| dc.description | LAWRENCE MAGESA T/A JOPEN PHARMACY v. FATUMA OMARY AND ANOTHER
COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(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, Khamis, J, 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 emanated from the tenancy relationship between the Appellant herein and the 1st Respondent here in who was the land lord by then. The said relationship culminated in a suit, which is land case no. 301 of 2015 which was instituted by the appellant and such case was decided in favour of the 1st Respondent. The story behind this whole thing is that, the appellant was the tenant of the 1st respondent in a house No. BG/KW/30 located at Buguruni area within Ilala District in Dar es Salaam (demised premises). It all started in February, 2011 when the duo executed a two years' tenancy agreement at a monthly rent of TZS. 400,000.00 starting from 1st February, 2011 to 1st February, 2013. Upon expiry, the said lease agreement was renewed, on the same terms and conditions, for a period of one year from 1st February, 2013 to 1st February, 2014. Again, upon expiry, it was renewed to another period of one year from 1st February, 2014 to 1st February, 2015, but this time with a slight increment on the rent at the tune of TZS 410,000.00. The appellant claimed that, although the said agreement was signed by the parties on 1st February, 2014, the first respondent took it to her advocate for signature and returned it to him on 29th January, 2015. The appellant alleged further that, upon its return, the lease agreement was altered and a new clause five was added to the effect that, upon expiry, the appellant should give vacant possession of the demised premises to pave way for its renovation. Thereafter, and when the said agreement came to an end, the 1st respondent hired the service of the 2nd respondent who in turn issued to the Appellant a 14 days' notice to vacate the premises. That, on 6th March, 2015, the respondents together with other people invaded the demised premises and took away the appellant's properties. Hence, the appellant decided to institute the suit as indicated above and the suit was decided in favour of the Respondents and being aggrieved he filed this appeal.
Held:-
(i) We wish to preface our discussion by observing that this being a first appeal, we are entitled to review the evidence on record to satisfy ourselves whether the findings by the trial court were correct. This task is bestowed upon us by the provisions of Rule 36 (1) of the Rules.
(ii) It is clear that the burden of proof of fraud in civil cases is heavier than a balance of probability generally applied in civil matters. In the instant appeal, it is on record that, apart from alleging that the first respondent has committed fraud by altering and inserting additional clause in the lease agreement, the appellant did not discharge his duty of proving his allegations.
(iii) It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act. It is equally elementary that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and the said burden is not diluted on account of the weakness of the opposite party's case.
(iv) we assume that the appellant had no prior notice, as he claimed, still, it is our settled view that, following expiry of his lease agreement on 1st February, 2015, he was required to vacate the demised premises, as from 2nd February, 2015 he was a trespasser and in illegal occupation of the premises. As such, he was not entitled to any notice before eviction.
Appeal dismissed
Mr. Deogratius Mwarabu , learned advocate for Appellant.
Mr. Yahya Njama, learned advocate for Respondents.
Cases referred:-
1. Hemmings & Wife v. Stroke Poges Golf Club [1920] 1 K.B. 720
2. Leopold Mutembei v. Principal Assistant Registrar of Titles, Ministry of Lands, Housing and Urban Development & Another, Civil Appeal No. 57 of 2017 (unreported).
3. Jamal A. Tamim v. Felix Francis Mkosamali & the Attorney General, Civil Appeal No. 110 of 2012, (unreported).
4. Ratilal Gordhanbhai Patel v. Lalji Makanji [1957] E.A. 314 at 316.
5. Omary Yusuph v. Rahma Ahmed Abdulkadr [1987] T.L.R. 169.
6. Princess Nadia (1998) Ltd v. Remency Shikusiry Tarimo, Civil Appeal No. 242 of 2018 (unreported).
JUDGMENT OF THE COURT
(Delivered 6 October, 2022) | en_US |
| dc.description.abstract | Held:-
(i) We wish to preface our discussion by observing that this being a first appeal, we are entitled to review the evidence on record to satisfy ourselves whether the findings by the trial court were correct. This task is bestowed upon us by the provisions of Rule 36 (1) of the Rules.
(ii) It is clear that the burden of proof of fraud in civil cases is heavier than a balance of probability generally applied in civil matters. In the instant appeal, it is on record that, apart from alleging that the first respondent has committed fraud by altering and inserting additional clause in the lease agreement, the appellant did not discharge his duty of proving his allegations.
(iii) It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence Act. It is equally elementary that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his and the said burden is not diluted on account of the weakness of the opposite party's case.
(iv) we assume that the appellant had no prior notice, as he claimed, still, it is our settled view that, following expiry of his lease agreement on 1st February, 2015, he was required to vacate the demised premises, as from 2nd February, 2015 he was a trespasser and in illegal occupation of the premises. As such, he was not entitled to any notice before eviction. | en_US |
