SULEIMAN MOH'D v SUBASH GANGARAM AND OTHERS 1997 TLR 268 (HC)

SULEIMAN MOH'D v SUBASH GANGARAM AND OTHERS 1997 TLR 268 (HC)

Court High Court of Tanzania - Vuga

Judge Hamid CJ

B CIVIL APPLICATION 3 OF 1997

30 September 1997

Flynote

C Landlord and tenant - Statutory tenancy - Creation of - By previous statutory

tenant - Rent Restriction Decree Cap 98 (Zanzibar).

-Headnote

The appellant was the landlord in a tenancy agreement, first with the respondents'

late father, who died in 1995, and then with the respondents' late mother who

succeeded her husband as statutory D tenant after his death. The respondents

claimed in the trial court that they were entitled to succeed their late mother as

statutory tenants.

Held:

(i) Section 24(1) of the Rent Restriction Decree, cap 98, recognised the

creation of a statutory tenancy to arise from a previous valid tenancy agreement but

did not envisage E the creation of a statutory tenancy from another statutory

tenancy;

(ii) A statutory tenancy did not as of right pass to another statutory tenant

upon the death of the previous statutory tenant;

(iii) The respondents could not be lawful tenants by inheriting the tenancy

from their deceased F mother who had herself inherited it from her late husband

merely by virtue of having lived in the premises with their mother. The respondents

therefore were not statutory tenants;

(iv) Even if the respondents were statutory tenants as they claimed their

tenancy was lawfully determined by their landlord, the appellant, giving a month's

notice to that effect in G accordance with s 24(1) of the Rent Restriction Decree.

Case Information

Appeal allowed.

Patel for the respondents.

[zJDz]Judgment

H Hamid, CJ

This is an appeal from the decision of a Rent Restriction Board in which the

respondents Subash Gangaram and three others had successfully sued the appellant

one Suleiman Moh'd and won their case when the Board declared that they were

lawful tenants of the demised premises.

I The simple facts of the events giving rise to this appeal are as

1997 TLR p269

HAMID CJ

follows: Subash Gangaram, Harish Gangaram and Banu Gangaram are the sons and

daughters of A the family of the late Mr and Mrs Santobai Gangaram who died in

1995. Mr Santobai Gangaram had been a legal tenant of the demised premises

belonging to the appellant for an unspecified period. That the late Santobai had been

a tenant of the appellant is beyond any dispute, so also is B the fact that there existed

no written tenancy agreement between them. An earlier attempt by the appellant to

have the late Santobai evicted from the leased premises had failed in appeal to this

court as the appellant had failed to provide the late Santobai with satisfactory

alternative C accommodation in accordance with the law. Another attempt by the

appellant to have Mrs Santobai evicted from the leased premises after the death of her

husband had failed when this court ruled that the late Mrs Santobai Gangaram could

not be evicted from the premises as she became a D legal tenant by virtue of

surviving the legal tenancy from her late husband Santobai Gangaram, who died

while still a legal tenant of the demised premises (applying the interpretation of a

`tenant' as per s 24(1) of Rent Restriction Decree Cap 98 the Laws of Zanzibar).

After the death of Mrs Santobai the surviving children of Mr and Mrs Santobai, that is

the E respondents, now claim legal tenancy arguing that their late father's tenancy

which was `inherited' upon his death by their mother now automatically passes on to

them after the death of their mother. The Rent Restriction Board had actually made

its decision on that line and had on that basis F endorsed their tenancy. Aggrieved

by that decision the landlord, has appealed to this court seeking the reversal of the

Board's decision and asking that this court declare the respondents as not legal tenants

and consequently order them to hand over to the appellant the vacant possession of

the demised premises for the occupation for his now large and overgrown family. Mr

A Patel, the G learned counsel for the respondents had advanced a host of arguments

supporting the decision of the Board which all boil down to one main point, that the

circumstances of this case entitle the respondents to be statutory tenants and

therefore renders them to become eligible to the enjoyment of all rights applicable to

legal tenants under the law. H

Mr Patel thus asserts that the respondents are statutory tenants. Section 24(1) of the

Rent Restriction Decree Cap 98, the Laws of Zanzibar points out the following as

conditions of statutory tenancy and I quote: I

1997 TLR p270

HAMID CJ

A `S 24 (1)

A tenant who, under the provisions of this Decree, retains possession of

any premises shall, so long as he retains possession, observe and be entitled to the

benefit of all terms and conditions of the original contract of tenancy, so far as the

same are consistent with the provisions of this Decree and shall be entitled to give B

up possession of the premises only on giving such notice as would have been required

under the original contract of tenancy, or if no notice would have been so required,

then, notwithstanding any provision to the contrary in any law in force in Zanzibar,

on giving not less than one months notice: Provided that ...'

C I will approach this section on two fronts. The first will be with regards to

whether the respondents are, legally speaking, statutory tenants and the other is,

should they be legally statutory tenants, whether they are not subject to eviction at

the request or notice of the landlord. Section D 24(1) of the Rent Restriction Decree

cited above, pre-supposes a statutory tenant to have acquired tenancy from a preexisting

legal tenancy agreement and I would venture to say that there is a presupposition

that such existing tenancy agreement be an original agreement between

the E landlord and tenant. It would not in itself be a statutory tenancy. It is my view

that it is a statutory tenancy where a wife continues to be a tenant in a house whose

original tenancy agreement was between her late husband and the landlord whereby

upon the death of the husband the wife was entitled to continue with the tenancy, as

has been in the present case.

F In such a case it cannot be assumed that there is a tenancy agreement signed

between the landlord and the tenant, but a continuation of an agreement as agreed

upon by the late husband and the landlord. In this case I fail to find any authority

pointing to the fact that a statutory tenancy shall as of right pass over to a potential

statutory tenant upon the death of an existing statutory tenant. G That being the

case, I am inclined to rule that the respondents in this case who claim to be tenants in

the disputed premises by virtue of having been living in the premises with their now

deceased mother, the mother who herself inherited the tenancy from her late

husband are not and cannot, H under these circumstances be legal tenants. And

needless to say, that if they are not legal tenants they should vacate the premises and

hand over the same to the appellant, the landlord.

I The second side of my argument hinges upon a supposition that the respondents

are indeed statutory tenants, a point which has

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HAMID CJ

been accepted and indeed put forward by the learned advocate for the respondents

himself. So A the respondents, accepting that they are statutory tenants, are in

accordance with s 24(1) of the Rent Restriction Decree Chap 98, the Laws of Zanzibar

bound by the terms and conditions of the original contract of tenancy, which in this

case, is the contract between the late Santobai Gangaram B and the appellant

landlord.

It is a fact that there was no written contract between the appellant and the late

Santobai Gangaram and therefore there can be no question of a specific time for the

appellant to give notice to quit to the tenant. Section 24(1) cited above stipulates

clearly that if no notice is so required, then C notwithstanding any provision to the

contrary in any law in force in Zanzibar, the tenants shall be entitled to vacate the

premises upon being furnished with notice to vacate for not less than one month.

The section needs no further elaboration. That the landlord notified the respondents

to vacate the D demised premises leaves us with no doubt. In fact that is the basis of

the present controversy.

This case is more than six months old and therefore the one month's notice

requirement in order for the respondents to vacate has already been fulfilled. That

being the case I see no reason why E the respondents should not vacate and hand

over vacant possession of the demises to the appellant.

Appeal allowed with costs.

1997 TLR p272

A