Court name
Court of Appeal of Tanzania

P.S. Parmar and A. Adamjee vs Paulo E. Maro () [1990] TZCA 12 (16 July 1990);

Law report citations
1990 TLR 67 (TZCA)
Media neutral citation
[1990] TZCA 12

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

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

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,

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

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.

E
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