rovitha kemirembe tambwe vs mic t ltd 2018 tzhclandd 419 20 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 312 OF 2017 ROVITHA KEMIREMBE TAMBWE...... PLAINTIFF VERSUS MIC TANZANIA LIMITED................. DEFENDANT JUDGMENT Date of last Order: 3/5/2018 Date of Judgment: 20/7/2018 MGONYA, J. In order to appreciate the cause of action (and for the benefit of the Plaintiff). I have to labour through paragraph 3 of the Plaint, which for clarity deserves to be quoted "3. The Plaintiff claim against the Defendant is for unlawfully using a Tower on the Plaintiff's Plot for its Telecommunication business without paying the Plaintiff rent and for refusing to pay the Plaintiff rent for space the Defendant has leased to install its telecommunication tower, generator and equipment room for its telecommunication business. // The above cause of action prompted the Plaintiff to seek the redress on the following reliefs pleaded at page 3 of the Plaint. They reads:- i. Judgment and decree against the Defendant; ii. The Defendant be ordered to pay the Plaintiff arrears o f rent o f USD. 500 per month for using the Dovate Sasatel Tower on the Plaintiff's Plot on Plot No. 605, Mikocheni phase II Commencing from January 2013, till date o f Judgment; Hi. Declaration that the Defendant has defaulted to pay the Plaintiff rent for the space leased by the Defendant on the Plaintiff Plot No. 605 Mikocheni Phase II for year Commencing June 2017 - 2018 a breach which has brought the Lease Agreement to an end; iv. The Defendant be ordered to pay the Plaintiff outstanding rent for the space leased by the Defendant on the Plaintiff Plot No. 605 in Mikocheni from June, 2017 till date o f Judgment; v. The Defendant be ordered to remove their equipment on the Plaintiff's Plot and to vacate the Plot forthwith; vi. General damages o f Tshs. 50,000,000/=; vii. Costs o f the suit; and viiL Any other reliefs deemed fit by the Honorable Court. Pursuant to the Ruling of this Court dated 28th February, 2018 the Plaintiff was allowed to proceed to prove her case Exparte upon the Defendant's failure to file the Written Statement of Defence (WSD) within 21 days from the date of service of the summon to present statement of his defence. It was unfortunate, the Defendant did invoke the proviso of Order VIII Rule 1 (2) of CPC on 15th February, 2018 which was unsuccessful since 21 days period filing an Application for extension of time to file WSD had already elapsed hence the Application was not entertained. Now during the hearing, PW1 ROVITHA KEMIREMBE TAMBWE, the sole witness led by Mrs. Rwechungura learned Counsel testified to the following effect. She testified that she is a Lawful owner of Plot No. 605 Mikocheni Area as per Exhibit PI. (Certificate of the Occupancy and Receipt of Government Bill). PW1 told the Court that Dovoted/Sasatel Tanzania Ltd came to her area to seek for instalment of their equipment for operations. It included to erect the Telecommucation tower and generator. PW1 testified that they entered an agreement and the Plaintiff was agreed to pay USD. 500 per month. The Agreement was entered in 2008 and was for 5 years. PW1 proceeded to testify that the Defendant have closed their business since they failed to comply with conditions by Tanzania Communication Regulatory Authority (TCRA). The Lease Agreement between Plaintiff and Dovetel (T) Ltd and copy of the Newspaper Daily News showing closure of the operation of business were admitted Exhibit P2. PW1 deposed further that SASATEL terminated their services in 2013 and they didn't take their requirement todate. PW1 proceeded to inform the Court that the Defendant MIC came to her and asked for the place of equipment. It was in 2009. They agreed and entered into an Agreement for 5 years. The witness testified that it was in the year 2009 to renew the contract in July, 2014 and to end in the year 2019. The agreed rent per month was Tshs. 826, 000/=. The Lease Agreements were admitted as Exhibit P3 collectively. PW1 further told this Court that after SASATEL left, she proceeded with TIGO. She came to know later that in the Sasatel equipment there are 3 antenas which one is used by TIGO. PW1 decided to approach TCRA where she was told she can remove SASATEL TOWER. PW1 deposed further that SASATEL never