< '.A. AMRATLAL DAMODAR AND . ANOTHER v. A.H .
•JARIWALLA 31
t\MRATLAL DAMODAR MALTASER AND ANOTHER T/A ZANZIBAR SILK STORES v. A.H.
JARIWALLA T/A ZANZIBAR HOTEL
(CouRT OF .APPEAL OF TANZANIA AT DAR ·ES SALAAM (Mustafa, Mwakasendo and Makame, JJJ.A.)J
CIVIL APPEAL 5 OF 1979
t i vii Practice and Procedure-Delay in the trial of a suit - Observations.
thll l"ractice and Procedure - Concurrent findings of facts by two courts - What appeal court to do - Rule
or practice.
i ,1111dlor~ and Tenant - Sub-tenant partitioning and subletting portion of premises without consent of tenant
- Whether lawful sub-tenancy created.
U.inl lkstriction - Unlawful sub-tenancy - Whether sub-tenant protected - Rent Restriction Act, 1962.
it.-11( Restriction - Order for vacant possession - Whether trespasser protected - Rent Restriction Act
I962, s. 19(2).
Ai't111isiCion of Buildings - Registrar stepping into the shoes.of the owner - Whether trespasser sub-tenants
1olly be accepted as lawful tenants by Registrar.
I,i,ndlord and Tenant - Notice to quit - Rent accepted after notice - Whether amounts to waiver.
Ttai11tkr - Meaning - Effect. •
This case dragged for many years before its final adjudication. There was no good cause for the delay
'file appellants were sub-tenants to whom the tenant, unauthorized by the owner partitioned a restaurant
,wd without the consent of the owner sublet a portion of it. The respondent owner of the premises filed a .
l 11i 1 111 a Resident Magistrate's Court claiming vacant possession of the ground floor and mesneprofits. Judg
!! i1•111 was given in his favour. On appeal to the High Court the appeallants' appeal was dismissed
,\imt'ivwd by the decisions of both lower courts the appeallants further appealed to the Court of Appeal of
I 11111.unia.
In the Court of Appeal of Tanzania counsel for the appeallants attacked the decision of the
1lll!h (.,,'ourt on . the following main grounds. First, that the lower courts erred in their assessment
,1 11d evaluation of facts. S~ondly, that the appellants were lawful sub- tenantsofthe respondent ; in the
ollM11,1livc that they were protected bys. 19(6) of the Rent Restriction Act, 1962. Thirdly, that the High
i 11111l judge erred in law in treating the appellants as trespassers and that the provisions of s.19(2) of the
32 TANZANIA LAW REPORTS £1980] TLR 1
l
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Rent Restriction Act did not apply to avail them. Fourthly, that the High Court judge erred in law by not
taking into account that the Registrar of Buildings had accepted the appellants as tenants, received rent from
them, and that the respondent acquiesced to this. Fifthly, counsel for appellants argued that the
first appellate judge was wrong in law in confirming the order of costs on mesne-profits since the appellants
had already tendered a cheque as payment for rent due to the respondent and therefore should have been
exonerated from liability to pay.
Observations: (i) a court of trial has a duty not only to follow the rules of procedure but also to exercise
some firm control over the proceedings before it and, if need be, to impose and enforce a tiip.etable for
litigatjon; •
(ii) however agreeable parties might be to adjournments, there comes a time when the court of trial
is forced to say that in the interest of justice it cannot extend to the parties any more indulgences to,
adjourn the trial of a suit.
Held : (i) where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule
of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of
evidence, a miscarriage of justice or violation of some principle of law or procedure;
(ii) the two appellants were not lawful sub-tenants of the respondent because both the partitioning
and subsequent sub-letting of the premises were without the consent of the respondent;
(iii) a person who enters upon the premises of another without his consent, express or implied, is a
trespasser;
(iv) a trespasser cannot claim the benefits flowing from the operation of the provisions of s.19(2) of
the Rent Restriction Act, 1962;
(v) since there is no privity of contract between the owner of the premises and a sub-tenant,the
Registrar of Buildings by stepping into the shoes of the owner does not change the relationship between the
lessee and sublessee;
(vi) when a landlord has brought a tenancy to an end by means of a notice to quit, a payment of rent
after that date will only operate in favour of the tenant if it can be shown that the parties intend that there
should be a new tenancy;
(vii) if a debtor has made a tender and continues ready to pay, he is exonerated from liability for the
.non-payment, but the debt is not discharged.
