19890131 TZHC Dar es Salaam

AT D.PJ:1 ES SALA.AI: MISCELLAHEOUS CIVIL AFVi...:AL lJO o 17 OJ? 1988 (FRo:r ORIGIHAL I!OiJ~:.iHTG APPEAL HO .10/<'38 Ai.ID ORIGISAL APPLICATION :HOO 167 m 1 1987 o:f REGIOH,"..L .1IO\':SDTG '11IlI:CtmTAL HOII!:Jm:D SutJ.D APPEL1"Urc PILIP 1t:rnJI PARNAR MSPO1-IDllllf.i: JUDGEI-IENT f,:;IJZAVAS J oKe T1.1e appe lla.nt, IIohamed suua., ovms a oommeroial 1Juilding along !.Jchild.ohi street 011 Plot No. 14, l{a,riaJ.coo area, Da:r es· Sa~aam. The reopordcmt 1 Filip l~.nji Parwar, occupies pert of. -~he 1:nrildir,;G' us a tenant of tl,.c appellant and runa a shop. Appcrently the appellwt also runs a shop in ·the sam~ promises. The app.clla.rd; filec.l an ·applioa;tion in the Rcgiono.l D:o-:..wil'lg Wr.:L9unal seeki:..1(; fo~ eviction o:t t~1e p;rasent ;r;espornlenJ~ ;f;Nrn il4@ prer:iis~a on tha g:t~ov.nd tl1at h<.:l needed tl1e!1) i'~p i1~f3 ~nm µi:;~, \ Af~e;r hca.;vt~1Ci ~v;i,4.enoe f;rom 'bo-~h sid<;i~ the Q4q.;i.~11an, (ta;r-, Hages~a), at\9: ,tllp tifo roo~b~~J of ·bhe 'l1ribllnal orticred the 1·ospo11dc~t to Y,e,,C?a~@. ,~he prer.ii~~s and gavfJ him t:tl'Oe .I!lOl'l"~l1S to do so, Dissa·hsfied 1d·b. ;;ci1e decision of the Regional IIbuaing Tr:i.buna.i the ::.·ospondent app6aied to the !Ious:i.11g Apptais Tr:i.'bunai. In Hs judgement dated 5/8/88 the Ifousing Appeals Tribunal said inter alia: - 11 011 the availa9le evidence i·t was "not proved that these was alternative

aocornmorlation availc.blo to the appellan-t at ·be tirae when ·bb.e order to evict him from the suit. premises was made, or wl1en t]1e 13ame took effect. '11ho appeal, in the circumsta?1cQ~, is meriforious; eJ1d tlle saI:10 io hereby allowed wi tn costs'i~ The Rousing Appeals Tribunal t!1en proceeded and so~ aside the ordor of the Regional IIous:i.ng Tril.mnal a.nd ordered that ·i;he present respondenJc continue "with_ peaceful occv.pa:liion of -the svi t premises 11 as a tenant of' the appellant. •••• /2 2 Tho appellant/applica.'1t has now appealed to tlJ.is Court against the decisioi1 of the IIousing Appeals Tribunal. Before this Court tl1e appellant has to a large oxte;_rc recapi tul2-,ted his evidence in the Regional IIousing 1l1ri bun.al that he has for a long tine strived to have the premises back (from the respondent) for his own use and that he had found alternative accommodation for the respondent. Ile told the Court tllat the al tertlative accommodation is still vacant. l':ro Marando, learned counsel for the respondent, argued tl1at the appellant did not in his evidepce before the Regional IIollSing TribUJ1al talk about al ternativc acconmodation and that ho only mentioned it when cross-e:i::...1.:nined by l'Tro Rai thn.tha., :Learned counsel, who advocated for the res·ponrlent before the Regional Eau.sing TribunaL, Mr o Nara.ndo further argued that the house the

appellant said in tb.e Regional E,Jusing Tri b1mal -::;;_10.·~ tb.e respondent ovms is occupied by respondent's brother and not by the respondent. The learned counsel prayed that tb.iG Court disi:ri.sses tlle appeal as the appellan·;; did not o:?:i:'or alternative accommodation reasonably eq1ri.valent to the 1'0spondc,m-co In support of his argument "blle Court was referred to section 25(1)(o)(ii). It is common ground tha·c tho respondent becaDc a tenant of' the appellant ii1 19810 According to tho revisio~1 o:2 -i;:10 appellant lle needs the premises as his G;.1op business now needs more space and his far:1ily bigger than it 1.1.Sed to be• In his j1.1.dgc;·.1e~1 t that th0 appe 11.:m t be givon possession of his prei:lises the Regional Housing Tribu..YJ.al said inter alia: -•iwe find that since the applicant wants the suit prcraioes for his own accomrJodation and since an al ternativc accorar.10da·~ion ,,.. hcUJ been obtained for the first respondent tb.011 the applicant is entitled to vacant possession of -'ch0 suit premises. 11 The Regional Housing Tribunal then proceeded and as mentioned above, ordered the present respondent ·l;o vacate the pre;,ri.ses after three mon-'.;hs from the day of judgeraent ,- On 26/3/88. -This decision was, as stated above, reversed by tl:.e Ifousing Appeals Tribunal on the ground that "it was not proved that there :was alternative

