LAND APPEAL 16323 scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND APPEAL CASE NO. 16323 OF 2024 (Originating from the District Land and Housing Tribunal for Kinondoni at Mwananyamala Land Application No. 93 of2022) J MARY ROSE MGEMA...................................................... APPELLANT VERSUS MOFED TANZANIA LIMITED...................................... RESPONDENT JUDGMENT Date of last Order: 18/10/2024 Date ofJudgment: 31/10/2024 5;r; I? LALTAIKA, J., The Appellant herein MARY ROSE MGEMA is dissatisfied with the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala (the DLHT) in Land Application No. 93 of 2022. She has appealed to this Court by way of a Petition of Appeal containing the following (partly paraphrased) grounds: 1) The trial tribunal erred both in fact and law for failure to analyze and evaluate the apparent fact and evidence, leading to miscarriage ofjustice. 2) The trial tribunal erred in fact and law which led to miscarriage ofjustice, by failure to comprehend the gist of the terms of the compromise. 3) The trial tribunal erred both in fact and law for basing the decision on speculation instead of solid evidence on record. Page 1 of 21 4) The trial tribunal erred in fact and law by failure to abide with the settled principle in civil litigation that, parties are bound by their pleadings. 5) The trial tribunal erred in law and fact for failure to construe the fact and evidence that, by respondents' payment of two months' rent, due to holding over, the Appellant is entitled for unpaid rent for the rest of the period left until the cut-off date as agreed in the Deed of Compromise. When the appeal was called on for mention Messrs Mganga Paul and Eliezer Msuya, learned Advocates, appeared for the Appellant and Respondent respectively. Parties opted for hearing by way of written submissions. With a nod of approval from this Court a schedule to that effect was ordered. It appears in the records that while Mr. Paul drafted the documents for the Appellant, the Respondent's reply was penned down by Ms. Regina Kiumba, learned Advocate. I take this opportunity to register my commendations to the learned Advocates for their commitment and spotless compliance to the scheduled order. Such time management practices are crucial to enable this court to attain the constitutional mandate of timely dispensation of justice. The next part of this judgment is a summary of rival submissions, my analysis and the verdict. Mr. Paul, Counsel for the Appellant, argued that the background of the parties' dispute could be discerned from the trial tribunal's records, which Page 2 of 21 indicated a lease agreement, designated as Exhibit Ml, outlining terms and conditions mutually agreed upon by both parties. According to clause 1(h) of this agreement, upon termination of the lease, the respondent was obligated to return the premises in good and tenantable repair, a condition found upon entering the property. However, following the expiration of the termination notice, the respondent did not return the property, effectively holding over the premises and prompting the applicant to enforce compliance with the lease terms. Mr. Paul further explained that due to the respondent's failure to uphold the agreement, the applicant pursued legal and contractual rights, ultimately leading to a Deed of Compromise signed in January 2012. In this Deed, the parties agreed that the respondent would pay the applicant TZS 725,000 for remaining renovations. The Deed also set a 'cut-off date'' entitling the applicant to rent or mesne profits up to three weeks after the applicant received this amount, as well as USD 3000 as rent for January and February 2011, based on clauses (i) and (ii) of the Deed (Exhibit M4). As Mr. Paul continued, he stated that these grounds led the applicant to file an application in the tribunal to assert her rights, setting the cut-off date Page 3 of 21 as February 2012. For unpaid rent caused by the respondent's holdover, excluding January and February, the remaining period totalled twelve months. In addressing the tribunal's approach, Mr. Paul noted that it framed two primary issues: (i) whether the respondent had returned the premises in an agreed condition upon contract termination, and (ii) what reliefs the parties were entitled to. The Appellant contended that the tribunal did not accurately evaluate these issues, which formed the basis for the grounds of appeal. The first ground of appeal, Mr. Paul continued, rested on the principle of sanctity of contract, asserting that the trial tribunal failed to analyze and evaluate the evidence, thereby overlooking the respondent's non-compliance with the contract, which resulted in a miscarriage of justice. He referenced Section 37(1) of the Law of Contract Act [CAP. 345 R 2019], which mandates that parties perform their respective contractual promises unless legally excused. He argued that the evidence confirmed the premises were not returned in good and