Tanganyika Farmers Association Limited vs Martin Nashokigwa (DC Civil Appeal No. 35 of 1997) [1999] TZHC 405 (8 July 1999)

I' ';. Poi~-~~ ,-_; IN THE HIGH COURT OF Ti.1.NZ.:UITA .J . (DC) CIVIL liPPE,.u,;. ·No .. 35 'OF .1997 (From the .:decision of .. the District Court of . ,t. · Tulbeya at .)Yibeya in Civil .Case No., 61 o:f- i:99.6) T.11NG.ANYIK..\ FiR'lERS J;SSOCI.ATION:· Lir.[!TEDo ....... ilPPELL,.NT VERSUS . 'LRTIN NASHOKIGW1L ••••••• ~ ~ · ......... ~ •• ~ ••••••• RESPONDENT JUDGElVlEl'l'T :.-•· . '' . ' .. ·· .-.The a,pellaht T.FA. (Tarig:anyika FnrmGrs ..:ssociation· Ltd) ... \ ·thrdugh its advocate the learned Mr., Nbise has challenge.,d the decision of the,-..District Court· of Tu'.Ibeya in which the respondent Utarti;;, ·'Nashoki_gwa won part _.of· his countercl,dm whereas the ' appellant's entire main claims. in ts .. plaiJ;i._t we·re dismissed .. • ,: t" The m&,in claims of tho appellant which. were dismissed by . . ••,· the Distriqt Qourt relate·d dem·ands for vacant possessioP, on Plot _.NO:",t' ,• 672 Block r,,: Fe.rest Jirea of a. house in Mbeya r,'.J:unicipaltty- 9 con1pensatit>r..'

. , l '/ . of damascs of shs.·25,000/= n1 ... : i:)C:.:e.'b;,t .'J:.F.,:1, .. to t.he .lendJ.ora. i,:~ . ! ·.· ... · .,- Er. Char le s Sawala for 8 months t-Ota-1 slls:. 200 s 000/== during the " period the rosponden·t refu,sed to vacate tl1e :house despite his ,., . . '• having bceri ·LerHl..i.H~Li:::u Irom. employment since 5/1/96 upto ··23rd ... september, 1996. The apyellent as plaintiff further clairile:9- •. ·:- · / their ., .. general darr.ogas of shs,,2,000,000 = suffered for._}/': .. nop use of ·the . '·

house for 8 months and the costs of the suit. The first relief claimed. vms no loneer in issue for the respondent alrendy, vacated the"<:aui t pre mis.es on 23/9/96 i .e • one >. month:aftrr this suit was .fil0d in court on, 27/7/96. .' . - '·. 1· ·.r '.'_ - . The res1)ondent .lri':hls testimony in ·court ·as DWl alleged that he fface.ted the suit · premises in Tuly 199& 1.lJhat cari' t be true beccuse if that were the case he should haVB stated so in the W.S.D. In the 4th para of tho W.,S.D. he statci ... that he had a right to con.inue . :.-: -·· -·. living in that house be c2,use the r.E.Eff.1-a.rlden:t hc:d not as yet been repatriated to his place of domicile in Twnbi - Tabora. Havig .- .. __ .1. already vacated. the· suit premises by the time the trial began on · · 25/3/97 the respondept cou.ldn' t evacuate from the suit premises anymore. The learned Mr. /Ibiso .Advocate has challengP.d the decision of the District Court which dismissed the claim of damages of shs. 2, "tOO/= per month rent paid to the land lord while the ·· · respondent was staying in that house. This holding of the District Court related the' first issue framed on whether the c:•.\· . TC>YJ.cls:,,11 t was re quired to hand- . _ ()VO.:r vaan+. ·· 1.J ()G fle fl8i (H) 0,f' the · house ' to the plnintif:t' upon termination of his employment on 8/1/96. · ,'' .. ', . . The trial court accepted the respondent's defence that there· ... -· was no tenancy agreement betvveen the a_rJpellant and the respondent _ rogading the, respondent's stay in the house in d.isp.ute and that'. para 12 of the E.xh.. . . P2 was not complied with ~:q.d ·that.no· house was \ proved to have been given to the respondent sin.ce they continued ... /3

