mg mohamed others vs registered trustees of ibaadh mosque 1998 tzhc 2002 19 october 1998

IN THE HIGH COURT OF TANZANIA AT DAR ES SAT,A AM MTSO. CTVTI, APPEAL NO. 3 OF 1996 (From the decision of the Housing Appeals Tribunal at Dar es Salaam - Housing App.No. 104\94) 1• M. G. MOHAMED 2- S. V. RAMCHANDAN 3. VTSHAL ENTERPRISES 4. KOTAK TRADING C O ......................... APPtttANTS VERSUS THE REGISTERED TRUSTEES OF TBAADH M O S Q U E ... RESPONDENTS J U D G E M E N T KAr.KGEYA, J . V The Appellants, S. V. Ramchandan and Kotak Trading Company hereinafter to be styled as 2nd and 4th Appellants respectively, were among four Respondents in Application No. 648N.93 before the Dar es Salaam Regional Housing Tribunal in which the present Respondents, The Registered Trustees of Tbaadh Mosque, were the Applicants. The Application was for vacant possession. Mr. Kwikima, Advocate, who represented the Applicants and who filed the Application., for reasons not disclosed, was thereafter replaced by Mr. Maft.ah, Advocate. The latter noting some defects applied for leave to amend the application which act trigered on a heated tussle between parties and which has gone all the way up to the Housing Appeals Tribunal and now to this court and still subsisting todate (1998) since 1993. In that preliminary debate, dissatisfied with the Regional Housing Tribunal's decision, the four Appellants (two others being M. G. Mohamed who appeared as 1st Respondent and Vishal Enterprises who was the 3rd Respondent) appealed to the Housing Appeals Tribunal where their appeal having been dismissed charged ahead and appealed to this court hence this judgement. 1 Just, for clarity: subsequent, to the filing of the present Appeal., the 1st Appellant, decided to withdraw his appeal while the 3rd Appellant entered into a compromise with Respondents., and, that's how we came to remain with only the 2nd and 4th Appellants. All along, Mr. Maftah, Advocate, represented the Respondents (The Registered Trustees of Tbaadh Mosque) while Mr. Raithatha, Advocate, represented the 2nd and 4th Appellants. Tn order to have the issues fully appreciated a background to this Appeal is necessary and it is as follows: One Mohamed Suleman Nassor ‘t.emki , now deceased , was the owner of plots Nos. 97 FLU TT Mosque street and 1462X94 FLU TT Tndira Gandhi Street, Dar es Salaam. On these plots erected are the Tbaadh Mosque and the shop premises occupied by the Appellants. Starting from 1987, Ahmed Al-lomki, Executor of the Estate of the late Mohamed Suleiman Nassor T.emki authorised the Respondents (The Registered trustees of the Tbaadh Mosque) to collect, rent from Appellants including preservation and maintenance of the premises, and indeed since then till 1993 when the conflict errupted the Appellants paid their rentals to Respondents. Tn or about 1993 the Respondents felt need of expanding their mosque for what they called "a surge in members of worshippers". The expansion entailed constructions which would affect premises occupied by the Appellants. They (Respondents) proceeded and issued a two months' notice to the Appellants to vacate. As would be expected the appellants did not move. The Respondents then instructed Mr. Kwikima, Advocate, who filed an application already referred to. As the contents thereof and subsequent, prayer to have the same amended form the nucleus of the contentions it will do less harm (if any) than good if 2 reproduced in whole as I hereby d o :- " APPLICATION The applicants states as follows:- 1. The applicants are the registered trustees charaed with the running and maintenance of the Dar es Salaam TBAADH MOSQUE situate at the corner of Tndira Gandhi and Mosque Street in Dar es Salaam. The properties in the Mosque is vested in the applciants who are in this application represented by M. H. A. Kwikima. Advocate P.O. BOX 280.. TABORA. ' ' 2. The respondents occupy four portions of the outbuildinas to the mosque abutting to the main building on the plot aforesaid. Their address of service is c\o TRAADH MOSOUE.. Dar es Salaam. 3. The surge in numbers of worshippers has rendered the mosque so inadequate th&t. plans have had to be prepared for expansion necessitating complete demolition, redisan and building afresh. The portions occupied by the ~ respondents are affected in this exercise with a view to increasing rentable area to generate more revenue for the up keep of the house of workship. 4. Although the applicants have indicated this to the respondents, the latter blatantly refuse to vacate, thereby blocking the redevelopment envisaged and thus preventing TBAADH Muslims from worshipping under their Tmam due to gross inadequacy of space in the present, mosque. Hence this application. The respondents continue to block redevelopment thus preventing more Muslims to congregate in the mosaue at Dar es Salaam within the jurisdiction of the tribunal. WHEREFORE the applicants pray for ruling and order against the Respondents for: ( i ) Vacant possession of the suit premises (ii) Costs (iii) Other or further relief as may be". This Application is not very clear as to when it. was filed because the usual space, on the application, where such particulars are usually indicated is blank and writings on a copy of the Receipt No. B3\795027 on record are not legible save for a 3 rubber stamp which indicates 8X12X93. All the same however the matter was first mentioned by the Regional Housing Tribunal on 14X1X94. The 3rd respondents then filed their defence on 17X5X94 while the 1st.. 2nd and 4th did the same on 15th June.. 1 994. Meanwhile on 14th June the Respondents., this time represented by Mr. Maft.ah, Advocate, had filed a chamber application praying for leave to amend the application. Again., as was the case with the application itself the contents of what the amendment intended to effect should be laid bear. These pointers are contained in one of the Trustee's affidavit. - Swalehe Tssa, whose relevant part is as under - T/ SWALEHE TSSA, Muslim, adult, affirm and state as follows:- 1. That T am one of the Registered Trustees of the applicant above named, conversant with the matter T am about to depose. . 