19941109 TZCA Dar es Salaam

I q... IN THE COURT OF APPEAL OF TANZANIA AT MWANZA {CORAM: Ofv'iAR, J .A.' MNZAVAS, J .A.' Ann MFALILA, J .A.} . CIVIL APPEAL NO. 15 OF 1994 BETWEEN LAUSA ALFAN SALUM & 1n6 OTHERS • • • • APPELLANTS AND 1. MINISTER FOR LANDS HOUSING 1· AND URBAN DEVELOPMENT : RESPONl)ENTS 2. NATIONAL HOUSING CORPORATION • • (Appeal -from_ the Aecisicm anrl ruling of the High Court of Tanzania at Mwanza) {Chipeta, J.) AateA the 11th ~ay of January, 1994 in Miscellaneous Civil Application No. 12 of 1992 JUDGEMENT OF THE COURT MFALILA, J.A.: In the High ~ourt of Tanzania at Mwanza, the appe·llants .Lausa Salum and Others whose number varies from 106, 116 to 206 fileci an application prayihg for Or~ers of certiorari against the ~wo responrlents namely the ~dnister fer Lani:1s, Housing anci Urban Development ann the National Housing Corporation that: (a) the entire or~er of the Minister GN.41/92 i) be quashet1. '.I ir (b) the action of the National Housing tl Corporation increasing the rent fer its l premises occupie~ by the applicants be I quashen. The backgrounn to these proceet1ings may be easily staterl. The secon~ responcient, the National Housing corporation, was 1· establisher' by an Act of Parliament, the National Housing i Corporation Act Ne. 2/9(). Section 11 of t:ke Act1 provinerl that II •••• /2 \ . V 2 the rents chargeable for the premises belonging to the Corporation shall be set by the corporation subject to the provisions of the Rent Restriction Act 1984. The Rent Restriction Act also created the Housing Tribunals and their appellate body, the Housing Appeals Tribunal. Section 2 (1) (b) ~f the Rent Restriction Act empowers the Minister resp"'nsible for Lands, Housing and Urban nevelopment, by o~der published in the Gazette with _the approval of the Natiohal Assembly signified by a resolution, to exempt "V .: . 1 any premises or class of premises from all or any of the provisions of_ the Rent Restriction Act. ·using these powers, . the Minister responsible for Lands, Housing and Urban Development •. -- promulgated. G111vernment Notice No. 41 ·of 1992 exempting all premis~s in respect of which a specified parastatal bo~y is the lawful landloid from all the provisions of the Rent Restriction Act relating to the restriction on the amount of rent that may be charged or collected by the specified parastatal body as the landlord from any tenant occupying any part of these premises. The second respon~ent was among the specified parastatals. Following the publication of G.N. 41/92, the secon~ respondent increased rents for all its.premises inclu~ing those occupied by the appellants. The appellants objected very strongly to these rent increases which they called unilateral. When their protests were rejected by the second respondent, they filed an application in the High Court challenging the validity of both ' the G.N. 41/92 and the increases of rent based on it. Tpe I. appellants challengec1 the vali<ii ty Of G.N. 41/~2 on two grounds. The first ground was that G.N. 41/92 is ultra v.ires the parent Act because it exempts specifie~ parastatals instead of a class of pr~mis~s as provi~ed by Section 2 f1) (c) of the parent or enabling Act. • ••• /3 I 1· I 3 The second ground was that G.N. 41/92 1s unconstitutional for the following reasons. Firstly that it is discriminatory. That it discriminates the appellants by depriving them 0f the protection accorded by the Rent Restriction Act against arbitrary eviction; ~!stress for rent and the right to statutory tenancy which is otherwise available to tenants generally and that this discrim~nation is contrary to Article.13 (2) of_ the Constitution of the United Republic. Secondly that it bars the appellants from 11 tiga·ting their rights as tenants in the Housing Tribunal and that this is contrary to Article 13 (3) of .the Constitution. Thir~ly, that it provides no safeguards against abuse of power by the second respondent. The appellants challenged the validity Of the rent increases by the second respondent on the basis that since the order un~er which they were made is -invalid, such increases were in contravention of ·section 11 of the National Housing Corporation Act 1990. The High Court dismissed the application, the learned ju~ge holoing that G.N. 41/92 was both intra vires and constitutional. He held that since contrary to the appellants• assertions, G.N. 41/92 exempts a class of premises 1.a. those owned by the specified parastatal bodies, the orrl.er is in accord not inconsistent with the parent Act and that therefore it is within its .. ambit. Rega_rding .the cons~itutionalit:y. of G.N. 4,1/92, the learned ju~ge hel1 firstly that it cames within the saving provisions of Article 30 {2) of the Constitution because it is not·arafte~ in such wide terms as t~- net untargetted groups. Secondly that it is not·<liscriminatory in that it affects all the·teriants of the specified parastatals. Thirdly that it does not shut out the tenants of the: specified parastat~ls from le~al recourse-in that ordinary Courts are available to the ,I ., .