19900716 TZCA Dar es Salaam2

J

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CO:Rli.M: ~MK.AME, J·.A~ 2 KISANGA- 2 J .A., Jmd MFALI,LA, J .A.) CIVIL f.PPE.l\.L NO. 29 OF 1989 BErWEEN 1. P. S. PARJYU\.R ~ • • APPELLA1'1'S 2• A. 1:..Df:.MJEE ~• • • • .P...ND PAULO E. ML.RO • • .. RESP01IDENT -- (Appeal from the Judgement of the High Court of TanzanicJ. at Dar es Salaam) ( Mnzavas 9 J .K. ) dated the 30th day of June, 1989 in Miscellaneous Civil Appeal N:o. 21 · of. "1.988 J1JDGMENT OF THE.COURT MFALIIJ.1., J .L. • : In the Dar es Salaam Regional Housing Tribunal, the respondent PAULO E. 1Ui.RO applied for vacant possession of the premiS3S in house No. 89 Plot 9 Block 54 along Uhuru Street; Dar es Salaam. He made this application on three groundss_. The first ground was non paymen~ of rent by the appellants from 1st January, 1986, that the appellants had failed or refused to pay rent from that date. The second ground · was that the respondent requires_the premises for his own use and that of his farnily as he has no other accommodation available to him after being evicted from his former employer 1 s premises. The third ground was that the appellants had. in breach of·the cohditions of their tenancy, sublet the premises to third parties. fn:the premises, tr;e respondent prayed for vacant possession, arrears of r 2 rent from 1st January, 1986 at shse 13,500/,= per month and costs .• The Regional Housing Tribunal dismissed the application

on the basis that the respondent had not proved that there was available to the appellants reasonable equal alternative accommodation to which they· could move•, Secondly that there was no evidence showing that the appellants had sublet. the premises as alleged, on the contrary the respondent had found all the occupants in the premises at the time he bought them in 1981 • Against this decision the respondent appealed to the Housing Appeals Tribunal which dismissed the appeal on the ground that non payment of rent had not been proved, in fact the Tribunal found the allegation false. Secondly that there was no proof that the appellants had sublet the premises, but that in· fact all the people in the house were there when the respondent bought the suit premises. Thirdly that the.respondent had not shown that there is available to the appel~ants suitable alternative accommodation to be used both for commercial and residential purposes lilce the present premises. Against this decision, the respondent successfully appealed to the High Court. The High· Court, !fil~ZAVJ:.S, J.Ko, (as he then was) allowed the appeal and ordered repossession in favour of the respondent, holding that the landlord was houseless therefore refusing him the order of repossession would cause hDn greater hardship than the tenants would suf'fer.by being evicted. The appellants applied to the High Court for leave

to appeal to this ·court against this decision •. On 2nd September, 1989, I\yando, Jo, granted leave and certified two points of law which are part of the memorandum of appeal~ In their appeal to this Court, the appellants filed five grounds of appeal but we think these can be boiled down to two ma:in 3 coll)plaints namely, first, that the learned Judge fai],ed to consider· matters that were specifically before the Court,:instead proceeded to consider-and decide on matters that were not in issue. For instance instead of deciding.on the applicability, extent an:1. meaning of Section 25 (e) (i) and (ii) of the Rent Restriction Act 1984, non payment of rent and sublettmg and therefore whether it was open to the Court to make an order of repossession, the Court merely. considered whether the landlord required the premises for himself and his family. Secondly that .the. learned Judge erred m taking additional evidence without good cc1use •. As indicated at the beginnn1g of this judgement, the respondent applied for vacant possession of his premises on three grounds, namely non payr.ient of rent, subletting and that· he requires the •premises • for his ~ own use •. The ~irst two grounds are questions of fact and therefore cannot be sub.jects of appeals to this Court. In fact both the Regional Hous:ing Tribunal and the Housing Appeals Tribunal made specific findings of fact that

the I respondentfs· allegation of non payment of rent was false and that the allegation of subletting was not proved in view of the fact that all the occupants of these premises were present when the respondent bought the preraises in 1981. Therefore both in the High Court and in this Court, the respondent was left with only one ground namely that he reasonabiy requires the premises for his own use and that of his family. But this is-only the first limb of the question and as a question of fact it should properly be decid'ed by the two Housing Trtbunals •. It is the second limb - .namely· whether alternative accommodation~ reasonably equivalent is available or will be available at the time that the order takes effec.t, · or that ~he tenant has built, or owns a dwelling house •••.. 6./4 4 suitable for his own accommodation which is available to him or would be so available but for his· own act in dis.posing of' the same, which called for a decision in the High Court. The same applies to cornnercial premises., What is alternative reasonably equal. accommodation is a question of iaw involving the interpretation of Secticn 25 (e) (1) and Sub-s2ction (2)-. In the light of this., the appellants' complaints against the approach and decision of the High Court would appear to be justifiedt In the course of the hearing of' the appeal in the High Court, the question was whether the