2. That having been advised by my advocate in respect of the earlier application, T humbly make an aoolication to amend the application as follows:- *" (a) Paragraph I New address has been substituted. (b) Paragraph 2 plot, number have been added to identify the premises. Tenancy relationship between the applicant ' and the respondent has been added to aive the*Tribunal Jurisdiction. " r.) Paragraph 3 has been renumbered as 5. d) Paragraph 4 has been renumbered asparagraph 7. fi> Paragraph 5 has been deleted. f) Paragraph 3,4,6,8,9 and 10 have been added in the amendment as new paragraphs for the following reasons:- 3. (a) Paragraph 3 has been added to create landlord and tenant rent” relationship (b) Paragraphs 4,6 and 8 have been added to give reasons tor requiring possession. (r.) Paragraphs 9 and 10 have been added to creat Jurisdiction to the Tribunal". 4 Challenging Mr. Maftab's prayer to amend the application in which he argued that the Tribunal is legally empowered to give that leaveunder Rule 8 of the Regional Housing Tribunal Regulations., and that in any case the amendment would not. creat injustice to any party, the Appellants joined hands and preliminarily, very strongly objected to the said prayer advancing arguments (orally and by counter affidavits) encompassing observations already made in their defences and which included that ( 1 ) the Applicants (Respondents) had no cause of action as they were not the landlord but rather simply charaed with collection of rents and that as the first application disclosed no cause of act.ion it is a nullity and thus a nullity cannot be amended, (oit.ina Auto Garage T,td versus'^Motokov (N o .3) 1971 E.A 514). (ii) that they should have been given the statutory notice of six months as prescribed under s. 25 (1) of the Rent Restriction Act. (ni) that the 1st and 2nd (Appellants) should have been given alternative reasonable or suitable accomodation upon the landlord proving that he wanted the premises for his own use and not business. (iv) that, failure to indicate that. 3rd and 4t.h (Appellants) are limited liability Companies result in non-existent parties being sued. (v) that in absence of tenant\1andlord relationship the tribunal would have no jurisdiction on such matter. (vi) that, under the law an amendment, which changes a cause of action as this one or introduces a new one cannot be allowed. 5 (vii) that, the proposed amendment does not give the part, iculars. (viii) the proposed amendment, is not made in good faith as the original application was based on a non-existing t it.1e . (ix) that the requisite fees were not paid. T should pose here and make one important observation: in 1994, that is after the filing of the application the Registered Trustees of Tbaadh Mosque managed to secure ownership of the disputed premises. Tn a brief ruling the Regional Housing Tribunal decided in favour of the Respondents by simply holding that as the proposed amendments have not yet. been filed they could not be challenged. The tribunal observed and concluded "how will the Tribunal know if the intended amendment, will not have cause of action without, seeing it. first? The amended application has to be seen first........ if there is any attack it. can be raised. Tt is by way of granting leave to amend the application ...... when we can know the contents of the said amended application". Tt stressed that the law permits the Tribunal to grant leave to amend at any stage of proceedings. Unimpressed by that, ruling the Appellants found themselves at. the door of the Housing Appeals Tribunal brandishing almost, similar grounds advanced before the Regional Housing Tribunal though seemingly unprofessionally drafted for they are repeat.it.ive and disorganised. Again, for clarity let their very wording paint, the picture.. 6 "Reing aggrieved and dissatisfied with the order and ruling made on 6t.h October.. 1994 by The Regional Housing Tribunal of Dar es Salaam (sitting at Dar es Salaam), the appellants hereby appeal against the same on the following., amongst other, grounds:- 1. The Regional Housing Tribunal of Dar es Salaam (hereinafter called "the Tribunal" should have dismissed the applications for amendment because:- (a) On the date the main application was filed 1993 in the Tribunal by the Respondent above-named, the Respondent was not the landlord of the premises occupied by the above-named appellants. Hence the Respondent had no cause of action against any of the appellants and the Tribunal should have either dismissed the application or rejected the application without proceeding to hear the Respondent's application to amend the main appl ioat.i on . * (b) There was not sufficient" evidence before the Tribunal that the Respondent was the owner of the whole building in which the suit premises were situated. Hence the Tribunal should have dismissed the Respondent's application to amend the application. (c) The Tribunal should have dismissed the application because:- (i) on the day the main application was filed by the Responded., there did not exist between the parties the relation of Landlord and tenant; (ii) the main application and chamber application was filed by the Respondent against non existing Respondents (now appellants) and hence both the applications were a nullity and could not be amended. 3. The tribunal should have held that because the main application filed by the Respondent was a nullity, it could not be amended. 