Court name
High Court of Tanzania

Lausa Alfan Salum & Others vs Minister for Lands Housing & Urban Development & National Housing Corporation () [1992] TZHC 33 (06 October 1992);

Law report citations
1992 TLR 293 (TZHC)
Media neutral citation
[1992] TZHC 33

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,

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 ultra-vires 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

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

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.