NICHOLAS HUSK AND ANOTHER v COSTA RICHY MAHALU 1996 TLR 363 (HC)

NICHOLAS HUSK AND ANOTHER v COSTA RICHY MAHALU 1996 TLR 363 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J

E

MISC CIVIL APPEAL NO 19 OF 1995

23 August 1996 F

Flynote

Landlord and tenant - Regional Housing Tribunal - Proceedings of - Participation of

laymembers - Opinion to be sought before chairman prepares judgment - Section

11(4) of Rent Restriction Act 1984 G

-Headnote

The appellants appealed against a decision of the Housing Appeals Tribunal which

had upheld a decision of the Regional Housing Tribunal at Dar es Salaam in favour of

the respondent. The hearing of the application by the Housing Tribunal proceeded

over a number of days and with a number of different laymembers participating at

various H times. One of the laymembers was however present at most of the

hearings but was not consulted by the chairman before the judgment was prepared.

On appeal the appellants contended that this was a fatal flaw which vitiated the

proceedings.

Held: I

(i) Where a laymember has participated at the commencement of the case

to its conclusion and has been present in court in all subsequent

1996 TLR p364

A sittings when the determining evidence was adduced, his opinion had

to be sought before the chairman prepared his judgment. Failure to do so contravened

the mandatory provision of s 11(4) of the Rent Restriction Act 1984.

Case Information

Appeal upheld. B

Kalunga for the appellant.

Dr Mapunda for the respondent.

[zJDz]Judgment

Msumi, J:

This is an appeal against the judgment of the Housing Appeals Tribunal of Tanzania.

The C original suit was filed and determined by the Regional Housing Tribunal of

Dar es Salaam whereby respondent claimed vacant possession of the suit premises and

arrears of rents. Judgment was entered in his favour and this prompted the appellants

to appeal to the Housing Appeals Tribunal whose decision the appellants are now D

challenging in this court.

The dispute is centred on a tenancy agreement between the appellants as tenants and

respondents as landlord. According to the proceedings in the original record

respondent E is accusing the appellants for non-payment of rents and disrepair of the

suit house. On their part appellants are denying both allegations.

Basically the memorandum of appeal contains two grounds. In the first ground Mr

Kalunga, learned counsel for the appellants is contending that the Deputy Chairman

of F Housing Appeals Tribunal erred when he held that there was a lease agreement

between the appellants and the respondent and that the rent payable was US $1200

per month paid in Germany. The second ground is against the Deputy Chairman's

decision that the trial Chairman of Regional Housing Tribunal was right in not

seeking the opinion G of the lay-members before giving his judgment. Let me start

with the second ground.

It is on record that when the application began to be heard on 21 February 1994 the

two lay-members who set with the chairman were Sungura and Mrisho. After partly

taking the evidence of the respondent the case was adjourned to 28 February 1994.

The H names of the two lay-members who participated on that day are Sungura and

Chiunga who presumably replaced Mrisho. Again the case was adjourned to 16 March

1994 for continuation of the evidence of the respondent. On that day Sungura and

Mrisho are shown to be the participating members. After the respondent had finished

giving his I evidence there had been a number of abortive hearing dates until on

1996 TLR p365

MSUMI J

27 July 1994 when the chairman sitting with Chiunga and Mrisho as lay-members A

recorded the evidence of two witnesses and thereby closed the case for the plaintiff.

Before opening of the case for the defendant, the tribunal dealt with interlocutory

proceedings consisting of submissions of the counsels for both parties. Two B

interlocutory rulings, both of them in favour of the respondent, were issued.

Eventually the case was scheduled for defence on 5 October 1994. Though their

advocate, Mr Kalunga was present, none of the appellants appeared. The tribunal

decided to proceed with the matter and allowed Mr Kalunga to make his final

submission which followed with C reply from Dr Mapunda for the respondent and

counter reply from Mr Kalunga. The participating lay-members on that day were

Sungura and Chiunga. But without consulting either of them, the chairman

proceeded with the preparation of the judgment which he delivered on 17 October

1994. D

Reiterating the argument he raised in the first appeal, Mr Kalunga is arguing that

before writing his judgment, the trial chairman ought to have sought the opinion of at

least lay-member Sungura who participated from the beginning of the trial. His

failure to do so was in breach of s 11(4) of the Rent Restriction Act, 1984. As quite

rightly observed by E the Appeal Tribunal, this subsection must be read together

with ss (3) of the same section. This is what the two provisions read:

`11(3) Notwithstanding the provisions of ss (1) if in the course of any

proceedings before the tribunal F either or both members of the tribunal who were

present at the commencement of the proceedings is or are present, the chairman and

the remaining member (if any) may continue and conclude the proceedings

notwithstanding such absence.

(4) At the conclusion of any proceedings before the tribunal the chairman

shall seek and record the G opinion of other members present at such conclusion.'

In his judgment the deputy chairman of the Appeal Tribunal observed, among other

things, that it was quite irregular for the trial chairman to keep on changing members

as H the records indicate. However, on the question whether the trial chairman was

right in not seeking the opinion of the members, the deputy chairman was of the

following view:

`... But much as the mix up contravened the provisions of s 11(3) of the said

Act, we don't think that I after the learned chairman had decided not to record the

opinion of the members he was in breach of

1996 TLR p366

MSUMI J

s 11(4) because the members present should be those who commenced the

hearing and thereby A continued to be present during the continuation of the

hearing to the end.'

The whole purpose of having lay-members is to embody the notion of public

participation B in the adjudication of landlords-tenants disputes. But together with

this aim the law took cognizance of the fact that it might not be possible to get the

participating members for continuation of the case after it had been adjourned.

Subsection (3) is intended to take care of such eventualities. And in order to be able to

contribute usefully in the decision of C the case, a lay-member must be present in

court when evidence for each party is being adduced. In the present appeal the case

for the respondent is basically made of the testimony of the respondent himself. The

other two witnesses who testified for the respondent's case have not substantially

added anything to it. Indeed the judgments of D both tribunals are based on the

evidence of the respondent and the submissions of the counsels. According to the

records, lay-member Songoro was present at the commencement of the case and at

subsequent sittings when respondent completed his E evidence and when the trial

was concluded by submissions of both counsels. Thus unlike other members who sat

in this case at different times, Songoro is supposed to be well abreast with the

substantive evidence of the whole case. The provisions of s 11(3) Rent Restruction

Act, 1984 could not be invoked to justify omission of his opinion. F Where a laymember

has participated at the commencement of the case to its conclusion and he

has been present in court in all subsequent sittings when the determining evidence

was adduced, his opinion must be sought before the chairman prepares his judgment.

Failure to do so will be contravening the mandatory provision of s G 11(4) of the Act

and is the circumstances of this case, this defect is fatal to the whole proceedings. The

mere fact that a lay-member has missed some of the sittings in the trial does not

automatically disqualify him from giving his opinion if, as in the present case, he had

been present when substantive and determining evidence was being H adduced.

Hence it is on this understanding that the decision of the trial chairman to readmit

lay-member Songoro even after he had missed some of the sittings can be legally

justified.

In conclusion, without considering whether or not the parties entered into a lease I

agreement, I uphold this appeal on the observations made concerning the second

ground. The judgment and pro-

1996 TLR p367

ceedings of the Regional Housing Tribunal are nullified and it is hereby ordered that

the A suit to start afresh before another chairman with competent jurisdiction.

1996 TLR p367

B