the registered trustee of manyema mosque vs africarries ltd 2021 tzhclandd 838 24 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 52 OF 2021 (Arising from Land Application No. 376 of 219 in the District Land and Housing Tribunal for Ilala dated 05th day of March 2021 before Hon. Rugarabamu, Chairman)

THE REGISTERED TRUSTEES OF MANYEMA MOSQUE...... .................. APPLICANT

VERSUS AFRICARRIERS LTD.......... ......................................... RESPONDENT

JUDGMENT Date of Last Order: 06/10/2021 Date ofJudgment: 24/11/2021 A, MSAFIRI, J: This is an appeal against the decision of the District Land and Housing Tribunal for Ilala in Land Application No.-376 of 2019 delivered on 05th March 2021. The Appellant, The Registered Trustees of Manyema Mosque raised six grounds of appeal which reads; 1. The Honourable Tribunal lacked jurisdiction to entertain the Application.

2. That, the Honourable Chairperson erred in law to hold that it was lawful for a tenant to sublease the leased property without the written consent of the Landlord. IjUl L . *1 3. That, the Honourable Chairperson erred in law for failure to analyse the evidence that the Deed of Variation made on 28/05/2018 varied and therefore supersedes all previous agreements.

4. That the tower Tribunal failed to appreciate the fact that a tenant purporting to be the landlord amounts to fundamental breach of lease agreement.

5. That the lower Tribunal erred in law and fact for compelling the landlord and tenant to execute the lease agreement in form ofspecific performance.

6. That, the Honourable Chairperson erred in law for basing his decision on notices which do not exist in law. In this appeal both parties were represented. Mr. Mulamuzi Byabusha learned advocate represented the appellant whereas Mr. Ngassa Mboje, learned advocate represented the respondent. With direction of the Court, the appeal was argued by way of written submissions. I commend both counsels for their informative submissions. After hearing the submissions from the parties and going through the Court records, the major issue is whether the appeal is meritorius. Starting with the first ground, the appellant stated that the trial Tribunal lacked jurisdiction to entertain the Application. Submitting in support of the appeal, Mr. Byabusha submitted that it is trite law that every Court of law must have jurisdiction to entertain any matter brought before it, and contrary thereof render the proceedings and decision null and void. He stated that 2 the lower Tribunal conceded a poor estimate of the value of subject matter, that the suit premises is far beyond the pecuniary of TZS 300,000,000/-. That a quick estimate can be derived from the lease agreement between the 1st and 2nd applicants in the trial Tribunal which is more than TZS 400,000,000/- per annum. He cited several cases in support of his argument one of them being the case of John Agricola vs. Juma Rashid (1990) TLR1. In

response, Mr. Mboje submitted that the appellant is claiming that the trial Tribunal conceded a poor estimate of the value of the suit property for the reason that the same is far beyond the pecuniary mandate of the trial Tribunal. That, for the appellant, the quick estimate can be derived from the lease agreement between the 1st and 2nd applicants in the trial Tribunal. Mr. Mboje, argued that it is a misconception to submit that the pecuniary jurisdiction can be ascertained from the lease agreement between the 1st and 2nd applicants. In the Land application No. 376 of 2019, the parties are Africarriers Ltd vs. The Registered Trustees of Manyema Mosque, therefore, the rental charges as per lease Agreement is TZS 10,000,000/- per month as admitted during trial as Exhibit P3. Mr.Mboje added that as per Regulation 3 (2) (d) of the Land Disputes Court (District Land and Housing Tribunal) Regulations G.N. No. 174 of 2003, thezapplicant is dutiful bound to estimate the value of suit property. He argued further that the applicant has stated clear in their pleadings that the estimated value is TZS 200,000,000/- which is well within jurisdiction of the trial Tribunal. In support of his arguments, 3 he cited among others, the case ofJames Burchard Rugemalira vs. the Republic and Another, Criminal Application No. 59/2019 of 2017, CAT at Dar es Salaam (unreported). On this ground of

