CIVIL APPEAL NO 431 OF 2021 MATHEW UPANGA MNKANDE VS SIMEDA PRODUCTS AND TRADING COMPANY LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT P A R ES SALAAM f CO RAM: LILA. 3.A.. FIKIRINI, J.A. And FELESHI, J.AT CIVIL APPEAL NO. 431 OF 2021 MATHEW UPANGA MNKANDE............ .................... ................ APPELLANT VERSUS SIMEDA PRODUCTS AND TRADING COMPANY LIMITED ... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Tanga) (MrumjLjL) dated the 23rd April, 2021 in Land Case No. 16 of 2017 JUDGMENT OF THE COURT 22nd October & 14th March, 2025 FELESHI. 3.A.: This appeal emanates from a lawsuit filed by the appellant, Mathew Upanga Mnkande (the Lessor), over the breach of a lease contract he entered with one Salim Abdulaziz Bawareth Est. (the Lessee), who was not sued, hence not part to this appeal. The lessee had appointed the respondent, Simeda Products and Trading Company Limited as his agent, to execute a 16 years lease contract with the lessor. 1 The lease contract subject of this appeal was signed by the lessor and the lessee's agent on 2/7/2014 in the absence of the lessee and was implemented until 2017 when the dispute arose. The lessor later alleged that, the agent's actions were illegal and had breached the contract for failure to maintain the farm in the order specified in the contract specifically for overcutting the sisal leaves against the governing law. Therefore, he sued the agent praying for: declarations that, there was no valid and enforceable agreement between him and the agent; the agent was illegally and unlawfully occupying his farm; orders for vacant possession, payments of Tshs. 500,000,000/= effective from October, 2016 and 12% interest on the principal sum on the outstanding rental sum; general damages; costs of the suit; and any other relief the court could grant. In rebuttal, the agent, denied the claims and maintained that the contract was valid, well endorsed and its terms and conditions were fulfilled. She also complained that it was the lessor who disturbed it by instituting the suit against her while she was the agent of the lessee of which, the agreement had to end in 2030. It was her further claim that, the lessor did not get any loss but, the agent did, as the invested money was never realized. In view of the agent's negation above, four issues were framed to guide the trial: one, whether or not the parties were in a valid contract of renting the Kwamsheshi Sisal Estate; two, who between the parties breached the contract; three, whether or not the lessor was entitled to claims made in the plaint; and four, to what relief(s) each party was entitled. Then, five witnesses testified at the trial for the plaintiff's case, namely, Methew Upanga Mnkande (PW1), Godfrey John Kijumbe (PW2), George Matung'e (PW3), Jerome Joseph Msemwa (PW4) and Hassan Mohamed Fahari (PW5). On the other hand, only one witness, one Leonard Simon Shoo, testified for the defence as DW1. PW1 testified that, on 2/7/2014, in the absence of the lessee, he signed a lease contract with the respondent's director, one Simon Shoo, acting for the lessee, over his Sisal estate (the farm) with Title Deed No. 5626 known as Kwashemshi Sisal Estate. That, the signing occurred in Advocate Msemwa's office at Dar es Salaam. He recognized the respondent as the agent of the lessee who resided in Saud Arabia. He tendered the farm's Title Deed which was admitted in evidence as exhibit P L After signing the contract, he handed over the farm to the respondent as a lessee's agent for implementation from 2/7/2014 to 30/6/2030. That concluded the prior physical negotiations and further communication he had with one Abdallah Al-Moudi, the lessee's envoy. Pages 230 to 233 of the record of appeal bears out that PW1 acknowledged the several contractual payments paid to him through his bank accounts from 2014 to 28/1/2017 and that settled the lessor's rent and bank loan contractual obligations up to February, 2017. He said the cases he instituted, that is, Land Case No. 4 of 2017 and Miscellaneous Application No.54 of 2017 in the High Court in February 2017 respectively, based on payments, denied access to the farm, sisal overcutting and its poor maintenance contrary to the Tanzania Sisal Board (TSB) rules and regulations which tarnished his image. However, he allowed the respondent to continue producing fibre as advised by his advocate in order to get funds to settle his impending CRDB Bank loan. The farm was later placed under his possession by the court order effective from 13th December, 2017 where he appointed one Emmanuel Daftari, his brother-in law, to operate it on his behalf. PW2's testimony at pages 235, 236 and 238 of the record of appeal is on all fours with that of PW1. As a Human Resource Officer who, at different times had worked with both parties had as well witnessed the farm handing over, payments made to PW1 and the misunderstanding that ensued in February and March 2017. On his part, PW3, a TSB Quality Control Officer who conducted an inspection in PW l's farm in March, 2017 noted overcutting of sisal leaves in almost all over the farm. However, as his report, which was admitted in