CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MKUYE, 3.A.. RUMANYIKA. 3.A. And MDEMU. 3.A.1) CIVIL APPEAL NO. 282 OF 2022 Reference No. 20220629000431012 MAASAI PASTORALISTS FOUNDATION (MPF)......................... APPELLANT VERSUS VIVIAN APOLINARY SOKA (Administrate of the estate of the late APOLINARY SOKA (Deceased).............................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Kamuzora, J-) dated the 21st day of February, 2022 in Land Case No. 17 of 2019 JUDGMENT OF THE COURT 14thFebruary & 13th March, 2025 MKUYE, J.A.: In this appeal, the appellant, Maasai Pastoralists Foundation (MPF) is appealing against the Judgment and decree of the High Court of Tanzania at Arusha in Land Case No. 17 of 2019 dated 21st February, 2022. The appellant is challenging the legality of the eviction conducted by the respondent and the detention of her assets as well as the trial Judge's failure to award her the reliefs claimed. Before embarking on the merit of the appeal, we find it apposite to preface our judgment by narrating a brief background of the matter, which goes thus: The appellant is a Non-Governmental Organization registered under the Non-Government Organizations Act, No. 24 of 2002. The respondent, Vivian Apolinary Soka, is an administratrix of the estate of the late Apolinary Soka, her father, who passed away since 2010. On 12th April, 2013, the appellant and respondent executed a lease agreement (Exh PI) in respect of a house situated on Plot No. 356, Block Y, House No. 26 Ngarenaro. Under the said lease agreement, the appellant was required to pay a monthly rent at the tune of TZS. 320,000.00 which was to be paid annually in advance at all times of tenure. The tenure of the agreement was to start from 15th April, 2013 to 14th April, 2014. It would appear that, the parties communicated and agreed to extend the period of the lease agreement for one year but subject to the terms and conditions of the original contract. Despite such extension, the appellant continued to pay rent, though by installments until on 27th May, 2019, when the appellant was evicted from the demised premises. The respondent took possession of the leased premises and allegedly, detained some of the appellant's assets. Resentful by the move taken by the respondent, the appellant instituted a land case at the High Court of Tanzania in which she prayed for a judgment and decree against the respondent with the following orders; a declaration that the respondent's malicious act of eviction and retention of assets of the appellant in the demised premises was illegal, irregular, null and void abinitio and was in violation of the appellant's rights; a declaration that the respondent's act of eviction, continuing retaining assets and shutdown of the community programs operations managed by the appellant is a breach of lease agreement and trespass to chattels of the appellants; compensation of specific damages in the sum of TZS. 468,734,000.00 as particularized in para 22 of the plaint; compensation of general and punitive damages in excess of TZS. 105,000,000.00 from the respondent to compensate the appellant due to the respondent's malicious act of wrongful eviction, continuing detaining of assets of the appellant and causing a complete shutdown of community programs operations managed by the appellant, inconveniences, loss of opportunities and lowering organizational reputation; costs and all expenses including but not limited to legal fees incurred by the appellant in pursuing the suit together with interest at commercial rate; interest on decretal sum and costs at the Court's rate of 18% per annum from the date when the cause of action arose, judgment and decree thereafter until full and final payment; costs of the suit; and any other relief(s) the Court would deem fit, just and equitable to meet justice. On the other hand, the respondent, except for the fact that the parties executed the lease agreement, denied the appellant's claim in toto. At the High Court, four issues were framed as follows: 1) Whether the eviction o f the appellant from the rented property was unlawful. 2) Whether the respondent detained assets belonging to the appellant without colour o f right 3) Whether the detention o f the said properties resulted into complete shutdown o f the operations o f the appellant. 