19880226 TZCA Dar es Salaam5

11111""/ IN THE COURT OF _LDPE~L OF TANZAHIA V ------ AT DAR ES SALAhM CIVIL APPEAL NO. 40 OF 19a".)-- I .NY:A1=_.ALI,__ C.J. ,. ~.AME.LJ ,A. -¥ID qMAR....L J .A,

A ALI RASTIID Versus .ASMATID:lAN HAKIMKHAN ••••••••oto•o•••••••••••••••••••• RESPONDE?T (Appeal from the dootsion· of the High Cour.t-- of Tanzania at Dar es Sal~am)(L. Kyando J.) da.ted the 29th day of June, 1987 in Civil A:eP.!:al No. 33 ot_.1986 This is a second ap:pe::i.l in a cpse origina.ting in the court of the Resident ~istr~,te at Kisutu in DAr es Salaam where the appellont, that is, Ali Rashid instituted a suit against the respondent Asm-,-tkhan Hakimkba.n praying for an order_ directing the respondent to accept payment of rent and to be restrained from annoying the appea,llnt, and for the costs of the suit and other reliefs as may a:ppe..,r just. The resl)ondent in his written st,9tement of defence counter-claimed for vacant possession of the suit premises and payment of mesne profits at the ra.te of abs. 700/= per month from Janu::i.ry 1980 to the d13.te of vacimt possession, with coats of the counter claim. The trial court 1 disinissed the suit with costs 1 gg_ve judgement in fPvour of the respondent a11d ordered a.ppella.nt to va.cate by a given d.qte, and to pay arreas of rent. The appellant was aggrieved by the decision of the trial court and he appealed to / . the High Court at Dar es Sal"'am, but the appeal w::1.s dismissed ,-1 ith costs. Thereafter, v" rioua fruitless efforts ·were m~de both in the trial court and in the High Court for stay of execution of

the order evicting the appellant from the suit premises. The appellant w~s further aggrieved by the decision of the High Court, hence t'.Jis appeal to this court. Mr. Lakha, lec1.rned advoda.te, appeared for the appell8nt, whereas Mr. Lukw;:;xo, of the Tanzania Leg~l Corporri.tion, appeared for the respondent. " In the course of the hea.ring of tbis ~'f)peal~ Mr.;: Lakha. informed this court th-.1.t the order evicting his client was . !, • axecuted while this aµpeal was pending., and he prayed th<).t this court orders ... t, ~ ·restoration of possession of the premis~& to the appellant. ,.. ,. .. ': ',, ·."'I! . ··•. 2 From the proceedings both in this court and the two courts below, the following matters 2re not in disTJute between the parties. It is common ground that the appellant and the respondent were -t a, 1 m,,teria.l times ten8,nt and iandlord. respectively in respect of premises c:mstituted by n·:~.t No. 152 which is p~rt of Plot No. 264 belonging to the Ismailia Building Development Ltd. along Alykhan RoP.d in Da.r es Sa.barn. It iscommon ground also that the respondent purch:::3ed this flat sometime in July 1975 from a. former la.."l.dlord of the appelh.nt, that is, one Mrs. Sakerkhanu Bhatia. The rent payable for the suit premises w;:,s shs., 314/= per month., Furthermore, it is common ground th"'t the suit premises 1,Iere for resJdenti-:1 purposes. By early 1980,

serious misunderstandings arose between the p<1.rties culminating in t:-ie respondent's refusal to accept payment of rent and complaints reg"'rding alterations made by the ,appe7 lant to the suit premises ,-iithout the respondent's consent. It is common ground also th-t the appell8nt h?..d built a garage which he used for the repair of motor vehicles at the suit premises. He h'.1d also built a wall enclosing the premises. All tbis ,,,,s done 1•1itl1out the consent of the respondent. By M:1rcb 1980 the res-;:,ondent, acting through his advocs.te, tl1c. . .t is, Mr.

11. A. Mucc::::dam, h.-:i.d required the appellant to vacP,te the promises. The appellant did not vc1.cate the suit premises but res1;>onded by instituting this suit" That is as fa:r as the matters the1t are not in dispute between the parties are concerned. We now turn to disputed matters. The appellant's contention is th~t the responddnt is not entitled to an order of vacant possession under the Rent Restriction Act sj_nce he has neither given due notice to the appellant for vacRnt :posseasion, nor offered altcrn2tive accomraodation where the appell~nt could reside after vac:,ting the suit premises. Furthermore, the appellant contends th,.,t even if it is found that the appellant had committed breP.ches of obligdions under the tenancy by oonstructill8 the gar2,ge and surrounding wall, it is improper to order va.cant possession, since other appropri!"te remedie-s are available to the respondent, such as rectifiction of the alleged bre,.,ches. The respondent on his p."!rt, contends' th-,t due notice for vacant posses·sion was given and appropria.te altern..,tive accommod~tion was offe:t'ed to the appellant, but the lat°tr refused to see the premises in question • • . .. /3 ... f>,:; ... :; ~ 3 At the trial in the court of the Resident Magistrate, the following issues were framed by agreement of the parties.

1. Whether :the defendant should be ordered to accept rent. 2., Whether the defendant should be restra,ined from annoying the plaintiff.

3. Whether the defend9.nt is entitled to vadant possession of the suit premises as cLdmed in the counter claim.

4. Whether the defendant is entitled to mesne profits from 1st Janu~ry 1980. · 5. What reliefs are the p.'lrties is entitled to? In this appeal, the arguements of the ps.rti es were centred on three m.3.in points, and these arei- 1. Whether the appellant was given due notice of v::i.ca.nt possession by · the respondent; 2. Whether the appe'J.lant wa.s offered ;::,.l tern,-,tive accommodation by the :tespondent; and 3. Whether there w;c,s a main ch01nge of user of the suit prer!1ises resulting from· the appellant's actions of building a gar.?.ge and a wa,11 ;,;,_.round the suit premises. We sh~,11 start with ttie third point first. It is ·obvious th:-,t this ~ matter is governed by the Rent Restriction Act, 1962 before it w,qs repeal led and :replaced by the Rent Restriction Act No. 17 of 1984. Under section 19 s,ub-section (1) paragraph (L), an order for eviction of a ten:-,nt may be sought upon the ground thr-t "the tenant uses the premises mainly for business, tr~.d.e or professional purpol';es without the consent of the h.ndlord". We have asked ourselves whether on the evidence which is common ground, it can be said that by building the g"rage and the enclosing wall the appellant -- changed the use of the flat to such an extent th-:1,t he used the premises mainly as a. garage for the _repair of motor ve!:iicles rather than for dwelling purposes. The evidence sho,,,s the.t

the gar:o,ge activities are carried out solely in the compound of the fla.t. The house or fb.t itself continues to be used fo:r residential purposes. He e.,:-e satisfied th~t on the evidence it can not be s2id th<:>t tbe a,ppel.lant ch,,nged the use of the suit premises from thct of being solely for dwelling purposes to th:,t ()f being main.1z for garage purposes. No order theref0re for eviction can be justified on this ground. ••. /4 4 ... With regard to the second. point, we note th:i.t the question· of al terne.tive c1.ccommod:--ti'on under the Rent Restriction Act, 1962 arises only under the . ,.~ \ ,. .. provisions of section 19 sub-section (1) paragraph (E), that is, there the "I lando~mer seeks to regain possession of the premises for "occupation as a residence for himself or for his wife or children, or for any person bona fide residing, or to reside with him, or for some person in his whole time employment or in the whole time employment of some ten::-:nt f-i'.'om him, or for os-cupation of V·1 e person 1vho is entitled to the enjpyment to the pre'.!lises under a will, or settlement••••••••••••••" Undoubtedly, in the present c~se according, to the evidence, the respondent initially wanted va.cant possession of the suit premises for use by hiinseJ.f and his fomily for· residenti:31 purposes. Later, he ch.,,nged emphasis ::ind sought vacant possession on the ground th;:t

