P.S. PARMAR AND A. ADAMJEE v PAULO E. MARO 1990 TLR 67 (CA)

 

P.S. PARMAR AND A. ADAMJEE v PAULO E. MARO 1990 TLR 67 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Kisanga JJA and Mfalila JJA

16 July, 1990

Flynote

Landlord and Tenant - Vacant possession - Residential as well as commercial premises

- Alternative accommodation G reasonably equivalent - Meaning - Section 25 (e) (i)

and sub-section 2 interpreted.

-Headnote

In a suit for vacant possession of premises which were both commercial and

residential, the trial Regional Housing Tribunal found, inter alia, that an order for

vacant possession was inappropriate as there was not available to the H appellants

reasonable equal alternative accommodation. On appeal to the Housing Appeals

Tribunal the finding of the trial Regional Housing Tribunal was affirmed. On further

appeal to the High Court, the appellate judge allowed the appeal by the respondent

and ordered repossession of the premises holding that the respondent was without a I

1990 TLR p64

A house therefore refusing him the order of repossession would cause him greater

hardship than the appellants would suffer by being evicted.

The Court of Appeal reversed the High Court decision and restored the holding of the

Housing Appeals Tribunal.

B Held: (i) What is alternative reasonably equal accommodation is a question of law

involving the interpretation of section 25 (e)(i) and subsection (2). The Rent

Restriction Act requires for both residential and commercial premises (before section

25 was amended by Act 5/ 1990) that before making an order for recovery of

possession, the C Tribunal must be satisfied that alternative accommodation,

reasonably equivalent is available or will be available at the time that the order takes

effect;

(ii) the law in Tanzania requiring reasonably equivalent alternative

accommodation is more demanding than in D England where alternative

accommodation is only required to be suitable;

(iii) where the premises are used both for alternative accommodation which

cannot be used both for residential and commercial purposes cannot be reasonably

equivalent to the suit premises.

Case Information

E Appeal allowed.

[zJDz]Judgment

Mfalila, Makame and Kisanga, JJ.A.: In the Dar es Salaam Regional Housing Tribunal,

the respondent Paulo F E. Maro applied for vacant possession of the premises in

house No. 89 Plot 9 Block 54 along Uhuru Street, Dar es Salaam. He made this

application on three grounds. The first ground was non payment 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 G that the respondent requires the premises

for his own use and that of his family as he has no other accommodation available to

him after being evicted from his former employer's premises. The third ground was

that the appellants had in breach of the conditions of their tenancy, sublet the

premises to third parties. In the premises, the respondent prayed for vacant

possession, arrears of rent from 1st January, 1986 at shs. 13,500/= per month and costs.

The H 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 I 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

1990 TLR p69

MFALILA JJA, MAKAME JJA AND KISANGA JJA

bought them in 1981. Against this decision the respondent appealed to the Housing

Appeals Tribunal which A 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 B shown that there is available to the appellants

suitable alternative accommodation to be used both for commercial and residential

purposes like the present premises. Against this decision, the respondent successfully

appealed to the High Court. The High Court, Mnzavas, J.K, (as he then was) allowed

the appeal and ordered repossession in C favour of the respondent, holding that the

landlord was houseless therefore refusing him the order of repossession would cause

him greater hardship than the tenants would suffer by being evicted. The appellants

applied to the High Court for leave to appeal to this Court against this decision. On

2nd September, 1989 Kyando, J., granted leave D 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

main complaints namely, first, that the learned Judge failed to consider matters that

were specifically before the Court, instead proceed to consider and decide on matters

that were not in issue. For instance instead of deciding on the applicability, extent

and E meaning of section 25 (e) (i) and (ii) of the Rent Restriction Act 1984, non

payment of rent and subletting 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 in taking F additional evidence without good cause.

As indicated at the beginning of this judgment, the respondent applied for vacant

possession of his premises on three grounds, namely non payment of rent, subletting

and that he requires the premises for his own use. The first G two grounds are

questions of fact and therefore cannot be subjects of appeals to this Court. In fact both

the Regional Housing Tribunal and the Housing Appeals Tribunal made specific

findings of fact that the respondents allegation of non payment of rent was false and

that the allegation of subletting was not proved in view of the fact H that all the

occupants of these premises were present when the respondent bought the premises

in 1982. Therefore both in the High Court and in this Court; the respondent was left

with only one ground namely the he reasonably requires the premises for his own use

and that of this family. But this is only the first limb of the question and as I a

question of fact it should properly be decided by the two Housing Tribunals. It is the

second limb

1990 TLR p70

MFALILA JJA, MAKAME JJA AND KISANGA JJA

A - namely whether alternative accommodation, reasonably: equivalent is available

or will be available at the time that the order takes effect, or that the tenant has built

or owns a dwelling house suitable for his own accommodation which is available to

him or would be so available but for his own act in disposing of the same, B which

called for a decision in the High Court. The same applies to commercial premises.