4. The tribunal should have rejected the application of The Registered Trustees of Tbaadh because prescribed court fees were not paid when the main (first) aDDlicat. ion was filed. ' ' “ 7 5. The application for amendment should have been dismissed because: (a) The proposed amendments wholly displaced the original applicat ion; (h) The proposed amendments introduced different cause of action: (c) The claim of the Respondent, when the main application was filed, was based on a title which never exsisted. (d) When the applicants filed the Origina1\Main application, the applicants were only the agent of the landlord and an agent had no cause against any of the appellants. (e) The main application did not disclose any cause of action against the first and second appellants. (f) As far as the 3rd and 4th appellants are concerned the alleged landlord had not given the statutory notice as required by section 25(1) (e) of the Rent Restriction Act, 1984. Hence the application of the Respondent for possession as premature and\or bad in law". The Housing Appeals Tribunal also dismissed the Appellants' pleas. After quoting Regulation 8 of the Regional Housing Tribunals Regulations, 1990, it held (again for clarity let me quote the relevant part of that decision). " ..... the RHT was correct in granting the appl ication. The rest of the matters that have been raised in the Appeal such as:- * 1. Whether at the time the application was filed in December, 1993.. the applicant was a landlord. 2.Whether the amendment was that of a nullify. 3. Whether there existed a cause of action before April 1994. ' 4. That there had not. been paid government revenue for the filing of the application. 8 5. That an agent who is charged with a duty of running and maintaining a premises cannot sue on behalf of a landlord etc were matters which had to await the trial because there had to be adduced evidence to prove or disprove those matters. Most of those matters referred to us in this ap peal, touch on the main application and they cannot be satisfactorily dealt with at a stage of preliminaries. For example whereas Mr. Kesaria and Mr. Rait.hat.ha, wish at this stage that the Tribunal believe that at the time of filing the application in December 1993, the applicant as a person charged with the running and maintaining of the mosque,, he was a mere agent.,, who was in law, incompetent, to make the application because he had no title, Mr. Maft.ah on behalf of the applicant\respondent, argues that their clients' title was registered ever since 8.1.1993. This therefore, requires to be heard and determined by way of evidence and not. by mere preliminary objection. Tn the instant case, before us, we see no reason why we should interfere with whaf.the RHT decided to allow amendment of the pleadings since it has not been shown to us by the appellant, that the RHT "proceeded upon wrong materials or upon a wrong principle" (underlining is m in e ). On the other hand, the appellants have not shown that by the RHT freely allowing the amendments to the original application any injustice has been or is going to be occassioned. Alternatively, had the respondentsVappel1ants sensed that there would have been occassioned iniust.ice bv the RHT allowing that, those amendments be done, by the applicant\respondent, then , they ought, to have prayed for costs. They did not. We are satisfied that by the R.H.T. allowing the applicant\respondent to effect, the amendments, neither did the appl icant.Xrespondent proceed on wrong materials or on wrong principles and nor was there occassioned any injustice to any of the respondents\appellants". The Appellants still dissatisfied appealed to this court, in again a lenghthy, repeatet.ous memorandum covering almost 4 pages. With great respect to the learned Counsel who drafted it, the same is tainted with similar defects as displayed in the memorandum of Appeal to the HAT (Housing Appeals Tribunal). Tn order to enable other people to share with me the observation that it is tainted with defects, even at the danger of making this rulina unnecessarily long let me reproduce it in full. « Rfii no and »ith "m.l -ng" d«l ivered on 17th October. 1995 by the Housing Appeals Tribunal sitting at. Dar es Salaam, the Appellants hereby appeal aaainst. the same on the following, amongst, other, grounds: (1) The Learned Chairman and the members of the Housing Appeals Tribunal erred in law in not reading their "Rulina" in full. The Chairman had lust Appeal dismissed. No order as to costs". Attached herewith is a copy of letter dated 18\10\95 addressed to Housing Appeals Tribunal by R . C. Kesaria. m The Housina Appeals Tribunal after hearing the parties ( • was reauifed (bv Rule No. 40 Part TV of the Housing Appeals Tribunal (Appeals) Rules, 1987 to pronounce iudaement.. Tn its "Ruling" the Learned Cha i members of the Housing Appeals Tribunal f a i l e d to give deliberation on each ground of Appeal and the Housing Aooeals Tribunal erred in not giving reasons for not accepting andN.or not considering each ground of Appeal. Tt erred in not delivering judgement. The Housing Appeals Tribunal failed in not finding t h a t :- (a) On the date when the Original Application was filed the ' Reaist.ered Trustees of Tbaadh Mosque were not the Landlord of the suit premises. Hence it had no right o file the said application. (b> Tn the Oriainal Application filed by the Registered ' ' Trustees of Tbaadh Mosque, and even in the amended application filed by the above named respondent, it is stated that the Trustees of Tbaadh Mosque were "charaed" with maintenance and running of Dar es salaam Tbaadh Mosque". No where in the said two Applications the Applicants had claimed to be the Landlord of the suit premises. Hence substitution of the Applicant from aaent to that of Landlord was not proper and lawful' Hence the Housing Appeals Tribunal should have allowed the appeal before it. with costs. (3) The Housina Appeals Tribunal erred in its interpretation'of Rule 8 (Amendment) of the Regional Housing Tribunal Regulations, 1990. (4 ) The Learned Chairman and the members of the Housing ' Appeals Tribunal erred in law in not applying their mind and deliberating on grounds Numbers 3, 4 and 5 of the Pet. it.i on\Memorandum of Appeal lodged in the Housing Appeals Tribunal sitting at Dar es Salaam. 