FATEBALI MURJI v H.P BHANJI 1988 TLR 8 (HC)

 FATEBALI MURJI v H.P BHANJI 1988 TLR 8 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Sekule J

11th January, 1988

Flynote

G Civil Practice and Procedure - Jurisdiction - Rent Restriction Area - S. 126 (h) of

the Rent Restriction Act, 1985.

-Headnote

The respondent was occupying a flat on a plot situated along Uhuru/Swahili street in

Dar H es Salaam as a legal tenant of the Registrar of Buildings. Before going abroad

he left the suit premises with the applicant on the understanding that the applicant

would vacate and hand over said premises to the respondent upon his return to Dar es

Salaam. At about the same time a company, by which the applicant was employed,

made arrangements with the respondent to allow the use of the premises by the

company to house the I applicant. This arrangement was approved by the Registrar

of Buildings and rent

1988 TLR p9

SEKULE J

was ever since paid by the company to the Registrar of Buildings. Respondent came

A back and demanded recovery of the premises but the same was refused,

whereupon the respondent filed a suit in the Resident Magistrate Court praying, inter

alia, for vacant possession. Before hearing of the suit, counsel for the applicant raised

a preliminary B objection claiming that the Resident Magistrates Court had no

jurisdiction to entertain the suit. The trial Magistrate held that the cause of action was

trespass and that there was no landlord and tenant relationship, and further that the

case did not fall within the purview of the Rent Resistriction Act, 1985. C

Held: (i) Since the suit involves the determination of the status of the parties in the

suit premises, it was erroneous to file it in the Resident Magistrates Court because it

was a matter which could only be determined by the Regional Housing Tribunal

under the provisions of the Rent Restriction Act. 1984. D

Case Information

Order accordingly.

Cases referred to:

1. Valji Keshav Oza v C.P. Jani and Sons [1957] EA 184. E

2. Gangabai Harji v Bhoja Kashav [1957] EA 304.

3. Suleman Ibrahim v Awadhi Saidi [1963] EA 179.

4. Kitundu Sisal Estate & Others. v Shingo Mshuti [1970] HCD n. 229

[zJDz]Judgment

Sekule, J.: The applicant Fatehali Murji is applying to this court under section 44 of

the F Magistrates' Court Act, 1984 and/or section 79 and section 95 of the Civil

Procedure Code for revision of the ruling of the Resident Magistrate at Kisutu in Civil

Case No. 44 of 1987.

The background of the case as can be gathered from the documents filed by the

parties is G that the respondent in the application one H.P. Banji was or is a legal

tenant of a flat on Plot No. 4-27 United House, Uhuru/Swahili Street Dar es Salaam

hereinafter to be referred to as the suit premises since 1965. He became a tenant of

the Registrar of H Buildings after the coming into force of the Acquisition of

Building Act, 1971 in 1971.

Sometime in November, 1984 the respondent left for Canada and left the suit

premises with the applicant with the understanding that, the applicant would vacate

and handover the said suit premises to him upon his return to Dar es Salaam. I

1988 TLR p10

SEKULE J

A On the other hand the applicant contends that he is an employee of Messrs Chemi

Products Ltd. This is a limited liability Company incorporated in Mainland Tanzania.

Sometime in 1984 his employer, that is Chemi Products Ltd. made arrangements with

the respondent who was then living in Canada for him as a member of staff of the said

Chemi B Products Ltd. to use and occupy the suit premises. Before that

correspondences had been exchanged between his employer and the Registrar of

Buildings as well as with the respondent. These correspondences were attached to the

affidavit of the applicant and collectively marked as Exhibit A.

C The essence of these correspondences is that the respondent allowed or gave

partial use of his flat to Chemi Products Ltd. to house their staff. The arrangement

was approved or authorised by the Registrar of Buildings.

The applicant further contends that he has been residing in that flat for about 21/2

years D now and that his employers are paying rent directly to the Registrar of

Buildings.

Be that as it may, the respondent returned to Tanzania in or about January, 1987 and

asked the applicant to vacate and handover the suit premises to him by June, 1987.

The E applicant failed or refused to do so despite the respondent's demands. As a

result the respondent filed a suit in the Resident Magistrates Court of Dar es Salaam at

Kisutu seeking the following:

1. An order that the applicant be moved out and hand over immediate F

possession of the suit premises to the respondent.

2. Damages.

3. Costs.

4. Such further reliefs as the court may deem fit.

G It was also contended by the respondent that as from June, 1987, the applicant was

a trespasser in the suit premises.

