Herkin Bulders Ltd vs Mariam Peter Kalekezi (Civil Appeal 24 of 1998) [1998] TZHC 2019 (1 December 1998)

IN T H E H IG H C O U R T OF TA N Z A N IA (DSM DISTR IC T R EG ISTR Y ) AT P A R ES SALAA M C IV IL A PPEA L NO. 24 OF 1998 (An appeal from H ousing A ppeal N o.59 o f 1997 originating from A pplication No.92 o f 1997, D ’Salaam R egional H ousing Tribunal) H ERK IN BU IL D ER S L T D ...........A PPELLA N T VERSUS M ARIAM PE T E R K A L E K E Z I ...... R E SPO N D E N T JUDGEMENT KALEGEYAJ. The Appellants, M/S Herkins Builders Ltd, are before this court challenging the order o f the Housing Appeals Tribunal (HAT) which rectified the DSM Regional Housing Tribunal's decree. The background to the controversy is as follows. Sometime in 1994 the Appellant and Respondent executed a lease agreement under which the appellant was to occupy the R espondent's premises till year 2000 at a monthly rent o f shs 14,000/-. However, as the premises needed rehabilitation the Appellant undertook the task and indeed repaired the premises at a sum o f shs 401,460/=. The agreement further provided that half o f the monthly rent would be paid to Respondent while the other halt would be accumulated and retained by the Appellant until the whole sum paid for repair costs is recouped. It was further agreed that either party could terminate the agreement by giving a three m onth's notice. That settled, one of the company officials. P.M. Leonard, went into occupation o f the same. Marly 1997. having been allocated another suitable accommodation by the Mmployer (appellant), Leonard shifted from the leased premises. I he Company. Appellant, allocated the premises to another officer. The Respondent could not stomach this change. She refused the change and instead locked up the premises. After various heated written correspondences between the appellant and Respondent, one ot such correspondents being a three months notice dated 13 3 97 issued by the latter, the toriner

3 The H o n o u ra b le m em b ers u n a n im o u sly o p in ed th a t the a p p lic a n t sh o u ld give vacant p o ssessio n . The resp o n d en t on her p a r t sh o u ld be co n d em n ed to p a y the balance o f m o n ey i.e. sh s 2 3 3 ,4 6 0 /-. Their o p in io n is b a sed on the releva n t term o f ten a n cy a greem ent a n d on the evidence available. I j o in h a n d s w ith them. A n d I w o u ld a d d even the a p p lica n t are n o t o p p o sed to that p o sitio n . The evidence sp ea ks f o r itself. I w o u ld how ever fu r th e r a d d that the resp o n d en t s h o u ld also p a y f o r the three m o n th s notice at a rate o f S h s 14,000 = p e r month. T hat m ea n s as an a tten d a n t consequence, there is no p o in t o f refu n d in g or c o m p en sa tin g the a p p lica n t the costs o f a cco m m o d a tin g their em p lo yee in a n o th er prem ises. That said, accordingly, ju d g m en t is en tered to the exten t sh o w n above i.e. the a p p licant to vacate the suit prem ises, the resp o n d en t to p a y a b alance o f shs 2 3 3 ,4 6 0 /- to the a p p lica n t that being rent p a id in advance, the resp o n d en t is a lso co n d e m n e d to p a y f o r three m o n th s notice at a ra te o f S h s 14,000 / = p e r m onth, a n d la stly as usual she is c o n d e m n e d to p a y costs o f this application. ” Clause 7 o f the lease agreement relied upon by the learned Vice-Chairman o! the Regional Tribunal provided as follows: " the la n d lo rd sh a ll g ive a notice of three (3) m onths in advance in case o f any intention to term inate agreem ent, w hereby the tenant .shall sta y tor that period, w ithout p a yin g any rent to the la n d lo rd before vacating the house. " Not all o f the above decision amused Respondent. She did not accept the verdict on costs. She sought to challenge the order on this in the Housing Appeals Tribunal (HAT) as follows:-

