19820521 TZHC Mbeya

) (s / IN THE HIGH COtT OF TANZANIA ATNB 7 (DO) CIVIL AF2EL No.6 OF 1981 (From the decisior of t Eie District Court of Mbeya at Mbeya Cvi1 Case No.3 of 1979) Before: P.R. BATEYUNGA RESIDENT MAGISTRATE KIRTIKUMAR VITHALDA RAMtI t/a VI THALDAS RAMJI ARD SONS APPELLANT (Original Defendant) reus NtJRALI RANJI VIRANI: ; ; : RESPONDENT (Original Plaintiff) J U M E N T J.A. M0 3 0 2 J. The respondent NU..L RAMJI VIRANI successfully sued the appellant KIRTIktJrI VII1 HALDAS RAMJI in the court of the Reside:t M&gitra.L, boya fbr'vacäntpossession of certain premises in MaMinicipality Those premises had been oocupjd.byc aDpe11ant both.for commercial and resdontial pUrpoos .towover, the respondent, as landlord, olaimed ieeo d o dthem,or hownoQcuation as ncR,and.- . fcp, commergial,'purposes..', IIeexplained before the trial court that he was then residing at "Tukyu where he was a tendn'? of the Roistrar of Buildings and to whom he Daid a monchly rent of shs.300/=,: :H finding it burdensomQ financially to continue paying the rent to the Registrar of Buildings, hence his wish to .,. occupy his own premies here in Mbeya. Besides, he cla.mec. he was a sicknian and wanted to move over toMbeya where he expected to get brtcer medical facilities. The appelant on the other hand resisted the suit eviction would violet the provisions of s. l(l) ofhc ent Nestricti3n Act cè the , plaiiit did iot afleo that reasonably qu±va!eii aiternativOaccommdätion was or was to be aailäb1dt3 hithatthd t -itu the rdr argued tha±herewai a groat shortage of-businesimises - 2 - in Mbeya and that he wuld suffer great hardship if the respondent were grflted vacant possession The learned trial magiE;trate in his judgment found the reasons given by the respondent for vacant possession to be reasonable "under para (e) of section 19 of the Act" (meaning the Rent Res.riction Act). He then proceeded to consider whet er the requirement of sub- section (2) of section 19 f the Rent Restriction Act had been satisfied 9 that I 7 , whether having regard to all the circumstances )f .o case it was reasonable to make the order f or vacant osoession. He did not spend any time to discuss the To him the answer was simple and straight forwa it was reasonable to grant the order applied for. hq was also, "convinced and satisfied" that unless he /made such an order great hardship Would be caused o the landlord. regards As N the question of availabikty .of rcasnably equivalent alternative accommodatioi the trial magistrate also had a b e''a w"t ha . said:- • .: •.. . "Giveh en time and with a dcfond.nt W.ouli:. • secura4 :iltorntive'.accjoation .,• •- equiiralerit I'arEi not porsaade"by.thoaDgument',that tJierê o is..a greib shorgo of.accoirnp.atiori .... n has never tried'to 1ookor bno as in the .instantas';'o- He ul-moi+th 'appo11oint"withinwhichth Lr. lookfo± t iracà ninodati equválhi nac'h sait p1emiss 5ü3i ) by rspoi-iidn. '' • i . • 4satisficd. 'with hatedecis$ox:'rt hen.:.hiiappea1to.th$court', . In.'his appeai..he had chage..ia. theze we.4o reasonable .grounds .for':vacant (0) of th and iatat,ny on amygrounds undQr s,. ; 1(l) of the Act0.Hoffurthr' .' charged that the respndedt icontly obtained possesib ' i'csi4ntià1 premises of'his pvvn at beya frorn'Messrs'Denji sold tho same 'tQ..asrs . Builders (V.M. Cha'da) Ltr , .)ar as Salaain. 1 Final].y that on the facis it was not reasonable to make the order for vacant possessiont It is not disputed th the right to possession of premise towhich the Rent hostriction Act applies is governed by section 19 of 'J.ie Act It is further not disputed that the suit promises were subject to the provisions of the Act. TL question is whether the requirements of section1 of the Act wore fully met before the t±'ial court m the order for vacant possession of the suit pr.isos.8 Since the suit promi were used both for residential and cmmercia .1 ourposes the suit came under scctin 19(l)(e)(i) and (ii) Df,tho , i-ct, Under sub—paragraph (e)(i) of S :ction 19(1) there are two N specific