REHEMA J KULANDERA VERSUS HEKIMA WOMEN GROUP Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO. 10511 OF 2024 (Arising from the Decision of District Land and Housing Tribunal for Singida at Singida dated on 18/03/2024 before Hon. B. Colex-Chairman) BETWEEN REHEMA J KULANDERA...............................................APPELLANT VERSUS HEKIMA WOMEN GROUP …..………………………….. RESPONDENT JUDGEMENT Date of last Order: 29/07/2024 Date of the Judgement: 13/08/2024 LONGOPA, J.: This is an appeal against the decision of the District Land and Housing Tribunal for Singida on dispute over the payment of rent at the tune of Tshs 1,420,000/=. It is on record that the appellant was a tenant of the appellant since 2012 at the appellant business/commercial building where the appellant rented a room for business. The appellant claimed that she paid the said sum while she was the tenant of the respondent. On 18th March 2024, the District Land and Housing Tribunal for Singida entered judgment and decree in favour of the respondent, and ordered the appellant to pay the sum of Tshs 1,370,000/= to the respondent. 1|Page On 9th May 2024, the appellant being aggrieved by the whole of the judgment and decree of the Tribunal appealed against the whole of the decision on the following grounds, namely: i. That, the Honourable Chairman erred in law and fact(s) in deciding the case in favour of the respondent while the respondent failed to prove his case on the standard required in civil cases that, is balance of probabilities. ii. That, the honourable Chairman erred in law and fact(s) for holding and ordering the appellant herein to pay the respondent the tune of Tshs 1,370,000/= while failed to evaluate properly the evidence adduced by the parties. iii. That, the honourable Chairman erred in law and fact(s) in deciding the case in favour of the respondent by relying on the respondent’s admitted exhibits which was procured and tainted with impropriety and irregularities. Thus, on strengths of these grounds of appeal the appellant prayed for appeal to be allowed with costs. On 29/07/2024 both parties appeared before me for hearing of the appeal whereby appellant was represented by Salum Hassan Salum under Power of Attorney and respondent appeared in person fending oneself. 2|Page It was the appellant’s move to have all the grounds be adopted all the grounds of appeal and submitted that there was no written agreement between the appellant and respondent regarding the lease of the building in question. The respondents tendered agreement that covered a period between 2012 and 2015. However, the claim before the District Land and Housing Tribunal which was subject of this appeal related to unpaid rent for the year 2019. Also, there was another document of forty (40) pages that had two different names from those of the appellant who is Rehema J. Kulandera. The documents related to some the amount received and the amount not received. There was also another document on total amount allegedly appellant is indebted to be TZS 1,420, 000/= while the other one had total of TZS 1,440,000/=. However, there was no document relating to lease agreement regarding years 2017 to 2019 period between the appellant and the respondent. On proof of the case, it was submitted that there was no proof that there was any agreement to monthly rental payment at the rate of TZS 60,000/=. There was no such evidence save for oral testimonies of PW 1 and PW 2. With regard to ground on failure to evaluate evidence, it was submitted that judgment of the District Land and Housing Tribunal ordered that submission on Exhibit P1 was not forgery as he knows. It 3|Page has two different signing dates of 2010s and 2022 by the Municipal Executive Director while todate such person is not Municipal Executive Director but an Acting Municipal Executive Director. He was of the view that all documentary evidence of the respondent were forgeries. On the other hand, the respondent submitted in respect of the first ground that the respondent’s case was proved through documentary evidence and oral testimonies that were convincing, credible and sufficient to establish that the appellant was indebted rental payment at their place of business building amounting to TZS 1,440,000/=. The evidence before the District Land and Housing Tribunal included the documentary evidence where the appellant personally acknowledged the debt thus there was a clear admission of the debt before the Ward Executive Officer on 23/01/2023. The appellant wrote the acknowledgement in person that she was indebted to Hekima Women Group a total of TZS 1,440,000/= and that repayment would commence from 27/01/2023 in instalments. It was submitted that the appellant also requested that repayments should be on weekly basis where she would deposit around TZS 30,000/=. It was agreed that the first instalment should be collected physically on 27/01/2023 but on that material date when the respondent’s representative arrived at the office of Ward Executive Officer and Village Executive Officer, and the appellant was not there. It was Mr. Salum Hassan Salum who appeared but there was no fruitful discussion as the date was for collecting of the first instalment. The 4|Page appellant had promised to repay half of the money indebted to the Hekima Women Group between March and April as she informed respondent that she will harvest beans at that time. And the rest of the money would be repaid until June 2024. The other evidence was receipts that were issued to the appellant one Rehema J Kulandera when she was paying the rental fees. These were produced, tendered, admitted and marked as exhibits before the District Land and Housing Tribunal indicating that there were months where no payment was done thus the appellant was indebted. There were three witnesses on the respondent’s part including the Secretary of the Hekima Women Group, the cashier /accountant and the sublessee called Vaileth. It was stated further that the Lease Agreement was at rate of TZS 50,000/= per month from 2012 until 2015 and they agreed in a meeting to increase the rental fees payment in 2016 thus TZS 60,000/= per month payable from 2016 onwards. There were receipts showing rental payment of TZS 50,000/= and those showing TZS 60,000/= per month as the rental amount tendered before the trial Tribunal by the respondent. In respect of the second ground, it was submitted that the District Land and Housing Tribunal Chairman had properly analyzed the evidence of the parties and stated the reasons for entering judgment in favour of the respondent. 