THE REGISTRAR OF BUILDINGS - HAWA BAYONA v KANIZ ABDULLA KERMALLI 1989 TLR 71 (HC)

 

THE REGISTRAR OF BUILDINGS - HAWA BAYONA v KANIZ ABDULLA KERMALLI 1989 TLR 71 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Bahati J

12 May, l989 D

Flynote

Landlord and Tenant - Rent Restriction - Jurisdiction - Whether High Court can hear

appeals originating from the Housing Appeals Tribunal. E

Landlord and Tenant - Jurisdiction - Scope of jurisdiction of the Housing Appeals

Tribunal to entertain cases from the Regional Housing Tribunal.

Civil Practice and Procedure - Assessors - Assessor absent during part of proceedings -

F On return assessor appraised of what transpired during absence - Assessor allowed

to advise Tribunal on verdict - Effect.

-Headnote

On an application in the Regional Housing Tribunal seeking, inter alia, an injunction

against the Registrar of Buildings restraining him from evicting the applicant from the

G premises, the Tribunal dismissed the application on the day of mention for nonappearance

of the applicant. After the dismissal the applicant was evicted from the

premises.

No application was filed in the Tribunal to set aside the dismissal of the application

until H after the prescribed period had passed. Then an application for extension of

time to make an application to set aside the dismissal order was filed. The application

was heard by the Tribunal and dismissed there being no sufficient cause for the delay.

The applicant appealed against the dismissal order in the Housing Appeals Tribunal

which I allowed the appeal.

1989 TLR p72

BAHATI J

During the hearing of the appeal in the Housing Appeals Tribunal one of the two A

assessors was absent for some time yet he was allowed to advise the Tribunal and

coincidentally the chairman agreed with him.

The Registrar of Buildings appealed to the High Court against the decision of the B

Tribunal. During the hearing the jurisdiction of the High Court was questioned as was

the scope of jurisdiction of the Housing Appeals Tribunal on matters from the

Regional Housing Tribunal. The effect of absence of an assessor during the hearing of

the appeal was also considered. C

Held: (i) Section 43 of the Rent Restriction Act l984 means that decisions of the

Tribunal are final and conclusive except where points of law or mixed law and facts

are involved;

(ii) the High Court had jurisdiction to hear the appeal because points of law

were involved; D

(iii) the Housing Appeals Tribunal does not have powers of a Regional Housing

Tribunal;

(iv) the Housing Appeals Tribunal does not have powers of revision over

proceeding in the Regional Housing Tribunal;

(v) the scope of powers of the Housing Appeals Tribunal is to admit, consider

E and determine appeals originating from the Regional Housing Tribunal;

(vi) absence of one of the assessors during the hearing in the Housing Appeals

Tribunal was an irregularity;

(vii) since it is on record that the absent member read the arguments advanced

F in his absence, no failure of justice was occasioned;

(viii) the Regional Housing Tribunal should have granted the extension

because it was not entirely the fault of the Respondent that no application for setting

aside the G dismissal was made in time.

Case Information

Order accordingly.

Marando, for the Appellant

Kesaria, for the Respondent. H

[zJDz]Judgment

Bahati, J.: This is an appeal from the decision of the Housing Appeals Tribunal. I will

give the background facts in this case. They are that the appellant filed an application

in the Regional Housing Tribunal of Dar es Salaam against the Registrar of Buildings.

I Although the proceedings in the Regional Housing Tribunal are

1989 TLR p73

BAHATI J

shown as application No. 179/86, what was filed to commence these proceedings is A

titled "Plaint". This plaint seeks, among other things, an injunction against the

Registrar of Buildings restraining him from evicting the plaintiff from the premises

which she was occupying as family in the tenant who was abroad temporarily.

'This suit of application was never heard because it was dismissed for non appearance

B of the plaintiff. The dismissal was done on a date which had been fixed for the

mention of the case. After this dismissal, the appellant/plaintiff was evicted from the

suit premises about a week afterwards. No application was filed to the tribunal to set

aside the dismissal of the application until after the prescribed period within which to

do so C had passed. Then an application for extension of time to make the

application for setting aside the dismissal order was filed. It was eventually heard and

the tribunal decided that no sufficient cause had been shown for the delay to apply

for the setting D aside the dismissal order. An appeal was then lodged in the Housing

Appeals Tribunal. The memorandum of appeal filed in the Housing Appeals Tribunal

had only two grounds of appeal which were actually saying more or less the same

thing, namely that the Regional Housing Tribunal erred in holding as it did. E

When the matter was set for hearing in the Housing Appeals Tribunal, Mr. Kesaria

learned counsel who represented the appellant, not only argued the appeal according

to the memorandum of appeal, but also went into the merits of the application for the

setting aside of the dismissal order which was to be argued in the Regional Housing F

