Court name
Court of Appeal of Tanzania

Lausa Alfan Salum & Others vs Minister For Lands, Housing and Urban Development and National Housing Corporation () [1994] TZCA 29 (09 November 1994);

Law report citations
1994 TLR 237 (TZCA)
Media neutral citation
[1994] TZCA 29

Mfalila, JA, delivered the following considered judgment of the Court: H
In the High Court of Tanzania at Mwanza, the appellants Lausa Salum and Others whose number varies from 106, 116 to 206 filed an application praying for orders of certiorari against the two respondents namely the Minister for Lands, Housing and Urban Development and the National Housing Corporation that: I

(a) the entire order of the Minister GN 41 of 1992 be quashed. A
(b) the action of the National Housing Corporation increasing the rent of its premises occupied by the applicants be quashed.
The background to these proceedings may be easily stated. The second B respondent, the National Housing Corporation, was established by an Act of Parliament, the National Housing Corporation Act No 2 of 1990. Section 11 of the Act provided that the rents chargeable for the premises belonging to the Corporation shall be set by the Corporation subject to the provisions of the Rent C Restriction Act 1984. The Rent Restriction Act also created the Housing Tribunals and their appellate body, the Housing Appeals Tribunal. Section 2(1)(b) of the Rent Restriction Act empowers the Minister responsible for Lands, Housing and Urban Development, by order published in the Gazette with the approval of the National Assembly signified by a resolution, to exempt any premises or class of premises D from all or any of the provisions of the Rent Restriction Act. Using these powers, the Minister responsible for Lands, Housing and Urban Development promulgated Notice No 41 of 1992 exempting all premises in respect of which a specified Eparastatal body is the lawful landlord from all the provisions of the Rent Restriction Act relating to the restriction on the amount of rent that may be charged or collected by the specified parastatal body as the landlord from any tenant occupying any part of these premises. The second respondent was among the specified parastatals. Following the publication of GN 41 of 1992, the second F respondent increased rents for all its premises including those occupied by the appellants. The appellants objected very strongly to those rent increases which they called unilateral. When their protests were rejected by the second respondent, they filed an application in the High Court challenging the validity of G both the GN 41 of 1992 and the increases of rent based on it. The appellants challenged the validity of GN 41 of 1992 on two grounds.
The first ground was that GN 41 of 1992 is ultra vires the parent Act because it exempts specified parastatals instead of a class of premises as provided by s 2(1)(c) of the parent or enabling Act. H
The second ground was that GN 41 of 1992 is unconstitutional for the following reasons. Firstly that it is discriminatory. That it discriminates against the appellants by depriving them of the protection afforded by the Rent Restriction Act against arbitrary eviction, distress for rent and the right to statutory tenancy which is otherwise available to I

A tenants generally and that this discrimination is contrary to article 13(2) of the Constitution of the United Republic. Secondly that it bars the appellants from litigating their rights as tenants in the Housing Tribunal and that this is contrary to article 13(3) of the Constitution. Thirdly, that it provides no safeguards against abuse of power by the second respondent. B
The appellants challenged the validity of the rent increases by the second respondent on the basis that since the order under which they were made is invalid, such increases were in contravention of s 11 of the National Housing Corporation Act 1990.
C The High Court dismissed the application, the learned judge holding that GN 41 of 1992 was both intra vires and constitutional. He held that since contrary to the appellant's assertions, GN 41 of 1992 exempts a class of premises ie those owned by the specified parastatal bodies, the order is in accord not inconsistent with the parent Act and that therefore it is within its ambit. Regarding the D constitutionality of GN 41 of 1992, the learned judge held firstly that it comes within the saving provisions of article 30(2) of the Constitution because it is not drafted in such wide terms as to net untargeted groups. Secondly that it is not discriminatory in that it affects all the tenants of the specified parastatals. Thirdly that it does not E shut out the tenants of the specified parastatals from legal recourse in that ordinary courts are available to the tenants to enforce their contractual rights against their landlords. Fourthly that although the Government Notice should have contained a provision limiting the power of the parastatals to increase rent to Feconomic rent, he held that the absence of such a clause was not fatal as the courts can still intervene where unconscionable increases in rent are made. Accordingly he dismissed the application with costs.
Against this decision the appellants filed this appeal. Mr Matata, learned counsel G on behalf of the appellants, filed five grounds of appeal. In the first ground he complained that the learned judge having found that the first respondent's order (GN 41 of 1992) has no legal safeguards against the abuse of power, he ought to have found that the order is bad in law and unconstitutional because it violates article 13 of the Constitution of the United Republic of Tanzania. At the hearing of H this appeal, Mr Matata expanded on this complaint submitting that GN 41 of 1992 is unconstitutional because first it allows the second respondent to act arbitrarily and secondly it violates the concept of equality before the law enshrined in article 13 of the Constitution. He added that the Rent Restriction Act avails all the tenants to two basic rights. The protection against I

