Lawrence Magesa T/A Jopen Pharmacy vs Fatuma Omary and Another (Civil Appeal No. 333 of 2019) [2022] TZCA 3048 (5 October 2022)

LAWRENCE MAGESA T/A JOPEN PHARMACY v. FATUMA OMARY AND ANOTHER COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KWARIKO, KEREFU AND MAIGE, JJ. A) CIVIL APPEAL NO. 333 OF 2019 (From the judgment and decree of the High Court of Tanzania Land Division at Dar es Salaam, dated 11 December, 2018 in Land Case No. 301 of 2015) Civil practice and procedure- appeal- power of the appeal court- whether the first appeal court has power to review the evidence on record. Civil practice and procedure- law of evidence- issue of fraud I civil case- whether the standard of proof of allegation of fraud is on balance of probability or beyond that. Civil practice and procedure- law of evidence- burden of proof- whether burden of prove shift due to the weakness in opposite side case. Land Law-lease agreement – notice of eviction- whether upon expire of the lease agreement a tenant is entitled to be issued with notice of eviction. This appeal arose from a tenancy dispute between the appellant, who was the tenant, and the 1st respondent, the landlord, concerning a property located at House No. BG/KW/30 in Buguruni, Ilala District, Dar es Salaam. The parties initially executed a two-year tenancy agreement in February 2011 at a monthly rent of TZS 400,000, which was subsequently renewed for one-year periods in 2013 and 2014, with a slight increase in rent to TZS 410,000 in the last renewal. The appellant alleged that although the 2014 lease agreement was signed by the

parties on 1 February 2014, the 1st respondent took it to her advocate and returned it on 29 January 2015 with an alteration introducing a new clause requiring the appellant to vacate the premises upon expiry to allow for renovations. Following the expiration of the agreement, the 1st respondent engaged the 2nd respondent, who issued a 14-day notice for the appellant to vacate the premises. On 6 March 2015, the respondents, together with others, allegedly entered the property and removed the appellant’s belongings. The appellant then instituted Land Case No. 301 of 2015, which was decided in favor of the respondents. Dissatisfied with the decision, the appellant filed the present appeal. Held: (i) The Court held that it is entitled to review the evidence on record to satisfy itself whether the trial court’s findings were correct, in accordance with Rule 36(1) of the Rules. It emphasized that the burden of proof for allegations of fraud in civil cases is higher than the ordinary balance of probabilities applied in civil matters. In this appeal, although the appellant alleged that the first respondent committed fraud by altering and adding a clause to the lease agreement, he failed to discharge his duty of proving those allegations. (ii) The Court reiterated the well-established principle under section 110 of the Evidence Act that the party who alleges a fact carries the burden of proof, and that the burden never shifts to the opposing party until it is discharged by the one on whom it lies. While the Court accepted that the appellant claimed to have had no prior notice, it concluded that from 2 February 2015, he was a trespasser in illegal occupation of the premises and was therefore not entitled to any notice before eviction.

The Appeal was dismissed. Cases referred to: (i) Hemmings & Wife v. Stroke Poges Golf Club [1920] 1 K.B. 720 (ii) Leopold Mutembei v. Principal Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development & Another, Civil Appeal No. 57 of 2017 (unreported). (iii) Jamal A. Tamim v. Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012, (unreported). (iv) Ratilal Gordhanbhai Patel v. Lalji Makanji [1957] E.A. 314 at 316. (v) Omary Yusuph v. Rahma Ahmed Abdulkadr [1987] T.L.R. 169. (vi) Princess Nadia (1998) Ltd v. Remency Shikusiry Tarimo, Civil Appeal No. 242 of 2018 (unreported). Mr. Deogratius Mwarabu , learned advocate for Appellant. Mr. Yahya Njama, learned advocate for Respondents.