Frank Onesmo vs Charles Samwel Mbega (Land Case Appeal No. 7 of 2014) [2014] TZCA 304 (18 November 2014)

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT TABORA LAND CASE APPEAL NO. 7 OF 2014 (From the Decision of the District Land and Housing Tribunal of SHINYANGA District at SHINYANGA in Land Application NO. 72 of 2013) FRANK ONESMO..................................................... APPLICANT VERSUS CHARLES SAMWEL MBWEGA ............................... RESPONDENT JUDGMENT 29th Sept & 18th Nov, 2014 RUMANYIKA. J j > Though unsuccessfully persued in the DLHT- Shinyanga it began as claim by the Appellant for shs. 50,000,000/=. Being general damages for breach of lease agreement, appellant be declared a lawful tenant and Respondent be restrained from interfering with the Appellant's peaceful enjoyment of the disputed premises for another six months. Among other reliefs. Not happy with the judgment and decree of 18/02/2014. Here 4 ' the appellant is. l

Messrs Sylivester Kakobe and Muna appear for the Appellant and Respondent respectively. In order to appreciate its facts, hence the evidence on records, it will not be disputed that the Appellant and one Peter Charles Mchicha, (not a party to the case) had executed a lease agreement on the room, plot No. 56 Block D Bukoba/Market Street - Kahama Township (the disputed premises). But then the said Peter Charles Mchicha (a stranger by any standards) sold it to Charles Samwel Mbwega (Respondent herein). The Appellant wouldn't like to see the purchaser taking over. If anything, the latter pay damages but also hold on for the next 6 months. Whether or not the said lease agreement was oral, and when exactly it elapses it is immaterial under the circumstances. The 7 grounds of appeal may boil down to only 5 of them as under:

1. Error in law and in fact by the trial chair. Holding that the Appellant had no locus standi.

2. Error in law and in fact by the trial chair. Having held that the parties herein were not of tenant and Land lord relationship.

3. The trial chair having been overwhelmed by assessors' opinion. Whereby making the decision not supported by law.

4. The trial chair just ignoring the evidence on records.

5. The trial chair having relied on hearsay evidence of DW2 DW3 and DW4 At the hearing of this appeal both learned counsel made useful oral submissions. Mr. Kakobe averred in a nutshell that having purchased the premises, the Respondent should have taken over all the assets and liabilities (section 95 of the Land Act, 1999). That the Appellant was a two (2) year old tenant thereof (exhibit PI). Whereby the Respondent was duty bound to search diligently with a view to establishing any existent 3rd party interests prio. That by accepting hearsay evidence of Dw2, Dw3 and that of Dw4, that the material lease agreement never exceeded 31st May 2013 was in ferror. As exhibit PI was self explanatory. That that one not disputed, the Respondent should have paid him for the four (4) bales of textiles got lost as the Respondent took over the disputed premises. On his part, Mr. Muna submitted that the actual lease agreement lapsed on 31.05.2013. Then the Appellant's assistant removed the articles from therein on or by 3/6/2013. On pretence of renovations. That anything more was, as the DLHT rightly held, only manufactured. If anything, the Appellant V should have joined Peter Charles Mchicha (the seller) to the case. The two were no longer tenant and Land lord. After all there had been no written contracts ever. It was always oral. 3

That admission of exhibit PI in evidence not withstanding, only the weight to be attached to it counts. That evidence of Dw2, Dw3 and Dw4 (co - tenants) was direct. Having observed that in fact nothing was in the room at the time the Respondent took over the premises. Leave alone evidence that contracts were always oral. The Appellant never proved existence of the said four (4) bales of clothes. It being by ledger or such other records. A businessman of his category was expected of. That not only the attesting officer (Jacob M. Somi) didn't testify in court but also, he never indicated date he attested it (the lease agreement). The trial chair was justified not agreeing with the lay members. Provided that he had given reasons as he did, not to. On this one Mr. Muna cited the case of Usi Athuman Matu V R (1988) TLR 78 (CA). That the Appellant should not have quantified the shs 58.omillion. It was only dependant of court discretion. After ali there was no evidential proof of one having suffered any damage. Stressed M. Muna. Now as it stood correctly in my opinion at the trial, but in a nutshell, the issue is whether the Appellant had good cause of action against the Respondent. On this one, I am inclined not to fault the learned trial chair. In fact the Respondent was if anything, a stranger to the lease agreement. Nor was he sued as representative. Very unfortunately the Appellant never 4

attempted to join the Land lord (Peter Charles Mchicha) to the case. Reasons not to could be known to himself (Appellant). As said, the Respondent having duly purchased the disputed premises, he remains a bonafide purchaser until the Appellant proves it to the contrary. This court and a court bellow were not availed with the material sale agreement. With a view to seeing whether terms and conditions thereof reflected purchaser (Respondent) taking both assets and liabilities (any existing tenancies inclusive). I think that unless the sale agreements expressly have it to the contrary and parties covenant as such, it is always presumptive that by executing it, purchasers assume and take over only the assets. Not both assets and liabilities. Ground No. 2 dismissed. Even assuming that the lease agreement was to elapse on 31.12.2013 not 31.05.2013, as the then Land lord Vendor (Pw2) conceded, and now that he had identified his enemy, the Appellant should have claimed refund of the rent paid in advance (if any) from the very Pw2. Not from the stranger (Respondent). After all the evidence on lease agreement expiring on 31.12.2013 is both doubted and fishy for two (2) main reasons: one; the attesting officer does not state the date. Two: the rent paid covers a period of two years. While simple arthmetics tell it was only a year! 5

As said, it is also evident that on 3/6/2013, the Appellant had started removing articles from the disputed room. Now was it really for him to doing some renovations or giving vacant possession for the Respondent to take over? The trial chair answers the question very clearly and right. Not only date and action more or less coincide with the said 31.05.2013 (end of lease agreement) but also the Appellant should not have made renovations not approved by the Respondent. Much as the latter had taken over the premises. As once this was done, no more property of the Appellant may have been left behind. If anything, it was incumbent upon the Appellant to prove it by evidence, that really had left the bales behind. Loss could be four or more bales of textiles yes! But there was as said, no proof. Leave alone reasonable and probable proof. Mr. Muna argued this point very precisely in my considered view. As such there was nothing in totalily to prevent the learned chair from agreeing with the lay members. Ground No. 3 dismissed. And so are grounds 4 and 5 of appeal. All said, not only the Appellant sued a wrong person (no good cause of action) but also, he never proved loss. Leave alone proof on the balance of probabilities of his claims against the Respondent. Decision of the DLHT upheld. Appeal dismissed with costs here and at the DLHT. Ordered accordingly. 6

R/A explained. S.M. RUMANYIKA JUDGE 16 / 11/2014 Delivered under my hand and seal of the court in chambers. This 18/11/2014. In the presence of Mr. Musyani for Mr. Kakobe. S.M.RUMANYIKA JUDGE 18 / 11/2014 7