Court name
High Court of Tanzania

H L Mwasandende vs Mwanaisha Abdallah & Another () [1991] TZHC 5 (05 April 1991);

Law report citations
1991 TLR 49 (TZHC)
Media neutral citation
[1991] TZHC 5

F Bahati, J.: This is an appeal by H.L. Mwasandondo against the judgment of the Housing Appeals Tribunal which quashed and set aside the judgment of the Regional Housing Tribunal.
The facts are that the appellant Mwasandondo applied before the Dar es Salaam Regional Housing Tribunal for G vacant possession of his house No. 20 Block 40 Kinondoni Area of Dar es Salaam City. The house was being occupied by four tenants. The tenants resisted the claim for vacant possession on the grounds that no reasonably equivalent alternative accommodation had been offered by the applicant landlord. Two tenants vacated the suit H premises voluntarily and only the two respondents Mwanaisha Abdallah and Jane Mbaga were left to resist the application. The Regional Housing Tribunal granted the application for vacant possession.
On appeal to the Housing Appeals Tribunal the decision of the Regional Housing Tribunal was reversed on the I grounds that no alternative accommodation which is reasonably equivalent to the suit premises had been offered. The Housing Appeals Tribunal argued

that even the distance from the alternative accommodation to the tenants' place of work and to the city centre was A factor to be taken into account in deciding whether such accommodation was reasonably equivalent to the suit premises.
In his memorandum of appeal, the appellant has set out 6 grounds of appeal. Mr. Mwakasangula, learned counsel B for the appellant, argued that the appellant had offered alternative accommodation of the same standard as the suit premises and where the appellant himself was living. But the respondents refused to accept the accommodation on flimsy grounds namely that the house was too far from the City Centre. He argued that this should not be allowed.
On ground No. 2, Mr Mwakasangula argued that the Tribunal erred in law and fact in narrowing down the C interpretation of "alternative accommodation" to correspond to a place near where one works. He submitted that it would be impossible for landlords under such circumstances to find alternative accommodation. D
On ground No. 5, Mr. Mwakasangula submitted that the judgment of Tribunal went further, to state that because the appellant did not need the suit premises of this accommodation, the order for vacant possession was uncalled for. He argued that this point was not one of the issues. E
Finally Mr. Mwakasangula submitted that the Tribunal erred in not referring the matters to the Regional Housing Tribunal for adjudication. He argued that since the Housing Appeals Tribunal had held that some issues had not been answered, the proper cause was to remit the matter to the Regional Housing Tribunal for resolution of the F issues not answered.
In reply, Dr. Lamwai learned counsel for the respondents submitted that the appeal had no merits. He referred to section 25(l)(e)(i) and (ii) of the Rent Restriction Act in order to emphasize the requirement of providing G accommodation reasonably equivalent to the one at hand. He referred to the cases of Warren v Austen [1947] 2 All E.R.185 and Civil Case No. 29/89 - Parmar and another v Paul Maro and Civil Appeal No. 7 of 1989 - Dilip Parmar v Mohamed Sood which held that even amenities of the alternative accommodation matter and that H suitability of the alternative accommodation is important.
He argued further that the appellant failed to call evidence to prove that the alternative accommodation was reasonably equivalent. Therefore the Housing Appeal Tribunal was right in holding that the appellant failed to I discharge his duty under section 25 of the Act, he submitted. He elaborated further that whereas the suit premises

