20121102 TZHC Mwanza

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Q IN THE HIGH COURT OF TANZANIA . . {LAND DIVISION)

ATMWANZA LAND APPEAL NO. 52 OF 2009 (From the Decision of the District Land· and Housing Tribunal of Mwan~a at, Mwazna in Land Case Appeal No. 137 of 2006) ELISHA M. SABUKA .......................................................... APPELLANT · VERSUS

THE MANAGING DIRECTOR GEITA GOLD MINING CO. LTD ........................................ RESPONDENT

JUDGMENT MWAMBEGELE; J.: This is an appeal from the decision of the District Land and Housing Tribunal of Mwanza (henceforth the Tribunal) against its decision dated 28.11.2008. Elisha M. Sabuka; the Appellant had instituted a suit against the Managing Director, Geita Gold Mining Co. Ltd; the Respondent seeking for the following reliefs: 1. To surrender the building and the whole premises under para 2.9 of the Agreement; 1 2. To be. paid Tshs. 8,000,000/= being mon"ey for the repair of the building as per para 2.9 of the Agreement; 3. Payment ·of Tshs. 6,000,000/= for purchase of unlawfully removed properties; 4. Payment of Tshs. 15,000,000/= as compensation for illegal occupation for the building and premises as a whole for more than a year; 5. Payment of Tshs. 5,000,000/= damages; 6. Costs of the suit; and 7. Any.other relief the Tribunal may just and equitable. The trial of the suit· proceeded and eventually the Tribunal granted the following reliefs: 1. Payment of rent from the date of expiry of the tenancy agreement to the date of handover of the premises; that is 30.06.2005; 2. Payment of Tshs: 6,000,00/= for repair of the disputed premises; and 3. Costs. The Appellant was no happy with the decision of the Tribunal. He has therefore filed an appeal in this court submitting ten grounds of appeal 2 •. . j challenging the decision. He has prayed this court quash the judgment

of the Tribunal and grant the reliefs prayed ih the Tribunal. The Appeal was argued before me on 30.10.2012. The Appell~nt was i appeared in person and unrepreser.ite.d while the represent~d while the first Respondent spoke through Mr. Galati, learned Counsel. The Appellant prayed to rely on what is stated in the Jiemorandum of Appeal and added he did not enter into any agreement with the Respondent; his agreement was entered into between him and Samax I i Resources. He submitted that those who the Respondent destroyed the house greatly. He submitted further that the assessors were wrong to I I opine that the tenancy rightly passed from Samax to the Respondent. the Appellant seemed to sugge~t, as appearing in the Memorandum of Appeal that the Respondent were but trespassers. He prayed that this appeal be i I allowed as prayed in the Memorandum of Appeal. Mr. Galati opted to argue the ten grounds together and to my mind rightly I I ! so. He argued that this appeal hinges on the question which agreement controlled the relationship between the Appellant and Respondent. he 3 subm/tted that there is an agreement signed between the Appellant and . ~ Sam·ax Resources on which the Appellant and the three agreements he signed with the Respondents which were tendered in the Tribu~al as Exh. . . D2. Mr. Galati contended that the agreement which controlled the relationship between the

Appellant ·and Respondent is not the one signed with Samax Resources but those signed with the Respondent. He submitted that the three agreements which he contended to the ones controlling the relationship between the Appellant and Respondent there was no clause to the effect that the Respondent would buy furniture to bring in the disputed premises and which would be left in the disputed premises at the end of the te.nancy agreement. Mr. Galati submitted the genesis of the complaint might be the interpretation of the term "refurbishment',. appearing in the agreement between Samax Resources and the Appellant. He submitted that in both agreements; that is the one with Sa max Resources and the tree agreements with the Respondent there was no clause suggesting Samax Resources or the Respondent would buy furniture, put into the disputed premised and leave them in the disputed premises at the end of the 4 submitted that there is an agreement signed between the Appellant and Samax Resources .\ on which the . . Appellant and the three agreements he signed with the Respondents which were tendered in the Tribunal as Exh.

