NA TZHC Dar es Salaam 4 1

·.r IN THE HIGH COURT OF TANZANIA (COMMERCIAL COURT) AT DAR ES SALAAM I CpMMERCIAL CASE N0,104 OF 2013 NAVTEJ SINGH BA INS ······• ...........·..................... pLA INT IFF VERSUS AFRICAN MEDICAL INVESTMENT TAN ZAN IA PUBLIC LIM ITED •·· ··• •· •·· •·• ••• ,. •• •• .. ·• .. ····DEFENDANT .\ I ... JUDGMENT l [07.08.2014 & 09.09.2014) Nyangarika, J. The c I aim against the def end ant arise from a 11 eged breach of the ,..: lease agreement entered between the defendant and the plaintiff on th 28 January, 2009, which agreement, is in respect of the premises comprised under Plot _No 589 Vatch Club Road, Coral Lane, Msasani Pen i nsu Iar, Oar es Salaam together with bu i Id i ng, improvement and ' -''· erections thereof [hereinafter referred . to as "demised premises"] for a period(of 4 years. It is stated In the;' originating summons that the moda I i ty of payment of rent was, that, for the first two years, the defendant wou,I d pay uso· 33, 000 per month payab Ie every six· [6] months in advance, then for the third year, USO 36,300 per month payable in Page 1 of 33 .. twelve months in advance, and USD 39,930, per month for the fourth [4[year, payable 12 months in advance. It is a I so stated that before expiration of the said I ease on 31/12/2012, the p Ia inti ff made sever a I attempts to have the lease renewed but the defendant emp I oyed de I ay tactics and the I ease agreement was not renewed The originating summons further states that the defendant paid rent in piece mea I in the fourth [4] year of the Iease agreement contrary to the lease agreement and _in two occasions, some of its cheques, were dishonored by its bankers . • It is stated further that, s i nee 1st January 2013, the defendant has been occupying the demised premises without paying rent and without Iease agreement and thereby denying the p I a inti ff substantial income from the rent. It is for this reasons that the plaintiff lodged this suit seeking determination of this court on the fol lowing questions, namely, a) What is the status of the defendant to demised premises? b) Whether the d~fendant is I iable for removal and /or eviction from the demised premises. c) Whether the def end ant Is I i ab Ie for payment of mesne profit arising from the use and or occupation of the premises and Page 2 of 33 . uti I ity charges interests thereof to the tune of USD 64,000 and /or as it may be determinedlby the Court. Also, in his originating summons, the plaintiff has made several prayers for reliefs, namely, a) An order that the defendant'vacates the demised premises popularly known as "AMI hospital and /or trauma centre' ' b) An order to appoint the court broker to remove the defendant from the said demised premises popularly known as "AMI hospital and /or trauma centre' ' c) An order for immediate payment of al I mesne profits arising from and/or as may be determined by the honoUTable court; and/or in the alternative, d) An order to attach the defendants properties within the demised premises popularly known as "AMI hospital and /or trauma Centre' ' to discharge the said outstanding I iabi I ity and/or charge e) An order for the costs of this originating summons to be provided for f) Any other reliefs as the honourable court shal I deem just and equitable to grant In the defendant' s rep I y to statement of c I aim, the defendant avers that rent was paid and further that on 12 th September 2012, more than three month before the expiry of the Iease agreement, the defendant through its I awyer s issued a three months notice expressing its wi I I ingness to renew the lease agreement where after I engthy discussions, they agreed on the new Iease, rent rates and mode of payment, and that it was p I a inti ff' s contractua I ob I i gat ion to grant Iease to the defendant of the Ieased premises. It is stated further that the plaintiff kept on changing mind regarding the agreed rent and mode of payment and that he demanded highly inflated, unreasonable and unrealistic monthly rent of US$ 64, 000. 00 from the rent paid during the f i na I year of the expired I ease, which was US$ 39, 930. 00, inc Ius i ve of VAT. It is also averred _that despite the fact that the plaintiff failed to grant lease in. writing to the defendant as aforesaid, he demanded, received and accepted rent for the year 2013 under the o Id rates, and that on 10 th Apr i I, 2013, the defendant deposited the sum of US$ 150,000.00 into the plaint(ff account being part of the years 2013. Further that there was an amount of rent carried forward from year 2012, was US$220, 031. 