abraham migeto vs issa rajabu 2020 tzhclandd 107 1 april 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISCELLENEOUS LAND CASE APPEAL N0.153 OF 2018 (From Appeal Judgment o f District Land and Housing Tribunal for Kinondoni, in Land Case Appeal No. 35 o f 2017, originating from the Ward Tribunal o f Manzese Ward in Application No. 158 o f 2016) ABRAHAM MIGETO......................................................APPELLANT

VERSUS ISSA RAJABU.......................................................... RESPONDENT

JUDGMENT OPIYO J. Abraham Migeto and Issa Rajabu, the parties in this appeal had a landlord and tenant relationship prior to this dispute, the appellant being a landlord and the respondent a tenant. On 10th August 2016 is when the lease agreement between the two commenced and ended on 10th November 2016. The appellant therefore decided to evict the respondent from the suit premises on 12th November 2016, just three days after the expiry of the lease. The respondent claims that the eviction was done illegally, thus leading to destruction and loss of the respondent's domestic properties. i Immediately after the eviction, the respondent successfully sued the appellant at the ward tribunal for Manzese for an unlawful eviction and demanded compensation for loss of his properties. Aggrieved with the decision of the trial Ward Tribunal, the appellant appealed unsuccessfully at the District Land and Housing Tribunal for Kinondoni District vide Land Appeal No. 35 of 2017. He has now preferred a second appeal before this court with the following grounds;- 1. That, the learned Chairman erred in law and facts by accepting respondent's submissions which was time barred.

2. That, the honourable chairman erred in law and facts when he failed to analyse properly the submissions of the appellant.

3. That, the learned chairman erred in law and facts when he failed to consider the facts that no notice was required to be served to the respondent following the expiry of his rental agreement which the respondent read, understood and signed it which provided for no one month notice failure to renew his rental contract.

4. That, the learned chairman erred in law and facts for not considering appellant's request to examine the properties allegedly damaged by rain or to whether they were not working before. This appeal was heard orally and both parties appeared in person. The appellant submitting for the appeal, maintained on his 1st ground of appeal that the respondent filed his written submissions 3 days after the expiry of the time. Therefore it was wrong for the same to be considered in the discussion by the 1st appellate tribunal. On the 2nd ground of appeal, the appellant insisted that he kicked his tenant out of the premises because he needed money to pay for his son's school fees. That, the appellant asked the respondent to vacate but, the respondent refused, therefore he followed the procedures to evict him by involving the local authorities. He contended that, his house was his only source of income therefore he had to evict the respondent immediately so that he can lease the same to other tenant. The appellant maintained further that, the respondent himself is the one to blame, as he stayed outside and failed to move to another residence. Therefore he did not evict him forcefully as he claimed. The appellant went on to argue on the 3rd ground that, the respondent read the contract and signed it, therefore, it means he agreed to the contract. He did not want to renew the contract by

force from the tenant. Finally on the 4th ground, the appellant denied responsibility on the destruction of the properties of the respondent. He insisted that, he could have helped him to repair the things and not to buy new things. That, the 3 judgement of the lower tribunal is therefore not fair for ordering replacement of those properties, hence it should be reversed. Replying to the appellants' submissions, the respondent argued all four grounds together submitting that, his rent was expiring on 12th November 2016, but the appellant took the keys from him and asked him to find for him One Hundred Thousand Tanzanian shillings. That, when the respondent was unable to give the appellant the said money, he was evicted and his properties were taken outside the suit premises. He went on to submit that, as he had nothing to rely on, he stayed outside with his properties, then it rained destroying his properties. After that, he sued the appellant at the trial Ward tribunal where he won and the appellant appealed unsuccessfully to the District Land and Housing tribunal for Kinondoni. In the end, the respondent insisted that he didn't file his submissions out of time at the 1st appellate tribunal, everything was in time. In rejoinder, the appellant insisted that, the respondent filed his submissions out of time and assisted by clerks to backdate it. Also the appellant argued that, he

did not take the keys from the respondent, he is the one who opened the premises himself to move his properties outside. The appellant maintained that, he was not even there when the respondent was taking his properties outside. He went on to argue that, after all, the said items were not functioning at all. It is the appellant who helped the respondent to store them at his house. The appellant insisted that, he was desperate for money to pay college fees that is why he didn't show any mercy on the respondent when he failed to pay. In consideration of the records and rivalry submissions of the parties in this appeal, the time has come now to determine the merit or otherwise of the appeal as follows. On the 1st ground of appeal the appellant faulted the 1st appellate tribunal for accepting the submissions of the respondent which were filed out of time. The appellant claims that the respondent was required to file his submissions on 27/10/2018, but he filed the same on 30/10/2017. I have gone through the records and found that, the respondent filed his submissions on 26th October 2018. It has been certified so by the seal of the District Land and Housing tribunal for Kinondoni. He was within time. The claim by the appellant that, the respondent was assisted by the tribunal clerks to backdate the documents are unfounded. The first ground of appeal is therefore devoid of merit, it

is consequently dismissed. On the 2nd ground, the appellant faulted the honourable chairman for failure to analyse properly the submissions of the appellant. I have read the judgement of the 1st appellate tribunal and found nothing suggesting that the same was written without considering the submissions by the appellant. In his submissions, the appellant insisted that, he evicted the respondent because he was desperate to obtain money for his son's school fees. This cannot be an excuse for the appellant to evict the respondent without following the required procedures. It is settled in law that, whoever seeks 5 equity must do equity. No amount of desperation justified dispensation with procedures. For that, this ground also lacks merit. It is also dismissed. On the 3rd ground, the appellant claimed that, their lease agreement did not provide for any notice to be served to the respondent following the expiry of his rental agreement prior to eviction. That the respondent read, understood and signed the agreement while knowing that the requirement of one month notice prior to eviction for failure to renew his rental contract was not part of the said agreement. In that case it was wrong for learned chairman uphold the decision of the trial Ward tribunal on the basis that, the respondent was not served with a one month notice before he was evicted. I may agree with the appellant

that there was no such a term in the lease agreement between him and the respondent. However, it is well known that in absence of an express term in the contract, the law has provided implied terms which binds the parties and applies in the same way as express terms. The Land Act, Cap 113 R.E 2002 under section 88(2) (b) (i) provides:- There shall be implied In every lease covenants by the lessor with the lessee empowering the lessor to terminate the lease by serving a notice o f intention to terminate the lease on the lessee where any rent is unpaid for one month after the due date for payment whether or not a demand in writing for payment has been made by lessor or an agent o f the lessor. It is not in dispute that, the appellant evicted the respondent without giving him the one month mandatory notice contrary to what the above quoted provision of the land law requires. The appellants' failure to comply with the law in evicting the respondent has led to the suffering which the respondent endured. The reasons offered by the appellant that, he was in dire need of money to cover for his son's school fees cannot justify his acts of going against the law. The appellant therefore cannot escape liability from what he did to the respondent. The 3rd ground therefore lacks merit too, just like the 1st and 2nd grounds above, the same is dismissed. Based on the discussion of the l st-3rd grounds of appeal, I prefer not to put much of my strengths on the remaining 4th ground, since the three analysed grounds here in above are enough to dispose this appeal entirely. In the final analysis I find this appeal to have no merits and it is hereby dismissed with costs. Both decisions, of the trial and 1st appellate tribunals are hereby upheld. Ordered accordingly. M. P. OPIYO,

JUDGE 1/ 4/2020