evidence as exhibit P2, had revealed some improvements compared to previous inspections conducted in 2015 and 2016 did not suspend production as it later happened in 2018 and 2020 where production had to be suspended for six months to allow the leaves to mature. PW4's testimony was that the several engagements he had made with PW1, and one Mr. Shoo since 2013/2014, on one hand, and the constant phone communications they had with the lessee who was in Saudi Arabia, on the other, culminated into signing of the lease contract on 2/7/2014. As an advocate, he knew every one's role in that contract which he tendered and was admitted in evidence as exhibit P3. However, as exhibit P3 was neither signed by the lessee and nor was it registered, he held a view that, the same was invalid though he conceded to being aware of the practice permitting parties to engage in an implied contracts in lieu of written contracts. On his turn, PW5, who like PW2 had worked with both parties at different times as an accountant, testified that, the dispute by the parties culminated to adverse actions in February 2017. While PW1 filed a land case to restrain the lessee from running the farm, the lessee on her part declined to disburse funds to meet her contractual obligations. Prior to that, PW1 had invited the TSB to inspect the farm on 7/3/2017 where weaknesses were noted but the respondent was let to continue with production. That, despite lessor's case being later struck out on technical grounds, orders for eviction and vacant possession against the respondent were issued though the respondent's director had resisted to hand over the farm to PW1 because, the respondent had from 2014 to 2017 continued to discharge her contractual obligations to PW1 on behalf of her principal who per the authorization letter funded the project from Jeddah Saudi Arabia. He added that, though the contract was incomplete, it was implemented by the respondent because PW1 needed money to fund his business. In defence, the respondent's manager, one Leonard Shoo (DW1) testified that, by his letter dated 5th April, 2014, the lessee mandated the respondent to enter into agreements on his behalf as her authorized agent. That, her role was to manage the farm handed over to her in July, 2014 by PW1 and ensure its welfare by cultivating sisal, paying wages, paying all taxes and bills, decorticating and all other sisal cultivation activities in general. Also, to effect the contractual payments to PW1. They thus paid PW1 from 2013 to 2017 through swift transfer requests and bank slips which were collectively admitted in evidence as exhibit D l. He also dismissed the claims that they mismanaged the farm as were against TSB's reports which commended them for sound performance and did not suspend their operations. According to him, the respondent found the farm in a worse situation than how she left it. He said, whereas part of the money paid to PW1 came from the lessee, the rest was realized from local sates and was spent to smoothly discharge their contractual obligations for the entire period before they were interrupted by the case instituted by PW1. That, whatever they decided, were in the same way the lessee could have decided. In the end, he dismissed the plaintiff's claims and implored the Court to dismiss his suit with costs for lack of merit. At the end, the trial court settled the 1st issue in the affirmative, that is, there was a valid contract between the parties over PW l's farm. On the 2nd issue, it found that, as PW1 did not challenge DWl's evidence on how the respondent complied with the agreement, based on the evidence on record it was the lessor who breached the contract. On the 3rd issue, it found the lessor was not entitled to the prayers in the plaint. Thus, it dismissed the suit with costs which, in our respectful view, that also settled the 4th issue in favour of the respondent. Disgruntled, the appellant lodged this appeal on the following grounds: 1. Having made a finding that the Respondent was an agent o f Ms. Salim Abduiaziz Bawareth Establishm ent, the tria l Judge erred in taw and fact in holding that the Respondent (sic) an independent party to the contract with own rights and obligations. 2. Having made a finding that the Respondent was an agent o f M/S Salim Abduiaziz Bawareth Establishm ent, the tria l Judge erred in law and fact in holding that there was a tripartite agreem ent between the Appellant, Ms. Salim Abduiaziz Bawareth Establishm ent and the Respondent an independent party to the contract 3. Having made a finding that the Respondent was an agent o f M/S Salim Abduiaziz Bawareth Establishm ent, the tria l Judge erred in law and fact in holding that by mere signing o f the contract the Respondent (sic) an independent party to the contract 4. In absence o f an express substitution o f the parties to the contract the tria lJudge erred in law and fact by holding that there was breach o f the term s o f the contract between the Appellant and the Respondent 5. In absence o f an express authorization o f the Respondent (the Agent) from Ms. Salim Abdulaziz Bawareth Establishm ent (the principal) to defend the form ers rights under the contract, the tria l Judge erred in law and fact by holding that the Respondent had rights in the su it em anating from the contractual relationship. 