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- IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA • MOROGORO SUB-REGISTRY [AT MOROGORO] LAND APPEAL CASE NO. 7968 OF 2024 {Arising from Land Application No 103 of2022 ofthe District Land and Housing Tribunaifor Morogoro) NATIONAL MICROFINANCE BANK PLC APPELLANT LJ INTERNATIONAL LIMITED 2^0 APPELLANT VERSUS KULWA DIONIZ LUSANA RESPONDENT MAJIGE SIMON MZULINGI 2^^ RESPONDENT NATIONAL BANK OF COMMERCE LTD 3^° RESPOINDENT JUDGMENT 04/06/2024 & 30/07/2024 KINYAKA, J.: On 6^^ June 2014, the 1^ respondent, Kulwa Dioniz Lusana being a successful bidder in a public auction that was conducted by the 2"*^ appellant, LJ. International Limited entered into a sale agreement with the 1^ appellant, National Microflnance Bank PLC in respect of a mortgaged property situated on Plot No 2, Block "A" at Majengo Mapya area in Morogoro Municipality hereinafter the "suit premise". It was alleged before the District Land and Housing Tribunal of Morogoro hereinafter, the "Tribunal" in Land Application No. 103 of 2022 that the hr suit premise was initially a property of the respondent, Majige Simon Mzulingi who defaulted to repay a loan advanced to him by the appellant. According to the pleadings and evidence on record, after the conclusion of the sale agreement, the respondent occupied the suit premise by conducting his agricultural products business but was not handed the title deed to the suit premise despite his constant follow ups. In 2018, it came to his knowledge that the 3^^ respondent, the National Bank of Commerce hereinafter,"NBC" had instructed the 2"^^ appellant to sell the suit premise through a public auction following the 2"^ respondent's default to repay the outstanding loan amount he owed to the bank. Consequently, the 1^ respondent rushed to the Tribunal where he instituted Land Application No. 103 of 2022 claiming for the following reliefs:- A A declaration that the respondent was a bonafide purchaser for value ofplot No. 2Block "A- Majengo Mapya in Morogoro Municipality; a. Declaration that the suit property belongs to the respondent; UL A declaration thatanysubsequentpurported alienation orsale of the suit property after the respondent successfully purchased the landed property is unlawful; iv. A permanentinjunction restraining the appellants, the and the respondent by themselves or their successors in title or assigns, contractors, agents, workmen, servants or whoever claiming titie under them from trespassing and/or selling the suit premises, carrying out any eviction thereon and/or interfering in any way with the respondents legal possession and occupation ofthe suitproperties; V. An order that the first appellant refunds to the respondent Tshs 12, 446,902.69 for electricity bills; vi. A declaration that the first appellant handover the titie deed to the 1^ respondent; vii. An order against the first appellant for payment of monetary value ofaii developments effected on the suit property from 2014 to the date of the institution of the suit to the tune of TZS 126,210,00 as assessed by the government valuer and TZS 50,000,000/= as a fuii purchase price paid by the respondent to the first appellant; via. Payment ofgenera!damages to be assessed by the tribunal; ix. Costs ofthe suit; and X. Any other reliefs the tribunal would deemed fit and just to grant Upon hearing the evidence from both parties, the Tribunal dismissed the respondent's prayer for declaration that he was the bonafide purchaser of the suit premise on the ground that the appellant had no better title to pass to him. It however ordered the appellant to repay back to the respondent the purchase price of the suit premise amounting to TZS 50,000,000; a total amount of TZS 12,446,902.69 that the respondent incurred for payment of electricity bills debt that accumulated before he h:=> 3 .-'M' •* ' * , ' purchased the suit premise; TZS 126,210,000 as trionetary value for all developments effected on the suit property from 2014 to the date of the institution of the suit as assessed by the government valuer; and TZS 30,000,000 for general damages. The Tribunal also ordered for costs of the suit to be borne by the P'appellant. Both the 1^ and the appellants were aggrieved with the whole decision of the Tribunal. In an attempt to assail the said decision, they have lodged the present appeal on five grounds reproduced below; (i) The District Land and Housing Tribunal for Morogoro at Morogoro erred in law when decided that the applicant was not a bonafide purchaser of plot no 2 Block "A" Majengo Mapya Morogoro Municipality at the same time deciding that the first respondent breached a contract of sale of land by not delivering the title deed to the applicant; (ii) That, the Tribunal erred in law when decided that the first respondent should compensate the applicant for the improvements on Plot No. 2 Block "A" Majengo Mapya while the applicant did not strictly prove such developments; (iii) That, the Tribunal erred in law when ordered the first respondent to refund the applicant TZS 12,446,902.69 while the same is not a loss naturally arising from the failure to auction sales; (iv) That, the Tribunal in the District Land and Housing Tribunal erred in law when it awarded general damages based on mental anguish and psychological torture while the same were not pleaded in the application and proved in evidence; and (v) That, the