20110603 TZHC Mbeya

I. ) IN THE HIGH COURT OF TANZANIA / (LAND DIVISION) i/p

AT MBEYA LAND APPEAL NO 16 OF 2009 (From the Decision of the District Land and Housing Tribunal of MBEYA District at MBEYA In land Case No. 144 of 2008) THE DIRECTOR M/S SKY 2000.. . . .. . APPELLANT

VERSUS

JOHNSTONE NIKODEMUS MALAKASUKA Date of last order: 2410512011 Date of Judgment: 10/0612011

JUDGMENT KARUA, J. The respondent, Johnston Nicodemus Malakasuka, applied for vacant possion, at the District Land and Housing Tribunal, of premises situate on plot No 21 Block A South Street in Mbeya City, with title No. C.T 4463 DLR. The respondent alleged that the appellant, the Director M/S Sky - 2000 Office Electronic General Supplies, had trespassed into the above said house and occupied it. .4 Service was effected upon the appellant, but the appellant did neither enter appearance nor filed its defence. The District Land and Housing Tribunal decided the case aside the appellant, in favour of the respondent. The appellant felt aggrieved, hence, this appeal, essentially on three grounds, namely:- That the trial chairman erred grossly in law by reaching at a decision against the appellant. That the trial chairman erred in point of law when he proceeded with the case ex-parte while there were sufficient proof of reasons for appellants absence. That the judgment delivered is against the weight of evidence in record. The appeal was preferred and argued before me, by way of written submissions, by Mr. Shitambala, learned counsel, on behalf of the appellant and was 2 resisted by Mr. Massawe, learned advocate, on behalf I 111f I of the respondent. The counsels made very valuable submissions, which I will have regard to in the cause of this judgment. Perhaps, I should tackle the

second ground of complaint first. The issue is whether the District Land and Housing Tribunal misdirected itself when it heard the case one sided. Mr. Shitambala was of the firm view that the District Land and Housing Tribunal wrongly decided that the case should proceed ex-parte, when the condition for ex-parte proof, were not met, against the provisions of 0 VII Rule 2 (b) and (II) of the Civil Procedure Code. According to Mr. Shitambala a wrong party was served and not the appellant. The process server effected service upon Ms Generation FM who was not a party to the case. Mr. Shitambala went on to say, I quote:- 3 ) "Even a substituted service was not conferred as per order V Rule I 20 of the Civil Procedure Code [Cap 33 R.E 2002]. It is further submitted that during all this case the appellant had been away in Zambia for his business the fact which is supported by court witness Mr. Simon Mwakolo in the proceedings" These assertions, on the other hand, were vehemently contested by Mr. Massawe, who asserted that the appellant was properly served but defaulted. The learned counsel for the respondent went on to "The respondent filed his application on 08th January, summons and application, Appellant neither bothered to file his written statement of defence nor entered appearance which made the tribunal to order the Respondent to proceed ex-parte. On 1010212009 the

respondent proceed (sic) ex-parte and ex- parte judgment was delivered on 0510312009" The learned counsel further narrated that after the ex-parte judgment was entered the appellant filed an application to set aside the ex-parte judgment but in vain. The tribunal held that there was no ground upon which it could set aside its ex-parte order. The appellant was properly served through its principal officer Antony Lengama, who also happened to 6 / in Zambia. But service was effected at his office his i absence notwithstanding. The Director of the appellant wishes us to believe that this is a one man show. Is it basically a pocket office? I am persuaded that the appellant was properly served and did not enter appearance nor did the appellant file its defence. There is no room, on this matter, upon which I could fault the decision of the District Land and Housing Tribunal. In the circumstances the District Land and Housing Tribunal properly exercise its discretion and proceeded to hear the case one sided. The second ground therefore is meritless. The two remaining grounds are one and the same. Basically the ground is whether the District Land and Housing Tribunal properly evaluated the evidence which was before it. I had the advantage of going through the evidence on record. I am satisfied that this court cannot fault the decision of the trial court. The evidence reveals that at the

commencement the appellant contracted with a wrong person when it rented one room in the respondent house. However, later the agreement was rectified and the appellant properly occupied the one room it rented for two years. But later the appellant trespassed in the other rooms. The respondent was entitled to recuperation for not using the rooms that the appellant had trespassed into. I believe the sum of Shs. 800,000/= per month as loss of occupation of the whole house from January 2008, to the date of vacation, was reasonable in the circumstances. The order for vacant possession was also proper in the circumstances. The appellant, as said, had trespassed into the other ten rooms. Thus the appellant illegally Oj -c occupied those rooms The remedy was tle appellant ejection from the suit house. Moreover, the appellant was not paying rent for the rooms that the appellant had illegally occupied. That apart, the main agreement had expired. With respect, the order of vacant possession, as said, was quite proper. The damage of Shs. 10,000,000/= that the trial tribunal awarded the respondent for withholding the respondent title deed was also quite sound. In the process of the tenancy, the respondent took a loan of Shs. 5,000,000/= from the appellant and pledged his title deed of the same house. However, the appellant gave the respondent the sum of Shs. 1,000,000/= only and the rest of

the money was not forthcoming. The sum of Shs. 1,000,000/= loaned was deducted from the rent due. Despite several efforts, however, the appellant could not return the title deed. This matter, 10 ) indeed, borders a rent issue and was properly decided by the trial tribunal. I see no harm in it. For all the foregone reasons, I see no merit in this appeal. In consequence, I dismiss it in its entirety. The respondent will have his costs here and the tribunal below. •• ' -- N. ,•. S.G. Karua I - \ -. - .,,•_•-._'.-

JUDGE 1 •4 'N. -I 03/06/2011

DATED AT MBEYA Appearances: For the appellant: Mr. Shitambala For the respondent: Mr. Massawe