24, which provides tota I amount of rent paid by defendant to plaintiff in the year 2013 to be 370,031.24. Page 4 of 33 . The defendants states further that acceptance of the" rent under the old rates is evidenced by the fact that the plaintiff abstained from invoking clause 4 (c) of the lease agreement, which requires the parties to refer any dispute relating to the amount of rent payable to Knight Frank Tanzania Limited, for assessment. The issues which were framed by this court and recorded to guide the determination of this matter are as fol lows: i. What were the terms of the lease now in dispute? ii. Depending on the issues No 1, whether there was breach of any term by either party? iii. To what re I ief, if any, are parties entitled to? The plaintiffs were represented by his Advocate, Mr. Oi I I ip Kesaria and the defendant' s Advocate was Mr. Onesmo Michael. Only two witnesses testified at trial, namely, Mr. Navteji Singh [PW1], for the plaintiff and Mr. Lawrence Ocholo [DW1], for the defendant. PW1, through his affidavit in support of the originating summons avers that they entered into the lease agreement in respect of the sai~ premises on the 28~ January, 2009. He stated the term of the lease agreement was that the defendant would pay USO 33.000 monthly for the first two years payable every six months in advance, USO 36,300 for the third year payable 12 months in Page 5 of 33 advance and USD 39, 930 for the fourth year pay ab I e 12 months in advance. PW1 stated further that in the fourth year of the I ease, the defendant paid rent in piecemeal contrary to the lease agreement and in two occasions, a cheque of USD 10,000 and USD 8,000 both th dated 24 August, 2012, were dishonored by its banker. And that the plaintiff has been demanding payment of rent from the defendant on several occasions. PW1 went on to state that the defendant' s performance of the Iease agreement was s.add Ied with breach ostens i b Iy on payment of rent and subletting part of the demised premises contrary to the I ease agreement. st According to PW1, the I ease agreement expired s i nee 31 December, 2013, and attempts were made by the p I a inti ff before that date to renew the lease but proved futile. He testified that the defendant defaulted in making annual payment of the rent during the fourth year of the existing lease, and further that defendant has, without his consent in writing, granted a I icense and parted with possession of part of the lease premises to third parties. PW1 further stated that through a Ietter (exhibit P5) written by the Defendant' s Group Chief Executive Officer [CEO] to the p Ia inti ff, the defendant unequ i voca I Iy confirmed renewa I of the Page 6 of 33 e lease for the rent of US$ 60i000 per month for the main hospital and US$ 4, 000 for the back house, h_av i ng a tota I of US$ 64, 000 per month. PW1 stated a I so that according to an ema i I [Exhibit P6 (a) from the defendants Chief Executive Officer to one, Ocho I a, it was confirming the agreement with the plaintiff of the separate contracts for the main hospital and the back house. PW1 testified further that he had not a I Iowed the defendant to continue occupying the leased premis~s without paying the rent nor has he executed any renewal of the lease agreement. During cross examination, PW1 testified that if the new rent for the renewal of lease had not been settled, then the new rent was to be assessed by the Knight Frank Tanzania Limited as per exhibit P1, c I a use 4c, but s i nee he had accepted on the proposed rent, there was no prepared lease to be signed. DW1 testimony was that according to the I ease agreement for the first two years, a month Iy rent wou Id be US$ 33, 000. 00 , for the third year, a monthly rent would be US$ 36,300 and for the fourth year, the agreed rent was US$ 39, 930 and further that according to c I ause 3 (b), the p Ia inti ff agreed on the payment of a 11 the I and 'rent and mun i c i pa I rates pay ab Ie In respect of the property and a I so a II the existing charge and future rates, taxes, Page 7 of 33 " assessment, imposition and outgoing, which were payab Ie by the Iesser. It is his further testimony that despite the fact that the parties could not agree on the new rent, the plaintiff was in possession of USO 220,031.24, an amount carried forward from the year 2012, the plaintiff demanded, received and accepted additional amount of the new Iease. On 10th Apr i I 2013, the defendant deposited the sum of US$ 150,000.00 into the plaintiff' s account, being part of payment of ~ rent for the year 2013, in additional to the amount carried forward, subject to the agreement of new monthly rental charge and mode of payment. It was DW1further testimony that a series of communication between the parties regarding the lease agreement were made to the th p Ia inti ff and that on 16 December 2012, the defendant wrote a Ietter to the p Ia inti ff expressing its intention to renew the lease on the basis that the same rental as per year 2012 should be adopted and payable monthly. Led by his counse I, DW1 continued to te 11 this court that the nature of dispute was regarding the execution of new lease. Through cross exam i na-~ ion, DW1 testified that the rent agreed Page 8 of 33 betw,en the defendant CEO and the , pi I a i nt i ff was USO 64, 000, be i ng 60,000 USD for the main hospital and 4,000 USO for the back house. Having briefly gone through thjir testimonies and relevant p Iead i ngs together with the ev i denhe tendered, I note that both parties acknowledge that their rJlationship ~as contractual by I vi rtue of a Iease agreement. I hasten to point out the fo I Iowing facts, a precursor to my judgment. i From the pleadings, testimonies 1 and evidence adduced, the fol lowing facts are undisputed. These facts are as fol lows: 1. That the parties entered into a lease agreement for four years. 