6. Having made a finding that the Respondent had overcut the sisa l in the Appellant's farm ; the tria l Judge erred in law and fact in holding that the Respondent had not breached the term s o f the contract on behalf o f the principal. 7. The tria l Judge erred in law and fact in holding that the Respondent had discharged a ll its obligations under the contract. 8. The tria l Judge erred in law and fact in holding that the Appellant had breached the term s o f clause 22 o f the contract. At the hearing of the appeal, while the appellant was represented by Mr. Nduruma Keya Majembe, the respondent was represented by Mr. Tumaini Omari Bakari, all learned advocates. We are grateful for the learned counsel's invaluable submissions. Mr. Majembe adopted the appellant's written submission. On the 1st and 2nd grounds, the learned counsel faulted the learned trial Judge's holdings that the contract was tripartite, a holding which made the respondent an independent party to it contrary to section 134 of the Law of Contract (the Act) and express provisions of the contract and amounted to an alteration of the parties to the contract. According to him, the agreement was specific where only the lessor and the lessee were the parties to it. In his reply, Mr. Bakari who also adopted the respondent's reply to the appellant's written submission strongly argued that the appellant's complaint on the respondent's capacity in the contract is completely new and was not raised during trial. He said, the issue before the trial court was whether or not the parties were in a valid contract which, as aforesaid, was settled in the affirmative. He referred us to our decision in Tanzania Cotton Marketing Board v. Cogecot Cotton Company S.A [2004] T.L.R. 132 at 134 and implored us to dismiss the 1st and 2nd grounds as the complaints therein were not adjudged by the trial court, hence cannot be raised on appeal. Alternatively, he submitted that, by choosing to sue the respondent instead of the lessee, the appellant had satisfied himself of her capacity in the contract being an agent of the lessee. To that effect, he referred 10 the Court to pages 230 and 231, 285 to 354 of the record of appeal where the evidence established how the respondent discharged her contractual obligations as an agent of the lessee within the purview of section 178 of the Act. On the 3rd ground, Mr. Majembe submitted that a mere signing of the contract did not change the status of the parties' capacity, on one hand, and the respondent as the agent of the lessee, on the other. He referred us to the High Court decision in the case of Lamshore Limited and J.S. Kinyanjui v. K.U.D.K. [2001] TLR 237. Mr. Bakari dismissed this complaint and said the appellant cannot challenge the respondent's capacity which was legally valid and is what he relied upon to hand over his farm to her. To him, the decision in Lamshore Limited and another (supra), is irrelevant because, whereas the issue in that case was whether the plaintiff could sue in his own name and succeed without having a contractual relationship and cause of action, the respondent in this case was sued by the appellant and amongst the issues was whether or not the parties were in valid farm leasing contract which was resolved in the affirmative. On the 4th ground, the learned counsel for the appellant contended that, if the respondent's capacity remained that of an agent of the lessee and the contract never changed as testified by DW1 the trial Judge then erred to hold that there was breach of the terms of the contract between the appellant and the respondent. In reply, Mr. Bakari argued that the learned trial Judge did not err to hold the appellant responsible for the said breach considering the parties' capacities which was also relied upon by the appellant to sue the respondent whilst aware that the contract was still intact. As to the 5th ground, Mr. Majembe submitted that, as there was no contract between the appellant and the respondent as argued in preceding ground, it was only the lessee who had right to sue for any breach arising from the lease contract because, the respondent was a mere third party who could not have, in the absence of lessee's authorization, exercised any rights over the contract. To that effect, he referred us to the decision in the case of Juma Garage v. Co-operative and Rural Development Bank [2003) TLR 431. Reiterating his submission in respect of the 4th ground, Mr. Bakari strongly dismissed that complaint and defended the respondent's capacity arguing that, he who sued her knew that she was an authorized agent. 