N

IN THl:. HIGH CUUHT UF' TAl'<,.iJi.NIA .1-1.T DAl{ ~ ~A1AAM Cl VIL A.J?.P.C:.iu. NO. l OF 1986 / (Original l{!v,' s Court Cj.vil ~ No.J,9>/~~). --, l'iJUl<Al\lCHI ,LAB0U.H POUL CUtlPOWi.l'J;Ol>i it';cl)••• ••~PELLA.NT versus bAN].;A.i.{lI'II LABOU.t< co ...ol?B!<ATIVE~ RI:;SPONDENT tiUCI.r.;'l'Y. ,_• ., • •• • •" • JUDGMENT KAZlMOT&,l a J,: '.!'he appellant •u&d the respondent in the Cfrl,trt of the . 1<esi-t;l.~t Mag;i.strate Dar es Sb_laU cl&j.ining a liwnller ,of reliefs. i ~is·claim was dislnissed with costs. He is now app~lihg to thi• eourt aiai.list the dismissal order. Mr. Mkude learned Chief Qorporation counsel had argued the appeal on behalf of th► .-· ~ppellant. •The respondent ~s represented on appeal by Mr. M~uya le~rn&<i counsel. It Wa.$ the appellant's case at the trial that it,. was i.nc~;-p- in 1974 and th~t ever since its incorporation it has beeh in ,- ) ~ecupation of the suit premiees, the property of the Tanzania Haroo~rs authority. It is the appellant's ca~e ~t the trial tlµ:l.t iu ;i_96l, one .riashid Jvigoto on behalf of the appella11t orally i>~•mi tted the z:espona.ant to occupy the suit premises on condi ti,9n t ~ should .l-<ashid Ngoto cea·se to be the chairman of the r~spo~~•- t~e suit premises should be delivered to the appellant. It h a s ' - ieeii stQ.ted that upon .r<ashid Mgoto·cea.sing to be the Chairman of ..... ~Jte responaent, the respondent refused to deliver up possessi~ ~l the suit premises and asserted that he was the legal tenan! ;hereof. Vn the other hand the respondent stated that it was f9,sae1 tf1 1981 and had fur:ther stated that it is the legal tena_nt of thf ' ~ijit premises since 1971. He denied that the ~ppellant was the / ,,._ful tenant of the suit premises and that -he· had paid rent ,pountin~ to ~hs. 13,900/= to the Landlord, the Tanzbnia Harbou'I futhority from 1971 to 1985. After carefully considering the evidence before her the \earned trial magistrate found that the. appellant was not in P'eupation of the suit 9remiees since 1971 and held that he was ii,9t a tenant of the suit pr~mises, /:.,he foupd the respondent to ~e ih~ l~wful tenp.nt. .She based her findings 9p the fact that the 1espondent has a trb.ding business I and merchant licencet1 and has Pf&~> 2-:; ;ent for tne suit premises. She also fo\l+lct that the occupation of ~- the suit premises by the respondent was. granted by a l.awful perm.. . iss-u,ed by the .Port ~ager I anu not a iicence by iiashid Mgoto •. · S"i, . .- ,,. .... - 2 - ' furtaer t:ound that the appellant did not pay rent and held that ' ' ~-~ the receipt tendered in court Exhibit Pl evidencing .the payment , ,·. of rent was issued contre.ry to the procedure laid down •. She refu~ed . to record the evidence of ~anga, for the appellant, on the ground ~ that the witness was in court and had hea.-d the testimony of other witnesses. It was from the~e findings that the ~ppellant had lodS,e-d his grounds of ap-pe,al tc which I now turn. 'l'he first deals with the refusal -0f -th~ ~nied trial magis- trate to record the teatiroony of banga. It was ~pparent that Mr. ~an5a was in court when ~ashid Mgoto (PW-1) gave evidence. In his m.e~or~ndum of appeal the appellant has stated that had the tr!1 ~agist~ate taken the evidence of A. Sanga, she woµld have held that the appellant occupied the suit premises iWiCe 1971. The first issue calls for the determination of what praetice the ~ourt should follow when conftonted with the questioa of a potenti~l ~ ~; witnesses sitting in court and hearing the testimony of ot4er witll,esses before he gi.ves his evidence. In GJmfj,ieri Mubtto .;.,, (1961) .t!,A 244, it was held that in crim:i.na.l eases a person wbQ ·• ~• .I.< is known to be a witness should usually be or9ered _out pf the. court- but if he gives evidence thcit evidence is comp~tent, though Qbjection could be made to the weight of it. In that case the appellant w~s convicted on the evidence of a game r¥J,ger who had ,iolice powers and had investigated the case, pre::;ecuted the tppellant and also gave evidence in court. It waf/ argued $U,·that ease that the appellant wo.s prejudiced by the ev;.dence of the witness. 