10 the Regional Hoimi'no^r i’bunnl "Jlf "n'' hS>/R f°"n'1 <" > H ' " c ? " o n i f t f i d introduced » a i f f . r8nt raiiaa „f "j* « " * • ? » « * f i led never existed. ' ‘ asft(5 o n a title which by the R e s p o n d e n t b e t h r R p s D o n d Cflt 10n f U e d ln 1 993 Original Landlord ^ o u ^ n a T *" °n}Y ****** s ho u l d have found that o g A P P ftal* T r i b u n a l such agent was not competent t V f n e ^ *hov* namft(5 *s possession. The Housina inn0 i m an ^ P 1 1f-at ion for found that only the L a n d l o r d ^ * T ribuna1 should have X d: ^ n“ - application a n ^ t h e ^ h a m b p r Add/!'1 ??V * fmind th* ma i" Regional Housina Tribunal I = fF? -10n filed in T h « fail., to disclos. ’^ c a u s e of 1n% at 0 3 r ** A p p e l l a n t ' s an d s h o u l d hav* t 100 a 9 a inst the A p p e a l in th e H o u s i Vg\ l ™ , * H '^ T b u n l ^ ^ ^ ’s !e! t v ,: r s 3rd and 4th Appellants fj» rfi<^ord to find out if th& Tt should have'found that ntheyRWaS 1awf,,11y determined, pleaded that t h e 'tenanrC nf ^ ent had nof appellants was dulv dpter * ^ ^nd fourth have been a l l o w e d . * — mine . Hence the Appeal should R « g" Rt ‘e r » d T ™ ? ^ « T^ b" ^ ' r h" " ,d h ',Vfi f o u n d the t « n „ n n y of t h B t hi rd a n d ^ C r t h " 0t fo r m inate d the he H o u s i n g A p p e a l s T r i b u n a l Qho R h a v i n g d o n e so appl i rat. ion for D o s s e s R i o n a rl,fR^ nl<i h a V * fminf1 ™ af t h e * " a n d \ o r f o u r t h defendnat. w a s *S *i n « t the t h i r d d.*m-K»ert the a p p , i ™ U o n fS, s h o 'n '’ l » « " appellant Vi s h a ^ K n t I r o r ' i ' " ^ rt h n v s f n " " fI t h a t the - " h i - - person and was had in law. ' aaainst a non existing 12 9. The Appellants pray for the following reliefs:- (a) This Appeal he allowed with costs. (b) The Ruling of the Regional Housina Tribunal and the Judgement\Decree\Determination of Decision t Housing Appeals Tribunal be set aside and thi of Tbaadh M „ , q „ . !C> "V ""1'1 nORt’’ " f f-hi« A p p e a l , t h e D r o r i f d l i w M n t hl i ^hn Ho u s i n g A p p e a l , T r i b u n a l and the nar « sa?^ ; * « W O » » l Ho u s i n g T r i b u n a l „f M) Any o t h e r „ u . f that may j u s t , suitable and p r o p e r " . f . r mf,moranr1um! Wlth greatest respect,, being a product of . essional people the memo could have been better drafted condensed and points of contention clearly displayed. % Before this court, in their joint written submission and represented by Mr. Raithatha. the 2nd and 4 th . • ’ 371(1 4rh Appellants araued th* lSB,mB *•'»*• '••hi* ™..rt were whether HAT erred * allow,no Respondent, to amend the application (a) on the issue of iurisdict ion <b) °" th* iSS,,B ° f n° <* act. ion . and., also whether statutory notice could he given hy Respondent faaentl to have Appellants vacate the premises. Thev reiterated almost what is repeatedly displayed in the auoted memorandums - that the tribunal had no jurisdiction nor was there a cause of action as the Respondents were mere agents and not landlord and there should have been a statutory notice, m the written submission they never touched ground (1) and 17) (alleged failure to read the j u d g e m e n t s Other ' grounds not referred to at all are (3) - that HAT erred in interpreting Rule S of the Regional Housing Tribunal Regulations.. 1990: 4 (that 13 grounds 3, 4 and 5 in the memo to HAT were not <*1.bar,t.,,d upon,; 5 violation of 41 m . H°" Sin9 A W — 1- T r i b ' - ' (Appeals, Rules „ 87 vide GN 249 of 1990. w l ^ r ? ' M r ' M " ft" h ' A<,voR- t-' "«"-<> ^ hV msrelv • , ^ n r 0r ; r r or :'d i s m i s B " d " • * - — „ ho , s - - -nt ,s not fatal prov.ded the jud 9,. e„t I, there th„ t •* M V ;S "0 Injustice; that under o t rent Rf»pjt-T--ir.4--:rwr i x«4_ ■ * - ( * ) of (■.he i r ; . i : r • - r : r * haVe been 3 matter of evidence- that Rule a Tribunal ~ ^ ' ar 8 empowers the r C : \ T z z ::: r r r B;~ »• « - . — ^alt With them- that f a i l ^ ^ ^ nfiVftrthfi 1BRR th« HAT Appellant, w e r e ^ i j c ^ ^ ^ 4fh irregularity; that the °mPani e' S 1R nof faf*l nor an incurable ( 1 9 7 D p A S14 ’ CaRft ° f AUt° ° arage r,td VR Mnt.okov (No 3) J e ht a : : r : r TT cpc was - -a a - o u i d be ; h d ; h; : v ° r nnt disriose a — °f — ' amended the « relevant orde" and now ^O.VTT, relevant, order 1^ Rule ^ 1™1 . ° f 1971 "(r.) allows amendment to be made (cited H T i Sons r.td versus D t n u- ' Stanley and • ’ ‘ o e and Company {Tz) r.td 1 9 7 4 r RT \ adding that in anv case even if th ' Tr ihnnai • . . . .n If the amendment didn't exist the Trl b u n a 1 ,* n o t bound b y t h e p r o v i s i o n , o f t h e C P C : t h a t h ques ion of notice was prematurely brouoht in as it i " of evidence and lastly that "in equity it is f * q',fiStl° n consonant with justice to allow i ■ f* 1rer and more merits rat-h _r .. , a claim to be determined on • ther than be defeated by a technicality". Tn reply Mr. Raithatha reiterated what was submitted earlier z : : : - : 7 j nz : : „ : T - — - — .... . « » ™ ran aD 1 , ^ 7 ’tT ^ ^ ^ ~ - n,Y ,f thB ’’r.hunal had iur Isd irrt ion . 