What is alternative reasonably equal accommodation is a question of law involving

the interpretation of section 25 (e) (i) and subsection (2). In the light of this, the

appellants' complaints against the approach and decision of the High Court would

appear C to be justified. In the course of the hearing of the appeal in the High Court,

the question was whether the Landlord reasonably required the premises for himself

and his family 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 D that he reasonably required the premises for his own occupation.

In his evidence, the respondent had stated quite clearly in our view that having lost

his former residence along with his employment with the Posts and

Telecommunications Corporation, he had to turn to his own house as he had nowhere

else to go. Counsel for the E appellants insisted that the respondent could only prove

his need by producing documentary evidence that he had lost his staff

accommodation along with his employment. This insistence on documentary proof

may be uncalled for in situation where the Landlord cannot get such evidence. If

pushed to its logical conclusion, it may result in hardship F to the Landlord. We

think that on the evidence, the respondent lost his job and accommodation that went

with it, he was therefore entitled to turn to the only accommodation available to him

namely his own premises. But establishing that he reasonably requires the premises

for his own occupation is not the end of the matter. The Rent G Restriction Act

requires for both residential and commercial premises (before section 25 was

amended by Act 5/1990) that before making an order for recovery of possession on

this ground, the Tribunal must be satisfied that alternative accommodation,

reasonably equivalent is available or will be available at the time that the order takes

H effect. Thus in this case the more important question for the High Court related to

the second limb, the availability of the alternative reasonably equivalent

accommodation. It was only after answering that question that the Court could have

gone on to dispose of the question provided in subsection (2) of section 25, namely

whether having regard to I all the circumstances of the case it is reasonable to make

such an order and that unless such an order is made great hardship will be caused to

the landlord. As it turned out,

1990 TLR p71

MFALILA JJA, MAKAME JJA AND KISANGA JJA

the High Court skipped the middle question and held that since the landlord was

houseless, it was reasonable to A make an order for recovery of possession and that

greater hardship will be caused to the landlord if the order is not made. This is the

appellant's main complaint in this appeal, and with respect we agree that the High

Court skipped an essential step in the process. B

At the trial, the respondent stated that both appellants had available to them

alternative accommodation. In the case of the first appellant, he said, he has other

accommodation currently used as commercial premises styled FURAHA TAILORING

along Livingstone Street. As for the second appellant, he said, he has his own

residence opposite the C suit premises along Uhuru Street. Both appellants conceded

that they had such premises, but they stated that not only are these premises not

available to them, but they are not suitable and reasonably equivalent to the suit

premises which are used for both residential and commercial purposes. The

respondent countered that since D commercial and residential premises are

separately provided for in the Act, if the suit premises are used both for residential

and commercial purposes, then the alternative accommodation answering to one of

the descriptions is reasonably equivalent, and that therefore the Housing Appeals

Tribunal was wrong to hold otherwise. The E alternative accommodations referred

to commercial purposes not for both as the present premises. Are these therefore

reasonably equivalent to the present premises in terms of Section 25 (1) (e) (i) and (ii)

of the Rent Restriction Act? If the appellants are evicted from the present premises,

they will not be able to carry on the F activities they are able to do in the present

premises, namely, reside and work. They will only be able to do one or the other. In

England, where the alternative accommodation is only required to be suitable, as

opposed to ours which is required to be reasonably equivalent, the Court of Appeal

held in Warren v Austen [1947] 2 All E.R. G 185 that where a tenant living in

premises with playing facilities for his children and an agreement which entitled him

to take in paying guests to supplement this income, alternative accommodation

without these facilities was not suitable accommodation. In the Tanzanian positon

where the alternative accommodation must H be reasonably equivalent, the position

is even more demanding and that therefore in the present case is the alternative

accommodation which cannot be used both for residential and commercial purposes

cannot be reasonably equivalent to the suit premises. With such a finding it is not

necessary and it should not have been I necessary for the High Court to go and

consider the question under subsection (2) whether it is reasonable to

1990 TLR p72

A make such an order and whether unless such an order is made great hardship will

be caused to the landlord.

The second main ground of appeal centred on the learned Judge's calling for

additional evidence designed to show whether or not the landlord reasonably

required the premises for his own occupation. Since there were no B conflicting

views in the two lower Tribunals on the matter, we think there was no need for a

second appellate Court to require proof of this fact. There could be situations where a

second appellate Court can feel compelled to take such action, but this is not one of

them. In fact it only ended up confusing issues before the Court. C The Court

answered wrong questions leaving the right ones unanswered. But on the view that

we have taken of the second limb to be requirements imposed by section 25 (1) (e) (i)

and (ii) we do not feel we are called upon to say any more on the matter.

D For these reasons we allow the appeal by setting aside the judgment and orders of

the High Court and restoring those of the Housing Appeals Tribunal. We also make

an order for costs in favour of the appellants.

Appeal allowed.

1990 TLR p72

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