• :.-,•· · .. ... . t" • 1 .·,:, ,..: '· ... . .. ··• · -'· paying him the rent ass'istonce allowance,.·· ; ("", ':: \ .J••· defence wi 1,nesses I hcve gone· through th0 entire evidence of the prosecution and .... • I i:i-5!-/PWl l1nton:y Lyi!Ilo the /1d111inistrati ve ··~nd Personnel Manager, PW2 l • ~ • . '· Elieza ~.Ili17lbila.the--Br$nch· frmager of ToE.i •• ]:Ibeya Branch and D'v71 Martih Nshokigwa the .respondent himself~ From thei'r evidence nd pleadi'ngs there was .. o di:spute that the rcspondent<t'k;ed in the . - . ' p,ouse· of Charles Sawala which ::•·.- PW2 ge.vo to the respondent on humanit8rian grounds because he was stayin8.:.i.n a gest house since .. ·. -~ he. re.ported in IVibeya in .iiugust 1995 from ..:\rushao :From the testimony of P'.Nl & .. :PV/.2 T~F.A. was the tenant of the house on plot Noo672 Block M paying a ret of shs()25rOOO/= per .month to the landlord for the entire period of 8 months while the respondent a t:Errni.inated a1)pe l.,lant employee· of the ·. y-:r;:... w_as stqying in it : Tho· respondent contested that. he i;:iaid the ren-:t; ··directly to the. lan'.a1o+4 bo cause he was paid his rent nllovm'i1ce presumably- so that h.-. could · 11 fend for ·himself 0 ' . ;·:. as reg'ir'd.s;;;payment. of tlio: '.aa1j1e. Tent'-- .. _; ... • .. The oppe lla:p.t pro.ve·d. his allegat,.ir on· thf'.t he was the ;:tern·· ·,a.fit': I •. of the house and. -that:· the re sporj.dent was J:isre .i:y. a ubtenant of the appellant. that e ff0 ct 1..1s. -:.;Le o::..fi. c2 :".' \vhc rrnp:ed tq assist the re~spondcnt .j •. t6 shift into; that .. house on 3/11/95 and th8t he p:aid the rent of shs& 2§,'000/=. to the landlord until 23rd September 1996 duri~ the period when the respondent continued st0yin3 in that housec. It should have been ideal if the appellant would have produced the cash vouchers ho used to pay the landlord the monthly rent of shs~25jOOO/::,

I' : i- at or/least they should hove calle·a. ·the_ ~andlord as··a 'witness to confirm .if he was -paid __ the shs.'25,00Q/= rent. But, this being a civil Suit vvhich ne_e-d proof only' 'mn· a· .b_alance of probability

the sworn testimonies of PW2 afid··J?WJ, from l,rusha headquarters ~ .. ~ - of T.F • ..t. that indeed the ·shs·.25,_000/= waspaid to the landlord suffices to prove thii. wlairn'. Fpr the month of November, 1995~ the respondent was paid both.the house· allowance of shs. 4, 500/= in as well as he was giveμ the house to li vc; it · 0 free of charge. 0 grcnu1ds. on humani-:torian. 1 For December 1995 PWl testified .that no rent allowance was .p'aid to the respondent dUB to the fscili ty :of this house in whic~. he was living fre~ of charge vihile T.F.A. paid to ' ' the landlord shs. 25,000/= p~r- month. __ _ :'!14: _ -.After he was terminated from emplo,ment the respondent was duty bound to vacate the house as per para 12 of the contract of service which provided that: I quote:- "12. TENl1NCY .AGREEMENT In the event of the Cor:1pany making ave.ilable to tho employee any of its staff accomodation, the en1ployee shall i'f and when called upon so to do - enter a tonancy ag·reement . , ·l in form specified by the 0om})i:!11.Y providing- for the immediate surrender to the C0i:1pany of such accomodation in the•: event of cessation or termination of emp,:I..oyment herem1.cler • .U This clause did not exclude an oral agreeuent of ·tenancy in line with clause ·12 cited above. PW2 ellowed the respondent to stay in that house to relieve . him from his problem of staying in a guest house while T. -F. ii • . . • . /5 .:.1 ' ' ,, J..

' r '• • I ' ""' ., attached to the W.J:3.D. wlicll; thoy_gh not produced-- in court as .. I. r • ' . e,xhiai ' formed part or the,:,:,:-eadings of the ·respondent. ·rn this ·neither . . letter v7hich·-wa~) ·-:.&ddr$ __ sGd nof coped_,to· the i-esponde·nt,· but has been brought_ to the· cou.rt by the responclcn:it (which means·.he knew of.its' COrft-et.s. and_ he:d ac.cess to it)' the' ap_:,ellRnt.'··•y ! . • . ' 5/2/96 Gffcrod a· motor vehicle to repatriito- h.i-m __ and his· ·f-uggge from Mbey':i,.·to Tabora in these words, I quote:- .·. ;· °Kwa kuwa sasa tm:iaona bnd'o haridhiki ' . ' tunaperida kutoa nendeke zo lifua talo iii ,~ • • •• " \ ' •• 1 I kuep~s-a utata wowote. ule: .... : Sisi tutamsnfirisha mtajw2 kwa kutumia • • ) . ·1 gari le tu wenye we t oka !,ibe ya ha di Tu.mbi ; yeye. a;e jeshe kwetu kiai · ha f-dl1a ·!ia · ·us.:ifiri ambazo tulikwisha mlipa· cha jumla ya _.she.499, ?.F>n/:;:; ~nye kiasi · hicho anawe·!ia u-retain:tt kissi cha ·sns.8,000/= · x 3 == shs.24fO00/== uling_ana na barua··,-ako k.1.":rungu. cha (iv) (a) posho ya kusubiri "'Jeye. -mvvenyewe 0 ·,,. :£:l confirHed with sworn tc=;stimony that t11ey ea·ve ·th.P. ·x-esJ)ondent c·v1 such m;tor venici to repatriate the respo:nclont-. · 'From the date·: of 13/2/96, when this ·1etter with an o:f:eer- to repef'triae the .. respondent i11 mate:rial terms. rather than· in monet?,ry terms was . received by the Labour officer and the :r;espond,e-nt-,the appellant ceased ·to· ·hc.ve ;:my obligation over the respa.ridents stay i_n l'fbeyn and in the house in .di spu-t_e., ... §6 1 I ~ 11old -':chat the ·•'•'I • . . . . . .. c:..:._,,. • . .- . o:f·'the .'respondents ;t}iurn'ani tarian" stay in . tire·r/hpuse I , ," ,. • l operative date of Charles Sawala as a· s:ub-tenan\ of the ·\enant T.F.11. ce_ased on 15/2/96 (mid month)•. From 16/?/96 the responde}i-t",' stayed unjustifiably in the house in qu.esticin and o·ught to refund to the tenant the house rent of shs25,000/ paid by the appeliant to the landird at .. . ·: :..

8 shs.25,000/:= :er morith.1<-pto 23.909' which is at·, he nearest figure · .... ·-, of days equal to 7 months x. 25,000/== = 175,·000/=. Th judgement • ' .. •. of the Di,strict Court which quashed the ront compen._sati on claim If::.• , is quashed. I. hold that the respondent wes liaple to re fund to t}?.?• 1 ; ~ • l;, appellant shs.175 1 000/== rent paid by the 8j)pellant to the landlqrd~~ The claims for general darn.1ges of shs. 2m/= were, totallY. unjustified an for this relationship· arose ouJ· of / emj)loy.iiient contr.act of. ser,.rice with his oWl} ?mployee whose. relationship h.Jd grown· Sour o:r:.ly in t:i-e last days of t,heir e·mployf11snt relationship. . .. There· 1 ,is the other' appeal grounds raised by the learned .1r. ! • I. ,, . ,, . WJbise,,aainst the decision of· the trial cou,rt awarding· compensation '. i. ·· . .,. ri . _ - • ;.,, to th' 'respondent arising ::mt- -of his counterclaim. The counterclaim . . . . . . suit was .. dealt- wi th'.fn,·i ts aie·sment i.n 'iw.rdly 1 · fullsa-apB page . : •. , ' . . : ~ !, •. . when the ·counterclaim itself in the w.s.n. covered 5 fullscape pages! The le arnG d M-r. 1/lbise (l,dvocate) has chcllenged the f'ounte rclaim ( for aving not been proved at all and that all docuthets attached to the WeS.Do in support of the countercl8im have, not been produced as exhibits and therefore don't form part of the evidence record of the resJondent~ The arg~~nts of the learned Mru Mb.ise (Adv1) are quite vulido In his testimony DWl the respondent did not s1.3-9~"5t,iate with any concrete evidenir-e the entire counter claim. All in the anne:x:tu.res to the W.S.D •. supposedly/support of the counter .. , ,claim were·.not prod1;1-ced in court as exhibits_ therefore.were good for. merel1_ for 1:ileadinl$s:,.not 1 ·evde~ce i11;. the trial itself which ' . ' . ~ . followec.l unless such. faets. were ad.mi tted by the other side to thG the 1 , suit. which was not;ce.F3e here. .. .•..... /9 • '1 ••

" • 9 None of the previous posting from Tabora to :lrusha to iJib0ya were shown to have ever not been fully :i<· paid for by the appBllant. His married and family status I have held above was not proVBd. His family was not shown to have been moving with him if tall he had one. The entire counter-claim was fictitiously framed up in vendetta . traininge for the termination of his temporary employment while still under/ There wns no good factual or legal basis for the trial court to have entered judgement in favour of the respondent ip. his taunter- .. _ ,1aims. The same judgement is hereby quasede This appeal is allowed with costs. ~ ' ,\ ' :,. ,. )1 ... ---~ /"\ / -~~ .. ......----- 8/7/99 Coram: Eon. E.L.K. IJiwipopor J. E. L. K. Tuf'tTIPOPO JUDGE 8.7 .. 99 For ·;ppeella.c1t Mr. Mbise .L·1dvocate - pre sent Elie za Wilimbila - present in 11erson. Respondent: Wiartin Nashokigwa - present in parson B/C: Kos.::.im Court: ,Jur.1eeo8nt. de.Li verad in the preence of both parties. () . ' r·. ,... .... _.---· . ..----, ~ E 1.I~. I'.IIWIPOPO ... JUDGE AT MBEYA C.7.99 E LKWI/ .\TE' li ma.

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