5|Page In respect of the third ground, it was submitted that all documents were genuine documents and they were correct document to prove the case of the respondent. There was nothing forged. They had valid receipts and the Register shows all transactions on payment of the rental charges were recorded. The additional documents were ordered by the District Land and Housing Tribunal and the respondent produced them. The respondent prayed that this appeal is having no merits thus this Court be pleased to do justice so that the respondent can be paid their money owed by the appellant. The appeal should be dismissed for lack of merits. In short rejoinder, the appellant replied that he reiterates that the appeal is merited as there was no proof of the case on the side of the respondent to the required standard. He prayed that this appeal be allowed as the admission by the appellant was procured wrongly through coercion from or done by the Ward Executive Officer. Having heard the rival submissions by the parties, perused the records of the trial Tribunal, judgment and decree of the District Land and Housing Tribunal for Singida, it is pertinent duty of this Court to determine merits or otherwise of the appeal. To commence addressing the issues of the appeal, it is pertinent to reiterate at the outset that in civil case the burden of proof is on the person who alleges and standard is proof on balance of probabilities. In 6|Page Anthony M. Masanga vs Penina (Mama Mgesi) and Another (Civil Appeal 118 of 2014) [2015] TZCA 556 (18 March 2015) (TANZLII), at pages 10-11, the Court observed that: It is a common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities. Now, in the present matter, the issue before us is whether the appellant had, in the required standard, discharged his duty of proving that the land belonged to him and not to anybody else. The High Court judge was of the opinion that the appellant failed to discharge that duty. We hasten to agree with him for the reasons we are about to assign. Also, in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 14, the Court of Appeal stated that: It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such 7|Page evidence which is more credible than the other on a particular fact to be proved... It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. The standard of proof is that of balance of probabilities. It is the duty of the person who wishes the court to enter judgment in his favour to prove that a particular fact exists. The evidence on record reveals that PW 1, PW2 and PW3 stated that appellant was a tenant to respondent and has a dept of Tshs 1,420,000/= which she has not to paid. Also, Exhibits P1 and P2 show that appellant acknowledge the debt of TZS 1,440,000/= and by signing to the agreement document she agree to pay the said sum in instalments. There is no doubt that the appellant was a tenant of respondent, and by signing on Exhibits P1 and P2 shows clearly that appellant has a duty to pay rental fee. It was the respondent's evidence that was watertight to warrant the Tribunal to the appellant to the sum of Tshs 1,370,000/= to the respondent. I am in concurrence with the submission by the respondent that the evidence on record was sufficient to warrant entering judgment and decree in favour of the respondent. The reasons are lucid. First, there were substantive oral testimonies of PW 1, PW 2 and PW 3 on the indebtedness of the appellant. Second, there is explicit admission made 8|Page twice by the appellant regarding the rental payments which she owes the respondent. Third, such evidence was not weakened by any tangible evidence of the appellant to the contrary. The admission dated 23/01/2023 was tendered, admitted and marked Exhibit P. 1. I am fortified by the provisions of the Evidence Act that admission is an estoppel against the maker of the statement. It means that once a person admits to have been indebted such person cannot be heard challenging that statement. In particular, Section 19 and 20(1) of the Act, the law provides that: 19. An admission is a statement, oral, electronic or documentary, which suggests any inference as to a fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned. 20.-(1) Statements made by a party to the proceeding or by an agent to any such party, whom the court regards in the circumstances of the case as expressly impliedly authorised by him to make them, are admissions. Exhibit P. 2 collectively was illustrative that appellant on her on her own volition did admit that she was indebted to the respondent to the 9|Page tune of TZS 1,440,000/=. This was admitted by the appellant at two different dates. On the first date i.e. 23/01/2023, there parties were not before the Ward Executive Officer. The second time i.e. on 27/01/2023, the acknowledgement was done before the Ward Executive Officer. Indeed, this admission is an estoppel against the appellant. That is what section 26 of the Evidence Act states, namely that: 26. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppel under the provisions of this Act. It can be noted that there were three witnesses of the respondent herein who testified to the effect that the appellant remained indebted a rent worth TZS 1,440,000/=. This was evidence of PW 1 and PW 2, who are members of the respondent’s association and PW 3 who was subleased the particular room by the appellant and her evidence was to the effect that she was paying the rental fees to the appellant. As such the case was well established in favour of the respondent that appellant was indebted to the respondent to that tune of TZS 1,440,00/= thus the trial Tribunal correctly found in favour of the respondent. In respect of failure by trial Tribunal to analyse evidence, it is settled view of this Court that there was nothing wrong on part of the 10 | P a g e Tribunal in the analysis of the evidence. The evidence of the respondent was weightier than that of the respondent. This Court has stated in the foregoing analysis oral testimonies of PW 1, PW 2 and PW 3 was sufficient to prove the case to the required standard. This was coupled by Exhibit P. 1 that is an admission by the appellant in writing containing her name explicitly stated, signed and dated; Exhibit P2 - acknowledgment of debt agreement; Exhibit P. 3 - the Lease Agreement dated 1st June 2012 & Registration Certificate of the respondent and Exhibit P.4 collectively- Register containing all the copies of Payment Receipts from 2012 onwards. Further, Exhibit P 2 which is an acknowledgment of debt in form of an agreement. Essentially, terms are as follows: First, on 27/01/2023, the respondent was paid TZS 50,000/=. Second, the appellant would be repaying TZS 120,000/= per month. Third, total indebtedness of the appellant to the respondent is TZS 1,440,000/=. Fourth, after the February 2023 repayment at the office of Ward Executive Office, all other repayment scheduled would be deposited in the respondent’s bank account at CRDB. Fifth, the acknowledgment was signed by the appellant, respondent, appellant’s guarantor and witnessed by WEO of the Issuna Ward. The nature of the Exhibit P 2 is an agreement and it is a settled principle of law that where the terms are reduced into writing all oral evidence intending to vary, amend or change the documented terms is 11 | P a g e not permissible in law. This is enumerated in section 101 of the Evidence Act, Cap 6 R.E. 2019. This principle was analysed in the case of Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others (Civil Appeal No. 38 of 2012) [2017] TZCA 153 (24 March 2017) (TANZLII), at page 10, where the Court of Appeal stated that: Once it is shown as in this case that the contract was reduced into writing then in terms of S. 101 of the Evidence Act, Cap 6 R.E. 2002 (the TEA), a party to such contract is not permitted to adduce oral evidence for the purpose of contradicting, varying, adding or subtracting from its terms. It is on record that tendering of all exhibits except P 4 was not objected by the appellant and the contents of all of exhibits were read out in court upon admission of each of the exhibits P.1, P.2 and P.3. The contents of the exhibits point out to the same direction that appellant was indebted to the respondent. The role of exhibits was reiterated in the case of Abraham Sykes vs Araf Ally Kleist Sykes (Civil Appeal No. 226 of 2022) [2024] TZCA 20 (7 February 2024) (TANZLII), at page 14, where the Court of Appeal stated that: 12 | P a g e Nevertheless, we are also alive to the settled position of the law that the contents of an exhibit admitted without any objection are effectually proved. It is clear that the second ground of appeal is devoid of merits thus it must collapse naturally for its inadequacies. I shall proceed to dismiss the second ground of appeal. Before I pen off, it is necessary to say something about allegedly impropriety and tainted by irregularities. I have carefully considered the exhibits tendered in trial Tribunal. Exhibit P.1 was a document indicating that on 23/01/2023, the appellant did acknowledge debt between the parties alone and promised to pay. Exhibit P2 is the Acknowledgment of Debt Agreement signed by appellant, her guarantor, respondent and witnessed by WEO dated 27/01/2023. Exhibit P.3 relates to the Lease Agreement dated 01/06/2012 and Certificate of Registration of the respondent. Exhibit P. 4 collectively is on the receipts and register indicating the payments record by the appellant. Generally, tendering of documentary evidence entails that mainly three stages are complied with, namely clearance for admission, actual admission and reading out of the admitted documentary evidence. These stages were well articulated in the case of Robinson Mwanjisi and Three Others vs. R. [2003] T.L.R. 218, at 226, where the Court of Appeal stated that: 13 | P a g e Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out. Reading out the contents of the document so admitted is an important stage of the trial in the sense that it avails the other party with the right to prepare its defence well beforehand. It explains all or some of the main aspects of the issues before the court. In the instant case, documentary evidence was establishing existence of contractual relationship between appellant and respondent in form of lease agreement, the amount of the debt that appellant still owes to the respondent, and so on. It is evident from the record that tendering of the same was properly and in accordance with the law. The respondent tendered the same and the trial Tribunal admitted these documentary evidence to substantiate the claim against the appellant. First, for each of the documentary evidence, Exhibits P.1, P.2, P.3 and P4, the witnesses PW 1 and PW 2 introduced existence of each of the document and prayed to tender the same. Second, the appellant was availed opportunity to object. Third, upon admission contents of each document were read out. Further, the appellant was availed opportunity to cross examine the respondent’s witnesses during trial of the case at the District Land and Housing Tribunal. Also, the appellant was afforded opportunity to 14 | P a g e tender her evidence in rebuttal to the respondent’s claims. I am of the view that the appellant’s evidence could not have outweigh the respondent herein evidence. As such, the third ground of the appeal collapses for lack of merits. It is my settled view that the Trial Tribunal was correct to enter judgment and decree in favour of the respondent. Therefore, the appeal is destitute of merits and it shall stand dismissed with costs. It is so ordered. DATED at DODOMA this 13th day of August 2024 E.E. LONGOPA JUDGE 13/08/2024. 15 | P a g e