LAUSA ALFAN SALUM AND 106 OTHERS v MINISTER FOR LANDS, HOUSING AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION 1994 TLR 237 (CA)

LAUSA ALFAN SALUM AND 106 OTHERS v MINISTER FOR LANDS, HOUSING AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION 1994 TLR 237 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Mnzavas JJA and Mfalila JJA E

CIVIL APPEAL NO. 15 OF 1994

9 November, 1994

(From the decision of the High Court of Tanzania at Mwanza, Chipeta, J) F

Flynote

Rent Restriction - Powers of the Minister to grant exemption - Section 2(1)(b) of the

Rent Restriction Act, 1984.

Administrative Law - Ultra vires Doctrine - Whether Government Notice 41 of 1992

granting G exemption to the National Housing Corporation was ultra vires -

Exempts - Specified parastatal instead of a class of premises as provided by s 2(1)(c) of

the Rent Restriction Act, 1984.

Constitutional Law - Whether GN 41 of 1992 was discriminatory contrary to article

13(2) of the Constitution of the United Republic of Tanzania.

Constitutional Law - Whether GN 41 of 1992 was arbitrary - contrary natural justice

and H equality before the law.

Constitutional Law - Drafted in so wide terms as to net even untargeted groups -

Whether saved by article 30(2) of the Constitution. I

1994 TLR p238

-Headnote

A The appeal was against the decision of the High Court to uphold as valid the

Government Notice No 41 of 1992 issued byt the Minister for Lnads, Housing and

Urban Development under s 2(1)(b) of the Rent Restriction Act, 1984 exempting the

National Housing Corporation from all or any of the provisions of the Act. The High

Court held that Government Notice No 41 of 1992 was both ultra vires and

constitutional.

B Held:

(i) The Government Notice No 41 of 1992 does not and did not intend to

grant arbitrary powers to the National Housing Corporation to increase rent;

(ii) The National Housing Corporation cannot arbitrarily raise rent

„beyond economic rates, if it does, tenants can seek redress in the ordinary courts; C

(iii) The Government Notice No 41 of 1992 does not violate the concept of

equality before the law enshrined in article 13 of the Constitution.

(iv) The Rent Restriction Act 1984 under s 2(1)(b) empowers the Minister

responsible for housing to exempt any premises or class of premises from the

provisions of the Act and the premises exempted by Government Notice No 41 of

1992 are covered under the description any; D

(v) The order in Government Notice 41 of 1992 is constitutional and ultra

vires as the Minister did only what he is allowed and empowered to do by the Rent

Restriction Act, 1984, namely to exempt the premises owned by the specified

parastatals from the provisions of the act; E

(vi) The exemption order by the Minister was perfectly valid and lawfully

made under the validly delegated authority and therefore the new rents imposed by

their landlord are valid.

Case Information

Appeal dismissed.

F Cases referred to:

(1) Shah v Attorney General [1970] EA 523.

(2) Juthalal Velji Ltd v THB Estates Co Ltd, Civil appeal No 11 of 1985

(unreported).

(3) Minister of National Revenue v Wrights Canadian Ropes Ltd, [1947]

AC 109. G

Matata, for the appellants.

Magoma, Senior State Attorney for the respondents.

[zJDz]Judgment

Mfalila, JA, delivered the following considered judgment of the Court: H

In the High Court of Tanzania at Mwanza, the appellants Lausa Salum and Others

whose number varies from 106, 116 to 206 filed an application praying for orders of

certiorari against the two respondents namely the Minister for Lands, Housing and

Urban Development and the National Housing Corporation that: I

1994 TLR p239

MFALILA JA

(a) the entire order of the Minister GN 41 of 1992 be quashed. A

(b) the action of the National Housing Corporation increasing the rent of

its premises occupied by the applicants be quashed.