accolilI!lodation available to tho appellant at the time when· ·clJ.o order to evict him from the premises was made or w!wn the same took effect." 3 '11110 decision in both t~o ::legion~l and HoU3ing l~ppeals Tribu;.1al revoldca. on the question_ wtot;.10r or :.1ot tlterc wc.1.S evidence to show that the landlord (tirosent appellant) reasonably required the commercial premise'§ and whether the TJ.~i 1J,.:11al was sa:tisfied that e.lfor.na:i;fve accornr:,odation, roa.sonably equivalent, wa.G avail~blo to the respondent as sUpulatetl v.;.1der section 25(1)(ii) of Jelle Rent Restriction Act - No. 17 o2 19e4. Dealing with a sinila.r si tmtion in 1'..bdullaJJ. Azizi V B'aclija. Saltu::i. (1975) LoR.T.22 this Court (f,1waJ.m.sendo J. as he then waD) said inter alia: -1'Tb.e proyisions of section 19(1)(0 )(i), (now soc·!;ion 251(ii) of Act No. 17 of 19$4) Rent Restriction Act, Cap 479 ere no·t; meant to protect a torn:i.nt render all the circurntn.nces.- - Whether or not the p:rcmi3e~ arc 11 reasonably required" for the oooupa,tion ,rf. t:J.e landlord is a qv.estion of fn.ct to be detGrmined at the dato of hearing." In the present case the Regional IIousi:nt; 1.i.1ri b'u.nal :nad.e a fi:,1ding of :facJc that there was al terw:i:liive aocorn;:1odation :for t!10 fona.nJc, (p_rescnt respondcnt),to occupy. The appellant told tho Regional IIousing Tribv.no.1 that tl:e respondc:,1t ha.cl

refercd -~o see, leuve alone to occupy, the al ternativo accorm,,odation •. On the question whctl1er -~110 appellant reason2,bly required the p1"Ci.1ises for his occupation this q,.:i.ostion was no•t; expressly rofcrrod to by ·l:;110 Regional liou.-:;i:1g Tribunal. This a.i10mally does not however necessarily render t~1e decision of t.:.10 Tribvnal of first ins:lia."1.ce invalid. In a similc:i,r s:i.t1,,2,:i;ion tilis '001.1.rt (Biron J) had this fo say interalia when dealing with section 19(1) (no; section 25(1)) of the Rent P..estriction .Act&,, Lli.IJI VS IGJlIM (1969) IICD 294 -"Elven if I were wrong in so holding, ·bb.e:re is au.thority which I do not consider H necescn.ry to ci ·te that a.n appellate Court ', ·may presUL1c tl1,-:1t wllere evidence has been led before the court of first ins-'Ga:.'1.ce in respect of reasonableness, even if no express reference is iilade to such aspect, the com·t has_ applied its Lund to the question of reasonablei1ess and h2.S made its order accordingly. 11 Ls I have alrea.dy sta-tecl. above tl;.at ·i;:1e Region::i.1 ::ousing Tribunal found tliat -c~1ere was alternative nccoITl!JOdi:1-tion offered by -t;he appelln.nt for the respondent to occupy. '.l1l1e respondent refused to occupy the offered n.cconn~oda.tion. On tlle evidence ·tcmdered in tl~e Regional Ifo1.,sinz '.i.1ribun2..l and, in view of the decision in L!,LJI ts case j above

quot·i;ecl I also .,,./4 4 :find that tl1e ~ribun2.l of firs-t instance found it .as a fact '.Chat the appellant, the landlord, reasonably reequired the premisec f:r his own use. The decision of the Regional Housing Tribunal was based on matters of :fact. It wao in a better posi·tion to deal with SlWh matters than an appelle,..i._., ri:1ribtma.1. The Ilousine· Appeals Tribunal clearly erred in reversiiig · tl:e decision of tb.e Regional ITousing •J:iribuno.l based as it was, on matters of fact. This appeal acco:rdingly· cucceds.. The decision of the TI.:using Appeals Tribunal iG accordingly herebi set aside and that of the Regional Huusing Tribunal io ;restored. The respondent to va,ca"i;e the prenri.ses within 0110 week from todayls date. Dar es Salaam