TANZANIA TELECOMMUNICATION CORPORATION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND CASE NO. 25 OF 2021 TANZANIA TELECOMMUNICATION CORPORATION............. 1st PLAINTIFF THE ATTORNEY GENERAL......................... ...,2nd PLAINTIFF VERSUS MOUNT MERU UNIVERSITY....................... DEFENDANT JUDGMENT 28tH November, 2023 & 29th January, 2024 KAMUZORA, J. The 1st Plaintiff herein is a telecommunication corporation, an institution owned by the government and dealing with telecommunication services. Apart from telecommunication services, the Plaintiff also owns buildings in different regions used as its offices and sometimes rented to other institutions or individuals. The 2nd Plaintiff is the representative of the government and whenever the government institution is sued, the 2nd Defendant has to be joined as necessary or interested party. The Defendant on the other hand is the university dealing with education services at the level of certificate diploma, undergraduate degree and Masters. Page 1 of 29 Sometimes in the year 2011, the 1st Plaintiff and the Defendant entered into lease agreement for the Defendant to rent and occupy the 1st Plaintiff's building located at Plot No. 61 Block 'E' Boma Road herein Arusha town centre for purpose of running university services. When the Defendant defaulted in paying the agreed rent, the 1st Plaintiff opted to repossess the premise and locked the Defendant out of the premise. They further sued the Defendant for breach of contract and claim for the outstanding rent. The Defendant disputed the 1st Plaintiff's claim for breach of contract and claimed that the 1st Plaintiff was the one who breached the terms of the agreement by closing the rented premise and causing damages to the Defendant. The Defendant therefore raised counter claim against the 1st Plaintiff and prayed for an order of the court awarding damage and costs of the case. When the matter was called for hearing, Messrs. Mkama Msalama, Hans Mbando and Leyan Mbise, all learned State Attorneys appeared for the Plaintiffs while the Defendant was ably represented by Mr. Shekh Mfinanga, learned advocate. The following were issues framed for determination of the dispute between parties; 1. Whether there was outstanding lease amount against the Defendant 2. Whether the Defendant was aware ofany existing outstanding lease amount. Page 2 of 29 I 3. Whether there was breach of terms of lease agreement 4. Whether there was unlawful lock out of the Defendant 5. Whether parties suffered loss and or damages 6. To what re/ieffs) are parties entitled. Before deliberating on the issues above, I find it pertinent to summarise evidence from both parties. From the records, the Plaintiff presented two witnesses while the Defendant presented one witness. Starting with Plaintiff's witnesses, PW1, Ernest Michael Kimaro was employed at TTCL in 1990 as estate officer and retired in 2022. He testified that he was responsible for supervision of all buildings and immovable properties and all tenancy issues. That, Mount Meru University was among TTCL tenants renting one of TTCL building here in Arusha which is located at Boma street. That, the Defendant started renting the 1st Plaintiff's building since 2011 and as per exhibit PEI, the first tenancy agreement covered the period from 1st January 2011 to 31st December 2012 at the price of USD 78,960 per year, exclusive of VAT. That, the yearly rent was to be paid in two instalments within six months for each instalment; 1st instalment for January to June and 2nd instalment for July to December. That, Mount Meru complied to the first contract by paying 88.12% of the agreed rent. PW1 claimed that, since the agreement required them to pay the whole amount, failure to pay whole agreed rent Page 3 of 29 1 amounted to the breach of the terms of agreement and as per Paragraph 3 of the agreement, the landlord had right to re-enter into the building. PW1 further testified that after the first contract period lapsed in 2012, they entered into another contract for the period from January 2013. That, while entering into the second contract there was unpaid rent on the first contract because the Defendant complied to the first contract by 88.12 percent. That, the second contract was for two years and started from January 2013 to December 2014 and the terms were similar to the first contract. That, Mount Meru was supposed to pay rent at the rate of USD 78,960 per year, VAT exclusive but they were able to pay USD 164,125.48 and left USD 20,220.12 unpaid. That, at the end of the second contract, they entered into a third contract starting from January 2015 to December 2016. That, the rent was still the same, USD 78,960 per year, VAT exclusive. The tenancy agreement dated 1st April 2015 was admitted as exhibit PE2. That, in the 3rd agreement, Mount Meru did not pay the whole amount as they paid