appeal, I agree with the submissions by the counsel for the respondent that the counsel for the appellant has not produced any facts or evidence which would have help the court to determine the point of law raised by him. The counsel for the appellant's claim is supported by the fact that he pointed to Court that the Lease Agreement between the 1st and 2nd applicants is way beyond 400,000,000/- per annum. However, as correctly submitted by the counsel for the respondent, the dispute was not between the 1st and 2nd applicants but the appellant and the respondent whose lease agreement is TZS 10,000,000/- per month as per the evidence on record. Furthermore, I agree with the submission by the counsel for the respondent that, the cause of action arose from the illegal notice and breach of the lease agreement and not recovery of possession of immovable property so the trial Tribunal has jurisdiction to entertain the matter. I am aware that the appellant raised a point of law which goes to the root of the case. However, it is trite law that he who alleges must prove their allegations. This is provided under section 110 and 111 of the Evidence Act, Cap 6 R.E 2019. Therefore, the point of law being the issue of pecuniary jurisdiction, the appellant was bound to produce proof to ascertain that the Court lacks jurisdiction. The appellant could have done so by at least producing

Valuation 4 Report which could have assisted the Court in determination of raised point of law. In absence of Valuation Report, there remains mere allegations from the appellant which are based on sub-tenancy agreement between the respondent and her tenant which is not the cause of action on this matter. I agree with the decision of this court in the case of Zaid Baraka vs. Engen Petroleum (Tanzania) Limited, Land Case No. 135 of 2004, HC Dar es Salaam (unreported); where this Court stated that; "the value of the suit premises cannot be ascertained without support of the valuation report done by a registered valuer " From this analysis, I find that the trial Tribunal had jurisdiction to entertain the matter. 1st ground of appeal has no merit and I dismiss it. The 2nd and 4th grounds of appeal were argued in consolidation by parties. Mr. Byabusha for the appellant stated that, the trial Chairperson was wrong to find that it was lawful for a tenant to sublease the leased property without written consent of the landlord. And that, the trial Chairperson failed to appreciate that a tenant purporting to be a landlord amounts to a fundamental breach of lease agreement. Mr. Byabusha stated further that, it is trite law that in order for a tenant to sublease the leased property, he must obtain written consent of the Kj[\ 5 landlord. This is per Section 89 (1) (i) of the Land Act Cap 113

R.E 2019. That in the present matter, it was clear that the tenant company subleased the suit premises without written consent from the landlord. He stated further that, although there is a clause authorizing him to sublease, but that was not enough to warrant him to do what he did. Mr. Byabusha went on to point that the said clause was either illegal on incapable of being executed. He contended that the tenant (respondent) breached lease agreement under Section 78 of the Land Act, by purporting to be the landlord by assuming and exercising the duty and power of the landlord. In reply, Mr. Mboje submitted on consolidated 2nd and 4th grounds of appeal that they agree with Section 89(l)(i) of the Land Act. However, he pointed that Section 89 (1) (i) of the same does not prohibit sublease of the lease demises but it merely impose some restrictions and conditions to be complied with before subleasing. Such restrictions and conditions are the requirement of previous written consent of the landlord. Mr. Mboje stated that as per Exhibit Pl, Clause 3(1) prohibits other forms of assignment but subleasing was permitted and thus there was no need of further consent. That exhibit P.4 clause 5 (iv) extended the written consent to cover also other forms of assignment. He stated that the trial Chairperson directed his mind properly on the nature and essence of the so called previous written

consent. J\/l f 6 He added that since the tenant was granted written consent of sublease, the tenant became the landlord of the sublease tenant for only that purpose. The important question here is whether there was written consent from the landlord (appellant) to the tenant (respondent) to sublease the leased suit property. Section 89 (1) (i) of the Land Act provides thus; 89(1); There shall be implied in every lease, other than a short term lease, covenants by the lessee with the lessor binding the lessee; (i) Not to transfer, mortgage, charge sublease or otherwise part with the possession of the lease land or buildings or any part ofit without the previous written consent of the lessor, that consent not to be unreasonably withheld". (Emphasis added). I have read Exhibit P6 which is the original version of Exhibit Pl, a Lease Agreement between the appellant and the respondent which was entered on 10th December 1998. Clause 3(1) of the Agreement provides that; "The Tenant shall not assign the tease without the written consent of the landlord but such consent shall not be necessary for sub- letting the whole or any part of the demisedpremises and/or any additions thereto to one or more persons, provided the sub-letting shall not be a period greater than the lease period" (Emphasis added). Ip I 7 Exhibit P4 is a third Deed of Variation made on 01 June 2017 between the appellant