1'ha.t argument did not succiled. As rejards Civil ~itigation their Loras stated in the case cite~ above as tollows:- "•·••It does not appear that there is a.ny d~fference in principle in this respect between a witnees in a civil. case and a witness in a criminal~•&~e,.o ■ •We cannot ./'.'"l, find any provision in the r.,vidence Ordiaance of Uganda which disqualifies a person from givin6 evidence merely because he has been present in court when other witnesses were testifyinge That circumstanc~t.may, of course, materially affect the weight of his testimonyo . ,t,, 11 1 '£he position in 'l anzania is not different from that in Uganda as far as criminal cases are concerned. 'rhis court has held ia a number of cases (see ~.v. Christopher MakW1_J_a (1967) HCD 128 1 John ~heta v. H. (1967) HClJ 122, Adam o·h;ban v. Ho (1967)' HCD. J,.93) that the presence of a witness in 'cburt who has not tendered~'" ..• , . ~ ... •·•. /3 .' i, ') \" I .. t I - :'3 - evidetnce affects the weight to be give~· to .it and nbt h1•s . · -~~mpetence to testify. '.this was clearly stated by Kisariga, J •. . • , ,1 -·· " . • as he-then was, in .t< .. v. Jose;ehA.tselem 1977 LH.T ·n.20_:_ that the fact that a witness has been present during the testim9ny of the other .witness (es) does not make bis or her evidence .. ina.Q.mi.ssible.lt is a matter of ascertaining the materiality of the evidence anti the weight to be attached to it. All the cases that l have referred to deal with criminal cases. I have beeA u.n~ble to come across any civil case on the issue. But I find no good reason tor applying a different principle to civi]. case-s. I will therefore state that in a•• cas~s a wit:riess who has not given his testimony shoul.d. J1,0t be allowed to sit in court while other witnesses give their testimony -?1\~1 and that should such a witness sit in court an<i hear other· . \ . _witnesses testify his el!'idence should,· risvertheless, be 'i ·,.,,.ken ancl th.e court sh,ould de<.ide on . . - ~ . material1ty and weight to be accorded to it. In the ·. ·p :·sent caeeA. banga was in court and heard PW.:}. give evidence. fhe refusal by the learned magistrate to record J. ~is evidence is clearly, on the authorities cited above, wrong. The second issue is whether the learned trial magistrate would have held that the appellant occupied the suit premiset; since 1971 had she taken and considered the testimony of A. 'F, 8anga. hro !"Jkude le0rned counsel applied fo+, and was granted, ' leave for banga to testify on appeal and he appeared as Pw.3. kr. ~anga lPw.3) informed the court that he w&s employed by , the 'l'anzania Harbours Authority as the Prin~ipal Internal Auditor for 16 years from 3rd April, 1967 to ~uly, 1983. He testified that while with the •ranzania Harboure Authority in 1982 .he conducted an audit check to ident~fy clients •f the TanzaJ1ia .ltarb.ours .ll.u!;hority who defaulted in pa1ing rent. He state~ that among the clients he audited was the appellant. lie said the ap~ellant was a tenant of the Tanzania Harbours , Authority since 1970/71 and that appellant did not pay rent .I, f from 19710 .he said he contacted 1-tc.1..;,hid hgoto (Pv✓ .l who admitted• that the aJFellant had not paid rent and undertook in writing that he would pay the rent. 11 e had produced the agreement-to pay arrears of rent as .l!ixhibit P3 • .tie said he instructed Hashid Mboto to pay the rent to the finance Ma~ager and he alJ.eged that the appellant paid the rent and he saw arreceipt evideTJ..Ctng payment. he ida.n.tified exhibit Pl tendered at the t+ial as the receipt issued in respect of part of the errears of rent. he said he then wrote an audit report ••••• /4 ' 1· - 4 .. lieting all clients who were in arrears. of rent and instructed the Dhow Hegistra:.