District Land Housing Tribunal for Morogoro at Morogoro erred in law when it granted declaratory orders which were time barred. The appeal was canvassed in writing. On the date the appeal was tabled before me for hearing, learned Advocate Esther Shoo entered appearance for the appellants, though it was Advocate Jackson Liwewa who drew and filed the appellants' written submissions. On the other hand, the respondent enjoyed the legal services of Mr. Ignas Punge, learned advocate holding brief of Advocate August Mramba who joined forces with Mr. Michael Kasungu, also learned advocate in drawing and filing the respondent's reply submission. As for the 2"^ respondent, the matter proceeded ex parte against him following his nonappearance despite being served through both ordinary summons and substituted service. On the other hand, the 3'^ respondent had the legal services of Ms. Kanisla Komba, holding brief for Advocate Dickson Tugara. However, the 3'^ respondent's reply submissions were drawn and filed by Mr. Ngolo Baiele, learned Advocate. In his submission, Mr. Liwewa abandoned the first ground of appeal and argued the fifth ground, followed by the second, third and lastly the fourth ground of Appeal. Fortified by the cases of CRDB (1996) Ltd v. Boniphace Chimya [2003] TLR 413 and Isaya Linus Chengula (as administrator of the Estate of the late Linus Chengula) v. Frank Nyika (as administrator of the Estate of the late Asheri Nyika), Civil Application no 487/13 of 2020, the appellants' submission on the fifth ground of appeal was to the effect that Application No. 103/2022 the subject matter of this appeal was filed out of time. He elaborated that the 1^ respondent fifed the application 8 years after the cause of action arose and hence he was time barred in respect of her claimed reliefs in paragraphs (a), (b) and (c) as the same were declaratory orders which ought to have been preferred within 6 years from the date when the cause of action arose. He added that the relief (f) is a detinue aspect whose limitation period is 3 years as per paragraph 6 of part I of the Law of Limitation Act, Cap. 89 R.E. 2019 hereinafter, the "LLA". On that basis, Mr. Liwewa prayed that the declaratory orders granted by the Tribunal be set aside with costs for being time barred. As for the compensation of TZS 126,210,000 on improvements made on the suit premise, the learned counsel cited paragraph 1 of Part I of the schedule to the Law of Limitation Act, Cap. 89 R.E, 2019 and the case of ■ . . .. -f * Chibundi Company Ltd v. Tanzania National Road Agency and 3 others, Land Case No. 127 of 2011, to cement his assertion that the same were supposed to be brought in court within one year. He therefore contended that by instituting the suit beyond the time prescribed by the law, the 1^ respondent was time barred and thus prayed that the award of TZS 126,210,000 be dismissed with costs. In support of the second ground of appeal, it was Mr. Liwewa's argument that the 1^*^ respondent didn't strictly prove the damage as neither did he explained what he found on the ground when he purchased the warehouse nor what he did to improve the same that is worthy TZS 126,210,000. To substantiate his contention, he referred the Court to the decision of the Court of Appeal in the case of Tanzania Electric Supply Company Ltd v. Timber Enterprises Ltd, Civil Appeal No. 26 of 2000, where on page 6, the Court held that where special damages are claimed they must be proved in evidence. With regards to the third ground, the appellants' advocate faulted the Tribunal for awarding the 1^ respondent TZS 12 446 902.69 while the same was not a loss naturally arising from the failure to auction sales. He made reference to section 73 of the Law of contract Act Cap. 245 R.E. 2019 hereafter, the "LCA" which provides clearly that losses which arise out of breach of contract, rnust be those which naturally arise from the breach. According to him, claims for refund of electricity bills paid by the respondent which were existing at the time of the sale of the godown were wrongly handled by the Tribunal as the same were not natural losses arising from the breach of the contract, but merely issues between the former user of electricity and TANESCO. On the fourth ground, Mr. Liwewa complained that the award of TZS 30,000,000 as general damages to the respondent for mental anguish and psychological torture was unjustifiable. He cited the cases of James Funke Gwagilo v. AG [2004] TLR 161 (CAT), Addi v. Gramophone Co. Ltd. [1909] AC 488 (ML), and Jarvis v. Sawn's Tours Ltd (1973] QB 233 to substantiate that the award of TZS 30,000,000 did not meet the conditions of the law as from the authorities above, psychological torture and mental anguish are only recognized in leisure situations such as'hollday and entertainments. On the basis of the foregoing submissions, the appellants'counsel prayed that this appeal be allowed and insisted that the application before the Tribunal was filed out of time, hence it ought to have been dismissed with costs. The appellants' submissions were strongly resisted by the respondents. I will commence with the reply by the 1^ respondent. In their reply submissions as to the fifth ground, the learned counsels for the 1^ respondent contended that the issue regarding the trial tribunal's jurisdiction to entertain the dispute, ought to have been raised at the trial 8 ^ tribunal so as equal