Appeal dismissed.
Cases referred to:
1) Allen v. Sir Alfred McAlpine and Sons Ltd. [1968] 2 Q.B. 229.
(2) Towli v. Fourth River Property Co. Ltd. (The Times Law Report, November 23, 1976).
(3) Michaelides v. Cormican Properties Ltd. (The Times Law Report, November 23, 1976).
(4) Central Asbestos Co. Ltd. v. Dodd [1972] 2 All E. R. I I 53.
(5) Onorato Dolla Santa and Others v. Peera [1970] H.C.D. No. 22.
(6) Gregory Mtafya v. Zainabu Lyimo [1976] L.R.T. No. 3
(7) Addie v. Dumbreck [1929] A.C. 358.
(8) Habib Yusufali v. Abdulasattar Riaziddin [1972] L.R.T. n. 64.
(9) Clark v. Grant and Another [1950] 1 K.B. 104.
(10) Carter v. Green [1950] 2 K.B. 76.
M.A. Lakha for the appellants.
M.J. Raithatha for the respondent.
March 10,1980. MWAKASENDO, J.A.: Manilal Mulji and Company Limited was until 1971 the
owner of a three-storey building known as Zanzibar Hotel situated along Zanaki Street on Plot No. 917 /24
in Dares Salaam. On 24th February, 1964, Manilal Mulji and Company Limited let the whole of
the building to A.H. Jariwalla, the present respondent and original plaintiff in the Resident Magistrate's
Court. To obviate confusion I shall hereafter refer to the parties involved in this appeal either by their
personal names or by the description that they bear in the Resident Magistrate's Court record. Jariwalla
with the consent of Manilal Mulji and Company Limited sublet the ground floor of the demised _premis-es,
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C.A. AMRATLAL DAMODAR AND ANOTHER v. A.H. JARIWALLA 33
ooccfudiµg the office room and stores, to one Demello, retaining pdssession of the first, second and third:
floors for his hotel business. In terms of the underlease Exhibit PI, Demello agreed to us~_and occupy the
front and rear parts of the ground floor as a restaurant and bar respectively. And on 21st February, 1967,'
Demello in turn after obtaining the permission of Jaliwalla sublet the restaurant part of the ground floor to
Ebrahim Yusufali Ebrahimji, the first defendant, for a term of one year expiring on 31st August, 1967, but
11ubsequently extended to 31st August, 1968-See Exhibit P2. . . .
On expiry of the term of the underlease Ebrahimji without the consent of the plamtdf and m breach of
tho covenants contained in the underlease handed the portion of the premises he was occupying to Murtaza
A. Darugar, the second defendant and Mohasin Salehbhai, the third d.efendant. _Howe~er, foflowing up?n
this unlawful entry on the restaurant premises Darugar and Salehbha1 pleaded with Janwalla to regularise
thoir tenancy. Jariwalla did so by allowing them to occupy and use the restaurant premises for a period of
ono year up to the end of August 1969 on condition that they would adhere to the existing covel?-ants
oontained in the lease and underlease. Jariwalla's testimony about this is at p.95 of the record of procee-
dings. It reads:
After this notice the defendants did not vacate but the second and third defendants came to me
and admitted that they had entered the premises illegally and they requested me to allow them to
use the premises on regular payment of rent of Shs. 500/- per month and they would adhere to the
covenants. I gave them extension of time up to August 1969. I accepted them (the second and
third defendants) as my t~nants up to August 1969.
This statement of what took place between Jariwalta, Darugar and Salehbhai was not impeached at
tho trial by either Darugar or Salehbhai. Be that as it may, in March 1969 Darugar and Salehbhai'
tt(lproached Jariwalla requesting to be allowed to partition and sublet a portion of the restaurant to one
Alibhai A. Gimary who, as it subsequently turned out, was acting for Amratlal Damodar Maisatar and
Musaffer Alibhai Girnary, the present appellants and fifth and sixth defendants at the trial respectively.