4 " T he A p p e lla n t a b o ve n a m ed b e in g a g g rie v e d b y the o rd er o f the R eg io n a l H o u sin g T ribunal in the a bove n a m e d a p p lica tio n a p p e a ls to this co u rt on the fo llo w in g ground: T H A T the H onourable C h a irm a n o f the R eg io n a l H o u sin g T ribunal grossly e rred both in fa c ts a n d law to c o n d e m n the A p p ella n t to p a y costs o f the application. W H E R E F O R E the a p p ella n t p ra y s that the R eg io n a l H o u sin g T ribunal o rder be re ve rse d in fa v o u r o f the A p pellant. ” Upon receipt o f the record and memo o f appeal the HAT proceeded to give an order whose opening statement runs as under, “ O rder: at this stage o f a d m issio n o r otherw ise o f the im p en d in g a p p ea l w hich o rig in a tes fr o m D a r es S a la a m R eg io n a l H o u sin g T ribunal a p p lica tio n No. 92 o j 1997, tw o th in g s are g o in g to he d e lib e ra te d on. But before d o in g so let m e g ive a sh o rt b a ckg ro u n d o f the case. " Then, the Chairman o f the MAT proceeded to dispose ot the appeal forthwith and ordered: - “ U nder rule 43 o f the H A T (appeals) Rules, 1987 the d ecree o f the tria l T ribunal is re ctified to rea d that: -

1. . Is the a p p lica tio n ought to have been d ism isse d w ith co sts to be borne by the then a p p lica n t , it is so ordered.
2. The o rd er that the a p p lica n t h a d to vacate the suit p rem ises on Plot So. 388 Block 44 K ijito n ya m a a rea in K ino n d o n i distric t D ar es Salaam City, is to rem ain undisturbed.
3. 1’ hat the resp o n d en t h a d to p a y a balance o f sh s 233,461) ■ - to the ap p lica n t is set aside a n d in stea d the resp o n d en t w ill p a y to the ap p lica n t a sum o f shs 191,460 being the balance from the co n stru ctio n costs.
4. That the resp o n d en t w as to p a y the a p p lica n t shs 42.000 b ein g three m o n th s' notice at a rate o f sh s 14,000 ; m o n th ly is set aside. "

5 This time the weight shifted unto the other foot: the Appellant could not accept the almost u-tum verdict contained in the HAT's decision hence the appeal to this court praying; ” the o rd er o f the H o u sin g A p p ea ls T ribunal be q u a sh e d a n d set-a sid e a n d that o f the R eg io n a l H o u sin g T rib u n a l be r e in s ta te d ” on the following grounds:

1. That the H onourable C hairm an o f the H o u sin g A p p e a ls T ribunal erred both in law a n d fa ct by re ctify in g the decree o f the tria l tribunal.
2. That the H onourable C hairm an o f the H o u sin g ap p ea ls T ribunal erre d both in law a n d fa c t by o rd erin g that the A p p ella n t herein bear the costs.
3. That the H onourable C hairm an o f the H o u sin g T ribunal erre d in fa c t by o rd erin g that the R espondent herein has to re fu n d the a p p ella n t h erein a sum o f 1 .shs 1 9 1 ,4 6 0 /- on ly b ein g the balance from the co n stru ctio n costs.
4. That the H onourable C ha irm a n o f the H o u sin g A p p ea ls T ribunal erre d both in law a n d in fa c t by se ttin g aside p a ym en t o f T.shs 42,000/= b y the R espondent h erein to the A p p ella n t herein f o r the 3 m o n th s notice.
5. That the H onourable C hairm an o f the H o u sin g A p p ea ls T ribunal erre d in law by taking into co n sid era tio n m atters he ought not to have taken. 6 That the H o n ourable C hairm an o f the H o u sin g A p p ea ls Tribunal erre d in law by not ta kin g into co n sid era tio n m atters he ought to have taken Dr. Mvungi appeared for the Appellant while Mr. kifunda did the same for Respondent. Dr. Mvungi illustrating on the grounds o f appeal insisted that the learned Chairman of the HAT erred in deciding on matters which were not part o f the memorandum o f appeal, on which they were given no opportunity to argue and that costs should have been awarded in favour ot his client. On the other hand Mr. Kitunda argued that the HAT decision was very sound because the Appellant s prayers having been