The background to these proceedings may be easily stated. The second B respondent,

the National Housing Corporation, was established by an Act of Parliament, the

National Housing Corporation Act No 2 of 1990. Section 11 of the Act provided that

the rents chargeable for the premises belonging to the Corporation shall be set by the

Corporation subject to the provisions of the Rent C Restriction Act 1984. The Rent

Restriction Act also created the Housing Tribunals and their appellate body, the

Housing Appeals Tribunal. Section 2(1)(b) of the Rent Restriction Act empowers the

Minister responsible for Lands, Housing and Urban Development, by order published

in the Gazette with the approval of the National Assembly signified by a resolution, to

exempt any premises or class of premises D from all or any of the provisions of the

Rent Restriction Act. Using these powers, the Minister responsible for Lands, Housing

and Urban Development promulgated Notice No 41 of 1992 exempting all premises in

respect of which a specified E parastatal body is the lawful landlord from all the

provisions of the Rent Restriction Act relating to the restriction on the amount of

rent that may be charged or collected by the specified parastatal body as the landlord

from any tenant occupying any part of these premises. The second respondent was

among the specified parastatals. Following the publication of GN 41 of 1992, the

second F respondent increased rents for all its premises including those occupied by

the appellants. The appellants objected very strongly to those rent increases which

they called unilateral. When their protests were rejected by the second respondent,

they filed an application in the High Court challenging the validity of G both the

GN 41 of 1992 and the increases of rent based on it. The appellants challenged the

validity of GN 41 of 1992 on two grounds.

The first ground was that GN 41 of 1992 is ultra vires the parent Act because it

exempts specified parastatals instead of a class of premises as provided by s 2(1)(c) of

the parent or enabling Act. H

The second ground was that GN 41 of 1992 is unconstitutional for the following

reasons. Firstly that it is discriminatory. That it discriminates against the appellants by

depriving them of the protection afforded by the Rent Restriction Act against

arbitrary eviction, distress for rent and the right to statutory tenancy which is

otherwise available to I

1994 TLR p240

MFALILA JA

A tenants generally and that this discrimination is contrary to article 13(2) of the

Constitution of the United Republic. Secondly that it bars the appellants from

litigating their rights as tenants in the Housing Tribunal and that this is contrary to

article 13(3) of the Constitution. Thirdly, that it provides no safeguards against abuse

of power by the second respondent. B

The appellants challenged the validity of the rent increases by the second respondent

on the basis that since the order under which they were made is invalid, such

increases were in contravention of s 11 of the National Housing Corporation Act

1990.

C The High Court dismissed the application, the learned judge holding that GN 41

of 1992 was both intra vires and constitutional. He held that since contrary to the

appellant's assertions, GN 41 of 1992 exempts a class of premises ie those owned by

the specified parastatal bodies, the order is in accord not inconsistent with the parent

Act and that therefore it is within its ambit. Regarding the D constitutionality of GN

41 of 1992, the learned judge held firstly that it comes within the saving provisions of

article 30(2) of the Constitution because it is not drafted in such wide terms as to net

untargeted groups. Secondly that it is not discriminatory in that it affects all the

tenants of the specified parastatals. Thirdly that it does not E shut out the tenants of

the specified parastatals from legal recourse in that ordinary courts are available to the

tenants to enforce their contractual rights against their landlords. Fourthly that

although the Government Notice should have contained a provision limiting the

power of the parastatals to increase rent to F economic rent, he held that the absence

of such a clause was not fatal as the courts can still intervene where unconscionable

increases in rent are made. Accordingly he dismissed the application with costs.

Against this decision the appellants filed this appeal. Mr Matata, learned counsel G

on behalf of the appellants, filed five grounds of appeal. In the first ground he

complained that the learned judge having found that the first respondent's order (GN

41 of 1992) has no legal safeguards against the abuse of power, he ought to have found

that the order is bad in law and unconstitutional because it violates article 13 of the

Constitution of the United Republic of Tanzania. At the hearing of H this appeal, Mr

Matata expanded on this complaint submitting that GN 41 of 1992 is unconstitutional

because first it allows the second respondent to act arbitrarily and secondly it violates

the concept of equality before the law enshrined in article 13 of the Constitution. He

added that the Rent Restriction Act avails all the tenants to two basic rights. The

protection against I

1994 TLR p241

MFALILA JA

increase of rent except on the formula given by the Act and statutory tenancy at A

the end of the existing term. GN 41 of 1992 removes both these rights, and that since

the first respondent's order ousts the jurisdiction of the Housing Tribunal, it leaves

the second respondent free to treat its tenants in any way it likes as it did in the rent

increases in this case and against such arbitrary actions, the tenants are left

defenceless. The effect of the order, Mr Matata went on, is to create two B categories

of tenants, those with full protection under the Rent Restriction Act and those

without such protection.

