19970224 TZHC Dar es Salaam

(?'" ·=~<'('~!.t 1 _· ., ·., , . .., . 't·t.f . -~ f .. - ~ ...... .,.. ~ ...,; ' . ...... ' .triit· IN THE HlGH COUiiT OF TAN~ANIA '~~ AT DAR ES SAI.AAMo ~-.ic----~.-.--·-~--.......... ,_ ;. CIVIL APE::AL NOo 103/1995 1 0 MARIANA GU'0ST HCUS}~ IfrD • .- •• o • • • o )APPELLANTS 2e hl;.RIANA 1·1ANUFAC'l'UP.H:G CC LTD•~•.) VER:SUS 7 1, N2ARAKA 'Ji..JlA..RA o •• 0 • • • • • • • ~ • • • • •) f·-IJ:!'SPONDEI.JTS 2 . JCN'·o • r••rurir, \..l ) LJ.H.J. 1 \nA O O O • O O O O O O • 0 0 0 I) 0 e O ) :., . . o

JUGDEHENT _ _ _ _ .._ ..,._,.._ .... ___ ,..._"'...,&·.-:"- 1?.!DI~~~g_~ The appellants have, through the services of their counsel M:r:-. riiajithia 1e<N'ited counsel, filed tr.is appeal following the decision of the Deputy Chairman of the Appeals Tribunal dismissing their applicati~n on grounds of resjudicata. The facts in brief are that the respondents Mbaraka Zarara and Jongo Zarsr2. woned suit premises on plot 15 Block 76 along Uhuru Street, Dar es Salaam. Th•. appella.nts Mariana Guest House are tenants in that building, . and are being represented by Mro Majithia, learned counsel. ~- The respondents ,·:hose an suit prmni.s•3S had previously been nationalised, had the same returned to them in 1990 and soon filed an application for vacant poa,,.ession. The appellants refused to move unle~R offered alternative suitable accommodationo 'I'he application, o.f:er several amendments and adjourment was oro.e,r-;d to be heard de novo on 26/2/92, on account of the former deputy chain:::.. then presiding having left the 'l'ribunal. In course of this hearing, the issue service of the six month notice to quit come to the fore., The applic&nts noi.· ,. ;;; respondents saying the notice had been served to then. At the conclusion, t:<:- lovJer tribunal w~s satisfied thc.t such noti·~e had been sent and, served and "_;hv~ ordered. the ·chcn respondents to vac&te the suit premises within

two months. were aggrieved. ru1d appealed_. !-1r. i"iajitlcia app,2arinG for the ap:t?ellants rai,sc ·c, ~t grounds includ~.nG the qu.:,stion of ,10tice to quit. Counsel cs view was that it upon the:: respondents then ( Zarnra Is) to prove service of the notice and that ·: had been no evidence tendered to prove notice to quit being served on his clie.rvr and on. the basis of the ~ ALIRASHID VS ASMATKHAl\l HAf.IEKHAN - r.nurt nf At'T)ef¼l - -........._.;...,.-,-....~.__,_..._-:a:r~•;;:,r.....a.:,,T_,___ . Civil . Case Noo 40/87'1 submitted that the decision of the lower tribunal orderinc; vaa....n,;..t possession \vas errcn~us and a nullity 0 On appeal with Kaji, J~sq (he as thcn.1,Jc7-8) -:: presiding as Chairrncm of the App.~als Tribunal, held that there was no evidencE' tendered to prove service of the notice to quit; and consequently •• 2/ r ,f' ,.) ·. t,:. 'f..i;t;_ - 2 - ,-.:;,._ .~,?t~ reversed the decision of the lower tribur1;al for order vac·ant possession., '· Up to that stage therefore the appellants had been declared lawful sitting ·1 ·Ii'= .. :'-t-""nants of the respondents. In his elaborate judgement Kaji Esq as he then was dealt with fonr main issues as he saw them.namely:- whether hariana Guest House Ltd is a legal tenant of the Zararas - whether l'!iariana Guest House Ltd· was served with due· notice to quit whether it 1ttas reasonable thc,t Iviariana Guest