Jttriwalla refused his consent· to the proposed partition and subletting. However, despite this refusal
D,trugar and Salebhai went ahead with the proposed pa1tition and subletting of part of the restaurant (one-
lhird of the ground floor) to the present appellants who then proceeded to set up a shop under the nam~
Md style of 'Zanzibar Silk store'. Jariwalla knew of this unauthorised partitioning and subletting sometime
hofore filing a suit in May 1969. In his suit Jariwalla claimed vacant possession of the whole of the ground
0oor and mesne profits against seven defendants, namely, in the order they appear in the plaint, Ebrahim
Yt1sufali Ebrahimji, Murtazar A. Darugar, Mohasin salehbhai, Alibhai A. Girnary, Amratlal Damodar
Maisatar, Musaffer Alibhai Girnary and The Registrar of Buildings.
Although the plaint in this case was filed in the Resident Magistrate's Court in May 1969 I note with
aravc concern the dilatory nature of the interlocutory proceedings which did riot come to an end
until October, 1975, that is, a little over six years after the plaintiff had filed his plaint in court. I cannot
nco any good ground on the face of the record of proceedings to justify this deplorable state
illfairs. Indeed, what the record reveals is a complete lack of any concern for dispatch on the part of the
oourt as well as counsel for the parties. Time and again people have complained'at the law's delay and to
uuo Lord Denning's eloquent words: "counted it as a ·grievous wrong, hard to bear. Shakespeare ranks it
1(11tong the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage, hope."
Soo Allen v. Sir Alfred McAlpine and Sons Limited [1968] 2 Q.B. 229 at p. 245. It would appear to me plain
from the record of this case that the trial Resident Magistrate's Court was of the view that its role was limited
lo umpiring a 'game' between counsel of the various parties to the suit no matter how long it took to settle
the Ncorc between them. That is clearly not what a court oflaw should be or do. If the law is not to be an
11~•1, a court of trial has a duty not only to follow the rules of procedure but also to exercise some firm control
ovor the proceedings before it and, if need be, to impose and enforce a time table for litigation. This course
will of course not find favour with everyone but as Mr. Justice Templeman has said: "the argument against
Urn( course has always been that litigation was a game which litigants or their advisers were at liberty to play
,,1 1hcir own pace and that the only duty of a judge was to decide a proportion of those few cases which
i.urvivcd to the last round and then to hand down lofty judgments which enured for the benefit of posterity
unlit they were reversed by an appellate tribunal." That, as Mr. Justice Templeman was quick to observe;
ht nu erroneous view of the role of a court trying a civil case. See Towli v. Fourth River Property Co. Ltd.
ilml Michaelides v. Cormican Properties Limited, The Times Law Report November 23, 1976. The English
Cuurl of Appeal has repeatedly dealt with cases in which the suggestion that the parties can by mutual cordi-
,n.lily prolong the trial of actions by agreeing to adjournments in the interlocutory stage has b~en made but
34 TANZANIA LAW REPORTS [1980] TLR.
'ruled to be utterly misconceived. • All in all, it seems to me, quite clear that however agreeable parties might
be to adjournments, there comes a time when the court of trial is forced to say that in the interests of justice
it cannot extend to the parties any more indulgences to adjourn the trial of a suit. To end my protest at the
way this case has been handled in the Resident Magistrates court I should like to refer to a passage from
the judgment of Lord Simon of Glaisdale in Central Asbestors Co. Ltd. v. Dodd [1972] 2 All E.R. at p. 1153
where he deals with the question of expedition in civil litigation thus:
Litigation is the resolution of civil contention by methods preferable to violence. But that does not
mean that it is otherwise an inherently desirable activity. The rule oflaw is not to be equated with a!
reign oflitigiousness. Litigation involves a call on scarce resources, and it is apt to set up emotion.all
and social strains of its own; no one with experience of litigation would suppose that Miss Flite
was a purely fanciful creation. Hence the desirability of forensic dispatch. There can be few
circumstances in which contentions within a society ca'n be prolonged unresolved without risk to
the fabric of society. Moreover dilatory procedures may defeat the very purpose of the judicial
process, namely to vouch-safe justice, since if litigation is prolonged, not only is there waste of time
and money and moral energy, but circumstances may change in such a way that what would have
been at the outset a just conclusion is in the end no longer so. Finally, delay will make it more
difficult for the legal procedures themselves to vouch-safe a just conclusion-evidence may have
disappeared and recollections become increasingly unreliable. .Speedy rough justice will,therefore,
generally be better justice._that Ju.~tjce worn smooth and fragile ·with the passage of years.