A were in Kinondoni within reach of the bus station, the alternative accommodation was at Ukonga five miles to the nearest bus station. He said that the alternative accommodation was far from being reasonably equivalent to the suit premises in view of the distance which the respondents would have to cover. He submitted further that the B appellant kept giving different reasons as to why he wanted the suit premises which showed that he was a liar.
As for ground No. 6, Dr. Lamwai submitted that the Housing Appeals Tribunal had the power under section 12(l)(r) of the Rent Restriction Act to vary or rescind any orders made by the Regional Housing Tribunal and that C there was no requirement for a retrial because the Housing Appeals Tribunal was convinced that the application in the Regional Housing Tribunal was not bona fide.
In a rejoinder to the above, Mr. Mwakasangula submitted that the appellant had supplied alternative D accommodation which was suitable in that he himself was living there and that he could not be expected to provide better accommodation. As for the distances, he submitted that the decisions of the Court of Appeal did not deal with the issues of distance and transport.
E With regard to the submission that the appellant had contradicted himself, Mr. Mwakasangula conceded that there was such contradiction. Finally he said that since the "reasonably equivalent" element had not been dealt with by the Regional Housing Tribunal, the case ought to have been remitted to the Regional Housing Tribunal for decision.
F I will commence with the last point raised by Mr. Mwakasangula about remitting the case back to the Regional Housing Tribunal so that the element of "reasonably equivalent" may be decided. I do not think, with respect to learned counsel, that is what section 12 of the Rent Restriction Act requires. Even in ordinary civil cases there is G no requirement for an appellate court to remit a matter to the lower court just because some points were not adjudicated upon by the lower court. The appellate court can certainly delay with the matter. In this appeal, the appellant adduced no evidence to establish that the alternative accommodation was reasonably equivalent to the H suit premises. He cannot be heard to complain about this deficiency and to ask that he be given an opportunity to lead evidence to that effect. Further more, section 12(i)(r) of the Rent Restriction Act empowers the Housing Appeals Tribunal to vary or rescind any order made under the provisions of this section i.e. section 12. That I means that if a Regional Housing Tribunal has made any order, the Housing Appeals Tribunal can vary it or rescind it.

The main thing in this appeal is whether the alternative accommodation which the appellant was offering to the A respondents was reasonably equivalent to the suit premises where they are staying. But before I deal with that point I will examine the reasons on the part of the appellant for requiring the suit premises. As conceded to by Mr. Mwakasungula, the appellant gave contradictory reasons for wishing to have the suit premises. But what B transpired as the truth was that the appellant wanted to exchange accommodation with the respondents so that he might occupy the suit premises and leave the respondents to occupy his current residence at Ukonga. The Housing Appeals Tribunal found that the appellant did not require the suit premises for his occupation as a residence. C Section 25(1)(e)(ii) states inter alia thus:
in case of a dwelling house, it is reasonably required as a residence for himself... D
But the appellant already has a residence for himself. In such a situation can it be said that the suit premises are reasonably required as a residence for the appellant or occupation as a residence for himself or for his wife or children? I do not think so, and in any case there is no evidence to that effect. Therefore, even on the first limb of E paragraph (e)(i) this appeal crumbles.
As for alternative accommodation reasonably equivalent, I also agree with the learned Chairman of the Housing Appeals Tribunal that no evidence was adduced to show that the alternative accommodation being offered was F reasonably equivalent to the suit premises. Indeed the evidence establishes the opposite because the alternative accommodation is far off from the city centre and requires one to walk 5 miles to the nearest bus station. Such accommodation cannot be said to be reasonably equivalent to the suit premises. It was held in P.S. Parmer and G another v Paulo E. Maro - Civil Appeal No. 29 of 1989 (C.A.T. unreported) that here the suit premises were begin used for both residential and commercial purposes, alternative accommodation which cannot be used both for residential and commercial purposes cannot be reasonably equivalent to the suit premises. Going by the H reasoning in the just cited case, I have no difficulty in concluding that the alternative accommodation in this appeal which is as described above cannot be said to be reasonably equivalent to the suit premises because the respondents would be put to great inconvenience as to their access to the places of work, I

A more so for the second respond who would be put into further problems of walking for 5 kilometers to the nearest bus stop.
It follows, therefore, that not one out of the two requirements of paragraph (e) of section 25 (l) has been satisfied. B The appeal cannot succeed and it is dismissed with costs.
Appeal dismissed.

C
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