a joshua vs salehe abdallah 1977 tzhc 2 1 december 1977

IN THE HIGH COURT OF TANZANIA

AT TABORA HIGH COURT CIVIL APPEAL NO. 3 OF 1977 A. JOSHI ...... 0.0 ......... ...... O.... APPELLANT versus SALEHE ABDALLAH ................. . o ........ ...... RESPONDENT

JUDGMENT KAPIGANOj___J. This was an action for vacant possession in respect of a residential house situate at cross Lane Street in Tabora township. It was brought by the respondent Salehe Abdallah against the appellant V« A. Joshi in the court of the resident magistrate. The respondent won and was granted vacant possession and mesne profits. Being aggrieved by the judgment of the trial magistrate the appellant has lodged this appeal, on the grounds stated in his memorandum. I will start by reviewing the salient facts of the case as presented by both sides in the trial court. The respondent told the court that he bought the premises in question in 1974 for ShSo 15,000/= from one Hassanali‘Nasse'r who has since died* A deed to that effect was executed before a primary court magistrate At that time the respondent was staying and working at Uvinza in the Kigoma Region. But he intended to come and settle down in Tabora with his family. It was precisely towards that end, he said, that he decided to look for and buy a house in Tabora. The appellant was at the time of the sale occupying the house as a tenant. The respondent approached him and informed him that he was intending to come and live in Tabora and that he wanted the house for his own personal occupation. He asked him to search for an alternative accommodation. It seems that the matter stopped there until February, 1976, when

the respondent actually moved from Uvinza and came to live in Tabora permanently. He went to see the appellant about the house and asked him to make serious efforts to look for another house. He stated that the appellant responded negatively: he refused to look for another house and he was quite rude to him. Finding himself in such a situation, the respondent resolved to take more concrete steps to remove him from the premises. He served him with a notice which called upon him to vacate,. But despite the notice, the appellant refused to quit and at that, the respondent came to court to seek remedy. The respondent called one witness, Anil Nasser (P.We.2), a nephew and the administrator of the estate of the deceased Hassanali Nasser. The witness confirmed that his deceased uncle sold the house to the respondent as was alleged by the respondent,, Asked whether there was any record in or issued by the Land Office relating to the sale, he replied that there was none, as far as he was aware, and that there has been no certificate of occupancy in respect of the property. The appellant, a Hindu priest, stated that he had lived in the house as a tenant since 1968 and that he has been paying the ,rent regularly. He said that when he was informed that Hassanali Nasser has sold the house to the respondent he arranged to pay the rent to the latter. He did so until the time the

respondent refused to accept it when he started depositing it in court. Asked if he has made any efforts to look for another accommodation he answered somewhat hazily that:,- "I tried to get accommodation but I could not. There are about 10 to 12 people here who have houses for renting. I never got alternative accommodation from them* M % l Lastly, he told the Court that he has a large family and that he would be put in a very distressing situation if he is compelled to vacate the premises. Four issues were framed by the trial court, viz:- (1) Whether the defendant (appellant) is occupying the house as the plaintiff’s tenant? (2) Whether it is reasonable in the circumstances to grant the plaintiff vacant possession? (3) Whether the plaintiff is the owner of the premises (this was more or less superfulous in view of issue (1)? and (4) To what other relief the parties are entitled? These are still live issues in this appeal. Mr. Kwikima who represented the respondent in the lower court argued that there was sufficient evidence that the house was at the material time the property of the respondent, or else that the respondent had been granted possession following the sale transaction between him and the late Hassanali Nasser. With regard to the question whether it was reasonable to grant the respondent vacant possession, he submitted that the evidence adduccjd sufficiently showed

that other alternative accommodation was available to the appellant and that the respondent was at law not obligated to find an alternative house for the appellant® Th-3 learned counsel further submitted that between the parties it was the respondent who was in greater hardship and added, rather sweepingly, that the wealthy Hindus in Tabora would loathe to see their priest shelterless and that it is unthinkable that they would fail to secure a suitable alternative accommodation for him within no time* On the other hand, Mr. Patel for the appellant urged the court to find that the respondent had no title to the house and, therefore, that he could not be heard to claim any rent from the appellant, let alone to ask the court to grant an order for vacant possession of the premises„ He pointed out, in that regard, that the building was part of a right of occupancy and that, therefore, 'the disposition of the building by Hassanali to the respondent was not operative in the absence of an approval of the Commissioner for Land. Secondly, the learned advocate submitted that since the only ground for the action was that the respondent required the premises for himself and his family, and in so far as the tenancy was controlled by the Rent Restriction Act, 1962, he had to satisfy the court that suitable alternative accommodation would be available for the appellant and that it would be

reason­ able for the court to make the order asked for* He referred the court to section 19(l)(e)(i) of the Rent Restriction Act and submitted that the respondent had failed to establish those two things. The learned magistrate analysed the evidence and in his opinion he thought that the respondent was, at the material time, the owner of the suit premises. He relied on section 2(1) of the Rent Restriction Act which provides that in the context of the Act a landlord "includes, in relation to any premises, any person other than the tenant, who is or would be, but for the provision of the Act, entitled to possession of the premises .o.o." The learned magistrate thus answered the first and third issues in the affirmative» As regards the second issue - whether it was reasonable to grant the respondent vacant possession - the learned magistrate also answered it in the affirmative. He accepted the contention that the respondent was living in greater hardship and found that the appellant had not bothered to look for an alternative accommodation since March, 1974. He noted that the appellant had conceded, when pressed, that there were about twelve people in Tabora who had houses for letting and he seemed to embrace Mr. Kwikima’s remark that members of the Hindu community who own houses in Tabora would detest to find their priest on the streets and could not have failed to get him a