Landlord reasonably required the promises for himself and his far:i.ily for occupation., We think with respect that Counsel for the appellants wasted a lot of his energy trying to disprove or rather to show that the respondent had not proved that he reasonably required the premises for llis own occupation. In his evidence, the respondent had stated quite clearly in our view that. having lost his former residence along with his omploy:--~,nt with tho Posts and Telecommunications Corporation, he had to turn to his own house as he had nowhere else to go. Counsel for the appellants insisted that the respondent could only prove his need by producing -I documentary evidence that ho had lost his staf'f accoomodation along with his employnent-o This insistence on docur:ientary proof may be uncalled for in situations where the Landlord cannot get such evidence~ If pushed to its logical conclusion, it nay result in hardship to the Landlord. We thi11lc that on the evidence., the respondent lost his job and acconr;10dation that wont with .it, he was therefore entitled to turn to the only accon::iodation available to him namely his own premises. But establishing that he reasonably requires the premises for his own occupation is not tJ.?.c end of' the 5 natter. The Rent Restriction Act requires for both residential and comnercial premises (before Section 25 was anended- by Act 5/1'990) that

before !!laking an orcler for recovery of possession on this ground,, the Tribunal must be satisfied that: alternative acconnodation, reasonably equivalent is available or will be available at the tine that tho order takes effect. Thus in this case the narc important question for the High Couxt related. to the secortd l:inb, the availability of the alternative reasonably equivalent. accor;1nodationo It was only after answering this (~estion that the Couxt could have gone on to dispose of the question provided in Sub-section (2) of Section 25, nanoly whether having regard to all the circunstanccs of tho case it i~ reasonable to make such an order and that unless such an order. is made great ·hardship will be caused to the landlord. As it tuxned out, the High Couxt skipped the niddle question and held that since the landlord was houseless,. it was reasonable to oakc an order for recovery of possession and. that greeter hardship will be caused to tho landlord if the order is not nad.e. This is the appellant's main conplaint in this appeal, and., with respect we agree that the High Court skipped an esa~ntial step in tho process. At the trial, the respondent stated tr.~~t both appellants had available to them alternative accoDl!lodation. In tho case of the first appellant, he said, he has other acco@nod.ation cuxrently used as cor.u:1erfbial preoises styled FURJJIA TAILORING along

Livingstone Street-. Ls for the second appellant, he said,. he has his own residence opposite tho suit prcr:iisos along Uhuxu Street. Both appellants conceded that they had such pre□ ises, but they stated that not only are these premises not available r ' to thera, but they are not suitable and reasonably equivalent to the suit prenises which are used for both residential and cor:inercial purposes., The respondent countered that since co□raercial and residential prenises are separately·provided for in the Act, if the suit preoises arc used both for residential and con□ercial purpose$, then the alternative accoonodation answering to one of the descriptions is reasonably equivalent, I and that therefore the Housing f.ppcals Tribunal was wrong to hold otherwise. The al tornativo accou.:-.1odations referred to by the respondent cah only be used either for residential or con:-.1orcial purposes not for both as the present pr<?1Jises. Are these therefore reasonably equivalent to tho present pre□ ises in terns of Section 25 (1) (e) (i) and (ii) of the Rent -Restriction ltct? If tho appellants are evicted fron tho present prenises, they will not be able to ca:rry·on the activities they arc able to do in the present prenises, naDely, reside and work. They will only be able to do one or the other~ In E:~1la.nd, where the alternative accomodation is only required to lJe suit_able, as

opposed to ours which is required to be -reasonably equivalent, the Court of !.ppeal held in Warren v., AUSTEN 1947 ( 2) .1..II ER.1 85 ' that where a tenant lived in pre□ ises with playing facilities for his children and ·an agreenent which entitled hin to talce. in paying guests to supplenont his incone, alternative 2..,ccorn:1odation without these facilities was not suitable accon~odation. In the Tanzanian situation where the alternative accoonodation oust be reasonably equivalent, the position is oven raore dena.nding and that therefore in the present case the alternative ;, 7 acconnodation which cannot be used both for residential and coranercial purposes cannot be reasonably equivalent to the suit prenises. With " such a finding it is not necessary and it should not have been necessary for the High Court to go on and consider tho question under Subwsection (2) whether it is reasonable to mclw ~~- an order and whether unless such an order is i:1ade great hardship will be caused to the landlord. The second nain ground of appeal centred on the learned Judge's calling for additional evidence designed to show whethe» or not the landlord reasonably required the prenises for his own occupation. Since there were no conflicting views in the two lower Tribunals on the ciatter, we think there was no need for a second appellate Court to require proof of this fact. There could be

situations whore a second appellate Court can feel conpellod to take such action, but this is not one of thera. In fact it only ended up confusing issues before the Court. ' j The Court answered wrong ques~ions leaving the right ones unanswered. But on the view that we have taken of the second lir:lb to the requirements ir:iposcd by Section 25 (1) (e) (i) and (ii) we do not feel we-arc called upon to 'say any oore on.the natter. For these.reasons we allow the appeal by setting aside tho judgcnent and orders of the High Court and restoring those of the Housing Appeals Tribunalo We also nake an order for costs in favour of the,appellants. D1~TED at DAR ES SLLAll.M this 16th day of July, 1990, L • M. MJJCi.ME JUSTICE OF .l.PPF,i~L R • TI• ~IS.ANGJ~ JUSTICE OF li.PPEi;,L