Court name
High Court of Tanzania

G F Kassam vs Amirali Walji & Another () [1996] TZHC 18 (14 November 1996);

Law report citations
1997 TLR 14 (TZCA)
Media neutral citation
[1996] TZHC 18

Ramadhani JA:   A
The house on Plot No 1307/148 on Kitumbini Street, Dar es Salaam, originally belonged to one Mrs Ramatbai Alibhai, deceased, who was the mother of the second respondent, Rukiya Amirali Walji, and the mother-in-law of the first respondent, Amirali HM Walji. The appellant, Gulamabhas F Kassam, was the   B tenant. That house was nationalised in 1971 under the Acquisition of Buildings Act, 1971 and was put under the Registrar of Buildings. The appellant continued to be the tenant.
The second respondent, that is the daughter of the original owner of the house,   C petitioned the President of the United Republic of Tanzania for the denationalisation of the house and its eventual return to her as the heiress. By a letter SHC/A70/2 of 26 May 1992 signed by the Principal Secretary to the President (hereinafter referred to as the letter from Ikulu) the second respondent was allowed to collect and use the rents paid by the tenant in that house for the   D duration of her life and that of the first respondent. It was categorically said in that letter that the house will continue to be in the name of the National Housing Corporation (NHC). Incidentally, to digress a bit, in 1990 the office of the Registrar of Buildings was merged with NHC and its property and activities passed on to the latter.   E
The respondents filed a suit before the Regional Housing Tribunal of Dar es Salaam seeking to evict the appellant from the said house. Mr Majithia, learned counsel, who advocated for the appellant, raised a preliminary objection that the   F respondents were not the landlords but were mere tenants and as such they could not effect eviction of a fellow tenant. He cited our decision in The Registrar of Buildings v Felix Bwogi t/a Eximpo Promotion and Services (1).
The Tribunal agreed with the submissions of Mr Chandoo, learned advocate for   G the respondents, that the respondents were, by implication, the life landlords of the suit premises. The reasons were that the respondents were entrusted, in their life time, with the responsibilities of collecting rents, repairing the house and paying land rates.   H
The appellant was aggrieved by that decision and he successfully appealed to the Housing Appeals Tribunal. It was held that NHC was the landlord and that the concept of a junior landlord is unknown in the land law of Tanzania. The respondents were found to be tenants and therefore they could not evict another tenant unless   I

  A they did so as agents of the landlord and that in that case the plaint had, under Order 3 Rule 1 and 2 to say so explicitly.
So, the preliminary objection was upheld and the suit was dismissed.
  B The present respondents appealed to the High Court of Tanzania where Mwaikasu, J held that the respondents were clothed with the status of the landlord and as such they could evict a tenant. Thus the learned judge restored the ruling of the Regional Housing Tribunal. Mwaikasu, J reviewed the land law of England and saw that the right to receive rents as an owner, and not as a mere collector, is one of the incidents of being a landlord.   C
This is now an appeal from that decision of Mwaikasu, J. The main issue, as Mr Majithia, learned counsel for the appellant said is whether or not the respondents can evict the appellant.
  D Mr Majithia pointed out that this Court has decided in The Registrar of Buildings v Dr Ali H Kombe (2) that a former owner of a nationalised building is a licensee and not a landlord when that building is returned to him or her for the duration of his or her lifetime. So, the learned advocate submitted, the respondents, here are also licensees and that, as under Bwogi's case supra, they cannot evict a tenant.   E
Mr Chandoo, for the respondents, first argued that if the respondents, by the authority of Dr Kombe, are licensees and not tenants, then Bwogi is inapplicable because it is about tenants. The learned advocate argued further that as   F respondents were given a right of occupancy for life, they were then trustees of the reversionary interest of NHC. He submitted that seeking eviction was in the exercise of the protection of that reversionary right. Thirdly, the learned advocate submitted that to be a landlord one does not have to be an owner of a premises. He pointed out that all the land in Tanzania belongs to the President who grants rights of occupancy. Mr Chandoo argued that the holders of the rights of   G occupancy are regarded as landlords and do evict their tenants. Finally, the learned advocate submitted that if the premises fall vacant the respondents would either enter into occupation themselves or they would look for another tenant. He argued that the respondents are, therefore, landlords.   H
Mr Majithia in reply said that a licensee cannot be a landlord. He pointed out that under Bwogi only the landlord can evict. The learned advocate said that if the premises become vacant then the respondents will have to consult NHC and cannot just enter into occupation themselves or get another tenant.   I

