henry g kibasa others vs trade union congress of tanzania tucta 2017 tzhc 2197 10 april 2017

IN THE HIGH COURT OF TANZANIA AT PODOMA MISC. LAND APPEAL NO. 67 OF 2016 (From the Decision of the District Land and Housing Tribunal of DODOMA District at DODOMA in Land Case Application No. 163 of 2009) HENRY G. KIBASA (on his behalf and on behalf of 25 others)..................................................................... APPELLANT VERSUS THE TRADE UNION CONGRESS OF TANZANIA (TUCTA)........................................................................................RESPONDENT JUDGMENT 28/02/2017 & 10/04/2017 H. H. KALOMBOLA.J.: The appellant herein HENRY G. KIBASA on his own behalf and behalf of 25 others being aggrieved by the decision of the District Land and Housing Tribunal of Dodoma, appeal before this Court against its decision and judgment upon the following grounds:- 1. THAT, the Honourable Chairman erred inlaw and in fact by deciding that the contractual obligations vis a vis the new tenancy conditions between the tenants involved in this appeal and TUCTA, should commence retrospectively from the first day of July, 2009. That is the day when TUCTA, arbitrarily and without the consensus ad idem with the Tenants, changed the tenancy conditions by inflating the monthly rent up to about 900 %, and requiring the Tenants to pay the new and inflated rent each in lump sum for a period of six monthly from the first day of July, 2009, or else to give vacant possession, at that. 2. THAT, since the new tenancy conditions were not accepted by the Tenants, and since there was a stalemate at that time, propelling the Tenants to go to the District Land and Housing Tribunal, where they filed APPLICATION NO. 163 OF 2009 on the 19th day of October, 2009, the Honourable Chairman grossly misdirected himself and erred in law and in fact when he failed to perceive the truth of the matter that the concerned Tenants were, in those circumstances, to be treated as STATUTORY TENANTS, because their contractual tenancy each had expired during the period of the said stalemate, following the imposition of the arbitrary tenancy conditions. The Tenants were granted a Temporary injunction in MISCELLANEOUS CHAMBER APPLICATION NO. 171 OF 2009 of the District Land and Housing Tribunal of Dodoma. TUCTA was restrained from evicting the Tenants or taking any other legal action. 3. THAT, the Honourable Chairman of the Tribunal erred in law and in fact by being swerved by the evidence of TUCTA only, despite the fact that there was ample evidence from the Tenant’s side showing that the decision of the Tribunal was against the weight of evidence. In this respect, it is obvious that the CLOSING SUBMISSION for the Tenants were simply overlooked, apart from the fact that it was the Tribunal which directed that the Advocates should file Written Final Submissions Ipso factor, under Regulation 14ofG.N NO. 174 published on 27/6/2003, the Written Final Submissions form part and parcel of the record of evidence to be acted upon. 4. THAT, while the Honourable Chairman knew from the evidence available that all the Tenants were not such persons in theaffluent lifestyle group, the learned Chairman erred in law and in fact by ordering that the new tenancy conditions should commence on the first day of July 2009, thereby plunging all those Tenants into the obligation of paying arrears of the new and inflated rent each for all that period of time from the first day of July, 2009. For the foregoing reasons, the plight of the Tenants was to come under the new tenancy conditions as from the date of judgment that is from the 18th day of August, 2016. Contrary to that, all the Tenants will be reduced to indigents, as it were. In this appeal appellants enjoyed legal services of Mr. Ruhumbika learned advocate while respondent is being represented by Mr. Nyangarika learned advocate. Submitting in support of appeal Mr. Ruhumbika argued that the District Land and Housing Tribunal erred in subjecting appellants to the new rent which was raised to ninety percent (90%). He contended that this was wrong for them to pay the rent arrears accruing from 1st July, 2009 when infact if anything, the arrears ought to have accrued from the date of the judgment of the District Land and Housing Tribunal, that is to say on 18/8/2016. He argued further that the District Land and