SEARCHABLE LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 4954 OF 2024 CLOTHILDA MONA PUNDUGU.......................................................... PLAINTIFF

VERSUS PAUL DAVID O'NEIL................................................................ 1ST DEFENDANT FELISTER KABANTEGA ............................................. 2nd DEFENDANT EX-PARTE JUDGMENT 18/9/2024&23/10/2024 GWAE, J The plaintiff, Clothilda Mona Pundugu has sued the defendants, Paul Davi^l O'neil and Felister Kabantega (hereinafter the 1st and 2nd defendant respectively) jointly and severally praying for judgment and decree against them as follows:- (a) A declaration that both the 1st and 2nd Defendants are in breach of the lease agreement they have entered with the Plaintiff. (b) For orders for the Defendants to pay specific damages in the sum of TZS 221,159,337/= as renovation costs and USD 12,166.67 (equivalent to TZS 30, 968,168.99 as the Bank of i Tanzania exchange rate of 1st March 2024 as rent arrears which is still accruing to date. (c) Loss of rental income of USD 1,000/- per month from the rental business of the suit property to the date of full payment of renovation costs under item 4.2 hereinabove. (d) The Defendants to be ordered to pay the Plaintiff general damages at the tune of TZS 50,000,000/=(Say Fifty Million) for inconvenience caused by the Defendants. (e) For payment of interests, at the commercial rate of 18% on items (b) and (c) above from 15th January 2022 and loss of rent until the date of full payment. (f) For payment of interests at the

courts rate of 12% on items (b) and (c) from the date of delivery of judgment until payment in full. (g) Costs of this suit; and (h) Any other reliefs, which this Honourable Court may deem just to grant in favour of the Plaintiff. The material facts of this case are brief as they can be portrayed from the plaint: The plaintiff is the lawful owner of the house situated on Plot No. 236 Block "D" situated at Tegeta along Bahari Beach Road within Kinondoni District in Dar es Salaam Region (hereinafter "the suit property"). 2 On 15th January 2019, the plaintiff entered into a lease agreement h with the defendants for the lease of the suit property for a period of two (2) years with possibility of renewal. It is averred that, the parties agreed among others that, the P defendants shall pay a monthly house rent of United States Dollars One Thousand (USD 1000). It was further agreed that, the defendants were obligated to remit rent payments to the Plaintiff every six months, totalling USD 6^000.00 without fail. Further to that, the defendants were '• contractually obliged to maintain all fixtures, fittings, and swimming pools in a state of good repair and condition throughout the entirety of the lease term /agreement. It is also averred that, the defendants consistently honoured their rental obligations in accordance with the terms stipulated in their lease agreement. However,

beginning from the 15th January 2023 up to the present, they have defaulted to remit payment. Further, in breach of the lease agreement, the defendants have persistently defaulted on their obligation to settle the outstanding rental arrears over the past twelve (12) months that is from 15th January 2023 to 15th January 2024, making the 3 total outstanding rental arrears for the respective period to be at the tune of USD Twelve Thousand (USD 12,000). It is further averred that, the defendants' failure to pay rent prompted I the plaintiff to demand them to settle the arrears but in vain. Sometimes in January 2024, the defendants deserted the suit property without providing any prior notice to the plaintiff for proper handover of vacant possession of I the rented premises to the plaintiff as required under Article 11 of their agreement. the defendants' desertion from the plaintiff's house, the following damages are allegedly sustained by the plaintiff:- First, the outstanding rent stood at United States dollars 12,166.67 (equivalent to TZS. 30,968,168.99/= of 20th January 2024 as the Bank of Tanzania I exchange rate of 1st April 2024). Second, USD 12,000 as rent arrears from I 15th January 2023 to 15th January 2024 and Thirdly, USD 166.67 as rent arrears for 5 days of January 2024 when the Defendants vacated the suit || property. That, when the plaintiff visiting the suit

property, she discovered that, the defendants left the suit property in a deplorable condition, including significant damage to the suit property including the swimming pool. Consequently, the plaintiff's claims that she was unable to secure new tenants due to the inhabitable condition that the defendants left in the suit property. It is alleged that, in response to the deteriorated condition of the property left by the defendants, the plaintiff engaged an independent contractor to evaluate and assess the extent of damages and necessary renovations. Subsequent to the plaintiff's procurement of the valuer, the valuation was made and its report reveals that, the renovations required amounted to Tshs. 221,159,337/=.Hence the present suit. The first defendant was served through Mwananchi Newspaper but he could not appear in court. The 2nd defendant filed his defence on 7th May 2024 but she defaulted appearance for two consecutive sessions without notice of absence. As the result, the Court strike out her Written Statement of Defence and order the matter to proceed ex-parte against them as well as 1st defendant. Throughout the pre-trial and trial of the case, Mr. Fredrick Massawe aided by Mr. Antony Massawe, learned advocates, represented the plaintiff. During the Final Pre-Trial Conference, this Court framed the following issues:- 5

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I I I 1. Whether the defendants breached the Lease Agreement entered between the parties.