tenantable repair per clause 1(h) of the agreement. Page 4 of 21 To support his argument, Mr. Paul cited Miriam E. Maro v. Bank of Tanzania, Civil Appeal No. 22 of 2017, [2020] TZCA 1789 (Tanzlii), and Unilever Tanzania Ltd. v. Benedict Mkasa t/a BEMA Enterprises, Civil Appeal No. 160 of 2018 (unreported), as authorities upholding the sanctity of contract principle. He also referred to Abualy Alibhai Azizi v. Bhatia Brothers Ltd, [2000] T.L.R. 288, where it was held that contract enforcement should not be excused without incapacity, fraud, misrepresentation, or a prohibition against public policy. Moreover, he cited Lindi Towers Limited v. National Housing Corporation, Commercial Case No. 21 of 2016, [2018] TZHCComD 61 (9 May 2018 Tanzlii), where the court underscored Lord Diplock's principle from Photo Production Ltd v. Securicor Transport Ltd, [1980] 1 All ER 556, emphasizing parties' obligations under primary contractual terms. Mr. Paul argued that the respondent breached the agreement by (1) not returning the premises after the notice period, (2) keeping security personnel on-site until May 2011 (as per Exhibit M3), and (3) entering a Deed of Compromise, agreeing to cover renovation costs with TZS 725,000 in January 2012. He maintained that these acts demonstrated an apparent breach, counter to the tribunal's finding. Page 5 of 21 The second and third grounds of appeal, Counsel argued, focused on the tribunal's failure to interpret the Deed of Compromise correctly and its reliance on speculation instead of solid evidence, a misstep unsupported by the Deed's terms, Mr. Paul argued. He cited David Joseph Mahende v. Afriscan Group (T) Ltd., Civil Appeal No. 200 of 2016, [2022] TZCA 816, where the court noted that decisions must rest on solid evidence. The fourth ground of appeal alleged that the tribunal erred by not adhering to the principle that parties are bound by their pleadings. Mr.Paul referenced Barclays Bank (T) Ltd. v. Jacob Muro, Civil Appeal No. 357 of 2019, [2020] TZCA 1875, and James Funke Ngwagilo v. Attorney General, [2004] T.L.R. 161, asserting that evidence deviating from pleadings should be disregarded. The fifth ground cantered on the tribunal's oversight regarding the respondent's failure to pay rent from March 2011 to February 2012. Mr. Paul referenced Section 82(1) and (2) of the Land Act [CAP. 113 R.E. 2019], which maintains that lessees holding over are liable for unpaid rent, asserting that this obligation continued throughout the period of non-compliance. Page 6 of 21 In conclusion, Mr. Paul noted that this being the first appellate court, it had the authority to review and re-evaluate the evidence objectively, citing Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies v. Yara Tanzania Limited, Civil Appeal No. 219 of 2018, [2022] TZCA 419 (13 July 2022 Tanzlii). He also sought general damages, referencing IBM Tanzania Limited v. Sunheralex Consulting Co. Ltd, Commercial Case No. 9 of 2020, [2021] TZHCComD 3433 (2 December 2021 Tanzlii), which held that damages accompany contract breach. Ms. Kiumba, Counsel for the Respondent, stated that she had thoroughly reviewed the Appellant's written submission, which outlined five grounds of appeal. According to her analysis, grounds 1, 2, 3, and 5 were interconnected, prompting her to request that they be argued together, while ground 4 would be addressed separately. I agree with the learned Counsel and find her analytical skills enviable. In relation to grounds 1, 2, 3, and 5, Ms. Kiumba conveyed that her side did not contest the legal principles cited by the Appellant, which included the appellate court's responsibility to re-evaluate evidence from the lower tribunal, the binding nature of pleadings on parties, the prohibition against Page 7 of 21 basing decisions on extraneous matters, and the principles guiding damage assessments. Ms. Kiumba proceeded to argue that the Trial Tribunal had properly evaluated the evidence and based its judgment solely on the material provided by both parties. She assured the court that the judgment did not rely on extraneous issues and adhered closely to the parties’ pleadings. Turning to the lease agreement (Exh. M-l), Ms. Kiumba affirmed its binding nature, noting that it was freely agreed upon by both parties. She pointed out that the contract stipulated a three-year term, allowing either party to terminate it by providing a three-month written notice, and was set to expire on June 30, 2012. She referenced clause 1(a) of Exh. M-l, which obliged the Respondent to return the premises in "Good and Tenantable Repair" as it was initially. Ms. Kiumba noted that Exh. M-2, a letter dated August 25, 2010, confirmed the Respondent's compliance with the lease terms, and a letter from the Appellant dated September 21, 2010, acknowledged receipt of rental payments for October to December, further indicating that there were no issues of breach at that time. Page 8 of 21 Ms. Kiumba then highlighted that Exh. U-3, a letter