LAND APPEAL NO 27771 OF 2024 ERENE HENRY BANZI VS RESPICIUS W LEBBA AND ANOTHER

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY)

AT IJC MOROGORO LAND APPEAL NO. 27771 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Morogoro in Land Application No. 181 of 2019.) ERENE HENRY BANZI………………………………APPELLANT

VERSUS RESPICIUS W. LEBBA…………………..……1ST RESPONDENT RAHAMA HASSAN KIBWANA………………2ND RESPONDENT

JUDGEMENT DATE OF JUDGEMENT- 2ND JULY 2024 MANSOOR, J. Facts of the case as depicted from the records are that, the appellant herein, who shall be referred to as the “Lessor” is the owner of the premises located at Mafisa Area, Mbuyuni, within Morogoro Municipality, herein referred as the “Suit Premises”, and on 1st February 2017, the respondents”, who shall be referred to as “the Lessees” and the appellant entered into a lease agreement for leasing a residential house as well as the shop/frame for 1|Page carrying on the business of Mpesa, Tigo Pesa, Airtel Money and Selcom as well as a Grocery Store. The 1st agreement was entered between the appellant herein as the Lessor and Rahma Hassan, the 2nd respondent herein, as the Lessee. This agreement was in writing and executed by the appellant and the 2nd respondent. The Agreement was signed by the parties on 1st February 2017 and was effective from the date of signing, but it was for unspecified period. The Agreement was for leasing one room for THz 30,000/= per month. The rent was to be paid for three to six months before occupying the room. It is from the averments of the 1st and 2nd respondents who says they are the joint lessees as they are the husband and wife and that they had agreed with the Lessor to renovate the shop, and the amount spent on renovation shall form part of the rent for the first rental period of six months

i.e. from 1st November 2018 to 30th March 2019. The costs of renovation were calculated to be THz 210,000/=. Since the rental amount for six months was THz 300,000/=, the Lessees agreed to top up so as to make the total rent of THz 300,000, and so on 2nd November, 2018, the 1st respondent writes a note stating that he has paid the Lessor THz 300,000 as rent for six months from 1st November 2018 to 30th March 2019. 2|Page The respondents aver that the rent was to be paid on 1st April 2029, but before the rent became due, the appellant demanded payment of rent, and when the respondents refused to pay, the appellant decided to lock the shop denying the respondents an entry. Following this, the respondents approached their advocate namely PJC Premier Attorneys who wrote a notice to the appellant on 6th October 2019 demanding the lessor to give access to the premises, and payment of compensation of THz 100,000/= per day from the date the appellant blocked access till the day the shop will open. On 08th October 2019, the appellant herein responded to the notice saying that he does not recognize Resipicius Wilson Lebba as he has never entered into lease agreement with such a person. Then, on 22nd November, 2019, the respondents herein filed a suit at the District Land and Housing Tribunal for Morogoro, “the Tribunal” claiming for a declaration that the appellant herein had breached

the lease agreement, that the appellant herein be ordered to allow the respondents access to the suit premises, they also asked for compensation for loss of business, they prayed for general damages and costs of the suit. After full trial, the appellant was ordered to give the respondents herein access to the suit premises, that there should be valuation of the damage 3|Page caused by the appellant, and the appellant was ordered to pay compensation for the damaged goods/properties as shall be valued, he was also ordered to pay the respondents THz 4,000,000/= as compensation for inconveniences and for loss of business for the period of four years. He was also ordered to pay costs of the suit. Erene Henry Banzi, the Lessor, was aggrieved by the Judgement and Decree of the Tribunal, he filed the appeal before this Court, raising Six grounds of appeal as follows: 1. The Trial Tribunal did not have jurisdiction; 2. The Tribunal erred in law and fact by pronouncing that the notice to vacate was a short notice; 3. The Tribunal erred in law and fact by awarding damages which were not pleaded and proved; 4. The Tribunal erred in law and fact by awarding the respondents THz 4,000,000/= as damages which were not pleaded and had no basis; 5. The Tribunal erred in facts and law by not declaring the respondents the trespasser who refused to vacate the suit premises even after