USD 36,000. That, after the lapse of the third agreement, Mount Meru did not vacate the building and their continued occupation of the building form January 2017 until 1st September 2017 impliedly means that the contract still existed between the parties. That, TTCL decided to take action by writing a letter to Mount Meru for the i Page 4 of 29 period they have stayed without a contract but, Mount Meru did not pay anything. PW1 explained that TTCL used to claim rent from Mount Meru through invoices and when the rent was not paid, they took action by issuing demand notice, call meeting with Mount Meru and wrote letter to Mount Meru. That, Mount Meru responded that they intended to pay and they were planning to submit their payment schedule. Five letters/documents dated 15th December 2016, 4th January 2017, 1st February 2017, 27th October 2017 and 18th April 2016 were admitted collectively as exhibit PE3. That, the letter dated 15th December 2016 shows that Mount Meru acknowledged the outstanding rent of TZS. 412,892,865/ and was planning to pay but did not comply to their letter and schedule there to. That, in the letter dated 4th annuary 2017, Mount Meru was referring TTCL to the total outstanding debt, payment of 50 percent of outstanding rent and payment the remaining rent at the end of January 2018 but, did not pay. That, in the letter dated 1st February 2017 Mount Meru acknowledged the outstanding rent of TZS. 412,892,865/=. That, in the letter dated 27th October 2017 Mount Meru was acknowledged the outstanding rent of USD 285,321.13 equivalent to TZS. 638,808,337.17/= after they received TTCL letter. That, in the letter Page 5 of 29 dated 18th April 2016, Mount Meru acknowledged the outstanding rent of TZS 126,288,993.83/= up to 2015. That, TTCL issued demand notice for the outstanding rent; one dated 15th January, 2020 and another dated 23rd October, 2017 which were admitted collectively as exhibit PE4. That, the claim in exhibit PE4 was USD 285,321.13 equivalent to TZS. 638,808,331.17. That, this amount accrued from the tenancy agreements starting from January 2011 to December 2017. That, upon failure to pay the rent as per lease agreement, TTCL closed the office used by Mount Meru. PW1 explained that TTCL has powers to close or enter the building based on the terms of the agreement under clause 4 (Hi) of the agreement (Exhibit PE2). That, after they closed the building, Mount Meru University had a meeting with TTCL as they intended to continue the tenancy relationship and the conclusion in their meeting was that, Mount Meru was to pay 50% of the outstanding rent and submit schedule for payment of the remained amount. That, Exhibit PE4 shows that Mount Meru and TTCL had a meeting on 18th October 2017 but, did not pay any amount despite writing a letter promising to pay. That, failure to pay rent resulted to TTCL reverting into filing a case in court claiming USD 285,321.13. PW1 prays on behalf of TTCL for the declaration that Mount Meru University Page 6 of 29 TTCL the outstanding rent of USD 285321.13. He prays for this court to grant general damage, interest and costs of this suit. He also prays for this court to dismiss the counter claim raised by the Defendant on account that TTCL complied to the terms of the lease agreement when it closed the office. On being cross examined, PW1 testified that the rent was paid by checks which were deposited through TTCL bank account. That, he was not an accountant and could not access the bank account. That, the Plaintiff had right to re-enter and take possession of the rented premise upon expiry of 30 days if rent was not paid. That, the Plaintiff did not exercise such right in the first contract but closed the rented premise in 2017 which had Defendant's properties. That, they issued notice and the letter dated 04/01/2017 which is part of Exhibit PE3 shows that the Defendant acknowledged receiving notice from the Plaintiff referring the notice dated 27/12/2016. That, TTCL took possession of the premise on 01/09/2017 thus, by October to December, 2017, the Defendant was not in the rented premise. That, the Defendant's properties were retained in the rented premise when it was closed and were kept in one area to allow the Plaintiff to use its premise. That, there is no clause in the contract relating to properties of the tenant and the Defendant was asked to collect Page 7 of 29 his properties but did not. That, the Defendant rented the premise for offices and academic purposes. That, the amount of USD 285,321.13 is computed after deducting the rent deposited by the Defendant to Plaintiff's account. That, exhibit PE4 was issued while they had already closed the rented premise. PW2, Rashid Ngereza works with TTCL at Head Quarter as accountant. He testified that he is responsible to prepare invoice, send invoices to customers, collect money and debt. That, way