There is not a slightest doubt in our minds that Bwogi is categoric that only a   A landlord can sue to evict a tenant and that one tenant cannot seek to evict another tenant. Similarly, according to Dr Kombe the respondents are not tenants but are licensees. In the Dr Kombe case a former owner of a house nationalized under the Acquisition of Buildings Act, 1971 had her house returned to her for the duration of   Bher life. She sold it to Dr Kombe. This Court held that the lady was a licensee and as such she had no title to pass on to a buyer. This Court had this to say at 65:   C
   `In our view what the Government really intended to do, and what it in fact did, was to create a lesser or limited interest in favour of Mrs Kaur while it (the Government) itself retained the legal title to the property. The interest so created was to all intent and purposes a licence to enjoy the fruits of the suit premises; it amounted to no more than that.'   D
Now, we have to determine what was not decided in Dr Kombe and that is whether a licensee can evict a tenant in order to `enjoy the fruits of the suit premises'. In other words, can a licensee be deemed to be a landlord for the purposes of eviction?   E
Landlord is defined in s 3 of the Rent Restriction Act, 1984 as follows:
   `includes, in relation to any premises, any person, other than the tenant, who is or would be, but for the provisions of this Act entitled to possession of the premises and any person from time to time deriving title under the original landlord, and any person deemed to be a landlord under s 4 or s 5';   F
We may as well say it here that ss 4 and 5 are inapplicable in this case. Two   G things are obvious to us; one, a tenant, which title does not apply to the respondents, can never be a landlord and two, for the suit premises the title landlord is not confined to NHC only. The question is whether the respondents are `entitled to possession of the premises' and hence are landlords.
It is quite in order to revisit briefly the law regarding licence first, and then to look at   H the terms of the licence of the respondents. A licence is a permission given by an occupier of land which allows a licensee to do some act which would otherwise be trespass. Since licences are almost purely personal transactions, it is difficult to put limits to their possible varieties. However, there are generally three different classes distinguishable.   I

  A First, there is a bare licence which is granted otherwise than for valuable consideration eg gratuitous permission to enter a house or field. This can be revoked at any time on reasonable notice. Then there is a licence coupled with an interest, that is, proprietary interest in other property. For example, a licensee is   B allowed to enter a premises and to hunt or cut trees and then to take the animal killed or the wood cut. Under common law such a licence is irrevocable and is assignable. However, the interest must be validly created. Lastly, there is a contractual licence. This is where, for instance, one has a ticket for a sports match or for travelling. The licensor contracts not to revoke the licence.   C
The respondents fall in the second category, that is, licence coupled with an interest. They have been allowed to take rents for their lifetime. As already seen such licence under common law is irrevocable. However, we are quick to add that where the terms of the licence are abused, as was the case in Dr Kombe, then the licence can be revoked. Here the interest was validly created because, as   D properly pointed out in Dr Kombe at 64, the Registrar of Buildings, now NHC, under s 4(2) of the Acquisition of Buildings Act, 1971, acquired property subject to the directions of the President. The letter from Ikulu constitutes such directions of   E the President. So, the respondents have the assurance of enjoying the fruits of the suit premises for their lifetime so long as they abide by the terms of the licence. Now, what are these terms?
The letter from Ikulu says, in the relevant parts, as follows:
  F    `... Rais amengiza kuwa badala ya kurudishiwa kabisa nyumba hiyo, Ndugu Rukia Amarshi Walji achukue kodi ya upangaji wa nyumba hiyo kwa kipindi cha uhai wake na wa mumewe.
   Kwa kuwa utekelezaji wa uamuzi huu ni sawa na kurudishwa kwa nyumba hii kwa kipindi cha maisha yake yote na ya mumewe, masharti yafuatayo yazingatiwe . . .'   G
That can be translated as:
  H    The President has directed that instead of restoring that house completely, Mrs Rukia Amarshi Walji to collect rents from the house for the duration of her life and that of her husband. As the implementation of this decision is tantamount to the restoration of the house for the duration of her life and that of her husband, the following conditions have to be observed ...'
It is clear that the house was returned to the respondents for their lifetime and because of that some conditions had to be observed. So,   I

the conditions were imposed because `life ownership' of the house was granted.   S The conditions did not create the life ownership. However, only one of the conditions underscored the fact that the arrangement was for their lifetime. That was the requirement that the house continues to be in the name of NHC. The other two conditions are typical incidents of being a landlord; to repair the house and to pay land rates.   B
Admittedly, another condition was that rents could only be altered after consultation with NHC. We think there was a good reason for that condition. Under the Rent Restriction Act, 1984, the Regional Rent Tribunals fixed the standard   C rents for every building. All landlords, including NHC, were required to observe the standard rents. Any change of rents required the approval of the Regional Rent Tribunal. However, the situation was changed by the Rent Restriction (Exemption) (Specified Parastatals) Order, 1992 GN 41 of 1992 of 20 March 1992. Seven   D specified parastatals, including NHC, were exempted from all the provisions of the Rent Restriction Act, 1984, relating to the restriction on the amount of rent that may be charged or collected by the specified parastatals as the landlord. So, rents charged on the suit premises were not controlled by the Rent Restriction Act, 1984. Since the suit premises remained in the name of NHC, the respondents   E could cash in on that exemption and charge rents above the standard rents. We think that it was absolutely necessary to require the respondents to consult NHC, the real beneficiary of the exemption, before altering the rents. For the sake of record, we have to point out here that GN 41 of 1992 was published on 20 March 1992 and that it was already in force when the letter from Ikulu was signed on 26 May 1992.   F
So, we are satisfied that the respondents were de facto landlords. The condition that they should consult NHC before altering rents was only necessary to ensure that they do not abuse a statutory privilege which is not theirs. It was that condition   G which made Mr Majithia take the view that the respondents could not occupy the premises themselves or look for a new tenant if the premises become vacant. But because of the rationale we have stated for that condition, we see nothing which can stop the respondents from being entitled to possession of the premises. In fact the respondents could either take the rents and use them or they could reside   H in the premises themselves. So, we find that the respondents are entitled to possession but for the Act which restricts possession except in certain circumstances and as such we are of the opinion that the respondents, as licensees, are landlords under s 3 of the Rent   I

  A Restriction Act, 1984 and that they could seek the eviction of the appellant.
The appeal is dismissed with costs.   B
1997 TLR p20