12 On the 6th and 7th grounds, Mr. Majembe contended that, the evidence adduced by PW3 and exhibit P2 established that the respondent had breached clauses 3 and 4 of the contract which mandated the lessee and her agent to finance and run the farm in an acceptable manner. That, after establishing that there was overcutting of sisal in PW l's farm, the trial Judge erred to not find that the respondent had breached the contract on behalf of the lessee and had not discharged all obligations under the contract. In his reply, Mr. Bakari strongly opposed the complaints and argued that the evidence on record clearly established that, the respondent had discharged the contractual obligations on behalf of the lessee within the ambit of exhibit P3 and governing law. He thus implored us to dismiss the 6th and 7th grounds for lack of merit. As to the 8th ground, it was argued that, in the absence of a novation agreement or express authorization by the lessee mandating the respondent to act against the appellant for any right accruing from the contract, the learned trial Judge erred to hold that the appellant had breached clause 22 of the contract. Also, to giving her rights over the contract, a judicial finding which was against the doctrine of privy to contract which restricts third parties from claiming rights over contracts. In his reply, Mr. Bakari argued that, the doctrine of privy to contract is inapplicable in this case because, based on the respondent's capacity in the contract, it was not disputed by the appellant for example as shown at pages 230 and 231 of the record of appeal, that having received the farm, the lessee's agent complied with the contractual obligations. He thus, implored us to dismiss the complaint against the trial court findings on how the appellant breached clause 22 of the contract and finally dismiss the appeal with costs for lack of merit. In his very brief rejoinder, Mr. Majembe reiterated his submission and implored the Court to sustain all the grounds of appeal and quash the judgment of the High Court. At the very outset, we wish to observe that, in this appeal, none of the grounds of appeal faults the trial court's findings that the parties had a valid lease contract over the appellant's farm. So far, what featured in the grounds of appeal and consequent counsel's submissions above can, in our view, be split into two limbs, that is, on the respondent's capacity to execute the lease contract and, the impugned breach of its terms. Under the first limb which is composed of complaints stemming out from the 1st to 5th and 8th grounds of appeal, the appellant complaints are that, the trial court having established that the parties had a valid contract, it erred to further hold that: one, the respondent was an independent party to the contract with own rights and obligations; two, there was a tripartite agreement between the lessor, lessee and the respondent as an independent party to the contract; and three, in the absence of an express substitution of the parties to the contract and an express authorization from the lessee to the respondent there was breach of the contract between the parties and, that the respondent had rights in the suit emanating from the contractual relationship. In the second limb which are drawn from the 6th and 7th grounds of appeal specifically on the breach of contract, the appellant complains that: one, having found that the respondent had overcut the sisal leaves, the trial Judge ought to have held that she had breached the terms of the contract on behalf of the lessee; and two, that the trial Judge erred to hold that the respondent had discharged all her contractual obligations. The issue we would wish to address at this juncture, is whether the respondent was an independent party to the contract and, if not, was she a duly authorized agent of the lessee. We take this approach because, as we recapped above, in his submission, Mr. Majembe faulted the trial court for treating the respondent as an independent party to the contract basing 15 on a tripartite agreement which, to him, was erroneous for want of novation agreement and, or an express authorization by the lessee mandating her to exercise any right accruing from the contract. He also said, that was against the doctrine of privy to contract. That outlook is what he said led the court to hold that the appellant had breached clause 22 of the contract against the respondent, who did not have capacity under the contract. On his part, Mr. Bakari implored us not to consider Mr. Majembe's submission arguing that, the issue of the said 'an independent party to the lease co/7fr3 cf'stemming out from a tripartite agreement was new and was not first adjudged by the trial court. To the contrary he said, the evidence is solid that, the respondent was an agent of the lessee. He thus found the submission regarding the doctrine of privy to contract and on novation agreement were unfounded. As it is trite law that, a decision of any court must be grounded on the evidence properly adduced during the trial as held in Shemsa Khalifa and Two others v. Suleman Hamed, Civil Appeal No.82 of 2012, CAT (unreported), we will therefore be guided by the record of appeal and the applicable laws to resolve the controversy raised by both counsel and the issue we have raised above. The evidence of PW1, PW2, PW4, PW5 and DW1 above is very clear that the respondent was an agent of the lessee one Salim Abdulaziz Bawareth who, according to DW1, had issued a letter to the respondent on 5th April, 2014 