14 T h»v. quoted at length all that T consider relevant in this matter not because of my incapacity to summarise the same but. considering the nature of the contentions presented I believed that this is the best way to clarify the different positions by the contending parties. Now let us turn to the Appellants memorandum of Appeal which .* akin to a written submission [one of the reasons which made me quote it in full]. This four paged memorandum cum submission could have been reduced and better arranged bv removina repeatet.ions, mix-ups and zeroing on relevant gr ou nd s.'a greater - Of it is fit for submissions when expoundina on the relevant deserving areas of complaint. Tn effect therefore the arnunds of appeal could conveniently be compressed as follows:- - fi r s t l y , that the H A T d i d not pronounce the judgement as required under Rule 40 of the Housing Appeals Tribunal (Appeals! Rnles, ,9«7 (OH 249X90, (this would cover the present ground one; e irst and last sentences of ground 21; secondly, that, the HAT erred ,n ,ts interpretation of Rule 8 of the Regional Housing Tr,bunal Regulations, ,990 (this would cover the current around .1); thi rdly, that the HAT did not. deliberate on some of the grounds of Appeal, and where it. did, it did not state the ingredients of a judgement, as required under Rule 41 (1 , of the Housing Appeals Tribunal (covering the 2nd sentence of grounds 2- C.rounds 4 and 5,; Fourthly, that, the HAT erred in allowing for ' the amendment of the application because the R e s p o n d e t A A p p l icant not be.ng a landlord had no legal capacity to apolv for Appellants' vacant possession and therefore the Regional Housing r jbuna 1 had no jurisdiction; and lastly, that failure to " indicate that the 3rd and 4th Appellants are 1 imi ted 1iahi 1 itv companies was fatal as the application was filed against, non-' existing part, ies . 15 I will start with the complaint against the HAT's failure to deliver the judgement. The Tribunal's record shows that the ruling was delivered in the presence of Messrs Kesaria and Raithatha who then registered their intention to appeal. On its fane value therefore the 'judgement' was delivered. However., for the sake of argument, if the situation is as alleged by Appellants., with respect to Mr. Maftah.. while appreciating the "need to save time principle". simply stating "Appeal allowed" or "appeal dismissed" cannot be in line with the clear provision of Rule 40 of the Housing Appeals Tribunal (Appeals) Rules, 1987 (GN 249\90) which p r o v id es , The Appeals Tribunal a f t e A h e a r i n a the parties or their and h e r r i n g to any part of the proceedings to ntch reference may be considered necessary shall ^l^^U^n^^iudgtmenJ^iri_piibiic (in a room where it " ordinarily hears appeals) either at once or on some future date of which notice shall be given to the parties or their agents . (emphasis mine). Tn pronounce a judgement cannot be taken to simply mean stating whether a party has lost or won. Pronounci no a iudaement OM-t “ " " means reading i t. Tt. becomes more obvious that "pronouncing judgement" is not merely statino 4 m r o f ' 1; h r 1H»Sd ,?r ” hen onB 40 and ^ (Appeal) Rules. Rule 41(1) defines what amounts o a judgement to be pronounced under Rule 40. Rule 4 1 (1 ) states, "T »naj^ r i u -he Appsa)s Trlbu" " 1 s h s n hB - -rum, (a) the points for determination; (b) the decision thereon; ’ (c) the reasons for the decision, and “ here the decree appealed from is reversed or varied the h thB * » • ' I""* *« ent itied; and at _ - time it. is pronounced be signed and dated bv the Chairman or the Registrar who shall certify it"‘ 16 ■r is clear therefore that merely stating "Appeal allowed" or "Appeal dismissed" would not. have brought out the above elements of the judgement, and obviously cannot be said to have been pr o n o u n c e d . While T do appreciate that... generally., parties are not interested in the legal jargons and recital of authorities and f a c t s , or even the reasoning behind a particular finding., for., the majority are only interested in the final results, pronouncing a judgement is a necessary requirement imposed by law and has to be followed. However, while failure to read out the whole judgement is legally wrong T cannot, subscribe to Appellants contention that. it. is an incurable irreaularitv goina to the roots of the Ruling so as to turn it into a nullity' The ' complaint here is simply that th* judgement was not read over to the parties: if would have been different if it were that such failure occasioned some kind of injustice to the Appellants which is not the case in this matter. Next... T will deal with the complaint regarding HAT's failure to deliberate on certain grounds of appeal and that where it did., allegedly failed to comply with Rule 41 (1) of the Rules. The relevant, part of the Ruling is already quoted above. Generally, there is truth in the complaint, for, as vividly displayed in the Ruling, the HAT simply quoted Rule B of Regional Housing Tribunal Regulations and concluded that the Regional Housing Tribunal was justified to grant leave to amend. Regarding the other grounds, it lamped them together in the fol.lowi.no words, " , as ^ ..... werfi mattershaVO beRn which had to wait the tri*l because there had to be adduced evidence to Drove or disprove those matters" prove or 17 The only question is whether those grounds were justifiably so baptised. * As already indicated, the HAT discussed only the relevance and applicability of Rule 8. It concluded that the Regional Housing Tribunal did not proceed on wrong material or principle or cause in-justice in deciding as it. did. The Appellants complaint on this point is not justified for this point was fully considered - the fact that after considering the matter HAT arrived at a finding not supported by them is a different iss ;sue. On the other hand., the complaints that other grounds