19901123 TZHC Dar es Salaam

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IN THE HIGH CCURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 21 CF 19GG OMMtY SALT.HvI •••••••••• , •• AF .?:8LLANT versus HUSSEIN IVI. SAtVi.BJ A••••••• JiBSl;OlDENT JU'DGMENT MASANCHE,J1 This appeal concerns tenancy of a house that belongs to the appellant "'omary Salum. It is also a second ai2pea~ The resi)ondent,'"Hussein M.Sa-meja, was the tenaJt~ he, having' derived the tittle from his father who is away an U.S.A. either on treatment or !or good. The case originated from the Dar es Salaam Regional ~ousing Tribunal There, the p::-esent ap}'ellant, who was the a1>.,,ilicant then, ap,i?lied to i,he ~ousing Trib 1na.l for vacant possession of the suit premises on mainly 1 ·three gr::iund,3, First: ne argued in the Tribunal that he wanted the house so that he ienovate it. He informed the Tribunal that thJ h0use was in· a bad shape and there fore need repairs. His secJnd reason for a prayer f~r vacant possession was that the actual tenant, the one he had entered into ag7sernent, had abandoned the suit premises; in that he had migrated t~ U.S.A. since 1972 and ·was not likely to home back. But, he concedet that i~c responJent,_the son of his actual tenant~ had stepped into the shoes of his father in the sense that the respondent was paying~ and he, the ~;_;.t'licant, w""s accepting this rent for all those 16 years. / Bis third ground for seeking vacant p~seas~i0n was that after the renovation, he want the

house far his own uso. Tnese three gr;Jun-:ls wera thrashod by tb?. i:-businc Tribunc.l, and in the end the Trfbunal ruled. that the resj,,ondent c ,ul::l n0t be evictecl. The Chairman reasonod, I quote him: ''We are not satisfied that tho a~)plicant wants vacant PC?Ssesseio1: ::>£ the suit•i.·Juse so that he couJ.·.'.. renovatG itG For it has been stated that the house is in ~aod condition. We accordingly reject this as being gr~und for rep~sses of the suit home, Otherwise) ordinary revuir can be carriel 0ut while the respo~dent is inside. / \Vi th regard t·.) tho -::thor grnun-1. the respon:lent, who is the tenant 9 having abandoned suit h0use, we find that since the son of the rospcmlent 9 who is part ·:.'!f the family of the respondent is in the suit h0~se, it cannot ba sai~ that the house is / abandoned. In any case, tho a:;Jplicant has all along been recei vinl rent fr,Jra the res~; .:-n ::lent 1 s s )n {:n<:: he had not issued any 2 •:it Under the circumstances we als0 reject this reason, as'being ground for rc1ossessi~n. The third reason put forward by the applicant as being grouni for repossession is that the applican1 wants ~o occupy the suit house himself and family. This ~eason cuuld be valid if the applicant had obtained alternative nccomodation £~r the family of the respon~ent. There is no evidence that the applicant has obtained alternative accommoda• tion for

the responJent 1 s fawilY-, This being the case therefore, we also reject this reas.on as being gr0und f::ir repcssession of the suit house. Finally, therefore, this application is dismissed.,~~! ~h ·"i::osts." ,-. • •-..,r• That is huv, the application by Omary Salum got iiemissed. ..\, Omarjf Salum got aggrieved of that djcision of thG Jar es S~laam ~ousing T~ibunal and appealed lO the Housing Appeal ·Eribunal, ~here, again~ ~~e appeal / ; ·; was dismi~sed,. If'dne reads the record, basically, the arguement -Jf the_ app~ltan t, now 'tf:t;'pU:gh his advocate, Mlr.Muccadam, is that the s::m har.: n~:Jq)ffH/~,-~~cli• #~ alsu argues that the same s,Jn is a trespasser, an'l an._ ~_he_;rei'ore not be .PJ.'4t-:1eoted by the Rent Restriction. ii.ct. The respon:lent: contended in the two ,tribunals below, that it is unimaginable that f0r 1C Jears ~he applicant could receive rent from a trespasser. The fact that the applicant/appellant received rent from the respondent, f')r all those y_ears, wJul:i indicate that the respondent had been accepted as a tenant. Mr. Muscu:l.am of course ole:rerly counterei that arguement by saying that the appellant had not resorted to law because he was not sure if the real tenant (the old man now in U.S.A.) - , would return. But than, Mr. I\IIuccadam for:;et-s that in law the arnspondent is perfectly entitled to raise the defence uf_laches as against the

applicant who has not been re~sonably diligen~ in seeking ral~ef. Sixteen years of in actiJn by the a~pellant in s~~inc the resp~ndent on the issue of whether or not the res~ondent is a t~nant or not is far tJo long to be if ariy assistance t0 the appellant._ I a__:.T.ee with Mr ivlwakasungula that the c,)nduct of the appellant is strange. The a;Ypellant must be es topped from denying that the respondent in his tenant~ I agre~ with the Housing Appeal Tribunal that the appellent 1 s appeal had nc subtance. The appeal is dismissed with costs. J.E. C. MASANCHE ' JU:'lGE DAR ES S.11.AAM 23rd November, 1990 Mr. Muccadam f0r appellant Mr. Muccadam/Mwckasungula for the_Resp0ndent.· I CERT IF t TH,.T IT IS A THU~ COiJY FROlil TH.ti ul-i.IGIH.iiL. l._\. .. -\.:.;. ..~, il.CTnm JE.?UPY" TIEGISTTUiTI ;)L-:J- rJS s '.1Lf\ ,\T'.I