the notice; 4|Page 6. The Tribunal erred in law and facts by ignoring the evidence tendered by the Appellant. The hearing of the appeal was by way of written submissions, while the Appellant was represented by Advocate Asifiwe Alinanuswe, the respondents were represented by Advocate Ignas Punge. I read and carefully considered the submissions filed by the Counsels on behalf of their clients. As regards the first ground of appeal that the Tribunal did not have jurisdiction to entertain the dispute since it was not a land dispute, I would refer to subpart IV of the Land Act, Cap 113 of 2019 ("The Land Act"). Section 107 (1) of the Land Act CAP 113 R: E 2019 and also the case cited by the Counsel for the Appellant, the case of Exim Bank (T) Limited Vs Agro Impex (T) Ltd, Parvez Vira and Azmiha Vira, High Court Tanzania, Land Division, at Dar es Salaam, Land Case No. 29 of 2008 (Unreported,). In this decision, at page 7 of the judgment, Hon. Mziray said: "Two matters have to be looked upon before deciding whether the is clothed with the jurisdiction. One, you look at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed 5|Page and see as to whether the Court has power to grant them and whether they correlate with the cause of action". Section 107 (1) of the Land Act (Cap 113 R.E 2019) herein referred as the Land Act reads as follows: Section

107(1) An application for relief may be made to a district court– (a) in a proceeding brought by the lessor for an order of termination of the lease; (b) in a proceeding brought for the purpose by any of the persons referred to in subsection (2) before the lessor commences a proceeding mentioned in paragraph (a). "Court" means the anybody established by or under any written law which is referred to in section 167 of this Act as having jurisdiction to determine land disputes; The Land Act has defined the Court to be those courts listed under Section 167 of the Act, and district Court in accordance to the Act would be the District Land and Housing Tribunal. The definition of the Courts under the Land Act reads: 6|Page "Court" means the anybody established by or under any written law which is referred to in section 167 of this Act as having jurisdiction to determine land disputes; Section 167 of the Land Act lists the following Courts as courts which have jurisdiction to entertain the Land Matters, this section confers exclusive jurisdiction to the District Land and Housing Tribunal to entertain Land disputes. Thus, the district court mentioned under section 107 (1), in accordance to the definition of the “courts” under the Land Act would definitely be the district court mentioned under Section 167(1) of the Land Act, and which expressly excludes the ordinary district court which

is established under the Magistrates Courts Act [Cap 11 R.E 2019]. Section 167 (1) The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say– (a) the Court of Appeal; 7|Page (b) the Land Division of the High Court established in accordance with law for time being in force for establishing courts divisions; (c) the District Land and Housing Tribunals; (d) Ward Tribunals; (e) Village Land Councils. reads: Apart from Section 167 (1) which confers exclusive jurisdiction to the District Land and Housing Tribunal to hear and determine all manner of disputes, actions and proceedings concerning land, Section 33 of the Land Disputes Courts Act [CAP. 216 R.E. 2019] gives exclusive and original jurisdiction to the District Land and Housing Tribunal to determine all proceedings under the Land Act, the Village Land Act, and all those proceedings which fell under the Rent Restriction Act. Dispute under the Land Restriction Act are disputes between the Landlord/Lessors and the Tenants/Lessees. This section reads: Section 33. -(1) The District Land and Housing Tribunal shall have and exercise original jurisdiction- 8|Page (a) in all proceedings under the Land Act, the Village Land Act, the Customary Leaseholds 16 Cap.113 Cap 114 Cap 377 Cap.339