authorizing her to sign and enter into the agreement on his behalf. DW l's evidence is supported by other witnesses including PW1, PW2, PW4 and PW5. As per page 225 of the record of appeal PW1 told the trial court that "the contract was signed on behalf o f Salim Abdulaziz Bawareth Establishm ent by Sim on Shoo, the D irector o f SIMEDA Product and Trading Com pany"On their part, PW2, PW4 and PW5 at pages 235, 239, 247, 249, 251, 256, 257 and 259 of the record of appeal testified the following regarding the mandate, authorization and the rights exercised by the parties to the lease contract (Exhibit P3); PW 2: "Payments ...were sent from Saudi Arabia vide SIMEDA Co." "The c o n tra ct w as n o t sig n e d b y S a lim B a w are th b u t b y SIM ED A C om pany a s an a g e n t on 1 2 th Ju ly , 2014 ..1 participated in handing over the farm to SIMEDA ..." "We h an d ed o v e r the farm to SIM ED A a s a g e n t o f S a lim A b d u l A z iz B a w are th E sta te . // *• • • PW 4: "I know Matthew Upanga Mnkande since 2013/2014. He came to m y office with one Mr. Shoo from SIMEDA/Kiiosa Company. They came fo ra le a se co n tra ct... On 2 n d Ju ly , 2 0 1 4 th e p a rtie s e n te re d in to a trip a rtite ag reem en t fo r lease. There was a le s s o r M a tth e w M nkande, th e le sse e was one A b d u l from Saudi A ra b ia and h is agent w as S IM E D A ...D uring th a t d a y o f sig n in g we w ere in a co n sta n t com m u n ication w ith le sse e in S a u d i A ra b ia . " "...I com m u n icated w ith th e le sse e b y phone. I w as s a tis fie d o f h is e x iste n ce a fte r s e v e ra l corresp on d en ces w ith h im by p h o n e ." (P.249) 'A cco rd in g to th e co n tra ct, SIM ED A C om pany is re fe rre d to a s an a g e n t." PW 5: " "The c o n tra ct w as betw een B a w reth a n d M a th e w M nkande. The farm w as h an d ed o v e r to th e a g e n t SIM ED A ." "S IM E D A n e ve r d e fa u lte d to p a y th e m oney to M r. M nkande from 2 0 1 4 to 2 0 1 7 ..." ... "SIM ED A a s ag e n ts o f B a w re th used to pay the am ount They paid the installm ents in 2014 and the 2 0 1 5 ..." "By virtue o f this contract, SIM ED A a s an a g e n t is em p ow ered to oversee a lt a ffa irs o f th e e sta te on b e h a lf o f the p rin c ip a l, B aw areth . The c o n tra c t w as sig n e d on 1 s t J u ly 2014. fr "The fu n d s cam e from Jed d ah S a u d i A ra b ia to B aw areth , th e y w ere s e n t to SIM ED A a c c o u n t The one w ho fu n d e d th e w hole p ro je c t w as S a lim A b d u la ziz B a w are th from Saudi Arabia. G enerally, th e a u th o riza tio n le tte r w as re g a rd in g in stru c tio n s th rou g h va rio u s p ro je cts. A cco rd in g to it th e one w ho fu n d e d th e p ro je c ts is B a w a re th ." [em phasis supplied] Besides, apart from the viva voce evidence above, vital piece of evidence is also found some contents of the terms of the lease contract (Exhibit P3) in clauses 4, 5, 16, 17, 22 and 34 which are reproduced hereunder: C lau se 4: "That th e le sse e h a s a p p o in te d M /S SIM ED A PRO D U CTS A N D TRAD IN G C O M PA N Y LIM IT ED to h o ld fu ll re s p o n s ib ility on th e ir b e h a lf o f ru n n in g th e Estate. That SIM EDA..., s h a ll be th e c o n tro lle r o f th e w h ole E sta te with the properties therein including the workers, staffs, labors w ithin the Estate as w ell as creating new em ploym ent w ith co n su lta tio n a n d a p p ro v a l from th e Le sse e ." C lau se 5 : "That apart from the appointed agent (M/S Sim eda Products & Trading Co. Ltd) th e Lessee re se rv e s th e rig h ts to a p o in t as p er h is choice extra supervisor or accountant from abroad or locally...." C lau se 16: "That the Lessee per agreem ent h ave a lre a d y e xe cu te d 1 s t p a ym e n t to th e le s s o r o f to ta l Tshs. 1 3 1 ,0 0 0 ,0 0 0 e.g Tshs.70,0 00 ,0 0 0 in M arch 2 0 1 4 a n d Tshs, 6 ,0 0 0 ,0 0 0 in A p ril 2 0 1 4 and that e ffe ctiv e 1 s t Ja n u a ry 2 0 1 4 onwards a n y in te re s ts a n d P e n a lty th e re in o r i f fe lls due s h a ll be p a id b y th e L e sse e ..." C lau se 17: "That the Lessor co n firm s to h a n d o v e r th e farm to th e Le sse e 's agent im m ediately upon signing o f this agreem ent and fulfillm ent by the Lessee o f term s o f this agreem ent specifically paym ent to CRDB Bank fo r Lessor's outstanding installm ent balance of Tshs.131, 000,000/= o f which the Lessee has already com plied with and paid in due date." C lau se 22 : "That the Lessor agree and confirm s that he w ill n o t in te rfe re w h atso eve r w ith th e m anagem ent o r p ro d u ctio n a c tiv itie s a t the estate during the validity o f this contract n o r to in te rfe re w ith s is a l la b o rs in the same estate or hire them by means o f paying extra wages." C lau se 34: "That a n y p a rty s h a ll b e e n title d to te rm in a te th e co n tra ct upon issu a n ce o f n o tic e to term inate the contract fo r failure to abide by the term s and the conditions o f this disagreem ent provided that the notice period s h a ll be s ix m o n th s."