and respondents. Clause 5 (iv) of the same provides that; " That by signing this Agreement, the Tenant shah have right to assign the tease or sublease, renovate, add or later the existing structure to suit market without any written consent of the landlord.... "(emphasis added). There is no dispute from the parties that there is a clause from the Lease Agreement authorizing the respondent to sublease. Mr. Byabusha for the appellant although admitting that fact, he stated that the said clause was either illegal or incapable of being executed. Mr. Mboje stated that there was a previous written consent as per clause 3(1) of Exhibit Pl and clause 5 (iv) of Exhibit P4. Gathering the available evidence on record, I am of the view that the Lease Agreement permitted the tenant to sublease the suit premises. The consent being clearly expressed in the Lease Agreement, it was in my opinion, a sufficient previous written consent in terms of Section 89 (1) (i) of the Land Act; so, the clause was not illegal as it was put by Mr. Byabusha but it expressed the previously given consent of the landlord so there was no need for the respondent (the tenant) to re-seek the already given consent. /VI I 8 Mr. Byabusha also argued that the respondent assumed and exercised the duty and power of the landlord which amounts to fundamental breach of lease agreement. Mr. Mboje contended that there was no any

breach of lease agreement as the tenant was the landlord of subleased tenants to only such extent. I have gone through the evidence on record and I have failed to see or detect any piece of evidence which shows that the respondent assumed the duty and powers of the landlord in the suit premises. I have read a Deed of Variation between Africarriers Limited and CRDB Bank Pic (the respondent and her tenant in a sub-lease) which was tendered during the trial as exhibit PIO. It shows that the Deed is between the said parties as "the lessor" and "the lessee" respectively. If "the lessor" has assumed the duties of "the landlord" then it remains to be mere assumptions and allegations from the appellant. From these, I find that the 2nd and 4th grounds of appeal has no merit and I also dismiss them. On the 3rd ground, Mr. Byabusha stated that the Hon. Chairperson failed to analyse the evidence that the Deed of Variation made on 28/5/2018 varied and supersedes all previous agreements. According to him, the only Deed governing this dispute is the one dated 28/5/2018, titled Deed of Variation which was tendered as exhibit P5. 9 Therefore it supersedes all other contractual deeds admitted since 1998. In reply, Mr. Mboje submitted that the deed of variation is a supplementary document to the previous agreement and thus it only extinguish the terms so expressed in the said deed of variation.

That Clause 1 of Exhibit P5 clearly states that the deed of variation is only in relation to terms of variation made on 01/06/2017. That it is wrong to submit that the dispute over the suit property is governed by Exhibit P5 while the contractual relationship started since 1998. Having read Exhibit P5, I am inclined to agree with Mr. Mboje's submissions that the 4th Deed of Variation (Exhibit P5) states that it is the variation of the Deed dated 01st June 2017. However, clause 3 of the 4th Deed of Variation implies that the terms of the 3rd Deed of Variation dated 01/6/2017 was carried on to the 4th Deed of variation. It is written as follows; "That the landlord covenants to hold the same unto tenant from the 1st day ofJanuary 2016 to 31st day of December, 2032 for a term of 17 years paying thereof a rent as agreed and provided under the Deed dated 1st June 2017 (Emphasis added)". By this, the terms agreed to the 3rd Deed of Variation was carried on to the 4th Deed of Variation. So, although clause 5 of the 4th Deed io express that the current variation superseded previous agreement already signed, the terms of agreement, duties and obligations of the parties remained the same as in previous agreement/Deed of variations. In fact, I have noted that the 4th Deed of Variation has no clause on rights and obligations of the parties, what was varied in this 4th Deed is only the term

