North Mara Gold Mine Limited vs Sinda Nyamboge Ntora (Civil Appeal No. 687 of 2024) [2026] TZCA 519 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 687 OF 2024 NORTH MARA GOLD MINE LIMITED ....................................... APPELLANT VERSUS SINDA NYAMBOGE NTORA.....................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Musoma) (Kahyoza, 3.) dated the 26th day of February, 2020 in Land Case No. 1 of 2019 JUDGMENT OF THE COURT 27th April & 11th May, 2026 MASOUD. J.A.: In the High Court of Tanzania, at Musoma, the respondent, a former landlord of the appellant, as per a four-year lease agreement (exhibit PI), filed a suit against the latter, alleging failure of the latter to hand over the leased premises to him in good and tenable condition following the expiry of the lease. The respondent claimed in his plaint that the appellant was required under the lease agreement

to surrender the premise as renovated by the appellant at the respondent's expenses to the Barrik standard. Contrary to terms of the lease agreement, it was alleged, the appellant, disconnected the three-phase electricity power supply to the premises; rendered air conditioners and water heaters installed therein not working; removed beds, mattresses, TVs, and fridges from the premises; denied the respondent peaceful enjoyment of the premises, and as a result, occasioned loss of business to the tune of TZS 945,000,000. Against the backdrop of allegation of breach of the lease agreement, the respondent claimed for a number of reliefs, including specific damage attributed to loss of business as earlier shown and general damages. The appellant filed a written statement of defence, opposing the suit. She contended that, the respondent refused to take possession of the premises on the ground that, it was not surrendered to him, notwithstanding her efforts in vain. She did not however dispute that she entered into the lease agreement with the respondent and that the premises were upon expiry of the lease term to be surrendered to the respondent in good and tenable condition. 2

She did not also dispute that she surrendered the premise after disconnecting the three-phase electricity power supply which she had connected from her mine site. The record has it that, the trial court framed four issues, namely, whether the appellant refused to surrender the leased house to the respondent after the expiry of the lease agreement; whether the respondent refused to accept the appellant's surrender of the leased house without justification; whether the respondent suffered any damage due to the alleged breach; and what reliefs are the parties entitled to. After the trial, the High Court found that the appellant breached the lease agreement by disconnecting the three-phase electricity power supply and thereby leaving the house without electricity. The court held that since the appellant disconnected the three-phase electricity power supply to the house before surrendering it to the respondent, there was a reasonable justification on the part of the respondent in refusing to take it back as it was, by reason of not having electricity power supply, not habitable and not therefore in a good and tenable condition. 3

Consequently, the trial court held the appellant liable for breach of the lease agreement. It awarded the respondent general damages of TZS 144,000,000.00 together with court-rate interest at 7% per annum from the date of the judgment until full payment, half the costs of the suit, and ordered the appellant to surrender the house in a good and tenable condition and duly connected to a three-phase electricity power supply with immediate effect. It awarded half of the costs of the suit to the respondent on account of his conducts which in the court's view frustrated the hand over meeting arranged by the appellant. Aggrieved by the decision of the trial court, the appellant lodged in this Court the instant appeal against the decision, raising a total of three grounds. We conveniently condensed and paraphrased them thus: one, the trial court erroneously awarded the respondent general damages to the tune of TZS 144,000,000.00; two, the trial court misdirected itself in faulting the appellant's act of disconnecting the three-phase electricity system which was from the appellant's mine site; and three, the trial court erroneously ordered the appellant to surrender the house to the respondent duly connected to 4

the three phase electricity system, notwithstanding that such an order would result in unjust enrichment of the respondent. When the appeal was called on for hearing, Mr. Waziri Mchome, learned advocate, appeared for the appellant. On the other hand, Mr. Stephen Michael Kaijage, learned advocate, appeared for the respondent. At the outset, Mr. Kaijage opted, after a brief dialogue, to abandon, with our leave, the notice of preliminary objection which he had earlier lodged in the Court. Having abandoned the notice of preliminary objection, both learned counsel who had already lodged their written submissions for and against the appeal, adopted their respective submissions with some elaborations as each of them implored us to resolve the appeal in her/his favour. From the rival submissions, it turned out that the bone of contention was mainly twofold. The first is on the assessment of general damages by the trial court which hinges on the issue whether the trial court exercised its discretion judicially in awarding the respondent general damages to the tune of TZS 144,000,000.00. In other words, whether the trial court acted on wrong principle in the assessment of the said 5