Tribunal in case the Regional Housing Tribunal would have given extension of time

to apply for the setting aside of the dismissal. He went further and argued now the

dismissal order was wrong because it was made on a mention date. When Mr. Kesaria

took this line of argument Mr. Marando, learned counsel, who was appearing for the

G Registrar of Buildings objected to it but he was overruled. And so Mr. Kesaria was

given the liberty to point out in detail every point he wanted dealt with even though

it was not in his memorandum of appeal. Naturally, in reply Mr. Marando went

through all the points raised by Mr. Kesaria and submitted counter arguments. H

During the hearing of this appeal in the Housing Appeals Tribunal, one of the lay

members left for medical treatment after Mr. Kesaria's submission. He only came back

after Mr. Marando had submitted but before Mr. Kesaria had made a reply. Each I

member was asked his opinion. The member who had been absent

1989 TLR p74

BAHATI J

for some time during the proceedings advised that the appeal should be allowed while

A the second member advised that it should be dismissed. The learned chairman of

the Housing Appeals Tribunal then wrote his judgment in which he allowed the

appeal. The learned chairman went further in his judgment. He held that the

dismissal of the B appellant's application was wrong and that each and every

application pending in the Regional Housing Tribunal was being upheld and set aside.

The learned chairman also ordered reinstatement into the suit premises of the

appellant namely Kaniz Kermali.

The Registrar of Buildings through his advocate, Mr. Marando, learned counsel has C

now appealed to this court setting out 11 grounds of appeal. I will now deal with

these grounds. I will commence with the point concerning the jurisdiction of this

court to hear this appeal. Mr. Kesaria, learned counsel, in his reply to the appeal,

argued that under D section 43 of the Rent Restriction Act No. 17 of l984, the

decision or determination by the Housing Appeals Tribunal shall be final and

conclusive, and that an appeal from any other decision or determination of the

Housing Appeals Tribunal shall lie to the High Court upon any point of law or mixed

facts and law. Mr. Kesaria argued that no E other decision had been shown by the

appellant which was to be appealed against. Mr. Marando, in reply, argued that there

could not be envisaged a situation in which there would be another decision apart

from that which the tribunal has made, and that what was meant by section 43

(proviso) was that the appeal could only lie to the High F Court when there is a

point of law or mixed facts and law involved in the decision of the Tribunal. With

respect to Mr. Kesaria, I agree with Mr. Marando's argument. As it is, the proviso to

section 43 of the Rent Restriction Act does not appear to make much sense. I am of

the view that the word "other" appearing in the proviso is misplaced and G it should

have been omitted because otherwise the proviso is meaningless. I understand the

section together with its proviso to mean that decisions of the tribunal are final and

conclusive except where points of law or mixed law and facts are involved. I therefore

hold that this court has jurisdiction to hear this appeal because it is H quite evident

that points of law are involved here.

The second point I wish to deal with concerns the powers of the Housing Appeals

Tribunal. Mr. Kesaria submitted that the Housing Appeals Tribunal had all the

powers of the Regional Housing Tribunals. With respect to Mr. Kesaria, I do not hold

that I view. I am of the view that section 12 of the Rent Restriction Act

1989 TLR p75

BAHATI J

does not apply to the Housing Appeals Tribunal. Section 12(1) reads in part: A

... The Tribunal shall, in relation to every rent restriction area within its

jurisdiction have powers to do all things ... B

My reading of section 12(1) is that it refers to Regional Housing Tribunals hence the

phraseology "in relation to every rent restriction area within its jurisdiction ..." Hence

section 12 talks of the powers of a Regional Housing Tribunal and not those of the

Housing Appeals Tribunal. C

The 3rd point I wish to consider is whether the Housing Appeals Tribunal erred in

dealing with matters which were not in the memorandum of appeal. Mr. Kesaria

submitted that the Housing Appeals Tribunal was entitled to deal with such matters

because it had the powers of the Regional Housing Tribunal and it had inherent D

jurisdiction. Mr. Marando in reply argued that the Housing Appeals Tribunal did not

have the right to deal with anything outside the appeal because section 42 of the Rent

Restriction Act allowed it to deal only with matters appealed against. E

I have already held that the Housing Appeals Tribunal does not have the powers of

the Regional Housing Tribunal. As for section 42 of the Act, it provides quite clearly

that the Housing Appeals Tribunal shall have power to: F

(a) (not relevant)

(b) (not relevant)

(c) confirm or reverse, amend or vary in any manner the decision or order

appealed against. G

(I have underlined the above words for emphasis). Now, nowhere in the Act is it

provided that the Housing Appeals Tribunal has got powers of revision over the

proceedings in the Regional Housing Tribunal. Since the Housing Appeals Tribunal

was dealing with and deciding on matters not appealed against it was acting ultra

vires. Indeed even section 6 of the Act which established the Housing Appeals

Tribunal H states that the Housing Appeals Tribunal shall have jurisdiction to admit,

consider and determine appeals originating from Regional Housing Tribunal. No

powers of revision are mentioned there or anywhere else in the Act.

