Julius Emmanuel Kinongu vs City Council of Dodoma & Another (Civil Appeal No. 640 of 2024) [2026] TZCA 316 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. J.A.. MASOUD. 3.A. And FELESHL J.AQ CIVIL APPEAL NO. 640 OF 2024 JULIUS EMMANUEL KINONGU.....................................................APPELLANT VERSUS THE CITY COUNCIL OF DODOMA ......................................... 1 st RESPONDENT ATTORNEY GENERAL,...........................................................2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dodoma) (MasabOti) dated the 24th day of November, 2023 in Land Case No. 17 of 2021 JUDGMENT OF THE COURT 16th February, & 18th March, 2026 FELESHI, J.A.: The appellant, Julius Emmanuel Kinongu, is challenging the decision of the High Court of Tanzania, Dodoma Sub-Registry (the trial court), which dismissed his suit against the City Council of Dodoma and the Attorney General, the 1st and 2n d respondents, respectively. In that suit, the appellant sued the respondents for breach of contract and sought the following reliefs: (i) specific performance, that is to allocate 1

him Plot No. 265, Block 27, Hazina area, Dodoma or, alternatively, special damages; (ii) TZS. 251,564,500:00 for destroyed goods; (iii) TZS. 144,000,000:00 for business losses; (iv) TZS. 500,000:00 for ongoing daily losses; (v) general damages; (vi) interest on the decretal sum; and (vii) costs. The facts giving rise to the case and ultimately to this appeal may briefly, be stated as follows: The appellant entered into a series of annual lease agreements with the 1st respondent, Dodoma City Council (formerly the Capital Development Authority-CDA), covering the period from 2012 to 2017. Under those agreements, the appellant was permitted to use an open space located near the Majengo roundabout for purposes of conducting his timber business. The leases were renewable annually. In the 2014 lease agreement, the parties incorporated a clause granting the appellant first priority in the allocation of a plot should the land use change and the area be surveyed into plots. Subsequently, the area was surveyed between 2014 and 2016. According to the 1st respondent, the survey resulted in the creation of four plots, namely Plot Nos. 261, 262, 263 and 264, Block 27, Hazina area, Dodoma. The appellant, however, contended that, the survey produced five plots, 2

namely Plot Nos. 261, 262, 263, 264 and 265, Block 27, Hazina area, Dodoma. The 1st respondent maintained that, the alleged Plot No. 265 remained designated as an open space ("OS"). The dispute between the parties emerged in 2017. This was due to a 30-day notice to demolish and remove his goods issued on 15th November, 2017 by the 1st respondent to the appellant. This notice was issued while the 2017 lease agreement was still subsisting, but the notice indicated that, the appellant was illegally occupying the place. The appellant objected to the notice and wrote a reply letter to the 1st respondent informing it that, he was legally occupying the place under a valid lease agreement. Notwithstanding that reply, on 16th February, 2018, employees of the 1st respondent demolished the premises. The appellant alleged that during the demolition his goods valued at TZS. 251,564,500:00 were destroyed and that he suffered business interruption losses amounting to TZS. 500,000:00 per day. This led to the institution of the suit as earlier indicated. In rebuttal, the respondents admitted the existence of the lease agreements but denied promising priority allocation. They maintained that, the 2017 agreement was lawfully terminated by issuing a notice of 3

termination in accordance with its terms. The respondents also disputed the losses and damages claimed by the appellant, putting him to strict proof. To substantiate his case, the appellant called five witnesses: Yona Jacob Mpilimbi (PW1), a neighbour who confirmed the existence of the business and the demolition; Paul Samwel (PW2), another neighbour who corroborated the lease and the eviction; Mbaraka Juma Madinda (PW3); the appellant himself (PW4); and his wife, Gerdina Alfonce Ibrahim (PW5). Their testimonies emphasized the existence of the lease agreement between the appellant and the 1st respondent, the priority clause in the 2014 agreement, the unlawful nature of the demolition notice and the demolition itself while the lease was still subsisting, and the financial losses suffered. The appellant also tendered twelve exhibits: Exhibit PI (2012 lease agreement); P2 and P3 (2013 and 2014 extension permits, with P3 containing the priority clause); P4 (2017 lease agreement); P5 (rent payment receipts); P6 (demolition notice); P7 (reply to the notice); P8 and P9 (2014 and 2015 registration certificates and exchequer receipts); P10 (TIN certificate); P l l (business licence); and P12 (survey plan copy showing four plots and the "OS" designation).