avenue would have been provided to both parties to produce evidence on the same, which cannot be possible at this appellate stage. To buttress their argument, they cited the case of The DPP v. Bernard Mpangala & Others, Criminal Appeal No. 28 of 2001 (unreported), which was cited with approval by the Court of Appeal of Tanzania in the case of Juma Said v. Republic, Criminal Appeal No. 29 of 2018) 2021 TZCA 3550 (1 December 2021). Nevertheless, the learned counsels contended that the District land and Housing tribunal of Morogoro had jurisdiction to entertain the said dispute under section 33 of the Land Disputes Courts Act, Cap 216, R.E. 2019 hereinafter, the "LDCA". They said, the dispute amongst the parties was on ownership over a disputed plot of land whose period of limitation is 12 years as provided for by paragraphs 18 and 22 of Part I of the schedule to the LLA. The counsels distinguished the case of CRDB(1996) Ltd v. Boniface Chimya [2003] TLR 413, in which the court was called to determine a dispute inclined on tortious liability while in the present appeal the dispute that exists between the 1^ respondent and the appellants herein is on the ownership of land and the recovery of the principal sum paid in the purchase of a plot of land. They went on submitting that the declaratory orders granted by the Tribunal were not time barred since the cause of action arose in January 2019 when the first respondent became aware of the third respondent's 9 ^ ^ re-sale of the suit premise by public auction through the 2"'^ appellant. They cited the case of Exim Bank (T) Limited v. Agro Impex (T) Limited and Two Others, Land Appeal No. 29 of 2008, (HC) (unreported), cited with approval in the case of Willium Sabuka v. Safari Sipembo (Land Appeal 31 of 2018) 2020 TZHC 1002 (29 May 2020) and RADI Services Limited vs STANBIC Bank T Limited (Civil Appeal No. 260 of 2020) 2023 TZCA 17492(11 August 2023) to'back up their submission. As for the second ground, the counsels asserted that the 1^ respondent proved his claims on the developments he had made over the plot In dispute during the'trial proceedings through tenderirig a valuation report (Exhibit PE9) prepared by a government valuer from Morogoro Municipality, one Joseph Mghase (PW3) which indicated that the improvements were worthy 126,210,000. As such, they prayed for the court to find the ground unmerited. Submitting on the third ground, the learned counsels supported the trial tribunal's order that the 1^ appellant should refund the 1^ respondent TZS 12,446,902.69 on a reason that the 1^ Respondent purchased the suit premise from the 1^ appellant upon being made to believe that the appellant owned the property, and upon purchase he was led to pay for electricity bills debt he never used in the first place. According to him, had 10 the appellant handed over the tittle deed to the respondent the claims would not arise at all. Expounding on the fourth ground, the learned advocates cited the case of Cooper Motors Corporation Ltd v. Moshi/Arusha Occupational Health Services [1990] T.L.R. 96, and elucidated that the Tribunal was correct when relying on the principles established in the case of Tanzania Saruji Corporation v. African Marble Company Limited [2004] T.L.R 155), regarding general damages, as In their view, the damages awarded by the trial chairman were a direct consequence of the appellant's wrongdoing. In the end, they distinguished the cases of James Fuhke Gwagilo (supra) and Jarvis (supra) for being irrelevant to the present case and prayed for this e Court to uphold the judgment of the Tribunal with costs. On his part, on behalf of the 3'"'' respondent, Mr. Balele submitted against the grounds of appeal as argued by the appellants with exception to the third and fourth grounds which he abandoned oh a reason that the same does not implicate the 3^^ respondent. He commenced his submission by attacking Mr. Liwewa's act of abandoning the first ground of appeal. According to him,the same Implied that the appellants conceded to the Tribunal's holding that the Respondent was not a bonafide purchaser and thus the appellant was 11 in breach of contract of sale of land by not delivering the title deed to the respondent. Regarding the fifth ground of appeal, Mr. Balele attacked the appellants' reliance on the case of CRDB(1996)Ltd v. Boniphace Chimya [2003] T.L.R 413 which he argued, was distinguishable from the present dispute. He submitted that in CRDB (1996) Ltd (supra) the matter dealt with a movable property while the present dispute relates to immovable property. He relied on the decision of the Court of Appeal in the case of Herieth Kasidi v. Agust'mo Bushiri, Civil Appeal No. 480 of 2020 [2023] Court of Appeal of Tanzania, and contended that the cause of action the respondent had, was for ownership of the property after he found out that he was possibly discontinued from or dispossessed of the legal title or ownership to the suit property in the year 2018 when the suit property was advertised for auction by the 3^^ Respondent. He said, as per section 9(2) of the LLA, from the 2018 to 2022 when the matter from which the instant appeal emanates was filed, only four (4) years had lapsed from the 12 years' time set under Part I paragraph 22 of the Schedule to the LLA. Cementing his submission on the fifth ground, the learned counsel cited the case of Siginon Tanzania Limited v. CFAO