ISSA WARSAMA v SALIM A. BHANJI 1984 TLR 122 (CA)

ISSA WARSAMA v SALIM A. BHANJI 1984 TLR 122 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Kisanga JJA

August 2, 1984

CIVIL APPEAL NO.7 OF 1984 D

Flynote

Land law - Leases - Whether commercial premises can be recovered by Landlord for

residential purposes - S.19(1) (e)(ii) of Rent Restriction Act 1963, Cap.479. E

Land law - Leases - Whether the availability of alternative accommodation is

immaterial upon an order for recovery of possession - S. 19(1)(e)(i) and (ii) and s.

19(2) of Rent Restriction Act, 1963 F

-Headnote

The appellant was a monthly tenant of premises owned by one Selemani Yasini in the

Municipality of Dodoma. The appellant ran an eating house business in the premises

since 1970. In 1981 the premises were sold and the right of occupancy was duly

transferred to the respondent who subsequently converted them into residential

premises. He gave three months' notice to the G appellant to vacate who refused to

do so. The respondent sued the appellant in the Resident Magistrate's Court, Dodoma

for eviction and was successful. The appellant appealed from that judgment to the

High Court, but was unsuccessful hence the present appeal. H

Held: (i) The judge was right in coming to the conclusion that a landlord may enter

into occupation of premises under section 19(1) (e) (ii) intending, as part of his

enjoyment thereof to make alterations with a view to change of user; I

(ii) on a proper construction of sections 19(1)(e)(i) and (ii) and

1984 TLR p123

MUSTAFA JA

A 19(2) we do not think that alternative accommodation is immaterial if an order for

possession is made.

Case Information

Appeal dismissed.

B No case referred to.

S. Elmaamry, for the appellant

[zJDz]Judgment

C Mustafa, J.A.: delivered the following judgment of the court: The appellant was a

monthly tenant of premises on Plot 2, Block A, Mwangaza Avenue, in the

Municipality of Dodoma. The premises were owned by one Selemani Yasin. The

appellant ran an eating house business in the premises, since 1970. In February 1981

Yasin sold the premises to the respondent Bhanji and the right of D occupancy was

duly transferred to and registered in the name of the respondent. The respondent

knew of the tenancy in favour of the appellant.

The respondent had purchased the premises intending to use them for personal

occupation, and E proceeded to take steps to obtain, and eventually did obtain,

permission to convert them into residential premises. He gave three months' notice

to the appellant to vacate. The appellant refused to do so.

In July 1981 the respondent sued the appellant in the Resident Magistrate's Court,

Dodoma, for F eviction and was successful. The appellant appealed from that

judgment to the High Court, but was unsuccessful; and he is now appealing to this

Court.

It is common ground that the appellant became a statutory tenant after the expiration

of the notice to quit served on him. The appellant could only be evicted under the

provisions of the rent Restriction G Act, 1963, Cap. 479.

Briefly, the Resident Magistrate found that the respondent genuinely required the

premises for his own occupation, and was intending to change the user of the

premises from business to residential H purposes. He also found that the appellant

had interests in two other eating houses in Dodoma, and he thought that the

appellant could "amalgamate" his eating house business in the suit premises with

those two other eating houses. It would seem that he was of the view that could

constitute reasonable alternative accommodation. He concluded that it was

reasonable to grant an I order for possession in terms of section 19(1)(e)(ii) of the

Rent Restriction Act.

1984 TLR p124

MUSTAFA JA

On first appeal the judge (Lugakingira, J.) upheld the Resident Magistrate's decision.

He dealt with A the two substantial grounds of appeal before him. They were:

(a) that the magistrate had erred in holding there was available reasonable

alternative accommodation; B

(b) that the magistrate erred in holding that the respondent reasonably

required the premises for residential purposes when the suit premises were for

commercial purposes. C

The judge found as regards (b) above that there was nothing which restricts a

landlord to use commercial premises only for commercial purposes upon regaining

possession, and that "there is nothing unusual about commercial premises being

converted into residential premises provided the necessary consents are obtained".

He was satisfied that the respondent reasonably required the D premises.

As regards (a) above concerning the availability of reasonably equivalent alternative

accommodation he held, on his reading of the provisions of section 19(2) and

19(1)(e)(ii) of the Rent E Restriction Act, on the issue of "reasonableness" and

"hardship", that a court may order recovery of possession whether alternative

accommodation is or is not immediately available.

In arguing the appeal before us Mr. Elmaamry for the appellant relied on two main

grounds: F

1. that the judge erred in holding that the suit premises which are

admittedly commercial were reasonably required by the landlord when he requires

the same for residential purposes;

2. that the judge erred in holding that in ordering recovery of possession

it is immaterial whether G alternative accommodation is available or not.

We will have to look at the sections of the Rent Restriction Act referred to: H

19. - (1) No order or judgment for recovery of possession of any premises to

which this Act applies, or for the ejectment of a tenant therefrom, shall be made or

given unless -

(a) ...

(b) ...