2. If the 1st issue is answered in affirmative, whether the plaintiff is entitled to Tshs.252,127,505/= as specific damages 3. To what extent of the reliefs the parties are entitled Hearing proceeded by way of Witness Statement. The plaintiff's case was dependent on the testimony by Clothlida Mona Pundugu, who testified as PVVl and Pandisha Kategile Rashidi, who testified as PW2. The plaintiff to support her evidence also tendered four exhibits to wit;- A Lease Agreement datei 15th January 2019, (Exhibit Pl) House Pictures (28 collectively as Exhibit P2-PE2, A Demand Notice and Intention to Commence Legal Proceedings dated 22nd January 2024 (Exhibit P3), and A Property Assessment Report of 20th May, 2023, (Exhibit P4). In her testimony, PW1 testified reiterating her averments. In addition, PWl's testified that, prior to renting her house to the defendants, the property was in excellent condition, with all fixtures, fittings, and swimming pools in good working order and fully suitable for use as a residential dwelling without the need for any additional renovations. I 6 That, the aforementioned action of the defendants have caused PW1 i to suffer significant economic hardship, loss of business and the inability to i lease the premises for further use due to deteriorated condition in which the l In defe ndants left the suit property. PW1 is therefore praying for this Court

to i orde;r the defendants jointly to pay specific damages in the sum of TZS il 221,159,337/= as renovation cost and USD 12,166.67 (equivalent to the i currdnt rate of the Bank of Tanzania exchange rate as rent arrears which is i still accruing to date. Loss of rental income of USD 1,000/- per month from the rental business of the suit property to the date of full payment of renoyation costs. The Defendants to be ordered to pay the Plaintiff general damages at the tune of TZS 50,000,000/=(Say Fifty Million) for i inconvenience caused by the Defendants. Payment of interests, at the i commercial rate of 18% on items (b) and (c) in the Plaint from 15th January 2022 and loss of rent until the date of full payment. Payment of interests at the courts rate of 12% on items (b), and (c) in the plaint from the date of l delive ry of judgment until payment in full. Costs and incidental to this case I be provided for. 7 Eventually, the plaintiff prayed for a declaration that, the 1st and 2nd defendants are in breach of the lease agreement voluntarily entered into by the parties. I bn his part, PW2, Pandisha Kategile Rashid, a principle officer of OCS Systems Ltd, affirmed and stated that, sometimes in January 2024, his office receved an instruction via phone call from the plaintiff requesting an assessment for renovation and rehabilitation of the suit premise. After receiving the said

instructions, PW2 personally visited the suit premises together with his team, and they started their assessment for the renovation and rehabilitation of the rented house especially; existing fence, swimming pool, floor, roofing, windows, doors, fan, AC, wall, electricity system, water system and sanitary. 1 PW2 testified further that, following the assessment as requested by the plaintiff, they prepared a formal report to facilitate payment and enable them to commence the renovation and rehabilitation work which costs amounted to Tshs.221,159,337/=. Having gone through the evidence adduced by the Plaintiff and her witness, I am now to tackle the issues framed herein for the court's determination. As the general rule, in civil proceedings, the burden of proof 8 i lies with the one who alleges. In the case of Hemedi Said vs. Mohamed Mbi u (1984) TLR 113, where it was held that; he who alleges must prove the allegations. Section 110 of the Evidence Act, Cap 6 R.E 2019, elaborates the standard of proof in civil cases as follows "110(1) whoever desires any court to give judgment as to \ any legal right or liability dependent on the existence offacts which he asserts must prove that those facts exist (2) When a person is bound to prove the existence of any facf it is said that the burden ofprooflies on that person." I Based on the above positions of the law, it is the plaintiff who

