asha seif another vs renjeet gakal damji 2009 tzhc 258 13 july 2009

IN THE HIGH COURT FOR ZANZIBAR

HOLDEN AT VUGA CIVIL APPEAL NO. 09 OF 2008 FROM ORIGINAL DECREE RRB'S CASE NO. 05 OF 2001 OF

THE RENT RESTRICTION BOARD AT MICHENZANI ZANZIBAR 1. BI. ASHA SEIF 2. BI. ZUWEINA SEIF ....... APPELLANT (ORIG. DEFENDANTS.) VERSUS. REIMJEET GAKAL DAMJI ....... RESPONDENT (ORIG. PLAINTIFF). JUDGMENT. MWAMPASHI, J. The Respondent Ranjeet Gakal who had been declared by the District Court at Vuga in Civil Suit No. 3 of 2000 the lawful owner of certain premises situate at Sokomuhogo within the Municipality of Zanzibar in which the Appellants Bi. Asha Seif and Bi. Zuweina Seif are tenants obtained from the Rent Restriction Board, among other orders, an order for the appellants to vacate the premises. Being aggrieved by the decision of the Board the Appellant have appealed to this court. In this appeal at it was before the Board the Appellants have been represented by Mr. Salum Mnkonje - learned advocate while the Respondents has been represented by Mr. Uhuru Khalfan - learned advocate. A total of eight (8) grounds have been raised in support of this appeal as follows:- 1. That the whole proceedings before the Rent Restriction Board was a nullity as the matter was not heard a fresh as ordered by the High Court and that there was no fresh evidence taken as required by law.

2. That the Rent Restriction Board erred in law by declaring the ownership of a disputed house while it had no jurisdiction to do so.

3. The Rent Restriction Board erred in law on interpretation of section 19 (I) (e) of Cap. 98 by ordering the Appellants to vacate the disputed house within 3 months instead of ordering the Respondent to provide them alternative accommodation.

4. The Rent Restriction Board erred in law when holding that its judgment was the continuation of the judgment of the District Court instead of giving its own judgment.

5. The Rent Restriction Board erred in law by continue (sic) disposing the suit instead of staying the same when there was application on the same issue before, the High Court.

6. The Rent Restriction Board erred in law and fact in finding that the Appellants were not paying rent when there was proof that the real owners had instructed them to pay rates, times (sic) and carry out periodical renovations and maintenance in lieu of paying rent.

7. The Rent Restriction Board erred in law and fact in contemning with the purported will and letters of administration legal was a subjudice matter before the High Court (sic).

8. Generally the proceedings and judgment was bad for not fulfilling the prerequisites of a judgment. It also suffices to point out at this very stage that the decision of the Board which is being appealed against in this appeal is a result of the order of this court in Civil Appeal No. 07/2002 that the Respondent's earlier case against the Appellants and which was on the same cause of action be heard afresh by the Board on a proper procedure. This court did nullify the proceedings and decision of the Board in the earlier case and did order that the case be heard afresh after it had been found by this court that the Board had entertained the case without having the quorum as per law, that the Board had given the judgment which was not based on the voting of the members and that there were other irregularities which entailed a fresh hearing. Arguing on the first ground Mr. Mnkonje has asked this court to agree with him that the whole proceedings from which the decision appealed against come are a nullity firstly because the matter was not heard afresh as per earlier order of this court. Mr. Mnkonje has further submitted that the Board did also err in not recalling the witnesses after the change of Board members even if that was done after it has been agreed by all the parties because there is no agreement or consent against the law. He has also argued that the Board could not

apply S. 9 (3) and (5) because the provisions do not allow the Board not to recall witnesses. Mr. Mnkonje has also contended that the Board was supposed to hear the matter afresh in accordance with Order XXI, rule 3 of the Civil Procedure Decree, Cap. 8 which is applicable to the Board under S. 119 of Cap. 8 and under rule 2 of the Rent Restriction Regulations as the Board is yet to depart from the procedure under the Civil Procedure Decree. Mr. Mnkonje has lastly argued on the first ground that under Order XXII, rule I of Cap. 8 hearing is by examination of witnesses or by affidavit and not by witnesses' dispositions. Responding to Mr. Mnkonje's arguments on the first ground of appeal it has been contended by Mr. Uhuru that the Board heard the matter afresh as this court had ordered. He has however pointed out that at one stage when the members of the Board were changed and replaced by new members it was agreed that the witnesses who had testified before the former members should not be recalled but that their testimony on record be read to the new members and that the new members be given an opportunity to cross-examine the witnesses. In so doing Mr. Uhuru has argued, the Board properly applied S. 9 (30 and (5) of the Rent Restriction Decree Cap. 98 of the Laws of Zanzibar. I would like to pose here and point out that Mr. Uhuru is right when he argues that the Board did hear

