| dc.description | DIRECTOR MOSHI MUNICIPAL COUNCIL V. JOHN AMBROSE MWASE COURT OF APPEAL OF TANZANIA – ARUSHA MWANGESI. J.A. NDIKA. J.A. and KITUSI, J.A.
CIVIL APPEAL NO. 245 OF 2017
(An Appeal from the decision of the High Court of Tanzania at Moshi in Civil Case No.16 of 2013 dated 17th June,2016 by Hon. Mwingwa, J)
Land Law- building in urban planned area- whether it is imperative to have a building permit before effecting any building on land in urban planned area?
Evidence Law- Civil Law-Burden of Proof- who bears the burden of proof in civil cases?
Evidence Law- Evidence- Credibility of witness- whether every witness is entitled to credence?
Civil Practise & Procedure – Law of evidence-proof of damages- whether the court can grant prayers of damages without proof?
Civil Law and Practice- Counterclaim- What is the duty of the Court where there is a counterclaim in a suit?
Facts;
The Appellant and Respondent had a contractual relationship out of tenancy agreement. The Appellant was sued by the Respondent for what was alleged to be unlawful demolition of the respondent premises without issuance of notice and without considering the investment that was made thereto. In that regard the respondent's claim was for payment of Shillings 714,000,000.00 being the value of the goods that were in the shop at the time of the alleged demolition, and that as a result of that demolition, the said goods were irreparably damaged and some got lost. The respondent also prayed for general damages for pain and suffering, as well as costs of the suit.
The appellant denied liability and justified the demolition on the ground that the respondent breached the tenancy agreement by constructions on the suit premises without prior permission of the appellant as the owner of those premises, and without a building permit from the relevant authority, as per law. Also, the Appellant raising a counter claim for shillings 568,000.00 being the costs incurred for the demolition. At the end, the trial Court was satisfied that the demolition was unlawful and awarded the respondent TZS 500,197,551 as value of the goods that were in the shop at the time of demolition. The Appellant was aggrieved by that decision and appealed to the Court of Appeal against the trial Court decision.
For the Appellant: Mr. Deodatus Nyoni
For the Respondent: Mrs. Elizabeth Minde
Held
i) It is a settled law that in civil cases that who alleges must proof which is a basis of Section 110 of the Evidence Act, [Cap 6 R. E 2019]. The Court cited with approval the holding in the case of Anthony M. Masanga V. Penina (Mama Mgesi) and Another, Civil Appeal No 118 of 2014 (unreported) in respect to burden of proof.
ii) It is a requirement of the law that any erection of building in planned area requires a building permit from the relevant authority. The Court relied on the provisions of Section 2 of the Urban Planning Act, Act No. 8 of 2007 and Rule 124(1) of the Local Government (Urban Authorities) (Development Control) Regulations, 2008.
iii) The Court reinstated the principle stated in the case of Goodluck Kyando V. Republic, [2006] TLR 367 that “it is a settled law that every witness is entitled to credence”. However, in certain circumstances and based on evidence that credence may be detached by the Court.
iv) It is settled that the claims of specific damages need strict proof before they are awarded by the Court.
v) The Court while interpreting the provision of Order VIII Rule 12 of the Civil Procedure Code, [Cap 33 R. E 2002], reiterated its earlier position stated in the case of Runway(t) limited Versus WIA Company Limited and Cascade Company Limited, Civil Appeal No 59 of 2015 (unreported), where it was stated that where the trial Court acknowledge existence of the Counterclaim is duty bound to make a finding on it.
Statutory Provisions referred:
1. Rule 36(1)(a) Tanzania Court of Appeal Rules, 2009 as amended
2. Section 2, 29 of the Urban Planning Act No.8 of 2007
3. Regulations 124 & 139 of the Local Government (Urban Authorities) (Development Control) Regulations 2008
4. Section 110 The Evidence Act, Cap.6 R.E. 2019
5. Order VIII rule 12 of the Civil Procedure Code Cap.33 R.E 2002
Case Laws referred to;
1. Dr. Maua Abeid Daftari Vs. Fatma Salmin Said, Civil Appeal No. 108 of 2011(unreported)
2. Materu Leison and J. Foya Vs. Sospeter (1998) T.L.R 102
3. Khamis Abderehemani Vs. Republic, Criminal Appeal No.21 of 2017 (unreported)
4. Anthony M. Masanga Vs. Penina (Mama Mgesi) and another, Civil Appeal No. 118 of 2014 (unreported)
5. Goodluck Kyando Vs. Republic (2006) TLR 367
6. Runway (t) Limited Vs. WIA Company Limited and Cascade Company Limited, Civil Appeal No. 59 of 2015 (unreported) | en_US |
| dc.description.abstract | Held
i)It is a settled law that in civil cases that who alleges must proof which is a basis of Section 110 of the Evidence Act, [Cap 6 R. E 2019]. The Court cited with approval the holding in the case of Anthony M. Masanga V. Penina (Mama Mgesi) and Another, Civil Appeal No 118 of 2014 (unreported) in respect to burden of proof.
ii) It is a requirement of the law that any erection of building in planned area requires a building permit from the relevant authority. The Court relied on the provisions of Section 2 of the Urban Planning Act, Act No. 8 of 2007 and Rule 124(1) of the Local Government (Urban Authorities) (Development Control) Regulations, 2008.
iii) The Court reinstated the principle stated in the case of Goodluck Kyando V. Republic, [2006] TLR 367 that “it is a settled law that every witness is entitled to credence”. However, in certain circumstances and based on evidence that credence may be detached by the Court.
iv)It is settled that the claims of specific damages need strict proof before they are awarded by the Court.
v) The Court while interpreting the provision of Order VIII Rule 12 of the Civil Procedure Code, [Cap 33 R. E 2002], reiterated its earlier position stated in the case of Runway(t) limited Versus WIA Company Limited and Cascade Company Limited, Civil Appeal No 59 of 2015 (unreported), where it was stated that where the trial Court acknowledge existence of the Counterclaim is duty bound to make a finding on it. | en_US |
