19941103 TZHC Dar es Salaam

. ,. . .. ... ... _, • I ... . . ~.' 'J' .' IN THE HIGH-COURT OF TANSANIA . .AT DAR ES SAI.AAM • ~VIL APFE'AL NO. 32 OF 199~· BHUPENDA P. OZA • • • o o o o o : o ..• •o 0 0 0 Ci O o O 0 APPELLANT I versus.•• ' ~ NATIONAL HOUSING CORP. • • 0 00!1100 0 0 0 0 0 ,. RES roNDENT • .,· . ....' J U D G M E N T-: ~AIKASU1 _J • Thi~ is an. appeal by Bhupendra P. Oza, against the onforcement Mder of the lo·:•er court in RM Misc. Case No. 141 of 1993, in execution ""fan eviction orde;r made by ihe Regional Housing Tribunal of Dar es- • Salaam, in At>plication No. 423 of 1988. The application for the execution of +,he eviction order made by .f t~e.Regional Housing Tribunal na:s filed by the Respondent, the National Housing Corporatio!1, and a.dmi tted by the 1ow~r court on Whereupon on 17}5/9-2,., the lo,-•er court made the follo•··ing erder: "Upon the application for execution of decree filed here in by •the Decree Holder, let the Eviction to be isc-ued as prayed11 such application for the execution of the eviction order is~ued by the • I Regional Housing Tribunal does not indicate that a notice ~f the s~e Md been served upon the Regional Housing Tribunal, as"-i-eeiuired under ---- e.48 (1) ~f the Rent Restriction Act 1984. That then is the subject ef complaint by the Respondent which • hi,.s engin•ered this appeal, it being contended by MrQ Novatus R,,,eyenmmu, t I ' •... .learned counsel for the appellant that fail11?"~ by the Respondent to ~erve n•tice of .such filing of th~• ~der of the Regional Housing Tribunal 1:'.i th tlte lower court for execution ;»endEtred the ensuing enforceTl'!ent moder I I by the lower court, s. nullity., . " 2 ... It is the submission by the learned eounsel for the appellant that service of the notice prescribed by so48 r,t the Rent Restriction Act is a conditiol}_,,P,Eec,;:dent for the enforcement as a d~cree ·of the determination rtr m-der of a Regional Housing Tribunalo So that failure by the Respondent t~ serve the notice aforesaid on the Tribunal above mentioned, rendered the enforcement of the determination of the Tribunal incompetent, null and voido It is further the submission by the learned counsel for the appellant that the requirement of the service of the notice of filing on the Tr.ibunl\l Md the transmission by the Tribunal to the RM 1s court of the :iecord e! proceedings of the said Tribunal is intended to make the RM''s court aware ·of the contents of the Tribunal's record of proceedings, so that th~ RM 1e f"ourt may,,~ake certai~ matters ~n the said record into account before ..,• . :' ~xercising its discretion to enforce the Tribunel 's determination ~ ~rder :is '- decree. Accordingly, on the above grounds it has been prayed that the appeal be allowed- setting aside the eviction order E!erved upr,n the appellant, with costs. In reply to such submissiwn, it has been submitted !~r the Resp~ndent that the ··lo,,er court acted properly •-.rhen it enforced the 1Jrder/decree ~ ~ · the Regfonal Housing Tribunal 'immediately_ after the 1'al1le had been filed ';\th the court, ~n the ground th.at under s.48 of the Rent Restriction Act 1984, - . I which gives po,-•er to the RM 1 s court to enforce the determi:nation/erders ~f the RI-IT., ~eft. ~~nothi~!!..~.~bout t~_e. _peririd, after 1-•hich enfoi-cement ehould be· d1rme. If has further been contended for the Respondent ,,,ithout ~y supportive document that the·· Respondent, after filing the applicatien t(j?' execution did serve notice ~f such filing to the RHTo as ?'e(;!Uired by law and that that is the reason ,,•hy the court proceeded to e~ot ·the 1,..· &pp•llant from the suit premises. This court has then been referred. t• the deciP-ion ef this court in the.oaee of ISMAILIA COUNCIL OF EASTERN . -- -- TANZANIA VSc NHC. Civil Rev. Ne,· 12 ef 1994 (U11rep1rted) vrher• it ,-·as held ~ that the filin.JS...~f F-P.C..e,!<!_in15.s !f the, RHT. is not mandatory and that the eou?t wae right-in SJ'dering exeeutie.a witheut e41Jpies @f ~rteeedtngs. It - In ~ply eu1h t. ~e therefer." been pra~d that. this ·appeal be dismiesed ,-•ith cests •. ~bmi11_si1ns for t~~ Respon.de1t lfla.iened eeunsel the 8.ppellant has eubmi tted, i1t'er alia.• that the detisien in fh~ ·"v'ieifl • fF,. ,:- t ease r·ef eped t• &b~w w~ di~tin~ishable !rem the i1stant e~•• in that I whereru,· in the i~taht ea,e, the issu& for dotermination is failui-e hy the R~pondent 'tf tei-ve R•ti•e ti the T~ibunal of his filing of the iwthenticated ii . ,.·• cepy cf the nHTo, "ith the RM 1s COUl"t• in the Revision case cited above the issue was the failure of the 'h,i1'unal to t~an~mit it~ r0cord of its proceedings in respect of the order th~ su~ject of enforcement by the RM 1s eJurt. As at the centre of this appeal is the controverey as to the import t,f t the provision under so48 of the Rent Rer:-triction Act 198Lf 9 I propose to reproduce it in extenso for ease of reference. That section provides: 11 48 - (1) A duly authenticated ccpy of the determination or order of the tribunal may r:e fileq.. in the coUI't by any party tt, the proceedings and on su~1l.._o~ .1?