Motors Tanzania limited, Comrnercial Case No. 6 of 2023 HC at Dar es salaam on pages 29 and 30 and insisted that the application at the Tribunal was instituted hsr 12 .. . . within prescribed time, and thus prayed for dismissal of the ground for lack of merit. Responding to the second ground, the learned counsel contended that as most of the accusations are against the appellant herein, she is one who should be held liable for compensation to the respondent and not the 3^*^ respondent. He explained that where a bonafide purchaser discovers that the seller had no rightful title to the land, their legal recourse is-against the seller and that a bonafide purchaser who bought land from someone without proper title, cannot claim against the true owner. In his view, such person must instead seek recourse against the person who fraudulently sold the land to him. In conclusion,the Mr. Balele prayed for this Court dismiss the appeal with costs. In his rejoinder) Mr. Liwewa submitted that the time limit set for the claims to be sought in court in case of declaratory order and breach of contract is 6 years as per paragraph 24 of Part I of the Schedule to the LLA as discussed in the decision of the Court of Appeal in CRDB(1996) Ltd v. Boniphace Chimya [2003] TLR 413. He attacked the learned counsels for the 1^ respondent for coming up with evidence out of the court record in paragraph 2 of page 2 of their submissions to justify that he is within time limit. As such, he relied on the decision of the Court of Appeal in the case of Juma Jaffer Juma v. Manager Ltd and 2 others, Civil Appeal No. 7 of 2002(unreported) and , ■ ' 13 • - Cf. the decision of the Court of Appeal In Peter Ng'homango v« Gerson M.K. Mwangwa & the AG, Civil Appeal No. 10 of 1998 and prayed for the paragraph to be expunged from the court's records. As regards to the 1^ respondent's complaint on the jurisdictional issue being raised at this appellate stage, it was Mr. Liwewa's submission that the point raised is a pure point of law which does not require evidence as suggested by the counsels for the 1^ respondent and hence, the argument should be dismissed. As to when the cause of action arose, the'appellants' counsel reiterated his submission in chief. He elaborated further that the contract between the 1^^'^ appdlant and the respondent was signed on June 2014, as shown in Exhibit PE6 where the six years began to run, and expired on 5^^ June 2020. He Clarified that the detention of a title deed, claim for refund of electricity bill and the compensation for improvements from 2014 up to 2022 wtien the application was filed, were not about land ownership but a normal civil claim and thus all reliefs seeking a declaratory order whose time limit is 6 years were time barred. As for the second ground, Mr. Liwewa submitted that the 1^ respondent did not adduce evidence to show what he did in terms of renovations as Exhibit PE 9 (the evaluation report) simply indicated the value of the property at the time of conducting the said valuation but it never disclosed anything done by the P- respondent on the ground. 14 ■ r ■ <te On the third ground, Mr. Liwewa argued that the electricity bill ought to have been paid by the 2"^ respondent as according to him, the retention of the title deed is not what caused the respondent to incur electricity bills. He cited the case of Tanzania Saruji Corporation v. African Marble Limited [2004] T.L.R 155 on page 160 and prayed that this ground of appeal be upheld. As regards to the fourth ground, Mr. Liwewa reiterated his submission in chief on the ground and stressed that psychological torture and mental distress Is not a natural consequence of failure to hand over the title deed. Finally, the appellants'learned counsel urged the Court to allow the appeal with costs. Upon conclusion of the parties' submissions, and upon the appellants' abandoning of the first ground of appeal, I now move to decide on the remaining four grounds of appeal, that is the 2^^, 3^^ 4^^ and 5^^^ grounds of appeal. In line with the parties' submissions, I will commence my determination of the appeal with the fifth ground followed by the second, third and fourth grounds of appeal. in the first ground, Mr. Liwewa argued that the 1^ respondent filed a suit after 8 years from when the cause of action arose and therefore the reliefs claimed by the 1^*^ respondent in reliefs (i), (ii), and (iii) for declaratory orders were time barred as the limitation period for the sarne is 6 years from the date the cause of action arose. He added that the relief claimed 15; in paragraph (vi) being a ciaim of a tortious nature, vjas also time barred as it was supposed to be preferred within 3 years from the time the cause of action arose. The and 3'''' respondent resisted the argument by submitting that the dispute was over the recovery of land whose limitation period is 12 years and hence the Tribunal was correct to determine the suit. I will start with the 1^ respondent's argument that the appellants ought to have raised the issue of time limitation before the Tribunal and not at this stage of the appeal. I decline the Invitation by the 1^ respondent. It is my considered position that a point of law be it of jurisdiction or time limitation may be raised at any stage of the suit even at the appellate stage. The issue of time limitation go the root of the jurisdiction of the court to entertain a dispute. Pursuant to the above position, I would not fault the appellants if they had raised the issue of limitation of the suit at this stage. To the contrary, the appellants raised the time limitation aspect in some selected reliefs claimed by the 1^ respondent in the suit before the Tribunal. This Is regardless of the fact that the 1=^ respondent's entire claim was for recovery of the suit premise that he bought from the appellant through public auction conducted by the 2"=" appellant, hence falling squarely Under paragraph'22 of Part I of the Schedule to the LLA whose period of limitation is 12 years. 