On the other hand, the defence called three witnesses: Michael Vicent Muhagama, a neighbour to the appellant's business (DW1); Stella Musa Komba, a land officer (DW2); and, John Steven Lugendo, an Environmental Health Officer (DW3). In substance, they testified that, the 2014 lease contained the priority clause and that the land was surveyed, but the plot claimed by the appellant remained an open space. They further testified that, the appellant was instead allocated Plot No. 262, Block 27, Hazina area, Dodoma and that there was no breach of contract, as the eviction and demolition were lawful. The defence did not tender any exhibits. In resolving the dispute between the parties, four issues were framed, namely: (i) whether there was an agreement between the parties; (ii) whether the 1st respondent breached the agreement(s); (iii) whether the appellant suffered damages as a result of the breach and, if so, to what extent; and (iv) what reliefs the parties were entitled to. Having considered the evidence of both sides, and in resolving the framed issues, the trial court found that, agreements did exist between the parties, with the priority clause being valid in the 2014 lease until July, 2017 but absent in the 2017 lease. The court further found that 5

there was no breach of contract because the demolition notice lawfully terminated the 2017 lease under clauses 9 and 10, which allowed either party to issue a 30-days termination notice for good cause, including urban planning needs. The court also held that, Plot No. 265 did not exist according to the survey plan (exhibit P12) and that, the appellant had failed to prove specific damages, as the claims lacked concrete evidence. However, the court granted partial relief by ordering the allocation of an alternative plot, Plot No. 262 in Block 27 Hazina, based on DW2,s testimony regarding the 1st respondent's willingness to allocate the same. In the final analysis, the suit was dismissed in its entirety without costs. Dissatisfied with that decision, the appellant preferred this appeal to this Court on seven grounds as follows:

1. The learned High Court Judge erred in law and fact in deciding that there was no evidence o f the existence o f the claim ed P lot No. 265, Block 27 Hazina, within Dodoma City.
2. The learned High Court Judge m isdirected h erself in not deciding that, the Appellant was entitled to rem ain in the land he has been using despite it being an Open Space. 6

• 3. The learned High Court Judge erred in iaw and fact in deciding that, the notice o f dem olition was a notice to term inating the lease agreem ent between the Appellant and the 1st Respondent

4. The learned High Court Judge erred in law and fact in holding that the dem olition done by the 1st Respondent to the prem ises occupied by the Appellant was not a breach o f contract.
5. The learned High Court Judge m isdirected h erself in deciding that there was no evidence fo r the dam ages the Appellant sought
6. The learned High Court Judge m isdirected herself in dism issing the su it whereas it had m erit
7. The learned High Court Judge erred in law in conducting the proceedings contrary to the law and procedure. At the hearing of the appeal, Mr. Elias Machibya, learned advocate, appeared for the appellant, while Ms. Jenipher Kaaya, learned Senior State Attorney, assisted by Ms. Neema Sarakikya, learned State Attorney, appeared for the respondents. The appellant had earlier filed written submissions in support of the appeal pursuant to rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). On the other hand, counsel for the respondents opted to make oral submissions after Mr.

Machibya made an oral clarification and abandoned the second ground of appeal, both under rule 106 (10) of the Rules. On the first ground, Mr. Machibya's main complaint was directed at the trial court's finding that, Plot No. 265, Block 27, Hazina area, Dodoma did not exist. He submitted that, the respondents' evidence that the disputed land remained an open space and that the appellant had instead been allocated Plot No. 262 constituted a departure from the respondents' pleadings. He argued that, the respondents had not pleaded such matters in their written statement of defence and that, the trial court therefore erred in relying upon that evidence. In support of that submission he referred us to a number of authorities including Mohamed Abood v. D.F.S Express Lines Ltd [2023] TZCA 57, The National Insurance Corporation and Another v. Sekulu Construction Company [1986] T.L.R 157 and Yara Tanzania Limited v. Ikuwo General Enterprises Limited [2022] TZCA 604, which reiterate the settled principle that, parties are bound by their pleadings and that, evidence which departs from the pleadings ought to be disregarded. Mr. Machibya further argued that, the trial court erred in admitting and relying upon exhibit P12, a survey plan showing only four plots,