~ow w revert to the trial of the Plaintiff's suit betore the Resictent Magistrate's Loun. The suit came
for hearing before the Principal Resident Magistrate on 28th November, 1975, and the issues on which the
learned trial Magistrate had to decide were:
(1) Whether the fourth defendant was rightly joined in the suit;
(2) Whether the partition of the restaurant and the setting up of the shop in a partition of it were
made with the full knowledge and consent of the plaintiff;
(3) Whether the plaintiff is entitled to vacant possession of the suit premises; and
(4) Whether the plaintiff is entitled to mesne profits.
The learned Principal Resident Magistrate in a considered judgment entered judgment against the fifth and
sixth defendants and ordered them to vacate and hand over to the plaintiff the premises of the shop known
as 'Zanzibar Silk Store' and pay mesne profits to him. The appellants appealed unsuccessfully to the High
Court hence this appeal before this Court. In their memorandum of appeal the appellants set out seven
grounds of complaint against the decision of the two courts below. Their grounds of complaint read as
follows:
I. The learned High Court judge erred in law and on the facts:
(.a) in accepting, as he did, the evidence of the respondent as truthful and in taking the view that
the evidence showed that Amratlal was not in the picture on the question of consent;
(b) in acting on the evidence of the second and third defendants to support the evidence 9f the
respondent and to reject the evidence of Amratlal;
(c) in regarding as strange that the question of partitioning the restaurant was made subject to the
consent ~f the second defendant and in taking the view that it had the effect of increasing the
rent accruing therefrom;
(d) in allowing himself to be influenced considerably by his finding that the suit for possession was
filed by the responde~t promptly;
(e) in being influenced by the fact that Amratlal.was not made a party to the suit initially;
(f) in failing to take into account the overwhelming evidence of the conduct of the appeallants
consistent with their entry with the consent cf the respondent;
(g) in failing to consider the various contradictions which are apparent in the respondent's case;
(h) in failing to consider the contradictions in the evidence of the respondent, second and third
defendants; I
{i) in failing to consider the conduct of the respondent which evinced his honesty. •
2. . The learned High Court judge erred in law in holding that the refusal of the respondent to grant '
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C.A. AMRATLAL DAMODAR AND ANOTHER v. A.H. JARIWALLA 35
consent ·was not unreasonable.
3. The learned High Court judge erred in law in holding,·as he diet, that s.19(6) of the Rent Restriction
Act did not accord any protection to the appellants.
4. The learned High Court judge c.rred in holding, as he did, that underietting to the appellants was
unlawful.
5. The learned High Court judge erred in law- .
(a) in.holding that the respondent did not waive the breach of the appellants (which is denied) 1;,y
acceptance of rent only because he continued with his suit, and ought on the evidence to hate
held the appellants were impliedly accepted as the tenants of,the respondent;
(b) in failing to take int(l account the fact that the Registrar of Buildib.gs had accepted the1
appellants as tenants and received rents from th~m: _
(cJ in failing to consider the conduct of the respoodent in his acquiesence of the Registrar of Buil-
dings treating the appellants as lawful tenants.
6. The leamed High Court judge erred in law in treating the appellants as trespassers and holding that:
the provisions of s.19(2) of the Rent Restriction Act had no application in the case of a trespasser.~
7. The learned High Court judge erred in law in confirming the order of costs on mesne profits.
Messrs Lakha and Raithatha learned counsel appeared before us on behalf of the appellants and respo-
ndent, respectively. To take the appellants' first ground of appeal - while I found Mr. Lakha's
long submissions on the various matters raised in this ground of complaint compellingly refreshing, I am
afraid to say that he totally failed to persuade me that the two courts below erred .as vigorously urged upoll'
us by him. In aey_ case, there appears to me to be no ground shown why this Court should interfere on
concurrent findings of facts by the two courts below. In mr,(espectful_,fiew, where, as in the instant case,
there are concurrent findings of facts by two courts, this Court should as a wise rule of practice follow the
long established· rule repeatedly laid down by the Court of Appeal for East Africa, that is, that an appellate
.court in such circumstances should not disturb concurrent findings of facts unless it is clearly shown that
there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principle of
law or procedure. As already indicated, the appellants in: this case have failed to show any ground at all to
jiistify this Court to interfere with the concurrent findings of fae:ts by the two courts below. In my view,
this ground of appeal therefore fails.
Grounds 2, 3, 4 and 6 are closely interrefa.ted and it is proper that they shoul_d be considered togiether.