[Em phasis supplied] Further, as both learned counsel invited the Court to pay regard to sections 134 and 178 of the Act, we irresistibly find it appropriate, in line with the foregoing evidence, to reproduce hereunder, together with them, the provisions of sections 140(1) and (2), 163 and 178 of the Act, regarding how the "agent" and "principal" relationship and their attendant rights is governed by the Act: "134. An "agent" is a person em p lo yed to do a n y a c t fo r a n o th e r o r to re p re se n t a n o th e r in d e a lin g s w ith th ird p e rso n s and the person for whom such act is done, or w ho is so represen ted , is c a lle d th e "p rincipal". M O .-(l) An agent h a vin g an a u th o rity to do an act h a s a u th o rity to do e ve ry la w fu l th in g w h ich is n e ce ssa ry in o rd e r to do su ch a c t (2) An agent h a vin g a u th o rity to c a rry on a business h a s a u th o rity to d o e v e ry la w fu l th in g necessary fo r the purpose, or usually done In the course o f conducting such business 163. A n a g e n t is bound to conduct the business o f h is p rin c ip a l a cco rd in g to th e d ire ctio n s g iv e n b y th e p rin c ip a l orr in the absence o f any such directions, acco rd in g to th e custom w h ich p re v a ils in d o in g b u sin e ss o f th e sam e k in d a t th e p la ce w here th e a g e n t co n d u cts su ch b u sin ess, and when the agent acts otherwise, if any loss be sustained, he m ust make it good to h is principal, and, if any p ro fit accrues, he m ust account fo r it 178. C o n tra cts e n te re d th rou gh an agent, and o b lig a tio n s a ris in g from a c ts done b y an agen t, m a y b e e n fo rce d in th e sam e m anner, a n d w ill h ave th e sam e le g a l consequences a s i f th e co n tra cts h a d been e n te re d in to a n d th e a c ts done b y th e p rin c ip a l in p erson. 184. In cases w here the a g e n t is p e rso n a lly lia b le , a person dealing w ith h im m a y h o ld e ith e r h im o r h is p rin c ip a l, o r b o th o f them lia b le ." [Em phasis added] Because Mr. Majembe contended that the tripartite agreement held by the learned trial Judge had effect of imposing the respondent as an independent party hence substituting the parties to the lease agreement, we find it important for our practical purposes, to reproduce hereunder that holding together with the title page of exhibit P3 as found at pages 370 and 28 of the record of appeal: P .3 7 0 "...In the present case, th e ag reem en t fo r re n tin g th e S is a l E sta te w as a trip a rtite agreem ent. The d e fe n d a n t in tro d u ce d h e rs e lf a n d p e rfo rm e d it a s an a g e n t o f M /S B aw areth . Bawareth did not sign the agreem ent and was never physically seen. Since the defendant signed the contract with the PW1, the contract is valid as fa r as the Defendant and the P la in tiff are concerned. That being the case.... there was a valid contract between the parties fo r renting the Kwashem shi S isal Estate ." Page 28 "THIS AGREEMENT is made on 1st day of July, 2014 BETWEEN MR. MATHEW UPANGA MNKANDE o f P.O. BO X5376, TANGA (H ereinafter referred to as "(lessor)" AND M /S SALIM ABDULAZIZ BA WARETH EST P.O.BOX 18245, Jeddah, Saudi Arabia (H ereinafter referred to as "(Lessee)" AND SIMEDA PRODUCTS AND TRADING COMPANY LIMITED P.O.BOX31 Kimamba, Kiiosa, Tanzania (H ereinafter referred to as '(Lessee's A g e n t)" [Em phasis supplied] With the abundant evidence above, we are unable to agree with Mr. Majembe that, the learned trial Judge holding above, changed the status of the respondent in exhibit P3 or a holding by him that, a mere signing of exhibit P3 by the respondent changed her status from being the agent of the lessee to an independent patty to the contract. PW1, PW2, PW4, PW5, DW1 and clauses 4 and 17 of exhibit P3 and the provisions of the Act above, are very loud and clear that, she throughout remained as a lessee's agent. We also find the contents of the title page of exhibit P3 above is in harmony with the terms and conditions contained in all 34 clauses of exhibit P3. Furthermore, the respondent's title spelt out in page 28 poses no ambiguity as it is consonant to the definition assigned to the word "agent" in exhibit P3. That, "agent," according to the lessor's authorization letter, was mandated to sign exhibit P3 as testified by DW1, PW1 and PW5 and she then executed it in tandem with clauses 4, 16 and 17 of exhibit P3 among others. In our respectful view, the way the contract was negotiated and smoothly executed up to February, 2017 was in line with our decision in the case of Lulu Victor Kayombo v. Oceanic Bay Limited & Another (Consolidated Civil Appeals No. 22 of 2020) [2021] TZCA 228 (7 June 2021), where we underlined the need by parties to contracts to abide to the terms they freely agreed upon as it is not the role of courts to change them. It is for that reason, we think, acting under clause 17 of exhibit P3, the lessor readily handed over his farm to the respondent immediately after signing the lease contract. 