white the appellant had intended to tender a survey plan showing five plots including Plot No. 265. According to counsel, the court relied on a document which had not been properly tendered. In support of this argument counsel referred us to authorities such as M.S. Sdv TRAnsami Limited v. M.S Ste Datco [2019] TZCA 565, Ismail Rashid v. Mariam Msati [2016] TZCA 786 and Japan International Cooperation Agency (JICA) v. Khaki Complex Limited [2006] TZCA 4, which underscore that courts should not rely on documents that have not been properly admitted in evidence. As to the 3rdground of appeal Mr. Machibya emphatically submitted that, the trial court erred in treating the notice of demolition as equivalent to a contractual notice of termination under the lease agreement. According to counsel, the notice was issued under the Urban Planning Act and alleged that, the appellant was conducting business illegally on an open space. It neither referred to the lease agreement nor expressed an intention to terminate it. Counsel therefore argued that, the demolition carried out by the respondents amounted to breach of contract. Amplifying the 4th ground of appeal, it was Mr. Machibya's brief submission that, the trial court erred in holding otherwise while it was 9

evident that, the 1st respondent demolition of the appellant's premisses was a breach of contract since the notice was unlawful and unfounded as the appellant lawfully occupied the premises under a valid lease. With regards to the 5th and 6th grounds of appeal Mr. Machibya contended that, the trial court sailed into an error when it found the appellant failed to prove his case that there was breach of contract and the appellant suffered damages. To him, the five witnesses called by the appellant and twelve exhibits proved the case at the standard required in civil cases as compared to the respondents who adduced evidence which was contradicting their pleaded case. He specifically faulted the trial court in finding that the damages were not proved while PW5 proved them. Amplifying the seventh ground of appeal, which essentially recapped the other grounds, Mr. Machibya contended that, the trial court proceedings were tainted by procedural irregularities. As an example, he pointed out that, the trial court erroneously endorsed exhibit P12, which contained four plots, instead of the one intended by the appellant's witness (PW4), which contained five plots, including Plot No. 265. 10

Mr. Machibya also contended that, the trial court committed a material irregularity by ordering the respondents to allocate the appellant Plot No. 262, Block 27 Hazina, a plot which had neither been pleaded nor prayed for by either party. He submitted that, no evidence regarding a promise to allocate that plot had been pleaded or canvassed at the trial. On the contrary, the respondents had consistently denied the existence of any promise or breach of contract altogether. He therefore questioned the rationale behind the respondents' willingness, or the court's direction, to allocate the appellant an alternative plot while at the same time disputing that any contractual obligation had been breached. He summed up that, the respondents' case was a total deviation from their pleadings, which warranted the trial court to disregard it. However, the trial court irregularly relied on their evidence, summed up Mr. Machibya and prayed that, the appeal be allowed, that this Court find the appellant had proved his case, and that all the reliefs sought, together with costs, be granted. In response, Ms. Kaaya adopted a somewhat different approach. She submitted that, the appeal ought to fail because the appellant had not discharged the burden of proving his allegations on a balance of probabilities. She emphasized that, the appellant was the party who 11

alleged the existence of Plot No. 265, Block 27, Hazina area, Dodoma and the breach of contract and that, the law placed upon him the burden of proving those allegations. Counsel maintained that, the respondents were under no obligation to prove anything until the appellant had first established a prim a facie case. In advancing that proposition, she relied on the decision of Paulina Samson Ndawavya v. Theresia Thomasi Madaha [2019] TZCA 453, which reiterates the long-established principle that, he who alleges must prove and that, the evidential burden does not shift until the party bearing the legal burden has adduced sufficient evidence. As to the issue whether the case was proved to the required standard regarding the occurrence of damages, she argued that, the appellant did not prove the damages claimed, which ought to have been specifically pleaded and strictly proved. In support of this stance, she cited the decision of Director, Moshi Municipal Council v. Stanlenard Mnesi & Another [2019] TZCA 85. Regarding the notice of demolition, Ms. Kaaya argued that the notice issued was sufficient. She contended that the respondents allowed the appellant more time before carrying out the demolition, as the demolition was effected after ninety (90) days, whereas clauses 9 12

and 10 of the lease agreement only required a thirty (30) days' notice. She further submitted that the agreement expressly provided that the party in breach of the contract was not entitled to claim any remedies arising from such breach. She further contended that, the appellant's own evidence showed that there had been developments on the area, which was contrary to the requirements of the agreement. According to her, the appellant was selling other items apart from timber, whereas the lease permitted only timber business. Ms. Kaaya also submitted that, the trial court properly admitted exhibit P12, which had been tendered by the appellant, and that its source was well founded and its existence was acknowledged by the respondents. The learned Senior State Attorney therefore prayed that the appeal be dismissed in its entirety. In rejoinder, Mr. Machibya strongly contended that, the notice failed to specify any of the alleged breaches of the contract. Instead, it merely stated that the appellant was conducting business illegally. He therefore urged that the appeal be allowed. 13

