dismass scanned

IM THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 25624 OF 2024 (Originating from judgment of the District Land and Housing Tribunal for liaia at Kivukoni in Land Application No. 269/2021) DISMAS A. MASSAWE........ .................... APPELLANT VERSUS GERALD KAMUGISHA MUKULU (As a Legal Personal Representative of the late Pauline Mahilane Mukulu)......... RESPONDENT JUDGMENT 12/02/2025 & 18/02/2025 A. MSAFIRI, J. The appellant, having been aggrieved by the decision of the District Land and Housing Tribunal of Ilala (trial Tribunal) in Land Application No. 269/2021 has lodged the instant appeal advancing four (4) grounds of appeal as follows: 1. That the trial Tribunal erred in law and in fact by entertaining the summary suit without proper proof of service of the Application to the Appellant in order to meet his right to seek leave of the Tribunal to appear and defend. 2. That the trial Tribunal erred in law and in fact by deciding against the Appellant to vacate from the suit property without dear proof that the Appellant is still in the suit premises. i 3. That the trial Tribunal erred in law and in fact by deciding against the Appellant to pay rent of Tshs 300,000 to Respondent from 1st July to the date ofjudgment o ver a contract that had ended/expired before 2021 when the case was filed in trial Tribunal for the first time. 4. That the trial Tribunal erred in law and in fact by deciding against the Appellant to pay compensation for the use of suit premises, of which Appellant had already surrendered and vacate the suit premises. The appellant has moved this court to quash the entire judgment, award, Order and proceedings of the trial Tribunal. The appeal was heard by way of written submissions and the submission in chief by the appellant was drawn and filed by Mr Methodius Melchior Tarimo, learned Advocate while the reply submissions by the respondent was drawn and filed by Dr. Lucas Charles Kamanija, learned Advocate. I have gone through the submissions by the rival parties and well considered the contents, along with the cited authorities and I will not reproduce each and everything which was submitted. Before determination of the grounds of appeal, I will look into the brief background of this appeal. Initially it was the respondent Gerald Kamugisha Mukulu who instituted a case against the appellant Dismas Massawe before the trial Tribunal. The case was filed under the procedure. 2 of summary suit. The then applicant claimed to be a registered occupier of a landed property located at Pugu, Ilala District, Plot No. 236 Block Q (the suit premise). According to the evidence, the then applicant has leased the suit premise which has business shops (frames) to the then respondent and the two have entered a lease agreement. The term of lease was six months and the agreed rent was TZS 300,000/= per month, the lease commenced on 01/01/2021 and was to end on 30/6/2021 to be renewable as per the terms agreed by the parties. It was claimed that, after the expiry of the six months term, the respondent refused to renew the agreement and also refused to vacate the premises despite several requests and reminders from the applicant, the landlord. Following that, the applicant decided to institute the previously stated application before the trial Tribunal seeking among other reliefs, for vacant possession of the suit premises. The respondent was served with summary suit summons, made an application to file his defence, the application was granted but he failed to file his defence. The respondent did not also appear before the trial Tribunal hence the hearing proceeded exparte against him. After hearing, the trial Tribunal dismissed the application on ground that it was incompetent before the Tribunal as the term of the lease agreement 3 expressed that the parties will resolve any dispute arising between them according/ under the provisions of the Law of Contract, Cap 345. The applicant, aggrieved by the decision, appealed to this court and the appeal was heard by Hon. Maziku, PRM with extended jurisdiction. This court found that the trial Tribunal had jurisdiction to entertain the dispute and it quashed and set aside the judgment and order for retrial. The matter was remitted to the trial Tribunal whereby it was re heard and the Tribunal this time decided in favour of the applicant and granted the sought reliefs. The respondent was dissatisfied and have lodged the current appeal. On the first ground, the appellant is claiming that the trial Tribunal erred by entertaining a summary suit without proper proof of service of the Application to the appellant. In the submissions, the appellant's counsel Mr Tarimo has submitted that when the suit was remitted to the trial Tribunal for the retrial, the appellant was not informed and that was the violation of his legal right. He said that any person has the right to know that there is a case against him in order to decide to defend himself or not. The counsel stated that the appellant had a right to be informed so as he could seek leave to defend the summary suit. jL I I 4 To cement his arguments, the counsel cited the case of M/S Roko Investment Co. Ltd vs Tanzania Electric Supply Co. Ltd, Civil Appeal No. 327 of 2019, CAT at Tabora (Unreported). In response, Dr. Kamanija, counsel for the respondent argued that the appellant was properly served with summons and the Application and hence this ground of appeal is unfounded and false. The counsel submitted that when the respondent firstly instituted a summary suit before the trial Tribunal against the appellant, he served the applicant and the appellant acknowledged the service. That having been served, the appellant filed Misc. Application No. 811 of 2021 at the trial Tribunal for leave to appear and defend the suit, and the same was granted. The appellant was granted leave to file his defence within 21 days but he failed to do so hence the Tribunal entered exparte order against the appellant. Mr Tarimo was of the view that the Tribunal's exparte order has never been vacated or varied and at the time