25 Our discussion above thus disproves PW4 and Mr. Majembe, the learned appellant's advocates respectively, that, exhibit P3 is a tripartite agreement, that is, a type of agreement involving three separate parties. Exhibit P3 was a bilateral agreement. Similarly, we decline the learned trial Judge's viewpoint on the type of contract and, that the defendant (now respondent) had introduced herself to execute it as an agent of the lessee. The evidence proves that the respondent was an authorized agent of the lessee. That in our view, is in line with what we held in the case of Kafoi Estate Limited v. Elia Johson Kiwia t/a Kiwia Agrovet (Civil Appeal No. 19 of 2021) [2024] TZCA 226 (22 March 2024) where we found the bilateral agreement signed before Mr. Ngalo, advocate by Hussein Omari, who was an employee and accountant of appellant duly authorized to sign it, was valid. Therefore, we are of the unfeigned view that, had the learned trial Judge properly scrutinized the evidence on record and the provisions of the Act, he would not have termed exhibit P3 a tripartite agreement and that the respondent had introduced herself in its execution. Based on the evidence we have alluded to above, we further agree with Mr. Bakari that Mr. Majembe's submission as regards to doctrines of privy to contracts and novation agreements is unfounded. Conversely, based on the discussion above, we disagree with Mr. Bakari's view that the tripartite agreement and the related issues raised by Mr. Majembe are new and were not addressed by the trial court. We have demonstrated how the same are part of the court record. The cited decision in Tanzania Cotton Marketing Board (supra) is thus irrelevant. We however still see an increasingly need for parties is to ensure they abide to their pleadings to assist courts to determine pleaded matters and grant reliefs arising from the pleadings whilst avoiding considering extraneous matters. See- Nkulabo v. Kibirige [1973] E.A 102, Makori Wassaga v. Joshua Mwaikambo & Another [1987] TLR , 88 Simba Papers Converters Limited v. Packing & Stationery Manufacturers Limited & Another (Civil Appeal Case 280 of 2017) [2023] TZCA 17273 (23 May 2023) and Makori Wassaga v. Joshua Mwaikambo & Another [1987] TLR 88. As regards the breach of clause 22 of the lease contract, it is our earnest view that, based on the evidence on record and the "principal" and "agent" relationship, the learned trial Judge rightly settled the controversy at page 373 of the record of appeal. He found the appellant had breached the lease contract. He thus held: "...there is evidence to the effect that in February, 2017, the P la in tiff went to the farm and forcibly rem oved the Defendant from the farms. Thereafter he instituted Land Case No. 4 o f 2017 and later on M iscellaneous Land Application No. 54 o f 2017 through which the defendant was ordered to vacate the farm. By interfering with the Defendant in operation o f the farm in 2017, the P la in tiff breached Clause 22 o f the Agreem ent in which he agreed he w ill not interfere with the m anagem ent or production activities a t the estate during the validity o f the contract. I thus answ er the third issue in favour o f the Defendant and hold that on the evidence available the P la in tiff breached the contract." At this juncture, the issue we raised, whether the respondent was an independent party to the contract is thus answered in the negative. We further find that, the respondent was duly authorized by the lessee to sign and enforce exhibit P3. Her evidence on how she duly met the contractual obligations was not challenged at the trial. In the end and based on the foregoing discussion, with all due respect to Mr. Majembe, we do not find merit in the 1st, 2nd, 3rd, 4th, 5th and 8th grounds of appeal. We dismiss them as prayed by Mr. Bakari. As aforesaid, Mr. Majembe had submitted for second limb that, having found that the respondent had overcut the sisal leaves, the trial Judge ought to have held that she had breached the terms of the lease contract on behalf of the lessee. He also faulted the learned trial Judge to hold that, the respondent had discharged all her contractual obligations. Mr. Bakari opposed the complaints and beseeched the Court to dismiss them for lack of merit because the respondent had discharged the contractual obligations on behalf of the lessee as per exhibit P3. It is common knowledge that, the burden and standard of proof in civil cases is governed by the principle that, the one who alleges has the burden of proof and the standard of proof is on a preponderance of probabilities, meaning that the court will sustain such evidence that is more credible than the other on a particular fact to be proved. See- section 110 of the Evidence Act, Chapter 6 and our decision in the case of Mary Agness Mpelumbe v. Shekha Nasser Hamud (Civil Appeal 136 of 2021) [2022] TZCA 408 (08 July 2022). In their contradictory testimonies at pages 227, 235 and 237 of the record of appeal, whereas PW1 testified that the problem of overcutting the sisal leaves started in February, 2017, PW2 deposed that it started in March 2017. However, on his part, PW3 deposed the following testimony at pages 240 to 245 of the record of appeal: "In March, 2017 ...we inspected that farm among other farm s.... In p a rag rap h 6 w e