6 refused costs had to follow the event: that the one who lost and who is the Appellant was properly adjudged to pay. As regards the amount to be refunded he argued that the contract com m enced on 14/8/94 and ended in February when A ppellant’s o fh cer vacated the premises; that therefore 30 months o f occupation multiplied by 7 0 0 0 /- a month = 210,000/= which sum if deducted from 401,460/= the balance is 191,460/= and that the calculations arrived at by the trial tribunal were made through an oversight. N ow for the analysis. I have detailed the background just for clarity otherwise the centre o f my decision is very fine indeed, and this is that the learned C hairm an o f the H A T grossly misapplied Rule 43 o f TH E HOUSING APPEALS TR IB U N A L (Appeals) RULES, 1987 (GN 249 o f 1990) made under S.41 (4) o f the REN T R E S 1 R IC 1 IO N ACT, 1984 (Act No. 17 o f 1984). With respect, I have failed to understand how the learned Chairm an termed the matter which was before him. As earlier on indicated it was clearly an appeal. It was not a revision initiated by the HAT itsell. Whatever may have been the case I see no justification o f acting the way the learned Chairman did. Rule 43 under which he purportedly acted falls under PART IV o f the Rules and which is entitled “Judgem ent on Appeal." Rules 40 - 43 fall under this part. Rule 40 - 42 provide for “Judgement, when and where pronounced;” what should be contained therein and what it may direct. Then com es Rule 43 whose marginal notes clearly show that it is a continuation ot what is to be done in appeals. The marginal note thereto reads “ PO W ER OI- APPEALS TRIBUNAL IN A PPE A LS.” The said Rule provides, “ 43. The A p p ea ls Tribunal sh a ll have p o w e r to p a ss a n y ilecree a n d m ake a n y o rd er w hich ought to have b een p a s s e d or m ade a n d to p a ss or m ake such fu r th e r or o th er d ecree or order as the case m ay require, a n d this p o w e r m a y be ex erc ise d by the a p p ea ls Tribunal n o tw ith sta n d in g that the a p p ea l is as to p a rt on ly of the ilecree a n d m a y be e x e rc ise d in favour o f all or a n y o f the re sp o n d en ts or pa rlies, a lth o u g h such resp o n d en ts or p a rlies m a y not have file d a n y a p p ea l or o b jectio n " The w ording o f the quoted rule gives wide powers to the HA1 in giving a decision on appeal. It does not give power to the HA I to simply decide on the appeal without hearing the parties. I he last 13 words simply reter to a situation where some ol