of re- hearing of the suit, the trial Tribunal was correct to proceed with the re- hearing of the case exparte. He added that the cited case of M/S Roko Investment Co. Ltd vs Tanzania Electric Supply Co. Ltd (supra), was distinguishable and inapplicable in the current appeal. | 5 I have gone through the whole proceedings. As already narrated above on the brief history of the matter, previously the Application No. 269 of 2021 was instituted by the respondent at the trial Tribunal by way of summary suit under the provisions of Order XXXV Rule (2)1 of the Civil Procedure Code, Cap 33 R.E.2019 (the CPC), read together with Section 51 of the Land Disputes Courts Act, Cap 216 R.E 2019. The records shows that the appellant (then respondent) was served with the summons, he received it and signed to acknowledge the receipt on 22/10/2021. The appellant then filed Misc. Application No. 811 of 2021 seeking before the trial Tribunal, a leave to appear and file his defence. The proceedings shows that the Tribunal granted the application and the appellant was ordered to file his defence within 21 days from the date of the order. The appellant failed to file his written statement of defence, and on 24/02/2022, the Tribunal entered an exparte order against the appellant. It is the argument of the appellant through his counsel that when the matter was remitted to the trial Tribunal by this court and ordered re-trial before another chairman and new assessors, the appellant was not served with the summons for summary suit as per the provisions of Order XXXV Rule 2 of the CPC so that he could seek leave to defend the summary suit. 6 The important question here is whether after the order of retrial by this court in Extended Land Appeal No. 138 of 2023, the appellant was supposed to be served with the summons to appear and file his defence as per the provisions of Order XXXV Rule 2 of the CPC? Or since the appellant was already served with the same when the dispute was originally instituted before the trial Tribunal in 2021, it was suffice and he was accordingly served? Did this court in Extended Land Appeal No. 138 of 2023, nullified the pleadings, and the exparte order of the trial Tribunal which was entered before the beginning of the exparte hearing? I agree with the submissions of counsel for the respondent when responding to this ground of appeal that this court in Extended Land Appeal No. 138 of 2023, did not quash or set aside the pleadings and the orders before the hearing of the suit. This court did not set aside the Tribunal order which granted the appellant leave to file his defence within 21 days, and upon failure, the Tribunal ordered the matter to proceed exparte against the appellant. I have read the order of the Hon. PRM with extended jurisdiction and for the easy of reference, I will reproduce herein below that part; 'For foregoing reasons, the judgment of the District Land and Housing Tribunal (is) quashed and its-A I 7 subsequent orders is set aside. So said, I remit the record to the trial Tribunal with direction to start afresh before the different Chairman and new set of assessors....' (emphasis added). Taking a glance on the above order, the appellate court never quashed the whole of the pleadings and the previous orders, therefore the exparte order of the trial Tribunal remained intact. What the appellant was supposed to do (if he had wished), was to seek to set aside the trial Tribunal's exparte order. I find that the trial Tribunal's exparte order which allowed the respondent to prove the suit exparte was not varied or set aside by the appellate court with extended jurisdiction when it ordered re-trial of the suit. I also find that the facts in the cited case of M/S Roko Investment Co. Ltd vs Tanzania Electric Supply Co. Ltd, are totally distinguishable from this case. In the cited case, the appellant was found to have filed his written statement of defence in a suit filed under summary suit without being granted leave to file as mandatorily required under Order XXXV Rule 2 of the CPC. While, in the present matter, the appellant was granted leave to file his defence but failed to do so. Therefore, the trial Tribunal did not err in law or in fact when it proceeded to re-hear the suit in absence of the appellant. JL 11 8 This 1st ground has no merit and it is dismissed. The 2nd and 4th grounds are similar therefore I will consolidate and determine them jointly. On the 2nd ground, the appellant states that the trial Tribunal erred by deciding that the appellant should vacate the suit premises with no clear proof that the appellant was still in occupation of the said premises. While on the 4th ground, the appellant complain that the trial Tribunal erred by ordering the appellant to pay compensation while he has already surrendered and vacate the premises. In the submission in support of these grounds, Mr Tarimo pointed that the appellant had left officially the suit premises since December 2022 and that there is a letter from the appellant to the respondent of 20/11/2022 which was received by the respondent on the same date before the offices of the Street Executive Officer of Pugu. That, the lease contract ended on 30/6/2021 and the appellant left the premises on December 2022. Mr Tarimo submitted further that it is the position of the law that when a lease agreement has expired, the lessee/ tenant who remains on the lease premises is a mere trespasser who is supposed to be evicted. He cited a case of Mikumi Hospital Dar Ltd vs. Costa George 9 Shinyanga (The Administrator of the late Mwami Theresa Ntare) and another, Land Case No. 71 of 2022 HC Land Division. On the award of compensation, Mr Tarimo argued that the trial Chairperson erred in granting the same since the appellant was a trespasser. In response, Dr Kumanija, submitted that the respondent managed to prove his case to the satisfaction of the trial Tribunal that at the end of the term of lease, the appellant continued to occupy the suit premises illegally and did not vacate as he claims. The counsel added that the submissions by the appellant that