02. Mr. Galati contended that the agreement which controlled th_e relationship between the Appellant and Respondent is not the one signed with Samax Resources but those signed with the Respondent. He submitted that the three agreements which he contended to the ones controlling the relationship between the Appellant and Respondent there was no clause to the effect that the Respondent would buy furniture to bririg in the disputed premises and which would be left in the disputed premises at the end .of the tenancy agreement. Mr. Galati submitted the genesis of the complaint might be the interpretation of the term "refurbishment" appearing in the agreement between Samax Resources and the Appellant. He submitted that in both agreements; that is the one with Samax Resources and the tree agreements with the Resp9ndent there was no clause suggesting Samax Resources or the Respondent would buy furniture, put into the disputed premised and leave them in the disputed premises at the end of the 4 . tenancy. He concluded therefore that relief 3 supra was rightly refused by . the Tribunal. On relief 4 hereinabove; that is· Payment of Tshs. 15,000,000/= as compensation for illegal occupation for the building and premises as a whole for more than a year, Mr. Galati submitted the Tribunal rightly refused it in the light of the three agreements which controlled the parties _to those

agreements. And in respect of relief 5; Payment of Tshs. 5,000,000/= damages, again Mr. Galati contended that it was correctly refused as first, there was no justification to claim it having claimed for compensation for illegal occupation of the disputed premises and secondly, the Respondent was not _ deprived of any income. l'J!r. Galati conclude thatthis appeal be dismissed with costs and the Appellant should be handed over the house which he has all along refused to. In rejoinder, the Appellant stated denied to have entered into any agreement with the Respondent. He elucidated that the agreement between him and samax Resources had a clause to the effect that only a 5 ·, .. • ••• I"'_· ! . ,. ..·,··. ! . partner to Samax Resources would live in the disputed premises; the Respondent was not a partner of the said Samax Resources: He reiterated his prayer that his appeal to be allowed as prayed. I have gone through the entire record before me ii:, the, light of the rival submissions by the partie•s. Indeed, as Mr. Galati pointed :out, gist of the problem hence the appellant's appeal lies in the definition of the term "refurbish" as appearing in- the agreements. This problem was canvassed well by the Tribunal and at some length and I think the Tribunal correctly I interpreted the term. I need not repeat it. The Respondent also avers that he does not recognise the· Respondent

as his tenants. He averred in the ground 9 that they were but trespassers. I have gone through the ~orrespondences between the Appellant and Respondent available in the court file. I have perused the three agreements between the Appellant and Respondent which were tendered at the trial as Exh D2. I am satisfied that the Appellant's assertion to this ~ffect is but not supported by evidence. It seems to me the Appellant's assertion to this effect is but an afterthought in a futile attempt to prove his allegation. I am 6 of the view that the Appellant has unsatisfactorily proved this allegation and under the strength of the cardinal evidential principle of he who asserts must prove under the provisions of subsection (1) of· Section 110 of the Evidence Act, Cap 6 of the laws, this prayer must fail. As to the relief in respect of furniture, I am, again, in agreement with Mr. Galati learned Advocate that the agreements, including the one with Samax Resources which the appellant purports to rely on, have no clause to this effect. As rightly pointed out by Mr. Galati, under the provisions of Sections · 110 and 101 of the Evidence Act, Cap 6, oral evidence will not be accepted when an agreement was reduced into writing. Subsection (1) of Section 110 of Cap 6 reads: /''When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document,

and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself .. ". 7 1 i i The documents signed by the Appellant and the Respondent, speak for . I . ' i ' . themselves.· No oral proof is required tol prove them. The Appellant is I therefore not allowed to prove otherwist And within the provisions of I i _ Section 123 of Cap 6, despite his denial which I have found to leave a lot to i be desired, having signed the agreeme~ts with the Respondent he is estopped from alleging the contrary. i I In the end result, find and hold that this /appeal was filed with no iota of merit. The Appellant should be satisfie~ with what he got in the trial ! I Tribunal. He should not equate himself Jith I Charles Dickens' Oliver Twist. , I , The decision of the District Land and /Housing Tribunal is Tribunal is endorsed. This appeal is dismissed. · The decision bf the District Land and Housing ! ' i Tribunal is endorsed. The appeal is dismis~ed with costs. I I nd I , DATED at MWANZA this 2 d~y of November, 2012. I . I I J.C. M. MWAMBEGELE I JUDGiE I 8