20130228 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DSM LAND APPEAL NO. 36 OF 2012 (From the Decision of the District Land and Housing Tribunal of KINONDONI District at KINONDONI In Land Case No. 167 of 2011) JAFFAR M SAID ..........................................................APPELLANT Versus REGISTEREED TRUSTEES OF MUTAMAR TAALIM AL ISLAM .......................................•.................................. RESPONDENT JUDGMENT FIKIRINl,J Aggrieved by the ruling delivered on 27 th April, 2012 by the Kinondoni District Land and Housing Tribunal, the appellant Jaffar Said appealed to this court, having a total of four grounds namely: .. .t .Thai the' trial 'chairperson efred in' law and fact when' decidid · · that the applicant application does not disclose cause of action; · 1 t ' · 2. That the trial ,chairperson erred in law and fact when ruling that cause of action is a point of law and not of fact, 3. That the trial chairperson erred in law and fact when ruled that the applicant failure to attach lease agreement in his application proves that he was not a tenant, and 4. That the trial chairperson erred in law and facts when struck out the appellant's application for failure to disclose tenancy relationship while the same was not heard on merits. The appeal was contested and argued by way of written submissions, which were timely filed. But before embarking on examining the parties' submissions, a brief background resulting into this appeal might be useful. It was the appellant's account that he was a member and one of the members of the board of trustees of the Mutamar Taalim Al-Islam hereinafter referred as the "respondent". The respondent is based in Songea. By virtue of his membership and one of the members of the board of trustees, the appellant was appointed a coordinator of the organization activities in Dar es Salaam. As a result he was thus provided with a residence, at house No. 612 Block, Uflpa Street, Old Kinondoni, Kinondoni, Dar es Salaam .. Along the way the appellant and respondent's relationship turned sour. The appellant was declared no longer the member nor the member of the board of trustee in the organization and hence was required to vacate the residential place he was given hereinafter referred as the "suit premises". Aggrieved by such 2 acffon,. the ·app~llanf fifed· an applicatiori before the, Distric:t Land. and Housing. 'Tribunal.. The. appHc:a'tion wa~ st.ru~k. out for non-disclosure of the cause of action. The appellant filed yet, another application which was given number 167 of 2011. That application was as well struck out for non-disclosure of cause of action. Aggrieved by that decision, the appellant appealed to this court. After the brief background above, I will now address the grounds of appeal raised, starting with the first ground which was in relation to cause of action. My understanding and interpretation..of this, is .s3 cause of 8cti.on is a.que.s_tion ,of:fa~t or facts. Both parties share.:, this ppsitio.n as well though from different dimension. The appellant shared this position· relying on the definition given by the Black's Law Dictionary (6t~ Ed) at p 221, which states; "Cause of action is or are fact or facts which gives a person a right to judicial redress or reliefs against another". while the respondent relied on the case of John M Byombalirwa '!ersus Agency Maritime International (T) Ltd. (1983} TLR 1. CA. In that case the court defined cause of action as;. "to mean essentially facts which it ·is necessary for th'e · plaintiff to prove before he can succeed in the suit" 3 It therefore an undisputed position and specifically in this case, that the cause of action was a question of fact or facts. Despite the above agreed definition, the respondent furthered their•:arg'umerit that t'enanc'y ~elatioriship.- was netf~·ssary''to be established, which was according to the respondent, not established in both applications. The appellant's failure to do so in the respondent's view led the chairman to conclude that cause of action was disclosed. The none disclosure of cause of action did therefore contravened the provisions of Order VI I Rule 1 (e) and 11 of the Civil Procedure Code, Cap 33, R.E. 2002. According to the respondent no wonder the chairman ejected the application. The appellant does not agree to such interpretation and hence .challenges the tribunal chairman's decision. After carefully examination of the application filed then, I am in agreement with the appellant that cause of action was disclosed. This is because I am of the view that cause of the action is a claim which gives rise to a right of action. Nonetheless, for such to take place certain facts had to be established and/ or revealed. In this particular appeal, the following was revealed; first, there was an existing relationship between the appellant and the respondent, that the appellant was a member and one of the members of