19961114 TZCA Dar es Salaam 1

i' v IN THE COURT OF APPEAL OF TANZAl~IA •

AT DAR ES SALAAM ~ .... . -.. ~ . - , . ... -e .......~..,./-- • (£9BM1.1..:~Y..~~.:£ J_.~~·~_J;f\_YA~s.,.. ~;J_._~j___Jgid .l!.~YE-i..,J_.~) CIVIL APPJ:::AL NOo 45 OF 1995

BETWEEN G. F. KASSAM ••••• ., •••••• ~.,............. APPELLANT AND (1)· AMIRAU H. M. WALJI ) (2} ·ffi,KIYA. AMIRALI WAI.JI ~ • • • • • ~ • • • • • • RESPONDEN'l'S (Appeal from the ,Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (~~~.,_J_..1 dated the 6th day of November, 1994 in --~-----·---·---.-.-..--

JUDGNENT OF THE COURT ... -:-•~----,.. The house on Plot No. 130'7/148 en Kitumbini Street, Dar es Salaam, ~riginally belonged to one Nrs. Ramatbai Alibhai 1 deceased, who was the mother .of the second respondent, Rtikiya , Amirali Walji~ and the mother-in-law of the first respondent, Amirali H.M. \falji., The appellant, Gularnabhas F. Kassam, was the tenant.· That house was nationalised in 1971 under the Acquisition of Buildings Act; 1971 and was put under the Regist~ar of Buildings. The appellant contihed to be the tenant. The second respondent 1 that is the daughter of the original ewner of the house, petitioned the Presidertt of the United Republic of Tanzania for the denationalisation of the house and its even_tual return to her as the heiress. By a letter SH.C/A. 70/2 •f 26 May, 1992 si~ed by the Principal Secretary to ..;. 2 the President (hereinafter referred to as the letter from Ikulu) the second respondent was allowed to collect and use the rents paid by the tenant in that house for the duration of her life and that of the first respondent. It was categorically said in that letter that the house will continue to be in the name of the National ~ousing Corporatfon (NHC). Incidentally, to digr.ess a bit, in 1990 the office of the Registrar of Buildings wa,~ m_erged · with -Jrnc and its property a'1d acti ·vi ties passed on to the lattero The respondents filed a Euit

befQre the Regional Housing_ Tribunal of Dar es Salaam seeking to evict the appellant from the said house. Mro Najithia, learned counsel, who advocated for the appellant, raised a preliminary objection that the respondents were not the landlords but were mere tenants and as such they could not effect eviction of a fellow tenant. He cited our decision in .'Th.e. .l~e ~J-?.tr.~~2.~._ B~ld:p~s__v.!'-_!_eJ..~ Bwo_g! 2 2 :tla_ E:JgJ~-- PRyJ_iql'IO!i._liliR...§ERVl~!§.'i Civil Appeal No. 19 of 1988 ( uiu.~eported) • The Tribunal agreed with the submissions of Mr., Chandoo, learned advoca:.ted for the respondents, that the respondents were, by implication, the life landlords of the suit premises. The reasons were that the respo11dents ~ere entrusted, ::i.n their life time, with the responsibilities of collecting rents, repairing the house and paying land rates. The appellant was aggrieved by that decision and he success- fully appealed to the Housing Appeals Tribunal. It was held that NHC was the landlord and that the concept of a ju...~ior landlord is unknown in the land law of Ta.nza..-iia., The respondents were found to be tenants and therefore they could not evict another tenant unless they did so as agents of the landlord and that in that case the plaint had, under O III R. 1 and 2 to say so explicit;l.y. 3 S., the pr~limin~-y obiection waz upheld and the suit was dismissedo The

present respondents appealed to tte High C<'11rt of Tanzania. where MWAIKASU, J., held that the respondents were clothed with the status of the landlord and as such they could evict a tenant. Thus the learned judge restorod the ruling of the Regio:.:ial H,·using Tribunal. MlAIKii.6'U, J. reviewed the ].and J.3.v: of England,• and saw that the right to receive rents as an mmer, and not as a mere ,., I collector, is one of thee incident , )f being a. : c.J1dlord. This is now an a:pp,:,a_ :f":·0,11 tl'U:l.t d2!c sion cf MWAIKASU, J •. The main issui.~, as Mr. H&jithia, lerrned counseo1 for the appellant, said is whether or not the r0spohden";.s can evict ·he appeilant. Mr. Majithia pninted out tlv.it this Court has 1ecided in ~~~-~R.J.e:~~tl~J.-...?}~B~il-!,~Il_&:'?_~y~.l?!..•.~!~lJ~Ji•--~.!l}.2..~, L. 3?7 T:.8 61 that a former owner of a nationalised building is r licensee and not a landlord when that buiJ.ciin,g is returned.to hi or her for the duration of his or her life ·time. So, the lernec: advocate .s:i".>mi tte~, the respondents, here are aJ.so licensees at).( .. that, as l-t.·. Chandoo, for the respondc:J.ts,. first argued th.. ~ if the respondents, by the authority of k~. K::imo'.', e:-e license•.-s and not tenants, then ~w9.€fl. is inapphcab~.e bccaus3 it is a.Lout tenants. The Lie.rned e.d·,~ocate a':"t_med furthe:r that as rE., pendents were given a right of

