LAUSA ALFAN SALUM AND 116 OTHERS v MINISTER FOR LANDS HOUSING AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION 1992 TLR 293 (HC)

LAUSA ALFAN SALUM AND 116 OTHERS v MINISTER FOR LANDS HOUSING AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION 1992 TLR 293 (HC)

Court High Court of Tanzania - Mwanza

Judge Moshi J

D

6 October, 1992

Flynote

Civil Practice and Procedure - Prerogative orders - Certiorari and prohibition -

Circumstance for issue. E

-Headnote

This is an application for leave to apply for orders of certiorari and prohibition under

section 17, 17A and 18 of the Law Reform (Fatal Accidents and Miscellaneous

provisions) Ordinance Cap 36 as amended by Act No. 55 of 1968 and Act No. 27 of F

1991. The application was intended to challenge the exemption given by the Minister

for Lands, to the second respondent from all the provisions of the Rent Restriction

Act relating to the restriction on the amount of rent that may be charged or collected

and from the provisions of sections 12, 16, 17, 26 and 37 of the Rent Restriction Act.

On G the authority of the first respondent's order the second respondent increased

rents ranging from 845.56% to 14,330.64% among applicants with effect from

September 1st 1992.

Held: (i) Any action of a public official done in official capacity is challengeable on H

the ground of illegality, irrationality and procedural impropriety.

(ii) from the submissions and affidavits a prima facie case has been made out

for the intended application.

Case Information

Application granted. I

1992 TLR p294

MOSHI J

Matata, for Applicants A

Magoma for respondents

[zJDz]Judgment

Moshi, J.: This is an application for leave to apply for Orders of Certiorari and

Prohibition preferred by the learned advocate for the applicants, Mr. Matata, under B

the provisions of sections 17, 17A and 18 of the Law Reform (Fatal Accidents and

Miscellaneous Provisions) Ordinance Cap. 360, as amended by Act No. 55 of 1968,

and Act No. 27 of 1991. It is supported by the affidavit sworn by one Lansa Alfan

Salum for, and on behalf of, and with the authority of, all the other 116 applicants, C

and it is resisted by a counter-affidavit sworn by William C. Magoma, learned Senior

State Attorney, for, and on behalf of, the Attorney General.

The short background to the matter is as follows. The applicants are tenants in

premises in which the second respondent is the landlord under tenancy agreements

which D stipulate, among other terms and conditions, the rents payable. On January

24th 1992, the first respondent, Minister for Lands, Housing and Urban Development,

made an Order under section 2(1)(b) of the Rent Restriction Act 1984, published

under GN No. 41 of 1992, which exempted the second respondent, National Housing

Corporation, E among other parastatals specified therein, from all the provisions of

the Rend Restriction Act relating to the restriction on the amount of rent that may be

charged or collected by the second respondent from any tenant occupying any part of

their premises. The Order also exempted the second respondent from the provisions

of sections 12, 16, 17, 26 F and 37 of the Rent Restriction Act which operate to

confer upon a tenant a statutory tenancy upon the determination of his contractual

tenancy. This Order was made with the approval of the National Assembly signified

by the Resolution passed at Dodoma on the Twenty third day of January 1992. G

Consequent upon, and on the authority of the first respondent's Order, the second

respondent then increased rents at exorbitant rates ranging from 843.56% to

14,330.64% among the applicants effective September 1st 1992. The percentage of the

increased rent has now been reduced to, and it stands at, 800%. H

Mr. Matata's grounds of contention are threefold: First, that the rent increases are

unreasonably exorbitant, were unilaterally made, are disproportionate among the

applicants, and are discriminatory in that they favour the specified parastatals against

other parastatals and private landlords, and thus offend Article 13 (1) and (2) of the I

Constitution of the United Republic of Tanzania,

1992 TLR p295

MOSHI J

as well as the terms and conditions of the tenancy agreements, and the principles of

A natural justice. The case of Madhwa and Others v City Council of Nairobi [1968]

