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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL CASE NO. 5845/24 (Arising from Land Appiication No. 251/2020 ofthe District Land and Housing Tribunai for Kinondoni before Hon. Mbiiinyi R) PLAZA INVESTMENT LIMITED APPELLANT Versus 24 HRS LOW PRICE HYPER & SUPERMARKET RESPONDENT ABDALLAH M. MBARAK 2^° RESPONDENT MANSOOR MOHAMED 3^° RESPONDENT MKWABI SUPERMARKET .....4^" RESPONDENT EYE STUDIO ....5^" RESPONDENT GELATO DREAMS 6™ RESPONDENT JUDGEMENT Date oflast order;14/06/2024 Date ofJudgement:20/08/2024 S.D. MWAIPOPO J. This Appeal emanates from Land Application No. 251/2020 decided at the District Land and Housing Tribunal for Kinondoni by Hon. Mbiiinyi R. Chairman of the Tribunal. The Appellant who was the Applicant before the Tribunal filed an Application claiming for the following reliefs: - a) An order that the Respondent pay rent stipulated to the tune of USD I 28,151.60 I ! b) An order for eviction c) Damages on the alteration which the Respondent made to the tune of USD 5000 d) Costs of the suit. i I e) Any other reliefs this Tribunal may deem fit to grant. I In response, and upon being served with an Application, the Defendants filed a joint Written Statement of Defence, accompanied by a Counter claim against the Applicant (Appellant), Mkwabi Supermarket, Eye Studio and Gelato Dreams. In his Counter claim, the Defendant claimed for the following reliefs; i. Declaratory order that the Respondent's lockdown and repossession of suit premisses is illegal; ii. For an order requiring the Respondent to restore back the Applicant the repossessed SQM; iii. For an order restraining the the Respondent from continuing leasing the remaining square metres and from distrurbing and incoviniencing the Applicant; iv. For an order restraining the Respondent from carrying on business in the repossessed square metres In the alternative; i. Payment of USD 55,000 being value for equipment locked down and damaged ii. Payment of USD 5,000 per month being loss of projected profit in business from the date of lock down April 2020) to date of handling back the repossesed area and/or payment in full iii. General damages; iv. Interest on item (v) and (vi) at commercial rate 5% per annum from the date of lockdown to the date of payment in full V. Any other reliefs as the Honourable Tribunal may deem fit and just to grant vi. Costs Iii the course of determining the matter, the Tribunal raised the following 1 issues; - (i) Whether there was a Lease Agreement between the Applicant and the Respondents (ii)Whether the Lease Agreement was breached/frustrated (iii) Whether the parties suffered damages (iv) To what reliefs are parties entitled to. In proving the framed issues, the Applicant/Appellant paraded one witness while the first Respondent called two witnesses. After hearing the witnesses and evidence, the Tribunal decided the matter in favour of the Respondent as follows: - "Maombi ya mieta maombi yanatupwa kwa kukosa mashiko, na sehemu ya madai ya mjibu maombi wa kwanza yamekubaliwa kama ifuatavyo:- a) Kitendo cha mjibu maombi wa kwanza katika counter claim kufunga na kuchukua eneo la pango hakikuwa halali. b) Kwa kuwa sehemu kubwa ya eneo la pango limeshapangishwa kwa wajibu maombi wa 2,3 na 4 basi mIeta maombi alipwe fidia ya vifaa vyake kama vilivyobainishwa katika P5 kiasi cha USD 55,000. c) MIeta maombi katika madai kinzani alipwe kiasi kidogo cha fidia ya madhara (general) damages) cha kiasi cha shilingi 23,200,000/= d) MIeta maombi katika madai kinzani anastahili kulipwa gharama zake. Aggrieved by the said decision, the Appellant has filed a Memorandum of Appeal to challenge the impugned decision. The same was later amended and it contains the following grounds; 1. That the District Land and HousingTribunal for Kinondoni erred in law and fact by awarding the Respondent specific damages amounting to USD 55,000 without the same being proved under the required standard of the law. 2. That the District Land and Housing Tribunal for Kinondoni erred in law and fact in holding that the Appellant breached the Lease Agreement in absence of the clear evidence to that effect. 3. That the District Land and Housing Tribunal for Kinondoni erred in law and fact for failure to consider the rent areas owed to the Respondent which were specifically proved without any dispute. 4. That the District Land and Housing Tribunal for Kinondoni erred in Law and fact in holding that the Respondent is entitled to general damages amounting to Tzs 23,200,000/= without any basis for such assesment. 5. That the District Land and Housing Tribunal for Kinondoni erred in law and fact in holding that the Respondent is entitled to costs without due consideration that the Lease Agreement between the Appellant and the Respondent does not warrant awarding of costs to the parties in case of any legal proceedings between them. 6. That the proceedings of the District Land and Housing Tribunal for Kinondoni are fatal for being tainted with serious irregularity, impropriety and illegality. Thus, the Appellant prayed for the Judgement and Decree against the Respondent as follows: - (i)The Judgement, Decree and all orders of the District Land and I Housing Tribunal for Kinondoni be quashed and set a side (ii)The Respondent be ordered to pay rent areas amounting to USD 28,151.60 (111) The Respondent be ordered to remove her equipment from the Appellant's premises (iv) Costs be provided for The hearing of the Appeal proceeded