Tantrack Agencies Ltd v. Tanzania Motors Service Ltd Civ no 34 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 34 OF 2007

TANTRACK AGENCIES LIMITED…..………………………….…………APPLICANT

VERSUS

  TANZANIA MOTORS SERVICES LTD……………………….………RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Dar es Salaam)

(Kimaro,J.)

Dated the 17^th  day of February, 2004

in

Civil Appeal No. 58 of 2004

…………………….

R U L I N G

24^th  May & 7^th June, 2007

KAJI, J. A. :

        By a notice of motion made under Rule 3(2)(a)(c) and 45 (1) of the Court of Appeal Rules, 1979, the applicant, Tantrack Agencies LTD, is moving the court for the following orders:-

(i)      The order for  stay of execution of

the decree issued on 13^th(sic) May, 2005 in application No.257 of 1995 (sic) be vacated and execution of the decree issued on 30^th March, 2001 proceed accordingly;

(ii)     Any other order(s) the court may

       deem fit and just to grant;

(iii)    An order that the costs of and

incidental to this application be paid by the respondent.

This application has a rather chequered history.  But for easy appreciation of the sequence of events leading to this application, it is desirable to outline, albeit briefly, the historical background of the matter.

        The subject matter is a building known as Ex-Riddoch Motors building, situate on plot No.24 Upanga Road, Dar es Salaam, where the applicant is a tenant and the respondent, Tanzania Motors Service LTD is the landlord.

        In or around 1995 the respondent served the applicant with a notice to vacate.  The applicant resisted the notice and filed application No.257 of 1995 in the Regional Housing Tribunal at Dar es Salaam praying inter alia, to be declared a statutory tenant and be given an option to renew the Lease Agreement.  The applicant’s application was granted as presented.  The respondent was dissatisfied.  But for reasons which are irrelevant for the purpose of this application, was late to lodge notice of appeal within the period prescribed by the Housing Appeals Tribunal (appeals) Rules, 1987. Under section 12 ( 1) (5) of the Rent Restriction Act, 1984,Rule 7 of the Housing Appeals Tribunal ( Appeals) Rules, 1987 and section 14(1) of the law of Limitation Act, 1971, the respondent filed an application in the Regional Housing Tribunal for extension of time within which to file a notice of appeal.

The applicant raised a preliminary objection that the Regional Housing Tribunal had no jurisdiction to extend time for filing a notice of appeal by virtue of rule 7 and the decision of the High Court in the case of Kangham Venesh Paretch V Agakhan Education Services (1996) TLR 104. The preliminary objection was sustained and the application was dismissed.  The respondent was dissatisfied and lodged an appeal in the Housing Appeals Tribunal.  The tribunal rejected the appeal summarily under Rule 24(1) of the Housing Appeals Tribunal (Appeals) Rules. 

Still undaunted, the respondent unsuccessfully lodged an appeal in the High Court.  The court (Kimaro,J, as she then was) held the same view as in the case cited above that, although in terms of Rule 5 the Regional Housing Tribunal has jurisdiction to extend time for lodging an appeal, yet there is no provision that it can also extend time  to file a notice of appeal.

 Still undaunted the respondent expressed its desire to appeal to this Court and applied for the requisite leave which was granted to consider, not only whether the Tribunal has jurisdiction to extend time in which to file a notice of appeal, but also whether, after the respondent had been declared a specified public corporation by GN. No. 400 of 1995 it was proper for the Housing Tribunal to proceed with the matter without leave being sought and granted by the High Court as required by section (9) (1) of the Bankruptcy Ordinance Cap.25.

        While pending determination of the intended appeal the respondent applied in this Court for stay of execution of the Regional Housing Tribunal under Rules 3(2)(a) and (b), 9(2)(b) and 45(1) and (2) of the Court of Appeal Rules, 1979.  The application was granted under conditions that the respondent should not sell, alter, change, transfer, pledge, mortgage, destroy, damage or do anything bad to the disputed premises.

        On 23^rd February, 2007, the respondent wrote a letter to the applicant titled “Notice to vacate the premises” with the following message, inter alia:-

The purpose of this letter, therefore is to inform you that the said plot No.24 where your leased office is also located, is now due for handing over to its owner.  We therefore have no option, save that of giving you a ONE MONTH NOTICE, from the date of this letter, to vacate the said occupied space, and thus give us vacant possession of the same, on or before 31^st March, 2007.

        It is this letter which prompted this application.  According to Mr. Ntonge, learned counsel for the applicant, this letter was a clear message that the respondent was no longer interested in the suit premises and the stay order’s protection and was going to sell and transfer the suit premises to a third party which is a breach of the stay order conditions, and a contempt  of court.  Mr.Ntonge contended further that, since the respondent is no longer interested in the stay order which was in its favour, the same (stay order) should be vacated. 

