salum abdallah mkokwa vs sally reymond semvua 2023 tzhclandd 17259 19 december 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 390 OF 2023 (Appeal from the Judgment and Decree of the District Land and Housing Tribunal for Temeke in Application No. 205 of2020 delivered on 14h August 2020, Hon. P.I Chinyeie, Chairman) SALUM ABDALLAH MKOKWA ........................... APPELLANT VERSUS SALLY REYMOND SEMVUA.................................... RESPONDENT JUDGMENT Date of last Order: 05/12/2023 Date ofJudgment: 19/12/2023 A. MSAFIRI, J. The appellant, then the applicant instituted a Land Application No. 205 of 2020 at the District Land and Housing Tribunal at Temeke (herein as the trial Tribunal) suing the respondent herein claiming for compensation for unlawful eviction. He stated in his claims that the applicant was a tenant of the respondent having leased the respondent's premise for business (a frame). That the applicant failed to pay the rent of July and August 2020 and had informed the respondent that he will pay, but the respondent, without giving him the 30 days' notice, forcefully evicted the applicant. That in the course of eviction, the respondent i removed and destroyed the applicant valuable properties and causing him loss. After hearing of the evidence of both parties, the trial Tribunal decided in favour of the respondent and dismissed the Application on 14/8/2023. The applicant was dissatisfied and has lodged this appeal on three grounds namely; 1. That, the trial Tribunal erred in law and in fact by failure to property evaluate evidence on record on balance of probabilities regarding appellant's rent payments. 2. That the trial Tribunal erred in law and fact by the failure to condemn respondent's forceful and questionable eviction of the appellant which led the loss of electronic equipment taken from the rented premises. 3. That the trial Tribunal erred in law and fact by the failure to grant compensation or order the respondent to return appellant's electronic equipment forcefully taken out of the rented premises despite weighty evidence implicating the respondent as the architect of the damage suffered. The appellant is praying for this Court to reverse the whole of Judgment and Decree of the trial Tribunal and order the respondent to pay compensation to the tune of TZS 10,000,000/= to the appellant for the loss of equipment or handover of those equipment to the appellant. The hearing of the appeal was by way of written submissions as per the consent of the parties and leave of the Court. The appellant's 2 submission was drawn and filed by himself as he appeared in person. The reply submission by the respondent was drawn and filed by Mr. Elias D. Lugomela, learned advocate. There was no rejoinder. In appellant's submission he argued on 1st ground that the trial Tribunal failed to properly evaluate evidence of the appellant's rent payments on balance of probabilities in terms of Section 110(1) and Section 3(2) both of the Evidence Act, Cap 6 R.E 2002. That there was no dispute that the appellant had for long occupied the premises and had testified that he was paying rent and recording in his text book while the respondent was not issuing any receipts of payment nor written contract upon receipt of the rent. On 2nd ground, the appellant submitted that the trial Tribunal erred when it failed to condemn the respondent's forceful and questionable eviction of the appellant which led to the loss of electronic equipment taken from the rented premises considering the appellant's status as the rightful tenant. On the 3rd ground, the appellant faulted the trial Tribunal's failure to award compensation for the loss suffered by the appellant despite the weighty evidence proving the respondent as the perpetrator of the wrongful eviction which damaged a number of electronic equipment whose list was admitted as exhibit S-l. /L n- 3 He urged the Court to reconsider and re-evaluate evidence in record under Section 76(1) and (2) of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC). He prayed for the appeal to be allowed with costs. In reply, Mr. Lugomela submitted on 1st ground that the appellant was unlawfully occupying the suit premises hence a trespasser from 2016- 2020 for the reason that since he paid three months' rent he never paid rent timely thereafter, therefore he was asked by the respondent to vacate the premises by 2016 but he did not vacate. That as a result, the appellant has stayed in the premises for three years and nine months without paying rent. He added that under Section 110(1) of the Evidence Act, the onus of proving the facts alleged was on the appellant and he failed to do so hence the trial Tribunal was correct to decide the matter in favour of the respondent. On 2nd ground, Mr Lugomela submitted that the trial Tribunal could not condemn the respondent for the forceful eviction as there was no proof of forceful eviction. That it was established by the witnesses SU1 and SU2 that the appellant was the one who gave the key so that the equipment could be taken out of the suit premises. On the 3rd ground, the counsel stated that the appellant was required to vacate the suit premises since 2016 hence from 2016 onward, he became a trespasser to the respondent's premises. He cited the case 4 of Lawrence Magesa T/A Joseph Pharmacy vs. Fatuma Omary, Civil Appeal No. 333/2019, CAT (Unreported) where the Court of Appeal held that the appellant had no right to claim any compensation from the forceful eviction having been in unlawful occupation of the demised premises after expiry of the lease. He prayed for the appeal to be dismissed with costs. Having gone through the submission, as the court of first appeal, I have a duty to re-evaluate evidence adduced during trial. In his evidence before the Tribunal, the appellant testified as SMI and said that he was an electrical mechanic and was doing his mechanical activities at his shop which he had rented at the respondent's premises located at Sigara, Buza. That he was the respondent's tenant paying TZS 30,000/= per month. That at first they entered a lease agreement between him and the respondent but later there no any new agreement but he was just paying the rent. He said that he was recording the payments in his notebook. His attempts to tender a lease agreement and the notebook was not successful as they were not admitted by the trial Tribunal. The applicant said further that on 13/8/2020, he went at his office and found all his equipment in the shop have been moved outside the shop. When he asked he was told that he had not paid rent. He insisted that there was no formal agreement on rental payment and that he was 5 paying rent and was recording in his notebook. He said that the respondent never gave him an eviction notice. He tendered a list of equipment which he claimed were moved out by the respondent and destroyed/lost. The list was admitted as exhibit S 1. In the explanation to the Tribunal, the applicant said his shop room was broken into and the equipment removed. SM2 Athumani Hamis stated that he was called by the applicant that he was being