back in June 2015 TTCL was issuing manual invoices but from July, 2015 until now, they are issuing electronic invoices. That, he is aware that Mount Meru defaulted in paying the money invoiced to her by TTCL and that resulted into the current dispute. That, as per the office record, the total claim until now is USD 285,321.13. That, as per the contract, the Defendant was to be issued invoice between January to March of each year covering first six months of the year. That, the second invoice was to be issued between July to September for the second six months of the year and the client was supposed to pay before the end of December. That, Mount Meru was I supposed to pay USD 46,586.04 for each instalment including VAT. That, as per record, Mount Meru did not comply 100 percent to the invoices issued by TTCL as she used to pay part of the amount on the invoice and Page 8 of 29 not the whole amount. That, among TTCL officers who issued invoices were; Isack Abraham, Praygod Kimweli and Godlove Mville. A total of 14 invoices were admitted collectively as exhibit PE5. PW2 was not sure of the actual amount paid by Mount Meru but he only knows that they never paid in full the amount specified in the invoices. He explained that Mount Meru used to pay through bank account of TTCL and submit pay-in-slip and was issued with receipts to acknowledge payment. A total of 10 receipts were admitted collectively as exhibit PE6. He explained that, in receipt No. 112046 the amount of TZS 47,377,847.24 was paid by Mount Meru University for rent from July to December 2011 but per the agreement, Mount Meru was supposed to pay USD 47,586.04 for that period. That, in Receipt No. 112086 TZS 50,000,000 was paid as part payment for the year 2012 but Mount Meru was supposed to pay USD 93,000 for that period and the invoice shows the exchange rate for that period. That, in Receipt No 112087 TZS 101,429,190/= was paid partly for 2011 and partly for 2012. That, Receipt No 112090 shows payment of TZS 67,763,200 for January to June 2013 but Mount Meru was supposed to pay USD 46,586.40 for that period. That, Receipt No 112100 refers payment of TZS 71,876,103.60 for rent of July to December 2013 but Mount Meru was supposed to pay USD Page 9 of 29 46,586.04 and the exchange rate can be found in the invoice. That, Receipt No 112109 refers the amount of TZS. 75,935,832/= as payment for January to June 2014 but Mount Meru was supposed to pay USD 46,586.40 for that period. That, Receipt No. 112114 refers the amount of TZS 68,785,778.48 for July to December 2014 but Mount Meru was supposed to pay USD 46,586.40. That, the receipt dated 02/03/2016 was for TZS 50,000,000/= for January to June 2016 but Mount Meru was supposed to pay USD 46,586.40. That, the receipt dated 03/05/2016 show the amount of TZS 20,000,000 for January to June 2016 and receipt for 03/05/2017 shows the amount of TZS 10,000,000 for January to June 2017 but they were supposed to pay USD 46,586.40 for each period. PW2 further explained that the amount can be calculated based on the exchange rate shown in the invoices for that period or Bank of Tanzania website. PW2 also testified that, for the year 2015 and for the period from July to December 2017, Mount Meru did not make any payment to TTCL. That, TTCL claim for the total outstanding rent of USD 285,321.13 counted from 2011 to 2017. That, as per their contract, Mount Meru was paying in terms of Dollars per square meter and as per exhibit PE5, the exchange rate for 2011 was TZS 1518.32 per one (1) USD, in 2012 from Page 10 of 29 January to June the exchange rate was TZS 1575.60 and July to December 2012 it was TZS 1571.90. That, for 2013 the exchange rate was TZS 1620, from January to June 2014, the exchange rate was TZS 1630, from July to December 2014, the rate was USD 1700 for the year 2015, from January to June the exchange rate was 1800. That, from July to December 2015 Mount Meru was supposed to pay TZS 92,433,473.83 and the same amount from January to June 2016. That, from July to December 2016 Mount Meru was supposed to pay TZS 100,619,636.04, from January to June, 2017 TZS 104,468,138.54 and from July to December 2017, they were supposed to pay TZS 103,894,194.10. That, the invoices issued covered the period from January 2011 to December 2017 based on the amount agreed in the contract. That, in terms of dollars, Mount Meru was supposed to pay USD 46,586.40 for each invoice issued. He therefore prays for this court to order that Mount Meru to pay the claimed amount to TTCL. On being cross examined PW2 testified that he used to see the amount supposed to be paid in the invoice. That, some of the invoices show that they were issued, received and signed by Mount Meru as signed by their officer who did not indicate the name. Page 11 of 29 1 The defence side paraded one witness, Boniface A. K. Mwabukusi (DW1) who is a chairman of