tamal safii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 30544 OF 2024 (Appeal from the Judgment and Decree on the counterclaim of the I/a/a District Land and Housing Tribunal in Application No. 202 of 2013 (Hon. M. Mgulambwa - Chairperson) dated 21st October 2024) TAMAL HOTELS AND CONFERENCE CENTRE LTD..... ..... ...........APPELLANT

VERSUS DAR ES SALAAM DEVELOPMENT CORPORATION............. RESPONDENT

JUDGMENT 26.02.2025 & 25.03.2025 N.E MANDIA J, This appeal is against the decision of the District Land and Housing Tribunal for Ilala in Land Application No. 202 of 2013 delivered on 21.10.2024 The brief facts surrounding this appeal as obtained from the record is that, TAMAL HOTELS AND CONFERENCE CENTRE LTD, the appellant was the tenant of DAR ES SALAAM DEVELOPMENT CORPORATION (DDC), the respondent in her premises situated at Karikaoo Dar es Salaam described as Hall A and B. The appellant had outstandings rental arrears to the tune of TZS 40,006,060 whereby the respondent issued a default notice demanding payment of the said outstandings. Upon receiving the default notice, the appellant paid TZS 23,934,000 and the outstanding rental arrears was reduced to TZS 16,072,060. The lease agreement expired and the appellant was duly notified to vacate the demised premises and leave it vacant for another tenant. The i appellant refused to vacate the demised premises result of which the appellant was forceful evicted. The appellant challenged the eviction in the High Court for being unlawful but the High Court and later the Court of Appeal held that the eviction was lawful as the lease agreement had expired. However, before the said eviction, the appellant had filed an application before the District Land and Housing Tribunal praying for among other things and order to restrain the

respondent from evicting her. The respondent filed a defence with a counterclaim for payment of the outstanding rental arrears of TZS 16,072,060. The appellant withdrew her application hence, the matter proceeded on the counter claim only. On 21.10.2024 the Tribunal delivered its judgment in favour of the respondent hence, the appellant filed this appeal with six (6) grounds as follows: - 1. That the learned chairperson of the District Land and Housing Tribunal erred in law and on evidence by not making a proper evaluation of the evidence of DW1 (SLH) Gebonce Khabetiie Mwanjokoio when he was tendering the relevant exhibits KU2, KU4 and KU5 which were duly received by respondent in particular KU2 collectively which were not responded to in writing by respondent and by referring the confiscated goods at the time of forceful eviction as goods left out while they were not left out as such incorrectly referred to by the Tribunal 2. That the learned chairperson of the District land and Housing Tribunal erred on evidence by holding that the alleged outstanding in rent as per the respondent, now appellant, was paid through repair, whereas the evidence of DW1 was that the amount claimed was to be offset out of the costs of repairs which were duly sanctioned by claimant, now respondent. ’ 2 3. That the learned chairperson of the District Land and Housing Tribunal erred in taw and on evidence by holding that there was no written authorization to carry out repairs, whereas there were letters received collectively as exhibit KU2 including respondent's letter of reference number DDC/T/15/19 dated 3TdAugust, 2011 and that of appellant dated 21st August, 2012 which was receipted by the stamp of respondent attached with a breakdown of the costs and receipts of materials.

4. That the learned chairperson of the District Land and Housing Tribunal erred in law by shifting the burden of proof on the appellant, then respondent, that they were supposed to confirm that repair costs were to offset the rentals due and that he was bound to bring a witness who carried out the construction repairs whereas repairs were duly confirmed by the two witnesses for the tenant, now the appellant, and they were testifying in 2024 on matters that took place in 2011/2012 and when the rental premises had already been demolished and without regard that appellant was forcefully evicted with their properties confiscated and nothing was recovered and/or returned to the appellant save for the documents he had separately kept.

