20050725 TZCA Dar es Salaam

.,- .' IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MROSO, J.A., NSEKELA, J.A. AND KAJI, J.A.) CIVIL APPEAL NO. 50 OF 1998 G. ALIBHAI & 6 OTHERS ............................... APPELLANTS VERSUS HILAL AHMED KHALFANI BUSAIDY As Administrator of the Estate of the LATE HI LAL AL-BUSAIDY ........................... RESPONDENT J H (Appeal from the Judgment of the H•igh Court of Tanzania at Dar es Salaam) (Msumi , J.) dated the 12th day of June, 1997 1n _ Civil Appeal No. 55 of 1995 JUDGMENT OF THE COURT MROSO, J.A.: - Originally the memorandum of appeal had five grounds of appeal. Later the appellants through their advocates filed a notice of intention to apply to amend the memorandum of appeal in order to add a sixth ground of appeal. In the meantime, the respondents, also through their advocates, filed a notice of Preliminary Objection to the appeal and as a reaction to the respondent's notice of 2 Preliminary Objection, the advocates for the appellants filed a notice of intention to apply to have the appeal ''referred to the full bench of five Judges of the Court of Appeal" which would be asked to "set aside" certain authorities from the full court which were alleged to have been "decided per incurium, are unconstitutional and .... are 11 based on technicalities. The appellants are represented by P.M. Majithia, Esq, and Marando, Mnyele & Co. advocates but at the hearing Mr. Marando, learned advocate, appeared and argued the appeal. The respondents are represented by Mr. Kilindu of G.M. Kilindu and Company Advocates. At the comm.encement of the hearing_of the appeal Mr. Marando withdrew the notice to add an additional ground -· of appeal and went further to abandon gr_ounds 2 and 5 in the •• • _ . ·: .- ·.-·-~ . ··.-·. _.· .-· ··: ·.. ···:·,·- .. . ·_ ... ·.-. __.: :-- .- . ..- -·. ·-.- .- •. ·.·-· --.->···.·: . .. _ .··_--,.,-.. -(I~·-·:•.····.:·.··-·:--•··.-·. -· . . . ·-· . · . . . ·. . . --~ . .,___ ·•· memorandum of appeal. Mr. Kilindu on his part withdrew the notice of Preliminary Objection to the appeal and in _similar vein Mr._ Marando withdrew his notice of intention to have the appeal heard by a full bench of five Judges of the Court. The Court then proceeded with the hearing of the appeal on the remaining three grounds of appeal, namely the first, the .third and the fourth grounds of appeal. 3 We wish to give a brief resume' of th_e case which has come to this Court. The seven appellants were (or they still are) tenants in a building on Plot No. 30/186010 along Mshihiri Street in Dar es salaam. Each tenant occupied his own portion or apartment in the building which was used for both residential and commercial purposes. The building belonged to late Hilal Al Busaidy and the respondent Hilal Ahmed Khalfan Busaidy is the administrator of the estate of late Hila! Al Busaidy. It had suffered the fate of acquisition by Government but on 1st July, 1992 the President of the United Republic "restored" ownership to the respondent. In 1993 the respondent filed application No. 42 of 1993 in the fix the standard rent for each of the seven apartments. The suggested standard rents were to range between Tshs.120,000/= to Tshs.480,000/= per month. The Regional Housing Tribunal obliged and fixed standard rent which ranged between Tshs.68,400/= and Tshs.117,460/= per month depending on, among other qualifications, the size, condition and use of the apartment. The 4 appellants were aggrieved and appealed to the Housing Appeals Tribunal - HAT - but the appeal was dismissed. Undaunted, the appellants appealed to the High Court where they were unsuccessful and hence the present appeal to this Court. The rernaining grounds of appeal now before this Court read as follows:- 1. That the learned Judge erred in not reducing the Rent. 3. That the Learned Judge erred in not considering opinions of members and the discrepancy in the Valuation Report. 4. That the Regional Housing Tribunal erred (sic) had failed to comply with the ·. Legal f'rocedural ·,;-ec;-uirements in fixing .· ·· · ~•.•- ·• ·•· .. · the Standard Rent (section 17 of the Rent Restriction Act, 1994). That the learned Judge erred in ignoring the serious violation of the law. Although· Mr. Marando started to argue and submit on the first ground he subsequently realized he was engaging in a futile exercise and abandoned it. The same ground of appeal in almost exactly the 5 same words had in fact been raised·>as the fir·st ground of appeal before the High Court! We hope we are not being unfair to the appellants if we observe that even grounds 3 and 4 in the memorandum of appeal before us are thinly veiled repetitions of grounds 3 and 4 in the memorandum of appeal before the High Court. Which in reality means that the appeal to us is against the decision of the Housing Appeals Tribunal, not against the High Court decision! One of the most controversial aspects of the case which was before the Dar es Salaam Regional Housing Tribunal, henceforth to be referr.ed to only in its acronym - RHT, was tbat counsel for the parties agreed before the RHT that there would be submissions only ·.... · .··_·: and . .. __ .. ·. not evidence. ·.·· -·· .·-.··.- The RHT ·-· . . . . ·- .