were not considered cannot be said to be without base. T can only observe that T don't go with thp HAT that, they could not be dealt, with at a preliminary stage. Rome yes., but others cannot await production of evidence., and., indeed they were put. up in the Appellants' defences. T am only in agreement with the HAT. that the following matter should not have been raised as preliminary point for it could have been argued in the main application. This is (a) That 3rd and 4th Appellants were not given the statutory fi months' notine as prescribed under s. 2 5( 1, (a) of the Rent " Restriction Art, 1,84. This would have been discussed durino the R H T 's deliberation on whether or not conditions for vacant ' possession have been met. Tndeed this complaint was prematurely argued before the RHT. * The rest, however could not have waited for the main hearing because preliminary points., which are points of law., should be “ argued first as they could finally determine the riahts of the parties saving time and unnecessary expenses. " 18 Although th e RHT is no t bound by the civ il p guidance cannot w holl v he tocedure Code its provides a procedure to h 7 7 ^ ^ °* " V ' R " le 2 <=PC R a i s e d , it s t a t e s , 6 ° 3° W e d w h e n P r e l i m i n a r y p o i n t s are " " i t , a n d t h e ^ c o u r t . t i T o ^ t h * * f aC t a r i S S in th e R a m e a n y part, t h e r e o f m a v L I- o p i n i o n t h a t the r a s e or o n l Y , it s h a l ^ ^ t h ^ ™ thH e issue's of [a w P u r p o s e may., if it t h i n k s fit I '' an d for thflt ht k l s s u e s of fact until a f t e r S f h ° ne the Sfittl a m e n t have been determined". a f t e r th e i s s u e s o f la w Though not couched as mandatory the rulin determine the preli„inary poinM f L t r ^ *> by - c o m m e n t a r i e s h y Tnd " V " *>* d e a l i n g w i t h th e l a w w h i c h i s i * p 9 r i n t in* p a n materia with ours. Chi tale y & Rao 6fh e d i t . "where issues of ^ 2589' capable — and lS b ° u " d try t h o ^ s L r ^ r s T " ths he ,d .A , S °- ^ A ' T R - 1 * 3 9 r,ah. 1 5 8 - 4 , P r R ' , R- 615 w h e r e it w a s where a p r eliminary point lito ca u s e of ac ti on is Ra is ed ,2 ° n ' f f r n i s h i n o of a ™ " r t to frame an i s ™ ' ™ b e f o r e d e c i d i n o the othe r IL?"1? P ° ’nt anrt for the it ;n mo st case s be aaveJ ssue s „ou, d be c l e a th* r partiB* -outa , «* - e „*T bc r ,ghf t„ ^ ^ ^ object ion regar di ng non - p a ymsnt of f„ , ran ' during produc ti on o f evidence, for as ri h „ ^ Appellants a case or an a by th» necessa ry f ^ 1C,,l:i0n ,S filfid uP°n Payment of u«c-essary fees unless for- ° nS reco9nised under the ,aw th„ same are - i n *aw th e "ajved. Even Regulation T nf f», (1) ° f fh B R « 9 i o n a l Housing 19 Tr,b7 ’ R S 9Ul’tl° n' 18 V "ry <>„ t.hla as it provl<)„ , " a n Ya p p ? ^ ? j " ® f n e , 5V hfl T r i b ™ al c o * n ™ by for8ethW "'hr t PaYment ° f f8SS thSre WO '"'3 hB -P»H™tlon ■' th« situation created then is as if if J° ^ *"•* « * » - > < * - I t production n f \ Z Z l '” ? S '"i to p r o p o s i n g t h e o p p o s i t e : - th,t. is w h e t h e r or not f * z - z■ R ze s p ozn d ezn t :h o wb*e v e r , if A p p e l l a n t s had bothered to t Z :; i : : h: " e w; " yt: : . r 1T nt r s 9 , s t r y - n o te d , . ' ' 7 P3ld Vlde ERV B3\795027 (whose date of issu<1 as a l r e a d y o b s e r v e d at t*ho k ■.* issue, l e a i b l e but 1 b‘5 , * “ > of t h i s j u d g e m e n t , is „ „ t e rv,k be r s t a m p t h e r e o n is 8 \ 1 2 \ 9 3 ) . were r\ Z i/en \ 7Z 7 "l ' " T " ^ t.„ k n o w ” c l ' l d ^ h ^ «" «*• " A T o u g h t I nd e e d fh ion of e v i d e n c e The R " " lfi9al e n t U i f t S S h 0 " ,d « " * • •> « " so r e f l e c t e d T h e R e g ,ona, H o u s i n g T r i b u n a l s h o u l d h a v e c o n s i d e r e d thi s prel imi n a r y point" THic? a ** x. o u r s u a d e d that this ^ h o t w t t h s t a n d i ng h o w e v e r T am not t h r o w out the a p p l ' i c i r “ ° ' t ! h * V " ^ B"T ° r *h" » « to de fect s i n t e n d d " " rS ^ °f « » -visaoed •- • -ended to be c u r e d by R e g u l a t i o n 8 of the RHT Regulations where the Trih„„„i ibunal even suo moto. could order amendment to meet the r • rrtflr ^ 3v z xz , . T i r w s , m ordsr * * order which ought to h a v e been ordered but Z ^ ™t r ^ r : : : ~ :;id r r r r " * that Appellants. T should unreservedly reiterate that t T " d’ th" t e n a n t s launched t h e i r oh.iect:1 o n s , d r e w ^ Appeal contributed a lot first . ' t l r s t ' to the finding made by the RWT and subsequently the HAT Tho ■ 4. • • objections were not concise ; : r : to : the HAT and even sta r t this as w a s the (—a n — - ~ Appeal to Court the relevant docents already quoted above speak for themselves,, i ll asying was m a d e Sth 6Ven ^ application b* th« Respondent to amend ade the preliminary points should have been clearly out „ by Appellants to encompass, those for non ! P r,™ „ • ■ Ior 'non-payment of fees suinr. fAo " 9 e n t i t i e s , and thirdly, whether the Applicants' ppellants) could be interpreted to fail * — ora within the de fi n i t t ” o I ", V ? 1" Act, 1984. Restriction Upon the Respondent's raisins A p p e n a n t s would have a d d L " Z r ^ amendment would introduce a new cause of a c t i o n , ' a V i f s T ^ und.r n. : r a r gtuhe m e nltssa vw o e u—l d h a v e — f a l l e n- observed)"^"/ 1°” °* SUPPOrti"9 « g u m e n t s (as a l r e a d y am r T the W a y Were c° " f « l n o ]y p r e s e n t e d T Tribunal”0* ^ 'aC<>a ^ SU° h PreC1Re ™ TOnc of the ' Tribunals could have left any un-answered. That said as T h already indicated, the HAT pt-t-oh , „ " HaV6 ■, erred (and so did the RHT) in not : :e:m ic o url d rn o t r be *a r g uand furth- e d at a p r e l— i m i n a r-y st age. '■"t “ .