by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing. The Appellant was represented by learned Advocate Lucy Kiangi. The 1'^ 2"^ and 3'"'' Respondents enlisted the legal services of learned Advocate Michael Kabekenga. The 5^*^ Respondent did not object the Appeal. They also filed their submissions in court to indicate their no objection on the appeal. The 6^^ Respondent also supported the appeal through their learned Advocate Carlos Cuthbert. The 4^^ Respondent was notified of the Appeal but opted not to exercise their right of filing their submissions. Therefore, this court has taken that they opted not to appear in the proceedings and hence the matter proceeded exparte against them. Arguing in support of the Appeal, the learned counsel for the Respondent began submitting on the first ground of appeal that; the District Land and Housing Tribunal for Kinondoni erred in law and fact by awarding the Respondent specific damages amounting to USD 55,000 without the same being proved under the required standard of the law. He contended that the Respondent did not provide any documentation or clear evidence to prove that the Respondent's equipment is worth USD 55,000. The equipments which were alleged to be damaged are shelves, counters fridge and trolleys. However, no evidence was adduced to prove damage and no loqus in quo was conducted by the Tribunal to satisfy itself as to whether the equipment was damaged or not. Further, no receipts or delivery notes were tendered to prove the amount of USD 55,000. The Appellant referred the court to the case of Harith Said Brothers Company vs Martin Ngao (1981) TLR 327 referred also in the case of Strabag International (GMBH) vs Adinani Sabuni Civil Appeal No. 241/2018 on pg 17 & 18 where the CAT held that; unlike general damages, special damages must be strictly proved. He concluded by submitting that based on the decision of the Court of Appeal of Tanzania the Tribunal was not correct in law and fact for awarding special damages amounting to USD 55,000 on mere assertion of DWl without being corroborated with documentation of evidence whatsoever. Regarding the 2"^ ground of Appeal, the Appellant contended that the DLHT erred in law and fact in holding that the Appellant breached the Lease Agreement in absence of the clear evidence. He argued that the the holding of the Tribunal is based on the reasons that the Appellant closed the Respondent's premises and leased it to another tenant. The second reason is that the notice of termination was issued contrary to the Lease Agreement. With regard to the first reasoning, the Appellant contended that the assertion by DWl that the premises were closed was not supported by any other evidence and that it was illogical for DWl to state that equipments were damaged where at the same time stating that the premises were closed. He argued that this evidence does not carry weight. Therefore the Respondent failed to prove that the Appellant closed the leased premises or prevented the Respondent from accessing the leased premises hence the DLHT was not correct in law and in fact in holding that the Appellant breached the Lease Agreement. Therefore, the second ground has merit. With regard to the second assertion that the notice of termination was issued contrary to the Lease Agreement, the Appellant submitted that the notice was issued in line with clause I paragraph 6(a) and (b) of the Lease Agreement which deals with non payment of rent since the said provision deals with disputes relating to non payment of rent, the said clause provides for the issuance of 30 days notice. The Appellant questioned the reasoning of the Tribunal on application of paragraph 10 of the Lease Agreement, without any justification. The learned counsel concluded that all the assertions used by the DLHT for Kinondoni in holding that the Appellant breached the Lease Agreement were thus legally incorrect. Regarding the third ground of appeal, the Appellant contended that the DLHT erred in law and fact for failure to consider the rent arrears owed to the Respondent which were specifically proved without any dispute. The learned counsel for the Appellant argued that, there is no dispute that there was a Lease Agreement between the Appellant and the Respondent and that to date the 1^ Respondent has not paid the outstanding rent despite the fact that she occupied the premises. This fact was testified by all witnesses before the tribunal to the effect that rent was not paid. This is contrary to the Judgement of the Tribunal which is silent on the unpaid rent by the Respondent. The learned counsel contended that the 1'^ Respondent certainly breached the Lease Agreement by failing to pay rent amounting to USD 28,151.60. Therefore, he contended that the DLHT erred in law for failure to consider rent arrears owed to the 1®^ Respondent and prayed for the court to order the 1^^ Respondent to pay rent arrears. Moving to the fourth ground of appeal, the Appellant contended that the tribunal erred in law in holding that the 1^^ Respondent is entitled to general j , . , damages amounting to TZ 23,200,000 without any basis for such assessment. The learned counsel contended that even though the court is bestowed with discretion to award general damages it must narrate the basis or reasons for awarding the said general damages. In the case at hand the trial chairperson awarded the Respondent general damages of TZS 23,200,000/= without giving a clear basis to justify the said amount he reffered the