forceful evicted from his shop and his equipment were being moved out. That the applicant was moved at 12.30 afternoon and he went at the scene at 6.00 evening and he saw the equipment outside the shop. He did not witness the eviction. SM3 Musa Miraji Ally testified that he was the one who moved the applicant's equipment from the shop after breaking the door of the said shop. That after breaking in, he and another person carried the equipment from the shop and put them outside. In cross examination, he said that the applicant was not present on the incident date but he told him that it was a ten (10) month's rent which has resulted into his eviction. In her defence, the respondent testified as SU1 and stated that the applicant was her tenant but he paid rent for three months only and failed to pay for the rest of the term. That he rented the shop from 2012 to 2020 but paid for three months only. That after that she went to report 6 the matter at the Street Government office who directed her to report at Tanzania Land and House Owners Association (CHAWANYUTA). That CHAWANYUTA summoned both the applicant and the respondent whereby the applicant was issued with a three months' notice and he paid only TZS 45,000/= instead of TZS 60,000/=. She tendered a copy of the notice and a loss report after claiming that the original one was lost. That the applicant refused to pay the monthly rent for about three years and also refused to vacate the premises. Hence after informing CHAWANYUTA, they decided that the applicant should be evicted from the suit premises. That, the applicant was the one who gave his key of the shop and he was present during the eviction. In cross examination, the respondent stated that the applicant was her tenant from 2012 to 2016 when he was asked to vacate the premises but did not do so until 2020 when he was evicted. She admitted that there was no lease agreement as the applicant did not fully paid the agreed rent. That the applicant paid TZS 60,000/= only instead of 120,000/=. SU2 was one Masoud Ally Omari who said that he was the cell leader of the area where the suit premises is located. That the dispute between the applicant and the respondent arose after the applicant failed to pay rent as required. That he received a notice of eviction from CHAWANYUTA and he was asked to go and supervise the eviction of the applicant from 7 the suit premises, which he did. The witness said that the applicant was present during the eviction and he was the one who supplied the key of the shop and the equipment were removed in his presence. After reading the evidence of both parties and the documents produced during the trial, it is clear that the applicant (now the appellant) was a tenant of the respondent. Although no lease agreement was produced during the hearing, but from the parties' evidence, it was clear that the appellant had rented the shop at the house of the respondent. I have also gathered from the evidence that the appellant had paid rent for some time but later failed to pay. This was gathered from the evidence of the respondent. The applicant said he had been paying rent and that there was no formal mode of payment. However he did not produce any evidence to support his claim of payment. Also his witness SM3 said that he was told by the appellant that he was being evicted because of the failure of payment of ten months' rent. On part of the respondent, with the loss report, she produced a photocopy of a letter of the appellant admitting to have not paid rent on time as required. On that letter, the appellant paid only 45,000/= instead of TZS 60,000/=. The documents were received as exhibit DI collectively. It should be noted that it is the appellant who had a duty, as the applicant to prove his claims as per the requirement of Section 110 and 8 112 of the Evidence Act, which place the burden of proof on the person who alleges. In the civil proceedings, the burden is on the balance of probability. In the present matter, the appellant claim that he had paid rent but there was no evidence of payment. The respondent claims that the appellant has not paid rent for long time the act which forced her to evict the latter. The respondent has at least produced the evidence to show the attempt she made in forcing the appellant to pay rent. Also the appellant claimed that the respondent broke into the appellant shop and forcefully evicted him, moving out his equipment which were inside the shop. The appellant is claiming to be paid damages and compensation for the equipment which were removed from the shop and put outside. However, going through the evidence, I have seen no evidence that the equipment removed from the shop were destroyed or lost. The fact that the appellant was evicted from the house was not in dispute. The appellant claim that he was not given an eviction notice but the evidence shows that he was aware of the eviction. There was evidence from SU2 a cell leader who supervised the eviction process who said that the appellant was present and was the one who gave the key to the shop. 9 This was corroborated by SU3 who is the fellow tenant on the suit premises who was present during the eviction. The appellant produced a list of items which was admitted as exhibit S-l. However the appellant said in his evidence that he prepared the list two days before the eviction. It is not certain that the items listed at S-l are the equipment which were moved outside the shop two days later. Furthermore, the list does not show the value of the items so it is not certain on how the appellant reached at the claim of TZS 10,000,000/=. I agree with the findings of the trial Chairperson that exhibit S-l does not prove whether the items listed are the one which were moved from the shop in dispute and it does not show the value of the said items. The appellant did not produce even a single receipt of any item to prove the value of the items which he claimed. I find that the appellant failed to prove his case on balance of probability. Coming back on the grounds of appeal, on the 1st ground, I find that the trial Tribunal well evaluated the evidence on record as I have revisited the same and correctly found that the appellant did not manage to establish his case on the required standard. On the 2nd ground, I find that as per the evidence on record, the appellant was aware and was present during the eviction, the fact which io was confirmed by the witnesses who were present including the cell leader of the area who supervised the eviction. On the 3rd ground, the trial Chairperson correctly found that the appellant failed to prove his case so as to be warranted payment of compensation which as I have already analysed, I agree with the findings of the trial Chairperson. The appellant failed to establish how he reached to the amount of damages he claims. He did not prove whether the claimed equipment were lost and or damaged and to what extent. From the above analysis I find all the three grounds of appeal to have no merit and I therefore dismiss the entire appeal with costs. It is so ordered. A.MSAFIRI JUDGE 19/12/2023 11