Court name
High Court of Tanzania

Muhaka Enterprises vs National Housing Corporation & Another () [1996] TZHC 17 (13 November 1996);

Law report citations
1997 TLR 20 (TZHC)
Media neutral citation
[1996] TZHC 17

Kaji J:
The appellant company trading as Muhaka Enterprises was the applicant before the Regional Housing Tribunal at Dar es Salaam applying for, inter alia, being allocated apartments No 0001 and 0002 on Plot No 2222 Block 129 Nkurumah   E Street on the ground that the said apartments had remained unoccupied for a period exceeding one month without good cause. That application was filed under s 12(1)(k)(i) of the Rent Restriction Act No 17 of 1984.
The said apartments belong to the first respondent the National Housing Corporation as landlord.   F
The second respondent Dar es Salaam Regional Trading Co Ltd (RTC) applied to be joined as interested parties alleging to be legal tenants in the said apartments.   G
The Regional Housing Tribunal rejected the second respondent's application and declared the second respondent to be an unlawful tenant. It ordered the second respondent to vacate the suit premises immediately.
At the same time the appellant was declared a tenant and the first respondent was ordered to conclude a proper lease with the appellant as tenant to the suit premises.   H
The respondents were aggrieved. They jointly appealed before the Housing Appeals Tribunal. One of their main grounds of appeal was that the Regional Housing Tribunal had no jurisdiction to deal with the matter in view of Government Notice No 41 of 1992.
The Housing Appeals Tribunal summarily rejected the appeal   I

  A and set aside all the orders made by the Regional Housing Tribunal on the ground that the Regional Housing Tribunal had no jurisdiction to entertain that matter by virtue of Government Notice No 41 of 1992.
The appellant was aggrieved. Hence this appeal.
  B The appellant's learned Counsel Mr Mwakajinga raised two grounds of appeal, namely,
   1.   That the learned Deputy Chairman erred in law in setting aside the orders of Dar es Salaam Regional Housing Tribunal on authority that Government Notice No 41 of 1992 exempted the National Housing   C Corporation from being sued for invoking its powers under s 12(1)(k)(i) of the Rent Restriction Act 1984.
   2.   That the learned Deputy Chairman erred in law in setting aside the orders of the Regional Housing Tribunal while at the same time he summarily rejected the appeal.   D
Elaborating on these Mr Mwakajinga stated that the National Housing Corporation is not exempted by Government Notice No 41 of 1992 when s 12(1)(k)(i) is to be   E applied. He said Government Notice No 41 of 1992 para 4 is restricted to statutory tenancy only. He said when the issue is not statutory tenancy then National Housing Corporation is not exempted.
  F The learned Counsel went on, submitting that Government Notice No 41 of 1992 does not define statutory tenancy and also the Rent Restriction Act 1984 is silent on this except s 32 which gives conditions of statutory tenancy. He said a statutory tenant is a tenant who retains possession of any premises after his contractual tenancy has expired. He cited also the case of Carter v SU Carburetter Company (1) which also defined `statutory tenancy' to that effect.   G
Mr Mwakajinga said since the appellant's claim was not based on statutory tenancy but on tenancy under s 12(1)(k)(i), the National Housing Corporation cannot hide itself behind Government Notice No 41 of 1992 for defence and that the honourable Deputy Chairman was wrong in holding that the Regional Housing Tribunal had no jurisdiction to entertain the application.   H
The learned Counsel went on, submitting that the honourable Deputy Chairman summarily rejected the appeal. Since that was the case then there was no reason of setting aside the orders of the Regional Housing Tribunal because by rejecting the appeal the decision of the Regional Housing Tribunal remained intact.   I

All in all the learned counsel said he did not understand the logic of rejecting an   A appeal and at the same time setting aside the orders appealed against.
He therefore called upon this court to allow the appeal with costs.
Mr Rwabutaza learned counsel who represented the respondents at the hearing of this appeal replied that Government Notice No 41 of 1992 has exempted the   B National Housing Corporation from the provisions listed thereunder which include the whole of s 12. He said a Regional Housing Tribunal has no jurisdiction to entertain any matter falling under s 12. He therefore rejected Mr Mwakajinga'scontention that the exemption is limited to statutory tenancy.   C
Mr Rwabutaza went on, replying that since the Regional Housing Tribunal had no jurisdiction and since the Housing Appeals Tribunal also held so, it was probably a slip of the pen by the honourable Deputy Chairman to say he summarily rejected the appeal. This is more so when he set aside all the orders which were subsequently made by the trial tribunal under the wrong self imposed jurisdiction.   D He therefore called upon this court to dismiss the appeal with costs. In short that is what the learned counsels submitted.
The crucial issue is whether the Regional Housing Tribunal had jurisdiction to entertain the appellant's application under s 12(1)(k)(i) of the Rent Restriction Act, 1994 in view of para 4 of Government Notice No 41 of 1992.   E
The said paragraph says:
   `4   All premises in respect of which a specified parastatal is the lawful landlord are hereby   F exempted from the provisions of ss 12, 16, 17, 25, 26 and 37 of the Rent Restriction Act, 1984, which operate to confer upon a tenant a statutory tenancy upon the determination of his contractural tenancy'
The Housing Corporation is among the specified parastatals. Therefore the crucial   G issue at this stage is whether the provision of s 12(1)(k)(i) of the Rent Restriction Act 1984 operates to confer upon a tenant a statutory tenancy upon the determination of his contractual tenancy. The said provision says:   H
   `12(1)(k)(i): The Tribunal shall in relation to every rent restriction area within its jurisdiction, have powLer to do all things which it is required or empowered to do by or under the provisions of this Act, and without prejudice to the generality of the foregoing shall have power to allocate to any suitable tenant, at such rent as the Regional Tribunal may fix, any house of portion thereof which without good    I