~ ~:; ';,.,1:C,ct rentals from all clients under him. He also directed the Yinance hanager to collect rent from clients from the main ~uayo he had produced the audit report as Exhibit P4. He further informed the court that he came to know the --~-~--~-- Nspondent whom he alleged to have seen when he was conduc.t-injf.,.. ... ~_,,,-r hie audit check. he denied that the respondent w~/s-·/tenant of / the Tanzania l:larbours Authority. he also cla_imed ,. that the respondent was not in the ledger books of the Tanzania Harbours A~thority. Un cross-exa.mination Sanga described himselt as a a ~ualified accountant. He stated that he checked the names Q! clients from ledger books and that the name of the respondent was not in the ledger books. he stated further that he ·wrote the letter to the Dhow rlegistrar and sent a oopy to the Finance Maziager. He denied that the respondent paid any rent. He admitted that the appellant had a trading licence only which had by then expired, and that th~ appellant had no merchants licence. lt has been submitted by Mr .. Mkude learneg. counsel for the appellant that the appellant was formed in 1971 and the ioeepondent was f0rm,::d :i.n '197:9 · · .":pc,ri- ..s !' ... "\. :;_ ,·; .l:.,~·-9 and that in 1971 the respondent c,ould not be a tenant aud that the ~laim by the DW.l that the respondent was paying ~ent fro~ July, 1971 has no legal or factual basis. Ue mai~iained that the respondent paid the arrears of rent in \982/~3 in order to defeat the rights of the appellants. On the other hand Mro Mbuya for the responl."U)nt submitted that Sanga (RW.3) did not produce any ledger or other documents to sh.ow that the appellant was the tenant of the suit premises. tie submitted that .!!;xhibit P3. tendere\i by Sanga {PW.3) had no ~yideptial valueo On the evidence there is no dispute as to when the appellant and the respondent were formed. The trial magistrate found which I also do find that the appel_la~t w&s formed in 1971. She dia f:i.nd .:,s I also do that the respondent was formed in 1979. She fou.,qd tbat the appellant was not in occupation of the suit premises since 1971 and.she based her decisions on the ground that the respondent was formed from its predecessors Tanzania Seamen, Boatsmen and Ship- workers Co-operative 8ociety and Kur~sini I,.p.bour Pool. There ., 1 - 5 - ie no evidence to support this finding Bven if it were true thie would not establish that the respondent Wes the tenant of the suit premises. ~either Yusuf Hamdani Mlanzi {DW.l) nor auy other witness has stated that Kurasini Labour Pool or Ta~nia Seamen, Boatsmen and Shipworkers Cooperative,WeJ'• tena~ts in the suit premises. What they have stated in evidence was that the .caid Kurasini Labour Pool disentegrated e.iid the respondent was formed. 'l'he evidence of S8 nge. clearly show that the name of the appellant appears in the ledger books o! tbe Tanz.ci.nia Harbours Authority as tenants. Mr. Mbuya has ijrged tbis court to reject the testimony of Sanga because he did not pro~uce the ledger books. with respect I am not per,ua~ed to do that. o~nga has given reasonable explanation ~, to why he would not produce the ledger books. He had stated that he had already left the employment with the Tanzania Harbours Autbori ty. 'l'he failure to produce the ledg~r books, under the ,ire~mstances, could not be said to be intentional. Sanga (PW.3) appears to me to be a frank anct honest person. He did not hesitate to disclose the reasons which led to his leaving employment with his employer. Furthermore the audit report did not concern the appellant alone. In all there are twelve clients who were in arrears. 'l:he name of the respondent did not appear or for that matter even the x.19n1,1 of l\urasini Labour Pool or Seamen, boatsmen anQ shipworkers under whom. the respoi:.dent is claiming does not appear in .tiXhibit P4. I accept the testimony of Sanga that the appellant was tenant of the suit premiees since 1971 and I have no doubt in my mincl that ·had the trial magistr~te taken and oonsidered the testimony of Sanga she would have held that the Gtppella.nt wG(s the tenant of the suit premises since 197L, In her juagment the learned trial magistrate observed that $xhibit Pl show that rent was paid only in May, 198?, that there was no evidence to show that rent was paid since 1971 and that there was no receipt to shew that arrears of rent amounting to Shs. 13,900/; had been cleared. This finding is the subject of g;i,o~ two of appeal which runs as follows: ... 