damages. And the second relates to the disconnection of three-phase electricity system from the leased house which disconnection hinges on the issue whether it was proper for the court to order the appellant to hand back the house connected with the three-phase electricity system and whether such an order would indeed result in unjust enrichment of the respondent. However, we noted that the second issue bears also on the finding that the appellant breached the lease agreement, the manner in which the discretionary powers were exercised by the trial Judge in assessing the general damages and the award of the other reliefs. There was yet another question relating to mitigation of damages which again is an aspect of assessment of general damages. We thus find it prudent in the circumstances to deal with the grounds and the issues that arise from them together. In relation to the above, the key arguments fronted by Mr. Mchome in his bid to fault the trial Judge are not hard to grasp as they hinge on the complaint that the trial court acted on wrong principle in his assessment of the awarded amount of general damages. He contended that, while the assessment by the trial Judge 6

was purportedly based on what the respondent said during cross- examination which related to specific damages, the same was not specifically proved by the respondent and was not awarded to him. Thus, the amount awarded to the respondent to the tune of TZS 36,000,000.00 per annum for four years commencing on September, 2015, while the specific damages were not established, is equivalent to, the learned counsel argued, the sum the respondent was getting from the appellant during the subsistence of the four- year lease agreement. We understood him as submitting that, the assessment amounted to awarding specific damages to the respondent in one way or the other. Worse still, there was no evidence from the respondent on record relied on by the trial Judge as to what the respondent would be getting following the expiry of lease agreement and whether he could not get it because of the alleged breach by the appellant. In fortification, Mr. Mchome brought to our attention section 73 of the Law of Contract Act, Cap. 345, arguing that, the assessment of the general damages awarded was by and large not consistent with any evidence on record showing that the assessed sum reflected 7

what naturally arose in the course of the alleged breach. While the learned Judge's reasoning falls short of what is envisioned in that provision, there is on record no evidence from the respondent supporting the view that the amount awarded as general damages naturally arose from the breach. The absence of evidence in that regard is, according to the learned counsel, glaring on record because even the learned Judge relied upon the testimony of the respondent during cross-examination regarding what the respondent was likely to get from the house following the renovation. As to the holding that the appellant breached the lease agreement based on the disconnection of the three-phase electricity power supply that the appellant had installed to the house, there was, it was argued by Mr. Mchome, no obligation under the lease agreement requiring the appellant to install three-phase electricity system in the house in the first place as her obligation under that agreement was simply to renovate the house which obligation was never complained of. The only complaints, it was argued, were on the removal of beds, mattresses, TVs and fridges and not failure to renovate the premises.

In view of the above line of argument, we understood that the learned counsel was, essentially, challenging the premise of the trial Judge's finding that, the appellant breached the lease agreement by disconnecting the three-phase electricity power supply from the leased house. In elaboration, it was submitted that, while the three- phase electricity power supply, which had a source from the appellant's mine site, was indeed disconnected by the appellant after the expiry of the lease agreement to ensure that she was not being billed for the electricity power supply, the single-phase system remained undisturbed. Applying in this matter the principle of mitigation of damages as applied, for instance, in the cases of AMI Tanzania v. Prosper Joseph Msele [2021] TZCA 668, and Insignia Ltd v. CMA CMG (T) Limited [2019] TZHCComD 132, Mr. Mchome argued that there was nothing on record as to why the respondent could not apply to TANESCO for reconnection of the electricity power supply to mitigate damages instead of keeping on waiting for the outcome of the case, hoping to be awarded damages for the whole period following the alleged breach. The learned counsel went on to submit that, while 9

the learned Judge made a finding of fact that the respondent was by virtue of his conducts responsible for failure to resolve the problem with the appellant, and as a result, awarded him half of the costs of the suit on such account, he did not, with no apparent reason, apply the same principle to the assessment of general damages. It was also the argument of the appellant's counsel that it was not pleaded by the respondent that the single-phase system had been disconnected and/or removed. As such, the appellant had no duty to prove that she re-connected it or left it intact. Thus, in the absence of such pleadings, the reasoning by the trial Judge that there was no tenant who could have occupied the premise without incurring costs of installing electricity power supply was baseless and unfounded, as there was nothing that was removed if one goes by the pleading and the evidence on record. In his view, the reasoning of the learned Judge manifests the confusion between connecting electricity system and installing electricity system that he laboured. Based on that confusion, the learned Judge, it was contended, failed to find that costs would have only been incurred in installation and not reconnection. 10