In their opinion, one of the members of the Appeals Tribunal stated inter alia, in I

directing himself to the appeal, that the Appeals

1989 TLR p76

BAHATI J

Tribunal was not there to consider the merits of the dismissal order, thereby imply

that A he was there to consider only the grounds of appeal. The second member also

gave his opinion concerning the points under appeal only.

I therefore hold that the decision of the Housing Appeals Tribunal on matters not B

appealed against cannot stand as the same are ultra vires. I will quash them and set

them aside.

I will now deal with one more point before I consider the final point concerning

extension of time to file an application to set aside the dismissal. It is in respect of the

C absence of one of the members during part of the hearing of the appeal in the

Appeals Tribunal and the subsequent re-appearance culminating with giving his

opinion which was considered by the learned Chairman of the Appeals Tribunal. The

relevant provisions are contained in section 11 of the Act. I wish to point out,

however, that the positioning of section 11 just after the earlier section which talks of

the Constitution of D the Regional Housing Tribunal does not make section 11 very

clear. This is because one may take it to apply to Regional Housing Tribunals only,

coming as it does immediately after a section talking about Regional Housing

Tribunals. Be that as it may, E I am of the view that section 11 deals with

proceedings of Regional Housing Tribunals as well as those of Housing Appeals

Tribunal.

Now, section 11 provides in subsection (3) the procedure to be followed in case one or

both the members who were present at the commencement of the proceedings is or

are absent. It is that the Chairman and the remaining member (if any) may continue

and F conclude the proceedings notwithstanding such absence. In our appeal, one

member was absent for only part of the proceedings and then he came back and gave

his views. This was an appeal and not a trial in which witnesses were involved. I am

of the opinion G that this was irregular because it certainly went against what is

provided in subsection (3) of section 11 of the Act. The question to be considered now

is whether what took place in the appeal in the Housing Appeals Tribunal occasioned

a failure of justice since the Chairman took the opinion of this member into

consideration and agreed with it. H Mr. Kesaria argued that the absent member was

made aware of what arguments had been made in his absence. It is my considered

opinion that no failure of justice was occasioned because there was no witness

involved and that all that which was required was to know the arguments of both

sides. Although the record does not state that the I argument of Mr. Marando was

made known to the absent member, there is material on the record to show that the

1989 TLR p77

BAHATI J

absent member at least read what that argument was, because even time to read the

A cases referred to by counsel was given to both members. It was held in Arobogast

Fundi v Masudi Zaid [l980] TLR 125, that the test of determining whether a change of

assessors during trial is curable irregularity or not is whether such change occasions a

failure of justice to a party in fact. I, with respect agree with this holding of the High

B Court. The above case appears to be authority even in the case at hand where there

was an irregularity.

Finally I come to the point of appeal which should have been determined by the

Appeals Tribunal to the exclusion of all the other matters which were dealt with. It is

whether an extension of time should have been granted. I have heard both arguments

C for and against the granting the extension to apply for setting aside the dismissal,

and I am of the opinion that the Regional Housing Tribunal should have granted the

extension. This is because it was not entirely the fault of the respondent (Mrs.

Kermali) that no D application for setting aside the dismissal was made in time. In

view of the orders I intend to make at the end of this appeal, I do not wish to say

more about the reasons which in my view were sufficient to warrant an extension of

time to apply.

Before I conclude this appeal, I wish to state that I was rather perturbed by Mr. E

Kesaria's remarks in his submission before the Appeals Tribunal which were in the

following words "from the very beginning of the proceedings it is evident that the

presiding chairman was biased in favour of the respondent." With due respect to Mr.

Kesaria, I can see no evidence to such a serious allegation against a Magistrate. Just F

because a Magistrate makes a decision which is against one's interest does not mean

he is biased against him. The Court of Appeal of Tanzania had an occasion to remark

that allegations of bias against a Judge or Magistrate should not be made lightly and

the G Court of Appeal warned against such conduct in future. I cannot do better

than sound again the words of the Court of Appeal to those who are minded to make

accusations of bias against Judges or Magistrates without providing any evidence to

back up their allegations.

Having said that, I will now conclude the appeal. This appeal fails in so far as it seeks

H to have the decision of the Appeals Tribunal set aside in respect of its holding that

the Regional Housing Tribunal should have granted the respondent an extension of

time to apply for the setting aside the dismissal order. The appeal succeeds in respect

of the other orders made by the Appeals Tribunal which were not matters under

appeal in the I Appeals Tribunal. The same

1989 TLR p78

are set aside. For the avoidance of doubt it is hereby stated that the matter is remitted

A back to the Regional Housing Tribunal for that Tribunal to deal with the

application to be made by the respondent for setting aside the dismissal order against

her main application for an injunction. This may appear a circuitous course but I am

afraid there B is no short cut here. Each party is to bear his costs since each side has

only been partially successful.

Order accordingly.

1989 TLR p78

C