court to the case of Antony Ngoo and Davis Anthony Ngoo vs Kitinda Kitinda Kimaro, Civil Appeal No. 25/2014 (unreported) CAT. He thus prayed for the court to allow this ground of appeal. With regard to the fifth ground of appeal, the Appellant submitted that the District Land and Housing Tribunal for Kinondoni erred in law and fact by holding that the Respondent is entitled to costs without consideration that the Lease Agreement between the Appellant and the Respondent does not warrant awarding of costs to the parties in case of any legal proceedings between them. He acknowledged the fact that awarding of costs is in the discretion of the court or tribunal however it shall depend on the circumstances of the case. He contended that in the instant case the parties agreed in the Lease Agreement that, in the event of either party instituting legal proceedings against the other party in terms hereof, each party shall bear its own costs of such proceedings. On the sixth ground of appeal, the Appellant contended that, the proceedings of the District Land and Housing Tribunal for Kinondoni are fatal, for being tainted with serious irregularity, impropriety and illegality. He proceeded to point out the illegalities as follows: - (i) That the Tribunal proceeded with hearing and determining the matter in the absence of the 4^^ 5^^ and 6^^ Respondents (exparte) without adhering to the legal procedures as stipulated by the law. (ii)The Tribunal awarded special damages on alleged damaged properties while It has no jurisdiction to determine disput es In non land matters : With regard to the exparte hearing, the Appellant contended that the I I procedure stated under Regulation 11 (1)(c) of the Land Disputes Courts (The DLHT) Regulations, 2003 was not compiled with since the 4'^'" ,5^^ and 6^^ Respondents were not duly served with the Notice of hearing and were absent. He referred the court to the Counter Affidavits of the said Respondents. He thus concluded that the proceedings of the Tribunal are null and void since they are tainted with Irregularities. He referred the court to the case of Frank K. Mboge vs Felician Hugho Kiwale Land Appeal No.42 of 2020 (unreported Pg 17 HCT, MoshI District Registry. Regarding the second limb of Irregularity, the Appellant contended that the Tribunal awarded special damages on the alleged damaged properties while It does not have jurisdiction to determine non land matters. He reffered the court to the provisions of section 167(1) of the Land Act Cap 113 and section 35(1)(a) and (6) of the Land Disputes Courts Act, Cap 216. That the determination by the Tribunal on damaged properties such as shelves, counters, fridges and trolleys raises questions as to whether such properties fall within the ambit of the land matters. The learned counsel thus prayed for the court to allow the sixth ground of appeal. Submitting In rebuttal, the learned counsel for the 1'^ Respondent argued In respect of the' ground of appeal to the effect that, the Tribunal did not err to award the 1^^ Respondent with specific damages of USD 55,000 since the same were proved under the required standard of the law. He contended that the tribunal correctly awarded the sum of us 55,000 since the amount was pleaded under para 2 and 6 of the counter claim which was not denied by the Appellant In the written statement of defence and was also noted under para 2 of the Appellant's reply to the Counter Claim. Since the Appellant did not deny the allegations then there was no need for the Respondent to further prove them. The learned counsel referred the court to section 60 of the Law of Evidence Act Cap 6 RE. 2019, Secondly, the Appellant admitted on the value of the properties during proceedings, to have had the said equipment valued at USD 55,000 at his leased premisses. He reffered the court to page 8 of the Judgemenet that the said testimony was not controverted during cross examination and is deemed to have been admitted in law. He also also referred the court to the evidence tendered by DW2, i.e. the Business Plan which was not controverted during cross examination, meaning that the same was admitted in court as truth. He further reffered the court to the case of Bomu Muhamed vs Hamis Amiri, Civil Appeal No. 99/Of 2018 CAT at Tanga Page 11, Damian Ruieie vs R, Criminal Appeal No. 501/2007 (unreported) Nyerere v. R Criminal Appeal No 67/2010 (unreported). The learned counsel further contended that, the Appellant has not adduced any counter documentary evidence on the value of the equipments and has failed to prove the specific loss suffered. That the evidence of DWI and DW2 on the balance of probabilities suffices to prove the said value. That oral account of specific loss can be accepted as proof of specific loss. See the case of Joachim Ndeiembi vs. Mauiid M. Mshindo and 2 others, civil Appeal No. 106/2020 CAT Dar es Salaam (unreported). He contended that, it is not always necessary to treat production of receipt as the only way of proving purchase of hardware. See the case of Sixbert Bay Sanka vs. Rose Nehemia Samzugi Civil Appeal No. 68/2022 of 2022 CAT Tanga (unreported). Further, the issue of the court to visit the locus in quo in order to satisfy itself on the extent of damage or destruction has no basis since it 10 depends on the discretion of the court (see the case of Bomu Mohamed vs Hamis Amiri civil Appeal No 99/2018 CAT at Tanga(unreported) he thus in conciusion calied upon the court to disaiiow the first ground of appeal. Regarding