19860227 TZCA Dar es Salaam

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ZN THE COURT OF APPEAL OF TANZANIA AT DAR . ES SALAAM CORAM: MUSTAFA, J.A.; ~:A.!(AMEL2.oA. And KISANGA 1 i•A• CIVIL APPEAL NO. 19 OF 1984 Between FATUMA A• M. DADX:lALLA • • • • • • • APPELLANT And . I.9MAILJEE M. ABOU!.,:.,_\LI. • ., • • • • RT;;SP0NDEN1' (Appeai from.the judgment and decree of the ,/ High Court Of Tanzania at Dar esr·~-1aam (Mr. Justice IVl-'.-c:"ga) dated 31st clay Of March, 1983 . l>:i £!!._i_LJr-';' ~:=\LJ110. 27 of 19'7~~ Th~ appel:tant Patuma was the owne1: of a flat in a . -----.:.. _ butlding in Mr!ma -:'ltreet, Dar es Salaam. It was· acquired by the Regiitrar o~ Buil~ings under the &~qu1sit1on of I Build1tlgs ..\et,- but it reverted to the ap]Pellan~ in July, 1977. It seems ·v11hile the flat was vested in the Registr~r Of Buildings, , ;·:1e respond-ent ~smailjee bee- ime its tenant, epparently on a monthly basis, at the rate of Shs. ~43/35 a month. When 'f;he appeL:'.nt re-acquire<;i th'3 f~ t, she wanted vaca:i,.~ l)oss .ession o-: . .:, and although there was evldence -tMt the resp~ne,eni was always ready willing and ·able to pay the rent, tha llppell~ht v1 as,}1ot interested in receiving rent, but . -~ . 9nly in r uc:overing p<>ssession of the flat • • ' ....... ,,. 2:• ,i 2 The appellant filed an action in the Resident Magistra~a•s court Lin Dar es Salaam for vacant pOs$ession of the flat. In the plai~t 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 cireurnstances ... to make an order of:.,po;$se~~ion._.. He also aontended that ·no ·.- . !"- . . ,:·-.. : datise" 0£ --a:ct-i.on ar,0s¢,r:~_af!.<L-i~ ,.transpir--ed that that was based .... - . ~- ·.- >-;;. ·.ii ·r--:: ·!":'}.: .;~ .;. -~ c- ,. . on the ,9_i-9R11.d ..th~t._I'!_o notice to quit had been' served ~on'"'t:he .... ~ ·: .. , ... .__.L,,_ ~- ."f,:·;0; 1:.,:~_·J;~:·;.,.d.i•.~: ·.0.~ . :·- _:· ...... respondent prior to court action. - In evidence it was established ~~.I· that-the appellant was l,.i,~~Jl9 ~-~ a flat as_ a- tenant of the Registrar of Building~ .. :-·'.fThe bui-l~ing in· wr:i,~l), J~:!tP.t -~:a;_;_:~:-if~at~ was dtie for .... t.,. ;J:. .;: . . . -..-. . . ,, ·, i.u :::; ,: •!, .,. . ,. •... ! ~:~ ;: , demolition, jnd the appell~nt, togeth~r with other tenants in the building, had been ~fiven noti"ce to quit. Eviction was suspended pepding the a.vai:.ability of alternative accommodation· being found fo·r the tenanti': of the flat, including the appellant. But a represer. ·tati ve of the Registrar of

Building, D.W.2 Omari testi:"ied tha·: if the appellant could get alternative accommodation, 1.nd vacate '.:he ;·lat, the Registrar let the fla·': to another t ~nant 9 .._, ~esumably beceuse the building has .been earma::iced for c.·~molition~ 1111111 In his j-udgrnent the Magi.s·tra.te -found-·that the respondent had alway~ been ready and_willing to pay ~is rent. is regards ~ "af!ernativo accommodation, he found that A~I, the appe willing to exchange her existing flat w1th · the ent:, -that would be reasonable alternative accommodation. Them gistr~te t ·. had e~rli~r held that the lack of a notice to quit wa~not f~tal; \ he h•ld that th~ :f'iling of the suit for possession on 30.10.78 WQYld aet:"V@ a I sufficient: notice. He made, an order of possession, t0, tak~ effect as soon as the ~ppellant offers :in writing the prem11;5es she occupied to the respondent, and for all rent arrears, ~epo~1t@4 in court to be paid to the appellant. The ,:-espondent appealed to the High Court, which ~- r~xer~ecl the judgement of the .Residen-t Magistrate. The High ,ourt (Mtenga, J.) held that a notice to quit was ~~cessary. in thit case, for until that was done, the res~ondent ~emained a contractual tenant. The appellant herself had alleged that the. re~pondent was her tenant at Shs. 343/45 a month, and it wa~ clea~ that the +espondent was in occupation ot -the flat on ~ month to month

contractual tenancy, and can only become a I istatutocy tenant. if he h0lds over after being served with' a '- notice te quit. · The judge also held that the appallant had !e'iled 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 ocr.:upation as a contra~tual tenant on a month to month basis, _and a notice to quit was necessary before the appellant c~uld ••••••••• / 4.· -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 tv 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, irt ~erms of section 19 of the Rent Restriction Act. D.. W.2 Omari had clearly stated tha't if the appellant vac,ated the flat, that flat would not be sub-let tu another tenant.. Ih view b:r that testimony we fail to understand how the Resi1ent Magistrate could have held that the flat which appella~t is occupyihg ! ~ ,, r. could provide alternative accommodation tc.- the respondent. '. I In the circumstances, w~, dismiss the -q::>peal.v.,,j.th . .. costs. DATED at DAR ES SALAAM t h i s . ~ . dt~· of Feibruaty' i~86. 0 A. MUSTAFA JUSTICE 9F APPEAL L. M. MAKAME JUSTICE OF APP:EAL R. Ho KISANGA JUSTICE _OF APPEAL I certify that this is a true copy of the t )riginal. /!/t,0lcz ~ 0c, 1~4MNDO) (L. A.

REGISTRAR

COURT OF APPEAL OF TANZANIA