Lausa Alfan Salum and 106 others v. Minister for Lands, Housing and Urban Development (Application for certiorari)

Lausa Alfan Salum and 106 Others v. Minister for Lands, Housing and Urban Development

Court of Appeal (Corum: Omar, Mnzavas and Mfalila JJA): November 9,1994

Civil Appeal No. 15 of 1994

Access to court-rent- arbitrary raise-effect of GN 41 of 1992- removal of tenants from protection of Housing Tribunals under Rent Restriction Act and transfer to ordinary courts-whether violates concept of equality in article 13 of the Constitution and right of access to courts.

Constitutional Law-safeguards-arbitrary powers -whether absence of safeguards against arbitrary increases of rent renders exemption from Rent Restriction Act unconstitutional-whether contravenes or amends Rent Restriction Act- GN 41 of 1992-Rent Restriction Act s.2 (1)©

Lausa Salum and Others were the appellants in this appeal.  They filed an application for orders of certiorari against the two respondents namely the Minister of Lands, Housing and Urban Development and the National Housing Corporation.  They sought two orders.  The first order was that the entire order of the Minister GN 41 of 1992 be quashed.  The second was that the action of the National Housing Corporation increasing the rent of its premises occupied by the applicants be quashed.

The National Housing Corporation, the second respondent, was established by an Act of Parliament, the National Housing Corporation Act 1990.  Section 11 of the Act provided that the Corporation subject to the provisions of the Rent Restriction Act of 1984 shall set the rents chargeable for the premises belonging to the Corporation.

The Rent Restriction Act also created the Housing Tribunals and their appellate body, the Housing Appeals Tribunal.  Section 2(1)(b) of the Rent Restriction Act empowered the Minister responsible for Lands, Housing and Urban Development, by order published in the Gazette, with the approval of the National Assembly signified by a resolution, to exempt any premises or class of premises from all or any of the provisions of the Rent Restriction Act.  Using these powers, the Minister promulgated Notice No. 41 of 1992, exempting all premises in respect of which, a specified parastatal body, is the lawful landlord from all the provisions of the Rent Restriction Act, relating to the restriction on the amount of rent that may be charged or collected by the specified parastatal body, as the landlord, from any tenant occupying any part of these premises.  The second respondent was among the specified parastatals. 

Following the publication of GN 41 of 1992, the second respondent increased rents for all its premises including those occupied by the appellants.  The appellants objected very strongly to those rent increases, which they called unilateral. 

When the second respondent rejected their protests, they filed an application in the High Court challenging the validity of both the GN. 41 of 1992 and the increases of rent based on it.  The appellants challenged the validity on GN 41 on two grounds.  The first one was that GN 41 of 1992 was ultra vires the parent Act because it exempted specified parastatals instead of a class of premises as provided by s.2 (1)© of the parent Act.  The second ground was that GN 41 of 1992 was unconstitutional as firstly, it discriminated against the appellants by depriving them of the protection afforded by the Rent Restriction Act against arbitrary eviction, distress for rent and the right to statutory tenancy.  This protection was otherwise available to tenants generally, and that this discrimination was contrary to article 13(2) of the Constitution of the United Republic of Tanzania. 

Secondly, the argued that it barred the appellants from litigating their rights as tenants in the Housing Tribunal and that this was contrary to article 13(3) of the Constitution.  Thirdly, they argued that it did not provide safeguards against abuse of power by the second respondent.

The appellants therefore challenged the rent increases by the second respondent on the basis that since the order under which they were made was invalid, such increases were in contravention of s.11 of the National Housing Corporation Act 1990. 

The High Court (Chipeta J.), dismissed the application, holding that GN 41 of 1992 was both intra vires and the constitutional.  He held that since contrary to the appellant’s assertions, GN 41 of 1992 exempted a class of premises i.e. those owned by the specified parastatal bodies, the order was in accord and not inconsistent with the parent Act.  On the constitutionality of GN 41 of 1992, the learned judge held firstly that it came within the saving provisions of article 30(2) of the Constitution as it was not drafted in such wide terms as to net untargeted groups. 

Secondly, it was not discriminatory in that it affected all the tenants of the specified parastatals.  Thirdly, it did not shut out the tenants of the specified parastatals from legal recourse in that ordinary courts were available to the tenants to enforce their contractual rights against their landlords.  Fourthly, he held that although the GN 41 of 1992 should have contained a provision limiting the power of the parastatals to increase rent to economic rent, the absence of such a clause was not fatal as the courts could still intervene where unconscionable increases in rent were made. 

The appellants appealed against that decision and filed five grounds of appeal. The first ground of appeal was that the learned Judge, having found that GN 41 of 1992 had no legal safeguards against abuse of power, ought to have found that it was bad in law and unconstitutional.  He argued that it violated Article 13 of the Constitution for being arbitrary and against the concept of equality before the law. 

The second ground of appeal was that had the learned Judge properly interpreted GN 41 of 1992, vis a vis s.2 (1)(b) of the Rent Restriction Act, he would have found that the order, in exempting a group of parastatals instead of a class of premises, was ultra vires the enabling provision.

The third ground of appeal was that had learned Judge, properly directed himself on the rules of statutory interpretation, would have found that s. 2(1) (b) of the Rent Restriction Act, did not confer upon the first respondent, parliamentary power to amend the substantive provisions of s.11 of the National Housing Corporation Act.  He argued further that the effect of GN 41 of 1992 was to amend s.11 of the National Housing Corporation Act, which he was not, empowered to do.

Held:

1.    While it was true that GN 41 of 1992 had no safeguards against arbitrary increases of rent in that it was free of the Rent Restriction Act, this was not fatal to the constitutionality of the order.  The second respondent did not have and the order did not intend to grant arbitrary powers to increase rent.

2.  The appellants and other tenants of the second respondent could seek redress in ordinary courts against any arbitrary raise in rents beyond economic rates.  In the circumstances, it was not correct to say that GN 41 created two categories of tenants, one enjoying legal protection and the other without.  The appellants’ right to go to the ordinary courts was not illusory.

3.    The effect of GN 41 of 1992 was that it removed the appellants and all tenants of the second respondent from the protection of the Housing Tribunals under the Rent Restriction Act and transferred them to the ordinary courts.  This did not violate the concept of equality in article 13 of the Constitution.

4.    Under the Rent Restriction Act, the Minister for Lands, Housing and Urban Development could exempt any premises or class of premises its provisions.  Therefore GN 41 of 1992 did not contravene the Rent Restriction Act. 

5.    The Minister for Lands, Housing and Urban Development has no power to amend an Act of Parliament. In promulgating GN 41 of 1992, the Minister was only exempting the premises owned by the specified parastatals from the provisions of the Rent Restriction Act, but not amending it.

6.    The exemption order made by the Minister was perfectly valid as it was made under validly delegated authority.  The new rents could not be successfully challenged except by way of challenging the second respondent to justify them. 

Appeal dismissed.

Legislation considered:

1.    Constitution of the United Republic of Tanzania

2.    Local Administration (Amendment) Act 1961

3.    National Housing Corporation Act No. 2 of 1990

4.    Rent Restriction Act No. 17 of 1984

Cases referred to:

1.    Juthalal Velji Ltd. v. THB Estates Co Ltd. Civil Appeal No.11 of 1985

2.    Shah v. Attorney General [1970] EA 523

3.    Minister of National Revenue v. Wrights Canadian Ropes Ltd. [1947] AC 109

Matata for the appellants

Magoma for the respondents

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