omari hamisi mtambo vs shabani mohamed mchambwa 2018 tzhclandd 62 16 march 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO 90 of 2017 OMARI HAMISI MTAMBO.......................................... APPELLANT VERSUS SHABANI MOHAMED MCHAMBWA........................ RESPONDENT Date o f Last Order: 09/02/2018 Date o f Ruling: 16/03/2018 JUDGMENT S.A.N WAMBURA, J Aggrieved by the decision of the District Land and Housing Tribunal of Mkuranga, the appellant Omari Hamisi Mtambo filed three grounds of appeal being;- 1. That the trial Tribunal chairperson gravely erred in law and fact by failing to give reasons for various conclusions/ orders it reached or made. 2. That, the Tribunalgravely erred both in law and fact by not considering evidence that was adduced by the Petitioner. 3. That the District Land and Housing Tribunal erred both in law and fact by not considering evidence adduced by the petitioner's witnesses, Tigo print out document and the lease agreement tendered. He thus prayed that the said decision be quashed and the appeal be upheld with costs. i The respondent Shabani Mohamed Mchambwa challenged the appeal praying for its dismissal with costs. In order to understand the decision to be issued herein I believe there is a need to give a brief historical background of this appeal. This matter is in respect of a landlord and tenant relationship. The respondent herein sued the appellant for failure to pay the rent according to the lease agreement. He alleged that the appellant did not pay rent in time and denied to issue vacant possession to allow him to renovate his house. The appellant denied all the respondent's claims and prayed for the dismissal of the application with costs. During the hearing of the suit, three issues were framed, namely; 1. Whether failure to comply with contractual obligations, the tenant remains a statutory tenant. 2. Whether the tenant has legal right to prevent the landlord from carrying necessary repairs in the suit premises. 3. To what reliefs are the parties entitled. After hearing both parties, the District Land and Housing Tribunal found in favour of the respondent. Aggrieved by the said decision the appellant has filed this appeal. At the hearing the appellant was represented by Mr. M. Mkali learned counsel whereas the respondent enjoyed the legal services of Mr. Mtenga Advocate. In respect of the 1st ground it was Mr. Mkali's contention that the District Land and Housing Tribunal failed to adduce reasons for its decision. He stated that the appellant had developed the disputed house for the sum of Tshs. 3,000,0007=85 agreed between him and the respondent. As for the 2nd and 3rd grounds of appeal, he submitted that the respondent refused to accept payments by installments hence he paid him through MPESA or Tigo Pesa yet it was not received. He thus prayed that the decision of the District Land and Housing Tribunal be quashed and the appeal be allowed. In reply Mr. Mtenga Counsel for the respondent submitted that the house was renovated at the sum of Tshs. 3,000,000/=. That the appellant had to pay Tshs. 5,000/= monthly a thing which was not done until the same was reported to the Street Chairman. He contended that the renovations were 3 not completed hence the respondent had to renovate the same. That the payments by way of mobile phones were not part of the agreement and there is no proof of the same. He averred that on February 27th and 28th, 2014 is when mobile services began but before that payments were never effected. Mr. Mtenga stated that the District Land and Housing Tribunal was right in issuing its decision. He thus prayed for the dismissal of the appeal. In rejoinder Mr. Mkali reiterated his earlier submissions in chief. Now having gone through the grounds for and against the appeal, record of the District Land and Housing Tribunal as well as the submissions from both parties, the main issue to be determined by this court is whether the District Land and Housing Tribunal properly evaluated the evidence on record before arriving at it's decision. It is on record that the appellant had failed to pay rent within time as agreed with the respondent. Dw l(the appellant) admitted to have paid Tshs. 15,000/= as rent arrears of the suit premises after being introduced to the new Landlord. This was also evidenced by Exhibit D1 which shows that the rent arrears were paid on 27th February 2014 and 28th February 2014. 4 I find no merit on the 1st ground of appeal because upon perusal of the judgment of the District Land and Housing Tribunal I have noted that the reasons for its decision were adduced by the learned Chairman. He found that the appellant was the one who breached the lease agreement by not paying rent within the time agreed. He ordered him to vacate from the suit premises and pay rent arrears to the date of vacant possession. With regard to the 2nd and 3rd grounds of appeal, there is no evidence on record which shows that the respondent received payments through Tigo Pesa and MPESA. More so the main issue which was before the trial tribunal was whether the appellant breached the lease agreement by not paying rent within the time agreed. Thus since the issue was answered in affirmative, then it is immaterial as to whether he paid it through Mpesa or Tigo Pesa, as long as he did not pay it on time as agreed. Having said so, I find no reason to disturb the findings of the District Land and Housing Tribunal in Land Application No. 04 of 2014. The appeal is accordingly dismissed with costs. It is so ordered. yjUDGE 16/03/2018 5