_~~~~}.E,_tpp_ .~z:1:.~EE.t:l.,_12x__~l'J.l~!!.+J-.PE. th~ s~~, such determination or order may be enforced as a decree ~f the court. (2) In any case in ,,rhich such determin~tion or order has b~eri filed by a party• the tribunal shall, on being served with netice of the filing ~f ~uch determination 8r order transmit to the court its record of the preceedings before it and the same shall be filed by the ceu?'t aleng •·ith the eertified copy of the determination or erder. 11 (Emphasie supr,lied) . In my judgement, it is my considered opinion that vhile I haven,_, quarrel dth the soundness of the decision of this court in the ISMAILIA'S Revision cas<-> cited above in the light of the facts of that ca-se, in the instant ca-se and in the light of the facts bef9re the 101,,er ceurt and the pro•isien of the law cited above, the contention by the learned counsel for the,.appl,11lant appears to be sound. I am clearly ()f the vie,-, that the tiling ,r 81 a duly authenticated copy of the determination or order ~f the Regional Heueing Tribunal "ith the· RM 1 s court, and the notification of the eame t-, the RHT. by the party so filing ~uch tribunal's determinatio~ or erder for enforcement by the RM 'e cou:Pt, are ~~o•...;.o~i-~~e~denJ,, tt the action by the RM 1s e8urt t~ enferee such tribunal's determination/order. This put in eim~le ter.ms before in RM's oeurt may take My action to enforee the determinatien or order ef a Regional Housing Tribunal, the party ii.,.tending t• . •nf.,ee ·, the same muet, fi~st, ~- ..... file with the court a duly authe~ticated copy • -r \he determination or order of the tribunal and~~• serve the tribunal with noti~e of 11uch filing of the determination or -order of the tribunal in the court. Without the t,-·e steps having berm accompli::3hed, the RM 's court weuld be ~eempetent tt", embark '123- the enf,o,I'Ceme.nt of the determination er ·., i,rder of the T!-ibunal before ito Ofc.;QO,,C. I L,_ IO 4 - I do ho,,•ever, entirely agree with the Respondent, that once the b,o . ' . steps referred to atJove have been accomplished, the RM's court need not, ae . 1,,as also held in the ISMAILIA I S case ' cited above, •-.rait for the proceedings of the tribunal before talcing necessary measures for the enforcement of the determination or order of the tribunal. .. Now while it is the t contention . and submis2ion of the learned counsel for the appellant that when the lo, ·er court acted upon the Respondent 1 s appli- cation before it to have the tribunal's determina~ion enforced, no notice of . the filing of such., application ,,,ith the court ,!,as served upon the tribunal, in tts, submission, the Respondent corporation has contended that such notice was served upon the Tribune.lo Apparently no evidence of service of such ~ . . notice is to be found in the record of the 101-•er court 9 nor is there anything to substantiate such claim by the Respondent c·erte.inly as the Respondent was .... the one in the best position to know hov such SP.rvice vas effected, the Responde·1t corporation •1as duly bound to furnish this court 1.-•i th documentary evidence ';o substantiate such claini. TI.is court is therefore enclined to go by the argument for the a.pr,ellani that the Respondent did 9 i!:i fact, bail to serve the tribunal ,.,ith • notice of the filing by the Respondent of the tr~bunal 1 s determination, with '• court. ·the lo•-•er Thus as .,observed earlier, . . in the circumstances, the 101-•er court ,,,as incompetent to enforce the tribunals determination/order that led to the eviction of the,appellant from the suit premises. . ' t. This court notes, however, that in~the proceedings before the Regional Housing.Tribunal that led to the eviction order being made against the appellant, on appeal by the appellant to the Hou.sing Appeals Tribunal against . such decision the appellant lost and there appears no intention to appeal against the decisi<~m of the Housing Appeals Tribunalo It follows therefore that • the eviction order made by the Regional Housing Tribunal against the appellant still stands. The effect therefore of this judgment is to allow the appeal ,,,ith costs, • quashing the enforcement proceedings of the lower court vith liberty for the Respondent' to {ile &-f1~esh vrith the lo•,rer court such determinatioL, ·v..:·..:'..;:..r • . of ,the tribunal . for enforcement ' in full compliance, 1·ith the requi,-ements of -e.48 of the Rent Restriction 'Act: 198~-, that j_,s 1 to say ,,,ith due notice to the tribun~l of such filing by the Respondento . . Order accora~ngly. t • Delivered in chambers ;this 3rd day of November 199Lf, in the presence of Mr. Rweyemamu counsel for thn appellant. •. ,, R. MWAIKASU JUDGE " Certified that this is a true copy of the_ original ju~gment. ·• /r?:!i ~G]ST¾.B .r~I ' '.J ...