. I have no reason to act on other grounds. Each part to be its own costs. Dated at KIGOMA ZONE this 16th of August 2024. Page.4 Hon. AUGUSTINE RWIZILE AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE