G F KASSAM v AMIRALI WALJI AND ANOTHER 1997 TLR 14 (CA) A

 G F KASSAM v AMIRALI WALJI AND ANOTHER 1997 TLR 14 (CA) A

Court High Court of Tanzania - Dar es Salaam

Judge Ramadhani JJA, Mnzavas JJA and Lubuva JJA

CIVIL APPEAL 45 OF 1995

B 14 November 1996

(Appeal from the judgment and decree of the High Court of Tanzania, Dar es Salaam,

Mwaikusa J.) C

Flynote

Land - Licence - Licence coupled with interest - Former owner of nationalised

building which has been returned to him or her for duration of lifetime.

Landlord - Who is a landlord - Former owner of nationalised building which had

been returned for duration of owner's lifetime.

-Headnote

The appellant was the tenant in a home which had been nationalised in 1971. The

respondents had applied for the denationalisation of the house and had been D

permitted by the President to collect and use the rents paid by the tenant (the

appellant) for the duration of her life and that of the first respondent. The house was

to remain in the name of the N H Corporation. After this permission was granted the

respondents sought the eviction of the appellant from the premises. The High Court

held that the respondents were clothed with the status of the landlord and as such

they could evict a tenant. On appeal, E

Held:

(1) That in terms of the decision in The Registrar of Buildings v Felix

Bwogi t/a Eximpo Promotion and Services (1) only a landlord could sue to evict a

tenant and that one tenant could not seek to evict another tenant;

F (2) The respondents were licencees where the licence was coupled with an

interest and were de facto landlords;

(3) The respondents could accordingly either take the rents themselves and

use them or they could reside in the premises themselves and they could therefore

seek the eviction of the appellant.

Case Information

G Appeal dismissed.

Cases referred to:

1. The Registrar of Buildings v Felix Bwogi t/a Eximpo Promotion and

Services Civil Appeal No 19 of 1988 (unreported)

H 2. The Registrar of Buildings v Dr Ali H Kombe [1982] TLR 61

Majithia for the appellant.

Chandoo for the respondents. I

1997 TLR p15

Judgment

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

1997 TLR p16

RAMADHANI JA

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

1997 TLR p17

RAMADHANI JA

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

B her 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

1997 TLR p18

RAMADHANI JA

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

1997 TLR p19

RAMADHANI JA

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

1997 TLR p20

RAMADHANI JA

A Restriction Act, 1984 and that they could seek the eviction of the appellant.

The appeal is dismissed with costs. B

1997 TLR p20