20100923 TZHC Mbeya

IN TIE HIGH COURT OF TANZANIA (LAND DWISION)

AT MBEYA LAND ICASE APPEAL NO. 22 OF 2007 (From the Decision of the District Land and Housing Tribunal of MBEYA District at MBEYA in Land Case No. 136 of 20071 N SOBI 1WATAIPUNGU ...........................................IPEI1IANI'

VERSUS C UR'FIS MATABULANGA ................................. P.E,SPO NDENT

JUDGMENT A.F. Ngwala,J. This is an appeal against a judgment and decree of the District Land and Housing Tribunal for Mbeya in an action brought by the Appellant NSOBI MWAIPUNGU against the respondent one CURTIS MWABULANGA. The claim filed on 20th October, 2005 was for an order of eviction and vacant possession of the suit premises in a house situated at Block"Y" Mwakibete area in Mbeya Municipality. He also claimed for payment of rental arrears which included "arrears of rent per year, water bills and Electric bills." I suppose in. his Written Application where the mentioned claims have been indicated the appellant meant payment of rental arrears up to the date of judgment and decree. The trial Chairman of that tribunal in his decree dismissed the Application, with no orders for . costs, However, in his judgment at page 15 of the typed judgment on record, the Chairman of the tribunal makes a confusing final analysis with Orders, but the issues of damages and payment seem to have not been dealt with in accordance with the law. For purposes of clarity the said page is quoted in extensor as follows:- "In the final analysis the application filed before this tribunal is partly admitted that is to say on the prayers for the payment of electricity bills todate to be made to respective authorities in order to avoid inconvenience the bills to be are those from July 2005 to September

2007. As to the prayer of damages to the suit premises, it is ordered that evaluation has to be made by a qualified valuer prior to payments of damages if any. No orders as to vacant possession is made until the time the applicant paid Tshs. 668,0001= to the respondent. As to the prayer for arrears at the rate of Tshs. .150,000/ = from July 2006 - July 2007 this prayer is not granted the lawful arrears in respect of the suit house as a rent per month is Tshs. 50,000/= only and not otherwise. All prayers by Respondent are granted. Accordingly to the circumstances of this application and counterclaim each party has to bear its own costs. The opinion of Tribunal gentle Assessors Mrs Ongara and Mr. Kalongole in this application are that the applicant has to payroll debts to the respondent with interest and later the applicant has to give a 30 days notice to the respondent so that the respondent can leave vacant possession of the suit premises otherwise the applicants application fails. The second assessor of the Tribunal opined that the respondent has to continue residing on the suit house at the monthly rate of Tshs. 50,000/= until the time when Nsobi (Applicant) paid the debt to the respondent. Alternatively the respondent has to continue residing on the suit premises without paying any rent until the time the respondent's money is fully utilized by residing in the suit

premises. I am in full agreement with the opinion of gently Tribunal Assessors. The application is hereby dismissed. There are no orders as to costs. it is so ordered accordingly. Sgd: Emmanuel Ntenga Chairman. 2010912007" It is against this decision and order that the appeal has been lodged against the weak evidence in support of the 3 judgment and decree in favour of the respondent. The appellant is complaining that the respondent had no right to continue to live in the house after the expiration of the tenancy agreement on 11/7/2006. The Appellant is also aggrieved by the decision of the said tribunal which did not order the respondent to pay electricity bills or electricity bill debt of the respondent from the 6th July 2005 up to the date when he vacated the suit premises. The appellant has submitted further that the Chairman never bothered to visit the suit house which had been destroyed by the respondent. He contended the Chairman did not assess the damages caused in the house and or look into the items in their lease agreement which clearly provided for repair of the house or making good the house as it was at the time of occupation as indicated in that part of the item which reads that "Mkataba utakapoisha mpangaji atarejesha nyurnba kwa rnpangishaji katika hali njema kama ilivyokuwa siku ya kukabidhiwa" The respondent through the services of his learned advocate Mr.

Mahenge has strongly objected the appeal on grounds that the appellant had already paid the annual house rent as reduced in their Written Agreement. Mr Mahenge insisted that the Appellant had asked for an advance of Tshs. 150,000/= on 2nd Nov. 2005 while the tenancy was subsisting. 4 The tenancy agreement between them was entered on 6/7/2005 when he had paid a sum of Tshs.568,000/= to rescue the house which was under a mortgage. The Counsel therefore submitted (in court on 15/08/2008) that the appellant had a right to continue to occupy the house until the end of Nov. 2008 when he would yield up vacant possession. On the claims that the tribunal did not decree and make any order on damages in the house, Mr. Mahenge contended that the respondent cannot do so until the time when vacant possession is given. The respondent shall repair or make good the house as it was at the time of renting it. In totally Mr. Mahenge submitted that the appeal has no merit and prayed for the dismissal of the appeal. I do not think the respondents advocate is right in submitting outright that the appeal has no merit without considering whether the trial tribunal decided the suit within the standard of balance of probability or preponderance of evidence as required in Civil litigation. Worse the degree of honest, impartiality and applicability of laws governing leases in order to reach at a fair trial