•••• /4 ~ (~ . :/.: i ili... .. ·-· ··---· - .. --------- __________ _._) 4 tenants to enforce their contrac_tual rights against their landloros. Fourthly that although the G.N. should have ,contained a provision limiting the power of the parastatals to increase rent to economic rent, he hald that the ~bsence of such a clause was not fatal as ~.he Courts can still intervene where unconscienable increases in rent are made. Accordingly he dismissed the application with costs. · Against this decision the appellants filed this appeal, Mr. Matata laarne~ Counsel, on behalf of the appellants filed five grounds qf appeal. In the first ground he complaine~ that the learned judge having found that the tst respondent's order (G.N. 41/92) has no legal safeguards against the abuse of power, he ought to have found that the or~er is bad in law and unconstitutional because it violates Article 13 of the constitution of the United Republic of Tanzania. At the hearing of this appeal, Mr. Matata expanded on this complaint submitting that G.N. 41/92 is unconstitutional because first it allows the second respondent to act arbitrarily and secondly it violates the concept of equality before the law enshrined in Article i3 of the constitution. He added that the Rent Restriction Act avails all the tenants two basic rights. The protection against increase of rent except on the formula given by the Act and statutory tenancy at the end of the existing term·. _G.N. 41/9.2 removes both these rights, and that since the 1st responaent•s brder ousts the jurisdiction of the Housing Tribunal·, it leaves the second responc'ent free to treat its tenants .in any way it likes as it did in the rent increases in this case and against such arbitrary actions, the tenants are °left defenceless. The effect of the order Mr. Matata went on, is to create two categories of tenants, those with full protection under the Rent Restriction Act and those without such protection. • •.•• /5 .. ·+- : . _ _j I ·\ . .5 On behalf of the 1st responoen t, Mr. M,aqoma the lei'lrned Senior state Attorney, supporte<l the High Court ju~gement on the vali~ity of G.N. 41/92 stating that it was made within the four corners of the law empowering the 1st respondent to make it i'lnd that it does.not in any way violate the constitution of the United Republic. In support of his contention that Courts can an'1 should intervene in respect of legisl3tion without proper safeguaras against arbitrary action, Mr. Matata cite1 the decision of the High Court of Uganda in SHAH v. ATTORNEY GENERAL Lt979I E.A. 523. It is true that the learned ju~ge found that G.N. 41/92 had no safeguards against arbitrary increases of rent, but he did not think this was necessarily fatal to the vali~ity or constitutiona- lity of the or~er because in his view tenants of the second respondent could pursue and enforce their legal rights in the or~inary Courts. In the Shah Case quote~·above, the Court felt obliged to intervene because the legislation in question i.e. The Local Administration (Amenrtment) Act 1961 violated the provisions cf Article 8 of the Ugan~a Constitution in that: (a) It had the effect of depriving a party of property without compe- nsation. (b) It had the effect of depriving an aggrieved party of "protection c,f the law" in th~t it shut out litigation anrl prevente<l him from ventilating his grievances in Court.· (c) It gave power to the Minister responsible to nullify even court judgemen.ts inclur'fing the High.Court~ •••• /6 6 -. We therefore ask ourselves whether G.N,. 