- · .. ·-: proceeded under that , :- ..... ,,,- -"~ ·-:·: .· . . -.······,•·. __ ._ - .. approarn·and ........ .•..... did .... ·. ._ _ ... ·_- ·.•·.• :··•··· -··. •·.: · .. ·. . •._. . . . .;. _ _ ·. . not take evidence. Later in the course of the hearing the RHT allowed both sides to submit valuation reports prepared by experts each selected by one or the other of the parties. The RHT and the parties together with their respective advocates visited the locus in quo. None of all this was evidence before the RHT. Yet it was "possible" for the RHT to fix standard rents on the basis of one of the reports. 7 that, with respect, Mr. Kilindu is not correct. As already said earlier in this judgment the appellants were in fact repeating in this Court the same grounds 3 and 4 of their grounds of appeal to the High Court. As for the alleged failure by the RHT to comply with section 17 - of the Rent Restriction Act, 1984 and Rule 6 of the Regional Housing Tribunal Regulations, 1984 Mr. Kilindu argued that the RHT was only obliged to observe the rules of natural justice, which, he submitted, it did. He cited the cases of Samwel Shadrack Machongo VerSIJS Tulsidas Narandas Manjaria [1968] HCD n. 22 and Fatehali Ali Peera Versus Qrtorato Della Santa _[ . 1968] HCD 414 as__ i I supporting his argument. The need for a hearing requiring the adducing of evidence applies to Courts, not to ·tribunals~ he .. ·...-·.·.· ... ·.--,,-_. -~~::.-.-.. --• . -·-· :•-··-, . _.· >. . . --~•-•··---·.·•: .. -·,. -- .. · .. ·-. submitted. In support of that submission, he relied on the case of Hemedi Marjani Versus Festo Ngowi [1975] LRT n. 16. Rule 6 (1) of the Regional Housing Tribunal Regulations G.N. 436 of 1990 provides as follows regarding the hearing of an application by the RHT:- 8 6.-( 1) On the day the a_,pplication is fixed for hearing, U1e Tribunal shall:- (a) if the parties to the application are present, proceed to hear the evidence on both sides and then determine the application; The term "evidence" is defined in Section 3 of the Evidence Act, 1967 -: in the following words:- "evidence" denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and without prejudice to the preceding generality, includes statements :I.. and admissions by accused persons . of fact which satisfy the requirements under Section 17 of the Rent Restriction Act, 1984. Since neither party i_n the application was making admissions, the facts which were being relied upon by either side in the application to persuade the Tribunal either to fix a higher or lower standard rent were being disputed. The Tribunal could only properly resolve the dispute by hearing evidence. In this case, since no evidence was adduced by either side, it is obvious the Tribunal 9 relied on impressions gained from ·>submissions. The valuation reports whicl1 could indeed be of some assistance to the Tribunal were not properly before it as they were not in law evidence. The Machango Versus Manjaria and Peera Versus Della Santa cases which Mr. Kilindu cited were decided before the Regional Housing Tribunal Regulations, 1990 were promulgated. So, Regulation 6 (1) (a) which requires evidence to be taken at the hearing of an application under the Rent Restriction Act, 1984 did not then exist. Even so, in none of those two cases is it said that standard rent can be fixed without the need for evidence where facts upon whic;b a decision ls to be bas.ed are disputed as in the case at hand. The words in the Machango Versus Manjaria case that:- · . . •·.·. --{T~1e Board (read Tribunal) ;,,w~:; tntended to be "a body which, while judicial in its approach, will not become tied down to procedural formalism" which were quoted with approval from Rex Versus Brighton and Area Rent Tribunal (150) 2 K.B. 410, 419, do not suggest that a rent tribunal can dispense with evidence, where such evidence is 10 · necessary, and ·merely r·ely on Rules ·:Of Natural Justice, when fixing the standard rent. In the Marijani Versus Ngowi case, which was a rent case, a Rent Tribunal fixed the standard rent for certain rooms in a building without indicating the basis for doing so. The High Court - Makarne, J. as he then was - remarked:- Some informality in the Tribunal's proceedings is allowed but such informality must not be allowed to offend natural justice. We would add that informality in the Tribunal1s proceedings should not offend the law. Findings of fact are. based on admissible evidence properly led, unless there is adrl:)ission of_ the existence of -.· ....... .. _ ·.--·---·. ------~--",:,~·-·•-···· •·.·.-:·-··-·· . .that fact. Mr. Kilindu proceeded to argue that assuming the procedure followed by the RHT was wrong, that did not necessarily lead to nullity of the proceedings before the Tribunal as the end result would have been the same because there would have to be reliance on the valuation reports. He believed the case of George Barabara and 240 Others Versus Minister for Labour and Youth 11 Development and Two Others, ,:civil appeal No. 27 of 1998 (unreported) supported that submission. In the George Barabara case the Board of Directors of Shirika la Usafiri Dar es Salaam - UDA - took a decision that between 250 and· 300 of its workforce should be retrenched. Subsequently the management of UDA held consultations with the field Branch of the then trade· union organization - OTTU - regarding the decision to retrench some of the workers. It was agreed 241 identified workers would be retrenched and the process of puttiQg to effect that decision was set in motion. The whole move had the approval of the Dl?