ismail hassan choti vs dora kapinga 2023 tzhc 21136 22 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA AT SONGEA LAND CASE APPEAL NO. 20 OF 2022 ISMAIL HASSAN CHOTI …….…..…….……….…………..…….. APPELLANT VERSUS DORA KAPINGA (The administratrix of the late THEOFRIDA KAPINGA MAGEUZI …….…..……. RESPONDENT (Appeal from the decision of the District Land and Housing Tribunal of Songea at Songea in Land Application No. 40 of 2020) JUDGMENT 31st August and 22nd September, 2023 KISANYA, J.: In this appeal, Ismail Hassan Choti, is appealing against the decision of the District Land and Housing Tribunal of Songea at Songea in which his suit (application) against Theofrida Kapinga Mageuzi (henceforth Theofrida) was dismissed for want of merit. The suit before the trial tribunal stemmed from the facts which can be narrated as follows: It was the appellant’s case that, early 2018, he and Theofrida entered into an oral lease agreement for construction of a garage (lease agreement) on the respondent’s land described as Plot No. 844, Block DD, Bombambili. It was his further claim that in the course of constructing the said garage, Theofrida drafted a written lease agreement 1 which stipulated the terms and conditions of the agreement between them. He stated that, the written lease agreement was not signed because the costs incurred were to be ascertained after completion of the construction. It was further averred by the appellant that, he performed his obligation by constructing the garage at the cost of TZS 10,655,000/=. To his dismay, Theofrida unlawfully and without justification required him to remove the structures and vacate from the suit land. On that account, the appellant sued Theofrida praying for the following reliefs; one, a declaratory order that the respondent’s acts amounted to breach of agreement; two, a declaratory order that the appellant is the lawful tenant; and in alternative, an order for payment of specific damages to the tune of TZS 10,655,000/=, three, general damages; four, costs of the case; and five, any other relief that the trial tribunal deemed fit to grant. Theofrida filed a written statement of defence in which she disputed the appellant’s claim. She also denied to have entered into any lease agreement with the appellant. She was firm that, the appellant refused to sign the draft lease agreement and that he (the appellant) constructed the said building without her consent. 2 In view of the pleadings filed by the parties, the issues recorded for determination of the matter were to the following effect. First, whether the parties entered into a lease agreement for construction of a building for garage business at the respondent’s land. Second, whether the appellant is entitled to payment of TZS 10,655,000/= being labour charges and costs for building materials. Three, to what reliefs are parties entitled to. After the trial, the trial tribunal dismissed the matter for want of merit. The appellant was ordered to demolish all buildings built by him on the suit land. Dissatisfied, the appellant preferred an appeal before this Court on four grounds. However, during the hearing, his counsel abandoned the fourth ground. The remaining grounds reads: 1. That the trial tribunal erred in law and fact to dismiss this matter on the basis that there was no consensus ad idem while the agreement which was breached was reached at consensus ad idem 2. That the trial tribunal erred in law and fact to hold that the appellant was a trespasser while the evidence shows that the appellant was permitted by the respondent. 3. That the trial tribunal erred to hold that the appellant was benefiting from his wrongs while the 3 wrongs was of the respondent and was estopped from denying what was agreed before. Theofrida met his demise before the hearing could commence. With leave of the Court, Dora Kapinga, the administratrix of the late Theofrida Kapinga Mageuzi (henceforth “the respondent”) was joined to this appeal in lieu of the late deceased respondent (Theofrida). During the hearing of this appeal, the appellant was represented by Mr. Dickson Ndunguru, learned advocate, whereas the respondent appeared in person. Arguing generally in support of the appeal, first and second ground of Appeal Mr. Ndunguru faulted the trial Tribunal for holding that there was no consensus between the appellant and the respondent. He contended that the appellant and the then respondent had two agreements. He expounded that, the first agreement was for construction of garage, while the second agreement was for lease of the garage built on the suit premises. He went on to submit that parties had consensus on the agreement for construction of the garage. It was also his further submission that the appellant built the garage based on the said agreement for construction of the garage. 4 Mr Nduguru submitted further that, the appellant was served with the notice to vacate from the suit premises after the appellant had started the construction and when parties failed to agree on the terms and conditions of the lease agreement. Contending further that the appellant was invited to the suit premises by the respondent, the learned counsel submitted that the appellant was entitled to compensation under section 70 of the Law of Contract Act, Cap. 345, R.E. 2019. On ground three, Mr. Ndunguru submitted that the respondent cannot benefit from his own wrongs. His submission was premised on the ground that the respondent agreed with the appellant for the construction of the garage on the suit premises on the condition that costs incurred was to be ascertained after completion of the construction. It was therefore, his argument that the respondent was barred from going back on his words on the said agreement. He was of the view that the appellant was not a wrong doer as held by the trial tribunal. In view of the foregoing submission, Mr. Ndunguru prayed for this Court to allow the appeal with costs. Refuting, the respondent was brief that, the appellant did not produce the agreement between him and the then respondent (the late Theofrida). It was her further submission that the appellant trespassed 5 unto the suit premises. She then urged this Court to determine the appeal in accordance with the law. In his rejoinder, Mr. Ndunguru reiterated his submission in chief that, the appellant was invited to the suit premises by the respondent and that he (the appellant) was made to believe that he would benefit after constructing the garage. He maintained his stance that the appellant was not a trespasser. I have examined the record of the trial tribunal and considered the submissions of the appellant’s counsel and the then respondent. The principal issue is whether the appeal is meritorious or otherwise. On ground one, the appellant grieves that his case was dismissed