n o te d th a t th e re w as o v e rcu ttin g o f s is a i le a v e s in a lm o st a il th e farm . We recommended that they should follow the farm ing regulations for better re su lts... We w en t to th a t farm in 2 0 2 0 again. W e recom m ended th a t th e h a rv e stin g sto p s fo r s ix m o n th s so a s to le t th e le a v e s to m ature. W e d id n o t b a r h a rv e stin g in 2 0 1 7 ...The farm was inspected before March 2017 too. I remember to have inspected the same farm in a 2015 and 2016. The 2 0 1 7 re p o rt sh o w e d som e im p ro vem en t co m parin g w ith th e p re v io u s in sp e ctio n visits. .... W hat g u id e s us as a B o a rd to recom m end sto p p ag e o f o p e ra tio n in th e farm is th e degree o f d e stru ctio n o b se rve d in th e farm . ...I rem em ber to h ave seen th e re p o rt o f 2018 w h ich a d v ise d p ro d u ctio n to be sto p p e d fo r s ix m onths...." [Em phasis supplied]. Having scrutinized the evidence of PW3 and exhibit P2 the trial court held the following at page 373 of the record of appeal: "... (PW 3) gave evidence to the effect that he inspected the farm in March, 2017 and prepared a report (Exhibit P2). Paragraph 6 o f the report sh o w s th a t a ll a re a s h a rv e ste d th e re b e fo re w ere overcut. Overcutting is the P lain tiff's g ist o f claim that the defendant breached the contract. However, the evidence o f PW 3 shows that the inspection report (Exhibit P2) was conducted in March 2017. Thus, on th e e vid e n ce a v a ila b le th e a lle g a tio n th a t th e d e fe n d a n t b re a ch e d th e fu n d a m e n ta l te rm s o f th e ag re em e n t h a s n o t been p ro ve d ."[Em phasis added] In view of the evidence adduced by PW1, PW2, PW3 and exhibit P2, we are of settled view that, even if there was overcutting of the sisal leave as claimed by the appellant, it was not that grave as compared to that happened in 2018 and 2020 under the appellant PW3 evidence above is very clear and elaborate on the grave overcutting of sisal leaves found by TSB in 2018 and 2020 where it recommended stoppage of production for six months to let the leaves to mature. We did not also spot where the trial court judgment held the respondent responsible for grave breach of clause 3 of exhibit P3 as alleged by Mr. Majembe to warrant us to interfere with its findings. What he perceived as holding in our view, as quoted in the six lines above, is summary of evidence the trial court extracted from PW3 and exhibit P2. The findings is in the last three lines that" Thus, on the evidence available the allegation that the defendant breached the fundam ental term s o f the agreem ent has not been proved". Undoubtedly, that could be the reason why he instituted Land Case No. 4 of 2017 and Miscellaneous Land Application No. 54 of 2017 instead of taking contractual remedial measures under clause 34 of the lease contract against the respondent or his principal. The appellant's failure to pursue his grievances within the framework provided by the lease contract and without justifiable cause in our view, was contrary to what we held in the case of Phiiipo Joseph Lukonde v. Faraji Ally Saidi (Civil Appeal No. 74 of 2019) [2020] TZCA 1779 (21 September 2020) that: "Once parties have duly entered into a contract, they m ust honour their obligations under that contract and, neither this Court, nor any other court in Tanzania for that matter, should allow deliberate breach o f the sanctity o f contract." Since it is the appellant who sued the respondent, we agree with Mr. Bakari that the case of Lamshore Limited and another (supra) which was cited to us by Mr. Majembe is inapplicable to the matter at hand. It was the appellant who interrupted the execution of the lease agreement and is the one who sued the respondent. As the appellant failed to prove the breach of clause 3 of the lease contract by the respondent, we are inclined to agree with the trial court's finding. Likewise, we are unable to agree with Mr. Majembe's complaint that the trial court erred to hold that the respondent had discharged all its obligations under the contract. The compelling evidence including that from PW1, PW5, DW1, D1 and clauses 16 and 17 of exhibit P3, as aforesaid, were not challenged by the appellant. The evidence is clear that the lessee started complying with the lease contract even before signing the contract and she smoothly continued to do so until when the dispute arose in February, 2017 through the appellant's legal actions against her which in fact were against the doctrine of estoppel. Therefore, in view of the above, we equally dismiss the 6th and 7th grounds of appeal for lack of merit. In the circumstances and based on the foregoing discussion, we have found no merits in the appellant's grounds of appeal. Accordingly, this appeal is hereby dismissed with costs. DATED at DAR ES SALAAM this 5th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 14th day of March, 2025 in the presence of Mr. Ndurumah Keya Majembe, learned counsel for Appellant and Mr. Tumaini Omari Bakari, learned counsel for the Respondent, is hereby certified as a true copy of the original.