5. That the learned chairperson of the District Land and Housing Tribunal erred in law and in evidence by failure to give the necessary weight to the circumstantial evidence that costed doubt on the respondent's claim, if indeed there was no setoff, in particular the two letters KU4 and KU5 by which the alleged non-paid rent would have been raised and the failure of respondent to account for the actual amount realized out of the confiscated properties allegedly sold to realise the costs of forceful eviction.

6. That the learned chairperson of the District land and Hosing Tribunal erred in law and on evidence, by proceeding to determine the counterclaim under the Government Proceedings Act [Cap 5 R.E. 2019] with the representation of the Solicitor General whereas the Attorney General was never made a party thereto. ' 3 As per the order of this court, the appeal was disposed by way of written submissions. The appellant was represented by Mr. Joseph Rutabingwa, learned advocate whereas the respondent appeared through the representation of Mr. Edwin Joshua Webiro, learned state attorney. In support of the appeal, Mr. Rutabingwa claimed to adopt the six (6) ground of appeal and abandoned the rest of the grounds. However, as it is going to be observed, he submitted generally on two aspects. Starting with the repair issue, he submitted that the trial chairperson stated at page 6 of the judgment that there is no evidence from the tenant/respondent on the counterclaim (now appellant) that repair was duly sanctioned by the landlord (now respondent). He disputed the allegation that the appellant has stated that the rent demanded was repaid through repair. That the correct position as pleaded under paragraph 2 of the defence to the counterclaim is that the amount was offset through repair costs as testified by DW1 (SU1). Mr. Rutabingwa submitted further that the facts pleaded under the

said paragraph were not disputed by the claimant (now respondent) and the referred documents annexture RW1, in particular the letter of 13.09.2013, was received by DDC and duly stamped with an official stamp as evidenced by Exhibit KU-2. He was of the view that, if there was no repair done, then reasonably the landlord, DDC would have replied that letter and refuted the claim. That DW1 and DW2 testified that repair was done and there is no way the appellant would have expected when giving her testimony in 2024 to 4 bring people who carried out the repairs in 2012/2013. That if repairs were not sanctioned as stated in the judgment, then the respondent would have also tendered a letter declining to sanction the repair. That mere statement by PW1 that no repair was done was an afterthought and was not backed by any document in form of a letter to the appellant refusing to sanction repair or denying allegation of repair at that time. Mr. Rutabingwa also submitted on the issue of eviction that, prior to the eviction, the respondent had served the appellant with a notice dated 02.11.2013 which was tendered as Exhibit KU-4 together with a letter dated 20.11.2013 tendered as Exhibit KU-5. That if there was indeed outstanding rent, then reasonably Exhibit KU-4 would have specifically asked the appellant to settle the claim of that sum. Exhibit KU-5 merely urged the appellant to vacate

the premise before 09.11.2013. He contended further that Exhibit KU-5 was asking the appellant to collect the items removed from the premises and did not mention the alleged outstanding rent. The appellant was only told to pay for the costs of eviction before taking possession of their goods hence, if there was outstanding rent, that sum would have been reflected in that letter as outstanding. Mr. Rutabingwa also submitted on the issue of confiscated goods as referred in Exhibit KU-5. That if there was a claim of TZS 16,072,060 the the said Exhibit K-5 would have included that sum as well. That the said exhibit raise doubt on whether there was any outstanding rent as claimed. Even after 5 disposition of the confiscated goods by the assigned broker, there was no mention on the actual amount realized after the sale and also no mention of what was the actual costs of eviction. He was of the view that if the trial chairperson would have properly evaluated the evidence and in particular facts raising suspicion on the alleged claim of the rental balance, she would have certainly disallowed the claim as the burden of proof was on the respondent and not appellant. Mr. Rutabingwa prayed for the court to go through the available evidence and the pleaded facts and allow the appeal and quash the judgment of the Tribunal with costs. In response, on the repair issue Mr. Webiro replied that

