LAWRENCE MAGESA t/a JOPEN PHARMACY VS. FATUMA OMARY AND ANOTHER CIVIL APPEAL NO. 333 OF 2019

Abstract

(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.