«» ‘« n to the o t h e r remaining 3 grounds of A ppsal have paraphrased t h e m above. T will -t a r t with the 5 th g r o u n d : c o n c e r n i n g w r o n g e n t i t l i n o of 3^ a n ^ h A p p e l l a n t s . On t h i s I c a n o n l y s a v that t 'k it w h e n I w a s d e l i b e r a t • already disposed preliminary obiections “ T " * " - r only two other grounds (second a"nd f o u r t h , " ^ ' ^ can be discussed t o o e t h e r • th* n • convinced t o g e t h e r . the allegation that the HAT 21 i ; : : r rpretea Re9uiation 8 ^ R H T .a 1 M V . to rep r o d ! c I nth aS 1HaV8 d° ne 811 al° n 9 ' U iS to _amended Ap p U cat.i„„ against which Appellants collected * n noted that th' arsenals and attacked. it will be KHT L h K ® a L w n i e d jfcpi ication was not before the RHT although b y the time the HAT dealt with the Appeal it was already on record. Thus the RHT was somehow disadvantaoed for it - r ? — — tr quoted at the beginning of T M B U E a t i o n n states as follows.- ' P r o p o s e ,mended If AMENDED APPr.Tf!ATtn^ The applicant above-named >tate as follows:- 1 ' B o s q u e ^changed Truste°s °* Tbaadh es Salaam Ibaadh M o s q u e t u a t ^ a t nf h rUnln9 ° f the Dar Dar^es 'J g S T ' ^ T fourep S? ? i o n s So ? rthe0b u il di nf the * P ? licant and occupy Mosque Street and ?4 6 2 V94 P?u r i r l? tH N O S - 97 F]ur ” Their address for service L J k n2 lra Randhi Street. Mosque Dar es qalaam a j Care of Tbaadh Titles to the s a i d P l o j ! T a"d marked «™ c a lledP,,thenpremises" )ta n d SDav bUlldil’9 !hfirHi nafter Applicants. Anneild and marked""9 'renL ! ° *?• are bank p ay in slips paying ren£s in L c? U a c t l v «ly account at the National Ran? IS i he A PPlicants Branch. Commerce Kichwele Street 4. The Applicants claim p o s s p « i nn *-u Respondents with a v i e w ’of S premises from the rebuild\construct H L abl1"9 the A P P U c a n t to shops for the public A n n e x e d ^ ^° mpl® x for worship and architectural d r y i n g s ? S wS?cS ?h-i*Ik®? - 'A5 " A6 are crave leave to refer wh l ch the Applicant shall 22 m o s q u e 9I o li n ad eq ua te ° th at ra hm PPh rR "aS rendsre<3 the to use arcades\corrtdors of ° f "orshippers have worshipping. An nexe d a ^ Marked ^ 7 ?“e ?!" the of the timePof th° » " « » » ex pa ns i o n ^ nL ? e s S i t a t i n a bco mp T e t e ,'ded f°r buildin8 de si gni ng and building S - “ e ? h 8t® f e '"o l l t , o n ' « - the Respondents are also affected in t h ? 1SSS °''c u p 'ed bY aim is to increase rentable arp* exercise. The offices to generate mnr« f more shops and building. Annexed and m a r k e d ° U 5 ,JpkeeP of the architectural drawings of the proposes R e s p o n L ^ t s / ^ h e ^ a t L ^ h a v ^ b l S r ^ / b 18 p l a n to t h e vacate, thereby blockino the blf,j?ntly refused to the envisaged buildina 'Sant from d «velopino collectively are n o S / t T ™ c * t T mSrked 'A 8 ' 8. The refusal to vacate onl y give hardship to w o r s h T o n e r 7 1 ° ^ ” ew buil<3ino not development of the city and ^ also p r e v e nt more shops and offices in thl ^ ? ri? g the h i d i n g of The delay to build, would c a u s e V L ? r public good, from high construction costs whiJh ir PP ant to s u ffer after day, a detriment to*’th« J ? • ps on ri»ing day con ?0t r?ady or may not be readv ^ a n t ‘ The ResP ° ndents nstruction costs to the Applicant a t ^ l l ^ ^ extra The Applicant repeats thaf ho t h f m i S J S t0 enable the reco ns -t ru ct?S possession of the thereof to be carried ou? L S ° n or rebuildina Brant to the R e s p o n d e n t £ ' n e w te!!® App li ca "t is ready to reconstructed or rebuilt „ nancy of the r ebUllt Pre"” ses or part thereof. jurisdiction"? t h e ^ i b i n a l " ^ Salaam w ’thin the t W ^ R e s ^ n d e n t A for* -ant Pray for r,,l’ng and order against (b) Costs; P° aSeSS,0n of the suit premises; (c) A ny other order ac m ■. 88 the T r i bunal may deem fit" - that „e are noW in better position to deliberate „hether or 23 not the HAT erred in upholding the RHT's Order granting leave to amend the application. Regulation 8 of the RHT Regulations provides, "The Tribunal may at any stage of the proceedings, either on its own motion or on the application by any party order the amendment of the pleadings, subject to such ordrs as lo costs ■ The RHT allowed the amendment by simply reasoning that the proposed amendment was not before it and that as the Tribunal is empowered to grant leave it should grant the same and if there is any objection it can be raised thereafter. While T don't accept the line of reasoning used I have no quarrel with the order given. The RHT had the "pointers'* of the proposed amendment at its disposal. Of course these pointers were not very clear and this points to another crucial matter which Tribunals and parties should always address themselves on. When seeking leave to amend the best way is to have the proposed amended document ready for scrutiny instead of leaving the opposite party and Tribunal guessing. In this situation however, instead of observing as it did, if it felt that the pointers were not sufficiently informative, the RHT should have ordered for clarification or presentation of the proposed amendment. This is a shortfall on this decision. On the other hand the HAT concluded that the RHT did not tread on wrong materials or principles and that- no injustice was occassioned. Here I should register my disagreement with HAT's observation, for, as was the case with the RHT, it is tantamount to saying that any application to amend must be allowed. This cannot be because once the laws or regulations providi that an application can be made for the doing of something it is presumed that the applicant should assign reasons which would be considered by the tribunal before d e c i d i n g whether or not to grant the application. Granting of the same cannot be automatic 24 R H T ' ! 