qurban t vaid vs shirin hassanali 2 1996 tzca 28 7 august 1996

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR (CORAM: MAKAMS. J.A., MFALILA. J.A.. And IUBUVA, J.A.) CIVIL APPEAL NO, ^6 OF 1995

BETWEEN QURBAN T. V A I D ................. APPELLANT AND SHIRIN H A S S A N A U ............... RESPONDENT (Appeal from the Judgement and Decree of the High Court of Zanzibar) (Kannonyele, J .) Dated the 29th day of May, 1995 in Civil Appeal No. of 199^ And (From Order and Decree of Rent Restriction Board in Civil Application No. 20 of 1990 dated the 31st d~y of August and 28th day of September, 199*0

JUDGEMENT OF THE COURT MAKAME, J.A.: The present respondent, SHIRIN HASSANALI, applied to the Rent Restriction Board in Zanzibar to be given vacant possession of a house she and her sister had inherited from their deceased mother and which the appellant was in occupation of for several years. The Board granted the prayer: it ordered the appellant to give vacant possession of the said house to the respondent within three months of the pronouncement of the decision. It was also ordered that the appellant should pay arrears of rent and that each party should bear his or her own costs. The present appellant v nt to the High Court, Zanzibar, on appeal, where 7 isaissed his appeal. He has further .,,/ 2 2 - appealed to this Court. He is represented by Mr, Ajar Patel, learned advocate, while the respondent was advocated for by Mr, S,B« Chamriho, learned Counsel, Mr, Patel filed and argued four grounds of appeal. We propose t© deal with the last one first. 'Hie essence of Mr, Patel'« complaint in the last ground was that the rules of natural justice had been breached by the Rent Restriction Board which had conducted itself in such a manner as to render the proceedings a nullity. The coraa on different dates was not constant so that two members of the Board did not hear some portions of the evidence and therefore they were not really in a position luv pronounce their views on the whole

testimony. Another limb of Mr. Patel*s complaint was that there was no indication on record that the requirement that the decision of the Board should be by a majority of votes had been complied with. In answer to the above-mentioned complaint Mr, Chamriho, for the respondent, urged us to do two things. One that we should agree with the learned High Court judge who was of the view that the failure to record the views of each individual Board member, and thus indicate how each member 'voted1, was merely a procedural irregularity capable of being cured. Two, that we should find that the variation in coram was neither here nor there really b*cc.vise the coram remained the same on the days which really mattered, the days of the actual hearing. The record is loud and clear. Even if one was to ignore what transpired before 13th N\rch 1991, on that day when the hearing proper coaa.^icod, th-; Board Ceram was: ,../3 1. Ussi K. Haji, evidently the Chairman; 2. Rama Keis; 3» Ali M. Rajabj k„ A.M. Mnoga; and 5. The Secretary. On the next and only other hearing date, 22nd July 1992, h*wever, the Board Coram was as follows: 1. Ussi K. Haji, 2. Ali Rajab, 3. Rama Keis, 4. Meya Abdallah Rashid, and 5. The Secretary* Thereafter the matter was adjourned for Judgement. So, as it can be seen, A.V. Mnoga who heard evidence on the first occasion did not attend on the second occasion. Similary, Meya

Abdallah Rashid who attended on the second occasion was a stranger to the earlier panel. Therefore giving the record the most generous interpretation, two members of the Board participated in arriving at the final decision when they had heard only portions of the evidence. This cannot be right. Mr. Patel brought the decision of ALI ABEID SALIM Versus ALI MAHRUZ BIN SALEM (Zanzibar Law Reports Vol. VIII 1951-56) to our attention. That decision was by Windham C.J, We endorse his view that i!... where it is a question of the Board’s hearing evidence upon which its ^ocifonri is to be based, then the Chairman and Members who make that decision should have heard all the evidence'1 '„ - if - V© Agree with Windham C.J. that it is offensive against the concept of natural justice to have a decision given by a Board composed of members who, or any one of whom, had not heard the whole of the evidence upon which that decision is given* To the extent that the Coram was variously constituted on the two occasions it had no $WisAi#tion. .Shoe* is further substance in Mr. Patel’s complaint. There is ne way one can tell for certain to what extent the individual raenrt>esa participated in the hearing the matter and, more p a r t i a l i r e arriving at the decision. The law ordains that the decision ef the Board should be !,by a majority of votes of ■eefeer* present and voting The mere fa«t that

some members • j twaiiir wh®« the decieie# was being read out is not a sure indicator that they «r the majority *f then had voted in favour of it. There is yet one more p**ohleau According to the record, on the day the judgement was delivered ,!Bodi yote” was present. Now we ask ourselves which ■•'Bodi11 was this. We ask because this was now 51st August 199^i over two year6 after the matter was adjourned for judgement on 22nd July 1992* The matter was first placed before the Board on 20th November 1990 so by the time judgement was delivered the Board, or at least some members of it, had outlived their tenure because under Section 6 (6) **a member of the Board shall hold office for a period of three years but shall be eligible for re-appointment". Had all the members been re—appointed or is it possible that by over-sight none had been, in which case they acted illegally unless there was a saving provision? This last .../5 5 - mattey casts doubt on the legality of the Board at the time the _jttdgeifieni- was delivered but even without this diamension jthe--varying-.-- -panel..of the .Board, as explained, .was enough tp make .the proceeding® .null and void* Because of the foregoing we find it unnecessary to consider .the.other three grounds. T o r i*easons we have outlined we.-quash the proceedings and direct $h&t the waiter should be heard afrash by the Rent Restriction Board. Sevch party. to- b e e r his or h&r own costs. . DATED,, at DAR ES SALAAM this 7th Day of August, 1996* L. M. MAKAME

JUSTICE OF APPEAL . -L. M. MFAULA

JUSTICE OF APPEAL D."2. LUBUVA

JUSTICE OF APPEAL I certify that this is a true copy of the original. ( B.M^LSANDA )

SENIPR DEPUTY REGISTRAR