and decision have also to be considered in this appeal. The aforesaid submission by the counsel for the respondent and the grounds of appeal put forward by the appellant clearly show that the Respondent had no right to continue to live and occupy the house after the S expiry of the tenancy agreement. Section 80(1) of the Land Act, Cap. 113 R.E. 2002 reads as follows:- "80(1) A short term lease is a lease which is:- Made for a term of one year or less. A periodic tenancy for periods of one year or less. A lease to which subsection (2) of section 79 applies." In this suit the lease between the parties was for a period of one year. The first lease agreement had expired on 11 th July 2006. On 19/08/2006 the appellant issued a notice to the respondent informing him that "if the Respondent wish to extend the lease he has to pay the rent of 150,000/ per month." This is distinctly a short term lease agreement as per section 80(1) of the Land Act, Cap. 113 R.E.

2002. In my considered opinion, as the appellant had issued the said notice, there was a renewal of the lease Agreement as perterms stipulated in the notice, even though the parties had not reduced this agreement in writing as per section 80(2) of the Land Act which allows short term leases to be made orally. This Section reads as follows:- "Section 80(2) A short term lease may be made orally or in writing" It is the Respondent's contention that the appellant should refund him the sum of Tshs. 700,000/= for electricity 6 bills, and also a sum of Tshs.568,000/= which he advanced to the appellant and Tshs. 150,000/= for a loan effected by him to the appellant. The respondent is arguing that all these payments should be deducted from the rentals claimed by the appellant because he made these payments after being assured by the appellant that the loans would be paid by deducting the same from the rent payable for the suit premises. The appellant on his part has disputed these claims saying that this was not their agreement. In passing, I would like to remark that, in the present case, however, I do not see if there was any reasonable ground for the respondent to think that the appellant had agreed the deductions without express and clear terms on that. The fact that the respondent had paid various bills and loans which were supposed to be paid by the appellant is immaterial.

After the Expiry of the 1st lease Agreement, the renewal of the lease went hand in hand with the conditions stipulated in their agreement of the first lease. The 1st Agreement expressly provided for the conditions that the tenant/ Respondent should pay all the electricity and water bills. The respondent therefore is barred from claiming such refund for enabling payment of the bills. Moreover, the Respondent's contention that the arrears of rent should be deducted from the loan he advanced to the Landlord (Appellant) cannot be upheld because this did not 7 form part of the agreement to the lease. Infact there is no evidence whatsoever to prove that the Landlord accepted the deductions of money to effect rent arrears. It is my finding that the trial tribunal Chairman erred in law in reversing or converting the rent over the suit premises from the stipulated amount of Tshs. 150,000/= to 50,000/=. The respondent knew of this increase in rent. He was quite aware of the increase, and he wished to remain in the suit premises. Infact he must have acquiesced in the rent stipulated on the notice after the expiry of the tenancy agreement. The Respondent accepted the landlord's proposal and remained in occupation of the house until date when the Appellant instituted the claims for vacant possession and non- payment of rentals. The learned Chairman's decision was purportedly supported by

the provisions of Section 104(2)(c) of the Land Act which provides that the Lesser may give notice to the lessee within more that 30 days for a notice of intention to terminate the lease Agreement. This section, however, in my considered view applies where there is a breach of a covenant in the Lease Agreement, and is based on the intention to terminate the subsisting contracts, but not to give notice to raise the rent, as it was done by the appellant, after the expiry of the lease Agreement. EV Indeed the arguments put before me by the respo ndtS counsel that the respondent could not make good or repair the house because he was going to do so as soon as he vacateS the house, are not accepted because it is clear that the lease agreement was breached by the respondent. AS the respondent had admitted that he was keeping animah in th e suit premises this is a serious and a dangerous situation which was complained off by the appellant in the state1ent of facts constituting the claims amongst other things that h e caused damage to the house and broken glasses and i evidence he insisted that. "Ameweka wan yama, vioo kuta zimebomolewa, mij imeliwa na wanyama, mabomba ya kuipitisha uchaJi yapojuu juu" This is a clear indication that the respondent had breaed the tenancy agreement which could not be overlooked bthe chairman. I say with the atmost conviction that it misconception of both

facts and law if not biasness againsle appellant and the clear facts which are against the stipuld conditions in the lease agreement. It is vivid that the hotse should be kept in good condition as it has been dire y stipulated and expressed. The appellant therefore is entitled to claim for i damages done to the house, that is the broken glasses, a • ) plumbings. His claim in the District Land and Housing Tribunal for the sum of Tshs. 380,000/= should be granted as special damages. To sum up I find that the arguments put forward by the counsel for the respondents are invalid. For the foregoing reasons the appeal has merit, it is allowed with costs. With further Orders that the respondent should pay all the rental arrears and house rent up to the date when he vacates the suit premises. 9- _•_•o* - AF a~ a JUDGE, / : 1 23/09/2010. 10 23/09/2010. Coram A.F. Ngwala,J Appellant : Present Respondent : Absent B/c: Masanja. Court: Judgment read in the presence of the appellant Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. Ngwala, JUDGE, 23/09/2010.