20090827 TZHC Dar es Salaam

IN THE HIGH.COURT OF TANZANIA AT DAR ES SALAAM CIVIL.CASE NO. 76 OF 2005 HEZRON MWASOMOLA .................... . ·PLAINTIFF VERSUS •. . l . . THE UNIVE~SITY OF DAR ES SALAAM ....... DEFENDANT Date of last Order 17/7/2009 Date ~f Judgment 27/8/2009 7 t JUDGMENT ., SHANGWA, J. The Plaintiff Hezron Mwasomola is claiming from the defendant the University of Dar es Salaam general damages for 1 trespass of Shs. 150,000,000/= and Shs. 12,167,000/= as specific damages. The background to the plaintiffs claim is as follows:- In 1978, the plaintiff was employed by the defendant as Laboratory Assistant Grade 11. After being employed, the defendant allocated him its house at Mbezi Quarter Block D rooms Nos. 22 and 23. The said Quarter is located within the defendant's main campus. In 2000, the plaintiff was retrenched by the defendants. On 30 th January, 2001, the defendant issued him a notice to vacate on grounds that he was no longer its employee. He did not comply with that notice and requested for extension of time to stay in the defendant's house. His request was refused by the defendant's Chief Administrative Officer Prof. J. S. Mshana by his letter dated 13 th I February, 2001 with ref. No. CP SC/2/386 in which he was required to vacate from the defendant's house by 20 th February, 2001. All the same, he· did not vacate from therein. 2 On 1 st March, 2001, the defendant's Chief Administrative Officer ordered its auxiliary Police to evict him. Nine auxiliary Police men went there and effected the eviction. They did so very early in the morning. They removed his households from the defendant's house and placed them outside on the corridor. Thereafter, they locked the defendant's house and they took the keys to· the defendant's office. At the commencement of hearing the suit, for issues were framed namely: 1. Whether the plaintiff received from the defendant reasonable notice to vacate the defendant's residential premises after retrenchment. 2. Whether the defendant trespassed into the plaintiff's residential premises. 3. Whether the defendant's agents stole any money or property · from the plaintiff during eviction. 4. What remedy are the parties entitled to. 3 On the first issue, I think that after retrenchment, the plaintiff was given sufficient notice to vacate from the defendant's house located at Mbezi Quarter Block D room Nos 22 and 23. At first,he was given a three months notice to vacate from those premises which run from July, 2000 to September, 2000 but he did not - vacate. After the expiration of that period, the defendant was kind enough to extend the period of his stay up to 20 th February, 2001 as shown in exhibit D4. In my considered view, the plaintiffs claim that he could not vacate because he had preferred an appeal against his retrenchment is immaterial. As much as he did not continue with work and as he did quit the defendant's office during the pendency of his appeal, he should as well have vacated the defendant's house and lived elsewhere during the pendency of his appeal. Thus, the sufficiency of the notice to quit that was given to the plaintiff by the defendant is not vitiated by his claim that he could 4 not vacate the defendant's house on grounds of his appeal against retrenchment. This disposes of the first issue which is decided negatively. On the second issue, I should state from the outset that the defendant did not trespass on the plaintiffs residential premises. First of all, the residential premises belong to the defendant. Now, how can the defendant be charged with trespass on its own property / premises. Thus, the plaintiffs claim that the defendant trespassed on his premises is ridiculous. After the expiration of the notice to vacate from the defendant's premises, the plaintiff continued to stay therein unlawfully. For this reason, the defendant had no alternative but to evict him from therein. In my opinion, the defendant's Chief Administrative Officer was right to order the defendant's auxiliary police to go and evict the plaintiff from its premises. These policemen evicted him very early in the morning which is the best time to conduct eviction. 5 " . Humanity would require that a tenant who is being evicted should be evicted as early as possible during the morning as the defendant managed to do in this case so as to give such tenant an opportunity to find a place where to sleep at nightfall after being evicted. Although the plaintiff denied to have been present at the time of eviction and said that the one who was present is his wife alone, the \. ',) truth is that the eviction was conducted during his presence and during the presence of his wife. The eviction exercise was witnessed by a ten cell leader one Frank Kiwambo D.W. 6 who told the court in his testimony that the eviction was conducted in his presence and that the defendant auxiliary police removed the plaintiffs households from the rooms he was occupying and placed them outside on the condor. According to D. W.4 Mikidadi Hoza who is one of the auxiliary police, after completing the eviction exercise, the plaintiff asked his wife to take their households to their neighbor's house called Mwakarobo and that she did so. As already mentioned, the premises in issue belong to the defendant and it is ridiculous for the plaintiff to say that the defendant committed trespass against him. This disposes of the second issue which is as well decided negatively. 6 ' . ... On the third issue, I am sorry to say that the plaintiffs claim that the defendant's agents / auxiliary police who evicted him did steal his money namely Tshs. 167,000/= and his other properties namely ten plates, seven water mugs and a video deck all valued at Tshs. 12,300,000/= has no basis. The eviction took place in his presence and his wife's presence. Therefore, I do not see how the defendant's agents / auxiliary police could have stolen his cash and other properties mentioned above without being seen by him or his wife. There is no evidence to show that the plaintiff reported the alleged incident to the state police for action or even to the defendant's Chief Administrative Officer. I hold therefore that the defendant's agents never stole anything from the plaintiffs premises during the eviction exercise. This disposes of the third issue which is also decided negatively. The fourth issue is a general one. What I can say here is that the plaintiff is not entitled to any remedy as his claims are baseless. Obviously, the defendant is entitled to costs of this suit. 7 ... Now, having found that the plaintiffs claims are baseless and that he is not entitled to any remedy, I hereby dismiss his suit with costs. JUDGE 27/8/2009 Delivered in open court this 27 th day of August, 2009 in the presence of the plaintiff in person and Mr. Mzava, Advocate for the Defendant. JUDGE 27/8/2009 8