Before the hearing of the suit in the Resident Magistrate Court, Mr. Majithia learned

H counsel who represented the applicant in the Resident Magistrates Court as well as

in the application before this court, raised a preliminary objection to the effect that

the Resident Magistrate Court had no jurisdiction to entertain the suit by virtue of

section 12(1) of the Rent Restriction Act, 1985. He contended that the case was

within the purview of the I Rent Restriction Act 1985.

On the other hand Mr. Muccadam learned counsel for the

1988 TLR p11

SEKULE J

respondent in the Resident Magistrates Court and before this Court, contended that as

A the suit was based on trespass and there was no landlord and tenant relationship

the Resident Magistrate Court had jurisdiction to hear and determine the suit. The

applicant was only an invitee and the respondent having come back he had the right

to re-occupy the suit premises. B

The Resident Magistrate Court, after considering learned counsels' submissions found

and held that the cause of action was trespass and that there was no landlord and

tenant relationship. The case was therefore not within the purview of the Rent

Restriction Act, 1985. The applicant was therefore ordered to file his written

statement of defence within C three weeks from the date of the court's ruling to

enable the suit to proceed in the Resident Magistrate Court.

Mr. Majithia learned counsel for the applicant contends that this ruling was not

correct in law and hence this application before this court. D

Like in the Resident Magistrates Court, Mr. Majithia learned counsel has submitted

before the court that the Resident Magistrate Court has no jurisdiction to entertain

this suit. The case is within the competence of the Regional Housing Tribunal. It was

his E submission that the Rent Restriction Act, 1985 applies to all dwelling houses

and the suit filed was for possession of a dwelling house. He made reference to

sections 2, 12(1)(h), 25 and 46 of the Rent Restriction Act, and he cited a number of

authorities, namely, Valji Keshav Oza v C.P. Jani and Sons [1957] E.A. 184, Gangabai

Harji v Bhoja Keshav [1957] EA 304, Suleman Ibrahim v Awadhi Said [1963] E.A. 179

and F Kitundu Sisal Estate and others v Shingo Mshuti [1970] HCD page 229 inter

alia as can be seen in his list of authorities filed in this file.

On the other hand Mr. Muccadam learned counsel for the respondent submitted that

G respondent left the house to the applicant and that when he came back and wanted

the suit premises back, the applicant has failed and refused to move out. He is a

trespasser. He further submitted that protection is given to tenants and that where

there is no tenant and land lord relation-ship the Rent Restriction Act, 1985 does not

apply. The matter H was therefore within the competence of the Resident

Magistrate's Court.

I have considered this matter. Without going into the merits of the case which will be

examined and considered by the relevant organ in the course of the hearing of this

matter; and after carefully considering the facts as disclosed in the affidavits and

counter affidavit I filed by the parties and the correspondences exchanged,

1988 TLR p12

SEKULE J

A (Exhibit A) before the applicant moved into the suit premises, I am of the view

this dispute falls within the provisions of the Rent Restriction Act, 1985.

The applicant appears to have moved into the suit premises with the approval and B

permision of the respondent and the Registrar of Buildings the land lord in as far as

the suit premises are concerned. In these circumstances therefore one of the possible

issues that could arise for consideration is that what was or is the applicant's status if

any in the suit premises. Is he a sub-tenant in terms of sections 36 and 37 of the Rent

Restriction C Act, 1985 or/and what rights if any does he have in the suit premises.

These in my view are matters within the purview of the provisions of the Rent

Restriction Act, 1985 and the competence of the Regional Housing Tribunal to

inquire, consider and determine. With respect, it does not appear in my opinion to be

a case of trespass per se D as contendent by Mr. Muccadam, learned counsel for the

respondent.

Further, since the applicant is at the material time in occupation of the suit premises,

the Regional Housing Tribunal has jurisdiction to deal with this dispute in terms of

section E 12(1)(h) of the Rent Restriction Act, 1985. There is no dispute that Dar es

Salaam is a rent restriction area. Section 12(1) reads:

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

jurisdiction, have power to do all things which it is required or empowered to do by

or under the provisions of this Act and F without prejudice to the generality of the

foregoing shall have power:

(h) to make orders upon such terms and conditions as it shall think fit for

the recovery of G possession and for the payment of arrears of rent and means profit

which orders may be applicable to any person, whether or not he is a tenant, being at

any material time in occupation of any premises.

H For the reasons outlined hereinabove. I am of the view and do hold that the

Resident Magistrate Court did not have jurisdiction to entertain this case. The suit is

within the competence of the Regional Housing Tribunal.

I In the exercise of the powers under section 44(b) of the Magistrates Courts Act,

1984, I would and do hereby quash the ruling of the Resident Magistrates Court.

1988 TLR p13

It is further ordered that the suit be transferred to the Regional Housing Tribunal for

A inquiry and determination.

Order accordingly.

1988 TLR p13

B