the appellant .wa.s in breach of duties or obligations under the tenancy, as a result of construction of the gs..:t'£J.ge and the surrounding wall. Such a bre:;J.ch in our O\m view constitutes a ground for seeking an eviction order under the provisions of section 19 sub-section (1) paragraph (a) as a case where "any rent l:::wfully due from the ten:-=int has not been paid, or any o~r obl~gation of t~ tenancy~eth~r un~ the agreement of ,!enanoz•.-•.. w· O_E under_this Actl sofar as this _is c:.msistent with t~ _E['OVisions .~l.~~~"'s ~ been broken. or not ~formed". ( relevant P""rt underlined) There can be no doubt th:>t the appelbnt, in building thE: gr:.r8.ge and the · surrounding w,-,11 committed bre,-ches of the tenancy agreement. Mr. Lakha, lea.med advocate for the 2.ppelbnt did not contend other,,:ise in this a}Ypeal., His arguement is tha.t such breB.ch does not justify an order of eviction under the Rent Restriction Act, since it cRn be rectified by sto~ping the garage activities and pulling down the wall.. With due respect to Mr. Lakha, we can find no provision under the Rent Restriction Aat to su-1port his submission. On the contrary, the provisions of section 19 sub-section (1) ·pa,ragraph (a) appe~r clearly to all~w a landlord to seek an eviction order upon such a breach. Whether the court hearing such a suit would grant the eviction order requested by the

landlord would depend on the reasonableness of such an order ·- as provided under ~ection ' 19 sub-section . (2) of Rent Restriction Act, 1962 as amended" by Act No. 57 of 1966 by section 16 paragraph (b) where it stated~- ,•••. /5 - 5 - "In any case arising under sub-section (1), no order for recovery of . possession of premises sh?ll be made unless the court is satisfied by or on behalf of the landlord, that h8.ving reg"rd to all the circumstances of the c:::,.se, it is reasonable to make such an order. • ••• 11 We sh·:-:1Lreturn to .. th.i:J qu0stion of reasonableness ::,f the- eviction order after considering the first point, above mentioned. The respondent relies on two documents to show that he gave due notice of eviction .to the appelbnt. These documents were tendered at the trial as exhibits Dl and D3. Exhibit Dl is written by Mr. Muccadam, an advocate for the respondent, and w~s addressed to one Mr. Rashid Suleiman of P.O. Box 2421, Dar es Salaam and was dated 15th M"l.rch, 1980. The letter clearly notified the said Rashid Suleiman to the effect th"1.t he ha.d constructed a garage at the suit pr~mises without the consent of the respondent, and notified him of the respondent's intention to take possession of the suit premises in a month's time from the d8..te of receipt of the letter. Mr. Lakha has submitted thnt there is no evidence to show tha.t exhibit Dl reached the

appellant., since on the fr·ce of it, it was addressed to a wrong person and at a ·wrong address. We agree with the submission of Mr. 18.kha and find tho.t exhibit Dl can not be construed to be due notice given to the appellant. The second document, that is, exhibit_ D3 is a letter d::ited 31st March, 1980, addressed to M/S Rahim & Co., advoc~teB for the appellant by Mr. _Muccadam; advocR.te of the respondent. It 11:otified Mr. Ra.him a.dvoc-:ite for the m.:ppellBnt, about the breaches committed by the appellant at the suit premises, and about another notice for vacant possession, previously served upon the appellant on the 15th March, 1980 which cr,lled upon appellant to quit the suit premises. Exhibit D3 was undoubtedly received by Mr. Rahim advoc,.,te for the appellant as evidenced by a letter written bir Mr. Rahim to Mr. Muccadarn dr.ted 10th April, 1980 and tendered 9t the trial as exhibit D4. Exhibit D4 makes ole~r reference to exhibit D3. It follows therefore that Mr. Rahim mu.st hP.ve re- c-eived . exhibit D3, a.t the latest, on the day ,-.rhen he wrote exhibit D4, that is, on the 10th of April 1980. J3ut does exhibit D3 constitute due notice sufficient to teminate the tenancy agreement? Exhibit D3 is a brief letter and its· relev?.nt portions may be reproduced here for purposes of clarity. It readsi- ,, ••• /6 6 I ., "Thanking you for your letter HR/PR/124/80 of 27th