16 ' The above takes me to the merit of the parties' contentions in the fifth ground of appeal. I have already held above that the respondent's suit before the Tribunal was for recovery of the suit premise that he bought from the appellant. The narration of the facts, the cause of action and the reliefs claimed in the respondent's Land Application No. 103 of 2022 are very clear and straight forward. The evidence adduced before the Tribunal through oral testimony of the 1^ respondent(PWl) and Atupele Lusajo Mwangupili, the 1^ appellant's Relations Officer (DWl) established, that the former purchased the suit premise from the 1^ appellant but the appellant failed to hand over the certificate of title from 2014 when the sale was concluded contrary to clause 5 common to the Sale Agreements admitted collectively as Exhibit PE 6. Despite the 1^ appellant's default to hand over the certificate of title, the 1^ respondent enjoyed the occupation and possession of the suit premise until January 2019 when it came to his knowledge that the suit premise was advertised for auction through Majira Newspaper of 9^^ November 2018(Exhibit PE7). This fact was stated in paragraph 6(a)(xiv) and (xv) of the 1^ respondent's application at the Tribunal which was not disputed by the appellants in their written statement of defence. Notably, the 1^^ respondent prayed for declaration that lie was a bonafide purchaser for value of plot No. 2 Block ''A"- Majengo Mapya in Morogoro Municlpaiity; declaration that the suit property belongs to him; declaration 17 iiiiiiifT . ..tf I- - that any subsequent purported alienation or sale of the suit property after he successfully purchased the landed property Is unlawful; permanent injunction restraining the appellants, the 2"^,and the 3^^ respondent by themselves or their successors in title or assigns, contractors, agents, workmen, servants or whoever claiming title under them from trespassing and/or selling the suit premises, carrying out any eviction thereon and/or interfering in any way with his legal possession and occupation of the suit properties; an order that the first appellant refunds TZS 12, 446,902.69 to him for electricity bills; declaration that the first appellant handover the title deed to him. The 1^ respondent prayed for an order against the first appellant for payment of monetary value of all developments effected on the suit property from 2014 to the date of the institution of the suit to the tune of TZS 126,210,00 as assessed by the government valuer, and TZS 50,000,000 as a full purchase price paid by the 1^^ respondent to the first appellant as alternative to his claims In items (i) to (vii). He further prayed for payment of general damages to be assessed by the tribunal; costs of the suit; and any other reliefs the Tribunal would deemed fit and just to grant. From'the above pleadings and evidence, it is clear to me that the cause of action arose when the 1^*^ respondent became aware of the advertisement of sale of the suit premise in January 2019. In my view, it ■ 18 ' ^ is in January 2019 when the cause of action arose. It means that counting from January 2019 to 20^^ December 2022, the 1^ respondent spent 3 years to file his suit which was well within the limitation period of 12 years as provided for in paragraph 22 of Part I of the Schedule to the LLA. In my above finding that the cause of action began to run in January 2019 when the 1^^ respondent became aware of the intended sale of the suit premise by public auction tantamount to dispossession or discontinuance of his possession of the suit premise, I find solace from section 9(2) of the LLA that provides:- 9(2) Where the person who institutes a suit to recover iand, . or some person through whom he ciaims/ has been in possession ofand has, whiie entitied to the iand, been dispossessed or has discontinued his possession, the right ofaction shaii be deemed to have accrued on the date ofthe dispossession or discontinuance. In my reading of the above provision of the law in line with the facts pleaded in the land application, I am of the position that the suit was for recovery of land considering the nature of the cause of action and the reliefs claimed. Clearly, all the reliefs prayed by the 1^^ respondent relate to recovery of the suit premise from the 1^ appellant. The alternative prayers for refund of monies and developments, is ancillary to the ownership of the suit premise which the respondent incurred upon taking possession of the same believing that the suit premise is his. 19 In buttressing their position, the appellants cited the case of CRDB (1996)Ltd (supra). As correctly submitted by the and 3''' respondents, the case is distinguishable from the present dispute. While in CRDB (1996) Ltd (supra), the Court of Appeal dealt with a tortious claim