from Pw-1 dated October 29, 2010, evidenced the Respondent's substantial repairs to the premises. She quoted Pw-l's statement, which expressed satisfaction with the Respondent's maintenance efforts, though minor repairs were still needed following the Respondent's departure. This view, Counsel averred, was supported by Exh. U-5, which confirmed that the Respondent had left the premises in excellent condition, ready for subsequent tenants. Addressing letters Exh. M-6, U-4, and M-2, Ms. Kiumba pointed out that these documents contained claims by the Appellant regarding alleged breaches of the lease terms, specifically that the Respondent failed to return the property in good repair. She explained that Exh. M-6, dated January 5, 2011, was the Appellant's notice to the Respondent of the needed repairs before the handover. Further, argued Ms. Kiumba, Exh. U-4, dated February 1, 2011, and Exh. M-2, a demand letter from JM Chambers dated April 5, 2011, reiterated the Appellant's complaints about the repair delays and demanded rental payments up to April 5, 2011, threatening legal action if unmet by April 15, 2011. Page 9 of 21 Additionally, Ms. Kiumba referred to Exh. M-4, the agreement in Land Application No. 176 of 2011, which was filed with the Tribunal on January 24, 2012. She noted that Exh. M-4 confirmed an arrangement reached after the earlier correspondences, providing the legal foundation for the payments of USD 3000.00 and repair costs of Tshs. 725,000.00 as per Exh. U-7, dated February 10, 2012. She argued that this certification complied with Order XXI, Rule 2(1) and (3) of the Civil Procedure Code, thus solidifying the agreement's binding nature. Ms. Kiumba underscored that the Appellant's demand for additional rent lacked merit since Exh. M-4's terms explicitly barred such claims after the stipulated cut-off date. She contended that the Respondent's payments of repair costs and rentals for January and February 2011 were completed within the agreed cut-off period, making any further claims by the Appellant unfounded. Citing Haifani Sudi v. Abieza Chichili [1998] TLR 527, she A. . - ■ argued that court records, as serious documents, should not be impeached lightly, emphasizing that Exh. M-4, as a binding agreement, should remain intact. In addressing the fourth ground of appeal, Ms. Kiumba challenged the Appellant's assertion regarding a failure to adhere to pleadings. She noted Page 10 of 21 that the Appellant had provided no substantial arguments or specific instances in cross-examination that contradicted pleadings. She cited Section 155 of the Evidence Act, Cap. 6 R.E. 2019, which allows broad questioning in cross-examination to test witness veracity and credibility, dismissing the Appellant's contention as meritless. Finally, Ms. Kiumba argued that the Appellant's request for damages and compensation lacked foundation, as no breach of the lease agreement had occurred. She urged the court to dismiss the appeal in its entirety, awarding costs to the Respondent. In his rejoinder submission, Mr. Paul stated that the first ground of appeal was fundamentally based on the failure to adhere to the terms and conditions of the parties' House Lease Agreement. He explained that it was an apparent condition that at the time of termination of the lease agreement, the lessee was required to hand over the house in good and tenantable repair, as it had been found upon entry. He emphasized that this was the crux of the dispute, as the house was supposed to be handed over to the Appellant in a good and tenantable condition at the time of termination. Page 11 of 21 Mr. Paul further asserted that tenantability of the house was a fundamental condition for handover, and since this condition was not met, the Respondent remained in possession of the house along with the security guards. He added that this was also the reason the Respondent chose to enter a compromise to limit the Appellant's claims. Counsel emphasized that the handover was not affected on the termination day due to the failure to comply with the said condition, which he identified as the source of the breach of the agreement. He contended that the holding of the trial tribunal was erroneous for relying on misconceived facts, particularly the notion that the person residing in the house left after the expiration of the notice. Mr. Paul stated that this was not the condition for handing over the house. He pointed out that there was also a total failure to properly interpret the essence of the Deed of Compromise, which included the payment of costs for the remaining renovation works and the establishment of a cut-off date to limit the duration of the Lessors' claims, agreed to be three weeks after the payment of Tsh. 750,000 for the remaining renovation. He noted that this payment was received as of February 10, 2012. Page 12 of 21 Mr. Paul argued that the only fact indicating there was no breach of contract was that the house could have been handed over according to