On behalf of the first respondent, Mr Magoma, the learned Senior State Attorney, C

supported the High Court judgment on the validity of GN 41 of 1992 stating that it

was made within the four corners of the law empowering the first respondent to

make it and that it does not in any way violate the Constitution of the United

Republic.

In support of his contention that Courts can and should intervene in respect of D

legislation without proper safeguards against arbitrary action, Mr Matata cited the

decision of the High Court of Uganda in Shah v Attorney General (1). It is true that

the learned judge found that GN 41 of 1992 had no safeguards against arbitrary E

increases of rent, but he did not think this was necessarily fatal to the validity or

constitutionality of the order because in his view tenants of the second respondent

could pursue and enforce their legal rights in the ordinary courts. In the Shah case

quoted above, the court felt obliged to intervene because the legislation in question, ie

The Local Administration (Amendment) Act 1961, violated the provisions of article 8

of the Uganda Constitution in that: F

`(a) It had the effect of depriving a party of property without compensation.

(b) It had the effect of depriving an aggrieved party of "protection of the

law" in that it shut out litigation and prevented him from ventilating his grievances in

Court. G

(c) It gave power to the Minister responsible to nullify even court

judgments including the High Court'.

We therefore ask ourselves whether GN 41 of 1992 has any of these or similar H

effects. We do not think so. Like the learned judge we think it would have been fairer

if the order had provisions safeguarding the interests of the tenants against the

possibility of arbitrary increases of rent by their powerful landlord, but we are

satisfied that despite being freed from the controls in the Rent Restriction Act by GN

41 of 1992, the second respondent does not have and the order did I

1994 TLR p242

MFALILA JA

A not intend to grant it arbitrary powers to increase rent. We are satisfied that the

second respondent cannot arbitrarily raise rents beyond economic rates, if it does, the

appellants and indeed all the tenants of the second respondent countrywide can seek

redress in the ordinary courts. In the circumstances, it is not correct to say that GN 41

of 1992 created two categories of tenants, one enjoying legal B protection and the

other without such legal protection. The correct position is that GN 41 of 1992

removed the appellants and all tenants of the second respondent C from the

protection of the Housing Tribunals under the Rent Restriction Act and as it were

transferred them to the ordinary courts. We therefore agree with the learned judge

that GN 41 of 1992 does not violate the concept of equality enshrined in article 13 of

the Constitution. We also wish to affirm the principle in the decision of this Court in

Juthalal Velji Ltd v THB Estates Co Ltd (2) relied on by D the learned judge and

which is on all fours with the present case to be good law. Mr Matata sought to

distinguish Velji's case from the present one on the basis that in Velji's case the rent

was based on the economic value of the building based on the valuation report which

was produced in the High Court whereas in the present E case there was no such

violation. Secondly that the exemption in Velji's case was specific to a specific

building. We do not think these distinctions are valid. The presence or absence of a

valuation report would be relevant when considering the reasonableness of the rent

charged not the validity of the legislation conferring power to charge such rent.

Secondly, limiting the exemption to specific buildings is F in accord with the

legislation which directs that the exemption may be in respect of any premises or

class of premises. In Velji's case, they sought to exempt `Tecco Godowns' in

Mikocheni Industrial Area as a class of premises.

G In the second ground, the appellants complained that had the trial judge properly

interpreted the order (GN 41 of 1992) vis-È-vis the enabling provision (s 2(1)(b)) of

the Rent Restriction Act 1984, he would have found that the order in exempting a

group of parastatals instead of a class of premises, was ultra vires the enabling

provisions. In support of this ground, Mr Matata submitted that GN 41 of 1992 is H

ultra vires because the relevant enabling section refers to a class of premises whereas

the exemption in the order is based on the ownership of those premises. We think

with respect that this submission is based either on a misreading or partial reading of

the section of the order. Section 2(1)(b) of the Rent Restriction Act 1984 provides: I

1994 TLR p243

MFALILA JA

`2 - (1)‚ This Act shall apply to all dwelling houses and commercial

premises other than: A

(a) -

(b) Any premises or class of premises which the Minister

may with the approval of the National Assembly, signified by a resolution, by order

published in the Gazette, exempt from all or any of the provisions of this Act'.