relating to a movable property, in the present case the Tribunal dealt with an immovable property in which the respondent claimed for recovery of the suit premise from the seller, the 1^ appellant after he became aware of the publication for re-sale of the same. In holding as above, I am fortified by the decision of the Court of Appeal in the case of Herieth Kasidi (supra) where in similar situation like the present one, the Court disapplied its decision in CRDB (1996) Ltd (supra) by holding, on page 4 through to 5, that:- .Indeed, the crux ofthe matter was, as rightly put by the learned counsel for the respondent, the recovety ofland on which the respondent claimed that the appellant trespassed In 2011. This can be deciphered from the paragraphs referred to by the respondent's counsel. We are satisfied that the suit the subject matter-of this appeal was not founded on a tort of trespass but was one to recover land falling within the scope and pun/lew ofparagraph 22 ofPart 1 ofthe Schedule to the Law of Limitation Act whose limitation Is stated to be twelve years. This Is substantiated by the fact that. In the pleadings, each party to the suit claimed to have been the owner ofthe disputed parcel ofland.. ... 20 For avoidance ofdoubt, our decision in CRDB(1996)Ltd(v. Boniface Chlmya (supra); which was cited and reiied upon by the iearned counsel for the appellant is distinguishable from the present matter. In that case, what was at issue was inter aiia, a trespass to a motor vehicle, not iand and the subject ofthe suit was the tort ofconversion. The Court heid that the time oflimitation for that cause of action was three years in terms of the Law of Limitation Act It also held that the prescribed time limitation for seeking a declaratory order was six years; whether the relief sought was anciiiary or incidental to the substantive relief. In the circumstances, we find and hoid that our decision in CRDB (1996) Ltd v. Boniface Chimya (supra) is not directly relevant to the present scenario. We thus find complaint on time bar, the subject of the grounds one and two of the appeal, without merit and dismiss it Similarly, I find the appellants'complaint in the fifth ground of appeal that the respondent'^ reliefs in paragraphs (i),(ii), and (iil) of the application were time barred, without merit and I dismiss the same. I now proceed to determine the second ground of appeal. There are tv/o arguments in the ground. The first is that the claim for compensation was tinie barred and the second was that the amount awarded was not proven. I will start with the argument that the claim was time barred. It is clear in paragraph (vii) of his application that the respondent prayed in the alternative to the other prayers, for an order against the tss' ■ 21 appellant for payment of monetary value of all the development effected on the suit premise frpm 2014, to the tune of TZS 126,210,000 assessed by the government valuer and TZS 50,000,000 which was a full purchase price of the suit premise. As such, it is a misconception on part of the appellants to argue that the 1=* respondent's claim in the said paragraph was time barred pursuant to paragraph 1 of Part I of the Schedule to the LLA which requires a suit for compensation to be preferred vyithin one year from the time the cause of action arose. As per the decision of the Court of Appeal in the case of Herieth Kasidi (supra) cited above, it is my finding that the prayer ifor an order for payment of monetary value to the tune of TZS 126,210,000 and/or TZS 50,000,000 was ancillary and incidental to the suit found on recovery of suit premise that the 1=^ appellant sold to the 1=* respondent without having good title to the same. The TZS 126,210,000 covered development carried out on the suit premise and TZS 5O,OOO,OO0 covered the actual purchase price of the same by the 1^"' respondent in 20i4. The period for instituting such kind Of actions is twelve years as provided for under paragraph 22 of Part I of the Schedule to the LLA. I now proceed to determine the appellants' complaint that the order for payment of TZS 126,210,000 was made by the Tribunal without proof. The relevant part of the Tribunal's holding is found in paragraph 3 of page 22 . ■ - M - 21 through to 22 of the judgement. It is dear from the judgement that Tribunars order for the 1^ appellant to pay the 1^ respondent monetary value for all developments effected on the suit property from 2014 to the tune of TZS 126,210,000 relied on the evidence of Joseph Mghase(PW3) and the government's valuation report admitted as Exhibit PE9. From the testimony of PW3 and Exhibit PE9,1 do not find any reason to fault the government's valuation on the developments made by the 1^^ respondent that the government valuer found'in 2021 wheri he conducted valuation. It is apparent that the valuation of the suit premise was conducted, prepared and approved by the expert in valuation. It means that the valued contained therein proved the value of each item including the suit prertiise and other developments made therein. However, reading (Exhibit PE9), I find that the Tribunal erred to award the 1^ respondent t2s 126,210,000. Not only that but also, the Tribunal erred to award the 1^ respondent TZS 126,210,000 together with TZS 50;000,000, the purchase price of the suit premise. On page 3 paragraph 5.0 of Exhibit PE9, the method of valuation used was a replacement cost