TUMAINI UNIVERSITY DAR ES SALAAM COLLEGE

COURSE LEGAL ETHICS

LECTURER DR. BARAKA SAITEU

WORK INDIVDUAL ASSIGNMENT

NAMES REGISTRATION NUMBER

MILLEN R. MASSAWE TU/DARCO/LLB/020/222

QUESTION
 IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM DISTRICT REGISTRY
MISC. CIVIL CASE NO 10

ZINK LIMITED……………………………………………………………PLAINTIFF
VERSUS
SALIM BANTAM…………………………………………………. DEFENDANT

PROCEEDINGS
DATED 17TH JUNE 2023

DATE: 17TH JUNE 2023

CORAM: KIWELU J, SINARE J & MORGAN J
COURT CLERK: SONIA OSWINE & JUDITH KIPENGELE
TIMEKEEPER: NEEMA GODFREY

PLAINTIFF COUNCIL DEFENDANT COUNCIL

Vanessa Mtuka Rahma Hayeshi
Alpha Mapunda Celine Mkindi
Sarah Kalengela Glory Senni
Agnes Mhina Werema Masanje
Ali J. Abdallah

PLAINTIFF WITNESSES
PW 1: JOSEPH YOHANA (DIRECTOR)
CROSS EXMINATION
Qn1: At which date you entered into lease agreement with the defendant?
Qn2: Was the lease agreement paid?
Qn3: Am I correct to say that during the blockage you had no lease contract with the
defendant?
Qn4: did you get consent for repair?
Qn5: who blocked your officials?
Qn6: are you a director or principal officer?

PW2: IRENE KAHENDAGUZA (COMPANY LAWYER)

Qn1: you function as a lawyer?
Qn2: what 2009 did you mean in your witness written statement?
Qn3: who told you the blockage?

PW3: HANNAH MALUMBU (PERSONAL ASSISTANT)

Qn1: are you a personal assistance for Zink or for director?
Qn2: do you know the role of personal assistant?
Qn3: the blockage occurred in 2019 or Feb 2020?
Qn4: your director certified that the blockage was Feb 2020, why are saying 2019?

PW4: MELBA GUMBO (ENGINEER)

Qn1: can you prove your working experience?
Qn2: did you have contract of employment with Zink limited?
Qn3: did the destruction occurred?
Qn4: where you there during the blockage?

DEFENSE WITNESSES
DW1: SALIM BANTAM (DEFENDANT)
Qn1: did the lease agreement prohibit access to the demised property?
Qn2: did you receive any notice of harassment?
Qn3: did the company (Zink Company Ltd) pay rent in your account?
Qn4: does the lease agreement allow the re-innovation?
DW2: SHANGWE SIMBA (LAWYER)
Qn1: did you receive any complaint for Zink Ltd?

DW3: RITHA RAPHAEL (BANK MANAGER)

Qn1: did the bank issued any notice of possession to the plaintiff?
Qn2: did the bank blocked the dismissed properly?
Qn3: did the defendant discharged mortgage with your bank?
Qn4: did Zink Ltd approached you for any inconvenience done by the bank officials?

DW4: SALIMA BENTAM (WIFE TO DEFENDANT)

Qn1: did you see the lease agreement?
Qn2: did the defendant (your husband) had a mortgage with any bank?
Qn3: are you responsible for any discharge of mortgage?
Qn4: are you binded to sign every document that your husband (the defendant) entered
with other party?
Qn5: are you bound to give consent to your husband to sign or to enter any legal agents?

DW5: JAFAR RAMADHAN (BUSINESSMAN)

Qn1: do you know about any mortgage?
Qn2: for how long did your leased to the defendant premise?
Qn3: did you witness any blockage from bank officials?
Qn4: do you know Zink limited as a tenant in Salim Bantam (defendant) property?