House :should give vacant posse·ssion of the suit premises whether the Zarara are entitled. to mesne pr_-ofit and if so at what rate. The Appeals Tribunal after deliberating on the issue came to the following :conclUS,Qt'\< tha.t Mariana Guest House Ltd is a legal tenant .of the Zararas and that not:i;ce to ~ t was not served on them and therefore 1'~ariana Guest House could not give vacant possession. The Appeals Tribunal dismissed the applicatio~ The applicants did. not appeal, hrnvever the filed another application No 56/;)L:. claiming for vacant possession. Mr.• Maji thia, for the appellants, has from the outset raised an objection on point of law tha.t the matter is resjudicata in t ~ Re.gional H~)Using Tribunal! application Noo 492 of 1990 and its appeal No. 68,(199.2,.. decided same issues between_samc p£..rties and rcg~rding same property. Also th~t the notice to quit \~•as bad in law,. Counsel for· th& respondents subr.1ittcc, that t}:e matter could not be resjudi~ - as the previous proc0eding has been declared a. nullity for leek of proper se:rvicc al notice to quit. The Vice Chairman overruled the proliminary objection by Mr_,. Ee.jithi.d and held resjudicata was inoperative in this regard. On appeal, the learned D~if Chairman- parted company v1ith hi~ h10 lay members, dismissed the appeal and held \-hat resjudicata cannot be pleaded in either as a preliminary point

of law or as a dQ.f.~" in the pleadings. The appeal before me is basically on the same ground. Mr. Majithia is cont~11g that the respondents a,plication is resjudicata and therefore the issue o: •acant possession cannot be entertained at this stage. I have carefully read both previ<i;_,.::; .; dccisious on this matter, in particular the well reasoned judgement delivered on 25/5/93. Admittedly the issue of vacant possession has been one of the issues in previous applications includj_ng application No. 56 of 1994. But what prompted t:1.) applicants to file the current application is b9cause the Appeals Tribunal h<ld r1;J_<l.c' inter alia on 25/5/93 that t.he mandatory six months notice to quit had not been se.Ne:.d. on the appellants. The effGct of thnt judgement was that the appellants would therefore continue to e11joy tsna'1cy rights until when the isi:me of vacant posccss'i~n- is heard and determined. ·, ~,r- ' \t"'~~. In my cor,.sidered vj.ew, the only \-1ay the) respor:dents ZARAAA can obtc,in vacant possession is L,rou;-:h compliance with the legal rcquiremE:nts, inclu4,,i.~ serving of the, m:-::mdatory six months notice to their tenants Mariana Guest 1-f~s:eJ Ltd, and the filinc of the recj_uisi te applicationo In this regard the ZARPJlA.<. have sou.sht to do vide Application No, 56 of 1994, This application has not: boen determined on rneri ts bc,cause Nr g i'iaji thia,

learned counsel for tb) appel.ltH•\ts - . has raised preliminary objection on law., After a· careful consideration of thu circumstances surrounding this D.pp:=41 11 I have come to the conclusion that the principle of resjudicata cannot oe applied in this c2.seo If the court \·1er,'J to agree 1;1ith Mr 0 Majithia's submi2;;j ·-·~:-., ho1t1 them would thG owners of t!1e suit premises deal with the issue of vacru1t possession"? I think w2 should not lose sight of the fact that the ZATIAHA' G have been f:/-ghting for vacant pas.session since 1990 o.nd they lost the battle because as p:.)r eviclencc on l'(;'Cord the menciatory six months notice to ·cJuit tin~ not sr::rved on the tenantso This battle is still on and I think issues can onl: be settled whcm th0 application fa heard. on meritso In th0 final event I \·JOuld cvorrule the ob,ji.::cti.on filed by Mr,. Majithio. and thereby "dismiGs t-he appeal fiJ.(;.,d ,iith costs,. Delivered before AG. Bubeshi

JUDGE 2V2/97.