Ali Rashid Suleiman Nassor Lemki v Hotel Internationale Limited [1984] TLR 117 (CA).

ALI RASHID SULEIMAN NASSOR LEMKI v HOTEL INTERNATIONALE LIMITED 1984 TLR 117 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Kisanga JJA

September 14, 1984

F CIVIL APPEAL NO. 15 of 1983

Flynote

Land law - Vacant possession - Whether lack of alternative accommodation is a bar to making an order of G vacant possession - S. 19(1) (e)(ii) of the Rent Restriction Act, 1963.

-Headnote

The appellant had filed an action in the court of the Resident Magistrate, Dar es Salaam seeking to recover vacant possession of the premises on Plot 942/157, Lindi Street, Dar es Salaam and mesne H profits from the respondent who was in occupation as a tenant. The appellant succeeded in the court of the Resident Magistrate. The decision of the Resident Magistrate was reversed on appeal by the High Court. This appeal is against the decision of the High Court. I Held: In terms of section 19(1)(e) (ii) of the Rent Restriction Act, no order for possession can be made in the absence of alternative accommodation being available. 

Case Information 

Appeal dismissed. 

No case referred to. 

F.S. Mbuya for the appellant. 

[zJDz]Judgment 

Mustafa, J.A.: delivered the following judgment of the court: B The appellant had filed an action in the Court of the Resident Magistrate Dar es Salaam seeking to recover vacant possession of the premises on Plot 942/157, Lindi Street, Dar es Salaam and mesne C profits from the respondent who was in occupation as a tenant. It is common ground that the respondent is a protected tenant under the Rent Restriction Act. The appellant succeeded in the court of the Resident Magistrate, but when an appeal was preferred in the High Court, the decision of the Resident Magistrate's Court was reversed. From the High Court decision the appellant is D appealing to this Court. The appellant had inherited the premises in question from his father. The respondent had been a tenant of the premises in the time of the appellant's father, when the appellant was a minor. Rent was regularly paid by the respondent. In 1971 the suit premises were acquired by the Registrar of E Buildings under the Acquisition of Buildings Act and the respondent then paid its rent to the Registrar of Buildings. In October 1972, as a result of representations made by P.W.3 Rehma, the appellant's exwife, who stated that she was acting on behalf of the appellant, the Registrar of F Buildings "restored" the building in the name of P.W.3 Rehma, and directed that the rental thereof be for the benefit of the appellant and his children. The respondent thereafter paid rent to P.W.3 Rehma.  

The appellant alleged that he needed the suit premises, which are commercial premises used in a G hotel business by the respondent, for himself as the appellant wanted to engage himself in the hotel business. The appellant had floated a private limited company, called the Havemore Hotels Company Limited with himself and his ex-wife as the only share holders. Each has one share of shs. 20/=; and the total paid up capital is shs. 40/=. The proposed hotel business would presumably be H run by the Havemore Hotels Company Limited. In the trial court, the magistrate framed a number of issues and among them were: (a) is alternative accommodation reasonably equivalent available or would it be available at the time the order takes effect: and (b) would it be reasonable to make an order for possession. In his judgment the magistrate stated that the issue of alternative accommodation "is the kernel of the entire dispute". However, in considering that issue he thought that it was necessary to consider B whether the refusal to grant vacant possession would cause greater hardship to the landlord or the tenant. And he thought that to decide that point it was necessary to deal with the two issues, alternative accommodation and reasonableness to make a possession order simultaneously. He C compared the respective financial positions and conditions of the parties and concluded that it was just, reasonable and equitable to grant vacant possession to the appellant. He was satisfied that no alternative accommodation was or would be available, but he seemed to suggest that the respondent, being a wealthy party, should have secured a plot and put up a building to serve as D alternative accommodation. 

In any event he in effect held that the absence of alternative accommodation was no bar to an order for possession being made. On first appeal, that decision was reversed. The judge in brief, held that: E (1) the appellant had no locus standi as the ownership of the suit premises was vested in the appellant's ex-wife P.W.3 Rehma. (2) No order for possession could be made in the absence of alternative accommodation. F (3) Since the suit premises were to be leased to HavemoreHotels Company Ltd., the appellant did not require the suit premises himself, and thus could not suffer hardship. Mr. Mbuya, before us, as he did before the first appellate judge, submitted that, in the circumstances of this case, the lack of alternative accommodation is no bar to the making of an order for possession. We are unable to agree. In terms of section 19(1)(e)(ii) of the Rent Restriction Act, no order for possession can be made in the absence of alternative accommodation being available. H This case comes squarely within those provisions, and clearly is not one for which an exception can be made. On this ground alone the appeal must fail. We have heard attractive arguments from both learned counsel on the issues of locus standi and whether the appellant could be said to require the suit premises in the context of the part being I played by the Havemore Hotels Company Ltd. Since we have decided the appeal on the alternative accommodation ground, it is not strictly 1984 TLR p120 necessary for us to deal with those two interesting points. We will deal with them as and when the A need arises. The appeal is dismissed with costs.

Appeal dismissed.

1984 TLR p120

B