20121206 TZHC Dar es Salaam

. ~- ...... ,. r . .. .. •. .. ~ . ..... , ... .- <·= .~ . . . ~ <~~ -.. :: ,.:,' ... }·~• . . . . -~ .,t.:. .....~:....: •.- .... <il .. ::...~ :.·· • ~~ ... IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 119 OF 2011 (From the Decision of the District and Housing Tribunal of ILALA District at ILALA in Land Case No. 10 1 of 2 0 11) MAIMUNA MUSSA ........................................ APPELLANT VERSUS THE REGISTERED TRUSTEES OF UWT (UMOJA WA WANAWAKE TANZANIA) ...... RESPONDENT JUDGMENT FIKIRINI, J: The appellant Maimuna Mussa aggrieved by the decision of the Ilala District Land and Housing Tribunal dated 8 th November, 2011 appealed to this Court, having only one ground of appeal. The appeal was resisted by the respondent. In arguing the appeal the parties through their respective counsels Ms. C.B. Rwechungura for the 1 ( appellant and Mr. Odhiambo Kobas for the respondent filed written submissions. The main contention was whether the chairman was correct in concluding that the Application No. l0lof 2011 was "res-judicata." It was Ms. Rwechungura's argument that the application was not "res-judicate", since the causes of action in Application no. 198 of 2005 and Application No. 101 of 2011 were different and in both instances the parties were claiming under different titles. Therefore issue of "res- judicata" pursuant to section 9 of the CPC, Cap 33 R.E. 2002 was not applicable. Reacting to that, Mr. Odhiambo argued that the Application No. 101 of 2011 and prayers contained therein were directly and substantially similar to those in the former application No. 198 of 2005 between the parties in the present application and therefore in contravention to the provisions of section 9 of the CPC, Cap 33 R.E. 2002. In support of his argument Mr. Odhiambo cited the cases of Mandavia vs Singh [1965] EA 118 at 121 and Umoja Garage Vs. NBC Holding Corporation [2003] TLR at 339. Before I proceed further let me look at section 9 of the CPC which has been referred by both counsels, which states: "no court shall try any suit or issue in which the matter directly and substantia-lly in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim 2 litigating under the same title in a court of competent jurisf:1.iction to t,-y such subsequent suit or the suit in which such issue has been subsequently raised and suit has been heard and finally decided by such court." Looking at the present appeal, first, there is no dispute at all that the Application No. 198 of 2005 was between the parties in relation to tenancy agreement. The matter was heard and decided by the tribunal with competent jurisdiction. From the tribunal's decision parties were ordered to enter into an agreement which was not less than 5 years, to allow the appellant to recover costs incurred in developing the property which was subject matter in the said application. The appellant seemed content with that decision since no appeal was preferred. Moreover, the appellant was quiet all this time until 31 st May, 2011 when she preferred the Application No. 101 of 2011 before the District Land and Housing Tribunal. Second, the 5 years lease agreement which was entered on the 20 th December 2008 commenced retrospectively from 8 th September, 2006. The said lease agreement was come to an end on 8 th September, 2011. The appellant signed the lease. It was therefore common knowledge that in the event there was .no renewal this would be the end of the landlord/tenant relationship between the parties. Since the appellant did not raise any concern it-would naturally be assumed she was content. In my view there was no problem with such arrangement as long as each party knew where they stand. Third, when it was approaching expiry time the respondent dully notified the appellant on the 15 th February of coming 3 l r to an end of the lease agreement signed covering 5 years as advised and ordered by the tribunal in Application No. 198 of 2006. The notice issued had three things, one, that the lease agreement shall come to an end. Two, that the appellant was required to pay. the overdue rent. Third, that upon expiry of the tenancy agreement she should peacefully vacate the premises. The appellant did not contest the notice by either approaching the respondent with the intention of soliciting for renewal nor extension of time. She as well did not bother to give explanation as to the reasons why, how and when the overdue payment of rent will take place. I believe the appellant had the opportunity to meet with the respondent had she intended to renew the lease agreement or raise any issues she had but opted not or at least there was no such evidence on record to counter my belief. The notice was therefore in my view not a problem and from the appellant's reaction one would expect she was satisfied and ready to vacate upon expiry of the lease agreement which was by then about 6 months away. In May 2011, the respondent put an advertisement on the Daily News paper seeking for interested investors to submit their proposal for developing the suit premises on joint venture basis. This is when the problem arose. It was the appellant's contention that the advertisement has caused her economic loss, damages as well as psychological problems. This is because the agreement in place had not yet expired and the appellant had invested heavily both in terms of energy, time and financially and was yet to recover her· input from the said investment. She further contended that the advertisement has equally caused her trouble as 4 tenants in the suit premises had refused paying rent and some have gone to the extent of threatehing to institute a case against her due to the respondent's act. My take on this is the lease agreement between the parties was clear that it would one day come to an end. And in the notice issued in February it was a reminder that the lease agreement was about to come to an end. The appellant was fully aware of this since the five years lease would come to an end. The appellant does not dispute this fact. Since renewal was not an automatic thing, the appellant was expected to approach the respondent if she had any issue regarding coming to an end of the existing lease agreement. This was irrespective of the respondent's letter dated 15 th February, 2011 indicating not to be interested in renewing the agreement. Nonetheless, the appellant never approached the respondent seeking the renewal. She instead resorted to the tribunal and