4) To what reliefs were the parties entitled. Upon having heard the evidence from both parties, the trial court found that appellant's eviction from the demised premises was lawful because the appellant was not legally occupying the premises under the terms of the lease agreement. Nevertheless, it also ruled out that the respondent had detained properties belonging to the appellant which are the fireproof safe, one motorcycle, one photocopy machine, one printer and cheque books for Exim Bank and CRDB Bank. The trial court, therefore, ordered the respondent to return the said properties to the appellant. The appellant was not amused with that decision. She has, thus preferred the appeal to this Court basing on ten (10) grounds of appeal which during the hearing of the appeal, were clustered into four issues which will guide us in our determination. The said issues are as here under: 1) Whether there was a lease agreement between the appellant and the respondent. 2) I f the answer to issue No. 1 is in the affirmative, whether there was a breach o f the lease agreement and who was at fault. 3) Whether the eviction was done lawfully. 4) Whether advocate Mhyeitah represented the respondent while having a conflict o f interest in the matter. When the appeal was called on for hearing, Ms. Miriam Mitume, learned advocate, appeared representing the appellant whereas the respondent had the services of Messrs. Ally Abdallah Mhyeitah and Simon E. Mbwambo, learned advocates. Both parties adopted their written submissions, they had filed earlier on, to form part of their oral submissions. We begin with the issue whether there was a lease agreement. It was Ms. Mitume's argument that, the appellant and respondent on 12th April, 2013 had entered into a one-year lease agreement on Plot No. 356 Block Y No. 226 Ngarenaro Arusha at a monthly rent of TZS. 320,000.00 payable upfront annually. That, the rent was to be paid in any of the three accounts of Sweetbert Apolinary Soka No. 01J2012138200; Edgar Apolinary Soka No. 01J2093132300 and Vivian Apolinary Soka No. 0152252299500. Ms. Mitume argued that, although the one-year lease agreement expired on 14thApril, 2014, the appellant continued paying the rent up to 21st May, 2019 which in essence, implied that the agreement was renewed automatically. The learned counsel contended further that, on 27th May, 2019 the respondent evicted the appellant from the demised premises which was six days after the last payment of rent. On the other hand, the respondent conceded that there was a lease agreement between the parties covering the period between 15th May, 2013 to 14th May, 2014 which had no problems at all as it was certain. However, Mr. Mhyellah argued that, after the expiry of the said agreement, the appellant decided to continue with occupation of the premises without any agreement. On top of that, she improvised her own mode of rent payment and paid it according to her wishes. Incidentally, the learned counsel observed that, the appellant conceded by saying that on 21st May, 2019 she paid all the arrears which was a clear admission that the appellant was in arrears. On our part, we agree with both parties that there was a lease agreement that was executed by the parties on 12ndApril, 2013 which was to come into force on 15th April, 2013 as shown under clause 2.1 of the lease agreement (Exh. PE 1) (see page 34 of the record of appeal). The said agreement was a one-year agreement which was to expire on 14th April, 2014 and according to the same clause, the rentofTZS. 320,000.00 was to be paid annually in advance. Besides that, the lease agreement, provided that a party who wished to renew or to terminate the agreement was required to issue a 90 days' notice of renewal of lease agreement or 30 days' notice of intention to terminate the agreement. It is evident that upon expiry of the said lease agreement there was no any written lease agreement between them. It is argued by the appellant that, though the lease agreement might have expired after one year as per the lease agreement, the same was extended through email communication to that effect, the fact which was supported by the respondent that there was extension of a one year lease as per the email of Sweerberth Soka. It is also argued that, the fact that the appellant continued paying rent which was accepted by the respondent, was an indication of an implied extension or renewal of the lease agreement. It is common ground that the lease agreement expired on 14th April, 2014. Also, it is not disputable that despite the expiry of the first lease agreement, the appellant continued to occupy the demised property and to pay rent through the alleged accounts as shown in Exh. PE2 collectively. However, the appellant did not pay it in accordance with the terms stipulated under clause 2.1 of the prior lease agreement, as expected, requiring the same to be paid annually in advance. The wording of the said clause specifically provides