the terms of the Agreement by the due date or shortly thereafter. However, he alleged, the Respondent failed to do so, and the whole process was only completed in February 2012 after the payment of the remaining renovation expenses, which constituted a clear breach of contract. He implored the court to take judicial notice of the Court of Appeal's ruling in the case of Mirambo Mabula vs. Yohana Maiko Sengusa & Another, Civil Appeal No. 71 of 2020 [2022] TZCA 100 (8 March 2022), which emphasized the binding nature of contract law and the obligations of contracting parties. He quoted that once parties entered into a binding agreement, neither party should interfere with its terms and conditions, as reiterated in the case of Philipo Joseph Lukonde vs. Faraj Ally Saidi, Civil Appeal No. 74 of 2019 (unreported), which was inspired by a decision from the Court of Appeal of Kenya in Michira vs. Gesima Power Mills Ltd, [2004] eKLR. Mr. Paul stated the obvious that a contract is a legally binding promise, meaning the law compels the promisor to perform or pay damages for non­ performance. Page 13 of 21 Based on this position, Mr. Paul asserted that the Appellant was entitled to damages due to the Respondent's non-performance, specifically due to their failure to comply with clause 1(h) of the House Lease Agreement, which required yielding the premises at the end of tenancy in good and tenantable repair. He indicated that the damages sought included accrued rent from March 2011 to February 2012, considering that rent for January and February 2011 had already been paid, and cited section 82(1) and (2) of the Land Act [CAP 113 R.E 2019] for the claims of unpaid rent. Mr. Paul also stated that the Appellant was entitled to general damages along with other prayers sought in the trial tribunal due to the sufferings occasioned by the Respondent's breach of the House Lease Agreement. He criticized the reply submission of the counsel for the Respondent as misleading regarding the essence of the Deed of Compromise of Part of the Claim (Exhibit M-4), asserting that there was no full settlement or compromise of the claims. He clarified that the compromise merely pertained to part of the dispute, covering partial payment of accrued rent and expenses for remaining renovation works, as well as setting the limit for the Lessor/Appellant's claims. Page 14 of 21 Mr. Paul pointed out that the cut-off date as per Exhibit M-4 was three weeks after the reception of the repair expenses, received on February 10, 2012, thus establishing the cut-off date. Therefore, Counsel asserted, the Appellant's claims were based on the remaining unpaid rent from March 2011 to February 2012. He insisted that the certificate drawn was in respect of part of the claims and not a full settlement, stating that the learned counsel's argument was misleading. Mr. Paul clarified that the parties agreed to adjust their dispute only to the extent stated and that there was no Decree of the Court, but certification was regarding the adjusted claims, which is an acceptable practice after filing a Compromise of Part of the Claim. He noted that proceedings were still pending in Application No. 176 of 2011 in the District Land and Housing Tribunal for Kinondoni, which had later been withdrawn for lack of jurisdiction, and the rest of the claims had yet to be resolved. He contested that the cited case of Halfani Sudi v. Abieza Chichili, [1998] T.L.R. 160 was inapplicable in this dispute, as there was no contention over court records but rather a misunderstanding of the essence of the remaining dispute arising from the breach of the House Lease Page 15 of 21 Agreement and an erroneous interpretation of the Compromise of Part of the Claim. Mr. Paul criticized the trial tribunal's holding that after payments for the two months' rent and the remaining renovation expenses, the rest of the claims were baseless, calling it utterly misconceived for failing to grasp the essence of the Compromise of Part of the Claim. He contended that the doctrine of estoppel was inapplicable in this matter. He reiterated the importance of adhering to the principle of civil litigation regarding the binding nature of pleadings, asserting that the trial tribunal erred by basing its decision on the procedure of terminating the lease Agreement and failing to properly evaluate the evidence, neglecting several demand notices issued by the Appellant to the Respondent regarding the agreed state of handing over the house. Mr. Paul cited the Court of Appeal's case of Barclays Bank (T) Ltd vs. Jacob Muro, Civil Appeal No. 357 of 2019 [2020] TZCA 1875 (26 November 2020), stating that both parties and the courts are bound by pleadings and that parties are not allowed to depart from them to present new cases. He maintained that the pleadings were clear, indicating that the dispute arose Page 16 of 21 post-termination of the agreement, and emphasized that nowhere in the pleadings did it state that the payments of rent