20100624 TZHC Dr es Salaam

1 .,

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM .\ CIVIL CASE NO. 25 OF 2001 VISION HOTEL & TOURISM

PLAINTIFF

VERSUS TANZANIA TOBBACO LEAF CO. LTD ...... DEFENDANT Date of last Order : 17/6/2010 Date of Judgment : 24/6/2010

JUDGMENT Shangwa, J. In this civil suit, the plaintiff is claiming against the defendant for special damages of Tshs. 225,048,000/=_ and general damages of Tshs 200,000,000/= for breach of the I i 1 •. 2 Lease Agreement which was made between the plaintiff and Tanzania Tobacco Board on 18 th August, 1995, and the losses suffered as a result of being evicted by the defendant Tanzania Leaf Tobacco Company Ltd before the expiry of the said Agre em en t. The plain tiff is also claiming for Tntereston--th-e -said sum-s--at---3Q9/o--per-an-num~from the_ date___ _ of fling the suit until the date of judgment and interest on the decretal sum at court rate from the date of judgment until the date of payment in full and costs of the suit. On the other side, the defendant made a counter- claim for rent in arrears at Tshs. 800,000/= per month from 1 st July, 1998 up to 13 th January, 1999 plus interest at the commercial rate from 13 th January, 1999 to the date of judgment and costs. 3 Hearing of this suit commenced on 16th October, 2007 and three issues were framed. They are as follows:- 1. Whether the defendant breached the Lease Agreement which led to eviction of the plaintiff -------------- - - - - 2. Whether there was a lawful eviction - - - - - - - - - ~- order against the plaintiff 3. Whether the defendant in the counterclaim is liable for arrears of rent. The facts of this suit

are very simple. They are as follows:- On 18 th August, 1995, the plaintiff and Tanzania Tobacco Board entered into a Lease Agreement (exhibit Pl) in which it was agreed among other things that the plaintiff should rent the defendant's building at Plot No. 29 block c, t • 4 Kurasini, Dar es Salaam at a rent of Tshs. 800,000 / = per month. The said Agreement had to last for five years. That is from 18th August, 1995 to 18 th August, 2000. After signing that Agreement, the plaintiff occupied the suit premises and started to run Hotel and Guest house ----trusi-ne-ss-tr:om-- the;r:ein-,-ln-19_9_7-,_the__suit_pr_e.mis.e_s_ thr_o_ugh~--- the Parastatal Sector Reform Commission were sold to the defendant and the defendant became Land Lord instead of Tanzania Tobacco Board. On 8 th May, 1998, the defendant served a six month's notice (exhibit P2) to the plaintiff to vacate the suit premises. However, the plaintiff did not do so. On 13 th January, 2002, the plaintiff was forcefully evicted by the defendant from the suit premises. The defendant had a court order from the court of the Resident Magistrate to evict the plaintiff. ,. 5 The issues to be determined by this court are also very simple. On the first issue, the court is called upon to decide as to whether or not the defendant breached the Lease Agreement leading to the eviction of the plaintiff. In my view, although the defendant

terminated the Lease Agreement __before the_expiration of the period of fi~e years which had been agreed to by Tanzania Tobacco Board and the plaintiff who were the signatories to that Agreement, it cannot be held that by doing so, the defendant breached that Agreement. This is because under clause 4 (b) of that Agreement either party had the option at any time to terminate it by giving to the other six calendar month's written notice. The plaintiff was given such notice on 8 th May, 1998 but he did not even vacate until when he was forcefully evicted from the suit premises on 13 th January, 2002. This disposes of the first issue which is answered in the negative. 6 On the second issue, the court is called upon to decide as to whether or not the eviction was a lawful order. In my view, the plaintiff was lawfully evicted from the suit premises. I say so because he was given sufficient notice to -- - - --~-- - ~-- --- vacate from the- suit premises-but-he did-notdo so. - ---- Instead, he stayed in the suit premises for quite a long time until when the defendant went to the Regional Housing Tribunal for assistance and after winning the case, he went to the Court of the Resident Magistrate at Kisutu for execution of the decision of the Regional Housing Tribunal and the said Court issued an order to evict him. Another important aspect of this case which has to be decided alongside

the second issue is whether the plaintiff is entitled to special damages and general damages as a 7 result of being evicted from the suit premises. The plaintiff's claim of special damages is found at paragraph 7 of the plaint where it is pleaded inter-alia that during eviction the plaintiff sustained loss of his documents valued at a total sum of Tshs. 3, 100,000/= and his ---- ~- -properties -w-hieh- -wer€ -in -his- store _valued_ at __ Tshs_. ____ _ 548,000/= plus hard cash of Tshs. 500,000/=, books valued at Tshs. 300,000 / =, cassette recorder valued at Tshs. 300,000/= and his computer printer valued at Tshs. 300,000/= which he claims to have been damaged. As it was correctly pointed out by counsel for the defendant IMMA, Advocates at page 6 of their written submissions, special damages have to be proved strictly. In this case, the plain tiff never - proved his claim for special damages as required by law. He merely listed the things he said he lost and the value of those things without proof of their value. It 1s surpr1s1ng to note that the things which are listed at 8 paragraph 7 of the plaint to have been lost during his eviction exercise are quite different from those which were mentioned by P.W.1 Mile Sahani Mbwilo during his testimony in chief. I therefore hold that his claim of special damages has no basis and I disallow it. With regard to the plaintiffs claim of

general damages of Tshs. 200,000,000/= which is based on breach of contract, I am of the view that this claim has no basis as well. I say so because of two main reasons. First, there was no breach of contract so to speak. As already mentioned, the Lease Agreement was terminated lawfully by the defendant who had the contractual option to terminate it at any time. Second, by being evicted from the suit premises, the plaintiff company did not suffer any embarrassment, injury to reputation, feelings or character as pleaded at - - - ·- - - -paragraph 8-of-the -plaint. - - . 9 There is no dispute that the plaintiff was given sufficient notice of six months to vacate from the suit premises but instead of vacating from therein he continued to stay there doing his business until when he was . forcefully evicted. Therefore, if at all he sufferea any embarrassment or injury for being evicted, the defendant cannot be blamed for it. He should blame himself for it as he did not comply with the notice to vacate. As it was correctly argued by counsel for the defendant at page 7 of their written submissions, the damages if any were self inflicted. This disposes of the second issue which is also answered in the negative. On the third issue, the court is called upon to decide as to whether the defendant in the counter - claim is liable f' I 'c 10 for arrears of rent. In my view, I think that the

defendant in the counter - claim namely the plaintiff is liable to payment of rent in arrears at the contractual rate of Tshs. 800,000/= per month from July, 1999 when he made the last payment to the date of eviction by the Court broker on the total amount of rent in arrears is Tshs. 4,600,000/=. I order therefore that the plaintiff has to pay that amount to the defendant immediately. In his counter - claim, the defendant prayed for interest on the decretal amount of rent in arrears at the -,-- commercial- rate. I grant this prayer but I order that interest should be at court rate with effect from the date of last payment of rent in July, 1999 to the date of payment in full of the total rent in arrears. This disposes of the third issue- which-is-answered in the positive. - - - - -- _____ _ 11 For these reasons, I dismiss the suit and enter judgment in favour of the defendant in the counter -claim with costs. ~ A.Shangwa

JUDGE 24/6/2010 Delivered in open court this 24 th June, 2010 in the presence of Mr. Mile Mbwilo for the plain tiff and Mr. Nyika, Advocate for the defendant. ~ A.Shangwa , JUDGE 24/6/2010