filed Application no. 101 of 2011, seeking for the tribunal's intervention and declaratory orders that she was the lawful and legal tenant of the respondent and other orders and reliefs. It is my considered opinion that in the existence of clear lease agreement, the appellant cannot invoke or force the situation which did not exist in their tenancy agreement which had been dealt with already in the Application No. 198 of 2005. In addition, the advertisement on the Daily News did not in my view mean the appellant had to vacate the premises right away but on the date stated in their agreement which was 8 th September 2011. Knowing that a tenancy agreement was coming to an end and not interested in the renewal and expecting the respondent not start advertising for new tenants or investors as shown in this matter was in my view unfair and unjust to the respondent. After all the advertisement did not exclude the 5 appellant, she could as well put her bid if interested and not want . to retain the tenancy and investors status through the back door. Otherwise it was unrealistic for the appellant to expect the respondent to just sit there and wait for the appellant to decide when to bring to an end the already in existence lease agreement. It is my well-constructed view that the decision in the Application No. 198 of 2006 dealt with almost every aspect · being raised by the appellant in the Application No. 101 of 2011. First the tribunal with competent jurisdiction dealt with the matter. Of which they advised and ordered for five years lease agreement so that the appeal could recover costs incurred for the development of the property. The appellant did not object nor appealed that decision. Second, she was allowed to continue being tenant with authority to sublet/lease the premises· at market value. Third, she was to pay rent to the respondent at 50% and retain the other 50% to offset the costs incurred in developing the premises. This was to be for five years from 8 th September 2006 to 8 th September 2011. Despite all these, the appellant was without explanation in arrears of rent to the respondent. This on its own was a breach of lease agreement. In other situation this could have bring to an end the existing agreement. However, this was not the case in this situation. The appellant was just reminded on that when she was issued with a notice in February. Furthermore, the fact the appellant was aware of her limitation in the said lease agreement she was in ~y view expected to be cautious on how she was entering into lease agreements with the tenants she had. And if she signed 6 .. .~"' . . _.~... . ~-~~;~~-i~-. ~-·. ·. 1 ·-'. , . . lease agreements beyond her own lease agreement period, she was thus herself to blame. There is in my view no embarrassment or damages or psychological problem had been occasioned to the appellant by the advertisement put on the Daily News paper three months before the appellant's lease agreement come to an end. I am saying so, because the appellant was fully aware of the life expectancy of her lease agreement. She ought to have been prepared. Similarly, the appellant as far as this matter is concerned cannot allege economic loss since she was given five year so that she could recover the costs incurred in the development of the suit premises. Moreover, she was never asked to vacate the premises before the expiry of her tenancy agreement but after. Since all these were discussed and attended to in the Application No. 198 of 2005,. I sincerely do not see how she can come about and claim for the energy, time and money invested while·· all that has already been dealt with. As I stated earlier the appellant seemed content with the arrangement and was quiet all this time, otherwise she would have appealed the decision, but did not. It is on the above I strongly feel this matter is "res judicata" and the chairman was correct in deciding so. In supporting my analysis above, I based on the principles elucidated in the three cases; two cited by the respondent above, that of Umoja Garage and Mandavia's case (supra) and one by me that of Gerald Chuchuba vs Rector, Itaga . Seminary, [2002] TLR 213, High Court Tabora. The principle in Mandavia was in my view a clear reflection and interpretation of the situations like the one before this 7 court. Mandavia being the oldest among the three, I thus prefer relying on it. This is what was stated: "In determining whether or not the case is barred by "res-judicata", the test is whethf?r the plaintiff in the second suit is trying to bring in another way, in the form of new cause of action a transaction which has already been presented before a court of competent jurisdiction in an earlier proceedings which have been adjudicated upon". In my view the appellant is exactly trying to bring in another way the matter which had already been determined. All what the appellant had raised had already been determined by the tribunal of the competent jurisdiction in Application No. 198 of 2005. The appellant's proper right would have been an appeal had she been not satisfied with the decision. Otherwise she cannot ask this court to enforce her tenancy and investment agreement in the respondent's property while the lease agreement had already expired. In addition, for her to claim valuation of the property and other reliefs including damages was in my view, first not covered in the previous agreement, and second, this will mean the parties are not bound by their own agreement they concluded and signed. In do not think that is what is provided in the law of contract. Abandoning the already in place agreement ~d want a new non- existant one to me is a whole new thing which in my view had no legs to stand on. The appellant can at most bid as any other bidder and not otherwise. In light of the above, I am without doubt that the Application No. 101 of 2011 is "res-judicatci' and hence 8 this appeal has no merit and I therefore dismiss it with costs. It is so ordered. Judgment Delivered this 06 th day of December 2012 in the presence of Ms. C.B. Rwechungura for the Appellant and Mr. 0. Kobas for the Respondent. P.S. FIKIRINI JUDGE 06TH DECEMBER 2012 Right of Appeal Explained. P.S. FIKIRINI . JUDGE 06TH DECEMBER 2012 9 __,_ 1, [ , j ', ' f I ',.. , ;5 ,.-l", / ~/ ·\.t.:-·•·' .;.-·.;,._- ···-:~ ~ 'J r ~-., '. ~ . :,:·-:-t_·". . -~ !' ~::· j I l . .. ~- '1,_.' ; ~ .',. • l ~- '.. ; -;4· I l ,,' ., j j• I l. ··,,_- I i 1 j I i:·_. ,, I I ~ i' . I i j \' ~ ·- I,l