increase of rent except on the formula given by the Act and statutory tenancy at A the end of the existing term. GN 41 of 1992 removes both these rights, and that since the first respondent's order ousts the jurisdiction of the Housing Tribunal, it leaves the second respondent free to treat its tenants in any way it likes as it did in the rent increases in this case and against such arbitrary actions, the tenants are left defenceless. The effect of the order, Mr Matata went on, is to create two B categories of tenants, those with full protection under the Rent Restriction Act and those without such protection.
On behalf of the first respondent, Mr Magoma, the learned Senior State Attorney, C supported the High Court judgment on the validity of GN 41 of 1992 stating that it was made within the four corners of the law empowering the first respondent to make it and that it does not in any way violate the Constitution of the United Republic.
In support of his contention that Courts can and should intervene in respect of D legislation without proper safeguards against arbitrary action, Mr Matata cited the decision of the High Court of Uganda in Shah v Attorney General (1). It is true that the learned judge found that GN 41 of 1992 had no safeguards against arbitrary E increases of rent, but he did not think this was necessarily fatal to the validity or constitutionality of the order because in his view tenants of the second respondent could pursue and enforce their legal rights in the ordinary courts. In the Shah case quoted above, the court felt obliged to intervene because the legislation in question, ie The Local Administration (Amendment) Act 1961, violated the provisions of article 8 of the Uganda Constitution in that: F
`(a) It had the effect of depriving a party of property without compensation.
(b) It had the effect of depriving an aggrieved party of "protection of the law" in that it shut out litigation and prevented him from ventilating his grievances in Court. G
(c) It gave power to the Minister responsible to nullify even court judgments including the High Court'.
We therefore ask ourselves whether GN 41 of 1992 has any of these or similar H effects. We do not think so. Like the learned judge we think it would have been fairer if the order had provisions safeguarding the interests of the tenants against the possibility of arbitrary increases of rent by their powerful landlord, but we are satisfied that despite being freed from the controls in the Rent Restriction Act by GN 41 of 1992, the second respondent does not have and the order did I

A not intend to grant it arbitrary powers to increase rent. We are satisfied that the second respondent cannot arbitrarily raise rents beyond economic rates, if it does, the appellants and indeed all the tenants of the second respondent countrywide can seek redress in the ordinary courts. In the circumstances, it is not correct to say that GN 41 of 1992 created two categories of tenants, one enjoying legal B protection and the other without such legal protection. The correct position is that GN 41 of 1992 removed the appellants and all tenants of the second respondent C from the protection of the Housing Tribunals under the Rent Restriction Act and as it were transferred them to the ordinary courts. We therefore agree with the learned judge that GN 41 of 1992 does not violate the concept of equality enshrined in article 13 of the Constitution. We also wish to affirm the principle in the decision of this Court in Juthalal Velji Ltd v THB Estates Co Ltd (2) relied on by D the learned judge and which is on all fours with the present case to be good law. Mr Matata sought to distinguish Velji's case from the present one on the basis that in Velji's case the rent was based on the economic value of the building based on the valuation report which was produced in the High Court whereas in the present E case there was no such violation. Secondly that the exemption in Velji's case was specific to a specific building. We do not think these distinctions are valid. The presence or absence of a valuation report would be relevant when considering the reasonableness of the rent charged not the validity of the legislation conferring power to charge such rent. Secondly, limiting the exemption to specific buildings is F in accord with the legislation which directs that the exemption may be in respect of any premises or class of premises. In Velji's case, they sought to exempt `Tecco Godowns' in Mikocheni Industrial Area as a class of premises.
G In the second ground, the appellants complained that had the trial judge properly interpreted the order (GN 41 of 1992) vis-È-vis the enabling provision (s 2(1)(b)) of the Rent Restriction Act 1984, he would have found that the order in exempting a group of parastatals instead of a class of premises, was ultra vires the enabling provisions. In support of this ground, Mr Matata submitted that GN 41 of 1992 is H ultra vires because the relevant enabling section refers to a class of premises whereas the exemption in the order is based on the ownership of those premises. We think with respect that this submission is based either on a misreading or partial reading of the section of the order. Section 2(1)(b) of the Rent Restriction Act 1984 provides: I