In his further submission, Mr. Mchome questioned the finding of the trial court that the appellant should immediately hand over to the respondent the house which must be in a good and tenable condition and duly connected to the three-phase electricity system. His argument against that finding was that, while the disconnection by the appellant of the electricity from the appellant's mine site aimed at halting the appellant's obligation of paying electricity bills following the expiry of the lease agreement, the order requiring the appellant to hand over the house duly connected to the three-phase electricity power supply would amount to unjust enrichment to the respondent. He was of that argument because the respondent will end up getting free electricity power supply from the appellant's mine site. Besides, if the connection was to be sought from TANESCO, it is questionable that the appellant was in the position to do so for and on behalf of the respondent. Mr. Kaijage readily admitted the position of the law regarding assessment of general damages which among other things provide for exercise of discretion judicially. What followed thereafter was his insistence that, the appellant was properly found to have breached

the agreement, having disconnected the leased house's three phase electricity power supply, rendering it not in good and tenable condition and could not be occupied by any subsequent tenant without incurring costs. On the above account, it was argued that the assessment of general damages was consistent with the requisite principles contrary to what is alleged by the appellant. Reliance was made by Mr. Kaijage on a number of authorities on assessment of general damages including the cases of Moshi Mustafa and Others v. Ilemela Municipal Council and Another [2022] TZCA 765, and Reliance Insurance Company (T) Ltd and Others v. Festo Mgomapayo [2019] TZCA 323. Based on the foregoing arguments by the learned counsel for the parties, the first issue for our determination is whether there was a breach of the lease agreement by the appellant. Mindful of the submissions by Mr. Mchome on this issue and the very premise supporting the trial court's finding, we revisited the impugned judgment and found ourselves unable to fault the learned Judge's finding that the appellant breached the agreement. 12

On our part, we are satisfied that; the finding by the learned trial judge that the appellant was liable for breach of the lease agreement was not based on the failure by the appellant to hand over the house. We say so because, the trial court found, correctly so in our view, that there was endeavour by the appellant to hand over the premise to the respondent, which did not however bear fruit following the refusal by the respondent to take the premise back. The trial court's reasoning in support of the finding for the breach of the agreement was, clearly and rightly so in our view, hinged on the issue whether there was justification, on the part of the respondent, to refuse taking back the premises. It is evident from our scrutiny that, the trial court resolved the issue in the affirmative, having found that in so far as the house was disconnected from the three-phase electricity power supply, which had been installed and connected by the appellant from her mine site, the respondent had reasonable justification in refusing to take back the house. Moreover, the trial court was further of the finding, of which we are in agreement with, that by disconnecting the three- 13

phase electricity power supply, the appellant breached the agreement because the house could not be occupied without power supply. In its further reasoning, which we entirely agree with, the court was of the view that the disconnection of the three-phase electricity power supply was undoubtedly in contravention of the lease agreement which required the appellant to surrender the house to the respondent at the expiration of the lease in a good and tenable condition, having by virtue of the terms of the lease agreement, renovated it to "the Barrick standard' which required installing and connecting the house to three phase electricity power supply as single phase was insufficient. In that regard, it was the finding of the trial court that, surrendering the house, without being connected to the three-phase electricity power supply which supported the renovation made rendered the house unfit for habitation for want of three-phase power supply. Following the finding that the appellant breached the lease agreement as afore said which must have caused damages to the respondent, the trial court at page 144 of the record was satisfied, correctly so in our view, that the respondent was entitled to general 14

damages. Referring to section 73 of the Law of Contract Act, the trial court correctly found that the extent of compensation to be provided must be one that naturally arose from the breach. However, in assessing amount that it awarded as general damages, the trial court held that: "For the reasons stated above, I find the p la in tiff entitled to be paid general damages assessed a t 36.000.000/- per year for four years from September, 2015, when the contract expired and the company defaulted to hand back the house in a good and tenable condition....Thus the p la in tiff is awarded (a)generai damages to the tune o f Tshs 144.000.000/-." We agree with both learned counsel that assessment of damages is within the discretion of the trial court. Considering the rival submissions on the subject matter, we wondered whether there is, for this Court, room to interfere with the discretion exercised by the trial court in favour of the respondent, and for that matter, whether the discretion was exercised reasonably, judiciously, and on sound legal principles. We are aware that it is settled law that general damages are awarded based on reasons founded on 15

evidence. In that respect, we stated in Anthony Ngoo & Another v. Kitinda Kimaro [2015] TZCA 269 that: "The law is settled that genera! damages are awarded by the tria l Judge after consideration and deliberation on evidence on record able to ju stify the award. The judge has discretion in the award o f general damages. However, the Judge m ust assign reasons . " We similarly held in Cooper Motors Ltd Corporation Ltd v. Moshi/Arusha Occupational Health Services [1990] T.L.R. 96 that: "..[Bjefore the appellate court can properly intervene, it m ust be satisfied either that the judge, in assessing the damages, applied a wrong principle o f law (by taking into account some irrelevant factor or leaving out o f account some relevant one) or short o f this, that the am ount awarded is so inordinately low or inordinately high that it m ust be a wholly erroneous estim ate o f the damages . " 16