        On the other hand Mr.Fungamtama, learned counsel for the respondent, contended that the word “owner” in the letter Annextures DAN 2 meant the Presidential Parastatal Sector Reform Commission (PSRC) under which the respondent had been placed after being declared a specified public corporation, and not that it meant somebody else as a third party. Mr. Fungamtama pointed out that the whole purpose was meant to protect the safety of the suit premises after realizing that the applicant had sublet some of the rooms to subtenants, and not that it was a process for selling or transferring the suit premises to a buyer.  The learned counsel remarked that, after the respondent had been placed under PSRC, it could not sell or transfer the suit premises without approval by PSRC, and that such approval has neither been sought nor granted.  The learned counsel observed that, the conditions attached to the stay order were neither meant to prohibit the respondent from taking control measures to protect the suit premises, nor granting ownership of the suit premises to the applicant.  The learned counsel wondered why the applicant lodged this application instead of instituting contempt of court proceedings if the respondent had really contravened the order of the court. 

        In his rejoinder the applicant’s counsel insisted that the word “owner” in Annexture DAN 2 did not mean PSRC because  PSRC had been the “owner” since 1994 when the respondent was declared a specified public corporation, but that it meant a third party (buyer) other than the PSRC.  The learned counsel contended that DAN 2 was not a protective measure because the respondent did not produce any evidence that the lease Agreement prohibited the applicant to sublet any of the rooms.  The learned counsel pointed out that, the processes for sale mentioned by the respondent’s counsel are internal matters which can be carried out without outsiders knowing the same, and that with modern technology a building can be sold without necessarily publishing or inviting tenders in news papers.  On why the applicant lodged this application instead of instituting contempt of court proceedings or resisting the eviction in a Land and Housing Tribunal, the learned counsel replied that, those were also options open to the applicant but it was not bound to take either of them.

        As pointed out earlier, the applicant’s advocate had objected the original of annexture PSRC 1 to be tendered by the respondents’ counsel as exhibit on the ground that it was neither stamped nor registered.  I allowed the respondents’ counsel to tender it but I reserved my reasons for so doing which I now give.  Annexture PSRC 1 is alleged to be a lease agreement between Gregory Kilasi and Makoba Juma Makoba to rent a portion of the suit premises described as “fremu iliyopangishwa.” Gregory Kilasi is the one who has deponed to the affidavit in support of the notice of motion as the principal officer of the applicant.  The respondent is not party to PSRC 1. There is nothing indicating that it was its duty to register it or stamp it.  Admittedly in terms of section 47(1) of the Stamp Duty Act Cap.189, an instrument chargeable with duty is inadmissible in evidence unless stamped or under the exceptions listed thereunder.    But in the instant case my decision will not be based on Exh 1-PSRC 1 as will be seen later, which means it can be expunged without any harm.

        Coming to the merits or otherwise of the application itself, the main contention by the applicant through its advocate is that the import of Annexture DAN 2 is that the respondent is no longer interested in the stay order granted by the Court on 12/5/2005, and that it is intending to sell or transfer the suit premises to a third party contrary to the conditions attached to the stay order, and so the order should be vacated.  On the other hand the respondent’s contention is that it still needs the protection of the order, and that Annexture DAN 2 was just a control measure aimed at protecting the suit premises against possible misuse by the applicant, and further that it was for handing over the suit premises to PSRC who are the owner by operation of the law, the Public Corporation Act and GN NO.400 of 28/7/1995.

        I have carefully considered the learned counsel’s submissions.  I have also carefully considered Anexture DAN 2 which prompted the applicant to lodge this application.  Whether that was an indication that the respondent was intending to sell or transfer the suit premises to somebody else other than PSRC as alleged by the applicant’s counsel, or it was for the purpose asserted by the respondent’s counsel, is of little concern.  I say so for the following reasons:-

Firstly, if the respondent will unlawfully breach the condition(s) attached to the stay order, this country is not short of relevant laws to deal with such incidence.  These include contempt of court proceedings.  What the applicant should wisely do at this stage is just to wait and see. 

Secondly, if the applicant is worried that the respondent is probably going to evict it from the suit premises unlawfully, it can resist the eviction in a duly constituted forum such as a District Land and Housing Tribunal or in the High Court Land Division depending on the monetary value of the subject matter.

        Thirdly, the applicant’s fear that through modern technology the respondent can sell the suit premises to a third party without their knowledge should not be of so much concern.  The applicant’s counsel did not elaborate.  But he probably, had in mind Internet Technology.  If that happens, this country is not short of relevant laws to cater for such situation.

Fourthly, as indicated in the stay order, the purpose of the conditions attached is to protect the applicant’s interest in the event the respondent loses the intended appeal.  The applicant’s interest contemplated in the order is the decretal amount.  There is nothing indicating that the respondent, a government agent, having been declared a specified corporation by GN No.400 pf 28/7/1995 can fail to satisfy the decree in the event it loses the appeal.

        Since the applicant has failed to convince the court that the respondent has breached the stay order conditions or that the respondent is no longer in need of protection by the stay order for the reasons stated above, this application must fail.

        In the upshot, and for the reasons stated above, the application is dismissed with costs.

DATED at DAR ES SALAAM this 7^th day of June, 2007.

S. N. KAJI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

I. P. KITUSI

DEPUTY REGISTRAR

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