E.A. 406, was cited and relied upon. Secondly, that the Minister's Order casts the

jurisdiction of the Regional Housing Tribunal and that the caster clause offends

Article 13 (3) of the Constitution, and, Thirdly, that the Minister's Order was ultravires

the B enabling provision of the relevant law, in that, section 2 (1)(b) of the

Rent Restriction Act empowers the Minister of exempt from all or any of the

provisions of the Rent Restriction Act, premises or class of premises, and not a class of

landlords. Leave is then being sought to contest the Minister's Order and the second

respondent's C increases of rent on these grounds in the intended application. The

learned advocate prayed for the issue of an interim prohibitory order to restrain the

second respondent from charging the new rents, and from evicting the applicants

until the intended application, in the event that leave is granted, is finalized, on

account of that the D Minister's Order confers on the second respondent powers to

charge any rent and to evict tenants without recourse to Regional Housing Tribunals

or to Courts of law for that matter. A passage from Halsbury's Laws of England

Volume 11, page 72, paragraph 130, was cited and relied upon. E

Mr. Magoma is resisting the application on three grounds. First, that the application is

defective in that Lausa Alfan Salum has no locus standi and that her affidavit is

defective in that it does not give her particulars. But there is an instrument attached

to the affidavit as annexure A executed by the rest of the applicants authorizing Lausa

to F appear and act for, and on behalf of, them. Mr. Magoma has stated that

Annexure A was not served on him, and I am certain that had he seen it, he would

have realized that his contention that Lausa has no locus standi is totally devoid of

merit. I have had sight of Lausa's affidavit. I have examined its form and contents.

With respect, it does G occur to me, on proper reflection, that the affidavit is devoid

of the defect complained of or of any other defect for that matter. It portrays all that a

defective affidavit does not. I am satisfied, and hereby find, that Lausa has locus

standi, and that her affidavit is not defective. H

Secondly, Mr. Magoma has submitted that the first respondent - the Minister was

wrongly joined in these proceedings and that the second respondent would have been

the only respondent. With even greater respect. I find this argument unsustainable.

As rightly pointed out by Mr. Matata, the effect of the minister's order was to confer

I upon the second respondent an unrestricted power to

1992 TLR p296

MOSHI J

determine rents by removing tenants' right of statutory tenancy, and casting the A

jurisdiction of regional housing tribunals. In other words, in raising the rents, the

second respondent was clearly acting upon, and exercising, the power conferred upon

them by the minister through his order. Viewed that way, therefore, it is impossible

to divorce the action of the Minister from that of the second respondent. What they

did, in my view, B was so intermingled and interdependent that one could hardly

proceed against one of them without at the same time proceeding against the other. I

am satisfied, and hereby find, that the first respondent, the Minister, is properly

joined in these proceedings. C

And Mr. Magoma's third point of contention is that this application is devoid of merit

on account of that the Minister's Order was not ultra-vires the enabling provision of

the Rent Restriction Act, and that it was not in violation of any Articles of the

Constitution. Well, quite obviously, in my view, this court cannot properly be called

upon to D adjudicate on these matters, one way or the other, at this stage of the

proceedings. Those are matters touching upon the merits or otherwise of the intended

application. All that the court has to decide at this juncture is whether or not a prima

facie case has been made out for the intended application. E

Broadly speaking, prerogative orders of certiorari and Prohibition may be issued in

certain cases, either to quash a decision made in the course of performing a public

duty or to prohibit the performance of a public duty, where the injured party has a

right to have anything done, and has no other specific means of, either having the

decision F quashed or the performance of the duty prohibited, when the obligation

arises out of the official status of the party or public body complained against. Quite

clearly, the applicants have an interest in the matter they are applying for. The first

respondent, and the second respondent, are a public official, and a public body,

respectively, who had G an imperative legal duty of public nature which they had to

perform in their official capacity. In my considered view, any of their actions or

decisions is challengeable, firstly, if it is tainted with illegality, that is, the power

exercised is ultra vires and contrary H to the law. Secondly, if it is tainted with

irrationality, that is, the action or decision is unreasonable in that it is so outrageous

in its defiance of logic or of accepted moral standards that no sensible person who had

rightly applied his mind to the matter to be acted upon or to be decided could have

thus acted or decided. And thirdly if the action I or decision is tainted with

procedural impropriety, that is, failure to observe basic rules

1992 TLR p297

of natural justice or failure to act with procedural fairness towards the person who

will A be affected by the action or decision.

In this matter, I have given due consideration to both learned counsels' submissions,

and I have perused the affidavit as well as the counter-affidavit. I am satisfied that a

prima facie case has been made out for the intended application. Invariably, though,

in an B application of this nature, the grant of leave to apply for an order of

certiorari or prohibition or both operates as a stay of the proceedings in question until

the determination of the intended application or until the court otherwise orders.

There is much good sense in this and, besides, I am buttressed in this by what is stated

at page C 72, paragraph 130, Volume 11, 3rd Edition, of Halsbury's Laws of England.

In the event, I allow the application, and hereby grant leave to apply for Orders of

Certiorari and Mandamus. An interim Prohibitory order to issue restraining the

second D respondent from charging and collecting the new rents from the

applicants, and from evicting the applicants from the promises on account of their

failure to pay the new rents, until the intended application is determined.

E Order accordingly.

1992 TLR p297

F