suitable alternative accommodation® With that, the learned magistrate gave judgment in favour of the respondent as prayed in the plaint, but post­ poned the date for possession for one month from the day of the judgment. Arguing this appeal on behalf of the appellant, Mr. Patel has submitted that the learned magistrate erred in finding that the respondent was owner and landlord of the house. He based that contention on the fact that the respondent did not possess a certificate of title to the property.. His other material ground is that the learned magistrate was at fault in finding that it was reasonable to make the order for vacant possession in view of the provision of section 19(l)(e)(i) of the Rent Restriction Act. The respondent who during the pendency of this appeal dis­ pensed with the services of his advocate Mr- Kwikima, responded by addressing the court briefly about the difficulties he and his family have experienced for the last four years and by urging this Court to disbelieve the appellant's allegation that he has been searching for but failed to* get a suitable accommodation for all that period* With regard to the question whether there was a transfer of title to the respondent, I see that there was no controversy about the sale of the house. But it s e e m s ’that there was no approval of the transfer by the Land Office and that the respondent did not even

pretend to possess a certificate of title to the property.. Regulation 3 of the Land Regulations is a well-known provision® It says that a disposition of a right of occupancy shall not be ‘operative unless it is in writing and unless and until it is • approved by the Commissioner for Land., Relying on that authority and citing the decision in Jessa v, zarilla (1973) LRT 84, Mr. Patel has submitted that there was, in law, no transfer of title to the respondento It seems to me that that argument proceeded on the assumption that the plot on which the building stands is a right of occupancy. But I read through the record and I see no evidence to that effect., Nor do I see any reason to suppose that the land in question was surveyed, for I am given to under­ stand that it was not the practice of the Land Office at the time the building was erected to issue a certificate of occupancy on a grant of land which was unsurveyed or which was not within a registration area. Yet, even if the building was part of a right of occupancy, I see no impediment in law for the respondent's being let into possession, under the terms of the agreement between the parties, pending the approval of the Commissioner for Land. If the respondent could so take and enjoy possession, then, in my opinion, I would entirely agree with the learned magistrate’s construction of section 2(1) of the Rent Restriction

Act, namely that the respondent was a purchaser who but for the provision of 4the Act would have been entitled to possession and, therefore, a landlord in so far as this case was concerned. I will next consider the validity of the order for vacant possession in terms of Section 19(l)(4)(i) of the Act. To start with, I should observe that there was no ques-tion about the appellant being entitled to the protection of the Act. I should also direct myself that the policy of the Act as a whole is to safeguard the tenants' security of tenure and that in a sense the grounds for the tenants' dispossession as set out in the Act derogate from that theme and should, therefore, be carefully and strictly construed* Now, the basis of the present action was 'that the respondent required the premises for his personal occupation.. Under the law the court is precluded from making an order for vacant possession on that ground, notwithstanding that the tenancy has been duly terminated (e.g. by a notice to quit), unless the following three conditions are satisfied:- (1) if it is reasonable so to do. On this point the court is to take into account every circumstance that might affect the interests of the parties and their conduct. 4 (2) if suitable alternative accommodation is or will., be available for the tenant when the order takes effect. (3) if unless such order ismade great hardship will

be caused to the landlord. Of two things there can be hardly any genuine doubt. First, the order of the learned magistrate was not unfounded and I think it cannot be said that it was unreasonable. Secondly, the respondent was in earnest need of the premises. Certainly, the evidence showed that he was miserably discommoded. The vital question, therefore, was whether suitable alternative accommodation would, witftin a month from the day of the judgmenty have been available for him. I should of course agree with Mr. Kwikima's proposition that there is no provision in law which requires the landlord to actually find an alternative accommodation for his tenant under the circumstances. However, it seems that the onus is on the landlord to satisfy the court that alternative suitable accommodation is in fact available for the tenant at the date of hearing or will (not may) be avail­ able at some future date on which the order is to take effect: *See Neville v. Hardy (1921) 1 Ch.

404. That burden shifts to the tenant only upon the landlord making out a prima facie case to that effect. The respondent sought to show in his evidence that the appellant has not bothered to look for alternative accommodation. If that was so then the appellant was inconsiderate if not outright invidious. All the same^that alone was not enough to discharge the burden the respondent carried. On cross- examination the respondent’s counsel tried to elicit an admission from the appellant that there were houses for letting at the material time and the learned counsel drew the court's attention to the appellant’s following words: '’there are about ten to twelve people who have houses for renting." Further, the learned counsel,* as previously observed, invited the court to take the view that about the last thing the appellant's flock would wish to like, is to see their priest without a shelter. Not surprisingly, Mr. Patel has scoffed that assertion. It is evident that Mr. Kwikima was designedly selective It seems to me that he picked and chose only those words of the appellant which tended to support his client's case. He purposely left out the sentence which immediately followed those words i.e. "I never got alternative accommodation from them" (the twelve people). In any case, there was no firm indication that those twelve landlords were at all willing to let their premises to

the appellant. Of course the assertion that members of the Hindu community could have not failed to secure another house for the * appellant was sheer guess or fancy. In my considered opinion, therefore, the respondent did not succeed to establish that other suitable accommodation was available and the learned magistrate should have dismissed the suit on that material ground. In the final event, this appeal succeeds. The judgment and decree of the lower court are set aside and the suit dismissed. Costs to the appellant. 1 (D. P. MAPIGANO)

JUDGE