CIVIL APPEAL NO 112 OF 2021 SAMWEL NOEL KIMARA VS S

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWANDAMBO. 3.A., MASHAKA. J.A And MDEMU. J.A.^ CIVIL APPEAL NO. 112 OF 2021 SAMWEL NOEL KIMARO ............................................................. APPELLANT VERSUS S.L. ISANGI AUCTION MART AND COURT BROKER..............RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, at Mwanza) f Rumanvika. J.T dated the 26th day of January, 2021 in Land Case No. 01 of 2016 JUDGMENT OF THE COURT 15th & 23rd July, 2024 MDEMU. J.A.: This appeal emanates from the decision of the High Court of Tanzania (Rumanyika J. as he then was) sitting at Mwanza in Land Case No. 01 of 2016. According to the pleadings, the appellant's claim against the respondent who was a court broker and the then 1st defendant one Hussein Yusuph Ugulum was a result of eviction of the appellant by the respondent from the premises on Plots No. 102 and l 103 Block Q along Nyerere Road, in Mwanza City. It was alleged that, the appellant and the said Hussein Yusuf Ugulum entered into a lease agreement in which premises on Plots No. 102 and 103 Block Q were leased to the appellant for business purposes. Sometimes on 8th February, 2013, Hussein Yusuf Ugulum wrote a demand letter to the appellant for payment of TZS 9,600,000.00. It appears the appellant did not heed to that demand. Later, an application for eviction was filed by the then 1st defendant to the District Land and Housing Tribunal (the DLHT). The latter granted the application and appointed the respondent herein to evict the appellant. Although his attempt to challenge the eviction in Land Appeal No. 50 of 2013 before the High Court (Makaramba J.) was partly successful, that did not make matters better for him as the eviction had already taken place. Subsequently, he instituted a suit before the same court against the landlord and the respondent whose decision resulted into this appeal. The appellant's suit before the High Court was predicted upon two complaints namely, non-involvement in the eviction process and unlawfulness of the eviction resulting into loss of merchandise in his shop and loss of business. 2 Unlucky to the appellant, the High Court dismissed his suit on account that, the eviction was lawful because the respondent was executing a lawful order of the DLHT and that, the appellant failed to establish loss of properties in the eviction exercise. This decision of the High Court triggered the appellant to file the instant appeal on the following grounds: 1. That, the High Court Judge erred in iaw under the rule o f procedure to determine the su it on two fram ed issues and ieave others without being resolved one way or another. 2. That, the High Court Judge erred in iaw and fact fo r failure to observe that the act o f the respondent to conduct a forcible summary eviction order, exhibit P.7 and failure to file eviction report as ordered by the D istrict Land and Housing Tribunal on 5th August, 2013 he was responsible to be sued by appellant. 3. That, the High Court Judge erred in law and fact that the act o f the respondent to conduct a forcible summary eviction order which caused loss o f business, the appellant has suffered due to the 3 forceful eviction order against the a p p e lla n th e was entitled to general damages in the circum stances. That, the High Court Judge erred in law fo r failure to take into account the oral testim ony o f PW2 and PW3 coupled with documentary evidence o f exhibits P I to P13 which is cogent, coherent w atertight in the circum stances o f this case. 5. That, the High Court Judge erred in law to hold that the respondent was wrongly sued and did not consider that the respondent's failure to show the oral testim ony or documentary evidence that after he conducted a forcible summary eviction order, he was required to file eviction report as ordered according to exhibit DW1. We heard the counsel for the parties arguing the appeal on 15th July, 2024 in which Messrs. Barnabas Luguwa and Andrew Luhigo both learned advocates represented the appellant and Mr. Kassim Seleman Gilla, also learned advocate appeared to represent the respondent. For a start, Mr. Luhigo sought to stand by the written submissions filed earlier on with a few clarifications orally. On the first ground of appeal, Mr. Luhigo argued that, the learned trial Judge left the 1st and 4th issues undetermined because his focus was on the lawfulness of the 4 eviction exercise. According to him, the trial Judge was required to deal with issues relating to loss of business as well after the eviction exercise had ended. Clarifying on the second ground of appeal, Mr. Luhigo argued that, the respondent did not file eviction report to the DLHT as ordered. In his view, that report was relevant because it would have explained how the eviction exercise was carried out. He thus urged that, this being the first appeal, we should reevaluate the evidence and come up with a different conclusion on how the eviction exercise was conducted. Mr. Luguwa commenced his address with the fifth ground of appeal. In this one, his argument was that, it was wrong for the High Court to hold that the respondent was wrongly sued. Reverting to the fourth ground of appeal, Mr. Luguwa mainly attacked the trial Judge for not directing his mind to the evidence and instead, he based his decision on the failure to join the Attorney General and also on failure by the appellant to summon his wife in court for testifying. He argued that, had the learned trial Judge took into account the entire evidence, he would