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.

1984 TLR p118

MUSTAFA JA

Case Information

Appeal dismissed. A

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 I

1984 TLR p119

MUSTAFA JA

A (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.

G 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