CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CIVIL CASE NO. 4 OF 2023 MUSSA HAJI CHINGUNGWA ....... 1st PLAINTIFF MOHAMED! MN APE LA .......... 2nd PLAINTIFF MOHAMEDIAMANIAMANI...... ...... .......................................... 3rd PLAINTIFF HAMISIATHUMANI MAKANJILA .................................... 4th PLAINTIFF AND 274 OTHERS APPENDED VERSUS MTWARA MIKINDANI MUNICIPAL COUNCIL............................ 1st DEFENDANT THE ATTORNEY GENERAL....................... 2nd RESPONDENT JUDGMENT 30h October & 29h November, 2024 MPAZE, J.: This is a representative suit The plaintiffs in this matter represent 274 small traders, including themselves, who claim to have been conducting business activities in the Sabasaba and Sokobati/ Magomeni 'B' markets, owned by the 1* defendant. i To grasp the plaintiffs' claims, I find it necessary to reproduce parts of their allegations as presented in their plaint, which was filed in this court on 20th September, 2023. In their plaint, the plaintiffs state; ' 4. That this suit against the defendants jointly and severally is for a declaratory order that the plaintiffs are and have at all material times been the rightful and lawful tenants of the premises known as Sabasaba Market and later relocated to Sokobati/ Magomeni 'B'Market located at Magomeni B'Street, Mtwara Mikindani Municipal Council. The plaintiffs also seek payment of TZS 559,485,100/= as specific damages resulting from their wrongful eviction from the suit premises without any notice, TZS 100,000,000/= as general damages, interest on the decretal sum, and costs of the suit. 5. That the plaintiffs were lawful tenants of the 1st defendant and conducted their business at the renowned Sabasaba Market. Later, they were forcefully relocated to Sokobati/Magomeni 'B'Market by the 1st defendant following an advertisement made on 9n June 2020, offering them the opportunity to build market stalls (vizimba) at Sabasaba Market. 2 6. That the plaintiffs acquired the premises at Sabasaba Market through lease agreements with the 1st defendant. However, on 2nd June 2021, they were violently and forcefully evicted from the market without prior notice, despite being in valid contractual relationships. In doing so, the 1st defendant destroyed the plaintiffs' goods, including vegetables, and their market stalls (mabanda/ vizimba). 8. That after prolonged and unproductive negotiations, the 1st defendant directed the plaintiffs to relocate to Sokobati/ Magomeni B' Market, promising that they would not face any interference or disturbance except for the collection of taxes and duties. 9. That the plaintiffs relocated to Sokobati/Magomeni 'B'Market on 3d June 2021, made improvements to the market, and peacefully conducted business alongside fellow traders who had been there since 1982 without interference from any government entity. 11. That, without any legal justification, on 2nd June 2021, the 1st defendant announced the closure of Sabasaba Market On the same night, the 1* defendant and his agents destroyed the plaintiffs' goods and market stalls (mabanda), arrested the plaintiffs, and threatened 3 them not to re-enter the premises illegally or unprocedurally. This caused significant financial losses and disruptions to the plaintiffs’ livelihoods. 12. That the plaintiffs complied with the 1st defendant's directive to relocate to Sokobati/ Magomeni 'B' Market and began operating their businesses there peacefully until 2022. 13. That, without justification, on 2nd August 2022, the 1st defendant and his agents demolished the plaintiffs’ stalls (mabanda), destroyed their goods, arrested them, and threatened them not to conduct any business activities in Sokobati/ Magomeni 'B'Market. The plaintiffs pray forjudgment and a decree against the defendants jointly and severally as follows; (a) An order declaring that the plaintiffs are and have been lawful tenants of the premises known as Sokobati/ Magomeni B' Market, located at Magomeni 'B'Street, Mtwara Mikindani Municipal Council, (b) Payment of TZS 559,485,100/= as specific damages for the destruction ofgoods, stalls (mabanda), and other losses incurred at the premises. 4 (c) Payment ofgeneral damages to the tune of TZS 100,000,000/=. (d) Interest on the decretal sum at the rate of30% per month from the date ofjudgment until full settlement. (e) Costs of the suit. (f) Any other relief deemed appropriate by the court. In response, the defendants jointly contended the following in their written statement of defence; ’4 The contents ofparagraph 4 of the plaint are partly admitted to the extent that the 1st defendant entered into agreements with some of the plaintiffs, allowing them to establish market stalls (vizimba) at the Sabasaba Market for a one~year term from 2020 to 2021. However, the contract expired and was never renewed. The remaining averments are strongly disputed, and the plaintiffs are put to strict proof thereof. 5. The contents of paragraphs 8 and 9 are strongly disputed. The defendants assert that after the expiration of the one-year contract, the 1st defendant completed the construction of a modern market known as Chuno Market, which was open to any businessman willing 5 to enter into an agreement with the 1st defendant. The defendants deny having directed or allocatedthe plaintiffs to Sokobati/Magomeni, which was no longer in use. They further assert that any person using Sokobati/ Magomeni without a contract was a trespasser. 