7 the parties do not appeal or object: in its verdict the HAT may give a decision which touches such parties as well. The opening statement o f the learned Chairman’s order, " a t this sta g e o f a d m issio n or o th erw ise o f the im p en d in g a p p ea l... ” , the analysis and orders subsequently made are not backed up by the law. It would have been different if he had summarily rejected the Appeal - Rule 24 ol the Rules would have come to his aid but not otherwise. One fails to see the basis which prompted the learned Chairman to pronounce order/judgement without affording chance to the parties to be heard. That apart, although the HAT, in giving decision is not necessarily bound by the grounds contained in the memorandum o f Appeal if it decides on other grounds the opposite party should be given chance to contest them. In here, the appeal before the HA I concerned only costs but the order made by the HAT touched a lot o f other matters which neither party was given chance to contest or support. Rule 4 provides: " 4. A n a p p ella n t sh a ll not. except by leave o f the a p p ea ls Tribunal, he h e a rd in su p p o rt o f a ny g r o u n d o f ob jectio n not set fo rth in the m em orandum o f a p p e a l but the a p p ea ls T rib u n a l , in d ecid in g the appeal, sh a ll not he c o n fin e d to the g ro u n d s o f ob jectio n set fo r th in the m em o ra n d u m o f a p p ea l o r ta ken b y leave o f the a p p ea ls T ribunal under this rule. P ro v id e d that the a p p ea ls T rib u n a l sh a ll not rest its d ecisio n on a ny o ther g ro u n d unless the p a rty who m ay be a ffe c te d th ereb y has h a d su fficien t o p p o rtu n ity o f c o n testin g the case o n that ground. ” Dr. M vungi's quarrel on this is fully justified. f o r reasons discussed above the 11A 1 s decision cannot be left to stand. It is accordingly set aside. The above said, next is what should this court do? The Respondent's appeal to the HAT concerned only costs. She didn't quarrel with other orders. It is only- before this court that she revisited the balance on the rehabilitation costs and came up with shs 191.460 = instead o f 233.460 = and also challenged the shs 42.000 = as a three m onth's notice. Should I take these other issues as well or should I limit myselt to the question of costs which the Respondent had first fronted in her appeal to the HA I ? Alter

8 due consideration I am convinced that regard being had to the powers conferred o n this court under s.43 o f the Rent Restriction Act (N o.17/84) I am seazed with powers to decide on all issues as raised by the parties. I will start with the disputed shs 42.000/= for the three months notice. In arriving at this amount the trial Tribunal considered that the present appellant had not breached the tenancy contract and had incurred costs for the upkeep o f the otticer who was refused occupation o f the disputed premises. The tribunal then observed that that sum (shs 42,000/=) sufficed to cover the other costs incurred. The tenancy agreement provided that the tenant would stay three months free o f rent in the event the Respondent decided to terminate the agreement. Indeed, only staving in the premises three months free o f rent 1 . . . . was a term agreed upon and not payment any money. But, in this situation, the Respondent made it impossible for the Appellant to get the benefit o f that clause by refusing entry o f another officer o f the Appellant and closing up the premises. Considering all these factors, 1 am satisfied that the trial Tribunal's decision in ordering Respondent to pay Appellant an amount equivalent to three m onths’ notice was sound and should not be disturbed. It is confirmed accordingly. Next is the amount still recoverable out o f shs 401,460/= paid by the appellant on rehabilitation. The appellant went into occupation o f the premises on 14/8/94 and was locked out in February 1997: that is approximately 30 months. This period entitled Respondent to an accumulated rent o f shs 420,000/= (14,000/= X 30). As per their arrangement half that sum was paid to Respondent (7000/= X 30 months) and h alf was retained in order to defray the shs 401.460/= used on rehabilitation. In order to get what is now due to the appellant we have to deduct shs 210.000/= from 401,460/= = shs 19! .460/=. Indeed, the sum o f shs 233.460 r assessed by the trial Tribunal was arrived at inadvertently. Lastly, is the question o f costs. The trial Tribunal did not give reasons for awarding costs against Respondent but one can easily grasp the hidden basis. The trial Tribunal found, and rightly so. that the appellant was not in breach o f any tenancy terms and conditions. The Respondent was ordered to refund the sum still outstanding and so is shs 42.000 = for the three months notice. In actual fact Appellant substantially succeeded. Added to this is the obvious that Respondent decided to exercise his right

9 under clause 7 o f the agreement crudely; closing up the premises. In reality, the causant o f this controversy is the Respondent. In my considered view the trial Tribunal soundly awarded costs to the appellant, which award I, hereby uphold. In conclusion therefore the appeal succeeds to the extent indicated - appellant to be paid, shs 191,460/= being balance o f unrecouped sum used on rehabilitation o f the disputed premises; shs 42.000 - being equivalent o f rent for three months for which they would have remained in occupation o f the disputed premises after the notice and costs before both Tribunals and this court. L.B.Kalegeya, JUDGE