NA TZCA Dar es Salaam

j co RAM : O _ __ _____ IN THE COURT OF A~PEAL · AT DAR or TANZANIA . ...,._ E:>... S!\Li<J,.M ~ J ,;\~,,,L!:'!1.~:t~~~-1 . _<~. :.i·~=---E~0-1.~~!..\!!;~~~~-~-:2. < t:\ CIVIL APPEAL NLl. 25 OF 1984 BET\iJi•:EN SHELL AND BP Till''1Z,'1rH;\ LJ !'ilTED. ,, " APPELLANT WILBALD FULGENCG RWCNYA~1RAo • • • RE5P0NOEN1 (Appeal from th2 judgment and dAcree of the High Court of Tanzania at Dar es Salaam) (Hoti. Mr~ Justice Bahatj) dated 3rd January, 1984 in Civil· 1J)_£~al -Noo 5 of 1984 I. I.::!.,USTAFA 1 J.A.: -- ,.JUDGMENT· OF THE· COURT The background to this appeal is briefly as follC\vs~ ~house on Plot 28, Block D along Upanga Road, Dar es Salaam was leased by Shell and B.. P~ Tanzania Ltd. {hereafter. called Shell) from its owner .in 1.971oShell had leased the said L. house and some other premises for occupation by its own employeeso In 1972, due to the operation of the Acquisition ~of, Buildings Act the house became vested in the National Housing Corporation which became its landlord. Shell continued payment of the rent of the house to the 11fatiOnal !-.lousing Corporation., Shell had furnished the house and sometime i~ 1974; Wilbald Fulgence Rwenyagira (hereafter called the respondent) an ~mployee of Shell, was all~cated the said house for his occupation. It is common ground that the respondent occupied the said house by virtue of h:ts employment with Shell, that Shell was paying shs. 800/- the monthly rent of the house, and th21t 12\;% of the .ce.spondent' s ·- salary was deducted at source tc0ard such rent. When the /,' respondent occupied the houser he signed an inventory 0f J ••• furniture and articles which was-·.~e~h:i.'hit<c~d at the t..d.al coc1 ·t., ·;·. I "J ,11 r.1" ~ a r, " ' / t:.. ;;;r, 2 The respondent r2 siqned f rorn Srrnl. l in March 1 19'7 9" Following such resignatiorr Shell c~llPd upon the respondent ,,, to vacate the house•~ · By lc~tt:,~r dat,"d 1-2"7,.79 the responcient wrote back that he expected to move out by the end Decemh~t 1 1979 and·he asked Shell to deduct th~ rentals due until December 1 1979 £rem monies belonging to the respondent in the, hands of Shell, anc\ ,.,qn:( d to .c,h,:,11 checld.ng t:l1G h,rn:i.tun·~ 0 in t:he house~ l-low1:,vet· on 15 .. 8.79 Lhe n~sponcknt fj_l(:?.d a suit in the Resident Magistr'ate 1 s courti Dare!, Sa1aam,claiming that he was the "lawful tenarit/sub--tnnant of Messrs. National Housing Cotporation. 11 in' respect of th(,~ house on Plc,t 28 Block D. He complained that Shell ,✓ as cotmnitHng unlawful acts in order to evict him and prayed for ~n ihjuction to restrain Shell from doing soo A temporary injucti.on was issued in favour of the respondent. Shell filed· its defence and- c:i1-,nieccl . that the .cespondcm t I was the lawful ten~nt or sub-tenant of National Housing Corporation and maintained th.3t the l:'esponde11t occupied the . suit premiselil as its employee. j,s the respOl'H.:h=mt had left his service with Shell, the respondent had loit his right . of occupation and Shell counterclaimed for vacant possession of the premises and the return of the furniture and articles, and for damages for loss of use of such atticles and furniture at Shs. 1,000/- per month until th~ return of the articles and furniture., At the trial in the Maqlstrate's court the respondent claimed that he had been cffered the tenancy of the suit premises by National Housing Corporatiori. He produced a document from National Housing Corporation dQted 1~.1.BO. The trial magistrate found th2t th,::: r~spondent was ·the ·,.~ tenant Of the suit premise:_ on the scrength Of the<i.(-,t~r-·. . from National Housing Corporatic-n to him dc1ted 1.6.1.''E3;.;; __,,__,1, r· I. .... . 3 held that as the furn.ii~u"'e: via,; :i.n thr3 .su,··_ pnomises She:tl r..-:,,i lost its right to it once NationaJ. Housing Cotporation bec3wa the landlord. He gave judgment for Shell in the sum of shs. 5,600/- being rent paid hy Shell on behalf of the She'll app,:::a.1cd from Uic,t juuqrnL~nt to the Hiqh C>t.1ct_ and 20 of the Rent Hestricti □ n Act by vj_rtue of G.N. 36 of 1970 and could recover po;session of the suit premises from Shell v1ithout the necessity of going to court, despite the provisions of sectio11 ::J.1(A) (1) uf theRent Restiction AcL VJhen National Housing CorporaU.on for'-'.rcirded the ctocurnent dated 16.1.80 to the respondent that co,;,tituted a valid tenancy agreement and presumably that also constituted the termination of Shell's tenancy of thl::: :.utt premises. 'l'he judge upheld the finding of the l:1ag is tr ate that the ri:', spundent was the tenant of National Housing Corpo; ation of the suit px.·emises and declined to rule 1t✓hether t-·:e sub--ten~,ncy of the respondent with Shell came to an end O!i '::he termination of his employment in the circumstances. The judge held that tht, furniture and 0rticl2s listed in the inventory belonged to Shell ,-md cirdered the r.etu.t~n Of such articles to Shell by the respondent. He also assessed damages for l0ss of use at the rate of shs. 1 1 000/- per month. from 25.5. 79 to the date the furniture and articlc~s are returned to Sr,~11 by the respondent. Hl? also up:·.i.~J.d the Magistrate's order that the respondent shall pay Shell the sum of shs. 5,600/- for rent dua to 31.12.79. • l • 4 Shell: has appecl.led aqci'in:,t thi, f.i.ndin. 0 th,:it tlw r,::spc,n,_·L~nt 1 and not. '.3!-.elL, is the lawful tt~nant of th;:: ·suit: pn'.:rnise,;o rrhe respondent has cro::;s,-appc::c,lc,d 21~1c:;h,st the-~ judge's f:i.ncHng that the,fu~niture was th~ prop0rty of Shell and the order (e) and 19(2) of the Rent i~1.-,str:i.ctj_on Act had becm complit::d with,. We w:i.11 deal with the issue of vacant possession claimed by Shell first. lt ls clear th21t National Hous;i_ng Corporcotion became Shell's tandlord of the suit premises by virtue of the Acquisition of Buildings Act in 1972. However the tenancy of Shell had not betvn terminatr"d at any time and St1ell remained the _ tenant of the su!.t prP.rniscs. It i.s true~ _that National J-lc,usj ,9 Corporation is ex~mpte6 from the ~rovisions of section 19 ~~a section 20 of the Rent Restriction Act by G.N. No. 86 of 1970, but those prQvisions h~ve got nothing to do with the termination of tenar,cy or with the nxovery of possession. Those provisions only create conditions which have to be complied with before possession is granted. There was no evidence of any_kind that National Housing corporation has terminated Shell's tenancy 1 or has recovered possession of the premises. The offer .by Nat:\~nal Housing Corpe.ration of a b-:!r1::1ncy to the resp<?ndent by its"l<-:!tb3r of 16.L80 could not be . "t. ' construed as, an a.ct termlnating Shell's tencrl:)Cy. It is worthless for that purpol$eo Shr,11 remr,iris the tenant of the suit premises and the respondent had occupied the prc~i-~es from Shell by vi.r;tue of his employment. ShelJ. was entitJ.i~i' to recover posse~$ion on the termination of the respondent's ,:t l • ,,.. order of re-possession in terrri'., of s,_~cu.on 1.9(2) ()f the, .•>:1i•1 Act. That is true. However vu.: 1"!i:,VC, c,c;r,0flllly consj_ckrud G.N. 86 0£ 1970 the rel~vant p~rt of ~~ich reads: ti ( 1) u o o ti $t o o i.l ~ r, " n (2) All premises H: .c,·!sp,,cl: of ,,hi.ch th,, i~iltiOndl Housing Corpor,'3 u.on C?.sti-1bli.shecl by thr::, National Housing_ Cor.por,3tj_on Act, 1962, is r -..-,,,;, :the landlord, are hereby exempted from the provisions of section 1.9 ancf section 20 of the Rent Restriction Act, ·_1,962, and from all oth~r provisions of the said Act which operate so as to confer upon a tenant a . statutory t0nancy upon thi determination of his: contractual ten,rncy". Obviously National Housing Corporation is the landlord, albeit . . .. . . : the head landlord/ in respect of the, suit premi!,es. As such the:premises are ex~mpt~d fro~ the:provisions of sections 19 ·and 20 of the Rent Restriction Act. Mr" Raithatha submitted that the exemption can only ,,pply if National Housing Corporation is the direct landlord, and is itself invo).ved in re-possession. We do not agree. 'l'he ext~mption would seem to attach to· premises o_f which National 1-lOusing Corporation is the landlord. Such premises are exempted premises, just as certain premises are rent controlled premises. - If G.N.86 of 1970 is construed -in accordance with· Mr. Raithatha's submission, a curious result will emerge. The respondent would be a protected tenant vi s-a-,ris Shell, but one(:: National Housing Corporati.on recov0,rs possession, the re spond'ent' s· protection cea S•-: s, althouqh he remains in occupation of the same premises" 'I'hat cannot be right .. We agree with Mr. Kesaria's contention that 3s the suit premises are ~~emptGd premises, the conditions of section 19 a_nd section 20 do not <3.pply to Shell for l.ts recovc-:ry of tl1e premises from the respondent. Shell is entitled to an order Of possession.,_ Ir : c, •• l -~, _.... 6 ar'ticles were supplied by Sh,_,lL of demand of the return of the arti~lns by Sh~ll. We arc of the variety, range and qu.=intity of U : furni tun3 and ~~ticles, consisting of both so-called s~ft and hard f -a 1 :futnisbings, we are unable to s~y that t~e sum assessed is .. t • . . . . .. r unreasonable or needs interfen:ncr:o ',,Je ,jo not think th=it we should substitute o.ur arbitrary figure: fur that of i:he judgeo It is true that Sh(c,11 should 1lJ\'r_, led .evidence as to the cost or value of the articles, but in the circumstances we cto not think that th(': c:.':_ssion L, fatal, ·aB there was iufficient material for / an ' 1ssessment to be ... made a In the result we all0w the appeal 7 f Shell, set aside the Judgrnen ts of the courts below decl a':.: ng the respondent as the. tenant of the suit pn.:rnis•'.:Si and .:ubstitute theref,Jr an order that the rr~spondent vacates the sui,t premises on or before 15th November, 19850 Th(~ resp~·ndent is also to p,'t'f mesn~profits to Shell for th~ Suit prHm'~AS at the rate of shs. 800/- per month for such sum.~s would be found due and owing to .Sht~ll by the respondent.., ·The cross appeal of the responrlr~nt 's dismissed j_n its entirety$ ·~~· . •i . ·~ 7 We 2nvard Shell the co:-:rs of t:t,t-. 'lf•;i: ,1 anrl. tr,,, cr-o.:,::, appr:.:al. DATED at !JAl< i:.:S :3,\L, ,f.: Ud s , ·11 :, I·/ o·i GctoJJ,"!r, ·1•;, " 1 , i l·1VJ ( '\ JUSTICE Op r.PPE.,L l-v,, ,f\..-__U~.v.._0 - "· - 3 JUSTICE OF A~PCAL .' . 11 /1;·--..... r>· I: )·(,) ,' \ /,~\- . / \· \ , ' I /'.,. _·""' . ~· /1 · I \/ \, ' · . 1 \ / I .. JUSTICE 01,· :~::~r~y.:~'~.:.. I . / /