told her anything about the sub-lease neither given TIGO approval to use SASATEL Tower. When she asked TIGO on why they were using SASATEL'S tower without her approval, they didn't tell her anything. Copies of 8 pictures showing SASATEL tower with TIGO antenas were respectively admitted as Exhibit P4. PW1 told the Court that the Defendant has not paid her despite of several demand notes which were collectively admitted as Exhibit P5. In addition, PW1 successfully tender Exhibit P6, a document showing that the Plaintiff owns the said equipment of SASATEL located on Plot No. 605 Mikocheni "A" Area. Finally, PW1 prayed for Judgment and Decree in the following reliefs. Arrears of rent from 2013 as for using her equipment for business without her consent. She also prayed for rent since last year. She further prayed for disturbance costs at the rate of USD. 500 from 2013 todate. While I appreciate that legally, even in exparte proofs, the Plaintiff has to prove his case up to the standard required - balance of probability. The said sentiment has been clearly maintained and emphasized by our Highest Court of the Land in Civil Appeal No. 10 o f1998, between PETER NG'HOMARIO VS. GERSON M. K MWANGA AND THE ATTORNEY GENERAL. Again for sure, it is trite law that the Plaintiff ought to get such relief as he is entitled on the facts established on evidence even if the relief has not been specifically prayed for. See the case of Court of Appeal of Tanzania in ZUBERI AUGUSTINO VS. ANICET MUGABE [1992] TLR 137. Now having carefully considered the testimony of PW1 and Six documentary evidence adduced during the trial, the gist of questions remain as first, whether the Plaintiff has proved her case to the standard required - balance of probability and second, whether Plaintiff is entitled to be awarded the relief inserted at page 3 in the Plaint on the facts established on evidence. What do we see on the available evidence adduced by the Plaintiff in this matter? On the basis of the testimony of PW1 in Court and the evidence adduced in the exparte proof proceedings via Exhibit PI, this Court finds and is satisfied that the one ROVITHA TAMBWE as GUARDIAN OF MIYOMBWE SHABANI TAMBWE, YUSUF CATHBERT TAMBWE, KHADIJA CATHERINE TAMBWE AND MOFFAT BUBERWA is a lawful owner of Plot No. 605, Mikocheni Phase II Area within Dar es Salaam. Again through Exhibit P2 this Court find indeed there was a Lease Agreement between ROVITHA TAMBWE and DOVETEL (T) LTD for 5 years commenced in 2008. For the rent of USD 6000 per annum. Through Exhibit P2, there is also a Public Notice on intention to cancel Devotel (T) Limited licenses. The Notice was issued on 7th October, 2014. In accordance with the Lease Agreement dated 27th May, 2009 one ROVITHA KEMIREMBE TAMBWE entered a Lease Agreement with MIC Tanzania Ltd for a Land Covering 9m x 6M for erecting a tower, equipment room and space for generator shelter. The rent agreed indeed was Tshs. 600,000/= per month for period of 5 years renewable commencing on the 1st day of June, 2009. Also the Court finds and is satisfied that there was a lease agreement entered between Rovitha Kemilembe Tambwe and MIC Tanzania Ltd for a lease covering 35 by 20m for erecting a tower, equipment room and space for generator shelter. The rent agreed was Tshs. 800,000/= per month for 5 years. All these are evidenced by Exhibit P3 collectively. However, through Exhibit P5, upon Plaintiff detected that the Defendant was using the diminished area left by Devotel without her consent. The Defendant was informed to remove the equipment from the site or was required to pay for the rent of the tune of Tshs. 11,250,000/= for the period since 2013. The content of the Demand Note (Exhibit P5) shows that the Plaintiff informed the Defendant over the installation of 3 antennas on the tower by Defendant without Plaintiffs consent or knowledge. Now having scan the evidence of the Plaintiff above, at this juncture, I feel duty bound to register position of law that parties are bound by their owned pleadings. This principle has been also sufficiently canvassed by the Court of Appeal in Civil Appeal No. 114 of 2011 in the case of PETER NG'HOMANGO VS THE A TTORNEY GENERAL At the beginning of this Judgment I categorically quoted the cause of action brought by Plaintiff against the Defendant. I quotate the same because, it came into my attention pursuant to paragraph 3 of the Plaint that the Plaintiff cause of action is based into two fonts. One, the act of Defendant to use a Tower on the Plaintiff's Plot for Telecommunication business without paying the Plaintiff rent. Second, the act of Defendant refusing to pay the Plaintiff rent for space the Defendant has leased to install its telecommunication tower, generator and equipment room for telecommunication business. 