on the basis that there was no consensus idem in respect of the agreement which was breached. As shown herein, Mr. Ndunguru contends that the consensus ad idem was related to the agreement for construction of garage. At the outset, the learned counsel’s contention that parties entered into an agreement for construction of the garage is not supported by the pleadings filed by the appellant before the trial tribunal. In the application which the appellant filed in the trial tribunal, it was averred that the appellant entered into an oral lease agreement for construction of a garage. It is also on record that, the first issue framed for determination 6 of the matter was whether parties entered into a lease agreement for construction of a business premises. It is a cherished principle of law that parties, are bound by their own pleadings and that, they cannot be allowed to raise an issue which are not backed by the pleadings unless by way of amendment. [See the case of Ernest Sebastian Mbele vs Sebastian Sebastian Mbele & Others, Civil Appeal No. 66 of 2019, [2021] TZCA 168 (4 May 2021 - TanzLII)]. Therefore, Mr. Ndunguru’s argument that the appellant and the late Teofrida entered into an agreement for construction of the garage lacks leg to stand on. That aside, based on the pleadings filed before the trial tribunal, ground one gives rise to the question whether there was consensus on the lease agreement for construction of a garage. According to section 2 of the Land Act, Cap. 113, R.E. 2019, one of the derivative rights to occupy and use land created out of a right of occupancy is lease. Further to this, lease is one of the forms of disposition of land. This is according to section 2 of the Land Act which defines the word “disposition” as hereunder: "disposition" means any sale, exchange, transfer, grant, partition, exchange lease, assignment, surrender, or disclaimer and included the creation of 7 an easement, a usufructuary right or other servitude or any other interest in a right of occupancy or a lease and any other act by an occupies of a right of occupancy over that right of right of occupancy or under a lease whereby his rights over that right of occupancy or lease are affected and an agreement to undertake any of the dispositions so defined;” Now, the manner and conditions for enforcing an agreement for disposition of derivative rights including lease are set forth in section 64 (1) of the Land Act, which stipulates: “64-(1) A contract for the disposition of a right of occupancy or any derivative right in it or mortgage is enforceable in a proceedings only if (a) the contract is in writing or there is a written memorandum of its terms; (b) the contract is in writing or the written memorandum is signed by the party against whom the contract is ought to be enforced." As it can be glanced from the foregoing provisions, an agreement for disposition of any derivative right including lease may only be enforced if it is in writing. In alternative, there should be a written memorandum of its terms which must be signed by the parties. This position was also stated in the case of Aziz S. Masasi vs Emmanuel T. Makene, Civil 8 Appeal No. 35 of 2021, [2023] TZCA 17553 TanzLII] in which the Court of Appeal held as follows: “Given the absence of a written sale agreement on the suit premises, there was no legal sale agreement between the appellant and the respondent on the suit premises.” Although the above case was related to disposition by sale, I am of the view that, the position thereto applies to other forms of dispositions including lease. That being the position, I am of the view that, the parties’ consensus ad idem on the terms of lease agreement or any disposition must be expressed in writing and signed by the said parties. In the present case, the appellant pleaded that the lease agreement was oral. Furthermore, the appellant’s (PW1) oral testimony bears it out that there was no written memorandum of the terms of the lease agreement that was signed by him and his counter party (DW1). To the contrary, it is undisputed fact that the draft lease agreement was not signed by either party. In that regard, it is my humble opinion that, such evidence connotes that there was no consensus ad idem between the parties and that, the purported lease agreement could not be enforced. For the said reasons, I dismiss ground one for want of merit. 9 Moving to the second ground, the trial tribunal is being challenged for holding that the appellant was a trespasser, while he was permitted by the respondent. Mr. Ndunguru’s submission in support of this ground was based on the contention that parties had entered into an agreement in which the appellant was to build the garage on the suit premises. Having resolved earlier on that, the appellant did not plead to have entered the said agreement, the said contention lacks basis. Even if I was to consider that parties entered into the lease agreement, the said agreement is not enforceable because it terms were not written and signed. That notwithstanding, there was no sufficient evidence to prove that the respondent invited or permitted the appellant to construct the garage on the suit premises. The appellant (PW1) testified in chief that, in May, 2018, the then respondent (DW1) showed him the area for making blocks. However, he admitted that, DW1 gave him a draft lease agreement, while DW1 was firm that the appellant was barred from starting the construction without signing the said agreement. The appellant’s evidence, including the record kept in the exercise book (Exhibit HC1) shows that the arrangement for construction started in August, 2018. That was after he had been served with the draft lease agreement which he failed to sign. The fact that clause 6 of the draft agreement state that the agreement 10 would be signed after ascertaining all costs does not implies that the appellant was allowed to commence the construction. To the contrary, both parties ought to have agreed on the terms as to costs for construction. In the circumstances, the appellant was a trespasser because he constructed the building without obtaining consent from DW1. Thus, ground two is dismissed as well. Last for consideration is ground three that, the respondent was estopped from denying what was agreed before. This ground should not detain this court. I have decided herein that evidence to prove agreement between the parties is wanting. Further, as the appellant started the construction without having a written agreement or memorandum that was signed by the parties, he cannot benefit from that wrong. Therefore, ground three fails. In the event and the foregoing reasons, the appeal is hereby dismissed with costs for want of merit. DATED at SONGEA this 22nd day of September, 2023. S.E. KISANYA JUDGE 22/09/2023 11 12