,,,ccupa..'1.cy for life, they were then tr·1stees •f the reversione.ry interest of NHC., He submitted that seeki..r1g eviction was in the exercise of tho protection of that rever- sienary right. Thirdly, the learned advocate submitted th.at to be a landlord one does not have to be an owner of a premises. He pointed out that all the land in Tanzania belong~ to the I ( Pr~sident who grants rights of occupancy. Mr. Cbando• argued that 4 the holders of the rit;hts of eccupancy are.regarded as landlords and d• evict their tenants. Finally, the lce.rned advocate submitted that if the premises :fall vacant the :respondents would either . enter into occupation themselves or t:hey would l•o~ for another tenant. He argued that the respondents are, therefore, l:mdlord.s. Mr. Majithia in reply said that £, license~ cannot be a . -lan_dlord. He pointed out tha·; under E.'-".O_g_t, enly the landlord can evict. The learned advocate ·said th.":\t if the ·):-:-cmises become vacant then the respondC:;nts will ha.veto consu'.t NHC and cann•t just enter into eccnpation themselves or get e.:.1" ther · tenant. There is not a slightast doubt in our minds th.at ~:'!2.JQ. -As categoric that only a landlord can sue to ovict a tenant and that one tenant cannot seek to evict e.nother tenant. Similariy, according to .PE...!...J~~1?£ the respondents are not tP..nant.s but are licensees. In tl..e latter

case a former owner of a house natio- nalised under the Acquisitien of Buildings Act, 1971 :1.ad her house returned to har for the duration of her lifeo She sold it to :i)r,. Kombe. This Court held the,t the lady was a licensee as such she i,.ad no title to p;eSs 011 to a buyer~ This Court had this to itrn our vie,-1 what tho Government really intended to do, and what it in fact did, was to ere ate a lesser er limited int0rest in favour of Mrs. Kaur while it (the Government) itself retained the legal title to the property. The interest so created w.--:1s to all intent and purposes a li•~nce to e:::ijoy the fruits of the suit premises; it amounted to no 1nore than that.'' Now, we ha.ve to dotermino what was not decided in Qr.•--~9~~ .:ltld that is whether a licensee can evict a tenant in t'rder to nenj!'\y the fruits of the suit p:remises. 11 In ether words, can a licensee be deemed to be a 18ndlord for the pµrposqs of evicti•n? ,_ ·• I '- .... 5 Landlord is defined in,s~3 of the Rent Restriction A.ct, 1984 as follows: • - "includes, in relation to any premises, ·any person, •ther than the tenant, who is or would be, but for the provisions of'this Act entitled to possession of the prem1;ses and any pers'lln from time to time deriving title under the original landlord, and any person deemed to be a landlord under section 4 or section 5;n We may as well say it here that ss.4

a,."1.d 5 are inapplicable in this case. Two things are -obvious to us; one, a tenant, which title does not apply to the respondents, can never be a landlord and two, for the suit premises the title landlord is not confined to NHC only. The question is whether the respondents are "entitled to possession of th8 premise:si 1 a.>1d hence are landlords. It is quite in order to revisit liriefly the law regarding licence first, and then to look at the terms of the licence of the respoudents. A licence is a permission given by an occupier cf land 1 v:hi :::h allows a licensee to do some act which would otherwise be l trespass. Since licences are :.almost pui~ely _Personal transactions, it is ·difficult to put limits to their possible varieties. Hewever, there are generally three different classes distinguishable. First, there is a bare licence which is granted otherwise ,,: than for valuable consideration e.g. gratuitous permission to enter a house or field. This can be revoked at any time on reasonclble notice. Then there is a licence coupled with an interest, that is, proprietary interest in other property. For oxainple, a licensee is allowed to enter a premises and to hunt er cut trees and then to take the animal killed or the woed cut. Under common law such a licence is irrevocable and is assignable., However, the interest must be validly create~· Lastly, there is a contractual