8 On the first of the cause of action which plead that "The Defendant is unlawfully using a Tower on the Plaintiffs plot for its Telecommunication business without paying the Plaintiff rent" the same is indeed supported by "Annexure E" which was admitted as part of Exhibit P5. The said part of a letter dated 9th March, 2016 has the following:- "That you entered a Lease Agreement with our client over a piece o f Land covering some 35 by 20m for erecting a tower in the said land. But you have never erected any tower instead, you were sharing a tower with one o f Dovete! (T) Ltd (Trading as Sasatei) who is also a tenant to our client in a separate phase from your diminished area. " Since the matter proceed exparte against Defendant, of course the Court did not have any available evidence disputing the above said and alleged by Plaintiff. Now, in my view this Court pursuant to the above evidence finds and satisfied indeed that Defendant was unlawfully using a Tower on the Plaintiffs Plot for its Telecommunication business without paying the Plaintiff rent since Defendant did not erect any tower and instead was sharing a tower with one of Dovetel (T) Ltd. Now, in view of the above the question is whether I can decide on prayer (ii) by granting Plaintiff arrears of rent of the tune of USD. 500 per month for using the Devotel Sasatel tower from January 2013 until the date of Judgment. If I decide on prayer (ii), granting the said arrear of rent of USD. 500, will I not be deciding on the contents of Lease Agreement which the Defendant was not a part of the contract, or will I not be deciding on the mesne profit?. And I should add that will I not be deciding on the specific damages or general damages for deprived the use of land by Defendant to the Plaintiff? As regards to prayer (ii) or relief No. (ii) since the Defendant was not a part of the contract between Plaintiff and Dovetel (T) Ltd, I hereby grant an order that the Defendant decommission and remove his equipment from Plot No. 605, Mikochen Area, Phase Plot No. II in Dar es Salaam within 30 days from the day of this judgment. On the third relief (iii) which has connection with the second part of the cause of action that the Defendant has refused to pay the Plaintiff rent for a space the Defendant has leased to install its Telecommunication tower generator and equipment room. As already said, part of Exhibit P5 referred as a letter dated 9th March, 2016 disclose that the Defendant has not erected any tower instead was sharing a tower with one of Dovetel ( T) Ltd who 10 was a tenant to Plaintiff in a separate place from diminished area. The same exhibit disclosed further that the Defendant was not part of the Contract between the Plaintiff and Dovetel (T) Ltd. In view of this the Defendant was not bound by the agreed terms entered between the Plaintiff and Dovetel (T) Ltd through Exhibit P2. The Defendant was only bound by the agreed terms stipulated via Exhibit P3 which was a Lease Agreement entered between the Plaintiff and Defendant on 14th July, 2014. Now, Exhibit P5, demand note dated 29th March, 2017 shows the demand in relation to the Lease Agreement entered by Plaintiff and SASATEL. Suffice to say the demand has no any relation with the Lease Agreement entered by Plaintiff and Defendant. As I have already stated earlier, the Plaintiff ought to get such relief as she is entitled on the facts establish on evidence. The question comes, whether the Plaintiff has adduced on the facts established on evidence that she entered a Lease Agreement with the Defendant commenced on June, 2017 -2018? It is unfortunate during the trial the Plaintiff did not adduce the facts established on evidence that she entered a lease agreement by Defendant commenced on June 2017 - 2018. The document