19980302 TZHC Dar es Salaam 1

• .,. IN THE HIGH COURT OF TANZANIA DAR ES SALAAM M.AIN REGISTRY AT DAR ES SALAAM CIVIL CAUSE NO. 41 OF 1996 BCS WORKERS CONSUMER COOPERATIVE SOCIETY ... APPLICANT VERSUS NATIONAL HOUSING CORPORATION AND 4 OTHERS ... RESPONDENTS RULitiG -? ~ BUBESHI, J: In course of hearing the application for order of certiorari filed--by the App-licalit- M/ S BCS Worfer~- -Co~_sum~~ Cqe>l)~rgJ_i ve __ .. --·· - -· -Li~itijd; the three respondents,namely, National Housing Corporation,Georgina Mulebya and Mariam Joyce Mchar~raised some preliminary objections on points of law. These are that the application is not proper."cy before this Court in thatJit is coming almost three years after the decision of the Regional Housing Tribunal dated 8/9/94 and that the applicants were not parties to the application before the Regional Housing Tribunal which allocated the property;now in dispute,to the 2nd and 3rd Respondentsjthat an attempt to have the applicant joined was equally dismissed by the Tribunal. That contrary to the . submission that the applicant did not appeal to the Appeals • • Tribunal, the 1st Respondent has stated that the appeal by the applicant was dismissed for non appearance - Annexture A to the 2nd and 3rd Respondents counter affidavit . • 2 The respondents are also complaining that the extension of time granted to the applicant to file for leave was wrongly issued in that they were not heard to challenge the grounds for the extension of time. The respondents contend that the applicants failed to file for leave in time because of their own negligence. Further they argue that the application for certiorari is premature as it is being made before exhausting all other remedies available to them (the applicants) first. Again they submit that the applicants were not parties in the application No. 263/94, and an attempt to have them joined was dismissed that the applicants did issue notice of appeal against that dismissal and a subsequent appeal to the Housing Appeals Tribunal was dismissed on 26/7/96. The respondents are arguing that the applicant besides being non parties, did not follow the normal procedure of coming to this court. The applicants in reply have submitted that the Regional Housing Tribunal lacked jurisdiction when hearing the Application No 263 of 1994. And again they complain that they were not made parties although they inherited the lease from General Foods Company. They are infact blaming the 1st Respondent for not disclosing that the applicants were also an interested party. Mr Mkoba has submitted that the Tribunal acted ultravires when it declined to have the applicant joined in the proceedings. One may ask at this juncture what was in the nature of this 3 impropriety. If the Tribunal had acted ultravires the proper forum to have that act remedied was none other but to go the Housing Appeals Tribunal by way of appeal. If the applicant had discovered that the Regional Housing Tribunal had acted without hearing them and this is not synonymous as having no jurisdiction, the applicant was free to make the necessary application to the same Tribunal for them to be joined. Only after being made a party to those proceedings, could the applicant challenge the application either through review or appeal, as the case might be. The affidavit deponed to by one NURU MHAVILE the Chairperson of the applicant says nothing on why the Appeals Tribunal did not hear their appeal. when all facts are considered I am minded to rule in favour of the respondents. The respondents have complained that the court did not hear them on the issue of extension of time by the applicant. As the Court record would show, the applicants application filed on 5/9/96 was for two orders~extension of time within which to apply for leave, and application for leave. And again as the record will show, the representative of the Attorney General - there were five respondents here - did not object to the application for leave as in his view there were triable issues to hear the matter interpartes. That being the position could the Court reject the extension of time? I think not. On the question of extension of time apartlthis court has to address its mind to the objections raised, namely whether the 4 applicant who had not appeared as a party in the lower tribunal can legitimately fight that battle in this court. It is now well settled that no party can come to this court by way of certiorari, mandamus or prohibition unless he has first exhausted all other remedies available. The onus of having the applicants joined laid squarely on the applicants and not on the respondents, especially when the 1st respondent had already indicated to the applicant of her intention to terminate the tenancy as per notice issued on 20/6/94. And if the applicants were aggrieved by the decision of the Regional Housing Tribunal dated 4/1/96, there is no reason why the applicants did not prefer an appeal to the Appeal Tribunal and thereafter to the High Court, in terms of S 50 of the Rent Restriction Act 1984 and Rule 57 of the Housing Appeal Tribunal rules. On that ground alone, I am satisfied that the applicant has not exhausted the remedies available to them. Hence the application filed is not proper before this court. In the final event, I would uphold the preliminary objection, rescind the orders issued on 3/10/96 and dismiss the application with costs. A.G. Bubeslh JUDGE. 2/3/98