rehema augustino vs joyce changime 2022 tzhclandd 161 24 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL CASE NO. 55 OF 2021 (Originated from the decision of District Land and Housing Tribunal of Temeke in Land Application No. 96 of 2013 Dated 25th February 2021) REHEMA AUGUSTINO .............................................. APPELLANT VERSUS JOYCE CHANGIME ....... ................................... RESPONDENT JUDGMENT ON APPEAL Date of Last Order: 10/03/2022 & Date of Judgment: 24/03/ 2022 A. MSAFIRI, J; The appellant above named being aggrieved by the Judgment and decree of Temeke District Land and Housing Tribunal ("the Tribunal") in Misc. Land Application No. 96 of 2013 delivered on 25th February 2021 by Hon. P.I Chinyele, the Chairperson, appeals to this Court on the following grounds; 1. That the Hon. trial Tribunal erred in law and facts for failure to award compensation of construction did not disputed (sic) that the appellant used her cost to build the frame in dispute. 2. That, the Hon. trial Tribunal erred in taw and facts to award compensation in one (1) frame while the frame build (sic) by the appellant are three and did not disputed (sic) anywhere by the respondent. K filo 1 | Page 3. That the Hon. Tribunal erred in law and facts to order that from 2010 to 2021 the appellant are entitled the compensation (sic) of rent amount to 2,330,000/= The appellant prayed for the Court for the following orders that; i. This appeal be allowed. ii. The Judgment and decree of the District Land and Housing Tribunal for Temeke be quashed and set aside. Hi. Costs of this appeal be borne by the Respondent. iv. Any other reliefs this Honourable Court deemed (sic) fit andjust to grant. By leave of the Court, this appeal was argued by written submissions. The appellant was represented by Yuaja E. Balankiliza, learned advocate while advocate Laurent Ntanga appeared for the respondent. Before proceeding with the determination of this appeal, I find it pertinent that the brief background of this long-lasted dispute which dated back in 2010 is narrated. The parties herein were contesting over the agreement of 2010 where the appellant rented a premises and made an extension of the house which belongs to the respondent by building three rooms. However in the same year April 2010, the respondent terminated the agreement on the reasons that there was allegation that the appellant was using the premises for prostitution activities. The appellant claimed she has used about TZS. 1,500,000/= as costs for construction of the frames. The matter was referred to Chama cha Wenye Nyumba and the respondent was ordered to pay the amount but she failed to comply. Therefore, the appellant sued the respondent for breach of contract before the Temeke District Tribunal, 2 | Page which ordered the respondent to compensate the appellant's rent from 17/04/2010 to 25/02/2021 about TZS. 2,330,000/=. However, costs of construction were not awarded as the applicant did not prove them. Still the appellant was not pleased with the decision hence this appeal. Submitting on the 1st ground of appeal, Mr. Balankiliza for the appellant stated that, the trial Chairman erred in fact and in law for failure to award compensation of construction which was not disputed. According to the appellant, the respondent did not dispute construction of the frames in respect to the agreement and she did not dispute the used amount of TZS. 1,500,000/= as building costs. The trial Tribunal was expected to order the respondent to pay the same amount the appellant has incurred. For the 2nd and 3rd grounds, Mr. Balankiliza submitted that, the trial Tribunal erred by awarding compensation for one frame while the appellant built three frames and the same was not disputed. By the time the respondent breached the contract, construction of the two frames were completed while the other one was not yet roofed. The amount ordered to be paid by the respondent was for one frame only. In his opinion, the total amount to be paid as compensation of the three frames is TZS. 6,990,000/= and not TZS. 2,330,000/=. Therefore, appellant prays for appeal to be allowed. In reply, Mr. Ntanga, advocate for the respondent submitted that the appeal is misconceived and devoid of merit as the trial Tribunal's decision was proper. According to him, the dispute was based on termination of agreement entered by the parties, and it was noted that the actual costs the appellant used was only TZS. 750,000/= plus the door valued TZS. 200,000/=. He stated that the door was taken by the appellant, so the J/7/ 3 | Page remaining amount is only TZS. 750,000/=. He argued that, there is no error committed by the trial Tribunal as the compensation was based on costs used to construct the disputed property. For the 2nd and 3rd grounds, he argued that, it is in the proceedings that, the place which was constructed by the appellant was to be rented for the same amount the trial Tribunal awarded. The allegation that the appellant constructed three rooms are new to this stage. Everything was according to the term of the lease agreement. That, there was no three rooms only two rooms were constructed. There was no rejoinder from the appellant. Having considered the grounds of appeal and the parties' submissions thereon, and further having gone through the records of this appeal, the issue for determination is mainly on the lease agreement between the parties and whether the appellant was promptly compensated according to the costs incurred on extension of respondent's property if any? To answer the above issue as to whether the appellant was promptly compensated according to the cost incurred if any, first of all the Courts are duty bound to dissect and see whether the evidence adduced in Court by one party is strong enough or heavier enough to prove the claims against the other party. Section 112 of the Law of Evidence Act, Cap 6 [R.E 2019], provides specifically that: "The burden ofproof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall He on any other person" 4 | Page And section 111 of the same Act reads: The burden