which has reduced such terms of contract, grant or the said disposition commenced on June 2017 - 2018 was neither ii produced nor admitted as exhibit hence there was no evidence produced as a proof of the terms of such contract, grant or disposition entered by Plaintiff and Defendant on June 2017 - 2018. The provision of the Section 100 of the Evidence Act Cap. 6 [R. E. 2002] requires when the terms of a contract, grant or disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property that the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under Evidence Act. It follows therefore that the documentary evidence that the Plaintiff had entered a Lease Agreement with Defendant commenced on June 2017 - 2018 would be essential to this relief and without it I find that this Court cannot arrive at the decision that the Defendant has defaulted to pay the Plaintiff rent for year commencing June 2017 - 2018. I find the third relief meritless. The findings above on the third relief disposed also the fourth (iv) and fifth (v) reliefs, since the same cannot be awarded as they emanate from prayer (iii) which has already be found of no weight in law i.e meritless. As for the six relief or prayer the same cannot detain much time and energy due to the available evidence on record, I hereby order that Defendant to remove their equipment including three 12 antennas on the Plaintiff Plot and to vacate the Plot within 30 days from the date of this Judgment. Now coming to the general damages, the Plaintiff has prayed for 50, 000,000/=. While I appreciate the wording by LORD MACNAGHTEN STROMS VS. HUTCHISON (1905) A. C 515 that "general damages" are such as the law will presume to be the direct natural or probable consequence of the act complained of. However, Lord Dunedin remind me in ADMIRALTY COMMISSIONERS S. S. SUSGUEHANN (1926) A, C, 655 at page 661 thus:- "This damages be genera/ then, it must be averred that such damages has been suffered, but the quantification o f such damages is a question of the jury■" I am mindful further that in a claim for general damages, particulars will not be needed of the quantum of damages claimed. See LONDON AND NOTHERN BANK LTD VS. GEORGE NEWNESLTD (1900) 16 TLR 433 CA. Having considered all the above in totality and circumstance of this Court I do hereby grant Tshs. 10,000,000/= Ten Million 13 Shillings as a general damages be paid by Defendant to the Plaintiff. As regard to costs of the suit, I find since the general rule on costs is that they are awarded at the discretion of the court and they follow event unless there are good reasons to be recorded from departing from the general rule, See Section 30 of the Civil Procedure Code Act Cap. 33 [R. E. 2002] and the Court of Appeal of Tanzania decision in the case of NJORO FURTITURES MART LIMITED VS. TANESCO (1995) TRL 250. I am convinced that the Plaintiff is entitled for the costs of the suit and consequently the Defendant shall pay costs of this suit. The above said, I am satisfied and the Judgment is hereby entered in favour of the Plaintiff in a manner stated above. But for clarity the Judgment is in favour of the Plaintiff on the following terms. The Plaintiff as guardian of MIYOMBWE SHABANI TAMBWE, YUSUF CATHBERT TAMBWE, KHADIJA CATHELINE TAMBWE and MAFFAL BUBERWA is a lawful owner of Plot No. 605, with titled No. 42026 phase II Area Dar es Salaam. Having answered relief No. (ii) the prayer paragraph stands allowed only to the extent that Defendant is ordered to decommissioned remove his equipment from Plot No. 605 Mikocheni Area within 30 days from the date of this Judgment. 14 Relief (iii), (iv) and (v) are found meritless. On the (vi) relief the court has ordered the Defendant to remove their equipment including three antennas on the Plaintiff plot and is ordered to vacate the Plot within 30 days from the date of this Judgment. The Defendant is ordered to pay Plaintiff the tune of Tshs. 10,000,000/=, Ten Million Shillings as a general damages. Plaintiff is however entitled to costs for the suit. Order accordingly. Right of Appeal Explained. L. E. MGONYA JUDGE 20/7/2018 COURT: Judgment delivered in the presence of Plaintiff in person but in absence of the Defendant and Ms. Theresia on 20th July, 2018 in chamber No. 16 L. E. M< JUDGE 20/7/2018 15