Having considered the submissions of learned counsel and carefully perused the record of appeal, we find it appropriate to begin with the legal grounds challenging procedural regularities, namely the 1st and 7th grounds, before addressing the factual issues. With respect to the latter, this Court, as a first appellate court, is entitled to re-evaluate the entire evidence on record and draw its own conclusions, while bearing in mind that the trial court enjoyed the advantage of observing the witnesses. See- Registered Trustees of Joy in the Harvest v. Hamza K. Sungura [2021] TZCA 139. In considering the 1st and 7th grounds of appeal together, we begin with the complaint regarding the admission of exhibit P12. Upon careful examination of the relevant portions of the record, we respectfully agree with Mr. Machibya that, although the learned trial Judge, in her ruling at pages 212 to 213 of the record of appeal, overruled the respondent's objection and admitted a copy of the sketch map filed by the appellant pursuant to his notice to produce dated 21st August, 2023, which appears at page 45 of the record of appeal and indicates five plots including Plot No. 265, Block 27, Hazina area, Dodoma, it later inadvertently endorsed a copy of a sketch map introduced by the respondent indicating four plots which had not been pleaded and was 14

already rejected by the trial court. The salient part of the trial court's ruling reads as follows: "...The fact that the defendant do not have the original o f the docum ent whose copy was served to them, does not make their copy which is not identical with the one required adm issible as that would be tantam ount to adjudging the copy produced by the p la in tiff as not authentic such decision cannot be made a t this stage...Under the prem ises, since the defendant has not produced the original document, le t th e co p y b e ad m itted . Should the defendants be in te re ste d in te n d e rin g th e ir co p y so that the authenticity o f the two documents can be determ ined by this court, they are a t liberty to produce the same upon follow ing the necessary procedures.... The objection is overruled an d th e co p y o f th e sk e tch m ap is a d m itte d a s e x h ib it P12. Its content is read o u t" [Emphasis added.] In view of the foregoing, we find, it was improper for the trial court, as rightly argued by Mr. Machibya, to base its findings on the existence of Plot No. 265, Block 27, Hazina area, Dodoma, on a copy of a sketch map which had neither been pleaded nor admitted in evidence, 15

arid which the court had in fact already rejected. We are unable to agree with Ms. Kaaya's submission that, the inadvertently endorsed exhibit P12 had a well-founded source. It is evident from the record that, after the respondents' objection was overruled, they did not heed the trial court's invitation to seek admission of their copy of the sketch map in accordance with the prescribed procedures. In the circumstances, we hereby expunge the endorsed exhibit P12 from the record. Consequently, and consistent with the trial court's own ruling, our determination regarding the existence of Plot No. 265, Block 27, Hazina Area, Dodoma shall proceed on the basis of the appellant's copy of the sketch map which was duly admitted in evidence, read over, and is found at page 45 of the record of appeal. The above settles the complaint against the trial court's finding on the existence of Plot No. 265, Block 27, Hazina Area, Dodoma. This is because, having admitted the appellant's sketch map appearing at page 45 of the record of appeal, and having directed the respondents, if they wished to contest it, to adduce evidence in accordance with the prescribed procedures, which they failed to do, it meant the existence of the disputed plot stood proved by the appellant's sketch map. The map 16

Itself indicates that, it was prepared in accordance with Registered Plan No. 47037 and approved for the purposes of the Land Registration Ordinance by the Director of Surveys and Mapping on 24th October, 2017. 1 Therefore, in view of the foregoing, we find that, in the absence of evidence challenging the authenticity or evidential value of the appellant's sketch map admitted by the trial court on 24th August, 2023, the learned trial Judge erred in holding that, there was no evidence establishing the existence of the claimed Plot No. 265, Block 27, Hazina area, Dodoma. We thus allow this limb of the first ground. I As regards the appellant's limb of complaint on the alleged breach of a priority promise to allocate the plot to the appellant, we find it appropriate to address this aspect conjointly with the impugned order of the trial court directing the first respondent to allocate Plot No. 362, Block 27, Hazina area, Dodoma, to the appellant. Concerning the irregularity of the said impugned trial court's order, we respectfully agree with Mr. Machibya that, the respondents had not pleaded that they had allocated such a plot to the appellant and, indeed, their pleadings expressly denied any promise to allocate him a plot at all. 17