for among others the following: 2.1 In consideration o f the leasing stated hereinabove, the lessee shall pay the monthly rent o f 320,000/= (three hundred and twenty thousand only) to be paid annually in advance at all times commencing from the 15th April\ 2013 to I4 h April, 2014. Instead, the appellant paid rent by instalments as she wished and she paid the last instalment on 21st May, 2019 as shown in Exh. PE2 collectively. It would appear that the respondent acquiesced such state of affairs as she had communications and negotiations through mobile phones on the change of rent rate and the period to be paid as well as the mode of handing over the premises to the respondent as per various correspondences between Lukumay, Edgar and Vivian. (See pages 60 - 90 of the record of appeal). Be it as it may, regardless of whether there was extension of one year as testified by the respondent, still, there was a lease agreement. In this regard, we find that there was a lease agreement both written and implied between the appellant and the respondent and this answers the first issue in the affirmative. The second issue is whether there was a breach of the agreement, and who was at fault. The genesis of this issue takes its root from the plaint where the appellant claimed that the respondent breached the lease agreement by her unlawful entry into the leased premises and evicting the appellant therefrom. On the other hand, the respondent claimed that it was the appellant who breached the terms of the lease agreement due to: one, her failure to notify the respondent of her intention to renew the agreement after the expiry of the lease agreement of 2013 to 2014, as per clause 5.2 of the lease agreement; two, her refusal to vacate the leased premises after the expiry of the agreement; and three, continuing paying rent in instalments contrary to the agreed terms of the agreement of paying it annually in advance or before the occupation. As alluded to earlier on, it is common ground that there was a lease agreement executed by the parties which covered the period between 14th April, 2013 to 14th April, 2014 which essentially had no problems as its terms and conditions were complied with as was testified by both appellant and respondent. After the expiry of the said agreement, there was no other formal agreement executed save for communications, through emails with Sweetberth Soka on the issue of extension of time of lease agreement. There was no formal 90 days' notice of the appellant's intention to renew the lease agreement or the response from the respondent as per clause 5.2 of the lease agreement Neither was there a written 30 days' notice by the respondent to terminate the lease agreement as per section 104 of the Land Act or clause 5.1 of the agreement. Although, there is no clear communication made by parties regarding the renewal of the lease agreement, it is crystal clear that the appellant continued to pay rent up to 21st May, 2019 when the last rent payment was made as was testified by Vailet Daniel (PW2). According to Exh. PE 2, rent was not paid as per the terms stipulated under clause 2.1 of the agreement. Instead of paying the monthly TZS. 320,000.00 annually in advance of the new tenancy, the appellant paid it in instalments. For instance, as per the record, some of the rent payments from 2014 to 2019 were effected as follows: on 1st April, 2014 paid 355,000.00 which did not cover April 2014 to April 2015 as expected; on 25th June, 2016, TZS. 2,000,000.00 was to Sweetberth; on 4th August, 2016, TZS. 630,000.00 was paid to Edgar; on 19th April, 2017, TZS. 10 1.400.000.00 was paid to Vivian; on 31st August, 2017, TZS. 350,000.00 was paid to Vivian; on 8th November, 2017, TZS. 2,100,000.00 was paid to Vivian; on 13th October, 2017, TZS. 350,000.00 was paid to Vivian; on 24thJuly, 2018, TZS. 700,000.00 was paid to Vivian; on 19thOctober, 2018, TZS. 700,000.00 was paid to Vivian; on 12th December, 2018, TZS. 700.000.00 was paid to Vivian; on 26th April, 2019, TZS. 500,000.00 was paid to Vivian; and on 30th May, 2019, TZS. 1,450,000.00 was paid to Vivian. Although the payments referred to above may not reflect all the payments and the total amount, we have mentioned them so as to: one, give a clear view that rent was paid in instalments and not in annual basis in advance as was required by the agreement. Two, had rent payments been made annually in accordance with the lease agreement, there would have been only six receipts covering the whole period from 2013 - 2014 to 2018 - 2019. But there were many receipts with different amounts of money paid. Three, the payments made were uncertain as they