have found that, the respondent's evidence was lacking to prove that properties which were 5 moved out of the business premises during the eviction exercise were not at all left to the appellant's workers, Instead, he added, it is the respondent who bears the responsibility for the loss. He equally argued that one "MNIKO" denied to load in his vehicle any property resulting from the eviction exercise. It was through that argument Mr. Luguwa urged us to allow the appeal with costs. In reply, Mr. Gilla strongly opposed the 1st ground of appeal because all issues were considered thus Order XX Rule 4 and 5 of the Civil Procedure Code, Cap. 33 was duly complied with. He had such argument because the first issue became irrelevant after the appellant and the then first defendant had entered into a deed of settlement duly executed between the parties. With regard to the second issue, Mr. Gilla submitted that it was determined as indicated at page 298 of the record of appeal. He also argued that, it was irrelevant to decide on the third issue because the same depended mostly on the determination of the second issue. He thus urged us to ftnd this ground of appeal devoid of merits. Responding to the second and fifth grounds of appeal conjointly, Mr. Gilla referred us to pages 1 through 9 of the record of appeal 6 arguing that, the eviction report was neither pleaded nor formed part of the issues raised at the trial for the determination of the suit. He thus urged that, such a ground is a new one and not in conformity with rule 93 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Regarding joining the Attorney General, Mr. Gilla responded that, the said ground did not form the basis of the decision of the trial Judge. Regarding ground four of the appeal, Mr. Gilla disagreed with the appellant's counsel on the claim in relation to the evidence on loss of the goods during the eviction exercise. The list attached, according to Mr. Gilla, had no any bearing on the properties which was the subject of eviction neither was there any evidence of their not being disposed through sale. Elaborating, Mr. Gilta fronted the argument that, whereas in exhibit PE5 (the business licence) related to hardware business, the list in exhibit PE 12 and the evidence of PW2 and PW3 related to furniture. In view of this contradiction, Mr. Gilla submitted that, properties involved in the eviction exercise were left with the appellant. With that, he implored us to hold that the appellant was also duty bound to prove that the properties involved in the eviction exercise did indeed exist and disappeared after the eviction exercise. Mr. Gilla's final response was in ground three of the appeal regarding the award of general damages. It was his argument that, as the appellant failed to prove his case on the standard required, the trial court was justified in not awarding compensation. He made reference to the case of Abdallah Ally Seleman t/a Ottawa Enterprises (1987) v. Gapco (T) Ltd. (Commercial Case No. 79 of 2014) [2015] TZHC ComD 2138 (3 July 2015) TANZLII to bolster that assertion. Both Messrs. Luguwa and Luhigo had their brief rejoinder. Mr. Luguwa began by attacking Mr. Gilla on what he thought as shifting the burden of proof on the appellant on the presence of the shop attendant during the eviction exercise. He also submitted that, the eviction exercise was carried without notice to the appellant and that, the evidence at page 152 of the record of appeal explain the reason for not procuring the said shop attendant as a witness. His concluding rejoinder was that, the list of properties by the appellant proved the loss, the more so when the respondent failed to provide his. On his part, Mr. Luhigo quickly added that, the list from the respondent was vital and that the respondent would have also prepared the eviction report. However, the relevant issue to him was whether 8 there was eviction exercise, out of which, the appellant's properties were lost. Having heard from the parties, and duly considered their submission and upon examination of the record of appeal, we wish to commence by highlighting on uncontentious matters. We note that, the appellant and the then 1st defendant executed a lease agreement in respect of premises situated in plot No.102 and 103 Block Q along Nyerere Road. The appellant turned it into a business complex. We note further that, after the duo's relationship had turned sour, the then 1st defendant secured an eviction order from the DLHT. As we demonstrated above, it is that eviction that gave rise to the suit before the High Court filed by the appellant, hence, the instant appeal. Having settled that, we find all the five grounds of appeal to revolve around two main issues. One is whether the respondent's act of evicting the appellant in the business complex was in execution of the lawful order and two, whether there was any loss of properties and if so, who was responsible for the loss. In the first ground regarding unresolved issues, Order XX rule 5 of the CPC empowers the trial court to make a finding on each issue separately or in one or more issues provided that such issue or issues is sufficient to resolve the dispute. In other words, the trial court is not compelled to make findings on all issues framed. The test which we think is relevant is for the picked framed issue being able to conclusively determine the rights of the parties in a suit. In the instant appeal, we note at page 99 of the record of appeal four issues were framed by the trial court as follows: one, whether the first defendant breached