the board of trustees ofthe_ organization. Second,, ou.t of that relationship 4 the appellant was assigned to coordinate the respondent's activities in Dar es Salaam. Third, this resulted in him being given a residence at house No. 612 Block, Ufipa Street, Old Kinon.doni, Kinondoni, Dar es Salaam. To me these were essential facts which were. necessary for_ the plaintiff to prove before he can succeed in the suit. With that mind set I am therefore of the finding that, the appellant had disclosed a cause of action in his application. This position has further been strengthened by the decision in the case of NBC Holding Corporation versus Shirika la Uchumi na Kilimo (SUK/TA), where Dr. Bwana J, had this to say; "..... it is a trite law that in deciding whether a plaintiff discloses a cause of action or not, the court need to examine the issue within the four parameters of the plaint and its annextures, if any with assumptions in the process that allegations made therein be they factual or not, express or implied, are true. A defendant may have a good defence but that is not a determining factor at the state of proceedings. A plaintiff may have made up a story against a defendant but cannot be dismantled by preliminary points of objection. ll necessary, it should wait production of evidence to prove the contrary in the case". It is true that the appellant did not file or attached the lease agreement, but it has to be understood that not all agreements are reduced into writing. Take an example of a grown up child staying, at his or her parents' house, while he or she could take 5 care of him/herself. I do not see a possibility of these parents requiring for a written or oral agreement that their grown up child lives with them (especially in African culture). However, the very child m•ight ·be required at some point to vacate the premises. If he/she resorts to court challenging his/her parents d~tisfon, I do not expect the court to' ask for 'the lease agreement from this child, but I believe will proceed to hear the matter, since existence of lease agreement 1n such arrangement would be a farfetched idea. So it is possible for occupancy relationship to exist without neither a written nor an oral agreement. More so, written agreement though preferred or safe but ora I agreement is as good, valuable and binding as well. The relationship .wh-ich existed between the appellant and the respondent might have not compelled for the lease agreement to be prepared since, perhaps no one envisioned the relationship to turn sour at some point, this being relationship established based on religious belief. In light of the above, I am content that the apriellan't had disclosed a cause of action. The first ground of appeal therefore succeeds. Turning to the second ground that of whether a cause of action is a question of law and not fact, I have gone through the decision of the District Land and Housing tribunal and I do not 6 •' share .,the :Qhairm:an'•s : posttion .. Of., c;qur:se: ·there·. might:: be situations where the cause of action could invite application or reference to law, but in most cases it is a question of fact as well defined by the Black's Law Dictionary, the definition relied on by the • appellant .~• F ••• •• • - •, and the decision in the case of Byombalirwa (supra), the decision relied on by the respondent. Furthering this argument, the question of existence of tenancy agreement is a fact which only could be resolved by production of evidence and not law, and that would have been dealt with at the hearing. Because as stated earlier not all tenancy agreements are in writing, some are oral or implied. The second ground of appeal succeeds and hence allowed. Regarding the third ground, proof of tenancy, again as stated earlier not all agreements are reduced into writing. The issue whether the· -~i~fpellant was a tenant or not would have depended much on the evidence to be adduced at the hearing and not otherwise. This ground succeeds as well. Looking at the fourth ground of appeal that striking out the appellant's ~pplication, my take on this is,_ it was unsafe for the chairman to strike out the application before the tribunal since the same was not determined on merits. This is because· my outlook was the appellarit'·s application has· discldsed sufficient facts warranting hearing of the case on merits rather than on 7 technical'itles. ·the technicalities raised were ih my· view non-··· exi~tent in the fi~st 'place. For the foregoing, I am of the conclusion that this appeal has merit and proceed to allow it with costs, by ordering the District Land and Housing Tribunal to hear this matter on merit. The record. _be placed before a different chairman for determination of the matter on merit. It is so ordered. ~ Judgment Delivered this 28 th February 2013 in the presence of parties. P..S.FIKIRINI JUDGE Right of Appeal Explained; · P.S. FIKIRINI JUDGE 28 th FEBRUARY 2013 8