Housing Tribunal relied only on the respondent’s submission in arriving at its decision, it did not therefore consider appellant’s submissions. He added that appellants being normal tenants ought not to have been subjected to the new rent. Mr. Ruhumbika concluded by urging this court order the new rent be paid as from 18/8/2016 the date on which District Land and Housing Tribunal delivered its judgment and not as from 1st July 2009. Mr. Nyangarika on the other hand contended that it would appear appellants do not dispute the new rent but the modality of paying the same, that they prefer the same to be paid on monthly basis and not in lump sum. However, he contended problem is that appellants have not paid the new rent from 1st July 2009 as per new tenancy agreement. As to the argument that appellants were statutory tenants in that their contractual tenancy had expired during the period of the said stalement following the arbitrary tenancy conditions, Mr. Nyangarika argued that this contention by Mr. Ruhumbika would have been relevant only had it been that the Rent Restriction Act was still in force. As the Rent Restriction Act is a dead Law, this argument has no basis. On a complaint by Mr. Ruhumbika that his closing submission was not considered or rather taken into account by the District Land and Housing Tribunal, Mr. Nyangarika contends that closing submission is not evidence as such the Tribunal was at liberty to decide whether to consider it or not. He said Mr. Ruhumbika submission was considered ( as per paragraph 2 of page 8 of the Tribunal's judgment). In this appeal both counsels have submitted widely but the most glaring questions to be considered here is whether the new rent which was set to be paid as from 1st July 2009 is not fair therefore a burden to appellants and whether the arreas arising from the new rent accrues as from 1st July 2009. Whereas I agree that appellants at the same time in the proceedings before the trial tribunal and at the hearing of this appeal have expressed their misgivings on arbitrariness of the new rent save for the modality of paying, that is to say in lump sum, they have no problem with the new rent. Their preference is that the rent in question should be paid in monthly basis, not in lump sum given the economic hardship and most of them being only Civil Servants. They are therefore against the trial tribunal’s holding and prefer the arrears should accrue from the date of judgment and not from 1st July 2009, as the period when appellants went to the tribunal challenging the new rent was a stale period. Going by appellants submission they cannot be allowed to raise the question of arbitrariness as regards new rent while at the same time claim to be comfortable with it as long as the same is paid on monthly basis and not in lump sum. Hence their submission does not dispute paying the new rent but lump sum payment of the same, and payment to accrue as on the date of tribunals judgment. And it is evident from Tribunal’s proceedings through respondent's witness Charles Mwakapoja, Estate officer that’s respondent has no problem allowing appellants pay the new rent on monthly basis as long as they agree with the new rent. In that light it is the view of this court that the new rent is fairly okay, it is hereby found the new rent should be paid on monthly basis and the rent in arrears should accrue from the date the judgment of the District Land and Housing Tribunal was delivered, that is on 18/8/2016 and not as from 1st July 2009 as the validity of the new rent was being challenged by appellants in the District Land and Housing Tribunal. It is for the foregoing reasons this appeal is partly allowed to the extent that the new rent is to be paid on monthly basis and the arrears therefore should accrue from the date the judgment of District Land and Housing Tribunal, that is from 18/8/2016. Costs are awarded to appellants. Ordered accordingly. ( H. H. KALOMBOLA) JUDGE 10/04/2017 DATE: 10/04/2017 Coram: Hon. Madam H.H.KalombolaJ. Appellant: Present Mr. Ruhumbika adv- Present Respondent: Present Ms. Mnzava - Present C/c: Ijinji. COURT. Judgment read today 10th April 2017 in the presence of the Appellant and Mr. Ruhumbika advocate representing them. Ms Mnzava is representing Respondent. . 111 1/wrU ^ / T ( H. H. KALOAABOLA) ' ’ JUDGE - I l ’V 10/04/2017 Right of Appeal explained.