the tenancy agreement, two whether both defendants are responsible for the loss o f the p lain tiff's merchandise, three, if the answer in issue No. 2 above is in affirm ative, to what extent and four, to what extent o f reliefs are the parties entitled. In the course of determining the suit basing on the above framed issues, the learned trial Judge stated at page 298 of the record of appeal that: "As it was from the outset proposed by the parties and the court adopted them m ainly the issue is whether the second defendant is liable for any loss occasioned during the forcible execution order o f the DLHT." 10 Our understanding of the above passage on the framed issues is that, they were treated as one with a focus on the liability of the appellant towards any loss resulting from the course of the eviction. In our view, as submitted by Mr. Gilla, since the suit against the then first defendant had been compromised, the first issue became redundant and so it was no longer necessary to determine it. The written submissions of the appellant are a witness to this aspect. That said, the issue therefore remained redundant as there was nothing to resolve. We thus dismiss this ground of appeal. Now to the second ground of appeal. The contentious issue hinges on the alleged failure by the respondent to file eviction report after completion of the eviction exercise. Mr. Luhigo appeared to attack the legality of the eviction exercise, if we understood him well. Mr. Gilla on the other hand found this fact alien because it was neither pleaded nor formed part of the issues framed. On our part, we are in all fours with Mr. Gilla. Our perusal to the record of appeal revealed nothing regarding the filing of eviction report to have featured in the pleadings. That explains why the issues framed by the trial court did not touch on the eviction report. It is trite law that the parties are bound by their 11 pleadings as we recently reiterated in Mary Peter Otaru & Another v. African Banking Corporation (Tanzania) Ltd. & Another, (Civil Appeal No. 395 of 2020) [2024] TZCA 511 (2 July 2024) TANZLII. As argued by Mr. Gilla, and rightly so, the complaint against the trial court in ground three does not arise from any finding or issue wrongly decided by the trial court to be a ground of complaint in terms of rule 93 (1) of the Rules. Next on this ground is on the loss alleged to have resulted from the eviction exercise. In the first place, the appellant's counsel linked this complaint with the unfiled eviction report. This, in a way, seemed to the learned counsel to connote that, the said report would have included a list of items allegedly removed from the suit premises during the eviction exercise. Again, he connects that absence of the report to be evidence of loss of properties lost during the eviction exercise. Mr. Gilla was of the contrary view. His was that, the evidence that the appellant remained with properties after the eviction exercise is overwhelming. This now tasks us to look at the role of court brokers in eviction exercise. The Court Brokers and Process Servers (Appointment, 12 Remunerations and Disciplinary) Rules, GN. No. 363 of 2017, provides, among others, functions of court brokers in eviction exercise. They are required, upon completion of eviction exercise, to file returns or reports on the manner the eviction was carried out as dictated under rule 7 (d) of GN. No. 363 of 2017, and also paragraph 9.0 (8) of the Guidelines for Court Brokers and Court Process Servers, 2019 (the Guidelines). Paragraph 9.5 of the Guidelines in particular provides: " The court broker shall, In case o f an eviction or dem olition o f landed property, serve the judgm ent debtor with a notice o f not less than 14 working days before eviction or demolition. In case o f dem olition or eviction, the court broker sh all make sure the order is executed during working days, should there be a departure from this rule, leave o f executing court should be sought and granted" Given the foregoing, we note that, basically, the main thrust in ground two of the complaint is on failure of the respondent to fiie the eviction report. In other words, the complaint is directed at post eviction procedures. We demonstrated above that the eviction report did not form part of the appellant's pleadings. In that regard, its contents, even when filed, would only incorporate the manner in which 13 the eviction exercise was carried out. At any rate, unlike in attachment and sale, the eviction report would not, in our view, comprise of a list of items taken out of the premises in order to give vacant possession. We have also noted that, the counsel for the parties each persuading to shift the burden to the other regarding loss of properties in the eviction exercise, leave alone which properties were involved. This, in our view, is a question of evidence which the trial Judge tried to resolve. At pages 298 through 299 of the record of appeal, the learned High Court Judge observed that: "Having broken into, the defendants may or may not have taken shop item s with them yes, but fo r the reasons known to him self, the moment the p la in tiff faiied to bring his wife in court or anyone o f the said relatives, Coietha Sam wel or Chacha Makele also reported to have witnessed the execution and that, end o f the day they drove away the shop item s with them, it cannot, on balance o f probabilities be said that the p la in tiff has proved his case against the rem aining 2nd defendant Suffice the above stated two points dispose o f the case." 14 We do not find any