for January and February, along with the payment of Tsh. 725,000, constituted full discharge of the Appellant's claims. He prayed for the court to find merit in the appeal, allow it with costs, and grant all reliefs sought both in the trial tribunal and on appeal. I have dispassionately considered the rival submissions in the light of the grounds of appeal and thoroughly examined the Tribunal's records. The crux of the dispute revolves around the Appellant's assertion that the Respondent failed to adhere to the terms and conditions stipulated in the House Lease Agreement, particularly concerning the handover of the leased premises in a good and tenantable condition upon termination of the lease. The Appellant maintains that the Respondent's failure to comply with this condition constituted a breach of the lease agreement. In his rejoinder submission, Mr. Paul emphasized that tenantability was a fundamental condition for the handover of the house and that the Respondent's possession of the house with security guards, post­ termination, exemplified the breach. He argued that the Respondent's Page 17 of 21 actions led to the need for the Appellant to seek damages, including unpaid rent from March 2011 to February 2012. The Appellant, represented by Mr. Paul, articulated that the trial tribunal erroneously based its decision on misconceived facts, particularly the assumption that the person residing in the house vacated only after the expiration of the notice. Mr. Paul referred to the case of Mirambo Mabula vs. Yohana Maiko Sengusa & Another, (supra) which emphasized the binding nature of contractual obligations and the necessity for parties to adhere to the terms of their agreements. He also cited Philipo Joseph Lukonde vs. Faraj Ally Saidi (Supra), and the case of Halfani Sudi v. Abieza Chichili, (supra), asserting that the tribunal failed to grasp the implications of the Deed of Compromise. The Respondent's counsel contended that the Appellant's claims were baseless, arguing that the payment of two months' rent and renovation expenses discharged any outstanding obligations. The Respondent's position was that the nature of the Deed of Compromise indicated a full settlement of the claims, which the Appellant failed to recognize. Page 18 of 21 In evaluating the rival submissions, it is crucial to first clarify the terms of the House Lease Agreement and the Deed of Compromise. The Appellant's argument rests on the assertion that the Respondent's failure to hand over the house in good and tenantable condition constituted a breach of contract, as mandated by clause 1(h) of the agreement. This clause explicitly required the Respondent to yield the demised premises at the end of tenancy in good condition. I am fortified that the Appellant's claim is not merely based on a singular event but rather a series of actions and omissions by the Respondent that led to the current dispute. The trial tribunal's reliance on the assumption that the previous occupant vacated after the notice period was misguided, as it overlooked the essence of the lease agreement and the implications of "tenantability". I think this is largely attributable to departure from the crux of the dispute namely the contractual obligations of each party. Furthermore, Mr. Paul correctly identified the critical nature of the Deed of Compromise, which did not equate to a full settlement but rather addressed specific aspects of the ongoing dispute, particularly concerning accrued rent and renovation expenses. The tribunal's conclusion that payments made by the Respondent discharged the entirety of the Appellant's Page 19 of 21 claims fails to acknowledge the binding nature of the agreement and the established principles of contract law, as stated in the cited cases. I concur with Mr. Paul's reliance on the rulings in Mirambo Mabula vs. Yohana Maiko Sengusa & Another and Philipo Joseph Lukonde vs. Faraj Ally Saidi that underscore the necessity for parties to adhere strictly to their contractual obligations. The tribunal’s misinterpretation of the compromise agreement further demonstrates a lack of appreciation for the binding nature of the agreements at play. Considering the above analysis, the Court finds merit in the Appellant's appeal. The Respondent's failure to comply with the terms of the House Lease Agreement, specifically regarding the condition of the premises upon termination, constitutes a breach that entitles the Appellant to seek damages. Accordingly, this Court hereby allows the appeal, sets aside the decision of the trial tribunal, and grants the Appellant the following reliefs: 1. Payment of damages for unpaid rent from March 2011 to February 2012. 2. General damages as prayed for in the trial tribunal. 3. Costs of the appeal. Page 20 of 21 It is so ordered. E.I. LALTAIKA JUDGE 31/10/2024 Court Ruling delivered this 28th day of October 2024 in the presence of Mr. Abel Ngalaba, learned Advocate holding brief for Mr. Eliezer Msuya, Counsel Page 21 of 21