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM DISTRICT REGISTRY
MISC. CIVIL CASE NO 10

ZINK LIMITED……………………………………………………………PLAINTIFF
VERSUS
SALIM BANTAM…………………………………………………. DEFENDANT
 PLAINTIFF’S FINAL SUBMISSION
(Pursuant to the order of the Honorable court dated 17TH JUNE 2023)

1. May it please the court, my Lords, and my Ladies before you are the suit
based on a breach of lease agreement seeking the following reliefs.
a) An order for payments of specific damages of Tanzania shillings One
Hundred Ninety-Six Million, Eight Hundred Eighty-Five Thousand
Twenty-Eight (Tz 196,885,028/=) and United States Dollars Six Hundred
Nine Thousand Seven Hundred and Twenty.
b) An order for payments of general damages.
c) Interests at a court rate of 4% from the date of judgement to the date when
the decree will be fully.
d) Costs be provided for
e) Any other order or relief as the Honorable court may deem just and fit to
grant.

2. ISSUES
At the first hearing of the case, before your lordships, the following issues
were framed.
i. Whether there was a valid lease agreement?
ii. Whether there was breached of the lease agreement?
iii. What reliefs are the parties entitled too?

3. That, before discussing the issues, we found it sensible to first discuss the
fact that Defendant Written Statement of Defense is against the law as
provided under ORDER VIII, RULE 3-5 which provides that the denial to
be specific of the CIVIL PROCEDURE CODE (CPC). This was seen in the
CASE OF BEDA Y. MGAYA t/q BEFCA TECHNICALAND
SUPPLIES vs. A.G and another, which placed emphasize on these issues
and placed reliance further on Section 60 of The Evidence Act and in the
CASE OF FIKIRINI ISSA KOCHO vs. COMPUTER LOGIX and
others of 242 which stated judgement on admission cannot issues as there
are no admissions from the defendants which could entitle the court.
4. Whether there was a valid agreement to enter judgement on admission as
prayed Placing reliance in.
SOUTHERN HIGHLAND PARTICIPATORY ORGANIZATION vs.
WAFANYABIASHARA NJOMBE SACCOS, it was argued ORDER
VIII, RULE 4 can only apply where the admission is clear. Also cited an
Indian case of RAJ LUMAR CHAWLA vs. LUCAS INDIAN SERVICE
AIR 2006, Delhi 266, where the court held the courts must be careful in
passing decree on admission. During the cross-examination Salim Bantam
accepted that they entered the agreement, and he as well had no notification
that a stranger had a key to his property.

Whether there was a valid lease agreement. Your Lordships, to answer this
question would require evidence of two things. One an express contract
which clearly stipulates that plaintiff did contract the defendant. Two if no
express contract hence, a way that the plaintiff has dealt with the defendant
in such a way one implied contract can be inferred.
But basing on the case the plaintiff concluded an express contract with the
defendant which complies with The Law of Contract Act and followed by
all The Land Act pertaining to laws Agreement. By filling Land Form No.
55. Hence, this lease agreement is valid under the eyes of the law.

5. Whether there was a breach of the lease agreement. My Lords, My Lady, it

has been inferred from the facts that plaintiff contracted with the defendant
and the defendant has failed to respect the terms and condition. Whereas
under the covenant of the lessor the defendant promised to ensure a
covenant for quiet enjoyment which included peace, and quiet possession,
enjoyment of the land leased without interruption from the lessor or any
person claiming through him, as per Section 56(2) of The Land Registration
Act.

Instead, the defendant has failed to comply with this whereas, our client
Zink limited company officials were highly harassed on the day when the
went to take full occupancy of the demised properly. Hence, interfering
with the covenant of quiet enjoyment. This was seen in the CASE OF
SHEILA ELANGWA vs. WILFRED MOSES LUKUMAY, Civil
appeal no. 203 of 2018. In this case a lease agreement was entered, and the
respondent operated his business, after two months the respondent was
stopped only to note that the defendant into agreement while aware that he
was compensated that land by the government for the project of Dar-es-
Salaam rapid transport. And the CASE OF OWEN vs. GADD and
SOUTHWARK LBC vs. MILLS [2001] AC 1.