41/92 has any cf these or similar effects. We ~o net think so. Like the learned judge we think it wculd have been fairer if the or,:ler ha/1 provisions safeguarding the interests of the tenants against the possibility of.arbitrary increases of rent by their powerful lannlorn, but we ~re satisfied that despit;e being free~ from the_ controls in the Rent Restriction Act by "G.N. 41/92, the .secont1 respondent does. not have ano the oraer <lid not inten<i to grant it arbitrary powers to increase rent. we are satisfied that the second respondent cannot arbitrarily raise rents beyond eccnomlc rates, if it does, the appellants and indeed all the tenants of the second respon<lent country wide can seek redress in the ord.inary Courts. In the circumstances, it is not correct to say that G.N. 41/92 created two categorie~ of tenants, one .enjoying legal protection the other without such legal protection. f i i ~.. ~~tlf.:Iio.s'i:lti>cYmi.'f's111tl'i'at!:'!G~'.:f.~~11,,z,gr.emov'ed :the...,,.a~pe~!l•an:ts '"an:C,""'a11....-;tenan·ts . . .9fJ!"l'the~second ~~·~p;i:>ncJ.en,t~f~n\;..;th~Z,p~r5'.£'ec!c:fton.,.,.of 1 • • •• - M • • • - - •-•-•••-••• 1.the Hbus·rng~Trtburili"ls":'.'.un➔ er ·. the Rent Res:tric:'tlon "kc:t ··c:ma":.~.s ib, 1 ~e·re~ tr;,'ns'f"e1fr·e-c,:'<:';the"in~'"to·rthe ort1,;nary Courts!' We therefore agree with the leamed jur'lge that GN. _41/92 does not violate the concept of equality enshrined in Articles 13 of the Constitu- tion. We wish also· to affirm the principle in the rlecision of this court in Juthalal Vel1i Lt~. vs. THB Estates Co. Lt~. Civil Appeal No. 11 of 1985 relied on by the learnen junge an~ which is on all fours with the present case to be goon law. Mr. Matata sought to distinguish Velji's case from the present one on the basis that in Velji's case the rent was based on the economic value of the bu1lt1ing basen on the valuation report which was pronuce~ in the High Court whereas in the present case there was no such valuation. Seconrlly that the exemption in Velji Case was specific to a specific builning. We do not think these __.. ~istinctions are valid. The presence or absence of a valuation •••• /7 r ____ ) 7 report wouli:i be relevant 'when consillering the reasonableness of the rent chargell not the validity of the l~gislation conferring power to charge such rent. Seconnly~ limiting the exemption to specific built1ings is in accorci with the legislation which ·cUrects that the exemptiCin may be in respect of any premises or class of premises. In Velji-' s case, they sought to exempt 11 Tecco ~c,cwns" in. Mikoch·eni Industrial Area as a class of premises. In the seconrl ground, the appellants complaine~ that _hat1 the trial ju~ge properly interpreten the Order GN. 41/92) vis-a·-vis the enabling provi~ion (Section 2 <1) (b)) of the Rent Restriction Act 1984, he wouln have fount1 th~t the or~er in exempting a group of Parastatals instean of a class of _premises, it was ultra vires the enabling provisions. In support of this grounr,, .!:'.!!.:_Matata subm1ttet1 that GN. 41/92 is ultra vires because the relevant enabling section refers to a class of premises whereas the exemption in the Orner is base~ on the cwriership of those pi:;emises. We think_ with respect that ~is submission is baserl either on a misreaning or partial reaAirig of the Sectioh an~ the Ort1er. Section 2 (1) Cb) cf the Rent Restrict.icn Act 1984 provit1es: 2 - . (-i), This Ac:t shall apply to all nwelling housijs and commercial pramises othef than; (a) - ... - . ' (b) An~ prettiises o r ~ of premises which the Minister may with the approval. of . the· National Assembly signifie~ by a resolution, by o_~c'er publi~her, in the Gazzette,- exempt from all • I or any of the provisions of thi·s Act. • ••• /8 \ i Ane,·paragraph 3 of the exemption Or!1er rea.-.s in part:- ... 3. All premises in respect oi· which a specifiecl parastatal is the lawful lan1lord are ~ereby exempte~ ~rom all the provisions of the Rent Restriction Act. 11 Reading these t~~ provisions together; we ~o not see how paragraph 3 of the oraer can be consic'erer1 to be outsicle· the enabling provisions in Section 2 (1) (b} of the Act~ Unner ·' Section ·.2 (1) (2) the Minister responsible for Lands; Housing an~ Urban Development can exempt two groups of premises from the provisions of the Rent Restriction Act. He can exempt any premises o r ~ of premises. The premises exempte ... by GN. 41/92 are covere~ un~er the ~escription any, whereas those un~er G.N. 23/83 are covererl un~er the ~escrlption class of premises. We therefore ~o not see why Mr. Metata woul~ ,,,ant to. limit the Minist~r•s power of exemption to a class.of premises . ' when the first part of ·the section wic'ens the power to any premises. Since all pre~i~es must,have dwnet's; it is strange to suggest that an or~er wouln be ren~ered ihv~lio simply by iAentifying their owr1er~ F6r these ·reasons we are satisfied that GN. 41/92 is hot ult~a vires the enabling section of the I Act. This ·ground of appeal therefore fails •. In grouncl 3 the appellants averred that ha<l the trial junge properly directer, himself on the rules of sta.tutory interpre_tation, he woul~ have founrl that Section 2 (1) (b) of. Act.17/84 ~oes not confer upo~ the 1st responrient P.arliamentary power to amend substantive provision of a statute· (Section 11. of the Nation~! Housing Corporation Act No. 2/1990). In support -of this grounl'.1, Mr. Matata contennecl that the effect of the or~er- by the 1st respondent ~as to amen~ Section 11 of t~e National Housir.g Corporation Act which he was not empowere~ to ao. In rerly Mr. Magoma content'le~ that GN •. 