did not show which periods such payments were covering. That notwithstanding, PW2 admitted that failure to pay rent in advance as was required, amounted to the breach of lease agreement. With this revelation, we ask ourselves, if the respondent acquiesced the appellant's continued occupation in the suit premises, can it be said that the appellant was in compliance with the lease agreement. Our answer is no. We say so because, in terms of clause 2.1 of the lease agreement, the appellant was required to pay the monthly rent in advance on annual basis for the new tenancy terms. For ease reference, we reproduce it as hereunder: "In consideration o f the leasing stated herein above the lessee shaii pay the monthly rent o f TZS. 320,000.00 (Three hundred and twenty thousand only) to be paid annually in advance at all times commencing from 15th April\ 2013 to 14thApril, 2014." [Emphasis added] It was, therefore, the duty of the appellant to satisfy the court that the amount of rent she paid was paid in accordance with the terms prescribed in the lease agreement but that she did not do. To the contrary, it is crystal clear from the evidence of PW2 and as per receipts admitted as Exhibit PE 2 collectively that except for the rent paid in 2013 based the lease agreement, the appellant did not comply with clause 2.1 of the agreement as she paid rent on the mode improvised by herself. The fact that the rent was paid in instalments is not only confirmed by the pay in slips (Exh. PE 2 collectively) but also by the testimony of PW2 who testified to be the one who effected such payments. Apart from that, the rent payments made do not indicate if they were to cover the period which the respondent evicted the appellant or not. Nevertheless, PW2 conceded that, the act of paying rent by instalments was contrary to the prescribed terms and therefore it amounted to the breach of the lease agreement. On the other hand, the respondent was very clear that the rent paid was for arrears, the fact which the appellant did not contradict. Now, looking at the totality of the evidence, we find that the lease agreement was breached by none other than the appellant. The breach centred on two grounds: One, failure to pay rent as agreed; and two, rent paid being uncertain if it was for arrears or to cover even the evicted period. This, therefore, answers the 2nd issue in the affirmative. The next issue is whether the eviction was done lawfully/whether eviction was lawful. Ms. Mitume argued that, the eviction of the appellant was unlawful as it did not comply with the law. She pointed out that, although the respondent claimed to evict the appellant because she was in arears in payment of rent, she did not explain the amount owed and for which period. The learned counsel also challenged the eviction for having been done in contravention of section 104 of the Land Act Cap. 113, R. E. 2019 requiring the lessor to give a 30 days' notice to the lessee, and also as provided for under clause 5.1 of the lease agreement. She also assailed the said eviction to have been carried out by unauthorised persons other than the Court brokers under the court's order as per section 102 (3) of the Land Act. Apart from that, the learned counsel complained about the respondent retaining the appellant's assets/properties for reason of levying distress without the court's order to that effect. In rebuttal, Mr. Mhyellah contended that, the eviction was not unlawful as it based on the lease agreement. He argued that, after expiry of first lease the appellant decided to continue using the premises without any lease agreement and she improvised her own mode of payment of rent. To show how the appellant was at fault, Mr. Mhyellah argued that, the appellant admitted that rent was paid by instalments and she postpaid it. Admittedly, evictions are governed by the Land Act. In particular, under section 104 of the said Act, the lessor is required to issue a 30 days' notice to the lessee of his intention to terminate the lease for breach of covenant. The said provision states as follows: "104.