the governing counsel of Mount Meru University. He testified that, before he was appointed a chairman, he was a member of the University governing counsel. That, Mount Meru University deals with education services at the level of certificate, Diploma, Degree and Masters in areas of; Education, Theology, Community Development and Business Administration. That, the main University Compass for all undergraduate studies is at Ngaramtoni ya Juu within Arumeru District but there was a branch for master's program located at Arusha town in the building owned by TTCL, the Plaintiff. That, the main source of the University income is students fee but for programs like theology, the main source is donation. That, the Defendant rented TTCL building located here in Arusha town for the years 2011 to 2012, 2013 to 2014, 2015 to 2016. That, when they wanted to go for another term, in September 2017, they were evicted by TTCL. That, by the time the Defendant was evicted, they had not yet signed the contract. DW1 explained that, practically, they were using the premise even before they could sign the contract as they agreed orally to proceed under the terms of the previous contract. That, DW1 received information that the premise was locked when it was a public holiday. That, when they made follow up, they were informed that there were claims for arrears of Page 12 of 29 rent thus, they were asked to pay before the doors could be opened for them. That, TTCL locked the doors without any notice to the Defendant and a notice was served nine months later showing that they evicted the Defendant. Eviction notice dated 05/04/2018 was admitted as exhibit DEI. DW1 further testified that TTCL locked in the building all belongings for master's students, laptop and CPU used to keep master's dissertations, furniture like tables and chairs, printers and library for refence used by students and teachers. That, they locked the door on 1st September, 2017 and kept them with no access to their properties for almost 5 years as they released their properties in 2021. That, by the time they handled them back, the books could no longer be useful because they were damaged by water, eaten by rats and all digital equipment were no longer working and they could not extract any information or recover any document from computers left in the office. That, the value of the damaged properties is not less than 100 million thus, they issued demand notice to TTCL claiming for damages. He explained that they used to enrol 60 students for Masters Programs every year thus, they had 120 students for the time of eviction and each student for postgraduate or master's program was paying TZS 5,600,000. Page 13 of 29 DW1 also testified that as per the contract, if a tenant defaulted to pay rent, 60 days-notice was to be issued by the landlord. That, despite such requirement, the Plaintiff did not comply and instead went ahead and closed the building without giving the Defendant chance to pay the rent which they were paying in arrears. That, there is no provision in the contract which allowed the lock-out as clause 4 allowed the landlord to re-enter but does not give room for lock out. That, they tried amicable discussion with the Plaintiff as they were paying little by little depending on students' payment of fees but they were unable to reach to consensus thus, they sought for legal assistance. That, their advocate issued demand notice to TTCL and also requested for negotiation and reconciliation of the outstanding rent because there was confusion of the actual amount claimed but, they received no response. The Demand notice and notice of intention to sue dated 14th September 2018 and 3 receipts evidencing service were admitted collectively as exhibit DE2. DW1 also tendered University prospectus for the year 2015 to 2017 which indicates university programmes and University fees and the same was admitted as exhibit DE3. DW1 further testified that, after the building was locked, they proposed to the students to allocate them to the main compass at Ngaramtoni but they refused because of the distance as most of them Page 14 of 29 were working students. That, most of the students demanded to be refunded their fees and were refunded and few of them agreed for Mount Meru to bargain with Arusha University so that they could proceed with their programs at Arusha university which had a centre similar to Mount Meru herein town. DW1 agree that the Defendant is in arrears but claim that there was no exact amount ascertained and that is why they were bargaining while paying little by little. That, TTCL used to issue invoices which were received, signed by the office at finance department and stamped. To him, Exhibit PE5 collectively does not show if invoices were received by Mount Meru officer and stamped with the office seal. He explained that any document received at their office