approach which was conducted to determine the replacerhent cost of the property determined by reference to Its replacement cost Of reinstating the suit premise as new or its substitute at the date of valuation, and' upon deduction of depreciation of the then observed condition of the'buliding. Page 8 of Exhibit PE9 Indicate that after deduction of depreciation, the then market value of the suit premise was TZS 119,691,034 upon valuing the market price of the suit premise per each square meter at the time of valuation. It also indicated that if the suit premise was to be sold at the forced sale value, the same would fetch value at TZS 89,770,000. On page 9 of"Exhibit PE9, the values for plant and machinery were indicated. It was established that TZS 7,2.10,000 and 5,047,000 were market and forced sale values, respectively, upon deduction of depreciation. It is clear from page 7 of Exhibit PE9 that the market value after depreciation of TZS 126,210,000 was based on the total market value for both the suit premise, the plant and machinery. To me, the order of the Tribunal for payment of TZS 126,210,000 against the 1^ appellant was made without considering two aspects. The first aspect is that according to the circumstance of the present dispute, the appellant ought to have repaid the 1^ respondent, the then market value of the suit premise (land and building) vvhlch the appellant sold to the 1^ respondent at the time of dispossession or discontinuance of the suit premise. The 1^ appellant did not sell and the 1^ respondent did not purchase from the appellant, plant arid machinery. The plant and machinery were properties bought by the 1^ respondent for his business which were outside the transaction of sale of land between the 1^ appellant and the ^ 24 - respondent. One would buy the suit premise and jive therein or rent to another person or cpnduct, for instance, a business of ,mobile money transfers services. In such circumstance, the market value of the property would not include any infrastructure made to conduct such kind of business. It was solely the respondent's decision to conduct such kind of business or investment. It is my respective view that the kind of business activity that the buyer engages after purchase of a land, cannot be held to be ancillary or incidental to the purchase of the land, unless the purchaser purchases a business and its business assets in order to further the particular business. This is not the case in the present dispute. It follows that the respondent was entitled to TZS 119,691,034 only as the market value of the suit premise that he purchased from the 1^ appellant valued at the time of imminent dispossession of the suit premise. In view of the above observation, it was wrong for the tribunal to order the 1^ appellant to pay TZS 50,000,000 in addition to the order of payment of TZS 126,210,000. It should be noted that the TZS 119,691,034 as the market value of the land established by the government valuer in November 2021, contained within it, the cost of the same suit premise that the 1^ respondent purchased from the appellant in 2014 at TZS 50,000,000. AiO- 25 It means that the 1=* respondent's cots of purchase of the suit premise of TZS 50,000,000 was embedded within the market value of the suit premise of TZS 119,691,034 which appreciated over the years from 2014 to November 2021. In the alternative, the Tribunal would have chosen between awarding he I®' respondent TZS 50,000,000 together with interest accrued from 2014 when the 1^ respondent purchased the suit premise from the 1^ appellant, or the market value of suit premise at the time of dispossession. It was incorrect for the Tribunal to order the 1^ appellant to pay both TZS 50,000,000 together with TZS 126,210,000 inclusive of the cost of plant and machinery. It is my finding that the market value of the suit premise at the time of valuation in 2021, which I have held that it was TZS 119,691,034, encompassed the TZS 50,000,000, being the then cots of the suit premise that the 1^ respondent purchased from the 1^ appellant. The second ground of appeal is partially allowed to the extent that the amount awarded by the Tribunal of TZS 126,210,000 together with TZS 50,000,000 was incorrect. For the purpose of recovery of the value of the suit premise, the 1^ respondent is entitled to TZS 119,691,034 as the value at the time of dispossession or discontinuance of the suit premise. Turning to the third ground, the 1^ appellant's complaint in the ground is that the Tribunal erred when it ordered refund of TZS 12,446,902.69 by the 1^ appellant to the 1^ respondent while tlie same is not a loss naturally 26 •Vk, .. arising from breach of contract. I will not take much time in adjudicating this issue. The evidence through testimonies of the respondent (PWl) Julius Nasire (PW2) and Exhibit PEll are very clear that upon purchase of the suit premise, the respondent had to pay accumulative electricity bills of TZS 12,446,902.69 on the suit premise. The cost is associated with the 1^ respondent's purchase and his possession of the suit premise after purchasing the same from the 1^ appellant. It is the cost ancillary and incidental to the purchase of the suit premise and therefore a foreseeable loss upon the 1^*^ appellant's breach of contract. It follows that upon the 1^ appellant's breach of the sale agreement by his failure to perform the covenants of the