is requi'ed to prove that, the defendants breached the lease agreement and that she is entitled for damages for the breach of the lease agreement. Starting with the 1st issue on whether the defendants breached the lease agreement entered between the parties. The plaintiff reliably testified and tendered before the court a lease agreement (PEI). In the said agreement, it was agreed under article 3 that, the defendants would pay a monthly rent of US Dollars 1,000 or equivalent to Tarzania Shillings at a current exchange rate. However, it was testified by the plaintiff that, from 15th January 2023 up to the present, the defendants I have not paid the rent. Thus, from the plaintiff's testimony, the court is Q satisfied that, the defendants have breached Article 3 of the Lease Agreement by failure to pay the rent from 151 day of January 2023 to 20th January 2024 when the defendants vacated the suit premises without the requisite notice the plaintiff/ landlord. Regarding the plaintiff's claim for the defendants' act of deserting the suit property without giving any prior notice to the plaintiff for proper hand over of vacant possession of the rented property and leaving the house in a deplorable condition. In support of her claim, she tendered 28 pictures some showing the suit property in a good condition and others showing it in a deteriorated condition (Exhibit P4). The plaintiff

further tendered the valuation/property assessment report (PE3) to prove the extent of damage and assessment of renovation required to the suit house. From the testimony of the plaintiff and PW2, the Court is satisfied that, the defendants plainly breached Article 11 of the lease contract by deserting the suit property without giving the plaintiff the two months' written notification before terminating the lease agreement in question. I • | Regarding the second issue on the plaintiff is entitled to special damages following the defendants'breach oflease agreement I am mindful I of the principle that, special damages must be specifically pleaded and strictly proven thereof. This requirement of the law should always guide our courts when determining whether a claim of special damages has been sufficiently proved or not or the same is awardable or rejectable. I endorse to the judicial jurisprudence in the case of NBC Holding Corporation vs. Mrecha [2000] 1 EA 174, where the Court of Appeal of Tanzania had these to say;- "The remaining sums of damages awarded were also set aside as they amounted to special damages and as such had to be strictly proved, which they had not been. It was not enough for the Judge to hold that the expenses for travel, board and lodging claimed as damages by the Respondent were "reasonable"since these amounted to special damages and had to be proved; nor

was there any evidence to substantiate the claim for lost profits. Guided by the above judicial decision, I am therefore duty bound to || assess if the plaintiff has managed to strictly prove his claims on special damages namely; Tshs. 221,159,337/= as renovation and Tshs.30, 968,168. 99 as rent arrears. Nonetheless, I have no doubt as to the fact that the plaintiff has specifically pleaded special damages. ii As to the claim of Tshs. 221,159,337/=. Starting with the evidence concerning the the plaintiff's claim that, the defendants left the suit property in bad and deteriorated condition, the plaintiff tendered 28 pictures to support her claim and the testimony regarding the said pictures are found at paragraph 8.0 of the plaintiff's Witness Statement, which I wish to reproduce hereunder: "I can recall that, upon visiting my property, I discovered that the Defendants had left the house in a deplorable condition, including significant damage to both the house and the swimming pool. As a result, I have been unable to secure new tenants to date due to the uninhabitable condition in which the Defendants left in the property. I I pray to refer to the picture I took myself using my phone, which only I have access to through my own passwords, and which were printed on my own printer also in my custody, after the Defendants vacate the suit premises...." Going through the said testimony and the exhibit tendered, I find that, there are two categories of pictures taken. The 1st category shows five (5) pictures of the suit premise while in good condition, while the rest of the picfure^ give an illustration that, the rented premises while in bad and deteriorated condition. In examination in chief by her advocate, the plaintiff 12

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II II stated that, 5 pictures were taken before lease and 23 pictures were taken afterl the defendant deserted the suit property. By looking at the said । pictures, it shows that, 5 pictures alleged to have been taken before lease show the rented house in good condition, while 23 pictures allegedly taken after the desertion show the suit property in bad condition. However, the said pictures do not show when exactly they were taker . Even if we agree that, the 2nd category of pictures where taken after the defendants had vacated the suit premise. Yet, failure to show when they were taken because according to the pleadings, the defendants left the suit property in January 2024 and the list of documents to be relied upon by the plaintiff attaching the pictures of the suit property where filed in court on I 12th August 2024, being almost seven (7) months later. It thus difficult or not easy to certainly know the condition of the suit property left by the I defendants at the time of vacating the suit premises. Nevertheless, the plaintiff's house must have been damaged when the defendants left it unattended as stated above as shall be demonstrated while discussing the claimqd general damages. In addition to the photos of the rented premises, the plaintiff tendered Exhibit P3, the valuation report /property assessment report, prepared by an 13 independent contractor, ICS System

Limited for the purpose of evaluation and assessment of necessary renovation to the premises. Nevertheless, upon examining the said report, I find that, it has failed to meet the legal requirements since the law requires all valuation reports prepared by a private valuer or government institution valuer to be authorised by a Chief Government Valuer as per Section 7 of the Valuation and Valuer Registration Act, No. 7 of 2016. From the above observation, I find that, the valuation report tendered does not meet a legal requirement of being authorised by the Chief Government Valuer, hence cannot be considered and relied in awarding special damages for renovation. Coming to the 2nd category of the claimed special damages on rent arrears. I have no doubt that the plaintiff have been able to proof that the there rental arrears that have not been paid by the defendant at the rate of Tshs. 30, 968,168.