must have the name of the officer receiving, signature, date and office seal. He added that they have no record over Exhibit PE6 collectively. He acknowledged Exhibit PEI as the first contract that was signed between the University and the TTCL exhibit PE2 as the second contract prepared on 1st April 2015 ending in December, 2016. DW1 further testified that failure to follow the procedures caused damages to the University as the University was closed hence, they lost earning from students7 fees which was almost 2,808,000,000 per year, suffered damage to their properties and loss of important documents for Page 15 of 29 administration use. That, this caused the loss of almost 100 million and the University operations were also frustrated as the TCU authority made inspecting and found that they could not proceed with operations. That, they failure to afford running costs hence, TCU suspended all their programs including undergraduate programs. That, they were ordered to refund fees to all students who had already paid and for those who agree for transfer, Mount Meru was forced to pay a bargainable fees at the university of Dodoma and Arusha University for them to complete their studies. DW1 further testified that they never worked with Rashid Ngereza or had any conversation or even exchange document with him or have any meeting with Ernest Michel Kimaro. That, TTCL did not cooperate with them to ascertain the claim as they were varying the claim every time. He prayed for this court to find that TTCL breached the contract and allow the counter claim raised by the Defendant. He maintained that they acknowledge that TTCL have claim for rent but not to the extent they have started. On being cross examined, DW1 added that TTCL and Mount Meru did not have contract for the period of 2013 and 2014 December. That, as per the contracts, the rent was to be paid in terms of dollars. That, rent for 2011 contract was paid in full but there were arrears in the last Page 16 of 29 contract and the Defendant does not object the arrears but dispute the amount. DW1 do not agree that failure to pay rent amounted to breach. He added that, from January 2011 to December 2012 the amount to be paid was USD 78,960 VAT exclusive and the same was paid in full. That, as per Exhibit PE2 the amount of USD 78,960 was to be paid for the period from 2015 to 2016 and all payments were VAT exclusive and there was part payment of rent for that period. That, for Masters programs, they were enrolling students in April and October and by 2017 they enrolled not less than 45 students but they had continuing students. That, Exhibit PE4 which is a letter from TTCL to Mount Meru refers the claim of TZS 638.808,331.17 equivalent to USD 285,321.13 and it also refers the meeting between TTCL and Mountmeru and the plan for payment of arrears. That, by 2017, the Defendant was acknowledging the claim of almost TZS 200 million while 1st Plaintiff was claiming that the outstanding amount was 414 million. That, in Exhibit PE3 they acknowledged the debt of 412million but by that time, they had not ascertained the figure and that is why they wanted to sit on the table and discuss the matter. Turning to the issues; I will jointly determine the first and second issues on whether there was outstanding lease amount and whether the Defendant was aware of the outstanding lease amount. In assessing these issues, I have clearly considered the pleadings, oral testimony from all Page 17 of 29 witnesses and exhibits tendered in court. There is no doubt that the Defendant was the 1st Plaintiff's tenant since 2011 until 2017 when they were locked out of the rented building. Although the contract for the year 2013 to 2014 was not made part of evidence, the defence witness agreed in his evidence that the Defendant was the 1st Plaintiff's tenant by that period. Exhibits PEI and PE2 correspond that evidence and there is no doubt that since 2011 when the Defendant started to occupy the suit premise, they never vacated the same until 2017 when they were locked out by the 1st Plaintiff. It is also not in dispute that the Defendant owes the 1st Plaintiff unpaid rent but, what is disputed is the amount claimed. In that regard, it is clear that there is outstanding lease amount and the Defendant was aware of that but disputed the amount claimed by the I I Plaintiffs. From their evidence, the Plaintiffs' claims a total of USD 285,321.13 equivalent to TZS 638,808,331.17 accrued from unpaid rent for the period from 2011 to 2017. As well pointed out above, there is no doubt that the Defendant occupied the 1st Plaintiff's premise from 2011 to 2017 when the building was locked by the 1st Plaintiff. The Defendant was liable to pay rent at USD 78,960 per year in exclusion of VAT. Payment modality was two instalments on each year based on the invoice issued by the 1st Plaintiff. While the