Omary Salum vs Hussein M. Sameja (Civil Appeal No. 21 of 1988) [1990] TZHC 121 (23 November 1990)

/ --~ ~ f-y;"..-f-6 IN THE HIGH CCURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 21 CF 19GG OMMtY SALT.HvI •••••••••• , •• AF .?:8LLANT versus HUSSEIN IVI. SAtVi.BJ A ••••••• JiBSl;OlDENT JU'DGMENT MASANCHE,J1 This appeal concerns tenancy of a house that belongs to the appellant "'omary Salum. It is also a second ai2pea~ The resi)ondent,'"Hussein M.Sa-meja, was the tenaJt~ he, having' derived the tittle from his father who is away an U.S.A. either on treatment or !or good. The case originated from the Dar es Salaam Regional ousing Tribunal There, the p::-esent ap}'ellant, who was the a1>.,,ilicant then, ap,i?lied to i,he ousing Trib 1 1na.l for vacant possession of the suit premises on mainly ·three gr::iund,3, First: ne argued in the Tribunal that he wanted the house so that he ienovate it. He informed the Tribunal that thJ h0use was in· a bad shape and there fore need repairs. His secJnd reason for a prayer fr vacant possession was that the actual tenant, the one he had entered into ag7sernent, had abandoned the suit premises; in that he had migrated t U.S.A. since 1972 and ·was not likely to home back. But, he concedet that ic responJent,_the son of his actual tenant had stepped into the shoes of his father in the sense that the respondent was paying~ and he, the ;_;.t'licant, w""s accepting this rent for all those 16 years. / Bis third ground for seeking vacant pseasi0n was that after the renovation, he want the house far his own uso. Tnese three gr;Jun-:ls wera thrashod by tb?. i:-businc Tribunc.l, and in the end the Trfbunal ruled. that the resj,,ondent c ,ul::l n0t be evictecl. The Chairman reasonod, I quote him: ''We are not satisfied that tho a)plicant wants vacant PC?Ssesseio1: ::>£ the suit•i.·Juse so that he couJ.·.'.. renovatG itG For it has been stated that the house is in aod condition. We accordingly reject this as being grund for repsses of the suit home, Otherwise) ordinary revuir can be carriel 0ut while the respodent is inside. \Vi th regard t·.) tho -::thor grnun-1. the respon:lent, who is the tenant 9 having abandoned suit h0use, we find that since the son of the rospcmlent 9 who is part ·:.'!f the family of the respondent is in the suit h0se, it cannot ba sai that the house is / abandoned. In any case, tho a:;Jplicant has all along been recei vinl rent fr,Jra the res~; .:-n ::lent 1 s s )n {:n<:: he had not issued any

2 •:it Under the circumstances we als0 reject this reason, as'being ground for rc1ossessin. The third reason put forward by the applicant as being grouni for repossession is that the applican1 wants o occupy the suit house himself and family. This eason cuuld be valid if the applicant had obtained alternative nccomodation £r the family of the responent. There is no evidence that the applicant has obtained alternative accommoda• tion for the responJent 1 s fawilY-, This being the case therefore, we also reject this reas.on as being gr0und f::ir repcssession of the suit house. Finally, therefore, this application is dismissed.,~~! h · "i::osts." ,-. • •-..,r• That is huv, the application by Omary Salum got iiemissed. .., Omarjf Salum got aggrieved of that djcision of thG Jar es Slaam ousing Tibunal and appealed lO the Housing Appeal ·Eribunal, here, again ~~e appeal / ; ·; was dismised,. If'dne reads the record, basically, the arguement -Jf the_ appltan t, now 'tf:t;'pU:gh his advocate, Mlr.Muccadam, is that the s::m har.: n:Jq)ffH/,-~~cli• # alsu argues that the same s,Jn is a trespasser, an'l an._ ~he;rei'ore not be .PJ.'4t-:1eoted by the Rent Restriction. ii.ct. The respon:lent: contended in the two ,tribunals below, that it is unimaginable that f0r 1C Jears ~he applicant could receive rent from a trespasser. The fact that the applicant/appellant received rent from the respondent, f')r all those y_ears, wJul:i indicate that the respondent had been accepted as a tenant. Mr. Muscu:l.am of course ole:rerly counterei that arguement by saying that the appellant had not resorted to law because he was not sure if the real tenant (the old man now in U.S.A.) would return. But than, Mr. I\IIuccadam for:;et-s that in law the arnspondent is

• , perfectly entitled to raise the defence uf_laches as against the applicant who has not been resonably diligen in seeking ralef. Sixteen years of in actiJn by the apellant in s~~inc the respndent on the issue of whether or not the resondent is a tnant or not is far tJo long to be if ariy assistance t0 the appellant._ I a__:.T.ee with Mr ivlwakasungula that the c,)nduct of the appellant is strange. The a;Ypellant must be es topped from denying that the respondent in his tenant I agre~ with the Housing Appeal Tribunal that the appellent 1 s appeal had nc subtance. The appeal is dismissed with costs. DAR ES S.11.AAM 23rd November, 1990 Mr. Muccadam f0r appellant Mr. Muccadam/Mwckasungula for the_Resp0ndent.· J.E. C. MASANCHE ' JU:'lGE I CERT IF t TH,.T IT IS A THU~ COiJY FROlil TH.ti ul-i.IGIH.iiL. l._. .. -.:.;. .. ~, il.CTnm JE.?UPY" TIEGISTTUiTI ;)L-:J- rJS s '.1Lf\ ,\T'.I