99. The 2nd issue is thus partly determined in the plaintiff's favour and partly not in her favour. I now turn to the third issue on what extent of the reliefs the parties are entitled. Regarding to the prayer on paragraph 14.0 (a) of the plaint, It is cledr that the plaintiff has partly met to the extent that, the defendants 14 breached the lease agreement they entered with the plaintiff by failure to I pay the rent arrears from 15th January 2023 to 20th January, 2024. Regarding the prayer on paragraph 14.0 (d) of the plaint, the plaintiff is claiming general damages at Tshs.5 000, 000/= for inconvenience caused by the defendants. In Yara Tanzania Limited vs Charles Aloyce Msemwa and 2 Others, Commercial Case No. 5 of 2013, HC of Tanzania I (Corpmercial Division) at Dar es Salaam, it was stated that:- "It should be stated at this juncture that general damages are never quantified; they are paid at the discretion of the court and, on that score, it is the court which decides which amount to award." Further in Tanzania - China Friendship Textile Co. Ltd vs Our Lady of the Usambara Sisters (2006) TLR 70, it was held that;- "They [the Plaintiffs] were also claiming for general damages which they quantified to the tune of TZS.15000000. But since general damages are awarded at the discretion of the Court, it is the Court which decides which amount to award. In that respect, normally

claims ofgeneral damages are not nquantified." 11 As see in the above-cited authorities, it is clear that it is the court with discretion to award or not to award the general damages. Upon MY scrutiny of the evidence before me and considering the circumstances of the instant I cas^, that is to say; the suit premises is for commercial purpose and that the defendants defaulted to repay the rental arrears for a period of 13 months. It fo lows therefore, that the plaintiff has inevitably suffered serious general damages. She is thus entitled to damages as the result of the defendants' acts namely;- (a) That, the defendants' failure to pay the house rents as agreed (b) That, the defendants jointly and severally vacated the rented premises without issuing the requisite two (2) Months' Notice in I terms of Article 11 of the Lease (c) That, the defendants as tenants had vacated the rented premises without handing over to their landlord who would ascertain the condition of the house prior to termination of the lease as provided under Article 10 of the lease In view of the foregoing, I find the plaintiff is entitled to general damages at the tune of Tshs.45, 000,000/=. As for the interests at the commercial rate of 18% and interest of 12 % at tjhe court rate. Usually, an interest on decretal sum is payable in favour of the winning party, the basis being that, at the time of execution of

the 16 i lease agreement the plaintiff did not anticipate the defendants' failure to pay the Requisite rents. Regarding the prayer about the costs of the suit. It is obvious that, the defendants' acts have necessitated the plaintiff to incur costs, which would be avoided in prosecuting this case. I thus hold that, the plaintiff is entitled to the costs of the suit. In sum, as I have endeavoured to demonstrate, I find that the plaintiff has partly proved her case on balance of probability to the extent elaborated above. In the circumstances, I proceed to declare and decree as follows:- 1. That, the defendants are in breach of the lease agreement they have entered with the plaintiff for failure to pay the rent arrears and for deserting the suit property without prior notice to the plaintiff. . That, the defendants to pay the plaintiff specific damages to the tune of USD 12,166.67 (Equivalent to Tshs. 30,968,168. 99 being rental arrears from 15th January 2023 to 20th January 2024 . That, the plaintiff is entitled to Loss of rental income of USD l,000/-per month from the rental business 20th January 2024 to that date the valuer visited the suit premise for valuation on 20th May 2024 (USD 4,000.00=Tshs. 9,600, 000/= 17 4. That, the defendants are ordered to pay the plaintiff general damages at Tshs. 45,000,000/= for the inconvenience caused by the defendants.

5. That, the defendants to pay the plaintiff interests on the decretal sum at the commercial rate of 18 % from the date of filing of this suit to the date of judgment 1 That, the defendants to pay the plaintiff interests on the decretal sum at the courts rate of 7% from the date of the judgment to the date of full satisfaction of the decree That, the defendants to bear the costs of the suit. It is so ordered. DATED at DAR ES SALAAM this 23rd day of October 2024. 18