agreement, including his failure to pass title to the 1^ respondent, the latter was entitled to costs incurred which were direct and foreseeable to the breach of contract of purchase of the suit premise which the 1^ respondent was later on dispossessed. The loss was direct and not too remote to the 1^ appellant's breach of contract. The appellant knew that he had no title leave alone good title to the suit premise and proceeded to sell the same'to the 1^ respondent. As the appellant had no title to the suit premise, he knew, when he entered Into a contract for sale of the suit premise to the 1^ respondent, he will not heed to its terms including handing over title to the respondent 27 because he did not have it at the first place. The appellant knew that as a result of such fundamental breach, the respondent will sustain loss and damage including dispossession of the suit premise after incurring costs of purchase and other ancillary costs. Unlike the appellants' disapplication of section 73 of the LCA, I hold that the provisions of section 73 of the LCA squarely apply to the facts of the present dispute. Section 73(1) and (2) of the LCA provides:- 73(1) Where a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to I > him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to resultfrom the breach ofIt 73(2) The compensation is not to be given for any remote and indirect loss or damage sustained by reason ofthe breach. I therefore hold that the order of the Tribunal for the appellant to pay the respondent TZS 12,446,902.69 was correct both in fact and law. The third ground Is dismissed for lack of merit. The appellant's fourth ground' is a complaint on the award'of general damages based on mental anguish and psychological torture. The 1^ ^zy- 28 '■■■' ■ •' ■■ " r- -■ -r. - appellant complained that the same were neither pleaded nor proven by the respondent. I have scanned the respondent's application in relation to the foregoing complaint. Unambiguously, the respondent prayed for general damages in paragraph (ix) of the application. I also do not accept the appellants' argument that general damages were ndt proven in evidence. It is a trite law that the award of general damages Is at the discretion of the court which should be exercised judiciously [See the decisions of High Court In the case of Mr. Erick John Mmari v. M/s Herken Builders Ltd, Commercial Case No. 138 of 2019(unreporfed) on page 61 and [see thei case of Yara Tanzania Limited v. Charles Aloyce Msemwa & Others, Commercial Case 5 of 2013(unreported) on page 8]. It is undeniable that the 1^^ respondent proved through in his evidence that he purchased the suit premise since 2014, made some developments and has been conducting his business at the suit premise. The evidence of PWl and DWl established that the 1^^ appellant failed to hand over the title documents to the 1^ respondent despite his constant follow up since 2014. it should also be noted that upon the Tribunal's declaration that It is the 3'^^ respondent who had good title of the suit premise, the 1^ respondent lost possession or the then ownership of the suit premise. PWl established 29 ■ Hr, at the trial that he was conducting business of selling agricultural products, and had bought plant and machinery for that purpose. The respondent suffered both psychological and mental anguish as a result of the appellant's dishonest and breach of the sale agreement by her failure to give title to the suit premise since 2014. I have also considered the developments made by the respondent to the suit premises knowing that he was the owner, the expected of customers, time and costs of relocation upon finding that the suit premise was advertised for sale, and upon realizing that at all time, since the beginning, the 1^ appellant was dishonest as he knew that he had no good title to the suit premise that he could legally pass tb the 1^^ respondent. I find the decision of the Couit of Appeal in the case of Tanzania Saruji Cooperation V. African Marble Company Ltd (2004) TLR 155 apply squarely in this matter. The Court of Appeal held that:- "Genera! damages are such as the law will presume to be direct natural or probable consequence ofthe actcomplained of of the plaintiff wrong doing, therefore have been a cause if not the sole or particular significant cause ofdamage. Based on the above observation, I do not find any reason to fault the Tribunal in its award of TZS 30,000,000 to the 1^ respondent as general damages. I dismiss the fourth ground-of appeal for being unmerited. ■^ 30 In view of the above analysis and findings, the appellants' third, fourth and fifth grounds of appeal are dismissed in their entirety for lack of merit. The second ground of appeal is partially allowed to the extent that the award by the Tribunal of TZS 126,210,000 as monetary value of the developments effected by the 1^ respondent on the suit premise, together with TZS 50,000,000 as the purchase price was incorrect. Instead, the 1^ appellant is obliged to pay the 1^^ respondent TZS 119,691,034 as market value of the suit premise at the time of dispossession of the same. It follows that the appellants'appeal is partly dismissed and partly allowed to the extent demonstrated above. With such an outcome, I order each party to bear its own costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 30^^ day of July 2024. H.A. KINYAKA A'A ^ JUDGE 30/07/2024 ^ ^^ 31