the testimony of PW1 was to the effect that no repair was done and this testimony was supported by clauses 7 and 8 of the Lease Agreement which was admitted as Exhibit Pl, which categorically provide that all repairs or renovations done by the appellant must be sanctioned by written approval from the respondent. That, if the alteration to the demised premises was done without written approval from the respondent, it was contrary to lease agreement. Further that, in terms of clause 8 of Exhibit Pl, any major repairs like electrical infrastructures, kitchen repairs and toilet repairs were to be done by the respondent. The appellant could only effect major repairs upon giving the respondent notice to do so and the respondent fails to make the necessary repair. 6 Mr. Webiro was of the view that, since there was no written approval from the respondent to sanction the repair and because the appellant did not notify the respondent about the repair and that the respondent failed to make the requested repair hence, no repair was done in accordance with the terms and condition of the lease agreement for the appellant to claim for setoff. That the chairperson of the Tribunal was right to hold that since the alleged repair was not sanctioned by the respondent, the appellant is not entitled to offset the costs from the rental arrears. That the appellant had failed to prove that the repairs

and alteration were sanctioned by the respondent and such failure is a clear proof that the outstanding amount of TZS 16,072,060 was not paid by way of setoff as it was contended by the appellant. That offset could only be necessary if the repair was done in compliance with the provisions of the lease agreement short of which implies that no repair was done and the appellant is estopped from claiming setoff instead he is required to pay the rental arrears. That this ground has no merit and he prayed for the court to find so. On the issue of eviction notice, Mr. Webiro submitted that the argument by the appellant that Exhibit KU-4 and Exhibit KU-5 issued to the appellant did not indicate the outstanding rent and hence, there was no such claim, is unfounded. That in her defence and well as the testimony tendered in Tribunal, the appellant did not refute the rental arrear of TZS 16,072,060 but she stated that the said amount was offset through the costs of repair. That 7 the appellant was all along aware of the outstanding and failure by the respondent to indicate it in Exhibit KU-4 and Exhibit KU-5 does not in any way whatsoever raise doubt on whether there was any outstanding as alleged by the appellant. It is a trite law that parties are bound by the terms of the contracts they have voluntarily signed. He cited the case of AZIZ S. MASASI VS EMMANUEL T. MAKENE (Civil Appeal

No.35 of 2021) [2023] TZCA 17553 (28 August 2023 TANZLII) to bolster his argument. That since the appellant signed the Lease Agreement, she is bound by its terms which include paying rent and if repair was done to offset rental arrears the same must have been in accordance with the lease agreement. Mr. Webiro prayed for the court to uphold the decision of the Tribunal and dismiss this appeal for want of merit. In rejoinder, Mr. Rutabingwa reiterated his submission in chief and re-joined that although the appellant does not have the written evidence, DW1 had testified on how she was forcefully evicted without taking anything from the premises including the files and documents. That the issue of repairs was raised in Exhibit KU-2 and was never refuted by respondent. That there could be no physical verification of the repairs as at the time of hearing the entire structures at DDC Kariakoo had been demolished. That, if no repair was done as alleged by respondent, they would have been expected to respond to that on receipt of Exhibit KU-1 and the appellant would not have qualified to tender for a new lease. That it was wrong for the chairperson to hold that no 8 repair was done and at the same time that if it was done it was not sanctioned. Re-joining on the issue of eviction, Mr. Rutabingwa argued that if there was outstanding rent at the time of notice of vacant possession,

respondent would have stated so. That when the appellant was being asked to pay for the costs of eviction and collect his goods/property removed from the rented halls, he would have been reminded to settle any alleged rent in arrears. That there was no violation of the lease agreement in carrying out the repairs and respondent can not come up with both arguments that no repair was done and that no approval was sought. Having gone dispassionately through the record and submission of the parties, the pertinent issue for my determination is whether the appeal have merits. At the outset it is clear that the appellant has not submitted as per the grounds of appeal filed. His reason that it was due to the directive of the court for them to brief is unfounded. Even if he was directed so, it does not oust his duty to submit as per the grounds filed. Having said so, I will now determine the appeal as per the record and submission made by the parties. Starting with the issue of repair, after going through the records, I have realized that the appellant never disputed the fact that she was the tenant of the respondent in the demised premises situated at Karikaoo Dar es salaam described as hall A and B. It is also clear as per the records that the appellant had outstanding rental arrears to the tune of TZS 40,006,060 and that the 9 respondent at time had issued a default notice demanding

