Lyimo v. Abdallah Civ. App. 2-D-70; 29/5/70; Georges, C. J.

Lyimo v. Abdallah Civ. App. 2-D-70; 29/5/70; Georges, C. J.

The plaintiff/respondent was claiming from the defendant/appellant the sum of Shs. 1,040/- being arrears of rent due to the plaintiff for the period 1^st April 1967 to 31^st July, 1968 at the rate of Shs. 65/- per month. The defendant denied this claiming that he had in fact paid at the rate of Shs. 130/- a month from March 1^st 1967 to February 29^th 1968; that since the Rent Tribunal fixed the rate at Shs. 65/- a month with effect from 1^st March 1967, he had overpaid the sum of Shs. 780/- which he was entitled to set off against the plaintiff’s claim for the months March to July 1968. The suit was filed in the District Court of Dar es Salaam and was decided by a Resident Magistrate in favour of the plaintiff. The defendant appealed on the ground that the District Court had no jurisdiction to hear the case by virtue of s. 11A of the Rent Restriction Act, 1962 which reads: “(1) All claims, proceedings or other matters of a civil nature arising out of this act or any of the provisions thereof and in respect of which jurisdiction is not specifically conferred upon the Tribunal shall be commenced in the court….. And the court shall have owe to do all things which it is required or empowered to do by or under the provisions of this Act, and

Without prejudice to the generality of the foregoing shall have power ….. (b) to make orders, upon such terms and conditions as it shall think fit, for the recovery of possession and for the payment of arrears of rent or mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation or possession of any premises;” …… S. 2 “The ‘court’ means a court of resident Magistrate of competent jurisdiction.” The appellant’s counsel contended that a claim for rent with respect to premises which come within the Rent Restriction Ordinance is a claim or proceeding of a civil nature arising out of the Act and that jurisdiction is vested exclusively in the Court of the Resident Magistrate.

            Held: (1) “A claim for rent, sympliciter, is not a claim which arises out of the Rent Restriction Ordinance. The claim is founded on the very nature of the relationship of landlord and tenant. The amount of rent payable is controlled under the Act. The recovery of possession is also controlled. All these controls in effect modify the terms upon which parties would be otherwise free to agree in entering into the relationship of landlord and tenant and they arise under the act, but the obligation to pay rent itself does not arise under the Act and is , therefore, not affected. “[S. 11A (1) (b) provides that the Court shall have power to make orders for the ‘payment of arrears of rent’. This, however, if clearly in the context of granting remedies collateral to an order for possession. Where the issue, as here, is a pure and simple issue as to whether the standard rent has or has not been paid owner a particular period this phrase cannot be applicable. There was a further argument based on subsection (g) of section 11A (1). This subsection makes it compulsory for the landlord to seek the permission of the Court before levying distress. The contention was that since distress was a method of enforcing payment of rent and the act imposed an obligation to go to the Resident Magistrate’s Court before this was done, then it could not be contemplated that if another method of enforcement by way of suit was used instead that his could be dealt with by ay other court but the Resident Magistrates’ Court. In my view this does not follow. There would be need to exercise some control over the landlord’s right to use a remedy as harsh as distress to recover his rent. The tenant’s possession could be made quite unbearable if the bailiff could be put on him on each occasion that his rent was seven days in arrear – more particular when an arrears of rent for thirty days does not under the Act automatically entitle the landlord to possession. Once the right to levy was being controlled it was the convenient thing to vest jurisdiction in the Court to which other powers had been given. An ordinary suit for rent, unlike distress, is not a weapon which can be used to come possession so uncomfortable that it would be surrendered. There was no reason to control that and I have seen nothing in the act to show that it has been controlled. No doubt jurisdiction was conferred on the resident Magistrates’ Court in matters arising out of this Act because it was contemplated that not infrequently matters of law would arise which would require the skills of a professionally trained lawyer. Before the Amendment of 1962 there was a Rent Restriction Board presided over by a professionally trained lawyer which dealt with all the matters now placed under the jurisdiction of the Resident Magistrates’ Courts. When this Board was abolished and the Rent Tribunal, presided over by a layman, set up to deal with the assessment of rent, the more complicated legal issues were entrusted for determination by the Resident Magistrates’ Court.  No complicated legal issues arise where the claim is one for rent alone and the defence is an assertion

that it has been paid. No reference need be made to this Ordinance and indeed in the pleadings none was made except for the purpose of sitting that the standard rent had been fixed at Shs. 65/- a month as from March 1967. This was not in dispute”. (2) “If this matter has been one which fell under the Rent Restriction Act, I would have followed the judgment in Allarakhia v. Aga Khan [1969] E.A. 613, and I would have held that from the proceedings as they are it was clear that the matter had been determined in the District Court and that this court has no jurisdiction. Since I am satisfied, however, that the claim does not arise under this Ordinance the case of Allarakhia appears to me irrelevant and I would hold that the District Court did have jurisdiction to hear this case and to determine it.” (3) Appeal dismissed.