difficulty in appreciating what the learned trial Judge meant. Essentially, having analysed the evidence and bearing in mind that the standard of proof in civil cases is on balance of probabilities, he came to the conclusion that the appellant failed to prove the claim on the alleged loss of properties during the eviction exercise. Upon our reappraisal of the evidence on record, it is clear to us that, the evidence of both the appellant and the respondent was premised on items which were taken out during eviction. It is, however, not clear to us from which evidence the properties were, in the premises. We are saying so considering the business conducted at the premises having regard to the business licence as shown at page 171 of the record of appeal showing that it was for hardware business. Besides, that licence was issued to Sanya General Enterprises. It is not very clear if the said business complex was dealing with hardware, or a normal retail shop. The list appearing at page 190 and 191 of the record of appeal may not, in itself, present a true picture because the manner and purpose have not been explained by the appellant. Again, in the evidence of DW1, DW2 and DW3, after the eviction, the appellant's properties were teft to one Coletha and the plaintiff's wife. 15 On the other hand, the appellant's written submissions and the oral submission by the counsel are to the effect that, the said properties were taken by the respondent. We find it hard to buy that argument in the absence of the evidence from the appellant's wife and that of one Coletha. The respondent, in our view, managed through the evidence of DW1, DW2 and DW3 to establish that the properties were left in the hands of the appellant's wife and the said Coletha. It was therefore up to the appellant to ensure the said witnesses are summoned to testify in order to disprove that evidence. The appellant's duty to prove his case on balance of probabilities, cannot, in our view, as he wants us to believe, be dependent on the weakness of the respondent's case. See for instance; Paulina Samson Ndawavya v. Theresia Thomas Madaha (Civil Appeal No.45 of 2017) [2019] TZCA 453 (11 December 2019) TANZLII. This aspect has also covered ground four of the complaint regarding the assessment of the evidence of PW3 and exhibits PI and P13. Given such state of affairs in the evidence of the parties, we have observations to make. One, as observed by the learned trial Judge, the appellant failed to prove that the items were taken by the respondent 16 and instead, it is the responded who managed to establish on balance of probabilities that the said properties were left in the custody of the appellant's wife and one Coletha. Two, since the appellant did not controvert the respondent's evidence on the presence of his wife and Coletha or any other shop attendant who was present during the eviction exercise, we take it that he has failed to discharge the burden of proof. See African Banking Corporation (T) Ltd. v. T. Beta Holding Company Ltd (Civil Appeal No. 207 of 2017) [2024] TZCA 165 (6 March 2024) TANZLII for the proposition that the appellant did not discharge the burden of proving his case on balance of probabilities. Three, the respondent could not have been responsible for the loss of any belongings subject of eviction because, his duties ended with securing vacant possession without more. Regarding ground three on general damages, we think this should not detain us more. We are aware that basing on the evidence, general damages are awardable at the courts' discretion and without having been specifically pleaded by a party. See for instance Antony Ngoo & Another v. Kitinda Kimaro [2015] T.L.R. 54 and Mweha Hamis v. Permanent Secretary, Ministry of Infrastructure Development 17 & Others (Civil Appeal No. 442 of 2020) [2024] TZCA 141 (29 February 2024) TANZLII. However, as we demonstrated when responding to grounds two and four of the appeal, the evidence is lacking on any loss occasioned in the exercise of eviction of the appellant As we observed, if any loss at all, which we did not find anyway, then the respondent was not responsible. Last is ground five. We have partly resolved it when dealing with grounds two and four on the aspect of the requirement to file eviction report to the evicting court (the DLHT) upon completion of the eviction exercise. The remaining part of the complaint in this ground relates to the observation of the learned trial Judge that the respondent herein was wrongly sued. This again should not detain us anymore. According to the pleadings, the respondent, who was the second defendant was sued jointly with the then first defendant. As we said above, in the course of trial, the appellant and the then first defendant settled the matter out of court. The record is not that clear if the terms towards that settlement was in respect of the complained breach of the tenancy agreement or extended to the complaint regarding the outcome of the 18 eviction exercise. It should be borne in mind that, the respondent was just a court broker who executed the eviction lawfully. The totality from the forgoing sums up to the conclusion that, the appeal lacks merit. Consequently, we dismiss it with costs. DATED at MWANZA this 19th day of July, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 23rd day of July, 2024 in the presence of Mr. Adrew Luhigo, learned counsel for the Appellant and Mr. Kasimu Gilla, learned counsel for the Respondent both via video conference from High Court at Mwanza, is hereby certified as a true copy of the original.