ofproof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side. Further, it is trite law that, when a matter is based on the weight of evidence, it is the trial Court or Tribunal which is better placed to evaluate evidence than the appellate Court/Tribunal which merely reads what is on the record. This position was held in a number of cases including the case of Ali Abdallah Rajab vs. Saada Abdallah Rajabu and others [1994] TLR 132 whereby it was held that: "Where the decision of a court is wholly based on the credibility of the witnesses, then it is the trial court which is better placed to assess their credibility than an appellate court which merely reads the transcripts of the record". From my evaluation of evidence on record, it was not in dispute that there was a lease agreement between the parties and the basis is found on Exhibit RAB-1 which is the agreement between the parties in respect of "frem za biashara"\NX\\ti\ was tendered by the applicant during the trial. As I read between lines to the said exhibit, the payment was made in respect of three years and 8 months from 17/04/2010 to 30/12/2013 and its total amounted to TZS. 1,105,000/=. There is nowhere in the contract that express that there was an agreement of extension of building under the costs of the appellant. The lease agreement is silent on that. And since 5 | Page the lease agreement is silent there is nowhere the appellant has proved that, they did agree on costs of building frames and the manner of recovery of the said costs by the appellant. I therefore agree with the findings of the trial Chairman that the appellant has failed to provide enough evidence to prove the costs of the construction of the said frames. However, it is undisputed fact that the respondent terminated the contract of three years' lease which was fully paid, therefore I agree with the learned trial Chairman that the appellant is required to be refunded her rental money for the period of three years and interest thereon earned had the contract been performed to the end. Despite that, I was troubled to understand trial Tribunal's calculations as far as compensation is concerned particularly paragraph 11 of the judgment. I say so because the said calculation included the time upon which the contract had already expired. Under Exhibit RAB-1, the lease agreement was supposed to last from 17/04/2010 and end on 30/12/2013. In my opinion there was no need for the respondent to be penalized after the time frame upon which the contract already expired. For better understanding, I will hereby quote the said paragraph of the said judgment as hereunder; " Then I will calculate from 11/01/2014 to 25/02/2021 at the date of the judgment and I will get the total rent owes PW1 from 01/01/2014 to 25/02/2021 is 49 months and the rent is 25,OOO/= hence I get the total to be 1,225,000/=. This amount when I add with the unpaid TZS 1,105,000/= I get 2,330,000/= "-k [ 6 | Pa ge But under the lease agreement the issue of breach was handled very clear, in a very simple language, let me reproduce hereunder; "Huu mkataba utaanzia Tarehe 17/04/2010 hadi Tarehe 30/12/2013 ndipo utakuwa mwisho wa mkataba. Endapo mwenye nyumba akivunja mkataba anatakiwa amlipe mpangaji wake he/a yake ya miezi aliyolipia na fidia ya maiipo ya hiyo miezi aliyolipia." In my opinion based on the above quotation, the trial Chairman was required to order refund of the rental money to the appellant and the compensation as provided for under the lease agreement after the breach. As far as the evidence on record is concerned, which was also observed by the trial Chairman, the evidence adduced did not show how much on the compensation the respondent has to pay for breach of lease agreement. Furthermore, the evidence is not clear on the amount of monthly rent, so the trial Chairman made assumptions that it was TZS 25,114/=. The appellant has failed to show the amount of money which she was supposed to be paid as compensation after the breach of lease agreement by the respondent nor the monthly rental amount. Since the amount for compensation is not clear, I had to revisit the contents of the lease agreement. It provides that, if the landlady breaches the agreement, she has to refund her tenant the rent for all the paid months and compensation to those months already paid. My interpretation here is that, the land lady has to pay again as compensation the same amount as the one paid for rent. In this case, the rent paid was TZS 1,105,000/= 7 | Page for the three years. Since there was a breach, then the landlady (respondent) has to pay again TZS 1,105,000/= as compensation. Basing on that, I find that, the appellant is only entitled to be paid the rental money which is TZS 1,105,000/= under the lease agreement and compensation of TZS 1,105,000/= for breach of the same. As to the issue as to whether the agreement was for one frame or three frames as claimed by the appellant, unfortunately the lease agreement does not say so , there is no indication that the appellant was rented three frames for business. Furthermore, on annexed documents by the appellant in her application there was a committed letter by the respondent which also does not indicate whether the appellant constructed the three rooms capable of being indemnified. It simply states; "mimi Joyce Changima nimekubaii kumiipa mama Omary Kiasi cha Tsh. 1,110,500/= ya vyumba ambavyo ahtaka kupanga kwangu...." (Emphasis is added) Having said that, I uphold the decision and judgment by the trial Tribunal but I partly reverse the award by the trial Tribunal and hold that, the appellant is entitled to be paid TZS 1,105,000/= for the rental amount from 17/4/2010 to 30/12/2013 and the compensation of TZS 1,105,000/= for breach of lease agreement, totaling the amount of TZS 2,210,000/= only to be paid by the respondent. The appeal is partly allowed to the extent of reversing the award by the District Land and Housing Tribunal for Temeke at Temeke. Each party to bear its own costs. 8 | Pa ge It is so ordered. Right of appeal explained. Dated at Dar es Salaam this 24th Day of March 2022. A.MSAFIRI JUDGE 9 | Page