licence • ••• /6 .... 6 This is where, for insts.nce, one has a ticlrnt for a 13:por~s match or for travellingo The licensor contracts not 'to revoke the licence. The respondents fall in the second category, tha.t is, licence . coupled with an interest. They havG been allewed to take rents for · their lifa timeo As already seen such licence under common law is irrevocable. However, we are quick to add that where the terms of the licence are abused, as was the case in Dro!!l~e, then the licence can be revoked. Here tho interest was valialy created because1 : as properly pointed out in 2,~..". J5_o_qip_c, at p.64, the Registrar of Buildings, now NHC, under s. 4( 2) of the Acquisition ef Buildings Act, 1971, acquire property subject to the directions ef the President. The letter from Ikulu constitutes such directions of the President. So, the respondents have the assur&"lce of en.joying tho fruits of the suit premises for their life time so long as they abid,3 by the terms ef the lic0nceo Now, uh.at are these terms'.i' . The lett'3r from Ikulu says, in tho relevant parts, as follows:..: 1 '• •• oRais ameagiza kuwa badala ya kurudishiwa kabisa ny-u.mba hiyo, Ndugu Rukia I-1.mc:xshi Walji achukue kodi ya upa11r:;a~i wa nyu.mba hiyo kwa kipindi cha uhai wake na wa l mumewe. Kwa kuwa uteke1ezaji wa uamuzi huu ni sawa na kurudishwa kwa nyumb2. hii kwa kipindi cha maisha yake yote na ya

mumewe, masharti yafuatayo yazingatiwe 0 0 • 11 Th2.t can be translated as -~ ••• The President has directed that instead of restoring that house completely, Hrs., Hulda Amarshi Walji to collect rents from the house fnr the duration of her life and that of her husband. As the implementation of this decision is tantamount to the restoration of the hous~ fer the duration ef her life and that of hor husband, the following conditions have to be observ0d 0 • • i. .. - 7 I J: It is cloar that the house was returned to the _respondents for their life time and because of tha.f some conditions had to be observed. So, the conditions wer.8 imposed because 'life ownership' of the house was grantedo 1'he conditions did not create the life ownership.. However, aenly on0 of the conditions 1.J..rderscored. ·'~he · fact that the arrangement Wa:3 for their life time,. That was the requirement that the house continues to be in the name of !me. The othe.r two conditions are ty-pical incidents of being a la..."ldlord;. to repair th~ houEe· and to p~r land rates. Admittedly, another condition was thnt rents could only be altered after consultation with NHC. We think there was a good re.:l.Son for that condition. Under the Rent Restriction Act~ 1984, the Rogional Rent TribunaJ.s fixed the Gtandard rents for every buil.ding. All landlords, including NHC, were required to observe the standard rants.

Any cru;.nge of rents required the approval of the Regional Rent·Tribunal. However, the situation was changed by the Rent.Restriction (Exemption) (Specified ?arastatals) Order, 1992, GN 41/1992 of 20/3/1992. Seven specified parastataJ.s, i1:cludinp: ff.tiC, WC:):::'_, 0,.'"J1ptc:d from ilall the provisions of the Rent Restrict:i,m Act, 1984, r0'J2,ting to tho restriction on the a.mount ef .rent that may be charged or collected by the specified p,31'asta- tc:.ls as the landlord•;• So, rents charged on the suit premises were n~t controlled by the :Hent Restrictien Act, 1984. Since the suit premises remained in the name ':~.NHQ, then the respondents could cash in 011 that exemption antl charg3 rents'abovo the standard rents. We think th3t it was absolutely necessary to require the respondents to consult NHC, the real beneficiary of the e:xomption, before altering the rents. For the sake bf record, we have to point out here that . GN 41/1992 we.s published on 20 lfarch, 1992 and that it was already .:.n force when the letter from Ikulu was signed on 26 May, 1992. oo~/8 8 So, we are satisfi,ed that the r0spondents were de facto landlordso 'l'he condition that they should consult NHC before alteri...--ig rents was only necessary to ensure that they do not abuse a statutory privilege ,-,hich is not theirs., It was that condition which madP- Mr. Majithia take the view that the

respondents could not occ.upy the premises themselves or look for a new te:.1a...>1_.; if the premises become vacant. But because of the ratienalc we have stated fo1· that condi t:i.on 1 we see nothing which ean stop the respondents from being entitled to possession of the premiscso In fact the • respondents could either take the rents and 1ise the:i1 ·or they. c:01.1_ld reside in the premises themselves • .s.. , we find that the respondents are entitled to possession but for the Act which restrics possessi•1,i: except in certain circumstances and as such we ar0 of the •pinion that the respondents, as licensees, 0re landlords under s.3 of the Rent Restricti,-n Act, 198Lf arid that they could seek the eviction of the appellant. The appeal is dismissed with costs. DATED at DAR ES SALAM! this the 14th day of November~ 1996. A~ So Lo FJl.MADI-I.AIH -·JUSTICE ~......._.......... OF ........APPEAL ~._,....,._ · ·~"• ..... . ,.,._ N.So MNZAVAS '. ,JUSI'I CE OF APP'.z;AL D.Z. LUBUVA

JUSTICS OF APPEAL I certify that this is a true copy of thG original 0