2. That the terms regarding payment was that the defendant cou Id pay USO 33. 000 monthly for the first two years, payable every 6 months, USO 36. 300 month Iy payab Ie in 12 months in advance and USO 39,930 for the 4~ year payable 12 months in . advance. 3. That the Lease agreement expired on the 31~ December, 2012. 4. That there has been no signed renew.ed Iease agreement between the parties 5. That the defendant had paid a total of USO 150,000.00 to the plaintiff in respect of the 2013 rent. 6. That the defendant has been, s i nee January, 2013, occupying the demised premises without a val id signed lease agreement. Page 9 of 33 . Now regarding the first issues as to what were the terms of the I ease agreement, the terms which I consider to be of re I evancy here are those in respect of modality and amount of rent payable, and moda I i ty of renewa I, if any, of the I ease agreement. This is so because; the contention revolves around nonpayment of rent and occupation of the demised premises without lease agreement. With regard to moda I i ty and amount of rent payab I e, PW1 stated that the terms and mod a I i ty of the amount payab I e were that USO 33.000 monthly for the first two years payable every six months 1n advance, USO 36,300 for the third year payable 12 months 1n advance and USO 39, 930 for the fourth year payab I e 12 months In advance. This is corroborated by clause 2(a) of Exhibit P1 (Lease Agreement). Therefore, I find that those were the terms In regard to amoun.t of rent pay ab I e and the mod a I i ty of payment thereof. As regards to renewa I, c I ause 4 (c) of the said exhibit P1 is to the effect that the lease is renewable subject to a three months no\ice by the lessee to the Lessor prior to expiration expressing his wi I I ingness to do so, that renewal should be for the same four years on same conditions and terms at a rent to be agreed between the parties , sixty days before expiration of the old lease, provided that any misunderstanding as to rent payable wi 11 be referred to Kn ght Frank Tinzania Limited as an Expert but not as Page 10 of 33 r an arbitrator. That,· to me, is .the term as a far as renewal of the lease agreement is concerned. . j Having identified the terms of the lease in dispute in the first issues, wi l·I now move to determine whether there was breach of the terms by either party, which is the second issue. The defendant c Iaims that three months before expiration of the said lease agreement, they wrote to the plaintiff expressing their wi I I ingness to renew the said lease. DW1 through his counter affidavit stated · that on 12 th September. 2012, more than three months before the expiry of the Iease agreement, the defendant through its lawyer issued the said letter. The said lett~r was tendered and admitted in court as Exhibit D2. ..; ·CI ose Iy reading through the said exhibit, I do not find anything in the nature of a notice of three months to renew the rent as alleged. What can be gathered on the face ~f it is an expression of a mere wish by the defendant to exercise their right under clause 4(c) of the lease agreement by issuing the said notice. For avo ida·nce of doubt, I reproduce the re Ievant paragraph of the said letter hereunder as fol lows: Page 11 of 33 ., "···We wish further to advice that ,n accordance with the arrangement made during the aforementioned meeting our client also wishes to exercise its right under clause 4(c) of the lease agreement by issuing a three month notice of intention to renew the Iease for the term of one year commencing on 1st January, 2013···.". [under I ining is mine for emphasis]. That, to me, is the paragraph, in the said letter, which, the defendant, certainly on the basis of his counsel' s advice, mistakenly believed that it amounted to a three months notice of intention to renew the said lease agreement. That is why, one Dr. Peter Botha, endorsed as Group CEO, makes reference to the same letter in his 16th December, 2012 letter (Exhibit PE4) to the plaintiff captioned "Intention to renew the Lease:··•" by stating th that "As per our recent discussions, and .our letter dated 10 September, 2012···we wi 11 exercise our ·rights under clause 4(c) of the I ease Agreement to renew the I ease for a term of one year commencing on 1st January, 2013" . Any o~e. with an elementary understanding of English language, not necessarily a lawyer, would understand that the