of tenancy from starting 01/01/2016 - 31/12/2030, to a new term of 01/01/2016- 31/12/2032. The Deed has no such clauses because the same are expressed in the previous agreement and previous Deed of Variations. So, it is a misconception to assert and believe that the 4th Deed of Variation dated 28/5/2018 can stand alone in this dispute or in the lease agreement between the parties. For the above analysis, I will also dismiss this ground of appeal. On the 5th ground of appeal, Mr. Byabusha submitted that the Hon. Chairperson misdirected himself by ordering both parties to the dispute to execute the lease agreement for specific performance instead of claim for damages in case of issuing the said "illegal notices". He submitted further that since the tenant terminated the covenant of the lease agreement, the only remedy available was to issue damages to the landlord and not otherwise. In reply, Mr. Mboje submitted that there was no breach of lease agreement by the respondent due to act of subleasing and thus the notice issued by the appellant is invalid. Jbf li In this ground of appeal, the appellant is maintaining that the respondent has breached the contract as to section 89 (1) (i) of the Land Act (supra). However it is my findings that the respondent did not breach this provision of the Land Act. I decided so when I was determining the 2nd and 4th grounds of appeal. The Hon.

Chairperson was correct to order that the Lease Agreement was valid and being bound by it, the parties to the agreement had to execute it unless they decided to terminate it as per the agreement's clauses. Therefore, this ground of appeal need not take much of the court's time and I dismiss it. On the 6th and final ground of appeal, Mr. Byabusha submitted that, the Hon. Chairperson misdirected himself for basing his decision on notices which do not exist in law. He stated that in respect of legality of Notice of Intention to terminate lease and vacant possession, the Notice admitted by lower Tribunal as Exhibit P7 is unambiguous as it gives a clear statutory Notice in term of Section 105 (1) and (2) of the Land Act. That the fact that the agreement provided for three or six months' notice, it was inconsequential as long the respondent was issued with notice and thereafter the notice was issued to the sub lessee in terms of Section 106 (1) (a) of the Land Act. 12 Contending, Mr. Mboje submitted that apart from violation of Section 105 (2) (b) (i) and (ii) of the Land Act, the notice issued by the appellant i.e. exhibit P7 suggest what was held by the trial Chairperson that the notice is entitled as notice of intention to terminate the lease and at the same time its contents as paragraph 6 and 7 command the respondent to vacate the premises within the same 30 days of the

time frame for intention to terminate the lease. Going through the decision of the trial Chairperson, Exhibit P7 which is a Notice of Intention to terminate lease agreement, the lease agreement (Exhibit P6), and Deed of variation dated 01/6/2017 (Exhibit P4), I am inclined to agree with the findings of the trial Chairperson. In the trial Tribunal, it was the finding of the Hon. Chairperson that Exhibit P7 was not valid in law because it was supposed to be the notice of intention to terminate the lease, which is issued for the purpose of remedying the breach. However, Exhibit P7 contains all three i.e. one, Notice of Intention to terminate the lease, two, Notice of termination and three, Notice of vacant possession. Section 105 of the Land Act (supra), provides as follows: 105(1); where a lessee is in breach of a covenant or condition in the lease, the lessor may serve notice of intention to terminate the lease on the lessee, / . 13 (2) A notice served on a lessee under this section shall adequately inform the recipient of the following matters: (a)N/A (b) N/A i) N/A ii) N/A Hi) N/A (c) In the event that the breach is not remedied the lease shall terminate on expiry of thirty days from the date of service of notice. On my interpretation, the provisions of Section 105 of the Land Act are set to give a chance to the lessee to remedy the breach or any fault committed or omitted in

the agreement. On failure to remedy the situation then the lessor shall then proceed to terminate the lease. So the trial Chairperson was right that Exhibit P7 contains three Notices; Intention to Terminate, Termination and Eviction. In my view, which I join hands with trial Chairperson, the Notice was not valid in law and also not valid as per the Lease Agreement which provides for six months' Notice to rectify the default and upon the failure, then the landlord may terminate the lease. I also find this ground to have no merit and I dismiss it. 14 As per the analysis and reasons given hereabove, I find no reason to alter or reverse the findings, judgment and order of the trial Tribunal in Application No. 376 of 2019 before the District Land and Housing Tribunal of Ilala and I hereby uphold them. I dismiss this appeal in its entirety and each party to bear their own costs. It is so ordered. Right of appeal duly expressed. Dated at Dar es Salaam this 24th November, 2021. 15