the 2"*^ ground of appeal which is to the effect that the chairperson erred both in law and fact in holding that the Appellant breached the Lease Agreement in the absence of the clear evidence to that effect, the learned counsel for the , 2"^ and 3^^ Respondents contended that, the tribunal was right in holding as it did that the Appellant was the first person to breach the Agreement for the reason that the Appellant allowed the Respondent to enter in the leased premises immediately after signing the lease Agreement without paying rent and key deposit and placed therein his equipment, to wit: chillers, shelves, freezers, counters and trolleys as per exhibit P5. But the Respondent was later ciosed/icoked out and restrained from accessing the leased premises without first paying rent. Similarly, the Appellant started reducing the Respondents leased premises square metres and leased the same to third parties. In doing so the Appellant controvened clause 12 (b) of the Lease Agreement on dispute resolution requiring the parties to settle dispute amicably, failure of which legal action was to be taken to a competent court. Further, no default notice of 30 days was issued to the Respondent and no 3 months Notice of termination of the Lease Agreement was issued pursuant to the Lease Agreement. With regard to the third ground of appeal, the learned counsel submitted that the Tribunal was correct for not considering rent arrears. He began by submitting that section 73(1) of the Law of Contract Cap 345 RE 2019 11 provides that when the contract has been broken, the party who suffers by such breach Is entitled to receive compensation for any loss or damage caused to him by the other party. The compensation must arise from the usual course of things from such breach, or which the parties knew will happen or were likely to result from the breach of contract. Further, in Haisbury's Law of India Vol. 9 Damages Deeds and other Instruments, New Delhi (2001) at page 145 states that; A party to a contract can claim compensation from the one who has broken the contract only if he can prove that he has sustained loss or damage; He argued further that, having closed out the Respondent from accessing the leased premisses from April 2023, when the lease was officially commencing pursuant to clause 3 of the Lease Agreement, therefore there was no any rent due and payable to the Appellant who breached the Lease Agreement, accordingly the learned trial chairperson was right in not awarding the Appellant rent in arrears. He thus prayed for the cout to find this ground devoid of merit. Arguing against the 4^^ ground of Appeal, the learned counsel for the , 2"^ and 3'"'^ Respondents submitted that it is not true that the Tribunal did not assign reasons for awarding general damages to the tune of TZS 23,200,000. He argued that going through the Tribunal Judgement the court will find that the trial chairperson has on page 20 second paragraph through to page 21 first paragraph, the chairperson has given reasons in support of the award of general damages when he deliberated on the third issue, i.e. "Kama kweli wahusika katika shauri hill walipata hasara" ("Whether the parties suffered damages") 12 He submitted that the Tribunal assigned so many reasons which he does not need to quote them as they can be easily read. He reffered the court to the case of Anthony of Anthony Ngoo and Davis Anthony Ngoo vs Kitinda Marao, Civil Appeal No. 25 of 2024 (unreported) to drive point home that the Tribunal complied with the said requirement since the chairperson assigned reasons for awarding general damages. Therefore, this ground too must fail. Turning to the 5^^ ground of appeal, which is to the effect that the Hon. Chairperson erred both in law and fact to award costs to the Respondent without due consideration that the lease agreement between the Appellant and the Respondent does not warrant awarding of costs to the parties; the learned counsel stated that the Appellant's reasons in support of this ground are premises on para 6 (c) of the Lease Agreement which provided for parties in the Lease Agreement to bear their own costs when it comes to disputes with the judicial forum. He contended that the general rule is that a succesful party must have its costs. Once the court departs from this general principle, in the terms of subsection 2 of section 30 of the CPC Code Cap 33 RE 2019, It must assign reasons for doing so. The subsection reads; Where the court directs that any costs shall not follow the event, the court shall state its reasoning. He reffered the court to the case of Hussein Janmohamed& sons V twentsche Overseas Trading Co. Ltd 1967 1 EA 287, to drive a point home that; the general rule is that costs should follow the event and the succesful party should not be deprived of them except for good cause. Therefore, he concluded that the 1'^ 2"^ and 3'"^ Respondents being succesful parties are entitled to costs. The Agreement between the parties 13 cannot oust jurisdiction of the court. He cited case of African Group(T) Ltd vs Said Abdalla Msangi and Another (Misc. Commercial cause No. 206 of 2015 TZHCComD 2154 to bolster his argument. Submitting on the 6^*^ ground of appeal, the learned counsel for the 2"^ and 3''^ Respondents stated that there are some irregularities and illegalities within the proceedings that were in the DLHT as follows; One, the tribunal proceeded with the hearing and determination of the matter in the absence of the 4^^ 5^^ and 6^^ Respondent (exparte) without adhering to the legal procedure as stipulated by the law Two, the Tribunal awarded special damages on the alleged damaged properties while it had no jurisdiction to determine disputes on non-land matters. With regard to the exparte hearing he submitted that at no time of the proceedings at the DLHT the Tribunal proceeded exparte against the 4^, 5'^'^ and 6*^^ Respondents as during the trial the Respondents, mentioned by the Appellant had been enjoying representation of the counsel Benjamin Mtwanga who was also representing the Appellant and had all the time in record of the proceedings appeared to be representing the Appellant, 4^^ and 6^ Respondents. Further, the written statement to the counter claim was also prepared jointly by their learned advocate. Therefore, the Appellant's assertion of the proceedings conducted exparte at the Tribunal is not true. Submitting on the second irregularity of lack of jurisdiction , as identified by the Appellant, the learned counsel contended that section 167(1) cited by the Appellant provides for bodies with power to deal with land matters therefore the claim that the issue of compesation on speficic damages on damaged properties was not supposed to be dealt with by the Tribunal can 14 not arise, the nature of the dispute arose from the lease contract that Involved landed property of which any damage should be claimed along dealing with the land dispute that emanates from the lease contract. He cited the case of Gloria Kyonjola vs Age Investment Ltd and another (Land case No 53 of 2012) to emphasize his point that for a suit to be I termed a landed matter It must Involve ownership of the land/house, breach of tenancy, enforcement of a mortgage and matters related thereto. Therefore, he argued that the events following the lease agreement that Is not disputed by neither party to the suit at the DLHT form part and parcel of the land dispute therefore the tribunal was right to award compensation to the damaged properties to the Respondent as a result of the Appellant's action for the breach of tenancy. In rejoinder, the Appellant reiterated his submissions In chief. I will not reproduce them but will be reffered In the analysis herelnbelow as deemed appropriate. Having meticulously reviewed the rival submissions of the trained legal minds, the central question to be resolved Is whether the Appeal has merit, and I will begin to determine the same as follows: In determining this appeal, I have been guided by the following principles; one, he who alleges has a burden of proof In terms of section 110,111 and 112 of the Evidence Act, Cap 6 of the laws R.E 2019. That the standard of proof In civil cases Is on balance of probabilities, that the success of the Plaintiff's case does not depend on the credibility of the Defendant's case and Instead the burden of proof never shifts to the adverse party until the party on whose the onus lies discharges the burden. The same does not ease on account of the weakness of the case of the adverse party. See the case of Paulina Samson Ndawanya v. Theresia Thomas Madaha civil 15 Appeal No. 45 of 2017 court of Appeal of Tanzania at Mwanza (unreported) page 15 where the court in this case held that; it is again trite law that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and the burden of proof is not diluted on account of the weakness of the opposite party's case. I have further been guided by the principle that; specific damages must be strictly proved unlike general damages. With regard to the first ground of appeal, that is the Hon. Chairperson erred both in law and fact to award the Respondent with specific damages of USD 55,000 without the same being proved under the required standard of the law; the learned counsel for the Appellant contended that the first Respondent was awarded by the Tribunal specific damages of USD 55,000 without the same being proved under the required standard of the law since no receipts were produced in court or clear documentation. The 1^^ Respondent on his part has contended that, he provided sufficient proof to the Tribunal since the Apellant did not object to the specific equipments as they were pleaded in the pleadings. Counter claim and admitted the said pleadings with the value of the equipment.The Appellant failed to controvert the testimony during the hearing, relating to the value of the equipment and no documentary value of equipments was adduced by the Appellant during his testimony to contenst that of the 1'^ Respondent. The first Respondent contended that the testimony of the value of the equipment was also testified by DWl and DW2 on the balance of probalities, that it is not necessary to provide receipts of hardware and that oral evidence and physical materials have been considered by the court to be sufficient. 