payment of the said outstanding. Again, my examination of the record has revealed that the appellant did actually pay part of the outstanding rent arrears to the tune of TZS 23,934,000. What is disputed is the fact that the remained outstanding rental arears to the tune of 16,072,060 was offset against the costs incurred towards renovation of kitchen, toilet and electrical fittings totaling TZS 16,071,800 hence, no rental arears is owed to the appellant. That if there was any such claim by the respondent, she would have shown it on her later dated 13.09.2013 (Exhibit KU-2) hence, there was no pending rent at the time of forceful eviction of applicant from the rented premises. After examining Exhibit KU-2, I have noted that it was a request by the appellant to the respondent for the costs of repair to be included in rental payments. No response to Exhibit KU- 2 was given to the appellant. My examination of clauses 7 and 8 of Exhibit Pl, revealed that the appellant (lessee) was not authorized to make any alteration in the construction of the said premise without a written consent by the respondent (lessor) and that major repairs, either structural or that related to electrical infrastructures, water connection, plumbing leaks and water sewages shall be attended by the respondent. It is clear on the record that at times the appellant has requested for the approval of repair work

from the respondent of which there was conditional or no approval at all was granted and if the alteration to the demised premises was done, it was without written approval as provided in io Exhibit Pl. Repairs done without written approval as per the lease agreement is like no repairs in the eyes of the law. This in my view was a clear violation of the terms of the lease agreement between the appellant and the respondent. The issue that the amount used for repairs was to be offset from the rental outstanding is in my view, unfounded. The said costs must have been approved and immediately reimbursed by the lessor upon production of valid receipts by the lessee as provided in Exhibit Pl. In the absence of a written approval, I see a clear violation of the terms of the lease agreement and hence, I join hand with the view of the trial chairperson that there is no evidential proof that consent was given by the respondent to repair the demised premise in accordance with the lease agreement. It is my settled observation that this issue has no merit. On the issue of eviction, it was submitted by the appellant that prior to the said eviction, she was served with a notice dated 02.11.2013 (Exhibit KU-4) and a letter dated 20.11.2013 (Exhibit KU-5). In the said exhibits, the appellant was not told to settle the outstanding rental arears if at al there was such outstanding rent. After

examining the said exhibits, I have noted that they were notice for the end of the lease agreement and for the collection of personal properties after the exercise of forceful eviction. They are both silent on the issue of outstanding rental arrears as correctly submitted by Mr. Rutabingwa. However, it is on record that the appellant in her defence and testimony tendered in the Tribunal, she never refuted the issue of outstanding 11 of rental arrear of TZS 16,072,060 and that is the reason she claimed it to be offset from the costs of repairs. In this circumstance, it is clear to me that the appellant was very aware with the issue of outstanding rental arears hence, failure by the respondent to indicate it in Exhibit KU-4 and Exhibit KU-5 does not oust the fact that the appellant owed the respondent the outstanding arears. The appellant was bound by the terms of the lease agreement. It is therefore my considered observation that the appellant was well aware of the issue of outstanding rental arears and that she was supposed to pay it as the alleged repairs was done in disregard of the terms of the lease agreement hence, cannot be offset from the outstanding rent arears. In the up short, i find that the appeal is devoid of merit. In the circumstance, and without prejudice to my observation, i hereby dismiss the appeal in its entirely and uphold the decision of the Tribunal in Land Application No. 202 of 2013. Because the respondent did not ask for costs, I make no order as to costs. It is so ordered. 12