the matter afresh as this court had ordered in Civil Appeal No. 7/2000. It is very clear on record that when the matter went back to the Board fresh hearing was started by the Board on 24/03/2005 when the Respondent gave his testimony. - Then the hearing proceeded on 26/05/2005 and on 23/03/2006 when the Board heard evidence from the other side. Up to that stage it cannot be complained by anyone that the Board had not followed what this court had earlier ordered i.e. fresh hearing. The Board did indeed start to hear the case afresh. The Appellant's first ground of appeal however centre on what did happen on 01/03/2005. On that date almost all the members of the Board who had heard the whole evidence except for one remaining witness who was to be called by the appellants had been replaced by new members. It was only the chairperson who had not been replaced. Because of that change of members is was agreed by the Board and the parties' counsels that there was no need of recalling the witnesses who had already testified before the former members because their respective sworn testimony which was on record could be read over to the new members who could be given an opportunity to cross-examine the witnesses. In doing so the Board, as it is put on record, was invoking S. 9 (3) and (5) of the Rent Restriction Decree, Cap. 98 of the Laws of Zanzibar. The dispositions of the

witnesses were therefore read over to the new members and thereafter the Board delivered its decisions. Mr. Mnkonje is now arguing that the procedure adopted by the Board though agreed by them was not proper. He argues that the Board ought to have ordered the recall of the witnesses and that S. 9 (3) and (5) do not allow such procedure to be adopted by the Board. I think Mr. Mnkonje is right. It is my view that because the whole testimony from which the decision of the Board,was to base had been given in the absence of almost all of the/Board members were supposed to hear the evidence directly from the witnesses in order to be in a better position to properly decide on the matter. I think that because the said witnesses were #all readily available as the record show that they were present when their respective recorded dispositions were being read to the new members then there was no reason why their testimonies were not retaken. The members were denied the opportunity of properly accessing not only the given evidence but also the witnesses' demeanor which is important in weighing the credibility of evidence. The members were also deprived of their right to fully and properly participate in the hearing and hence in being in good position to give the decision. My observations are also that provisions of S. 9 (3) and (5) of the Rent Restriction Decree under which the Board

purported to act were neither applicable nor relevant to the issue which was before the Board i.e. whether the witnesses needed to be recalled or not. The said sub-section provide as follows:- 9(3) In its determ ination o f an y m atter a B oard m ay take into consideration any evidence which it considers relevant to the su b ject o f the inquiry before it, notw ithstanding that such evidence w ould n o t be adm issible u n d er the law relating to evidence . (4 ) ........................... (5) In so far as no o r n ot sufficient p rovision is m ade b y regulations under S. 39, a B oard m ay regulate its own p ro ce d u re . As it can be observed sub-section (3) does not talk about the procedure or the manner evidence is given and received before the Board but on certain evidence which may be given and received by the Board the evidence which would normally not be admissible under the Evidence Decree or any other laws relating to evidence. This sub­ section is not on how the evidence is to be given or received by a Board but on what evidence may be given or received. The sub­ section relaxes the strictness of rules of evidence in as far as certain pieces of evidence are concerned when such evidence is brought before the Board. Sub-section (5) surely allows a Board to regulate its own procedure where no or no sufficient provision is made by regulations made under S.

39. It is also not disputed that to the moment no regulations have been made under S. 39 on how evidence has to be taken by a Board. It is however clear that the Board, undoubtedly acting under that sub-section, has, in as far as how evidence is to be given and received by the Board, regulated its procedure by adopting the procedure provided for under the Civil procedure Decree, Cap. 8 of the Laws of Zanzibar. The procedure adopted by the Board is that facts before the Board are proved by oral evidence. Witnesses appear before the Board and they are sworn or affirmed before they give their - testimonies and the parties^ cross-examine the witnesses. Of course the Civil Procedure Decree allows that facts may be proved by affidavit but what the Board allowed to be read to the new members, though had been taken under oath, were not affidavits. By not affording the new members an opportunity to directly hear the testimony of the witnesses the Board did not therefore only contravene its own adopted procedure but it placed the members not in better position to properly decide the matter before them. The above observations are enough for this appeal to be allowed but there are other two important points which need to be pointed out. The first one is that the decision of the Board was not made by a proper quorum as it is provided under S. 6A (3) of the Rent Restriction Decree as amended

by S. 5 of the Rent Restriction (amendment) Act No. 3/1987 and the second is that the decision made by the Board is not shown to have been decided by a majority of votes as it is required by S. 6A (4) of the same above cited law. The composition of the Board is as provided under S. 6(1) of the Rent Restriction Decree as repealed and replaced by S. 5 of the Rent Restriction (Amendment) Act No. 3/1987 thus:- A Rent Restriction B o a rd appointed under the provisions o f this A c t shall consist o f a Chairm an, who shall be appointed b y the President, a S e cretary an d such other m em bers w hose n u m b er shall not exceed five as the M inister m a y by notice in the Gazettee from time to tim e appoint. In as far as the quorum of the Board is concerned according to S. 6A(3) of the Rent Restriction Decree as added by S. 5 of the Rent * Restriction (Amendment) Act No. 3/1987 any Board meeting shall be constituted by a quorum of five members. It is provided under the provision that:- Three m em bers o f the B oard in addition to the chairm an and the S ecretary shall constitute the quorum a t an y Board m eeting . It can be deducted from the above cited provisions that the quorum is formed when there are the Chairman, the Secretary and any three members among those members who are appointed by the Minister under S. 6(1). The quorum is therefore by five members and not more. What

