Ndesario v. John Civ. App. 11-A-71; 11/6/71; Kwikima Ag. J.

Ndesario v. John Civ. App. 11-A-71; 11/6/71; Kwikima Ag. J.

            This is an appeal from the order of the Moshi District court dismissing the appellant’s claim for mesne profits in respect of the appellant’s premises which the respondent was alleged to have unlawfully occupied as a trespasser. The grounds of appeal were that: (a) the learned magistrate erred in law in holding on the evidence that the premises were lawfully sublet to the respondent; (b) the learned Magistrate ought to have held that premises being situated within Moshi Township were governed by the provisions of the Rent Restriction Act; (c) the evidence disclosed that the respondent vis-à-vis the appellant was a trespasser and as such liable to pay mesne profits.

                        Held: (1) “The suit premises were alleged in the plaint to be within Moshi Township. This allegation was not controverted ……….. It is therefore hereby held that the

         Premises were subject to the Rent Restriction Act, Moshi town having been declared to be the subject of that act under section 1(3).” (2) “There was no evidence before the District Court that the respondent occupied the suit premises either with the consent of the appellant or with that of the Court. As such the respondent’s occupation was illegal ab initio ….. The respondent was clearly a trespasser who had no right to occupy the appellant’s premises ……….. it was held by Georges C. J. (as he then was) in the case of Onerato Della Santa vs. Peera 1970 H. C. D. 22 that where the tenant sublets without the landlord’s consent, the assignee is a trespasser” (3) There were no serious efforts to seek the appellant’s consent. (4) Appellant to receive mesne profits in respect of the unlawful occupation of the suit premises. (5) Appeal allowed.