6. The contents ofparagraphs 10, 11, and 12 of the plaint are strongly disputed. The plaintiffs are put to strict proof thereof. The defendants reiterate the contents ofparagraphs 2 and 5 above.' Paragraph 13 of the plaint has similarly been contested, with the defendants putting the plaintiffs to strict proof thereof. Consequently, the defendants have prayed for the dismissal of the suit with costs. It is trite law that civil claims are instituted by a plaint. Once the plaint is duly filed, the defendant is afforded the opportunity to respond through a written statement of defence. See, Order IV Rule 1 and Order VIII Rule 1 of the Civil Procedure Code [Cap. 33 R.E. 2019]. It is also a cardinal principle of law that, parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. See the case of Crescent Impex (T) Limited v. Mtibwa Sugar Estates 6 limited (Civil Appeal No.455 of 2020) [2023] TZCA 17501 (16 August 2023) and Maria Amandus Kavishe v, Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023). This is the essence of framing issues prior to the commencement of the hearing, as pleadings serve to crystallize the matters in controversy. From the parties' pleadings, the court, in agreement with the parties, framed the following issues for determination; 1. Whether there a lawful tenancy agreement between the plaintiffs and the 1st defendant. 2. If the first issue is answered in the affirmative, whether the defendants breached the said tenancy agreement. 3. Whether the defendants unlawfully evicted the plaintiffs from the disputed premises. 4. What reliefs, if any, are the parties entitled to. At the hearing of this matter, Mr. Idd Mussa Msawanga, learned counsel, appeared for the plaintiffs, while Mr. Maroa Wambura, learned State Attorney, appeared for the defendants, 7 To substantiate their case, the plaintiffs presented eight witnesses, namely; Kassimu Kova Mkalehe (PW1), Mohamed Ismail Mnapela (PW2), Mikidadi Said Bakari (PW3), Hamisi Abilahi Mtawike (PW4),. Musa Haji Chingungwa (PW5), Said Bakari Mnyachi (PW6), Hawa Said Machimachi (PW7), and Juma Issa Njalau (PW8). In addition, they relied on three documentary evidence, twenty-six tenancy contracts for stalls at Sabasaba Market (Exhibit Pl); Two tenancy agreements at Sabasaba Market (Exhibit P2); A list of traders’ names, including the amounts representing property damaged on 3rd August, 2022 at Magomeni Market (Exhibit P3). On the other hand, the defence case was supported by the testimony of two witnesses; Steven Macha (DW1) and Andy Nyamsangya (DW2). In sum, through their evidence, the plaintiffs' witnesses testified that some of them were lawful tenants and traders operating at Sabasaba Market until 2nd June, 2021 when the market was demolished, resulting in damage to their properties. The plaintiffs further narrated that after the demolition of Sabasaba Market, they opted to relocate their businesses to Sokobati/ Magomeni 'B' 8 Market. Upon arrival, they were received by PW6, the chairperson of Sokobati/ Magomeni 'B' Market, who provided them with guidance and procedures. The plaintiffs expressed satisfaction with the arrangement and commenced their business activities at the said market on 4th June, 2021. The evidence further revealed that on 3rci August, 2022 the 1st defendant once again demolished the plaintiffs' business structures at Sokobati/ Magomeni 'B' Market. This demolition affected not only the plaintiffs who had relocated from Sabasaba Market but also the traders who had been conducting business at Sokobati/ Magomeni 'Br Market before. According to PW6, out of the 278 complainants in this suit, 163 were originally traders from Sabasaba Market, while 115 were longstanding traders at Sokobati/ Magomeni 'B' Market. PW1 tendered a total of 26 tenancy agreements related to Sabasaba Market, which were admitted into evidence. These agreements indicated that the leases ought to expire on 30th June, 2021. Based on this evidence, the plaintiffs sought the reliefs outlined earlier in this judgment. 9 In their defence, the defendants, through DW1 and DW2, denied the allegations of demolition at both Sabasaba Market and Sokobati/ Magomeni 'B' Market. They also denied issuing directives for traders to relocate from Sabasaba Market to Sokobati/ Magomeni 'B' Market. Instead, the defendants contended that traders from both markets were directed to move to Chuno Market. They emphasized that only traders with valid contracts with the 1st defendant were permitted to remain at Sokobati/ Magomeni 'B' Market. In view of their defence, the defendants prayed for the plaintiffs' claims to be dismissed. I have opted to commence by outlining the claims as set out in the plaint and the corresponding responses as contained in the written statement of defence. This approach aims to facilitate a clear comparison between the claims, the evidence presented, and the reliefs sought by the plaintiffs to determine their correlation. In resolving this dispute, I will be guided by the cherished principle of law that, in civil cases, the burden of proof lies on the party who alleges anything in his favour as provided under sections 110 and 111 of the Evidence Act [Cap. 6 R.E. 2022] (the TEA). io Also, the party with legal burden bears the evidential burden and standard in each case on the balance of probabilities as provided under section 3 (2) (b) of the TEA. See also the case of Paulina Samson Ndawawa v. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019). Having established the foundation of the case, I now address the issues for determination, starting with whether there is a lawful tenancy agreement between the plaintiffs and the 1st defendant. Before delving into the determination of whether there exists a lawful tenancy agreement between the plaintiffs and the 1st defendant, it is imperative to clarify the scope of the issue under consideration. The plaintiffs' claims revolve around their alleged relocation to Sokobati/ Magomeni 'B' Market, where they now seek to be declared lawful tenants. Although some of the evidence tendered pertains to their tenancy agreements at Sabasaba Market, this aspect is not central to the issue at hand. The reason for this distinction lies in the plaintiffs' own pleadings and relief sought. The plaint explicitly requests a declaration of lawful tenancy n at Sokobati/ Magomeni 'B' Market, not Sabasaba Market. Furthermore, while the plaintiffs tendered agreements relating to Sabasaba Market, those agreements expired on 30th June, 2021 and cannot form the basis for a claim concerning Sokobati/ Magomeni 'B' Market. The plaintiffs allege that their relocation to Sokobati/ Magomeni 'B' Market occurred on 2nd June, 2021 suggesting a separate tenancy relationship distinct from Sabasaba Market. It follows, therefore, that the primary issue for determination is whether there exists a lawful tenancy agreement between the plaintiffs and the 1st defendant specifically in relation to Sokobati/ Magomeni 'B' Market. The circumstances surrounding the tenancy agreements at Sabasaba Market, while part of the narrative, are not material to resolving the plaintiffs' claims regarding Sokobati/ Magomeni • B-' Market. Turning now to the issue, the existence of a lawful tenancy agreement between the plaintiffs and the 1st defendant at Sokobati/ Magomeni 'B' Market remains unproven. The evidence provided reveals several inconsistencies and gaps that undermine the plaintiffs' case, The plaintiffs allege that they were relocated to Sokobati/ Magomeni 'B' Market on 2nd June, 2021 following the alleged demolition of Sabasaba 12 Market. However, there are contradictions between their pleadings and oral testimony. While the plaint claims that they were relocated by the 1st defendant, their testimony suggests they were forced to move after Sabasaba Market was demolished. This inconsistency raises doubts about the plaintiffs'version of events. Moreover, the agreements tendered as evidence pertain solely to Sabasaba Market. There is no indication that these agreements were extended to cover Sokobati/ Magomeni 'B' Market, nor was any new agreement tendered to establish a tenancy relationship at Sokobati/ Magomeni 'B' Market. A tenancy agreement is specific to the premises it governs, and the plaintiffs have failed to demonstrate a connection between the expired Sabasaba agreements and their subsequent occupation of Sokobati/ Magomeni 'B' Market. The testimony of PW6, the chairman of Sokobati/ Magomeni 'B7 Market, further weakens the plaintiffs' case. According to PW6, the plaintiffs relocated voluntarily and organized their business activities at Sokobati/ Magomeni 'B' Market without any involvement from the 1st defendant. The defendants, through DW1 and DW2, denied both demolishing Sabasaba Market and relocating the plaintiffs to Sokobati/ Magomeni 'B' Market. 13 Instead, they stated that traders from Sabasaba Market were instructed to move to Chuno Market. Even if the agreements for Sabasaba Market were valid as of 2nd June, 2021 their enforceability became moot upon the plaintiffs' alleged relocation to Sokobati/ Magomeni 'B' Market. A tenancy cannot subsist without the subject premises, and the plaintiffs have not provided any evidence to show that their tenancy rights were transferred or extended to Sokobati/ Magomeni 'B- Market. In conclusion, the plaintiffs have failed to establish the existence of a lawful tenancy agreement with the 1st defendant at Sokobati/ Magomeni 'B' Market. The inconsistencies in their pleadings and testimony, the lack of evidence proving a tenancy relationship at Sokobati/ Magomeni 'B' Market, and the absence of a direct link between the Sabasaba Market agreements and Sokobati/ Magomeni 'B' Market all lead to the inevitable conclusion that no such tenancy agreement existed. The issue is therefore answered in the negative. Consequently, there is no need to address the remaining issues, as their determination depends on the resolution of this issue. In the upshot, this suit is dismissed with costs. 14 It is so ordered / Dated at Mtyvara this 29th November, 2024. M.B. Mpaze Judge Court': Judgment delivered today in the presence of Mr. Maroa Wambura, the defendants' learned State Attorney and the plaintiffs in person on behalf of 274 Others. M. B. Mpaze Judge 29/11/2024 15