Plaintiff claimed that the Defendant never paid invoiced Page 18 of 29 I amount in full, the Defendant's witness, DW1 claimed that they paid full amount except for the third contract only. Exhibits PE5 collectively are tax invoices indicating the invoiced amount with exclusion of VAT and amount in inclusion of VAT and the exchange rate of the time. Exhibits PE6 collectively are receipts allegedly issued to the Defendant by the 1st Plaintiff upon paying the invoiced amount. Although the receipts were disputed by the Defendant, they did not dispute paying rent and did not produce different receipts to counter existence of exhibit PE6. This court therefore believes that the said receipts were issued to the Defendant upon paying rent to the 1st Plaintiff. All receipts indicate the amount paid and purpose for payment which is basically, the rent and the period the amount covered. The last receipt shows the amount of TZS. 10 million paid on 03rd May, 2017. Apart from the receipts, there are corresponding letters between the 1st Plaintiff and the Defendant regarding the claim for outstanding rent. Through those letters, the Plaintiff claimed that the Defendant acknowledged the outstanding rent of TZS 638,808,337.17. However, the defence side deny to have admitted to that amount. I understand that acknowledging does not necessarily mean admission but, in my assessment to the letters tendered, I did not find anywhere the Defendant acknowledged TZS. 638,808,337.17. In Exhibit PE3 collectively, there is a Page 19 of 29 letter from the Defendant to the 1st Plaintiff dated 18th April 2016 referring the claim for outstanding rent for the year 2015, the amount of TZS 126,288,993.83. In that letter, the Defendant acknowledged that amount and pleaded for more time to clear the amount and pay rent for January to June 2016. On top of that they promised to at least pay TZS 20 million by that week. However, in the latter dated 27th October, 2017, the Defendant never acknowledged any amount as they only referred the title when responding to the Plaintiffs' letter on the claim of TZS. 638,808,337.17. It is the principle of law that he who alleges must prove. Section 110 and 111 of the Tanzania Evidence Act, [Cap 6 RE 2019] are clear on the duty to prove for a party alleging any fact. The Plaintiffs herein are bound to prove the amount claimed but did not give a clear and proper description of the claim for each year thus, making this court to assess facts and evidence presented to see if the Plaintiffs'claim is substantiated. Using evidence, invoices and receipts tendered in court, I was able to put together the Plaintiffs' claim as per the chart below; Page 20 of 29 YEAR AMOUNT TO BE PAID AMOUNT PAID EXCHANGE RECEIPT NUMBER UNPAID AMOUNT USD TZS RATE 2011 78,960.00 119,886,547.20 47,377,847.24 1518.32 112046 72,508,699.96 50,000,000.00 112086 2012 78,960.00 124,409,376.00 101,429,190.00 1575.6 112087 27,019,814.00 67,763,200.00 112090 2013 78,960.00 124,377,792.00 71,876,103.60 1575.2 112100 15,261,511.60 75,935,832.00 112109 2014 78,960.00 128,704,800.00 66,785,778.48 1630 112114 14,016,810.48 2015 78,960.00 142,128,000.00 - 1800 NIL 142,128,000.00 50,000,000.00 02032016/87563816 2016 78,960.00 142,128,000.00 20,000,000.00 1800 03052016/88515058 72,128,000.00 2017 78,960.00 142,128,000.00 10,000,000.00 1800 03052017/97072523 132,128,000.00 TOTAL 552,720.00 923,762,515.20 561,167,951.32 362,594,563.88 Based on the above chart, I have computed the agreed rent based on the exchange rate indicated in the invoices save for the years 2016 and 2017 whose invoice did not indicate the exchange rate hence, reasonably, that of 2015 was adopted for convenience. From what can be grasped in the above chart, the outstanding rent seem to be TZS 362,594,563.88 and not TZS 638,808,337.17 claimed by the Plaintiffs. I therefore agree with the Defendant's contention that the Plaintiffs' claim was not certain and needed reconciliation by both parties. It is in evidence that the last written contract between parties was for January, 2015 to 31st December 2016. However, the evidence also reveals that after the lapse of that period, the Defendant continued occupying the rented premise, and that impliedly means that there was automatic renewal of the contract. The records shows that the contract was renewable at two years term but since the Defendant were locked out in 2017, they are bound to pay rent for the half contractual terms which is the year 2017 to which they stayed into the Plaintiff premise. In Page 21 of 29 concluding the 1st and 2nd issue, this court finds that the Defendant was aware that there was outstanding lease amount. Determination of the above two issues takes me to the third issue on whether there was breach of terms of lease agreement. This issue refers to breach by either of the parties to the lease agreement and for that reason, I