For clarity purposes, we find it apt to quote, the parties' pleadings and evidence concerning this issue. The appellant's plaint pleaded under paragraph 4 and substantially reiterated in paragraph 7, that: "4. That, in the year 2012 the earlier 1st defendant predecessors, the defunct Capital Developm ent Authority (CDA) leased to the P la in tiff a piece o f land on a Vz yearly basis agreem ent renewable to start with, and then annually renewable up to 16th Ju ly 2014 w hen th e A g reem en t w as w ith o u t e n d b u t w ith a p ro m ise b y CDA to th e P la in tiff to b e g ra n te d th e P lo t in case o f su rv e y fo r th e p u rp o se o f issu e to in d iv id u a ls; which the piece o f land was however, an open space a t the tim e whereon the said piece o f land CDA allow ed the P la in tiff to construct tem porary buildings fo r tim ber sales businesses; o n ly to be su rve y e d la te r a n d th e P lo t to b e id e n tifie d a s P lo t N o. 2 6 5 B lo c k 2 7 H azin a in D odom a C ity . " [Emphasis added] In reply which formed paragraph 2 of the written statement of defence the respondents stated: "That the contents o f paragraph 4 o f the Plaint are disputed and the P la in tiff is put into strict

p ro o f thereof. The Respondents avers (sic) that ; th e P la in tiff's cla im th a t th e d e fu n ct CDA p ro m ise d h im a P lo t a fte r th e su rv e y o f an open sp ace is u n ju s tifia b le an d ju s t a m ere w ord. There is no way, to change use o f an open space to a Plot o f land because the said Open space was planned for that purpose. The P la in tiff cla im e d th e s a id open sp a ce w ill b e su rve y e d a n d b e id e n tifie d a s P lo t N o. 2 6 5 B lo c k 2 7 H azin a in D odom a C ity , th is is ju s t m ere w ord s to d e fe n d h im s e lf" [Emphasis added]. Also, the respondents denied the contents of paragraph 7 of the plaint, which bore the same import. However, notwithstanding the parties' pleadings, DW1, who introduced himself as the appellant's neighbour, testified that the appellant had been allocated Plot No. 262, while himself was allocated Plot No. 264. DW2, the 1st respondent's Planning Officer, also testified on this issue. In her evidence, she identified exhibits PI, P2, P3 and P4, namely the lease agreements and the permit. She further stated that, under the agreements, tenants were given priority in the allocation of plots after the survey was conducted, and that the appellant was accordingly allocated Plot No. 262, Block 27, Hazina area, Dodoma. 19

It is this evidence the trial court acted on in deciding the issue of whether there was a change of land use and if yes, whether the first defendant lived up to its contractual obligations. The first issue was affirmatively answered that, there was change of land use between 2014 and 2016 in the time when lease agreement was subsisting. However, on the 2n d issue the trial court concluded that: "PW4 stated that, the su it prem ise and its surrounding area were surveyed and partitioned into five p lots identified as P lot num ber 261, 262, 263, 264 and 265 Block 27 Hazina, the disputed one being Plot 265 Block 27 Hazina. DW2 on the other hand, stated that indeed there was a survey and partition o f plots but the same did not involve the su it land as it has so fa r rem ained an open space. She deponed fu rth e r th a t, a lte r th e a re a b e in g su rve ye d an d p a rtitio n e d , it p ro d u ce d o n ly fo u r p lo ts id e n tifie d a s P lo t 261, 262, 2 6 3 an d 264. The p a rc e l o f la n d a t w hich th e p la in tiffs b u sin e ss w as p re m ise d p ro d u ce d no p lo t a s it h a s re m a in e d a s an open sp ace. H ence, th e cla im e d P lo t N o. 2 6 5 is n o n -e x iste n t. S h e depon ed fu rth e r th a t, m uch a s th e s u it la n d d id n o t p ro d u ce a p lo t, th e p la in tiff w as 20