he has vacated the premises since December 2022 are mere statements from the bar as they are not in evidence and they are new since they were never raised before the trial Tribunal. Dr Kamanija submitted that the claim that the appellant was a trespasser hence not supposed to pay compensation was a new fact raised before the appellate court hence he prayed that it should be disregarded by this court. I have gone through the evidence adduced during the trial. The respondent, then applicant, adduced evidence to prove his claims that. io the appellant has refused to vacate the suit premises despite respondent's requests. There is evidence of the witnesses, the respondent himself, and the evidence of one Mwombeki Mukulu(SM2) who said that although the lease agreement expired on 30/6/2021, the appellant continued to use the suit premises. Grace Emilian (SM3), a member of the street local Government confirmed that the office received two letters from the respondent and served them to the appellant. That in the letters, the respondent issued a new offer to the appellant to lease the suit premises after the first term expired. Paul Rweyemamu(SM4) said he drafted a demand notice for the respondent which was issued to the appellant urging him (appellant) to vacate the suit premises. I have also read the exhibits which the respondent produced during the trial and were admitted by the Tribunal. KM3 is the lease agreement between the parties. It was a six months term which started on 01/01/2021 and expired on 30/6/2021. Clause 10 of the agreement shows that the lease was renewable subject to the parties' agreement KM4 is a letter from the appellant to the respondent dated 21/6/2021 agreeing to meet with the respondent to discuss the renewal of the lease agreement and the new terms. But according to the evidence, the ii appellant wanted further negotiations on rent and other aspects of the terms of the offer. That he continued to use the suit premises. KM8 is a demand notice from the respondent through his lawyer to the appellant dated 03/8/2021. In the demand notice, the respondent was demanding vacant possession from the appellant. The notice was received by the appellant as per the dispatch book signed by the appellant himself on the same date. Having gone through the available evidence, I am satisfied that the respondent managed to prove his case on the balance of probability that the appellant continued to use the suit premises even after the lease agreement expired. I agree with the findings of the trial Chairperson which were based under the provisions of Section 82 of the Land Act Cap 113 R.E 2019 that if the lessee remains in possession of the land after expiry of the lease, then all the obligations of the lessee under the lease continue in force until such time as the lessee vacate the premises. Since the appellant (lessee) continued to occupy and use the suit premises without the consent of the respondent (lessor), then all the terms of the expired lease agreement continued to bind him until that time he vacates the premises. Ju L- 12 I have considered the appellant's argument that after the expiry of the lease agreement, he was a mere trespasser and that the rent cannot accrue after the lease agreement has ended. In this, it is my view that the provisions of Section 82(1) of the Land Act are clear such that the trial Tribunal was correct to award the respondent the amount of rent which has accrued after the expiry of the rent. It is my further view that the appellant has misinterpreted the principle set in the case of Mikumi Hospital Dar Ltd (supra). In the cited case it was held that the respondent who failed to pay rent be declared a trespasser and that the trespasser had no right to be given a notice to vacate the premises. The circumstances of the case of Mikumi Hospital Dar are totally distinguishable from the facts of the present dispute. I see no fault, either in law or in fact which was committed by the trial Chairperson in granting the respondent the reliefs sought. I also find the 2nd and 4th grounds to have no merit. The 3rd ground is that the trial Tribunal erred by ordering the appellant to pay Tshs 300,000 to the respondent from the 1st July 2021 to the date of the judgment over a contract that had expired before 2021. Submitting on the 3rd ground, the counsel for the appellant argued that since the lease agreement has expired, the appellant was a mere 13 trespasser and the remedy for the respondent was to seek eviction. He said that there can never be accrued rent on the lease agreement that had ended or terminated. The counsel for the respondent submitted in contention that the trial Tribunal was right to rely on the provision of Section 82 of the Land Act, since the appellant continued to occupy the suit premises for commercial purposes without the consent of the respondent. The facts of this ground also relate to the 4th ground. I find that the trial Chairperson was right to award the respondent, payment of the amount accrued at the whole time the appellant continued to occupy the suit premises after the expiry of the lease agreement. During trial, the respondent has satisfied the trial Tribunal through the evidence that the appellant continued to occupy the suit premises. The respondent adduced the evidence in court on how he asked the appellant on diverse dates to vacate the premises but to no avail. By the time the respondent instituted the suit at the Tribunal, the appellant was still in occupation of the suit premises. This is clearly shown by the evidence of the respondent as SMI, and other witnesses, SM2, SM3 and SM4, together with the letters and notice which the respondent issued to the appellant with no success. (Exhibits KM9,KM8,KM7,KM6,KM5). 14 As already analysed above, I find that the trial Chairperson was right in his findings and decision as the respondent proved his claims according to the standard required under the law in civil matters. Even this 3rd ground has no merit. For foregoing reasons, I find the entire appeal to have no merit and I hereby dismiss it with costs. 15