M'<rch, 1980 enclosing_ your cheoue No. Al65639 of 24th M"rch, 1980, My clj_ent h?.s noticed thc-t your client hc;s carried out alteration work in my client's building without the knowledge consent or approv'1,l of my said client, and has in fact turned the compound of the ground floor end portion of the ground floor itself into_a garage contrary to the tenancy agreement. The building is strictly for ,residential purnoses and your client lmows this fa.ct all along. Under instructions from my client we h:lve alre--dy on 15th March, 1980 served your client with a notice to quit. Since your client is clearly in bre,.,ch of the tenancy .agreement I return herewith your above cheque." Mr. Lakha has argued th-"1.t ezhibit D3 does not constitute d~otico sufficient to· termin,.,te the tenancy agreement bec,c,use it does not give a month's notice expiring at the sr,me .time as the month-to-month tenancy. In his view, if exhibit D3 reached Mr. Mucc9dam on the 10th April, 1980, that is, the date when exhibit D4 was written by Mr. Muccadam, the notice expired on the 10th Hay• 1980 when a new monthly tenancy had cormnenced to run. Ex:hibit D3 would therefore not qualify to terminate the May ten::-•ncy and was invalid and of no legrl consequences. Mr. Lakha cited no authority in su,;iport of this proposition. On our part wh""t we kno,., contra.diets Mr. Lakha 1 s st~nd. In pc•ragraph 663 of

W00DFALL' s Landlord ruid Tenant, 27th Edition it is s·,ted at page 277: "•••••• Monthly and weekly tena.ncies are simil'.:l.r to ten'.'lncies from ye<1.r to year in that they do not expire at the end of each month or week, but contin~e for a period of time until determined by due notice to quit. The proper notice, unless the p.".>..rties agree otherwise, is, exce;p_!.~. ~_,£?s_e o:t: :1~w.elling, a month's or week 1 s notice, as the case may be, expiring at the end of the.-aarret:t period of the tenancy. • • • • .. • • • ' No notiC':_.El, a b.ndlord to quit ~Y.. L1:!J£i..?..~.S.. .~t....-~.1?....ac;_w_e]..]._ip_~- ..:~~- .v:-:_~id ~l~ss &ive~U~E- -~~Sl f9_~r-~~-~I?•."?.~.f-~.r)e th.~~on ~,pi~h: ..~_ti_:::i~.~ to take effect." 1,.relev..,nt part underlined It is clef.!,r thet the need for coincidence or concurrence l)etween expiry of a current period of tenancy and the expiry of a month's or week's notice does not apply to dwellings. In the cr,:i.se of a monthly tenancy of a dwelling• wh,.,t is required ia at least a month's notice before the tr--n"'rnt is cnlled upon to quit, In the present c~se~ Exhibit D3 constitutes due notice sufficient to tei,ninr~te the tenancy in question in a month's time from the 10th April 1980 when Mr, Re.him• advoc-te for appellant received it. There is one point that we need mention here on the question of notice. The High Court, Kyando,