11 •••• In view of the appellants exhibit Pl. evidencing payment of rent, the learned trial magistrate misdirected himself in fact in holding that the appellant was not the lawful tenant of the suit premieee." Mr. Mkude submitted that the leurned trial magistrate misdirected herself by confusing the question of tenancy with defaulting •• CJ ./6. - 6 - V I • payment of rent. ue argued that failure to pay rent may lead to eviction if the landlord decides to take such action and according to ··i-iw c3, hr. l"ikude argued, the landlord did not evict the appellant but instructed the Dhow Registrar to collect arrears of rent and that appellant paid arrears as shown i~ ~xhibit Pl and \UJ,UertoQk to pay by instalments the remaining arrears as shown i,n i.:;xhibit P.3. 1'1r. l"ibuya has submitted that the landlord had term:iJl~ted the tenancy agreement with the appellant. ne baaed bis arguments on the strenth of LXhibit D5. With respect tenancy agreement between~ landlord and a ienant cannot be determined by the landlord by accepting rent tro:n a woulu be tenant. The respoµ.dent was formed in 1979 • •~¥hibit D~ shows that the respondent had paid rent since 19?1. ~t @hould be noted that by 1971 the respondent had not been ( formed. That is question which the leurned trial magistrate o-y.ght to have considered as to why the respondent who was not a tenant in 1971 should pay arrears of rent when it was not formed. Becondly there is Exhibit P4. lt wa.s written on ,.. :.,th July, 1982 directing the dhow registrar to collect arrears of rent from the appellant. ihe dhow registrar is DW.3. He - stated at the trial thet he waB the sole collector of revenue. ~e did not collect the arrears of rent from the appellant. He collected the arrears of rent from the respondent. This brings me to .i:ixhibit 1.J.5. .J.lie first receipt No.15792.5 for ~hs. 5,000/= was dated 3rd December, 1982 and the last r.eceipt No.158178 for ~he. 400/= was d.ated 2nd F l"l bruary, 1983. .li'or nearly five months ~he dhow registr~r (DW.3) did not collect tbe arrears of rent from t)le appell,ant. ... e collected the arrears from the reppondent w~th~ a span of two months. I find it most irregular for the dhow registrar to collect arreare of rent from the respondent in fl,,8.grant disobedience to the instructions contained in ~xhibit r>4. Mr. 1v1kude has argued th&t the respondent had aleared the arrears of rent in order to defeat the right of the appellant~ I fu:J.y agree. '.l.'he record of the trial court ' . show that the case first came before the trial oourt on 2nd .lJac.em.ber; 1982. For :::-easone Dot apparent on recor.d the. case did, not proceed. Un the following day i.e. 3rd December, 1982 the respondent paid the first instalment of .Shs. 5,'000/::: as arrears· of rent. '.L'his taints the credibility of the respondent in paying Md DW.3 in accepting arrears of rent while the·appellant had qlready filed his case in court regarding the suit premises. In .••.• /7.• .. ·,I i "',, I' ... . (_ - 7 - ' \ tfiis case it is clearly shown that the landlord was prepared to receive •rrears of rent from the appellant as indicated by txhibits P3 and Pl. He w&s the tenant and that the learned trial magistrate was in error when she held that the appellant wes not the lawful tenant of the suit premtsea. this brings us to ground four of appeal. Xhe learned tr\a,l ~agiatrate rejected ~*hibit Pl. She stated that it wa~ not issued according to the procedure laid down. In her J~d5me~t the trial magistrate did not say what was the procedure .nor di(.i she refer to any evidence regarding the issuance of rooeipts evidencing payment. 