above quoted paragraph only expressed "a wish'' to renew the rent, which would be accomp I i shed by "issuing a notice" to that effect, and yet, the latter paragraph in the said Exhibit PE4 connote~ yet an action to be undertaken in the future, because, by the use of the Page 12 of 33 phrase "we wi 11 11 connote a contemp Iat ion by the defendants to issue the said notice in the future, whereas they were wel I aware that time to do so had long expired. In any event, any reasonab Ie I and Iord, or businessman for that matter, wou Id not act on the same to cone I ude that the defendant thereby meant · to notify the p I a inti ff on her intention to renew the I ease. That is certain I y why one, Chandoo and Company, in their I etter dated 15~ January, 2013, notes this by informing the defendant' s counsels that the.ir client has never issued a three months notice of renewa I. From the p Iead i ngs and the testimony of DW1, it appears that the ... .. ;_ defendant re I i es entire Iy on the said document (Exhibit 02), to prove that he issued a three months notice to the p Ia inti ff in comp I iance with the said clause 4(c). I am afr.a id, as I have intimated that it does not accomp I i sh his aim. I therefore hoJ d that there was no notice of intention to renew the Iease. agreement and thus a breach of this term by the defendant. But assuming for the sake of argument, that there was a va I id notice issued, was that sufficient, in itself, so as to satisfy clause 4(c) of the lease agreement? Page 13 of 33 . According to the said c I ause, after a notice being issued, the next stage could be an agreement in good faith between the duos·as to the rent payab Ie, given that other conditions, st i pu Iat ions and terms were to remain ceteris peribus. Both, defendant and p Ia inti ff , admits through their p Iead i ngs and testimonies of their witnesses that there were a series of negot i at ions but the same d id not resu It into f i na I I y s i gn i ng a new lease agreement as required under clause four. · Both parties blame each other on dillydallying in the signing of the new I ease agreement. Thus, where as the p Ia inti ff states that the defendant kept diverging signing of the new lease, the defendant insist that it was the plaintiff who kept changing his mind as regard to the new rent payable. However, one .thing is certain from their p Iead i ngs, arguments and counterarguments, that there was a meeting sometime in· September, with regard to renewal of the lease agreement with ter~s. rent and conditions. Nothing, though in form of say, mi nut es of that meeting, I et a Ione resolutions made, was tendered by either part as evidence in court. However, to guide me . In di sentang I i ng this, have a series of communications exchanged between the p I a inti ff and the defendant Page 14 of 33 under the auspices of their respective I ega I counse Is. ;They w i I I tel I it al I as to whd is a culprit in this delay game. The narration on the start of these series of communication is th made by the 12 September, 2012 letter (exhibit P3), wh'ich in essence, make note of the meeting between the CEO of th~ defendant Company and the plaintiff. It is partly written, thus,· 1 th "We note that Dr. Peter Botha met with your c I i Jnt on 6 September, 2012 with regard to existing lease·"" th Then, follows the 16 December, 2012 letters, (Exhibit P4), titled and written by the one, Dr. Peter Botha to Mr. Bains (the p I a inti ff) "Intention to renew the I ease" . This par~ I y reads, thus, "As per our recent discussions, and our I etter dated 10 September, 2012 to Mustapha Chandoo & Company, we wi 11 exercise our rights under clause 4(c) of the lease agreement to renew the I ease for a term of one (1) year. •·· "We agreed to cor;it i nue with the lease agreement from January 2013 on the basis: • Same rental as per 2012 • Monthly payment in advance We agreed this renewa I wou Id be inc I uded as an addendum to the current I ease agreement···" Page 15 of 33 . There is no response to this communication, which was made avai I able In this case for the co~rt' s evaluations. However, immediate I y after this communication, is the 19 th December, 2012 ema i I contained in Exhibit P6 (a). This is from the same Peter Botha to Lawrence Acho I a and copied to Navtej Bains. It instructs Mr. Achola, thus, ... Pls·"Fol low up the rental arrangement with Mr. Bains Please···Fol lowing my telecom with him we agreed on the rental option as discussed Option 1 Two separate contracts for the main hospital and the back house. $60k for the main hospital and $4k for the back house Pis get the lawyers to draw up as an addendum for signature. th Another communication i.s the 28 Oecember, 2012 I etter, tit I ed "Renewal of the Lease" written by the same author as above and it partly states that: th "···As per our recent discussion and our letter dated 10 th September and ema i I on 24 December, 2012, AM I PLc h~reby confirms the renewa