MUHAKA ENTERPRISES v NATIONAL HOUSING CORPORATION AND ANOTHER 1997 TLR 20 (HC) C

 MUHAKA ENTERPRISES v NATIONAL HOUSING CORPORATION AND

ANOTHER 1997 TLR 20 (HC) C

Court High Court of Tanzania - Dar es Salaam

Judge Kaji J

D CIVIL APPEAL 19 OF 1996

13 November 1996

Flynote

Landlord and tenant - Allocation of premises under s 12(1)(k)(i) of Rent Restriction

Act 1984 - Regional Housing Tribunal has no powers to allocate a home belonging to

specified parastatal to a tenant by virtue of GN 41 of 1992. E

-Headnote

F The appellant company applied before the Regional Housing Tribunal for certain

apartments to be allocated to it on the ground that the said apartments had remained

unoccupied for a period exceeding one month without good cause. The application

was filed under s 12(1)(k)(i) of the Rent Restriction Act 17 of 1984. The apartments

belonged to the National Housing Corporation, a parastatal, as landlord. The Regional

Housing Tribunal rejected the contention of the second G respondent (who had

applied to be joined as an interested party, alleging to be the legal tenant) and ordered

the second respondent to vacate the premises immediately. The appellant was

declared a tenant and the first respondent was ordered to conclude a proper lease

with the appellant as tenant. The respondents appealed to the Housing Appeals

Tribunal, contending that the Regional Housing H Tribunal had no jurisdiction to

deal with the matter in view of GN 41 of 1992. The Housing Appeals Tribunal

rejected the appeal and set aside all the orders made by the Regional Housing

Tribunal on the ground that the Regional Housing Tribunal had no jurisdiction by

virtue of GN 41 of 1992..

Held:

(1) When a tenant is allocated a home by a Regional Housing Tribunal

under s 12(1)(k)(i) of the Rent Restriction Act 1984, that allocation I

1997 TLR p21

KAJI J

operated to confer on that tenant a statutory tenancy upon the A

determination of his contractual tenancy;

(2) The essence of GN 41 of 1992 was to exempt specified parastatals from

the Tribunal's interference in fixing rents and in allocating their houses to tenants of

their own choice and extended even to cover eviction of tenants already in

occupation who would otherwise be protected; B

(3) A Regional Housing Tribunal had 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 by virtue of GN 41 of 1992. The Housing Appeals Tribunal was

accordingly correct in holding so.

Case Information

Appeal dismissed. C

Case referred to:

1. Carter v SU Carburetter Co [1942] 2 KB 288

Mwakajinga for the appellant.

Rwabutaza for the respondents. D

[zJDz]Judgment

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

1997 TLR p22

KAJI J

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

1997 TLR p23

KAJI J

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's

contention 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

1997 TLR p24

KAJI J

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 F provision,

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

1997 TLR p25

KAJI J

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 D meaning 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 H

meaning 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