H L MWASANDENDE v MWANAISHA ABDALLAH AND ANOTHER 1991 TLR 49 (HC)

H L MWASANDENDE v MWANAISHA ABDALLAH AND ANOTHER 1991 TLR 49 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

5 April, 1991 F

Flynote

Landlord and Tenant - Rent Restriction - Alternative accommodation - Distance

factor.

Landlord and Tenant - Housing Appeal Tribunal - Matters not adjudicated upon by

Regional Housing Tribunal - What Appeal Tribunal to do. G

-Headnote

The appellant applied for vacant possession of his house in the Regional Housing

Tribunal. Two of his tenants resisted the application on the ground that no reasonably

equivalent alternative accommodation had been offered H by the landlord. The

landlord had offered alternative accommodation which was far away from the

tenants' places of work.

The Regional Housing Tribunal granted the application. On appeal the Housing

Appeals Tribunal reversed the I decision of the Regional Tribunal on the ground that

no alternative accommodation

1991 TLR p50

A which was reasonably equivalent to the suit premises had been offered.

When hearing the appeal the Housing Appeals Tribunal found that the lower

Tribunal had not answered some issues but did not remit them for resolution.

B Held: (i) No evidence was adduced to show that the alternative accommodation

being offered was reasonably equivalent to the suit premises;

(ii)an accommodation which is far off from the tenants' place of work and

requires one to walk five miles C to the nearest bus station cannot be said to be

reasonably equivalent to the suit premises;

(iii) there is no requirement for an appellate tribunal to remit a matter to the

lower tribunal just because some points were not adjudicated upon by the lower

tribunal. Section 12(i)(r) of the Rent Restriction Act D empowers the Housing

Appeals Tribunal to vary or rescind any order made under the provisions of section

12. That means that if the Regional Housing Tribunal has made any order, the

Housing Appeals Tribunal can vary or rescind it.

Case Information

E Appeal dismissed.

Mwakasungula, for the appellant.

Lamwai, for the respondent.

[zJDz]Judgment

F Bahati, J.: This is an appeal by H.L. Mwasandondo against the judgment of the

Housing Appeals Tribunal which quashed and set aside the judgment of the Regional

Housing Tribunal.

The facts are that the appellant Mwasandondo applied before the Dar es Salaam

Regional Housing Tribunal for G vacant possession of his house No. 20 Block 40

Kinondoni Area of Dar es Salaam City. The house was being occupied by four

tenants. The tenants resisted the claim for vacant possession on the grounds that no

reasonably equivalent alternative accommodation had been offered by the applicant

landlord. Two tenants vacated the suit H premises voluntarily and only the two

respondents Mwanaisha Abdallah and Jane Mbaga were left to resist the application.

The Regional Housing Tribunal granted the application for vacant possession.

On appeal to the Housing Appeals Tribunal the decision of the Regional Housing

Tribunal was reversed on the I grounds that no alternative accommodation which is

reasonably equivalent to the suit premises had been offered. The Housing Appeals

Tribunal argued

1991 TLR p51

BAHATI J

that even the distance from the alternative accommodation to the tenants' place of

work and to the city centre was A factor to be taken into account in deciding

whether such accommodation was reasonably equivalent to the suit premises.

In his memorandum of appeal, the appellant has set out 6 grounds of appeal. Mr.

Mwakasangula, learned counsel B for the appellant, argued that the appellant had

offered alternative accommodation of the same standard as the suit premises and

where the appellant himself was living. But the respondents refused to accept the

accommodation on flimsy grounds namely that the house was too far from the City

Centre. He argued that this should not be allowed.

On ground No. 2, Mr Mwakasangula argued that the Tribunal erred in law and fact in

narrowing down the C interpretation of "alternative accommodation" to correspond

to a place near where one works. He submitted that it would be impossible for

landlords under such circumstances to find alternative accommodation. D

On ground No. 5, Mr. Mwakasangula submitted that the judgment of Tribunal went

further, to state that because the appellant did not need the suit premises of this

accommodation, the order for vacant possession was uncalled for. He argued that this

point was not one of the issues. E

Finally Mr. Mwakasangula submitted that the Tribunal erred in not referring the

matters to the Regional Housing Tribunal for adjudication. He argued that since the

Housing Appeals Tribunal had held that some issues had not been answered, the

proper cause was to remit the matter to the Regional Housing Tribunal for resolution

of the F issues not answered.

In reply, Dr. Lamwai learned counsel for the respondents submitted that the appeal

had no merits. He referred to section 25(l)(e)(i) and (ii) of the Rent Restriction Act

in order to emphasize the requirement of providing G accommodation reasonably

equivalent to the one at hand. He referred to the cases of Warren v Austen [1947] 2

All E.R.185 and Civil Case No. 29/89 - Parmar and another v Paul Maro and Civil

Appeal No. 7 of 1989 - Dilip Parmar v Mohamed Sood which held that even

amenities of the alternative accommodation matter and that H suitability of the

alternative accommodation is important.