(d)... I

1984 TLR p125

MUSTAFA JA

A (e) (i)in the case of a dwelling house, it is reasonably required by the landlord

for occupation as a residence for himself or for his wife or children, or for any person

bona fide residing, or to reside with him, or for B some person in his whole time

employment or in the whole time employment of some tenant from him or for the

occupation of the person who is entitled to the enjoyment of such dwelling house

under a will or settlement and (except as otherwise provided by this section) the court

is satisfied that alternative accommodation, reasonably equivalent, is available or will

be available at the time that the order takes effect, C or that the tenant has built or

owns a dwelling house suitable for his own accommodation which is available to him

or would be so available but for his own act in disposing of the same, or

D (ii) in the case of commercial premises, they are reasonably required by the

landlord and (except as otherwise provided by this section) the court is satisfied that

alternative accommodation, reasonably equivalent, is available or will be available at

the time that the order takes effect or that the tenant has built or E owns

commercial premises suitable for his own accommodation which are available to him

or would be so available but for his own act in disposing of the same;

F Provided that if within three months next after the date upon which the landlord

obtains under the provisions of this paragraph vacant possession of such dwelling

house or commercial premises he does not effectively occupy the same he shall give

to the tenant who under the provisions of this paragraph was required to give up

possession of such house or premises the first option to lease G and take possession of

the said house or premises. If any landlord fails to give such possession he shall be

guilty of an offence and shall be liable on conviction to a fine not exceeding two

thousand shillings or to a term of imprisonment not exceeding six months or to both

such fine and such imprisonment;

H 19. - (2) In any case arising under subsection (1), no order for the recovery of

possession of premises shall be made unless the court is satisfied by or on behalf of the

landlord that having regard to all the circumstances I of the case it is reasonable to

make such an order and, where the order is sought on any of the grounds specified in

paragraphs (c), (e), (h) and (l), that

1984 TLR p126

MUSTAFA JA

unless such an order is made great hardship will be caused to the landlord. A

It will be seen in section 19(1)(e)(i) that reference is made to a dwelling house

reasonably required by the landlord for occupation as a residence etc.; whereas in

section 19(1)(e)(ii) that reference is made B to commercial premises which are

reasonably required by the landlord, without restriction as to use. For the reasons

which the judge gave we think that he was right in coming to the conclusion that C

a landlord may enter into occupation of premises under (section 19(1)(e)(ii)

intending, as part of his enjoyment thereof to make alternations to the existing

buildings or put up a wholly new building which he then proceeds to occupy. His

occupation would be no less effective if it involved a change of user ... D

We reject this ground of appeal.

As regards the other ground of appeal, we think that it has merit. On this point we

think that the judge erred. On a proper construction of sections 19(1)(e)(i) and (ii)

and 19(2), we do not think that E alternative accommodation is immaterial if an

order for possession is made. We think that no order for recovery should be made in

this case unless-

(a) the premises were reasonably required by the landlord and F

(b) the court is satisfied that reasonable alternative occupation is or will be

available (in accordance with section 19(1)(e)(ii)

(c) and the court is satisfied by or on behalf of the landlord that having

regard to all the circumstances of the case it is reasonable to make the order and G

(d) that unless such an order is made great hardship will be caused to the

landlord (in accordance with section 19(2)).

Indeed in our view the provisions of section 19(2) add a further burden to a landlord's

recovery of H possession; we cannot agree with the judge that the provisions of

section 19(2) obviate the need of finding alternative accommodation in this case.

That is not strange, as rent restriction legislation is normally designed to protect

tenants.

The question we have to decide is whether there was alternative accommodation

here. Both the I courts below have held that the

1984 TLR p127

A premises were reasonably required by the landlord, that in all the circumstances it

was reasonable to make the order, and that great hardship would be caused to the

landlord unless such an order was made. We accept those concurrent findings.

B The trial magistrate had in effect held that the appellant had reasonable alternative

accommodation in his other two eating house premises. The question is whether he

was right in doing so.

We think that each case has to be decided on its own facts, and the alternative

accommodation issue is basically a factual issue. Here the trial magistrate had viewed

the suit premises, and he C concluded that the appellant could "amalgamate" his

eating house business in the suit premises with the other eating house premises,

Sabasaba and Arusha Hotels, in which the appellant has interests and shares and

which he manages. That would, in the trial magistrate's words, accord D "within the

spirit of socialism". The appellant is a resident of Dodoma for many years, whereas

the respondent is a new-comer and in desperate need of accommodation. The

business at the suit premises was closed at the time of the trial, and had been so closed

for the previous 6 or 7 months.

The trial magistrate considered all these factors and concluded that the appellant had

reasonable E alternative accommodation. There were some irrelevant factors taken

into account by the trial magistrate, but there, nevertheless, was material for him to

have come to his conclusion. In the peculiar circumstances of this case, we do not

think we should interfere with that finding.

F In the result the appeal fails, and we dismiss it with costs.

Appeal dismissed.

1984 TLR p127

G