Cap.267 (Enfranchisement) Act, the Rent Restriction Act and the Regulation of Land Tenure (Established Village) Act; It is therefore without a flicker of doubt that the Tribunal was vested with exclusive and original jurisdiction on a dispute falling under the Land Act as well as under the Rent Restriction Act. Consequently, this ground of appeal fails as it lacks merits. Having found that the Tribunal is vested with jurisdiction to hear and determine the suit between the Landlord and Tenants or Lessor and Lessee as hereinbefore referred, I shall determine the rests of the ground under the premises of whether the Trial Tribunal properly evaluated the evidence presented before it. I shall first determine whether the 1st respondent herein was the Tenant. It is not in dispute that the written Lease Agreement admitted before the Tribunal as Exhibit A4 was between Rahma Kibwana Hassan who is the 2nd respondent in this appeal and the appellant herein. This Agreement was signed by the appellant and the 2nd respondent herein 9|Page on 2nd February 2017 for renting one room for THz 30,000/= a month, for unspecified lease term. There is no mention of the 1st respondent in the Lease Agreement. Again, there was no any clause that shows that the parties had agreed that the 1st respondent would renovate the Shop for TZS 210,000 and the costs of renovation would cover the rent for a certain

period. I read page 3 of the typed Judgement which shows that there was a written lease agreement dated 21/03/2018 between the appellant and the 1st respondent which was admitted as Exhibit A1. I went through this Agreement (Exhibit A1) and realized that this Agreement was never pleaded in the Application which was filed in the Tribunal on 22nd November, 2019. In the Application the documents annexed were the Lease Agreement between the appellant and the 2nd respondent. There was no list of additional documents which was filed by the respondents to list the Lease Agreement between the appellant and the 1st respondent as an additional document to be relied upon. The Agreement which was received as evidence was received in total violation of the Evidence Act [Cap 16 R.E 2022] and the Civil Procedure Code [Cap 33 R.E 2019] which requires that documents to be produced as evidence must be filed in court to form part of pleadings. 10 | P a g e Again, the Agreement received as Exhibit A1, is a replica of the Agreement entered between the appellant and the 2nd respondent except the last page in which the names of the 1st respondent is shown as the Lessor, written in a blue pen and signed by the 1st respondent on 21st March 2018, while the names and signature of the appellant is in black ink and signed on 1/1/2018, three months before the signature of the 1st respondent was inserted.

The agreement was not witnessed nor notarized by the Commissioner for Oaths, also not stamped to prove that there was stamp duty paid. This leaves a lot of doubt as to why the 1st respondent signed the Lease Agreement after its operational date had already passed and why the dates of signing the agreements were different, three months apart. The Agreement says the effective date of the Agreement was 1/1/2018. In any case, the proceedings of 3rd June 2020 shows that the appellant objected the admission of the Lease Agreement (Exhibit A1). He clearly was surprised to see that there is an agreement which appears to show the name of the 1st respondent as his tenant while he only entered into an agreement with the 2nd respondent. In his reply notice, he categorically denied to have known the 1st respondent as his Tenant. Yet, this Agreement was brought to court in total violation of the Evidence Act and the Civil Procedure Code, but 11 | P a g e was received as Exhibit by the Tribunal despite the objections raised to its admission, and despite the fact that the procedure for its admission was flouted; this raises an eyebrow on its authentic. Any evidence without pleading is inadmissible. The Trial Tribunal had erred in admitting this exhibit which was not pleaded by the respondents. It is clear from the records that this important fact including documentary evidence (the lease

agreement between the appellant and the 1st respondent) that were relied upon by the respondents was not pleaded in the plaint and the plaint was not even amended. Even though, an objection was raised by the appellant before the Tribunal that this piece of evidence was outside the scope of the plaint but the Chairperson of the Tribunal totally ignored the objection, and decided to admit the evidence without assigning any reasons. It is the requirement under the Civil Procedure Code that the plaint must contain essential pleas or contentions and annexures be attached to the plaint and only those annexures and those filed under the list of additional documents which are usually filed before the first date of hearing, shall be admitted in evidence. Unless and until there is an amendment of the pleadings, no evidence with regard to the facts not pleaded can be looked into, for which the respondents herein relied upon 12 | P a g e to convince the Tribunal that there was a relation of Tenant and Landlord between the 1st respondent and the appellant. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose

of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. It is without hesitation that the appellant was surprised to see the agreement exhibited as A1, for the first time presented as evidence before the Tribunal without being pleaded. That was an error on the part of the Tribunal, and therefore, in the absence of exhibit A1, which this court rejects it and expunge it from the records as it was wrongly admitted, there cannot be said that there was the Lease Agreement between the 1st respondent and the appellant. 13 | P a g e On ground 2 and 5 of the appeal, whether there was notice to terminate the lease agreement issued by the appellant to the 2nd respondent on 15/07/2019, it is true that this notice was not received as evidence although it was pleaded by the respondents at the Tribunal and it was annexed as part of their pleadings. I have seen the proceedings of the Tribunal when the appellant herein was giving his evidence in chief. He in fact said that he gave the notice to the 2nd respondent on 17/07/2019, but the 2nd respondent refused to receive it. The appellant being a layman and unrepresented did not produce the Notice and so it cannot be considered. However, upon consideration of the rival

submissions it appears that the propriety of the decision of the learned chairperson of the Tribunal hinges only on the status of the respondents, and she decided that they were the legal tenants since there were two agreements, one dated 2017, which was admitted as Exhibit A4, which was between the 2nd respondent and the appellant, and another one dated 1/2/2018 which was admitted as Exhibits A1, which was between the 1st respondent and the appellant. From the word go, if we were to take the 2nd agreement as the genuine agreement, which is not, then the 2nd respondent ceased to be a tenant the moment the 2nd agreement was entered to in 2018, since the name of the 2 nd respondent is 14 | P a g e not featured in the second agreement of 2018, thus, 2nd respondent lacked status to sue as the joint tenant with the 1st appellant. In any case, these two agreements, i.e. Exhibit A1, and A4 are not proof that the respondents herein were not in default of payment of rents. The respondents herein have claimed a tenancy and that they have paid rents and they were not in default. They were duty bound to prove their case that they were no any rent arrears. In support of their case rent receipts should have been produced. There were no rent receipts produced as evidence to prove that indeed they have paid rent and they were not in arrears. If there was existence of the rent receipts, then

definitely there could not have been any doubt that there was in existence two lease agreements as pleaded and exhibited. The note written by the 1st respodnet that he renovated the shop/kiosk for Tshs 210,000 and the costs of renovation forms part of the rent cannot be taken as receipt for payment of rent as firstly it was never signed by the appellant, and secondly, in the lease agreements, there was no clause which permits the tenants to renovate the premises at the cost of the appellant/the landlord. In any case, any document written by the 1st appellant who is not the Lessee, cannot bind the appellant as there is no relationship between them. 15 | P a g e According to my view, therefore, the net effect of the above renders the case of tenancy as pleaded by the respondents not credible and the case of the appellant that the respondents are the trespassers since there was no proof that they paid rent cannot be rejected. Therefore, since the respondents could not prove their case on the required standards, the Trial Chairperson ought to have dismissed the entire application. Since the case of the respondents were not proved to the required standard and ought to have been dismissed, therefore, I am not prepared to say that on those documents, Exhibit A1 and A4, I consider that there is any satisfactory evidence as to the existence of the tenancy between the parties, or proof

of the end of the tenancy between the 2nd respondent and the appellant, and the commencement of the tenancy between the appellant and the 1st respondent as it is not known as to when the 2nd respondent ceased to be the sole tenant in the suit premises. Again, there is no any proof that the respondents jointly entered into a lease agreement with the appellant for renting a shop, or a kiosk for carrying out the business of Money Transfer as pleaded. Indeed, if exhibit A1 and A4 are not proof of tenancy, there is no evidence at all as to the existence and duration of the tenancy. Therefore, since there was no proof of tenancy there cannot be any relief to 16 | P a g e be granted to the respondents herein. It follows therefore, the orders passed by the Trial Tribunal, those of compensation and payments of specific as well as general damages, and costs of the suit are hereby quashed and set aside. Consequently, this appeal is allowed, and the judgement and decree passed by the District Land and Housing Tribunal for Morogoro in Land Application No. 181 of 2019 passed by Hon. M. Khasim, the Chairperson of the Tribunal are quashed and set aside. The appellant is entitled to costs of the appeal. Appeal allowed with costs. DATED AND DELIVERED AT MOROGORO THIS 02ND DAY OF JULY 2024. L.MANSOOR

JUDGE 02/07/2024 17 | P a g e