has been observed from the record is that at almost all the meetings the Board met for hearing the evidence in regard to the case at hand no proper quorum was formed. I have^noted that there is a misdirection or wrong interpretation of S. 6 (1) and S. 6A (3) on the part of the Board. It is wrongly taken that since for the moment the .. Minister acting under S. 6(1) has appointed five members then the quorum is formed even when all the five so appointed members attend in addition to the Chairman and the Secretary. For instance on 01/03/2007 there were six members in attendance and on 17/03/2007 seven members attended the meeting. This was wrong because the number of members exceeded the required quorum of five members. Furthermore on 06/09/2007 though the required quorum of five " members was formed two members who had attended the last two meetings were missing and even on 04/10/2007 when further evidence was being adduced the required quorum was formed but again two members who were present on 06/09/2007 were missing. Even on 06/12/2007 when the evidence of the late Ali Hamad which had been recorded by the District Court was read and introduced to the Board one member who had been present at all the last hearings was missing as well as one member who had missed the last hearing. It can be observed that the three members among the five members appointed by the Minister

attending the Board meetings were not the same throughout and it goes without saying that those members who had missed some of the meetings had missed a great deal of relevant evidence which the Board received in their absence and for the case there is no way it can be said that those members could have properly decided the matter before them. It has to be emphasized here that five members who form the quorum on the first day the hearing of any matter is commenced should be the ones who should attend all the subsequent meeting in regard to that particular matter before the Board until the matter is finally decided. The five members should not be changed unless there are sufficient reasons of doing so. Where the hearing of any matter is . proceeding and where before the matter is finally decided any of the five members, for sufficient reasons, is replaced by a new member, the hearing of the matter should either start afresh or the evidence introduced to the Board in the absence of that new member should be introduced to him. Not all five members appointed by the Minister in addition to the Chairman and the Secretary need to attend in every case before the ” Board. In every case before the Board, if the Minister has appointed five members, there has to be only three members in attendance and the two remaining members should not attend to that case. The two members have to be left

free and may only be joined to the case if any of the three members forming the quorum of five has to be replaced. In other words whenever there is a new case before the Board three members from those members who have been appointed by the Minister have to be randomly chosen to join the Chairman and the Secretary so as to form a quorum of five members as it is required by S. 6A (3). As to the question of the decision of the Board not being by a majority of votes of members, the relevant provision is S. 6A (4) of the Rent Restriction Decree as added by S. 5 of the Rent Restriction (Amendment) Act No. 3/1987 which states:- A t an y B oard m eeting any m atter to be considered an d be given decision on that m atter sh all be d ecided by a m ajority o f votes o f m em bers p re se n t an d voting and in the event o f equality o f votes the Chairm an o f D ep uty Chairm an o r any person p residing shall have a casting vote in addition to his deliberate vote. What the above provision require is not only stating that this is what the Board has decide but also and of most important is that the record should show that the members have really so decided. Record should show that the decision has been reached by voting and should also show how the members have voted. It should be shown by the record what has been the vote of each of the member. In the case at hand it is shown no where

firstly if there was at all any voting and secondly how the members voted. As it has also been correctly argued by Mr. Mnkonje it is not shown that the judgment was really made by the Board i.e. by all the members. The judgment needed to be confirmed by all members before it was delivered. These irregularities as pointed out above are fatal and they render the decision of the Board not in accordance with the law and therefore a nullity. It is for the above given reasons that I hereby allow this appeal. The proceedings, judgment and orders of the Board are declared a nullity and the case is ordered to be retried. It is also directed that the Board should be careful not to again make same mistakes. Counsels appearing before the Board are also reminded to play their roles as officers of the court and not let the court to go a stray. It is also directed that the Board in retrying this case tke-Boofd-should direct its mind to only two issues of whether the Respondent is entitled to vacant possession of the premises and if he is so entitled whether the R^spoMeELts^are entitled to an alternative accommodation. Appeal allowed. No order for costs. Sgd: Abraham Mwampashi Judge 13/07/2009. Judgment delivered this 13th day of July, 2009 in the presence of the Appellants with their advocate Mr. Mnkonje and also in the presence of the Respondent with his advocate Mr. Uhuru. Sgd: Abraham Mwampashi Judge 13/07/2009. I hereby certify that this is a true copy o f the O riginal . /Maulid: