19801027 TZHC Tanga

6-e 14 / IN THE tIGH COURT OF TA1ZANIA AT TA1GA CIVIL APPELL NO. 6 OF 19k9 (original Tanga RM's Cour (,.... Civ. Case No.2/79,.4 Before: C. Niridi, Req. RM YUSUFUALARAKHLA..............APFELLANT (orig. Defendant) versus ARMED H. NURMOHtMRD .......... RRSPONDRNT (orig. Plaintiff) • Siaya, 3:- This is an appeal from a jud.gement and decree of the Court of t1e Resident Magitrate, Tanga, whereby the appellant,, the original defendant, was ordered to deliver up to the respondent possession of the house standing on Plot No. 16 Block No. 32 at the junction of Street No. 7 and Makoko Road in the Municipality of Tariga. The suit was commenced by respondent, Ahmec3. Hussein Nurmohamed., as the law- ful heir of the estate of the late Hussein Nurmohamed., the former owner of the suit premises. .. '. It is not disputed that the appellant went into 'occupation of the suit premises in or around July, 1970. It seems the tenancy agreement between the appellant and his landlord was reduôed in writing but no copy thereof'was produced at the hearing of the suit.. According to the respondent the appellant has sublet' the suit pro- mises to two persons, one being a tailor and the other a diobi. Both these sub-tenants carry on their business on the suit premises which was contrary to the tenancy agreement.. The respondent went on to state in his evidence at the hearing of the suit in the Court below that the appellant was guilty' of negligence in the sense that he failed to report, as he was required to do, any damages that occured inside the suit premises. The res- pondent stated further that in another breach 'of the tenancy agre- mont the appellant uses the suit premises for commercial purpses, namely that he rans a barber's shop on the,suit promises, whereas the original agreement wag that the premises would. be used exclusi- vely for residential purposes and the rent payable was fiied on that basis, ' •' 1' 1 I - -•..-e -- . .. - I S 'I •e. .. •. - The respond.ent told the trial.Gourt.that his d.eôeased father left behind three houses; onewas,. and .it.still is, let to a "Banianit', the other.isthe one in which the.respond.ent, niother six brothers and four sisters reside and the third is the one under querry. He needs the saId house now forhThdtrn occupation because he intends to get married.. . . The respondeit "called two witnesses at the hearing of the suit, Aihaji Alli Mwiriyihamisi.azid Alhad.hiri Moharned., both of whom are cell loaders. Their evidence wast., : t'lie sar..p,ffect as that of the responde .:Ocbpt that according to the said two witnesses the respondent ha .only three'"brotheTs and 1Ot''5ixis..."i±ftimated by him- self. In his defence at the h?±ng 'the appellant stated that the suit promises are used by himself, his 40 year old wiqnd -sx, children primarily for residential purposes. However, when he later decided to open a barbers shop on t1e suit premises he ii4'orniedhis landlord.' about it. HO agrd. The - 'appellant we nt bn'tô state that . .. . ........ .-. it is true to say that there are a d.hobi and, a tailor on the suit premas. He added that tho carry on their trae o n the veranda orihibh )I des not dharge thorn any rent at a].l. They have been 'there"for'fiV year's daring which period the landlord used to see th'u 'he' d o' bnian '01W anythig.'"Ee, i.e. appellant, denied that he does nt report the d,ef&sii the hoü.db tQ the owner. Qn.lio.: ;cpntra,ry he.'has':a3iys; don'i' s!o' patioularly the faulty elec- tr:.alwiring-. but h c ,liT1tI' hve" a'll'eh :th,. ars'"'He-ä'lso denied ever bei.ng, se.te-d: with ' ", te- t'o -vàb oaid "iEIded\no • :J - soa1ed.,wa -s everi 'to 'racate. suit prmjs. ..Aco,.r'ding- to fhirn' he-.is':nt'de-l±beráteiy c'ntest:in' thsui't : eXCept that he. has.: nowhere'Lt'o' go. 134,rt'i'cu1ariy SO :Whn,'hi ,Wi'O is very sick. - The learned. Resiaent'Misrate who hear d" the casemade 'the following specific finding of fact', me.ly that' te t1e to quit, albeit oral, was.' served- by -th'é respondent on the appellant; that . - ' the appellant ha&'-changed the. user of the premises' without' 'th -'know- ledge an4/qi': oonsont'of -the rightful- 'owner; "that:the'iáppBl].r1t did. not sub—let- the" suit'prom'ies':to the' dhobl ,andtaiior;::and., : fiTal,y, that-the resp,pndent-'wants-titE.'su'it: promises .f or his own' ooôupation. He -s satisfied that, the l respondent--had" reasonable "oausè to - require ~ the. suitpremises, -and, therefore, he entered .'judgement';fori:'the'rOspon- dent/plaintiff as -prayed, , In hi;miporandum of appeal drawn on his behalf by learned Counsel the appellant advances six grounds of appeal. The first ground of appoal'.rcado and 1 quote: The learned Resident Magistrate erred...in ]a and in fact in finding that the appellant, by using the suit premises also for commercial purposes, namely, as. a barr sbop, 1w4.bxeached a odnditidn of the tenancy and 'r that the Respondent's father (the origini 1àidlord) had notpit.her. consented and/or acquiesced in the appellants of the suit premises for commer- cial puTpOS- It is clear from his judgement that the learned Resident Itagistrato was satisfied that the appellant had indeed been operating the barber shop on the suit premises for some time. However, in dealing with this aspect of the cae the learned Resident Maistrate had this to sa1y and I qucte from his judgemont: '± }iave never come to (sic) any provision of the 1a or any authority suggsting that "silence me.ans consent". With respcôt,b the adage "silencp gives consent" 11 whic1i.is as oId as the hills dos hcast of some ógniioi, so to speak, under t-ha. law. If •idéd the appellant has bn operating the barber shop on the suitpremises, as the evidencoshows, for a very long time and with the;.fui11 knôl d-of the ladlord then it is a roasonTh1e infrerce that be conseitod to By holding other- wise the learned Resident Magistrate,- ihaced, - exrèd. So much fo t'refist goLd of appeaj. The second gound of appeal reads The learned Rasidet Magistrao..erred in1aw, in any ôase, in ordering the recovery of -possession of the uit.premiss onthe alleged una.uthorised use of the suit premises for óbmmeroial purposes when there ws no evi- ence that such use was the iaiii- on to which • the suit.premisos had wrongfully been put., Withr.ospoot I hasten to that -this is a point• well taken by the appellant. In dealing with this pqintthe.learned Resident Magistrate had this. ;to..y'and Iuotè from his jidgoinent:.. •.4s .regads .,the-breach of :teteranc condi- tion it is true that the defendant used the -. . 'suit. premises förà6mmero&al pürposes contrary . -to the tenancy agreement. This is a ca11S or ground in law for ordering vacant possession of the premises as per s.19(l)(1) of the Rent Restriction .A.ct The said provision of the law which the learned Resident Magistrate had in mind. i'eads:- . - (i) No order or. 3udgoment for recovery possession of any premiSes tohichthis Act applies, or for: the ejctthtntof.a:tenant. therefrom, shall be made xz given unes - (1) the tenant of a dwelling house uses the premises MM for business, ±rde or professional purposes c. thout the onsq,pt of the landlord;" (The underscoring is mine and is provided, for sake of emphasis). Needless to say, the two conditions 1 underlined above were not met in the instant matter. This second ground of ape]. too, therefore, has merit.., .,• In his third, ground of appeal the appellant avers that the learned Resident Hagistrate was wr ong to make -theorder for the reco- very of possession of the suit promises when there was evidence that by such recovery of posession the respondent would be in occupa- tion of more than one dwelling house at the same time, with respect, this ground is Mi8c- 0n10,QiV0de The evideice clearly shows that one of the respondent's hpuses already its a tenant, one Amarcharid Thirabh whereas the other is fully occupied by the other members of his family. Suffice it to say, therefore, that this averment is not supported. by the evidence and consequently, therefore, devoid of merit. . . . . In his fifth ground of appeal the appellant avers that: The 1earnd. Resident Maistrate erred in law in ordering recovery of possession of the suit premises despite there being before him evi d,ence that alternative accommodation reason- b1y equivalent di otherwise, was not available and,would not be avaiiable at the: timo,tha the :..01'dér took effect.. The point raised here is in effect one of the conditions laid down in Section 19 (l)(e)(i) of the Rent Restriction Aci. However, the learned. Residxt Iiag1strate does notappear have adth'essed. his ::]:fhe did. then his judgement i completely silent on the issue. As a matter of fact the respondent, likewise, did not make any mention at all on this iSsW3 :°F a1ternativacoornmodation in his e.vidence before the Court below, Needless to say, therefore, that he 3 4 e. res- , pondent, did not make out any prima facie case on this' issue of alternative accommodation. All in all it is now open to this' ourtindMd to find, as, the appellant also averred in. his, ixt• a.n. last rason of appeal., that, on the evidence on record, it cannot be reasonably conoluded that the respondent, as' landlord, had discharged the burden imposed .0.15 -a ... 5 ... on him by the law to satisfy the Court that having regard to all circumstances of the case it was reasonable for the Court to make an order for recovery of possession and, further, that unless such order was made great hardship would be caused to him, i.e. the res- pondent and this I do. Had the learned Resident Magistrate properly directed his mind on the evidence before him it is doubtful whether he would still have come to the same conclusion which he did in this matter. In the result I allow this appeal, Thjudgment and debree of the lower Courtare quashed and set aside. The respondent will bear the costs in this Court as well as in the Court beiotq. Delivered in open Court at Tanga this 27th day of October, 1980, (H. E. B, Sisya) a Judge Present: Appellant, Present in person Respondent, - Absent,