19881011 TZHC Dar es Salaam

IN TH:ri,; HIGH COURT OF TANZ1.\.NIA AT DAR BS SALAAM CIVIL APPEAL NOb 11 OF 1988 H.AS;:,ANJi.LI KARIMOMUHAMBD •••••••••••••••••• APii'ELLANT versus PAA VINCHAN.DRA MA.Hti.LIDAS MAIIJDi,LIA ••••••••• RESPONDENT JUDGMENT MNZAVAS, JK. This is an appeal from ~he decision of Kisutu Resident Magistrate's Court which gave judgement in favour of the respondent and declared him the owner of the disputed premises. Arguing against the lower court's judgement Nr. Bwahama, learned counsel for the appe,llant/ Plaintiff submitted that the learned resident magistrate in coming to his decision failed to see that the relationship between the appellant and the respondent was one of tenant and landlord. · It was argued that the lower court failed to see that there was an agreement of lease between the parties as opposed to an agreement of sale of the disputed house. It was submitted that had the lower court properly directed itself it would have found that the appellant/plaintiff was the owner of the house and would have ordered the ~espondent/defendant to give the appellant, vacant possession of the premises. In rebuttal Mr. Lakha for the respondent/defendant supported the decision of the lower court~ The learned counsel argued that· there was evidence showing that it was the respondent who was paying land rent on which the disputed premises are situated. It was also argued that witnesses testified in the lower court that the respondent/defendant had bought the house from the appellant/plaintiff. From the evidence tendered in the court of first instance it is amply clear that it is the respondent· who has been paying rent on the disputed premises. This is evL'.. cnt from exhibit D.• 2 and D.3. It shows that the respondent has been paying Shs. 331/= annually as land rent. As rightly argued by Mr. Lakha, learned counsel for the respondent if this w~s rent by a tenant it would mean that the respondentj was paying Shs. 28/= per month as rent. This would be rediculously low rent bearing in mind that the respondent runs a shop in the premises. In the peculiar circumstances of this case the Shs. 331/= per annum paid qy the respondent must have been land rent and not rent by a tenanto And whaj; is more there was the evidence of DWo2 which was to the effect that it was he who had alerted the respondent that the •.• -I? . . - 2 .. appel.ilartt was selling a house and he (Dl&.2) accompanied the respondent to appellant's house where they negotiated the price. according to· this witness the appellant who was initially selling the premises for Shso 45,000/= agreed after the negotiations to accept ohso 42,000/= from the respondent' for the house. There was also the evidence of DWo2 who related to the lower court that he was present when the respondent paid Shso 11,000/= to the plaintiff/appellant as part payment of purchase price for the house. The learned trial magistrate accepted thse two witnesses as credible as he accepted the testimony of the respondent/defendant when he said that he had bought the premises from the appellant/ plaintiffo There is, to crown it all, the documentary evidence - Exhibit D.l, which shows that the respondent/defendant is the nregisted .; · :.- owner •••o••of the unexpired term of right of occupancy ••••• under Title No.17766. 1: 'l'he certificate· .of title also shows that the land rent is 331/= per yearo 'rhis being the evidence Ii agree with Mr. Lakha's ~rgumerit- that the learned trial magistrate was right in finding that 't'he respondent/defendant had bought the premise·s·· from the a-p:riellant/ 'plaintiff 'and that he ·is now: the registered owner cif the plot.:.. In the event I have no alternative but to dis~iss this appeal with costs which are to be taxed. Dal-< ES SALi,A:tvl 11th October, 1988 •.