reuiroments whi th 'ust be met - that - lanJord reasonably reuii s the promises as a e:idi ce fr himself and'fr isf ;ii1j; 'otc, the c rt must be satisfied that tornatio accnmdation b1y oquivalent 'is . •:. avail, :10. or wil3 be availale th toiant at the 'time that the: :. or fir. vant .possassi,o'takehc effoc ., etc. . .4 .. .. -.. ...... a'gued by. th appollant tha.t. there :was.. no cDnvinc.ing ei one.e' tha he respondent, was:a sic1ian , and that, eon if hth,wore: ick, that,, ho needed t. move over from Tukuyu to Ibey. I think there is merit in this argum'crrt., ±smn} sai"i by thai spondn'twhat the natiir 1of Lhis iiiiaos w wnich c ulct not be adequately attendêd to iri Tukiiu' ±r vhethcr, 'considering the' ' reiati'iieiy short 1ra'cc\'frm Tukuyu to Mbeya occsioi'aI' si' hc\esomont to thb regional hospital in Mbeya v:.ould nt have suffic.cd.. Hpwo . vo even having said tha'E i,ink it. cannxtbe, .unreasonable for a personto 'cant tj1ic i s own , pmith" than rented Dries nd thocro i; was proper for the trial magistrate t holthtiat ±ilC oronise were or .................... -. - 4 reasonably required by the ondlord for his own and his familys occupati.on. The questi n th wa to follow was whether the second roquiroment of altcnativc accommodation was met. I would agree with learnei counsel for the respondent that there was no legal/ligatiJn on the part of the respondent to find oquivi/.ont alternati-ve accommdation for the appellant at thelimo the order f.r vacant possession took effect. But I wo uij isagree . with him that all that the rosponent was reui.f. to d was to more ly allege that such accmmodation. .uld be available. If that were the case the roquiremon ohat the court be satisfied (my underlinig for omphasi that alternative accommodation was or woud be availab.. to the tondnt would be meaningless and illusy. Cortainljlth(e c)urt has to be satified upon evidence ad.d.ucod a/i not on wore assumption or guess work. The onus was c the rospon1ont to satisfy the court that such commodati.oas or would be available. W.it.h res.pect th'o was no h evicIenco let alone that the alternativo ace ommoda n was to be. reasonably equivalent in size ity.. and Iii, the aaount of :ront: payable. ... - .- - .. -•;.. . .- -, .- .,-..--. The s.. thingc be said aiout the rqi .reinot.s of süctionl9(l)(e) of the, Act. ----I-ffe-ct\ the trial. .magi.stae erredi in :.i o ho1dngtha.t. ,abornati a ace rumoation, -res.onabiyn.: asosi equiv.elert, wasX:1w5u d. be aallable .t the. -time-.the.i: order. r:va.ct pase - - sion took/ place Be tough not.l...-o thexe5oriyto .have. - ma'de.tho order as 'rhajdid;. .. ...... -. -.. .. . .: .. 'j: yi to act intth f ssec' (2) of btn l olt.e Rent h A c t th stric'n learm he wth sattsf±that unless hmo the dr 1r vacant pos3osion the rep3ient laadl'd W3 ld be c.ausea gret bafdsh±I With rospoct, theib a no basis for so holding, The question )f ill—he ac a ubtful one and the fact that the rQsponcien tcd t live and dbuslnoss 5- in his own premises 1iaie in PThoya rather than in rented ones in Tukuyu was simply one of convenience. Sub—scti3n (2) of section 19 of the Rent Restriction Act is rallyin the nature of an equity provisi.on. That is to sr, oven in a situation whore the court finds that legTJtly the landlord is entitled to possession, the cottrtJhas yet to consider the balance f inconvenience and hariship between the landlord and the tonant The court (4)05 so by considering 'all the circunstancos of the cao". If after having done so the court is of the view t1-t fairness and any other valid. Considerations compoll im to refuse to make the order then the order would. bdrefused 0 It is not apparent from the lower court judner5 how the trial magistrate was satisfied under sectio:r 19(2) of the Act that the order for vacant possession ad to be made. The appeal is alltwoci with costa. The decision and order if the iowe:.'/ court are sot asideD MBEYA 1 JLTYE 21bMy,l982. 3 Mr. Dhr/f ±th ftellan01.. . .....i Mrukujba foit1i rasp ondent. . ?. ..••. .. .. .. -. , r. L•