will argue the 3rd issue jointly with the fourth issue on whether there was unlawful lock out of the Defendant. The reason for doing so is that, unlawful lock out if proved, could amount to breach of lease agreement. From parties' pleadings and evidence, each party is alleging breach against the other. While, the Plaintiffs claim that the Defendant breached lease agreement by failure to pay the agreed rent on time, the Defendant alleged that the Plaintiff breached lease agreement by unlawful locking out the Defendant. It is clear that parties were guided by the terms of agreement entered in 2011 and those terms applied to all renewed contracts. The terms of the agreement are very clear on obligations of each party to the contract. The Defendant does not dispute its failure to meet tenancy obligation by paying rent on time. Throughout his evidence, DW1 admitted that there was outstanding rent against the Defendant. The corresponding letter between parties in exhibits PE3 and PE4 also reveals that the Defendant was not paying rent on time and most of the Page 22 of 29 time was requesting for Plaintiff's leniency on the claim for rent. In that regard, there is a clear violation of tenancy covenant by the Defendant hence, breach on the part of the Defendant. Apart from Defendant's breach, I also assessed if the Plaintiff committed any breach. From Clause 4 (iii) of the tenancy agreement which was referred by parties, it spelt out the consequences for non­ performance of contractual obligation. The said clause read; "In the rent hereby reserved or any thereof shall be unpaid for period of thirty days after becoming payable whether lawfully demanded or not or if any covenants on the tenant's part herein contained shall not be performed or reserved, it shall be lawfully for the landlord at any time thereafter to re-enter the demisedpremises or any part thereofand there upon the term hereby created and this lease shall forthwith cease and determined but without prejudice to any right of action of the landlord in respect of any breach of the Tenant's covenant herein contained." From the wording of the above clause, where the tenant fails to pay rent within 30 days after becoming payable or fail to perform any contractual obligation, the landlord had the right to re-enter into the leased premise. As per DWl's testimony and Defendant's closing submission, the Defendant does not object the Plaintiff's right to re-enter the rented premise but faults the modality used to re-enter. DW1 contended that the right to re-enter does not give right to the landlord to Page 23 of 29 I lock out the tenant. This suggest that the landlord can re-enter the rented premise without locking out the tenant. I do not see how this suggestion is practicable in a situation where a tenant is in occupation of the rented premise. As per Clauses in the lease agreement no explanation of the re­ entering modality but logically the landlord had to evict the tenant for him re-enter and take full possession of the rented premise. It was also argued by the defence side in their evidence and closing submission that no notice of eviction was issued to the Defendant before they were locked out by the Plaintiffs. They contended that the notice allegedly issued by the 1st Plaintiff, Exhibit PE4 was issued after the Defendant were locked out of the premise. Clause 6 of the tenancy agreement refers to termination of the tenancy and it allows any party to the contract to terminate the tenancy agreement upon breach of covenant but, it requires the terminating party to issue two months' notice of intention to terminate the tenancy and prescribe the nature of the breach and remedy. The record shows that the Defendant was locked out of the rented premise on 01st September, 2017 and all her belongings were retained in the locked premise. The notice of eviction was issued on 05th April 2018 and served to the Defendant on 12th April 2018 and through that notice, the Defendant was given up to 20th April, 2018 which is seven days from Page 24 of 29 the date of service to pay 50% of the overdue rent to remedy the breach. In my view, the notice was supposed to be issued before the Plaintiff took action of locking out the Defendant. Thus, while I agree that there was breach on the party of the Defendant for failure to pay rent on time, I also agree that there was breach on the party of the Plaintiff for unlawful locking out the Defendant without first issuing notice prescribed under the tenancy agreement. In that regard, both parties were in breach of tenancy agreement. Having concluded that both parties were in breach of contract, the issue that follows is whether parties suffered loss and, or, damages. On the Plaintiffs' side, there is no doubt that the Plaintiffs have genuine claim for rent against the Defendant. However, they were unable to demonstrate the damage suffered