And para 3 of the exemption order reads in part: B

`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'.

Reading these two provisions together, we do not see how paragraph 3 of the C

Order can be considered to be outside the enabling provisions in s 2(1)(b) of the Act.

Under s 2(1)(b) the Minster responsible for Lands, Housing and Urban Development

can exempt two groups of premises from the provisions of the Rent Restriction Act.

He can exempt any premises or class of premises. The premises D exempted by GN

41 of 1992 are covered under the description any, whereas those under GN 23 of 1983

are covered under the description class of premises. We therefore do not see why Mr

Matata would want to limit the Minister's power of exemption to a class of premises

when the first part of the section widens the E power to any premises. Since all

premises must have owners, it is strange to suggest that an order would be rendered

invalid simply by identifying their owner. For these reasons we are satisfied that GN

41 of 1992 is not ultra vires the enabling section of the Act. This ground of appeal

therefore fails. F

In ground three the appellants averred that had the trial judge properly directed

himself on the rules of statutory interpretation, he would have found that s 2(1)(b) of

Act 17 of 1984 does not confer upon the first respondent parliamentary power to

amend substantive provisions of a statute (s 11 of the National Housing G

Corporation Act No 2 of 1990). In support of this ground, Mr Matata contended that

the effect of the order by the first respondent was to amend s 11 of the National

Housing Corporation Act which he was not empowered to do. In reply Mr Magoma

contended that GN 41 of 1992 did not amend and was not intended to amend s 11 or

any other provision of the National Housing Corporation Act. H

We agree with Mr Matata that the first respondent, the Minister for Lands, Housing

and Urban Development, has no power to amend an Act of Parliament. But he has

never purported to undertake such a task. In promulgating the order in GN 41 of

1992, the Minister was only doing what he is allowed and empowered to do I

1994 TLR p244

MFALILA JA

A by the Rent Restriction Act - namely to exempt the premises owned by the

specified parastatals from the provisions of the Act. Being exempted from the

operations of a particular law or order does not mean repealing or amending that

particular law or order. It simply means that that particular law will not operate on a

specified individual, body of individuals or organisation. Hence, you may have the

Minister of Finance being empowered to exempt certain organisations from the B

operations of say the Sales Tax Act. This does not mean that the Finance Minister is

empowered to amend the Sales Tax Act. The contention in this ground therefore fails.

C We have already held that the disapplication of the Rent Restriction Act to the

premises owned by the second respondent, did not leave the appellants helpless

without any remedy against the second appellants arbitrary or capricious actions. We

have already held that the appellants or other tenants of the second respondent can

still go to the ordinary courts to enforce their rights under the D tenancy agreements

or to challenge the rents fixed by the second respondent under its new acquired

authority. In the circumstances, we do not agree with Mr Matata that the appellant's

right to go to the ordinary courts is illusory as we do not see any reason which can

prevent them from going to the ordinary courts to enforce their rights as tenants. The

contention in ground four similarly fails. E

Lastly, in ground five the appellants contended that had the learned judge properly

directed himself on the second respondent's decision to raise rent, he would have

found that the second respondent acted arbitrarily and contrary to the principles of F

natural justice. In support of this contention Mr Matata cited a Privy Council decision

in an appeal from Canada, Minister of National Revenue v Wrights Canadian Ropes

Ltd (3). We think the decision in this case would have been relevant in the

consideration of the present appeal if the appellants had been G challenging the

reasonableness of the new rents not their validity. They would then in the process

have provided the necessary data or information to support their challenge. Once it is

held, as we have done, that the exemption order by the Minister was perfectly valid

as it was lawfully made under validly delegated H authority, the validity of the new

rents imposed by their landlord under the newly acquired authority cannot be

successfully challenged. In the circumstances we agree with Mr Magoma that the

only and best course for the appellants to take would have been to proceed by way of

challenging their landlord to justify the new rates. The learned trial judge did rightly

attempt not to resolve I

1994 TLR p245

MFALILA JA

the question whether the new rates are reasonable because he had no data or A

other material to assist in such an undertaking. Accordingly we hold that this head of

complaint also fails.