J., apprO?ching the matter differently, found no due notice given to the tena.nt. This conclusion was arrived at apparently as a result of a non-direction on tl:1e· part of the le3rned judge concerning the ••• /7 7 : signif iccnce of exhibit D3. The learned judge proceeded to treat the suit itself as constituting the appropria.te notice. With due respect to the learned judge this WAS a serious misdirection of law. An eviction notice baa to be given prior to the institution of. suit, since it is the fa.ilure to comply with such notice which necessit2tes instituting a suit in court. There is another matter which was raised-by Mr. La.kha before us in respect of which we need. only make a passing reference. Thia concerns a visit by the ----- trfal court to the l~~ in ~ • We agree "!ith Mr. Lakha that the visit was contrary to the rule laid do1-m in the case of Nizar Llf•_-~aE-.~~---v~~ ~!.~a.3:.-h la;.~_;-__~-~-o~~~-J!.2.~ TLR 29. We are ho1-rever of the settled view that the ca.se for the respondent does not rest on the evidence improperly taken by the trial court in the course of the visit to the locus i ~ • We now come to the question of reasonableness 0f the eviction order. Mr. Lakha haa submitted in effect that it is unreas~-m.ble to evict the appell.:i.nt from the suit premises on account of breaches of the t~ne.ncy which can be rectified by order of the court. With due

respect to the learned advocate, we think this submission untenable. This is because the reasonableness of an eviction order has to be determined in accord,,nca., with the circumstances , existing at the time of the order, and which exist without the intervention of the court. In the present case, the respondent spurred on by the appellant I s breaches of the tenancy agreement, wanted his premise~ for his 01:1n occup,:,tion. In our v:-iew it is reasonable for the owner to be allowed to enjoy his own property. It follows therefore th?t the order for the eviction of the appel12.nt from the suit premises is reasonable. Before we give our final deciai6n in t~is c~se however, there is an important matter of .procedure which c~lls for oonoont and guid1mce from us. As alrea.dy ment:i.oned, this is a second appeal. It was Ill-3.de with the leave of the High~ ,· 'l1ho.:::tccord ahoifs ·tti';!.t-:-·,J --~ .,,._ft~ .. d~live.ry of the judgement of the High Court on the 29th June, 1987, Mr. Lokha mnde mi oro.l o.pplicc.tion for leave to appea.l to this court. The High Court grMted the applicdion in the following words:; "Order. Le..,ve, if there is need for one, grr-i...nted to the appellant to ap_pe2,l to the: Co~t of Appe?.1 as prnyed1' • We are of the s~ttled view :th:=:.t this W:"I.S an improye1' way of m'.'lkiq.g the application a~ granting it. Under rule 45 of· the ~an2ania Court of

Appe~l Rules 1979, all applic~tions, ,-,ith few exceptions, are re')uired ·to be made by ' <\ .. • \ •· cl.,,... 8 11 motion supported by grounds upon ~1hich the e:r,1plic'1.tion is rn-:i,d.e. The only two exceptions concerns, applications m:1de in th~ course ,of a heaJ'.'ing, or applico.tions m·:ide by letter with the coruJGnt of the pD,rtios. The present a:pplic,.,tions doas not fall in 2..ny of the two exceptions. It is neither nn ' applic~·tion by consent letter nor [l,11 a~)plication ffi'.1,de in the course of heo,:r.ing.. As for the 0rder gra.YJtir.g le~ve 11 it was improp0r ns it ;;··..ve no sufficj_cnt rec:ts::ms for granting :=iuch leave. Since no objectjon w2,s raised against the propriety of ·the order gran;ting leave to appeal, we so,y no more. We nm; return to the merits of the n·,penl. In con3equence of our findtngs m:1.de in the body of this judgernent, we are bound to dismiss this appeal Hith costs and we do so accordingly. Dated at D'l.r es Salaam this 26th d::-,y of Fabrwry, 1988. F. L. NYALALI

CHIEF JUSTICE 1·. M. MAKA.ME JUSTICE OF .APPEAL A. M.A. OMAR .. JUSTICE OF ApDE,\L ~ r~certi.Cy th~t thfa ia n true copy of the J. I·I. MSOFJ!'E SEifIOR DEPUTY TlEGTSTR!.'.R ·-•--· .