16 In dealing with this ground of appeal, I have perused the pleadings and noted that the Respondent in his Written Statement of Defence and Counter claim indicated that they placed into the suit premisses the following items; cashier shelves, two chillers, refrigerators and cashier tables all valued at USD 55,000 in an effort to kick start their supermarket business with effect from April 2020. The Plaintiff in their reply to the counterclaim did not dispute the said information provided on the value of the equipment being USD 55,000. My further perusal of the proceedings, testimony and submissions of the parties also revealed that the Respondent vide the DWl and DW2 testified before the court that he agreed with the Appellant to place their equipment in the suit premises, the inventory for the equipment was tendered before the court by PWl as P5 and the Appellant prepared it infront of the Mtaa Chairman. See page 7 of the Tribunal Judgement. See also page 8 second paragraph were the Tribunal states that; Wakati wa Dodoso ya maswali, PWl ameeleza kuwa wajibu maombi waliweka mashelfu, trollies, friza za supermarket kwa kuwa walikuwa na nia thabiti ya kufanya biashara. It was further testified by the Defence side that the said equipment was lumped in a small room which was reduced in size by the Appellant and got damaged. See page 10 where the testimony of the DWl was recorded by the Tribunal as follows; Ameendelea kulalamika kuwa vifaa vilivyowekwa katika pango vilifungwa kwa utaalam na sasa vimelundwa katika eneo dogo na hivyo kuharibika. Amemaliza kwa kuomba nafuu zilizoanishwa katika madai yao kinzani (counter claim) na kuwa shauri la msingi litupwe kwa gharama 17 Furthermore, on page 17 the Tribunal went on to state as follows; Baada ya kujiridhisha juu ya uwepo wa Mkataba wa Pango; sasa natazama kiini cha pili, kama kuna uvunjwaji au frustration ya mkataba hue, ''whether the lease agreement was breached /frustrated" katika ushahidi wa wajibu maombi wamedai kuwa baada ya kutia sain! kwa mkataba wa pango, Mpangishaji aliwaruhusu kuingiza vifaa na bidhaa za biashara yao. Vifaa hivyo ni chillers, shelves, freezers, counters na trollies kama ambavyo vimeanishwa katika inventory iliyotolewa na PWl kama kielelezo P4. Maelezo kama hayo yamesemwa na DWl kuwa waliingia katika Pango. Similarly, in their counterclaim, the Defence testified that the value of the said properties was USD 55,000. The fact that the equipments worth 55,000 were lumped in a small room was not controverted by the Appellant during cross examination. See the case of Bomu muhamed vs Hamis Amiri (supra) and the case of Nyerere vs R (supra) cted by the Respondent. Hence the evidence stood admitted. Furthermore, the Business Plan of the Respondent which was also admitted in court as an exhibit D5, touched on the value of the equipments. I thus agree with the case of Sixbert Bayi Sanka vs Rose Nehemia (supra) that these constited enough evidence to prove the value of the damaged equipments as the law recongnizes oral, documentary and phyisical materials as forms of evidence if their credence is impeccable as as in this case. Furthermore, there was no any documentary evidence tendered in court by the Appellant to prove otherwise the value of the equipment being less or not of the amount indicated. It is thus my settled position that, based on section 110, and 111 and 112 of the Evidence Act Cap 6 RE 2019 and on balance of probabilities, the 1'^ 18 Respondent managed to prove that his equipments worth USD 55,000 were damaged because of being lumped in a small place and ought to have been compensated. Thus, the cases of Harrith Said Brothers Co ltd vs Martin Ngao (supra) and M/s Universal electronics and Hardware Ltd vs Strabag International cited by the Appellant are thus distinguished in this regard. The Tribunal held on page 22 (item a and b) of the Judgement of the Tribunal as follows; a)Kitendo cha mjibu maombi wa kwanza katika counterclaim kufunga na kuchukua eneo la pango halikuwa halali b)Kwa kuwa sehemu kubwa ya eneo la pango limeshapangishwa kwa wajibu maombi 2,3, na 4, basi mieta maombi alipwe fidia ya vifaa vyake kama vilivyobainishwa katika P5 kiasi cha USD 55,000. Furthermore, the Appellant contended that the Tribunal ought to have conducted locus in quo to satisfy itself with the value and condition of the properties. I agree with the learned counsel for the 2"^ and 3'^ Respondent that a visit to the locus in quo is done based on the discretion of the court when it is necessary to verify evidence adduced by the parties during trial. It is not a mandatory requirement. See the case of Bomu Muhamed vs Hamis Amiri(supra). In this particular case the Tribunal did not see the need to do it and no party moved it. Therefore, the Appellant can not be allowed to bring this issue at this stage as an afterthought. The law cannot assist those who slumber on their rights. Therefore, the ground of appeal fails. Regarding the second ground of appeal, i.e the honourable chairperson erred in both law and fact in holding that the Appellant breached the lease Agreement in the absence of clear evidence to that effect. 19 In dealing with this ground of appeal, I have perused the Lease Agreement, submissions of the parties and Judgment of the Tribunal and observed that it is not in dispute that the parties entered into a Lease Agreement for a period of 5 years commencing from of April 2020 to 30^*^ March 2025. See page 17 of the Judgemement where it was held that; Hakuna ubishi juu ya jambo hili kwamba hapo tarehe 11/2//2020 mwombaji na mjibu maombi wa kwanza walisainiana mkataba wa pango la SQ 335 lililopo Mikocheni barabara ya Mwai Kibaki kwa kipindi cha miaka mitano utakaoanza hapo tarehe 01/04/2020. Uthibitisho wa kiini hiki ni kielelezo PI kilichowasilishwa na PWl ambaye ni mwajiriwa wa mwombaji na msimamizi wa jengo lilipo eneo la mgogoro The said Lease Agreement provided for eventualities in terms disputes between the parties, such as the procedures to be followed when rent is due and also termination of contract. This court after careful perusal of the records, agrees with the Respondent, that the Tribunal was correct in reaching the