1he only evidence of value comes f~om lsdor Ignas Massawe (DW.3) the dhow registrar. In his iVidence he stated that he was the sole revenue eollector. Aocordi,ng to his evidence revenue was collected by him and he iseued the receipt. ne did not say where he rem~tted the money after collecting it. PW.3 stated in his evidence before me that \he responsibility to collect revenue vests with the Finance M1-t1,ager and that all others collect the money on his behalf. He atated that he instruct~d the ap~ellant to pay the arrears to th~ Finance hanager. From the evidence on recotd I accept the testimony of PW.3 that the responsibility to oollect revenue \)elQngins to the Tanzo.nia .t-1 (;1.rl:>01Jrs Authority Yee ts with the ;~,,iance i•,anager and not with l.iW .3.. '..i.'his is clear~y shown in 00th ~xhibite Pl anu D5 for whoever received the l'Ont did so Oil behalf of the Finance Manager. I accordingly f:j.nd nothing ,o e,ggest even in the remotest sence that exhibit Pl was i~properly issued. Xhe next ground of appeal concerns the issue whether the .~spondent was occupying the suit premises under licence granted 01 Rashid Mgoto. In his evidence PW.l testified that the respondent eta~ted operating in 1981 and that he was elected ehairman of the reapopdent company. He stated further that as chairman of the r~epondent he was conducting his business using the appellant's p~emisee. lie said he was also working for the appellant. He 1aid that it was made clear to respondent that should PW.l cease 10 pe chairman of the respondent the respondent should vacate the premises • .tie stated that in the elections held in 1982 he was defeat(➔ d and the respondent then refused to vacate t.he premises. ~Wtl testified that they were allowed to occupy the suit premises. Aa to who actually allowed the respondent occupation of the suit ••••_/8. - 8 ... premises l invite you to hear ~W.l in his owp words as he told the trial magistrate in .e~ation Jn ~bief when he said · and I quote him:- " •••• We were allcwe d to be tenant cs in the port premises. The port Manager is the one who authoris~d our occupation. The admini§tr~tion officer of the port is the one who allowe~ our occupation and came Massawe to :-egt.eter ~ • 11 When he was er,oss exami,ned DW .1 stated that ~ani;larini Labour Pool Co-operutive.Sooiety· was formed in 1981 and that it had no fixed office. ..,.e denied that l?W.l was one who allowed the respondent the occupation of the suit premises. The learned tfial magistrate found that the respondent had a l~wful permit gr,nted by the Port ?1anager. l do not agree with thut fi~Q.in~ · The respondent did - not state whether the permit was oral or in writing. It it were - in writing that permit should have been proo.uced, I can hardly conceive the possibility of an institution like the Tanz~nia Harbours Authority granting tenancies to cliente orally. Again • ;\JW.l seems to have contradicted himself as to the person who"' permitted him to occupy the euit premises. He mentioned the Fort Nana~er and the administration officer. Both could not bave ~r~nted permission for the same premises. There is the other point which DW.l had stated that the respoJJ,dent had no fixed office. ~W.l also stuted that he w~s granted the occupation of the suit premises after acquiring and paying for a trading business and merchant licen9e5 w~ich evidence the trial magistrate seemed to hava accepted. I think these are two different issues. 'l'he acquisition of and payment for licences has nothing to do with the question of tenancy 'between the appellant and the Tanzania .tlarbours Authority,. There w~s evidence th~t the appellant had been tenant of the suit premises since 197L 'l.'his is clearly shown in Exhib_;i.ts P3 and 4~ 'l'he port man~ger could not, without committi:p._g a breach of tenancyt alloe~ted the suit premises to the respondent• It wc;1.s .1;{6'.shid Mgoto who p'ermitted the ree;pondent orally to oocupy the suit premises and not the l?op't Manager. I 1 accordingly so find. In the rest1-lt and for the J:'easons stated above the appeal is all()wed. The judgment and d~cree 9t the l.Qwer court is set aside. · '.l'he appel,,lant is to have his CO@ts ~ll this appeal and ••: . . . . . ' p ..• /9 •