1! ' ' 0 " 1'588t ^ U n 9 ° V e r n * b 3 * s i t u a t i o n s if not chaos. T he R H T s d e c i s i o n not. b e i n g b a s e d on the r e a s o n s a s s i o n e d for th e applicatxon for amendment the H A T ' s finding that the R H T did not read on wro ng materials or principles cannot be supported Hooking at it from the other angle which right materials and ; r ; : r did ths RHIn HAT. There are none. T employ which in turn were ^ *». other words as much as they did not decide on the other preliminary objections., the two Tribunals did discuss the reasons advanced for the application to amend. However, I should hastily add that the above notwithstanding. Regulation 8 does not set any conditions which should guide the RHT in granting or refusing leave to amend. ' On the basis of the above finding what should this court d o ’ 2 : Z T \ r tHe TrlbUnal “ — the reasons advanced for the application to amend and so are other pre .minary objections. Can this court „n appeal make a decision them i n st ea d. I have carefully considered the is sue a n d h a v e r S COUrt C a n - 1 * - this'stand bv make anv a me nd ed . If the H A T ^c an R" ,ss 43 « d n o t ° " WhlCh thS RHT " aS S'W O a < 'd *> ^ not (Rule 43), can the legislature have intended to confer Pon the High court less powers, The answer must obviously L „ o r n a n y case s. 4 3,2 > of the said Act does not limit this court's' powers in anyway for it provides, " " c o u r f m a T ^ k e 9.:,^ o ^ e T a ^ t ' ' the Hi9h T r i b u n a l " 0 , / 0 -8 : ^ * » - i - t t he s d e c i s i o n on p o i n t of law or law m i x e d w i t h facts. 25 f o l l o w s " ™ PrOCeed t0 answer the preliminary objections as disposed of - the f e e ^ a H l e a r l r ^ a ^ r 8 h a " ^ This The issue regarding f a i l u r e ^ L T r Sh° r t ’y ^ *adB' ;•»3rd - <«> „ts has ai;:::;s:f; ; :t: t ,tory notl°* that it could only be considered in ^ main h answered remain with the issue of amendment of the a p p U c a t " 9 ' thU* R espondents locus standi w h ic h in mv ’ P P U c a t , o n and the co nve nientl y be o r o u D ^ * ' - Y considered view, can 6 9rOUP6d Under °nly two issues, namely, (a) whether by the time the* ResDonrionf i application the Respondents could be interpreted to fal, under the nitron of Landlord as defined under s. 3 of the Rent Restriction Act., and if the answer is the negative, fi (b) whether the RHT could legally arant th* p leavn t ^ grant the Respondents to amend the application after acaui^iti o w n o r o K i n «_ acquisition of the ownership by registration. Upon fu l l c o n s i d e r a t io n r** answer the 1st issue nosit • * m i * * ions m ade I have to Vigorous ly ins ist that R ^ . collection of r e « s hen " ” ” a9SntS for the pu rposes of the r h J s iuU - V 0t ^ r89arded aa La nd lords for M a « a h that the R e n t ” » «» — Mr. term 'landlord- to include an 'aaent' T h •' ^ d" flneS ^ following de finition under s. 3 u " " “ 1 f ln th« any any the provisions of this Act M t l n J V W ° " 1d be b“ t for and — y Person f ™ .,, I? Possession of the U n der tha n r iq jnril— — 31??— to txjne_jJ.erivina fif-io 9 1^ l o F d ~ i I i ^ F T 7 ~ r ^ r ^ 5»n d /a n \ P e ^^on deeme f n t ^ ~ ^ 26 ' (emphasif5 mine). r „ “ T »•- F o r SL i ethisCht r9ed W U h thS dUtY ° f dealt wi th no one else except th p APPellants co nc er ni ng the premises thev 6 6Sp° ndents on a11 matters some thi ng else but their powers ^ i c T ^ t ^ 0311 them a90ntS ° r of rents but also had to m a L M i n the ^ ^ C° 11*Ction maint ai ni ng premis es would include it Pr6miSeS a "d nat« ralll y reposses sio n where cirrnm * Prot ect ion which cover p e r m i s i b l e . I am convinced t h ^ t \ h iCtat6S ** l69allY categor y of "any person frQm ^ ***" the the original landlord- envisaged under s t h ' 1" Re strictio n Act 1984 T , * * of the Rent an ^ P l i c a t i o n for v a c a n t T o L ^ ^ ^ * esponderits could file disposes as well the ar ssion as they did and this cause of action. ^ «" AP P U cation had Having answered thp firof ■ little to be said on the s e c o n d 15^ * f* irmatiVeI* '•"*** is the A p p e U a n t s centred on t T L 8 "»«.l of Imbedded in it h o w e v e r w a s a n ar ^ Standl ° f the ResPondents. c h a n g e s wholly a cause of a c t ’ 9Um6nt that an a m e n d m e n t which simply a n s w e r this by J be a l l o w ^ - I would au thor it y cited * ^ ^ «> K* 514) is no longer the law of the l ^ f Ltd ” M ° t° l'OV ( 1 9 7 1 > of the Civil Procedure C o d e wa, 2 l da ° ‘VI1, R” le 11 (c> take care of this and ex pr essl y states t l T ^ ^ ^ ^ t0 discloses no cause of action can h * Pl* a6rng w h i c h court (see also H. j stanle >, 6 amended with leave of the Co m p a n y <TZ) Ltd 1974 lRT 7 ^ V* rS“ S ^ D° ble and fe law, agai n as ri0 h „ y l l L l f A T * ' ^ Of the RHT Regulations would h a v e V o v i d i d M a f t a h ' Re9^ a tion 1 1 empowers the RHT to depart from „ T, ™ m * * Y for c le” ly "The Tribunal shall not be h „ Said R*# " l a M o n Provides, lvil Procedure Code, l 99 6° Un by the Provisio ns of the 27 leave C° U,<i r ‘9 h ' ly 9rant MSMeiAEEUeatian even if the and there which were fully discussed" V i T 6 T ^ def6CtS h0re Tribunals' findina that th« » ' Sf»tisfied that the two Application in C°U,<5 ^ t a B l i a U a n . " was and prop„ ^ **M M *L M S aatf that the 3rd and 4th A m .,11 ■ , *" V " M' of thB f a d i n g should be so designated th p * ^ " M M - the necessary amendment, o ” "™ alr- t e d to effect cure - r e this anomaly. anomaly Pr °P O S *d *PPti«tio„ to Appeal dismissed wit h costs (f*• B. Kalegeya) JUDGE D elivered today on 19th O ctober. iq<)8 ln ths Raithatha and Respondent. ' " the P ^ e n c e of Mr. (k . B. Kalegeya) JUDGE