-(1) Where a lessee is in arrears with the rent and has been in arrears for not less than thirty days, the lessor may serve on that lessee a notice o f intention to terminate the intention to terminate a lease for breach o f covenant lease." The spirit of this provision is also reflected in Clause 5.1 of the lease agreement. Clause 5.2 of the agreement, also places an obligation to the lessee (appellant) to issue a 90 days' notice to the lessor (respondent) should he wish to renew the lease agreement and the lessor (respondent) to respond to within two working days as follows: "5.2 Lessee shall show intention to renew this lease agreement upon issuing a 90 days' notice o f such renewal prior to the cessation o f this lease agreement and the lessor shall have a discretion to extend the same or otherwise by issuing a notice to that effect immediately upon receipt (not less than two working days after receipt o f that notice) o f the lessee's notice". In this case, it is crystal clear that the respondent did not give a 30 days' notice of her intention to evict the appellant but she offered an explanation for that. Neither did the appellant issue a notice of his intention to renew the agreement to the respondent. Besides that, there was no court's order for carrying out the eviction, neither was it conducted by brokers; and there was no court order of distress for rent as per section 102 (3) of the Land Act for retaining the appellant's assets as security for unpaid rent. It should be borne in mind that, the appellant from April 2014 was in occupation of the premise without any lease agreement. According to Exhibit PE2 collectively, it is clear that the rent was paid in instalments in disregard of Exhibit PEI which explicitly stipulated that rent is to be paid annually in advance at all times, meaning all the time of renewed agreement. It is our considered view that, as the High Court rightly found, failure by the appellant to pay rent upfront or before the start of the new term had the effect of non-renewal of the agreement. Even if the provisions of clause 5.2 of the lease agreement require the appellant (the lessee) to give a 90 days' notice of intention to renew the agreement and the two days' notice of the respondent (the lessor) to reply to the appellant, we think, such requirement could not be applicable in the circumstances of the case. Moreover a 30 days' notice of termination of the lease in terms of section 104 of the Land Act or Clause 5.1 of the agreement would not have applied for a very simple reason that at that particular time, the appellant was a trespasser. In other words, failure by the respondent to issue a 30 days' notice of intention to terminate the lease agreement in terms of section 104 of the Land Act or clause 5.1 of 16 the agreement, as argued by Ms. Mitume, cannot entitle the appellant to be heard complaining that she was unlawfully evicted from the demised premises without notice because she was a trespasser. On this stance, we are fortified by our decision in the case of Lawrence Magesa t/a Jopen Pharmacy and Another v. Fatuma Omary and Another, (Civil Appeal No. 333 of 2019) [2022] TZCA 605 (6 October, 2022), TanzLII where the Court was faced with almost a similar scenario and it was held as follows: "Even if, for the sake o f argument, we assume that the appellant had not prior notice, as he claimed, still it is our settled view that following ' expiry of his lease agreement on 1st February, 2015 he was required to vacate the demised premises, as from 2ndFebruary, 2015 he was a trespasser and in illegal occupation of the premises. As such, he was not entitled to any notice before eviction." [Emphasis added] Also, in the case of Princess Madia (1998) Ltd v. Remency Shikusiry Tarimo and Others (Civil Appeal No. 242 of 2018) [2021] TZCA 249 (9 June 2021): TanzLII where there was almost a similar situation, the Court stated as follows: "... Since it was proved that the appellant was a trespasser, she had no right to benefit from her wrongful act. At worst the appellant assumed the risk arising from her unlawful occupation in the premises. Just as she was not entitled to any notice before eviction, she had no right to claim any compensation from the forceful eviction." In this regard, guided by the above authorities it is our finding that, since the appellant as from 2014 was in occupation of the demised premises without a renewed agreement, she was a trespasser, and therefore for that reason, the eviction was not unlawful. This issue is therefore, answered in the affirmative. The other area of complaint is that, after the eviction of the appellant, the respondent retained some of the appellant's assets in order to recover outstanding rent although there was no court order issued to that effect as per section 102 of Land Act; and that the right to levy distress is by using court broker. On that basis, the learned counsel argued that the respondent had no such powers to retain assets of appellant. Ms. Mitume went on arguing that, the respondent admitted to have retained fireproof safe, one printer, one photocopy machine, motorcycle and check books. She argued that, this happening caused a great loss to the organization. She argued