  A    cause has been left unoccupied for a period exceeding one month and, if any house is in an unfinished condition to cause such house to be finished in all respect and rendered fit for habitation.'
Therefore when a Tribunal allocates a house to a tenant under this provision of the law it must do two things. Firstly it must allocate that house to the tenant. Secondly it must fix a rent for that house.   B
But for a house belonging to a specified authority such as the first respondent NHC, a Regional Housing Tribunal has no jurisdiction to fix a rent by virtue of para 3 of Government Notice 41 of 1992 which says:   C
   `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 1984, relating to restriction on the amount of rent that may be charged or collected by the specified parastatal as the landlord from any part of those premises.'   D
Thus this provision gives full power to the specified parastatals to fix rents of their own choice for their houses without being interfered with by the Regional Housing   E Tribunal is that respect. A Regional Housing Tribunal cannot interfere with them on this nor can it come into their shoes and fix rents for their houses. Secondly when a Regional Housing tribunal allocates a house to a tenant under this   Fprovision, that tenant becomes a legal tenant and his tenancy will continue in force according to the tenancy agreement to be agreed between him and the landlord. He will be there on a contractual tenancy. At the determination of that contractual tenancy if he continues in occupation paying the rent but without any new tenancy agreement he becomes a statutory tennant as per the case of Carter v SU Carburetter Company cited supra.   G
Therefore it would appear that when a tenant is allocated a house by a Regional Housing Tribunal under s 12(1)(k)(i) of the Rent Restriction Act 1984 that allocation operates to confer on that tenant a statutory tenancy upon the   H determination of his contractual tenancy.
The essence of Government Notice 41 of 1992 is to exempt the specified parastatals from the Tribunal's interference in fixing rents and in allocating their houses to tenants of their own choice. The exemption does not end up with rent and allocation only. It extends   I

to cover even eviction of tenants who are already in occupation who would   A otherwise be protected in a Tribunal by s 25, or subletting under s 37.
However I must admit that para 4 Government Notice 41 of 1992 has been couched in a complicated phraselogy which says:   B
   `... are hereby exempted from the provisions of ss 12, 16, 17, 25, 26 and 37 of the Rent Restriction Act 1984, which operate to confer upon a tenant statutory tenancy upon the determination of his contractual tenancy.'
This could easily be interpreted to mean that those specified parastatals are   C exempted from the provisions of those sections in respect of statutory tenants only, or that they are exempted from those provisions where statutory tenancy is concerned, or that they are exempted from the provisions of those sections which grant statutory tenancy to a tenant. But I think the word `operate' has a future   Dmeaning to mean that those specified parastatals are exempted from the provisions of those sections which place the tenant in a position to be able to acquire the status of a statutory tenant at the determination of his contractual tenancy. Allocating a tenant with tenancy under s 12(1)(k)(i) places a tenant in a   E position to acquire the status of a statutory tenant at the determination of his contractual tenancy.
It is for the above reasons that I have been of the view that a Regional Housing Tribunal has no powers to allocate a house belonging to a specified parastatal to a tenant under s 12(1)(k)(i) of the Rent Restriction Act 1984 by virtue of Government   F Notice 41 of 1992. The honourable Deputy Chairman of the Housing Appeals Tribunal was right in holding so.
Since the Regional Housing Tribunal had no powers to do what it purported to do,   G the Housing Appeals Tribunal was right in setting aside all the orders purportedly made by the Regional Housing Tribunal. I agree with the respondent's learned counsel Mr Rwabutaza that the words `summary rejection' was probably a slip of the pen by the honourable Deputy Chairman. The contents of the order had the   Hmeaning of allowing the appeal on the ground of lack of jurisdiction by the Regional Housing Tribunal. It is hereby rectified accordingly.
Appeal dismissed with costs.   I
1997 TLR p26