decision that the Appellant breached the said Lease Agreement. I have perused the records, submissions and Judgement of the Tribunal and agree that the Tribunal was correct in reaching its decision since t the terms contained in the Lease Agreement were not complied with by the Lessor, the Appellant, the procedures for claiming un paid rent, handling disputes between the parties, issuing notices and terminating the contract were all not followed by the Appellant as stated in the proceedings and judgement of the Tribunal. The timelines for issuing notices were not complied with as no 30 days notice or 90 days were served to the Appellant to either claim rent or terminate the Lease agreement as required by the terms Of the 20 Agreement. Acoording to the records and evidence submitted in court, the Appellant was just locked out and the premises leased to other tenant's contrary to the provisions of the Lease Agreement. The analysis on the breach of the Lease Agreement is contained on pg 17-20 of the Judgement of the Tribunal. The same is quoted herein below as follows; Baada ya kujiridhisha juu ya uwepo wa Mkataba wa pango sasa natazama kiini cha pili; kama kuna uvunjaji/ frustration ya mkataba hue, whether the Lease Agreement was breached/frustrated. Katika ushahidi wa wajibu maombi wamedai kuwa baada ya kutia saini kwa mkataba wa pango, mpangishaji aliwaruhusu kuingiza vifaa na bidhaa za biashara yao. Huu ni ushahidi tosha kwamba Mpangaji aliingia katika Pango na kuanza kuandaa biashara aliyokusudia kuifanya. Pia upo ushaidi kwamba mpangaji alizuiwa kuingia katika eneo la pango kwa madai ya kutolipa kodi ya pango na baadaye sehemu kubwa ya eneo hiio kupangishwa kwa wajibu maombi wa 2, 3, na 4 katika madai kinzani. The Tribunal went on to state that; non payment of rent was not a justification for the Appellant to lease the premises to other tenants who are the 4^^ 5^^ and 6^^ Respondents since the procedure for claiming rent is legally known like what the Appellant did to institute the case in court but not to lease the area that has already been leased to another tenant to other tenants. I agree with this position of the Tribunal. The Tribunal further cited clause 12(b) of the Lease agreement to drive point home that parties in this case were required by the terms of the Lease agreement to settle the dispute between them amicably and take legal action in a competent court upon failing to settle the same amicably. 21 With regard to the breach of the procedure for Issuing notices, the Tribunal went on to state as follows; Kuhusu suala la ilani zinazodaiwa kutolewa na mwombaji kama zilifuata matakwa ya Mkataba na kumfikia mjibu maombi wa kwanza, nimepitia ushaidi wa PWl ambaye ameeleza kuwa baada ya mjibu maombi kushindwa kulipa kodi na kuanza biashara walimuandikia barua (P2) iliyopokeiewa na watu waliokiri kumfahamu mjibu maombi. Pia ipo ilani ya siku 30 aliyowasilisha ya kuvunja mkataba. Ilani hii haioneshi kama ilipokelewa na Mpangaji isipokuwa ina saini ya mwandishi ambaye ni PWl. Kwa mujibu wa Mkataba (PI), suala la Notice na kuvunja mkataba limeelezwa katika ibara ya 10. Ibara hii imetaja muda wa notice kuwa ni miezi mitatu na siyo siku 30 za ibara ya 6 ambayo inahusu haki na madai ya kodi Kwa maana hiyo ni dhahiri kuwa vieleizo P2 na P3 ni wazi kuwa havijakidhi matakwa ya mkataba. Ukiangalia tarehe za kutolewa kwake hazifiki muda uliotajwa katika Mkataba na hakuna uthibisho wa kumfikia mpangaji ni katika mazingira haya ni wazi kwamba mieta maombi aliyekuja mahakamani ndiye aliyevunja mkataba kwa kumfungia mpangaji na kupangisha eneo la daawa kwa watu wengine na kushindwa kumpatia ilani kwa mujibu wa mkataba wao. Based on the quotation from the Tribinal's Judgement, I agree with the submissions of the 1^' and Respondents that the Appellant was the first one to breach the lease agreement. Therefore, this ground of appeal has not succeeded. With regard to the 3''^ ground of appeal; the Appellant has submitted that that the DLHT for Kinondoni erred in law and fact to consider the rent 22 arrears owed to the Respondent which were specifically proved without any dispute. The Respondent on his part has contended that the Tribunal was correct in reaching the said decisio. Upon careful perusal of the records, I agree with the Respondent that the Tribunal did not error in reaching the decision that it did. My position is based on the records contained in the proceedings and Judgement that the Appellant closed out the Respondent from accessing the leased premises from 1"' of April 2020 when the Lease was to officially commence and as if that was not enough, the Appellant leased out the same rental premises to other tenants in the same building who are the 4^^^ 5^^ and 6^^ Respondents. The fact that has not been denied. Therefore, the Appellant cannot be allowed to violate the law and benefit from rent that was not there in the first place. He cannot thus be allowed to benefit twice. Equity must come with dean hands. This ground of appeal is devoid of merit and stands to fail. Moving to the 4^^ ground of appeal, the Appellant has contended that the tribunal erred in awarding general damages of TZS 23,200,000 to the Respondent without giving clear basis for such assesment. The learned counsel for the 2"^^ and 3'"'^ Respondent contended that the Tribunal was correct in awarding general damages amounting to TZS 23,200,000 after carefully analyzing the actions of the Appellant of breaching the Lease Agreement. The analysis is contained on