Consistent with the above statement of principles as to assessment of general damages, in Felician Muhandaki v. The Managing Director, Barclays Bank Tanzania Ltd [2019] TZCA 333, we translated the application of those principles into the following guidance: "Unlike in special damages where the court can arrive a t a particular figure basing on pleadings and evidence, in general damages where the claim is generally pleaded, what the court is required to do is to consider some factors from evidence upon which it will, using common sense and experience, decide what am ount is in the circum stances, appropriate . " Considering how the trial Judge arrived at the sum of 144,000,000/- and the considerations that he made at page 144 through 145, we think the reasonability of that assessment is wanting in many respects. It is clear to us that the assessment was not on reasons founded on evidence as the law requires. We say so because, what the trial court used in measuring and ascertaining the quantum of general damages was not founded on the evidence on record. We are mindful that the four-year lease agreement had 17

already expired and there was no evidence whatsoever that the breach forestalled execution of a subsequent four year-lease agreement that the respondent had entered, other than his mere refusal to take over the premises on reason that it was not consistent with the Barrick standard. The other aspect worth noting is the evidence regarding the respondent's conduct which resulted in the deadlock and which was for no apparent reason not considered in assessing damages but in awarding costs of the suit only. Besides the above, it is conspicuous that the assessment of general damages by the trial court did not consider whether the respondent took reasonable steps to mitigate damages following the breach. Our scrutiny left us in no doubt that there was no evidence from the respondent regarding any step that he took to mitigate damages and if not, why he could not in the circumstances do so. While the trial court had regard to the failure of the appellant to surrender the premises in a good and tenable condition as the same was without the three-phase electricity power supply, he did not take into account the absence of evidence from the respondent that he took any step to minimise damages that he sustained following the 18

breach. As rightly argued by Mr. Mchome, there is, for instance, no evidence as to why the respondent could not apply to TANESCO for reconnection of the electricity power supply to the house instead of keeping on waiting for the outcome of the case in which he claimed for damages. In respect of this line of reasoning, we may add that, it was not in the evidence of the respondent either, that making such application to TANESCO was not within his means. In African Highland Produce Ltd v. Kisorio [2001] 1EA 1, it was held that: "The guiding principle o f law in m itigation o f losses is as follows. It is the duty o f the P la in tiff to take a ll reasonable steps to m itigate the loss he has sustained consequent upon the wrongful act in respect o f which he sues, and he cannot claim as damages any sum which is due to his own neglect. The duty arises im m ediately a P la in tiff realises that an interest o f his has been injured by a breach o f contract or a tort, and he is then bound to act, as best he may, not only in his own interests but also in those o f the Defendant. He is, however, under no obligation to injure him self, his character, his business, or his property, to reduce the damages payable by the wrongdoer. He need not spend money to enable him to m inim ise the damages, or 19

em bark on dubious litigation. The question what is reasonable fo r a P la in tiff to do in m itigation o f his damages is not a question o f law, but one o f fact in the circum stances o f each particular case...." We are at this juncture of the view that, had the trial Judge considered the respondent's failure to take reasonable mitigation steps, he would not have awarded an inordinate sum of general damages as it did. In all, considering that the respondent did not prove special damages, the failure to take reasonable steps to mitigate damages immediately after the breach in September 2015, and the absence of evidence that there was already a subsequent four-year lease agreement which could not be executed because of the breach, we find reasons to interfere with the assessment and hence reasons to depart from the total amount of general damages awarded by the trial court. That said, we reduce the general damages awarded from TZS 144,000,000.00 to TZS 46,000,000. As the respondent is entitled to the said sum of general damages, we think there is no need for an order requiring the appellant to reconnect the electricity power supply to the house. However, the award of interest at the court's 20

rate of 7% on the decretal sum from the date of judgment to the date of full payment of the same remains undisturbed. In conclusion, we find merits and allow the appeal in all grounds to the extent herein above shown. In the circumstances, each party shall bear own costs. It is so ordered. DATED at TABORA this 9th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. J. MLACHA JUSTICE OF APPEAL The Judgment delivered this 11th day of May, 2026 in the presence of Mr. Waziri Mchome, learned counsel for the Appellant, Mr. Stephen Michael Kaijage, learned counsel for the Respondent by virtual Court, and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. 21