I of the I ease agreement···We agreed that this renewa I would be based on $60k for the main building and $4k for the back . bui lding···as discussed AMI PLc has no problem with providing you the annua I rent a I ••·" Page 16 of 33 " The next, in I i ne of the re Ievant communique, is the Ietter dated th 15 January, 2013 from Mustapha Chandoo and Company, titled also "Renewal of Lease" to Adept Chambers. I wi 11 once again quote the relevant parts thereof. It reads: "On the instructions of our client, Navtej Singh Bains; we reply to your letter of 11° January, 2013, responding to our' letter of th 10 January, 2013 to your c I ient AM I as hereunder; 1. N/A 2. Clause 4(e) of the lease agreement reads, No provision in this Lease sha 11 be waived or varied by either party hereto except by agreement in writing which shal I be prepared and if the case so requires be duly registered at the sole costs and expense of the Lessee" 3. With your letter you haven' t attached any agreement in writing bearing our client' s ·consent to any waiver or variation of the contents of the.lease agreement" ... 4. N/A 5. Again contrary to what you allege on page two of your letter, your client has not given a three. months notice of renewal"• 6. ···Furthermore, what you are a 11 egi ng is contradicted by your client' s letters 28th December, 2012 wherein your client agreed to a revised rent of USO 64k per month payable yearly"" Page 17 of 33 7. As is made clear in our letter you have replied, our client has not'given consent to your client continuing to occupy the premises without paying revised rent yearly in advance. Your client is not a statutory tenant and does become so by merely continuing to remain in the premises after expiry of the Iease"·" Another Ietter was written by Chandoo and Company on the 12th march, 2013, with the same caption "Renewal of the lease" (Exhibit P7). This ti me, it part Iy at paragraph 3, states, thus, •·· .. In the premises, your client .has lost al I credibi I ity and it appears that your client is not serious in the promises it makes. Your c I i ent has abused the courtesy shown by our c I i ent. The dead I ine4 given in our letter of 10th January, 2013 having wel I passed, please take notice that your cl lent now is a trespasser to our client' s property and its continued occupation is i I legal .. ·" It seems that immediately after this letter, the defendant' s Iawyer s responded thereto. This is manifested by exhibit P8 (b), which is a Ietter from Chandoo and Company dated 14th March, 2013, which according to paragraph 1, is a response to the defendant' s legal counsel' s letter of 13~ March, 2013(certainly responding to the 12 th March and 15 th January, 2013 Ietter both authored by the plaintiff). This letter basically contains ·various propositions Page 18 of 33 ., i for amendments to the draft lease sent to them by the defendant. Of relevancy at this stage are statements that: "K.1nd I y incorporate . . t hese c hanges 1n . your drat I f an d I et me have a second draft" and another one, that :j "You wi 11 appreciate that · in norma I circumstances no I and Iord I wou Id a I Iow tenant to occupy the premises once the I ease has expired. Hence your earlier response is of utmost urgency" I th Then, on 10 April, 2013, at 1L44,I A.M, Seni Malimi, advocate, 1 who appears to have been acting for the plaintiff sent an emai I to Law I ense Acho Io (and copied it to one John Laswa i and Bains) , with the subject I ine captioned thus "RE: LEASE ON PLOT NO 589, MSASANI PENINSULA, DAR ES SALAAM. Therein, he states that; Dear Mr. Ochola, This has reference to the te Ie-conversat ion we had yesterday in respect of the above captined matte~ We have consu I ted our c I i ent who has instructed us to rep Iy as· hereunder; -That our c I i ent is no Ionger' interested in back and forth I and /or end Iess negotiations on the Lease Agreement. The Position of our client remains ;s communicated to you at the th Iast meeting he Id on Fr i day 5 Apr i I 2013 at Adept chambers. Page 19 of 33 In all your communications you have exhibited reluctance to execute the Lease Agreement despite several requests by our Client th -The Lease Agreement has to be executed I atest 12 Apr i I, 2013; otherwise our c I i ent wi 11 take it that you are no longer interested in renting the premises. -That you are in rent arrears for four months now and coupled with your apparent reluctance to execute the Lease Agreement, your continued occupation of the premises is es sent i a I I y a trespass. -That without prejudice, your request to deposit some money towards payment of rent in ar.rears is agreeab I e. Deta i Is on how the deposit can be made can obtained from our c I i ent direct I y··· We hope that the above is clear to you and that you wi 11. do the needfu I···" Immediate I y after that communication, is a comp I a int by Mr. Bains on the inaction by the defendant. through his e I ectron i c message th sent to Mr. Sen i Ma I i mi on the 27 Apr i I, 2013 at 12: 53 (Exhibit P6(a). Therein. Mr. Bains, states, thus, "Dear Sir, Page 20 of 33 . Kindly note the dates on the attached mail. Thjs was five months ago. Now, definitely it is ,Achola and the local advocate who are delaying the process. This is the condition and even in the attached Ietter I sent addressed to me by the CEO in which he I agreed to this and to be paid annually. I So is in the next few days they don' t comp Iy as per this. NO DISCOUNT NOW! I request you to move p I as agreed .. ·" Certain Iy that was a s i gna I for the Iega I action, because on the th 16 Ju Iy, 2013, K&M Advocates sent a demand notice captioned thus "YOUR OCCUPATION ON PLOT NO. 589 VATCH CLUB ROAD, CORAL LANE,MSASANI PENINSULAR, DAR ES SALAAM: NOTICE TO QUIT. I wi I I let this note tel I some of the.relevant parts to this discourse, 11 "'8 I I efforts by our CI i ent to have the said Iease renewed have proved fut i Ie. That on various occasions you have endlessly promised and as such represented to our client that you were working to renew the said lease Agreement, but the same has turned out to be an empty promise while continuing to trespass onto our CI i ent' s Property. That our c I i ent is no Ionger interested in end Iess negotiations and /or promises and in this regard and without prejudice to Our Client' s rights to claim for damages and/or Page ~1 of 33 ., ,. I any other legal redress, our instructions are to demand from you as fo I Iows; ... Finally, one John Ignace Laswai of Adept Chambers made a reply to th the said demand on the 19 July, 2013. I wi 11, also re-play the relevant clips of that communication hereunder ···PI ease be advised that before expiry of the Iease, your c I i ent had Iengthy discussions with our c I i ent in September, 2012 with regard to the new lease, new rent and terms of payment. Consequently, they managed to reach a consensus and mutually agreed on al I t-hese three aspects in September, 2012. However, your c I i ent' s persistent change of minds has been the cause of fa i Iure by our c I i ent to execute a new Iease agreement with your client. This has led to exchange of correspondences and dialogue back and forth from both parties to-date. Your client has been asking for abnormally higher rent, than what is normally the case·•· ···However, your client demanded rent and our client paid US$ 150, 000. 00 as part payment of the rent for, this year. pending discussions··· Therefore, our client cannot hand over the premises immediately within seven (7) days from the date of your letter as demanded or otherwise because Page 22 of 33 (a) ···N/A (b) ···NIA (c) Our c I i ent cannot pay or otherwise be compe I I ed to pay rate at the rate (sic!) of us·$ 64, 000. 00 because no new month Iy rent has ever been agreed. This has been the case· since your client' s departure from the rate agreed in September, 2012. PI ease note that c I ause 4 of the· expired I ease gives respons i bi I i ty of granting a new I ease to the Lessor, provided that there is a request from the Lessee for such extension. The rent was to be agreed sixty days (60) prior to the expiry of the I ease, i. e. 31" December 2012- th is being 2nd November 2012. A notice of renewa I of the I ease was given to the Lessor three (3) months before the expiry of the lease, but since your client' s deviation to the rental agreed on rh September, 2012, no new rent has ,ever been agreed between the parties"·" We I I, as an o Id adage goes, 'justice must not on I y be done but also seem to be done' , anyone, even the audio-impaired, would at least visualize what is clearly depicted by those series of communications . . My menta I facu Ity cone Iudes the fo I Iowing there from: 1. Indeed there were some negotiations regarding the renewal of the lease between the parties Page 23 of 33 . •• 2. The result of the negations regarding the lease and the rent was that rent payable was USD 60k(whatever k represents) for the main bui !ding/hospital and USD4k for the back house tota I i ng to USD 64k month Iy, payab Ie annua 11 y for the who Ie premises(that is the main house/hoipital and the back house, which was used as staff canteen and residence for the defendant' s staff, per the testimony of PW1) 3. The defendant was ob I i ged to draw or prepare the new Iease per c Iause 4 (e) of the or i g i na I Iease. He did so but never finalized the process. 