Court name
High Court of Tanzania

Bhupenda P. Oza vs National Housing Corporation () [1994] TZHC 13 (03 November 1994);

Law report citations
1995 TLR 71 (TZHC)
Media neutral citation
[1994] TZHC 13
Coram
Mwaikasu, J.

Mwaikasu, J.:
This is an appeal by Bhupendra P Oza, against the enforcement order of the lower court in RM Misc. Case No 141 of 1993, in execution of an eviction order made by the Regional Housing Tribunal of Dar es Salaam, in Application No 423 of 1988. H

A The application for the execution of the eviction order made by the Regional Housing Tribunal was filed by the Respondent, the National Housing Corporation, and admitted by the lower court on 14 May 1993. Whereupon on 17 May 1993, the lower court made the following order:
B    'Upon the application for execution of decree filed here in by the Decree Holder, Let the Eviction to be is issued as prayed'
such application for the execution of the eviction order issued by the Regional C Housing Tribunal does not indicate that a notice of the same had been served upon the Regional Housing Tribunal, as required under s 48(1) of the Rent Restriction Act 1984.
That then is the subject of complaint by the tespondent which has engineered this appeal, it being contended by Mr Novatus Rweyemamu, learned counsel for the D appellant that failure by the respondent to serve notice of such filing of the order of the Regional Housing Tribunal with the lower court for execution rendered the ensuing enforcement order by the lower court, a nullity.
It is the submission by the learned counsel for the appellant that service of the E notice prescribed by s 48 of the Rent Restriction Act is a condition precedent for the enforcement as a decree of the determination or order of a Regional Housing Tribunal. So that failure by the respondent to serve the notice aforesaid on the Tribunal above mentioned, rendered the enforcement of the determination of the Tribunal incompetent, null and void. F
It is further the submission by the learned counsel for the appellant that the requirement of the service of the notice of filing on the Tribunal and the transmission by the Tribunal to the RM's court of the record of proceedings of the G said Tribunal is intended to make the RM's court aware of the contents of the Tribunal's record of proceedings, so that the RM's court may take certain matters in the said record into account before exercising its discretion to enforce the Tribunal's determination order as a decree. Accordingly, on the above grounds it has been prayed that the appeal be allowed setting aside the eviction order served upon the appellant, with costs. H
In reply to such submission, it has been submitted for the respondent that the lower court acted properly when it enforced the order/decree of the Regional Housing Tribunal immediately after the same had been filed with the court, on the ground that under s 48 of the Rent Restriction Act 1984, which gives power to the RM's court to enforce the determination/orders of the Regional Housing Tribunal there is I

nothing about the period after which enforcement should be done. It has further A been contended for the respondent without any supportive document that the respondent, after filing the application for execution did serve notice of such filing to the Regional Housing Tribunal as required by law and that that is the reason why the court proceeded to evict the appellant from the suit promises. This court B has then been referred to the decision of this court in the case of Ismailia Council of Eastern Tanzania v NHC (1) where it was held that the filing of proceedings of the Regional Housing Tribunal is not mandatory and that the court was right in ordering execution without copies of proceedings. It was therefore been prayed that this appeal be dismissed with costs. C
In reply to such submissions for the respondent learned counsel for the appellant has submitted, inter alia, that the decision in the revision case referred to above was distinguishable from the instant case, in that whereas in the instant case, the issue for determination is failure by the respondent to serve notice to the Tribunal D of his filing of the authenticated copy of the Regional Housing Tribunal, with the RM's court, in the revision case cited above the issue was the failure of the Tribunal to transmit its record of its proceedings in respect of the order the subject of enforcement by the RM's court. E
As at the centre of this appeal is the controversy as to the import of the provision under s 48 of the Rent Restriction Act 1984, I propose to reproduce it in extenso for ease of reference. That section provides: F
   '48  -  (1) A duly authenticated copy of the determination or order of the tribunal may be filed in the court by any party to the proceedings and on such order being served in the tribunal, by any party filing the same, such determination or order may be enforced as a decree of the court. G
   (2) In any case in which such determination or order has been filed by a party, the tribunal shall, on being served with notice of the filing of such determination or order transmit to the court its record of the proceedings before it and the same shall be filed by the court along with the certified copy of the determination or order.' (Emphasis supplied). H
In my judgment, it is my considered opinion that while I have no quarrel with the soundness of the decision of this court in the Ismailia's revision case cited above in the light of the facts of that case, in the instant case and in the light of the facts before the lower court and the provision of the law cited above, the contention by the I

A learned counsel for the appellant appears to be sound. I am clearly of the view that the filing of a duly authenticated copy of the determination or order of the Regional Housing Tribunal with the RM's court, and the notification of the same to the Regional Housing Tribunal. by the party so filing such tribunal's determination or order for enforcement by the RM's court, are two conditions precedent, to the B action by the RM's court to enforce such tribunal's determination/order. This put in simple terms before in RM's court may take any action to enforce the determination or order of a Regional Housing Tribunal, the party intending to C enforce the same must, first, file with the court a duly authenticated copy of the determination or order of the tribunal and second, serve the tribunal with notice of such filing of the determination or order of the tribunal in the court. Without the two steps having been accomplished, the RM's court would be incompetent to embark on the enforcement of the determination or order of the Tribunal before it. D
I do however, entirely agree with the respondent, that once the two steps referred to above have been accomplished, the RM's court need not, as was also held in the Ismailia's case cited above, wait for the proceedings of the tribunal before taking necessary measures for the enforcement of the determination or order of the tribunal. E
Now while it is the contention and submission of the learned counsel for the appellant that when the lower court acted upon the respondent's application before it to have the tribunal's determination enforced, no notice of the filing of such application with the court was served upon the tribunal. In its submission, the F respondent corporation has contended that such notice was served upon the tribunal. Apparently no evidence of service of such notice is to be found in the record of the lower court, nor is there anything to substantiate such claim by the respondent certainly as the respondent was the one in the best position to know G how such service was effected, the respondent corporation was duly bound to furnish this court with documentary evidence to substantiate such claim.
This court is therefore inclined to go by the argument for the appellant that the respondent did, in fact, fail to serve the tribunal with notice of the filing by the H respondent of the tribunal's determination with the lower court. Thus, as observed earlier, in the circumstances the lower court was incompetent to enforce the tribunals determination/order that led to the eviction of the appellant from the suit premises.
This court notes, however, that in the proceedings before the Regional Housing Tribunal that led to the eviction order being I

made against the appellant, on appeal by the appellant to the Housing Appeals A Tribunal against such decision the appellant lost and there appears no intention to appeal against the decision of the Housing Appeals Tribunal. It follows therefore that the eviction order made by the Regional Housing Tribunal against the appellant still stands. B
The effect therefore of this judgment is to allow the appeal with costs, quashing the enforcement proceedings of the lower court with liberty for the respondent to file afresh with the lower court such determination, order of the tribunal for enforcement in full compliance, with the requirements of s 48 of the Rent C Restriction Act, 1984, that is to say with due notice to the tribunal of such filing by the respondent. D

E