Under specific damages, this amount is claimed so as the renovations and

decorations done in the demised properly. As the renovations was done on
the first floor since it was supposed to be a storeroom of the company. The
rooms were also changed on the ground floor into bigger rooms to
accommodate the machines for the business, he used cement, bricks,
building wire, tiles, doors, nails of all types. There was a lot of work almost
30 works. Further engaged an electrician to change wiring of the whole
building and to keep some other new wiring for the AC installed, so new
wiring for the AC installed, so new air conditioner was bought about 15 to
accommodate all the offices. Decorations were made so several materials
like Gypsums, Liquid Gold, Pigments, Printing Paste Pyrometric Chip,
Office Chairs and Tables, Wall Prints, Clocks, Table Lamps, Vases, Rugs
and Cushions. Some of these materials were imported from outside CASE
JUMA MDEE vs. OMAR ALLY & 2 OTHERS. The company has as well
lost a lot of business opportunities.

And it is a rule that most lease and rental agreement contains a provision
that prevents a tenant from making improvements or alterations to a rental
unit without getting the written consent of the landlord.

And pertaining the mortgage issues the witness said the mortgage was
discharged but during the harassment the officials contended that the ones
who conducted the blockage were from the Azim Bank. Hence, it seems
there is an unfinished business.

And on the fourth witness if she is just a mere housewife and she knows
nothing pertaining contracts why did she witness it.
And on the last witness agreed that he leaves peaceful on his property
because it has no restriction. But our clients properly were under mortgage
and on the demeanor the witness said he never reassured.

During the cross-examination Salim Bantam accepted that they entered the
agreement, and he as well had no notification that a stranger was giving a
key to his property which is contradictory to his witness statement under
paragraph of and the plaint which refused that there was an agreement.
 IN THE HIGH COURT OF THE UNITED REPUBLIC OF
TANZANIA
(LAND DIVISION)
DAR ES SALAAM DISTRICT REGISTRY
AT DAR ES SALAAM MISC CIVIL CASE N0. 10 OF 2023
ZINK LIMITED……………………………………PLAINTIFF
VERSUS
SALIM BANTAM ………………………………. DEFENDANT

MOOTCOURT JUDGEMENT

KIWELU J, SINARE J AND SAYDA

The Plaintiff is a private company incorporated under the laws of Tanzania

which has been licensed to conduct out business in Tanzania. The company
is suing the defendant namely Salim Bantam for a breach of a lease
agreement entered on 2019 in respect of the landed property located at the
Kipawa Industrial area under Plot No 107 and 108 with a certificate Title
No 29427 Land office No 75767, Ilala Dar es Salaam. The plaintiff via
plaint prays the following: - 1. That, the court to declare that the defendant
has breached the lease agreement, 2. The court to order the defendant to pay
specific damage amounting to the tune of Udine thousand seven Hundred
Twenty (USD 9,720.00), 3. The court to order the defendant to pay
damages amounting to TZS.196,885,028.00andUSD Six Hundred Nine
Thousand Seven Hundred Twenty (USD 609,7200.00) being the cost
incurred during improvement of the property and costs for loss of the
business respectively. 4. Any other relief this Honorable Court deems fit
and just to grant. On the other hand, the defendant denied the allegation
that, the breach was beyond his control. Further he prayed the court to
dismiss the case with costs. During the trial, the following issues were to be
determined: - 2 1. As to whether there was a lease agreement between the
plaintiff and the defendant, 2. As to whether the defendant breached the
said agreement 3. What reliefs are the parties entitled to. In determining
this, I will be guided by the principle embodied in Section 110 of the
Evidence Act, Cap.6 R.E 2022 that, in the civil case the onus of prove must
be on preponderance of probabilities. At the trial, the plaintiff was
represented by Vanesa Mtuka leading Counsel and assisted by Agnes
Mhina, Sarah Kadari and Alpha Mapunda learned Counsels. The plaintiff
side had paraded four (4) witnesses namely first Mr. Joseph Yohana, the
Director of the Zink Company featured as PW1, Ms. Irene Kayendaguza
who is the lawyer of the company featured as PW2, Melba Gumbo who is
an Engineer featured as PW3 AS WELL AS Hannah Malibu the Personal
Assistant to the Director who was marked as PW4. All witnesses presented
their evidence in Chief vide Witness Statements accompanied relevant
documents or exhibit. For the purposes of this session considering on the
issue of time the court will not go in details on what observed during cross-
examination. The defendant was represented by Rahma Hayeshi leading
counsel and assisted by Celine Mkindi, Werema Masanje, and Glory Senni
learned counsels. The defendant side paraded five witnesses namely Benton
Salim who was the lessor of the property featured as DW1andother 4
witness but for the sake of time the court will not mention their good
names. Summary of the findings of the court in respect to the framed issues
1. On issue number one which is “As to whether there was a lease
agreement between the plaintiff and the defendant”, Beginning with the
first issue on whether there was a lease agreement between the plaintiff and
the defendant, the court has proved that there was a lease agreement
between the plaintiff and defendant. Because there was all element of the
contract as provided under section 10 of the Law of contract Act R.E 2019.
Also, the evidence that produced in a court 3 as Exhibit PW1 Collectively
is sufficient to prove that there was contract between the parties. 2. On the
second issue which is “As to whether the defendant breached the said
agreement” Starting with the evidence by the plaintiff to prove her claims,
she brought a total of two witnesses. PW1 was Joseph Yohana. He testified
that he entered a lease contract as a Director of Zink Company Ltd. The
contract was between him and Mr. Salim Bantam, (herein the defendant).
That the lease premises (suit property) is located at the Kipawa Industrial
area under Plot No 107 and 108 with a certificate Title No 29427 Land
office No 75767, Ilala Dar es Salaam. It is settled law that parties are bound
by the agreements they freely entered, and this is the cardinal principle of
the law of contract. That is there should be a sanctity of the contract as
lucidly stated in Abualy Alibhai Azizi vs. Bhatia Brothers Ltd [2000] T.L.
R288at page 289 thus: ‘’The principle of sanctity of contract is consistently
reluctant to admit excuses for non- performance where there is no
incapacity, fraud (actual or constructive) or misrepresentation and no
principle of public policy prohibiting enforcement.’’ The court found that,
the defendant breached the said agreement. Thus, the non-disclosure of the
mortgage agreement with the bank to the plaintiff known to the defendant
even before the execution of the lease agreement and failure to keep the
above conditions of the contract echoes nothing but a breach of contract.
And if defendant had finished the mortgage why he did produce or tender to
the court the certificate to prove that he pays the debt under mortgage This
finding is supported by the decision in the case between Simon Kichele
Chacha vs. Aveline M. Kilawe, Civil Appeal No. 160 of 2018 (unreported)
(for the matter of time, you may wish to visit that case) The court contend
that due to lack of the peaceful enjoyment of the property (lease) as in the
case of Southwark LBC vs. Mills [2001] AC 1. The court held that the
covenant for the quite enjoyment is the covenant that the tenant lawful
possession of the land will not be substantially interfered with by the acts of
the lessor or person lawfully claiming under him. 4 Moreover, through
section 56(2) of the Land Registration Act {CAP 334 R.E 2019] and
section 88 of the Land Act it narrows more about the peacefully and the
enjoyment of the land. (Cited the book of Conveyancing and Disposition of
Land in Tanzania (law and Procedure) Tenga R. W. and Mramba S. J. Page
142-144) 3. What reliefs are the parties entitled to. Before deciding on this
issue, the court found that, the plaintiff suffered damages from the breach
of the lease agreement. Considering what we held herein that the defendant
breaches the lease agreement, the damages include the cost of improvement
incurred and the loss of business. That can also support by Section 73 of the
Law of Contract Act, Cap345. You may wish to revisit it Lastly, the court
ought to emphasize that, in the civil case the onus of prove must be on
preponderance of probabilities therefore, by critical consideration upon the
evidence from both sides, the judgment is entered in favor of the Plaintiff as
follows: 1. It is hereby declared that the defendant is in breach of the lease
agreement. 2. The Defendant is hereby ordered to pay USD 9720.00. 3. The
plaintiff is awarded interest to be imposed on the amount stated in item2
above at a commercial rate of 15%, from the date of filing this suit to the
date of judgment. 4. And General damages at the rate of TZS 15,000,000
plus costs of the suit. It is so Ordered.
 DATED at DAR ES SALAAM this 17th day of June 2023

COURT: Any party to this case who is aggrieved by this decision have the
Right to Appeal to the higher Court.