`2 - (1)‚ This Act shall apply to all dwelling houses and commercial premises other than: A
(a) -
(b) Any premises or class of premises which the Minister may with the approval of the National Assembly, signified by a resolution, by order published in the Gazette, exempt from all or any of the provisions of this Act'.
And para 3 of the exemption order reads in part: B
`3.‚ All premises in respect of which a specified parastatal is the lawful landlord are hereby exempted from all the provisions of the Rent Restriction Act'.
Reading these two provisions together, we do not see how paragraph 3 of the C Order can be considered to be outside the enabling provisions in s 2(1)(b) of the Act. Under s 2(1)(b) the Minster responsible for Lands, Housing and Urban Development can exempt two groups of premises from the provisions of the Rent Restriction Act. He can exempt any premises or class of premises. The premises D exempted by GN 41 of 1992 are covered under the description any, whereas those under GN 23 of 1983 are covered under the description class of premises. We therefore do not see why Mr Matata would want to limit the Minister's power of exemption to a class of premises when the first part of the section widens the E power to any premises. Since all premises must have owners, it is strange to suggest that an order would be rendered invalid simply by identifying their owner. For these reasons we are satisfied that GN 41 of 1992 is not ultra vires the enabling section of the Act. This ground of appeal therefore fails. F
In ground three the appellants averred that had the trial judge properly directed himself on the rules of statutory interpretation, he would have found that s 2(1)(b) of Act 17 of 1984 does not confer upon the first respondent parliamentary power to amend substantive provisions of a statute (s 11 of the National Housing G Corporation Act No 2 of 1990). In support of this ground, Mr Matata contended that the effect of the order by the first respondent was to amend s 11 of the National Housing Corporation Act which he was not empowered to do. In reply Mr Magoma contended that GN 41 of 1992 did not amend and was not intended to amend s 11 or any other provision of the National Housing Corporation Act. H
We agree with Mr Matata that the first respondent, the Minister for Lands, Housing and Urban Development, has no power to amend an Act of Parliament. But he has never purported to undertake such a task. In promulgating the order in GN 41 of 1992, the Minister was only doing what he is allowed and empowered to do I

A by the Rent Restriction Act - namely to exempt the premises owned by the specified parastatals from the provisions of the Act. Being exempted from the operations of a particular law or order does not mean repealing or amending that particular law or order. It simply means that that particular law will not operate on a specified individual, body of individuals or organisation. Hence, you may have the Minister of Finance being empowered to exempt certain organisations from the B operations of say the Sales Tax Act. This does not mean that the Finance Minister is empowered to amend the Sales Tax Act. The contention in this ground therefore fails.
C We have already held that the disapplication of the Rent Restriction Act to the premises owned by the second respondent, did not leave the appellants helpless without any remedy against the second appellants arbitrary or capricious actions. We have already held that the appellants or other tenants of the second respondent can still go to the ordinary courts to enforce their rights under the D tenancy agreements or to challenge the rents fixed by the second respondent under its new acquired authority. In the circumstances, we do not agree with Mr Matata that the appellant's right to go to the ordinary courts is illusory as we do not see any reason which can prevent them from going to the ordinary courts to enforce their rights as tenants. The contention in ground four similarly fails. E
Lastly, in ground five the appellants contended that had the learned judge properly directed himself on the second respondent's decision to raise rent, he would have found that the second respondent acted arbitrarily and contrary to the principles of F natural justice. In support of this contention Mr Matata cited a Privy Council decision in an appeal from Canada, Minister of National Revenue v Wrights Canadian Ropes Ltd (3). We think the decision in this case would have been relevant in the consideration of the present appeal if the appellants had been G challenging the reasonableness of the new rents not their validity. They would then in the process have provided the necessary data or information to support their challenge. Once it is held, as we have done, that the exemption order by the Minister was perfectly valid as it was lawfully made under validly delegated H authority, the validity of the new rents imposed by their landlord under the newly acquired authority cannot be successfully challenged. In the circumstances we agree with Mr Magoma that the only and best course for the appellants to take would have been to proceed by way of challenging their landlord to justify the new rates. The learned trial judge did rightly attempt not to resolve I

the question whether the new rates are reasonable because he had no data or A other material to assist in such an undertaking. Accordingly we hold that this head of complaint also fails.
All the grounds of appeal having failed, the appeal fails and we dismiss it in its entirety with costs. B

________________