a llo c a te d P lo t N o. 2 6 2 a n d a d v ise d to m ove h is b u sin e ss to th e s a id p lo t so th a t th e open sp ace can rem ain va can t and that) although the procedures for vesting into the appellant the right o f occupancy in respect o f this p lo t are s till underway the p la in tiff has moved h is business to the said p lo t where he now operates from. DW 1 a lso co rro b o ra te d th is s to ry w hen h e to ld th e co u rt th a t th e p la in tiff w as a llo c a te d P lo t 2 6 2 a n d th a t he c u rre n tly o p e ra te s th ere. A s none o f th ese tw o w itn e sse s w ere co n tro v e rte d in th e ir d isp o sitio n th a t, th e p la in tiff c u rre n tly ru n s a b u sin e ss in P lo t 262, it im p lie s th a t th e ir te stim o n y on th is fa c t is tru e ." [Emphasis supplied]. It is an established principle of law that, the parties in civil case are bound by their own pleadings, see the authorities cited by the appellant's counsel in Mohamed Abood (supra), The National Insurance Corporation and Another (supra), and Yara Tanzania Limited (supra). See also- Makori Wassaga v. Joshua Mwaikambo & Another [1987] T.L.R. 88 where this Court said: "A party is bound by his pleadings and can only succeed according to what he has averred in his 21

p lain t and proved in evidence; hence he is not allow ed to set up a new case." In law, pleadings include the plaint and the written statement of defence. Not only that, but courts are equally bound by what the parties have pleaded in order to avert the consideration of extraneous matters. See- Simba Papers Converters Limited v. Packaging & Stationery Manufacturers Limited & Another [2023] TZCA 17273. It is also a settled principle that, courts should not base their decisions on matters falling outside the pleadings unless such pleadings have been duly amended. In the present matter, the trial court found that there was evidence from the respondents regarding the allocation of Plot No. 262 to the appellant and proceeded to grant the relief which had neither been sought by the parties nor was consistent with the respondents' own pleadings. This amounted to a deviation from the above general rule. Consequently, the decision was erroneous, and we accordingly reverse it. Turning to the appellant's complaint on the alleged breach of a priority promise for him being allocated Plot No. 265, Block 27, Hazina area, Dodoma, which, unlike the learned trial Judge we found existed, 22

we are inclined to the submission made by the learned Senior State Attorney that, the burden of proof rested squarely upon the appellant. In Paulina Samson Ndawavya (supra), the Court emphasized that: "...the b u rd en o f p ro v in g a fa c t re s ts on th e p a rty w ho s u b s ta n tia lly a sse rts th e a ffirm a tiv e o f th e issu e a n d n o t upon th e p a rty w ho d e n ie s it; fo r n e g a tiv e is u su a lly in ca p a b le o f p ro o f It is an ancient rule founded on consideration o f good sense and should not be departed from w ithout strong reason.... U ntil such burden discharged the other party is not required to be called to prove h is case. The C o u rt h as to exam in e a s to w h e th e r th e p e rso n upon w hom th e b u rd en lie s h a s been a b le to d isch a rg e h is burden. U n til he a rriv e s a t su ch a co n clu sio n , he ca n n o t p ro ce e d on th e b a sis o f w eakness o f th e o th e rp a rty .../'[ Emphasis supplied]. In the present case, the respondents, through DW1 and DW2, maintained that, the parcel of land leased to the appellant by the first respondent, which, in line with our findings above, was Plot No. 265, Block 27, Hazina area, Dodoma, was not among the plots allocated as happened to Plot Nos. 261, 262, 263, and 264 within the same block 23

and area. They further testified that, the appellant subsequently relocated his business to Plot No. 262, Block 27, Hazina area, Dodoma. In these circumstances, the burden of proof was upon the appellant, who alleged that the first respondent had breached a priority promise to allocate him the said plot. Having failed to discharge that burden, we find that the appellant cannot successfully fault the trial court for declining to accept his assertions, particularly in the absence of evidence demonstrating that the disputed plot had been allocated to another person. We accordingly find no merit in this complaint and dismiss it. Coming to the 3rd, 4th, 5th, and 6th grounds of appeal assailing the High Court's findings about the notice of demolition, whether the demolition carried out by the respondents constituted a breach of the lease agreement, and whether the appellant proved his case. At the first instance, we entirely concur with the trial court, and the learned Senior State Attorney and the appellant's counsel that, under clause 9, the parties agreed that the agreement will become inoperative and will naturally terminate following the change -of land use plan whereas clause 10 conferred each party an unimpeded liberty to terminate the agreement at any time upon issuing a 30 days' notice to the other party. 24