All the grounds of appeal having failed, the appeal fails and we dismiss it in its

entirety with costs. B

1993

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI, Chief Justice of Tanzania

Secretary & Managing Editor

Dr. J.T. MWAIKUSA, Senior Lecturer, Faculty of Law,

University of Dar es Salaam

Members

The Hon. Mr. Justice B.A. SAMATTA, Justice of Appeal,

Tanzania Court of Appeal

The Hon. Mr. Justice H.M. HAMID,

Chief Justice of Zanzibar

The Hon. Mr. Justice H.A. MSUMI,

Principle Judge (J.K.) of the High Court of Tanzania

Mr. SHAIDI, Principal State Attorney

Attorney General's Chambers, Dar es Salaam

Mr. A.M. MISKIRY, Senior State Attorney,

Attorney General's Chambers, Zanzibar

Ms. K. ORIYO, Chief Corporation Counsel,

Tanzania Legal Corporation

Mr. S.J. JADEJA, Advocate of the High Court of Tanzania

Mr. B. LUANDA, Registrar, Court of Appeal of Tanzania

Ms. M. SHANGALI, Court of Appeal, Administrative Assistant

Dr. P.J. KABUDI (Assistant Editor),

Senior Lecturer, Faculty of Law, University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal of Tanzania and the High

Courts of Tanzania and Zanzibar

CITATION

These Reports are cited thus [1993] T.L.R.

Judges of the Court of Appeal of Tanzania in 1993

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice L.M. Makame Justice of Appeal

3. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

4. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

5. The Hon. Mr. Justice A.S.L. Ramadhani Justice of Appeal

6. The Hon. Mr. Justice N.S. Mnzavas Justice of Appeal

7. The Hon. Mr. Justice L.M. Mfalila Justice of Appeal

8. The Hon. Mr. Justice D.Z. Lubuva Justice of Appeal

Judges of the High Court of Tanzania in 1993

1. The Hon. Mr. Justice B.A. Samatta Principal Judge (J.K.)

2. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

3. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

4. The Hon. Mr. Justice E.W. Katiti Puisne Judge

5. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

6. The Hon. Mr. Justice N.M. Mushi Puisne Judge

7. The Hon. Mr. Justice W. Maina Puisne Judge

8. The Hon. Mr. Justice J.A. Mroso Puisne Judge

9. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

10. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

11. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

12. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

13. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

14. The Hon. Mr. Justice A. Bahati Puisne Judge

15. The Hon. Mr. Justice H.A. Msumi Puisne Judge

16. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

17. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

18. The Hon. Mr. Justice E.P. Moshi Puisne Judge

19. The Hon. Mr. Justice L.A. Kyando Puisne Judge

20. The Hon. Mr. Justice W.H. Sekule Puisne Judge

21. The Hon. Madam Justice E.N. Munuo Puisne Judge

22. The Hon. Mr. Justice J. Masanche Puisne Judge

23. The Hon. Mr. Justice J.B. Mchome Puisne Judge

24. The Hon. Mr. Justice M.D. Nchalla Puisne Judge

25. The Hon. Mr. Justice J.M. Mackanja Puisne Judge

26. The Hon. Mr. Justice J.J. Mkwawa Puisne Judge

27. The Hon. Mr. Justice E.K. Mwipopo Puisne Judge

28. The Hon. Mr. Justice E.N. Rutakangwa Puisne Judge

29. The Hon. Mr. Justice J.H. Msoffe Puisne Judge

30. The Hon. Mr. Justice A.C. Mrema Puisne Judge

Judges of the High Court of Zanzibar in 1993

1. The Hon. Mr. Justice Hamid M. Hamid Chief Justice

2. The Hon. Mr. Justice Dahoma Puisne Judge

Cases Reported

1993 TLR p1

A