4. Si nee then, no new Iease agreement had ever been cone Iuded between the parties and save for the arrears paid in respect of the rent for the four months, nothing has ever been paid 1n that regard for the year 2013. AIso, based on the series of events as depicted In the above exchange of communications, it can be cone Iuded, with due respect to advocate John Ignace Laswa i, author of the Iast Ietter cum reply to demand note, that he never grasped the matter truly or he was misled by his clJent to bel jeve that his client tried to renew the rent but was hampered by the plaintiff' s change of mind. This is because, at no ti me, and there is no evidence to that, to show that the def end ant indeed was ready and wi I I i ng to pay the new rent. Page 24 of 33 . Looking at the 19 th December Ema i I and 28 December, 2012 letter(herein above quoted), one would conclude that the defendant was ready and wi I I ing to pay the said USO 60k for the main I bui Iding used as a hospital and USO 4k used as the back house. No communication which shows that the said amount had been contradicted by a different rate from the plaintiff. It is strange that the advocate confidently puts that the plaintiff kept changing his mind. Yet the DW1 maintains the same un-backed story. Another apparent mistake of the defendant is the interpretation of c Iause 4 in regard to renewa I of the said Iease agreement. Thus, whereas th~ said clause at paragraph (e) casts the duty to prepare new Iease on the defendant, the p Ia inti ff, through the advice of her lawyers makes reference to clause 4 as a whole to interpret .. ; the duty to do so without considering the said sub clause (e). That notwithstanding, from.the said 19~ December,2012 emai I by the CEO of the defendant to one. Achola, the statement that "Pis get the Iawyers to draw up as an addendum for signature" connotes nothing but an understanding by the defendant that the duty to prepare the addendum for that purpose Ii es on her. Further, from the communication made by Chandoo and Company suggesting c Iauses for amendments in the addendum drawn by the defendant c Iear Iy shows that the defendant had al I along been aware that it was her Page 25 of 33 -- duty to do so(the last paragraph at page 2 of exhibit P8(b) dated 14th March, 2013). A11 these goes to show that the procrastination and fa i I ure to sign the new lease agreement was all orchestrated by the defendant. Hence, there was breach of the terms of agreement by the defendant In that she fa i I ed to adhere to the terms as to renewal of the lease and payment of rent and modality thereof. I am obi iv ion to the requirement of their lease agreement that in case there was no agreement as to the rent payab I e, the rent payab I e was that to be assessed by one Knight Frank Tanzania I imited as an Expert not arbitrator. The defendant vehemently blames the plaintiff for ever failing to refer the matter to the said Knight Frank for assessment. When Pw1 was cross examined, on th_i s, his responses were that there was no need to refer to the said person since there was an agreement on the rent payable. I agree. The defendant, through its group CEO having indicated his wi 11 i ngr.iess to pay the said amount of USO 60k per month for the main House and USO 4k for the back house per month annua I I y (see exhibits PS and P6(a)), indeed there was nothing to be referred to the said expert assessor. Page 26 of 33 . ,e:: Thus, the defendant cannot rely on the non referral to the Expert, to legalize his nonpayment of the rent. Having answered issues one and two, ,suffice at this juncture, to look at the statement of questions which were raised in the originating summons for this court to determine. These, for easy of reference are: a) What is the status of the defendant to premises known as Plot no. 589, Yatch CI ub road cora I Iane road, Msasan i Pen i nsu Ia Dar es salaam On the basis of the above ana Iys is, it goes without saying that the defendant was and is knowingly continuing to occupy the plaintiff' s premises without a signed lease agreement to that effect and without his consent,. contrary to the laws of Tanzania As a Iease Is a contract, the usua I remedies ava i Iab Ie to any contractua I parties are ava i Iab Ie and therefore a Iessor can sue for termination for the lease, payment of rent arrears, if any, and levy distress, upon notice. Distress includes taking the tenants belongings and sel I ing them if rent not paid. In our case at hand, the defendant is therefore none other than a trespasser in the plaintiff' s property. Page 27 of 33 . . b) Whether the defendant is I iable for removal. and /or eviction from the premises at plot number 589 Vatch club roads, coral lane road, Msasani Peninsula area Dar es Salaam. In, as far as removal or eviction from landed property is concerned, opine that once _there is breach of the. Iease, the plaintiff is entitled to vacant possession of the demised premises s i nee ho Id i ng over of a Iease determines at the wi I I of either party. Under SECTIONS 62 AND 64 OF THE LAW OF CONTRACT ACT, CAP. 345 RE 2002, a contract may be terminated by any party to a contract upon breach. I am a Iso aware that when a party breaches a contract, it does not mean that the ob I i gat ion of the par~ i es have been discharged but it Is open to the innocent party to dee i de whether or not to accept the breach by either compensation in monetary terms or otherwise to cover the damages or by rescission of the contract as provided for