-trlctQTTU authorities .. The Minister's award was- duly registered by the Industrial Court. r . . . • · · · .· · · · -~T!;i'e t'etrenehed workerssoug1'·1t·ttn~:hallehge before the Ministe! · ·· · for Labour the lawfulness. of the retrenchment. The Minister dismissed the reference, confirming the act of retrenchment. The retrenched workers were undaunted and sought from the High Court prerogative orders of Certiorari and Mandamus - to call up the Minister's order so as to quash it and to order the Minister and the Industrial Court to exercise their respective jurisdiction according to law. 12 A full bench of the High Col.:at found that the procedure provided under Section 6 (1) (g) of the Security of Employment Act, 1964 had not been followed. Consultation with the Field Branch of OTTU on retrenchment had to be done before a decision was taken to ret1·ench. But the opposite procedure had been followed. Although the High Court was satisfied that because of non- compliance with Section 6 (1) (g) of the Security of Employment Act, 1964 rendered the whole retrenchment exercise null and void and similarly the Minister's decision and the regjstration of it by the Industrial Court, it declined to issue the Orders sought. The decision _____Qf.t.he _High Court was upheld by this Court which_said:- But the pertinent question is whether the -·. ·.. ~qard's _clecision WJ)IJl,g paye b~en_ different if it were taken after holding consultations between the Management and the OTTU Field Branch. There is nothing whatsoever in the record to suggest that the decision would have been different for, it is inconceivable that prior consultations between the Management and OTTU Field Branch would have led to a different recommendation to the Board . . . Indeed 13 the fact tt1at OTTU O.~strict authorities approved the retrenct1ment re-inforces the view that the Board's decision would have been the same even if it were taken after the consultations in question were held. In the circumstances, therefore, it would be idle to grant relief when ·it is clear that the end result will be the same. With due respect to Mr. Kilindu, the same thing cannot be said of the present case. The two parties in the case had brought rival valuation reports which differed widely in content. The parties held diametrically opposed views on what the proper standard rent should _be_ and eveo the RHT Chairman and the lay members differed significantly on the decision to be taken. It cannot, therefore, be said that whether evidence \Nas take-n ·,.·.-... ---,,.·.--~~-.-... _.. ·.·:···.-·>·•·<•·: .-.: .. ·._•.·.·-:; _.. __ ·- .... - --~•-•.- .......... ·:·',._.-. ·or not the ·_·-.::'····.:- .. ··••:-. end .• re~ult ·.··•·.·:··- 'NOLJld have .. ·.. -.·._.· ·. ·. . . . •.··. ···-. been the same. It may be added that the Barabara case was on an application for issue of prerogative orders by the High Court which are discretionary. The fixing of the standard rent for the premises and the procedure for it are not discretionary. The RHT visited the locus in quo and appears to treat its own observations as evidence.' In Nizar M.H. Ladak Versus Gulamali Fazal Janmohamed, [1980] TLR 29 the trial Court visited premises 14 and as a result of the visit it decided the case in favour· of the appellant. On appeal to the High Court, the Court also visited the suit premises and as a result of the visit it overturned the decision of the trial court and found for -the respondent. On further appeal to the Court of Appeal, this Court held that it is only in exceptional circumstances that a court should visit a locus in quo as by doing so -a court may unconsciously take the role of a witness rather than an adjudicator. The Court found that both the trial court and the High court had in effect become witnesses in the -dispute by relying on - - their own impressions and in what they had seen in coming to their conclusions rather than on evidence. These remarks also apply to Rent Tribunals and to this case in particular.- _ We---- are :-_--_-_-.-_--:" .-".' satisfied __ ,.._. ___________ - __ that· -_:------------ the proceedings , ___________ ------- - bf fore ---_-- ----- -- -: the----·------ -_- Dar_ :-- es Salaam - Regional Housing Tribunal were improperly conducted and the decision it reached was flawed to an extent that it ought to have been quashed by the Housing Appeals Tribunal. It follows that the decision of the High Court which affirmed the decisions of the lower tribunals must be quashed, as we hereby do. 15 The appeal is allowed with costs/ GIVEN at DAR ES SALAAM this 25tr1 day of July, 2005. JJ~_!..,"'-·· .. .,~ ,, ,, . . :;lo: J. A. MROSO JUSTICE OF APPEAL __..,.,....-.,.- ......... ...,"'- . I ; . .· ft .... , ( H. R. NSEKELA o__, {:/ ,/.·· t) ·. ,, . . JUSTICE OF APPEAL . \1-' k£' /!{i.-,. .J ... ---- S. N. KAJI ~".. t,.~;.;.,~~--.;:.:..:_.~~- JUSTICE OF APPEAL I certify that this is a true copy of the original. i, • ' l; ) .