page 20, 21 and 23 of the Judgement of the Tribunal. The tribunal observed that the Appellant locked out the 1^^ Respondent from doing business, destroyed and or damaged the properties by lumping them together in one small room and leased out their rental premises to other tenants without consulting them. The tribunal also considered the Business plan tendered and admitted in court and concluded that even though the business plan cannot be an evidence of business profit 23 but if proved then it can constitute evidence of general damages. The tribunal stated further that the and 2"^ issues were proved in favour of the Respondent and therefore it was obvious that the Respondent had suffered damages. The tribunal reasoned on page 21 na d 22 as follows; Kutokana na yaliyojiri katika viini hapo juu, ninatofautiana na maoni ya waungwana wajumbe wa Baraza ya kwamba madai ya mwombaji yakubaliwe. Sababu za kutofautiana nao ni kama ifuatavyo; Kwamba ni wazi kulikuwa na makubaliano ya mdomo kumruhusu mjibu maombi wa kwanza kuweka vifaa vyake na kuanza biashara kwa mwezi mmoja ndipo alipe kodi na gharama nyingine walizokubaliana ndiyo maana walimruhusu mjibu maombi wa kwanza kuweka vifaa vyake kabia ya kulipa kodi la sivyo angetakiwa kulipa kodi na gharama nyingine siku ya kusiani mkataba na asingeruhusiwa kuleta vifaa vyake vya biashara kabia ya kulipa kodi maana mkataba ulisema malipo in advance. Pamoja na hayo notice ya miezi mitatu (siku 90) kama ilivyoelekezwa katika Ibara ya 10 ya Mkataba ya kuvunja Mkataba haikutolewa. Notice ya siku 30 walisema walibandika katika sehemu ya biashara (eneo la mgogoro) wakati wamemzuia mjibu maombi wa kwanza kufika katika eneo hilo, ni wazi kwamba mjibu maombi asingeona notice hiyo. Pia mieta maombi amekiuka ibara ya 6 ya Mkataba ambayo imeeleza haki na madai ya kodi. Kwahiyo basi, maombi ya mIeta maombi yanatupwa kw kukosa mashiko na sehemu ya madai ya mjibu maombi wa kwanza yamekubaliwa 24 Therefore, based on the reasoning above, which I fully subscribe to; the Tribunal went on to decide and order under item (c)page 22 of the Tribunal Judgement that; the 1^ Respondent was entitled to general damages of TZS 23,200,000 in the following words; MIeta maombi katika madai kinzani alipwe kiasi kidogo cha fidia ya madhara(general damages cha kiasi cha shilingi 23, 200,000/= (see page 22 item (c). Therefore, this ground has no merit. Regarding the 5^"^ ground of appeal, the Appellant contended that tribunal erred in awarding costs to the Appellant while the Lease Agreement was clear that in such an eventuality parties would bear their own costs. The Respondent has contended that it was entitled to costs since it won the case and that costs always follow event. In dealing with issue I have perused the Lease Agreement and observed that under clause 6(c) it is stated as follows; In the event of either party instituting legal proceedings against the other party in terms hereof, each oartv shall bear its own costs of such proceedings. Based on the clear wording of the Lease Agreement which was also admitted by the Tribunal as exhibit PI, I agree with the Appeliant's submisions that the tribunal erred in law to award costs to the Respondent. The tribunal ought to have given effect to the Agreement entered voluntarily between the parties which was also tendered in court as an exhibit. While the general rule is that; courts have discretion to award I costs, but this general rule has its exceptions. I find clause 6 (c) of the Lease Agreement to be an exception to the general rule and considering the 25 fact that the Agreement was admitted in court as an exhibit. Therefore, this ground of appeal succeeds. Regarding the 6^^ ground of appeal, the Appellant has argued that the proceedings of the DLHT are tainted with irregularity, impropriety and illegality. The 2"^ and Respondents have disputed the sal ground of appeal. Having digested the rival submissions of the parties as recorded herein above, I disagree with the Appellant on the irregularities cited and the reasons stated. With regard to th issue of lack of jurisdiction on the part of the tribunal to adjudicate on the damaged equipments; I am of the settled position that since the equipments were determined as part of the land case filed by the Appellant and the counter claim was part and parcel of the land case no 251/2020, then the Tribunal was correct to adjudicate on such consequential matters to do with the Lease Agreement since it had jurisdiction to determine the land case and so was also the counter claim attached to it. Regarding the second irregularity on the alleged exparte hearing which was said to have been conducted in the absence of the 4^^ 5^^ and 6^^ Respondents, based on the record, I agree with the 1^^ Respondent 's submissions that, the rest of the Respondents were represented throughout the proceedings by the learned Advocate for the Appellant who also filed a reply to the counter claim or all the Respondents as it appears on the record of the Tribunal. Therefore, this grounds also fails In the upshot, based on the submissions and analysis above, I have dismissed the 1^ 2"^, 3"^, and 6^"^ grounds of appeal and allowed the 5^^ ground of appeal only to the extent stated hereinabove. Therefore, the 26 appsal partly succeeds and partly fails as stated above. Each party shall bear its own costs. It is so ordered. The right of Appeal is fully explained. Dated at Dar es salaam this 20*'^ Day of August 2024 '>A S. D. MWAIPOPO JUDGE 5SS; 20/8/2024 27