under SECTIONS 62, 64 AND 75 OF THE LAW OF CONTRACT ACT, CAP.345 RE 2002. I cannot imagine a situation where a lessee is generating money from the business of a hospital but fai Is to discharge its fundamental term of the lease by paying the plaintiff his rent as agreed in the lease. Page 28 of 33 I) For this, in my view, wou Id not be in the interest of the Iessor fitted not to recovery his landed property, the source of his Iease business. I As alluded to, this court is cal led upon to determine questions of Iaw in regard to the contractua I re Iat i onsh i p of the parties to the lease agreement and declare entitlement of each. I wi I I therefore dee Iare that the ! Iease agreement between the parties no longer exists upon breach of the fundamental terms of the lease up to its ·expiry. Next issue is whether the defendant is I iable for payment of mesne profit arising from the use and or occupation of the premises and ut i I i ty charges interests thereof to the tune of USO 64, 000 and /or as it may be determined by the Court. To me, this question also forms partly an answer as to what relief, if any, are the parties entitled. Thus, an answer thereto also goes to answer this latter question as to reliefs. have decided, after a thorough analysis, that indeed. the defendant had agreed earlier on and demonstrated her readiness to pay USD 60, 000 for the main House and USD 4, 000 for the back house. However, she has been in occupation without a new lease and on her admission, no new lease has ~een signed due to absence of new rates of rent payable. Page 29 of 33 . , It fo I Iows there from that indeed the defendant is I i ab Ie to vacate the demised premises and for payment of mesne profit arising from the use and or occupation of the premises and uti I ity charges and interest thereof to the tune of USO 64,000. Nevertheless, considering that it is undisputed that the defendant had discharged about USO 150, 000. 00, in respect of the rent for the four months or so, for the year 2013, find that, the plaintiff is only entitled to USO 64,000 per month from the year 2013 to the date of agreed variation (if there wi II be any) or to the date the defendant vacates the premises minus a total of USO 150,000.00, already discharged by the defendant. This is in respect of a prayer for an order for immediate payment of a 11 mesne profits arising from use and or occupation of the premises by the defendant. The plaintiff has also prayed for several other orders as reproduced hereinabove. Unfortunately, save for the award of vacant possession and mesne profits as well as costs of the suit, the rest cannot stand as of now. I wi I I exp Ia in. Though I make an order that the defendant vacates the demised premises popularly known as "AMI hospital and /or trauma centre' for the reasons already stated unless the plaintiff opt otherwise, Page 30 of 33 ., I . the defendant need time to do so due to the nature of the hospital business conducted therein. This is because there may be serious Iy' sick patients at the moment j in the hospital at the suit premises receiving treatment, patients who do not need disturbances an immediate order of vacant possession. In my considered opinion, a period of three (3) months from the date of delivery of this judgment is enough for that I exercise. I But I cannot make an order to appoint the court broker at this juncture to remove the def end ant from the said demised premises popularly known as "AMI hospital and /or trauma centre' for the ti me be i_ng unt i I the grace period I have granted has expired for the very same reasons given hereinbefore. As for an order to distress of the defendants properties within the demised premises popularly known as "AMI hospital and /or trauma Centre 'to discharge the said outstanding I iabi I ity and/or charge, I think, this is not procedurally an opportune moment for it because the defendant has just been ordered to pay rent arrears and mesne profits al the rate declared. Let it remain so unti I further notice of misbehavior o~ reluctance by the defe~dant to do so. Page 31 of 33 ,, ,, However, the defendant is I i ab Ie to bear the p Ia inti ff' s costs that he has incurred in pursuit of this suit. Therefore, the p Ia inti ff is awarded costs of this suit. At the moment and at this-juncture, no any other orders I deem fit to grant. accordingly enter judgment for the plaintiff and decree that: 1. The defendant shal I give vacant possession of the suit premises within a period of three (3) months from the date of delivery of this judgment. 2. The defendant sha I I pay the p Ia inti ff a tota I of USO 64, 000 per month minus USO 150,000.00, as mesne profit, charges and uti I ities arising from occupation and /or use of the said premises from January, 2013 to the date she vacates the prem I ses. 3. The defendant shal I pay the plaintiff costs of this suit. It is so ordered. Judgment for Plaintiff. K. M. Nyanga r i ka, Judge. Page 32 of 33 ., /