fatuma a m dadajalia vs ismailjee m abdullali 1986 tzca 16 27 february 1986

IN THE COURT Of APPEAL OF TANZANIA

AT PAR ES SALAAM CORAM: MUSTAFA, J.A.; MAKA M E , J.A. And KISANGA, J.A> CIVIL APPEAL NO. 19 OF 1984 Between FATUMA A. M. DAD a './ALLA............. APPELLANT And I3MAILJEE M. ABDUTT-ALI............. RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Dar e $ Salaam (Mr. Justice Kiro-ga) dated 31st day of March, 1983 in Civil At-' ->al NO. 27 Of 19^9 JUT 1- 1 JT Or ™TT~ fOHRT MUSTAFA. J.A, 8 The appellant Fstuma was the owner of a flat in a building in Mrima Street, Dar e$ Salaam. It was acquired by the Registrar o.'f Buildings under the Acquisition of Buildings Act* but it reverted to the appellant in July, 1977, it stems while the flat was vested in the Registrar Of Buildings, Vlie respondent Ismailjee bef :■ime its tenant, apparently On a monthly basis, at the rate of Shs. 543/35 a month. When 't,he appel.. nt re— acquired the f7 t, she wanted vacanfc ^ose.ession of and although there was evidence that the respcne Jent was always ready willing and able to pay rentf the appellant was not interested in receiving rent, but Pnly in r ^covering possession of the flat. .......... / 2 . 2 court aPPe-*-^an^ filed an action in the Resident Magistrate! s ^ i n Dar es Salaara for vacant possession of the flat. In the plaint the appellant alleged that she was the landlady of the flat, and the respondent the tenant. She claimed possession on the ground of

non-payment of rent by the respondent. In his defence the respondent alleged that the appellant refused or neglected to accept rent and that he was always ready and willing to pay whatever rent was due- He also alleged that it would not be reasonable in the circumstances to make an order of possession. He also contended that no cause" Of action arose ,: anc^rit transpired that that was based on the -ground that no notice to quit had been served the respondent prior to court action. a ..-_-viUr >- In evidence it w a -3 established that the appellant was f-y liyisPg in a flat as a tenant of the Registrar of BuiLdings. •'The building in- which, the. .flat was situated was due for demolition, 3 'rid the appellant, togethor with other tenants in the building, had been c iven notice to quit. Eviction was suspended pending the availability of alternative accommodation being found for the tenants of the flat, including the appellant. But a represer tative of the Registrar of Building* D.W.2 Omari testified t h a ; if the appellant could get alternative accommodation, ?.nd vacate the flat, the Registrar would not let the f l a ’: to another tenant, presumably because the building has .been earma.:<ed for c_\imolition. 3 . Elnhis judgment the M agistrate -found--that the respondent had always bean ready and willing to pay his rent. *s regards alternative accommodation, he found that ate

the appellant was willing to exchange her existing flat with the respondent, that would b« reasonable alternative accommodation. The magistrate had earlier held that the lack of a notice to quit wa^ not fatal; he h«ld that the filing of the suit for possession on SO.10.78 would serve a* sufficient notice. He made an order of possession, to take effect as soon as the appellant offers in writing the premises she occupied to the respondent, and for all rent arrears deposited in court to be paid to the appellant. The respondent appealed to the High Court, which reversed the judgement of the Resident Magistrate. The High COurt (Mtenga, J . ) held that a notice to quit was necessary in this case, for until that was done, the respondent remained a contractual tenant. The appellant herself had alleged that the respondent was her tenant atShs. 343/45 a month, and it was clear that the respondent was in occupation of the flat on a month to month contractual tenancy, and can only become a statutory tenant if he holds over after being served with a notice to quit. The judge also held that the appellant had failed to provide alternative suitable accommodation to the respondent. We think that the judge was right on both counts. In our view, on the evidence adduced, the respondent was in occupation as a contractual tenant on a month to month basis, and a notice to quit was necessary before

the appellant cPuld /4 . file an action for eviction. Mr* Lakha for the appellant has referred us to the provisions of Section 26 of the Rent Restriction Act Cap. 479 and called our attention to the proviso. He maintained that a notice to quit was not necessary. We think that the provisions of section 26 refer to a statutory tenancy, and have no application to this case. There was no satisfactory evidence at all that suitable alternative accommodation was available for the respondent, in terms of section 19 of the Rent Restriction Act. D.W.2 Omari had clearly stated that if the appellant vacated the flat, that flat would not be sub-let to another tenant. Ih view of that testimony we fail to understand how the Resident Magistrate could have held that the flat which appellant is occupying could provide alternative accommodation to the respondent. In the circumstances, we dismiss the ippeal wj.th costs. DATED at DAR ES SALAAM this. 1&.T. .dcy of Februaryi 1986. A. MUSTAFA

JUSTICE OF APPEAL L. M. MAKAME

JUSTICE OF APPEAL R. H. KISANGA

JUSTICE OF APPEAL I certify that this is a true copy of the t original

REGISTRAR

COURT OF APPEAL OF TANZANIA