Definitely, the learned trial Judge well captured the law that, a party who freely enters into a contract is bound by the terms of such contract save where the contract so entered is voidable for being contrary to the law and public policy, or where the party's consent was obtained out of coercion, undue influence, fraud or misrepresentation as per the dictates of section 19 (1) of the Law of Contract Act, Chapter 345. Also, numerous authorities have observed to that effect, such as: Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288; Unilever Tanzania Ltd v. Benedict Mkasa trading as BEMA Enterprises [2009] TZCA 24; Philipo Joseph Lukonde v. Faraji Ally Saidi [2021] TZCA 1779 and Simon Kichele Chacha v. Aveline M. Kilawe, [2021] TZCA 43. Nevertheless, we find ourselves unable to agree with the trial court's conclusion that, the demolition notice effectively terminated the agreement pursuant to clauses 9 and 10 of the lease. We think that, had the learned trial Judge well captured the parties’ agreement under clauses 9 and 10, vis-a-vis the notice of demolition, would not have concluded so. We shall demonstrate. While the parties agreed in these terms: 25

"9, Kwamba, ikihitajika, kwa sababu zozote , kubadili m atum izi ya eneo husika au eneo husika kuhitajika kusitisha huduma zinazotolewa kwa muda maalumu au moja kwa moja, mkataba huu utafikia mwisho na pande zote mb'Hi zitafungw a na majukumu yaliyowekwa na mkataba huu bila upande wowote kutakiwa kulipa fid ia ." 10. KWAMBA, upande wowote ambao kwa sababu yoyote ya m singi hautakuwa tayari kuendeiea na mkataba huu unaweza kutoa notisi ya siku thelathini (30) kwa upande m wingine kuonesha nia yake ya kusitisha mkataba. Ikiw a sababu ya kuvunjika kwa mkataba n i mpangajt kukiuka m asharti ya mkataba > mkataba utakuwa um efikia m wisho." The said notice of demolition, which was a letter by the 1st respondent to the appellant dated 15th November, 2017 stated that: "YAH : IL A N I YA KUBO M O A BANDA NA KUO NDO A M B A O ENEO LA W AZI H AZIN A 2 7 M AN ISPA A YA DODOMA Husika na somo hiio hapo juu. Ukaguzi uliofanywa na Afisa M kaguzi Majengo wa Haim ashauri ya Manispaa ya Dodoma tarehe 06/11/2017 um ebaini kuwa unaendefea kufanya 26

biashara ya mbao kwenye eneo la w azi (Open Space) kinyum e na taratibu za mipango m iji. Eneo hilo kwa sasa Hnahitajika kutum ika kwa jam ii. Kwa m ujibu wa kifungu 29 (i) na kifungu 74 (2) cha sheria ya mipango m iji namba 8 ya mwaka 2007 pam oja na kanuni ya 124 (i) (a) mpaka (c) ya Serikali za M itaa (Local Government Urban Authorities Developm ent Control) Regulations GN. 242 ya 2008 unapewa ila n i ya siku thelathini (30) kuanzia tarehe 15/11/2017 uwe umebomoa ujenzi wa banda na kuondoa mbao zilizopo kwenye eneo hilo. Usipotekeieza agizo hilo ndani ya siku ulizopewa, Halm ashauri ya Manispaa italazim ika kukuchukulia hatua za kisheria ikiwem o ya kubomoa banda na kuondoa mbao na utatakiwa kulipa gharama za ubomoaji, uondoshaji na utunzaji wa mbao utakaofanyika." A careful reading of the notice, as plain as it is, shows that it was issued following an inspection by the 1st respondent's Buildings Inspector. The notice reveals further that, it was issued pursuant to provisions of the Urban Planning Act and the Local Government (Urban Authorities Development Control) Regulations. The notice alleged that 27

the appellant was conducting business on an open space contrary to planning requirements. It did not refer to the lease agreement between the parties, nor did it express an intention to terminate that agreement in accordance with its terms, nor for the appellant's breach of the terms as suggested by the learned Senior State Attorney that the appellant erected a permanent structure and was doing other business apart from selling timbers as the lease specified. The notice, therefore, cannot reasonably be construed as a contractual notice of termination. Conversely, the parties were at one in their pleadings and evidence that, the lease was subsisting as at 30th June, 2018. That being the case, at the time the notice was issued, the lease agreement between the parties was still subsisting. By issuing the demolition notice and subsequently demolishing the appellant's premises without first terminating the agreement in accordance with its terms, the respondents acted in a manner inconsistent with their contractual relationship. In our view, that conduct amounted to breach of contract. Having reached that conclusion, we must consider the question of damages. The appellant claimed substantial sums as compensation for destroyed goods and business losses. According to Mr. Machibya, the appellant proved damages he suffered as a result of the respondents’ 28

breach of contract by demolishing the premises. The law on this point is well settled. Special damages must not only be specifically pleaded but must also be strictly proved. This principle has been consistently affirmed by this Court in many decisions, including in Bamprass Star Service Station Ltd. v. Mrs. Fatuma Mwale [2000] TLR 390 and NBC Holding Corporation v. Hamson Erasto Mrecha [2002] TLR 71. In the instant matter, upon a careful scrutiny of the evidence tendered by the appellant, particularly the testimonies of PW4 and PW5, we are unable to conclude that the alleged losses were proved with the degree of certainty required by law. Their evidence was contradictory, and the documents they relied upon related to business transactions conducted several years earlier. These documents were not shown to correspond with the losses allegedly suffered at the time of the demolition, nor were they shown to relate to the appellant. In that regard, we respectfully agree with the trial court that, the appellant failed to strictly prove the special damages claimed. Nevertheless, the fact remains that the respondents breached the lease agreement by demolishing the appellant's premises based on improper notice, while the agreement was still subsisting. The law does not permit a proven wrong to remain without a remedy. The well-known 29

maxim u b iju s ib i rem edium , that is, where there is a right there is a remedy applies with full force in such circumstances. This Court has previously invoked that principle in cases such as Esther Kimbulu & Others v. Piganio Mwita [2024] TZCA 314. It is a principle that, a court cannot leave the innocent party without redress simply because special damages are not strictly proved in every detail. We observed this in Isaka Commercial Agency (T) Ltd v. Pangea Minerals Ltd [2024] TZCA 357 where general damages were awarded once breach of legal duty had been established even though special damages had not been strictly proved. We are, therefore, satisfied that the appellant is entitled to general damages for breach of contract by the first respondent. In the result, this appeal partly succeeds and partly fails. It is allowed only to the extent that: first, the order of the trial court directing the first respondent to allocate Plot No. 262 to the appellant is hereby vacated; secondly, the appellant proved the existence of Plot No. 265, Block 27, Hazina area, Dodoma; and thirdly, the respondents breached the lease agreement by issuing and acting upon an irregular demolition notice while the contract was still subsisting. Consequently, taking into account the distress and inconvenience suffered by the 30

maxim u b i ju s ib i rem edium , that is, where there is a right there is a remedy applies with full force in such circumstances. This Court has previously invoked that principle in cases such as Esther Kimbulu & Others v. Piganio Mwita [2024] TZCA 314. It is a principle that, a court cannot leave the innocent party without redress simply because special damages are not strictly proved in every detail. We observed this in Isaka Commercial Agency (T) Ltd v. Pangea Minerals Ltd [2024] TZCA 357 where general damages were awarded once breach of legal duty had been established even though special damages had not been strictly proved. We are, therefore, satisfied that the appellant is entitled to general damages for breach of contract by the first respondent. In the result, this appeal partly succeeds and partly fails. It is allowed only to the extent that: first, the order of the trial court directing the first respondent to allocate Plot No. 262 to the appellant is hereby vacated; secondly, the appellant proved the existence of Plot No. 265, Block 27, Hazina area, Dodoma; and thirdly, the respondents breached the lease agreement by issuing and acting upon an irregular demolition notice while the contract was still subsisting. Consequently, taking into account the distress and inconvenience suffered by the 30

appellant as a result of that breach, he is awarded general damages assessed at TZS 20,000,000/= (Tanzania Shillings Twenty Million only). The remainder of the appeal is dismissed. Each party shall bear its own costs. DATED at DODOMA this 17th day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 18th day of March, 2026 in the presence of Mr. Elias Machibya, learned counsel for the Appellant and Ms. Jenipher Kaaya, learned Senior State Attorney for the Respondent, via virtual Court, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 31