further that, although after mediation the High Court ordered for the released of the said assets, the said order was not complied with. In response, Mr. Mhyellah submitted that the respondent kept the said assets so that she could recover the outstanding rent. He did not, however, respond on the issue of distress since it was not raised at the High Court. In the first place, we agree with Mr. Mhyellah that, the issue of distress never featured nor was it dealt with in the High Court. The issue of detention of the appellants was well dealt with at the High Court as one of the issues which were framed. It is without question as was testified by DW2, that the respondent retained the printer, photocopy machine and motorcycle as security for unpaid rent excluding the fireproof safe and check books as was claimed by the appellant. There was an issue of breaking the fireproof safe but it did not materialize for lack of the court order to that effect. Be it as it may, we think by the nature of this case, this matter has been dealt with elsewhere in this judgment. Since the appellant was a trespasser, she is not entitled to claim anything arising out of the eviction that was carried out lawfully. The appellant continuing occupation of the premises was unlawful. Since she stayed there as a trespasser, we think that she cannot be heard raising this issue at this stage. Last but not the least, is the issue that Mr. Mhyellah has a conflict of interest in this matter. It was Ms. Mitume's argument that, despite the fact that advocate Mhyellah drew up the lease agreement as shown at page 85 of the record of appeal, he is the one who represented the respondent at the High Court and now in this Court on this appeal. According to her, this was against the principle of conflict of interest as provided under the Advocates (Professional Conduct and Etiquettes) Regulations, 2018 (GN. No. 118 of 2018). In reply, Mr. Mhyellah countered such claim. Much as he agreed to have been involved in preparation of the lease agreement in 2013, he contended that it expired since 2014 without any problem. From then, the parties were no longer in any agreement and therefore he had nothing to do with it. Having perused the record of appeal, we agree with both learned counsel that, advocate Mhyellah was involved in this matter at the execution of the lease agreement. This clearly shown at page 85 of the record of appeal, as Mr. Mhyellah prepared the said lease agreement and attested it at page 89 of the record of appeal. Ordinarily, under this 20 situation, had it been that the lease agreement was at issue, he would have been a material witness for any of the parties as he witnessed its execution. We, however, note that in the course of trial at the High Court, this issue cropped up as a point of preliminary objection and upon hearing from both parties, the High Court Judge overruled it on among other grounds, that: One, the lease agreement prepared and attested by Mr. Mhyellah was not disputed in court as the parties agreed to it. Two, none of the parties indicated to call him as her witness to testify on the lease agreement and therefore, his possession of confidential information is just a speculation. Three, the issue before the trial court was based on claim of unlawful eviction and detention of properties and not on lease agreement. Four, there was no evidence showing that the appellant engaged Mr. Mhyellah to represent her or to draft documents related to lease agreement. Five, Mr. Mhyellah has been appearing in this case since 2020 though the case was instituted in 2019, long since the expiry of the lease agreement. We find that the reasoning of the learned High Court Judge is sound and we subscribe to it. Therefore, we answer the issue in the negative. All in all, as alluded to earlier on, we are satisfied that the agreement had been breached since 2014 due to the appellant's failure to comply with it in the mode of payment of rent. As she continued to occupy the demised premises without lease, she was a trespasser and therefore even her eviction cannot be faulted. In view of what we have demonstrated above, we do not find any reason to fault the learned trial Judge's decision. In the event, we find that the appeal is devoid of merit and it is accordingly, dismissed with costs. DATED at DAR ES SALAAM this 6th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13thday of March, 2025 in the presence of Ms. Miriam M,itume, learned counsel for the Appellant and Mr. Simon Mbwambo, learned counsel for the Respondent vide video link from the High Court of Tanzania at Arusha, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL