Patric Shirima v. Theophil Kabwogi Civ no109 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J.A., KILEO, J.A. And BWANA, J.A.)

CIVIL APPEAL NO. 109 OF 2007

PATRICK SHIRIMA…………………………………….APPELLANT

VERSUS

THEOPHIL KABWOGI……………………………….RESPONDENT

(Appeal from the judgment of the High Court of Tanzania at Dar es Salaam)

(Ihema, J.)

dated the 25^th day of October, 2001

in

Civil Appeal No. 36 of 2001

---------

JUDGMENT OF THE COURT

28 November & 24 December, 2008

MUNUO, J.A.:

        This is a third appeal from Civil Appeal No. 36 of 2001 in the High Court of Tanzania at Dar es Salaam in which the respondent successfully challenged the reversal of the compensation order of Sh. 1,500,000/= by the Deputy Chairperson of the Housing Appeals Tribunal in Civil Appeal No. 51 of 2000.  The Sh. 1,500,000/= refund of construction costs order had been given in favour of the respondent, Theophil Kabwogi in Regional Housing Tribunal Application No. 21 of 1998.  That is, the landlord Patrick Shirima, had to repay the construction costs of Sh. 1,500,000/= to his licencee, Theophil Kabwogi before the latter vacates the suit house.  Ihema, J. as he then was, restored the compensation order of Sh. 1,500,000/= whereupon the landlord lodged this third appeal seeking to reverse the compensation order.

        Out of goodwill and mutual understanding, the landlord, Partick Shirima allowed the respondent to construct a four bedroom house at the cost of Sh. 1,500,000/= on the former’s plot at Manzese and stay in the said house without paying rent for an undefined period.  The deal was concluded in 1991.  The parties had good relations until 1997.  In 1998, the landlord filed Application No. 21 of 1998 in the Regional Housing Tribunal, seeking vacant possession from the respondent.  The respondent counter-claimed for a sum of Sh. 1,500,000/= construction costs he paid to build the house on the appellant’s plot.  The Deputy Chairperson of the Housing Appeals Tribunal, in Housing Appeal No. 8 of 2000 reversed the compensation order of Sh. 1,500,000/= giving rise to Civil Appeal No. 36 of 2001 in the High Court of Tanzania, wherein, Ihema, J. as he then was, affirmed and restored the compensation order.  Dissatisfied with the decision of the High Court, the appellant preferred the present appeal.

        Mr. Hyera, learned advocate for the appellant filed three grounds of appeal, namely that –

1.    The learned judge erred in law and fact by granting the respondent compensation of Sh. 1,500,000/= in the absence of evidence that he spent the same for constructing the disputed premises.

2.        The learned judge erred in law and fact by not considering that what is attached to land forms part of the land.

3.        The learned judge erred in law and fact by not considering whether the appellant and respondent entered in any construction agreement in respect of land owned by the appellant under a Right of Occupancy.

At the hearing, counsel for the appellant abandoned ground 2 of the appeal and argued grounds 1 and 3 generally.  He contended that there is no proof to establish that the respondent spent Sh. 1,500,000/= for constructing the four bedroom house in dispute so the compensation order is not sustainable in law.  The said compensation order should be struck out, counsel for the appellant contended.  Insisting that the compensation order is not justified, Mr. Hyera pointed out that the respondent said he spent Sh. 300,000/= for construction, (page 13) but later, the figure changed to Sh. 1,500,000/=: see page 9 line 29.  Such inconsistency, counsel for the appellant submitted, makes the claim of compensation incredible and thence not sustainable or justified.  Considering that the respondent occupied the house he built for 16 years without paying rent, the Sh. 1,500,000/= he spent for construction, had since been set off so the order for compensation should be quashed and set aside.  In any event, counsel for the appellant argued, the respondent tendered no documentary evidence to prove that the appellant authorized him to construct the house. 

        Mr. Rutabingwa, learned advocate for the respondent supported the decision of the High Court.   He submitted that even DW4, Grace Thomas, stated that the respondent built the house of the appellant so the respondent is entitled to a refund of Sh. 1,500,000/= he spent for constructing the said house.  Furthermore, counsel for the respondent argued, the appellant did not call evidence to prove that he built the house in dispute, which indicates that the respondent’s assertion that he constructed the house for Sh. 1,500,000/= is correct.  Mr. Rutabingwa conceded that the respondent stayed in the house in dispute free of charge for 16 years but he claimed that occupying the house for 16 years not withstanding, the respondent should be refunded the Sh. 1,500,000/= he spent on the construction of the house.  Hence counsel for the respondent prayed that the appeal be dismissed with costs for it lacks merit.

        The issue before us is whether the appellant should pay Sh. 1,500,000/= compensation to the respondent as compensation for constructing the house in dispute for the appellant.

        Before considering the above issue, we first considered the relationship of the parties.  One, there was no landlord-tenant relationship between the parties because there was no tenancy agreement of whatever type between them.  Second, from the evidence on record, mutual goodwill and understanding caused the appellant to allow the respondent to build a house on the former’s Manzese plot at the construction cost of Sh. 1,500,000/=.  Apparently other parties also contributed to the building by providing iron sheets.  On his part, the appellant disputed that the respondent contributed Sh. 1,500,000/= towards the construction of the suit house.  Even if such contribution had been made, the appellant contended, the fact that the respondent occupied the house for 16 years without paying rent, set off the contribution.  Thence the High Court should not had restored the compensation order for Sh. 1,500,000/=.

        It appears to us that the relationship of the parties was that of licensor and licencee.  The appellant being the licensor, he allowed the respondent licencee, to build a house on his Manzese plot which construction cost the respondent a meagre Sh. 1,500,000/= only in 1991.  We are fortified in this view by definition of licencee in Black’s Law Dictionary 8^th Edition by Bryan A. Garner, Thomson West, Page 939:

“Licence:  permission, usually revocable……..an agreement not amounting to a lease……..that is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal…………

A licence is an authority to do a particular act or series of acts, upon another’s land, without possessing any estate therein.  It is founded in personal confidence, and not assignable, nor within the statute of frauds. [James Kent, Commentaries, on American Law ‘452-53’ George Comstock ed 11^th Edition. 1866]”

        We are satisfied that the appellant gave a licence to the respondent, Theophil Kabwogi, to construct a house on the material plot in 1991.  The licence operated until 1998 when the appellant sought vacant possession by instituting Application No. 21 of 1998 in the Regional Housing Tribunal Dar es Salaam seeking vacant possession.

        We are, furthermore, satisfied that since the respondent occupied the appellant’s house for sixteen years free of charge, the Sh. 1,500,000/= construction costs were more than repaid.  Under the circumstances, we find merit in this appeal.  We accordingly allow the appeal with costs.

        DATED at DAR ES SALAAM this 19^th day of December, 2008.

E. N. MUNUO

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

S. BWANA

JUSTICE OF APPEAL

         I certify that is a true copy of original.

(P. B. KHADAY)

DEPUTY REGISTRAR

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