4"1/92 11ic, not ament1 an.-'! was not -~---/9 .·._,_j .9 intennen to amen~ Section 11 or any other provision cf the National Housing Corporation Act. We agree-with Mr. Matata that the 1st respont1ent, the .Minister for Lan1s Housing an~ Urban Oevelopment has no power to amenA an Act of Parliament. But he-has never purporten to un~ertake such a task. In promulgating the orner in GN. 41/92, the Minister was only t1oing what he is allowe~ an~ empowere~ to no by the Rent Restriction Act - namely to exempt the premises owne~ by the specifie~ parastatals from the provisions of the /.ct. Being exempter4 from the operations of a p:irticular law or Orner ~oes not mean repealing or amen~ing that particular ~aw or Order. It simply means that that particular law will not orerete on a spec:1fiel ihniviAual• bc~y of in~ivi~~als or Otg~nisatioh• Hence you may have the Mihis~er of Finance being empowerec1 tc exempt ~~rt!ih "rganisatiotls f.t::crn the operations of say the Sales Tax A~t. This ~oes not mean th~t the Finahce Minister is empowere~ to ame~n the Sales Tax Act. The cohtention in this ground therefore fails. r11:c,, ndt~=-l'e"ave•:fthe appellants ·he·lpless-. without any reJTiet1y, ngains~. the ~secon;d'-~-'re·sponnen t' s .arbitrary or capricious actions.· we 0 j:_ •~_ave·•~al:-raa·f'.\y·,helA· -that the appel-l3nts oi:- other tenants· of the• secont1 •responaent tcan•,still go, tc the ·c-rc1inary Courts to enfprce• theiir rights,,,'.un·,,,er·'.,.;;the·~enan·cy ·agree~ents or to chall~nge the, r.eti}:~.s..,..f,.1-,:xe~ by.'the;'s~cn~- respon-'ent un"'er its new~.acquired.· authority. In,~the circllmstances, we -,o not'.agree~with.__ Mr. Matata, that-,the appellants• right·to go to the . ort1inary;:,C_ourt~ is.,.-, f,::cm. going t9 the ort1inary:~Cqurts to enforce -their, ,rights as t'~nan'rs-, The contention in g,rount1 4 similarly fails • •••• /10 -·-··· ---····--- 10 L~stly; in qroun,i 5 the appellants conten~er'I that han the lecrner'I jur'lge properly nirecte,; himself oh the seconn respon~ent's necision to raise rent, he woul,.., have founr'I that the seconr! respon,;ent acte,; arbitrar~iy anr'I contrary to the principles of natural justice. In support of this contention Mr. Matata citcn a Privy Council necisiori in an appeal from Cana~ai Minister of National Revenue v~. Wrights Cana~ian Ropes Ltn. i94/i' AC 109. we think the Aecisicn in this c~se wouln.have been relevant in the consineration of the present appeal if the appellants han·. been challenging the reasonableness of the new rents not their vali1ity. They wouln then in the· process have provi~er'I the necessary ~ata er informatio~ to support their challenge.• Once it is hein,. as· we have none, that the exemptlon Orner by the . . Minister wcis perfectly. valiti as it was lawfully mane un,ier valir\ly nelegate,; ·authority, the ,valir'lity of the new rents impose.,; by their lanr'llorr'I unr'ler the newly acquiren authority cannot be successfully challengerl. In the circumstances we agree with Mr. Magoma that the only anr'I best cour~e for the .1 appellants to take woulr! have.been to proceen by way of challenging their· .lan,ilorn to justify the new rates. The le~rne,; trial junge ~1~ not rightly atte~pt to resolve the question whether the new· rates are reasonable because he har'I n0 r'lata r,r ether ma~e.rial to assist in such an unrtertaking. Acccr~~ngly we hol~ that this hear'! of c~mplaint also fails. All the grounns of appeal having faile~, this appeal fails ann we ~ismiss it in its entirety with costs •. DATED AT DAR ES SALAAM THIS 9TH DAY OF NOVEMBER, 1994 • •.•.•.• /11 I \; -· . 11 ......... ' -- A.M.A. OMAR JUSTICE CF APPEAL -. N. S. 1'1NZAVAS ..... , ,,. \,, \. _ ,.~·\ JUSTICE OF APPEAL \ L.M. MFALILA JUSTICE OF APPEAL I certify that this is a true copy of the original. . i DEPUTY REGISTRAR .:' ·: 1_ •• . ·•: . ..,: ~ > ~~--- ,· . .. --------~--