He argued further that the appellant failed to call evidence to prove that the

alternative accommodation was reasonably equivalent. Therefore the Housing

Appeal Tribunal was right in holding that the appellant failed to I discharge his duty

under section 25 of the Act, he submitted. He elaborated further that whereas the

suit premises

1991 TLR p52

BAHATI J

A were in Kinondoni within reach of the bus station, the alternative

accommodation was at Ukonga five miles to the nearest bus station. He said that the

alternative accommodation was far from being reasonably equivalent to the suit

premises in view of the distance which the respondents would have to cover. He

submitted further that the B appellant kept giving different reasons as to why he

wanted the suit premises which showed that he was a liar.

As for ground No. 6, Dr. Lamwai submitted that the Housing Appeals Tribunal had

the power under section 12(l)(r) of the Rent Restriction Act to vary or rescind any

orders made by the Regional Housing Tribunal and that C there was no requirement

for a retrial because the Housing Appeals Tribunal was convinced that the application

in the Regional Housing Tribunal was not bona fide.

In a rejoinder to the above, Mr. Mwakasangula submitted that the appellant had

supplied alternative D accommodation which was suitable in that he himself was

living there and that he could not be expected to provide better accommodation. As

for the distances, he submitted that the decisions of the Court of Appeal did not deal

with the issues of distance and transport.

E With regard to the submission that the appellant had contradicted himself, Mr.

Mwakasangula conceded that there was such contradiction. Finally he said that since

the "reasonably equivalent" element had not been dealt with by the Regional Housing

Tribunal, the case ought to have been remitted to the Regional Housing Tribunal for

decision.

F I will commence with the last point raised by Mr. Mwakasangula about remitting

the case back to the Regional Housing Tribunal so that the element of "reasonably

equivalent" may be decided. I do not think, with respect to learned counsel, that is

what section 12 of the Rent Restriction Act requires. Even in ordinary civil cases

there is G no requirement for an appellate court to remit a matter to the lower court

just because some points were not adjudicated upon by the lower court. The appellate

court can certainly delay with the matter. In this appeal, the appellant adduced no

evidence to establish that the alternative accommodation was reasonably equivalent

to the H suit premises. He cannot be heard to complain about this deficiency and to

ask that he be given an opportunity to lead evidence to that effect. Further more,

section 12(i)(r) of the Rent Restriction Act empowers the Housing Appeals Tribunal

to vary or rescind any order made under the provisions of this section i.e. section 12.

That I means that if a Regional Housing Tribunal has made any order, the Housing

Appeals Tribunal can vary it or rescind it.

1991 TLR p53

BAHATI J

The main thing in this appeal is whether the alternative accommodation which the

appellant was offering to the A respondents was reasonably equivalent to the suit

premises where they are staying. But before I deal with that point I will examine the

reasons on the part of the appellant for requiring the suit premises. As conceded to by

Mr. Mwakasungula, the appellant gave contradictory reasons for wishing to have the

suit premises. But what B transpired as the truth was that the appellant wanted to

exchange accommodation with the respondents so that he might occupy the suit

premises and leave the respondents to occupy his current residence at Ukonga. The

Housing Appeals Tribunal found that the appellant did not require the suit premises

for his occupation as a residence. C Section 25(1)(e)(ii) states inter alia thus:

in case of a dwelling house, it is reasonably required as a residence for

himself... D

But the appellant already has a residence for himself. In such a situation can it be said

that the suit premises are reasonably required as a residence for the appellant or

occupation as a residence for himself or for his wife or children? I do not think so,

and in any case there is no evidence to that effect. Therefore, even on the first limb

of E paragraph (e)(i) this appeal crumbles.

As for alternative accommodation reasonably equivalent, I also agree with the learned

Chairman of the Housing Appeals Tribunal that no evidence was adduced to show

that the alternative accommodation being offered was F reasonably equivalent to the

suit premises. Indeed the evidence establishes the opposite because the alternative

accommodation is far off from the city centre and requires one to walk 5 miles to the

nearest bus station. Such accommodation cannot be said to be reasonably equivalent

to the suit premises. It was held in P.S. Parmer and G another v Paulo E. Maro -

Civil Appeal No. 29 of 1989 (C.A.T. unreported) that here the suit premises were

begin used for both residential and commercial purposes, alternative accommodation

which cannot be used both for residential and commercial purposes cannot be

reasonably equivalent to the suit premises. Going by the H reasoning in the just

cited case, I have no difficulty in concluding that the alternative accommodation in

this appeal which is as described above cannot be said to be reasonably equivalent to

the suit premises because the respondents would be put to great inconvenience as to

their access to the places of work, I

1991 TLR p54

A more so for the second respond who would be put into further problems of

walking for 5 kilometers to the nearest bus stop.

It follows, therefore, that not one out of the two requirements of paragraph (e) of

section 25 (l) has been satisfied. B The appeal cannot succeed and it is dismissed with

costs.

Appeal dismissed.

1991 TLR p54

C