as a result of delayed rent payment. On the claim for general damage, the same is not awardable as the Plaintiff also breached the tenancy covenant for failure to issue notice before locking out the Defendant. On the defence side, the Defendant claim damage for properties that were locked in the rented premise and loss of earning from students' tuition fees. Starting with damage on the properties, the Defendant claims for TZS 100,000,000/= being costs for replacement of furniture and other belongings. However, there is no record showing the time the Defendant's Page 25 of 29 properties were handled back to them except for the testimony of DW1 who claimed that they received their belongings in 2021 when they were no longer useful as books and documents were damaged by water and eaten by rats while computers have already collapse and no longer working. When he was cross examined on the state of properties at the time of handover, DW1 admitted that he was not present at the time of handover. In my view, since DW1 did not witness the handover, he was not in a good position to explain the state of properties at the time they were handled to the Defendant. It was expected for the defence side to present a witness who was present at the time of handing over the properties and tender the handover document showing the properties handled and their state. For electronic gadgets like computers and printers, it was expected for them to present expert in that area and explain if the same were no longer working at the time they were handled to the Defendant. In the absence of that evidence, this court finds that irrespective of breach by the Plaintiff, the Defendant was unable to prove specific damage suffered for the properties that were locked in the premise. Regarding the claim for loss of income/revenue, I also find that the same was not proved. Despite tendering the University prospectus indicating fees payable, the defence side was unable to verify the number Page 26 of 29 of students retained at the rented premise and if those students had already paid their fees at the time the premise was locked; at least, the bank statement could have served the purpose. DW1 was the one who testified on the arrangement to refund or transfer students to other universities but no evidence was tendered to verify DWl's statement. Since the refund process was done after the lock out, the Defendant was expected to have record for refund in terms of receipt or any other document. Similarly, since the transfer process for other students was done after the lock out of the premise, it was expected for the Defendant to have record of transfer of those students to other universities, like request letter from the Defendant to those other universities and, or, admission documents or any other document for that purpose. In fact, how many students were refunded and how much, or how many were transferred and to which university, remain a riddle. Since the claim of TZS 2,808,000,000/= as loss of revenue is a specific claim, the same ought to be strictly proved by evidence. In the matter at hand, the Defendant was unable to strictly prove claim for loss on balance of probabilities. On the claim for general damage, I agree that the action by the 1st Plaintiff affected the Defendant. The corresponding letters between them reveals that the Defendant's services were affected by the Plaintiff's action Page 27 of 29 of closing the premise without notifying the Defendant. Although the Defendant was unable to specifically prove the damage suffered, this court finds that the plaintiff's action caused disturbance to the defendant and their services. I therefore find it appropriate that the Defendant be remedied with the award of TZS 10,000,000/= as general damages. Concluding with the last issue on reliefs, I have considered reliefs sought by parties and being guided by what was proved thereof, I find that the Plaintiffs' claim in the main suit is partly proved and the claim by the defendant in the counter claim is also partly proved. I therefore decide as follows: - 1. Both the 1st Plaintiff and the Defendant were in breach of the tenancy agreement. 2. The Plaintiffs are entitled to outstanding rent of TZS. 362,594,563.88. 3. The Defendant is entitled to the award of TZS. 10,000,000/= as general damage. 4. Based on No. 1 and 2 above, the Defendant shall pay to the Plaintiffs, the outstanding rent of TZS. 352,594,563.88/= computed in exclusion of TZS 10,000,000/= awarded to the Defendant as general damage. Page 28 of 29 5. The Plaintiffs' claim in the main suit is partly granted and the claim by the defendant (the plaintiff in the counter claim) is also partly granted. 6. In considering the circumstance of this case in which each party proved part of the claim, they shall bear their own costs. DATED at ARUSHA this 29th Day of January, 2024 Page 29 of 29