Mr. Lakha throughout the progress of this case, from the Resident Magistrate's Court to this·.Court, h.as
consistently maintained the stand that the two appellants were at all material times the lawful tenants of the
second and third defendants and, through them, the lawful subtenants of~the plaintiff. Mr. La-kha has
forcefully canvassed this stand because according to his contention both th~ l)ai,titioning and subletting of
the suit premises were with the knowledge and consent ·of the plaintiff. I cari find no valid basis for this
claim. The leaq~.ed first appellate judge after an impeccably fair and thorough evaluation. of evidence
adduced at the trial came to the same conclusion as the learned trial Principal Resident Magistrate that the
two appellants were not lawful subtenants of the_ plaintiff because both the plrtitioning and subse_quent
subletting of the shop·premises known as 'Zanzib'.tt Silk Store' were without the knowled~ or cons£_nt of
the plaintiff and therefore in breach of the convl'H.'lants to which the secondtmd third defenctants·had willingly
agreed to adhere. I do not think on the evid(»lce on record, properly construed, tlte two .caurts below
CQ(J.ld have reach~d any -.different conclusion· in the case. But Mr. Lakha has a- second limb to his.
J?lai&.argument and this runs briefly thus: that even in the face of the two courts' irreproachab!e finding
thaf".tl;ie two appellants were not lawful subtenants of the plaintiff it was wrong for the appellate court and
tli~ Resident Macistrate's Court to hold that his clients were not entitled to the protection of the provisions
of the Rent R:esfr~tion Act, 1962. Although Mr. Lakha has referred us to an array of authorities as suppor-·
ting his,;main and seconda"ry argument, I am unable to see how any of the de~ided cases cited to us.can have
any h¥ring on the facts as found established in this case. Indeed a number of the authorities. cited to- us
affirm the legal position of the plaintiff. One of the authorities referred to by Mr. Lakha as supportingthe
stand taken by the two appellants is section 19(6) of the Rent Restriction Act, 1962, which provides:
An order against a tena~t for the recovery of possession of any premises or ejectment therefrom
•under the provisi<:>ns of this section shall not affect the right of any subtenant, to whom the premises
36 ·TANZANIA.LAW REPORTS [1980] TLR
or any part thereof have been lawfully sublet before proceedings for recovery of possession or
ejectment were commenced, to retain possession under the provisions of this section, or be in any
way operative against any such subtenant but such subtenant shall subject to the provisions of this
Act, be deemed to become the tenant of the landlord on the same terms as he would have held from
the tenant if the tenancy had continued.
The first appellate judge dealt w~th the question whether or not the provisions of sub-section (6) of $.19 of
the Rent Restriction Act, 1962, protected the two appellants from an order for vacant possession a1n.d his
answer is clearly in accordance with accepted authorities. This is what the learned first appellate judge·
said (p.186 of the proceedings):
It is at once apparent that the operative words of this subsectiort are, ' .... to whom the premises or
any part thereof have been lawfully sublet. ... It .seems that in order to seek protection under
this subsection it must be shown as a condition precedent that the premises in question were lawfully
sublet to the person seekip.g such protection.
The first appellate judge's view on this point is firmly supported by case law-see Onoratc(Della Santa and
Others Y. Peera [19701 H.C.D. n.22 p.23; and Gregory Mtafya v. Zainabu Lyimo, [1976] L.R. T.n.3. It is
clear from those two cases and the English cases considered there that a person who enters upon the premises
of another without that other person's consent, express or implied, is in unlawful occupation of the premises.
He cannot claim the rights that are due to lawful tenants and subtenants for he is a mere trespasser: I am
of course conscious of the fact that Mr. Lakha has througho~t vehemently protested at the use of the word
"trespassers" which has an accepted legal meaning and as defined by Viscount Dunedin in Addie v. Dumbreck
[1929] A.C. 358 at p.371 the trespasser is "he who goes on the land of another without invitation of any sort
and whose presence is either unknown to the proprietor or, if known, is practically objected to."
In view of the evidence on record I do not think it can be seriously argued that the present appellams
were anything other than trespassers. They entered upon the suit premises without the knowledge or consent
of the plaintiff and when the plaintiff became aware, of thek unlawful presence he sued for their eviction.
They may no doubt have been unaware of the niceties of the law of tenancy but that is none of the concern
of this Court for as was said by Lord Shaw of Dumfermline in Addie v. Dumbreck [1929] A. C. 358 at p.379,
of the child "who could know nothing of the law of trespass or licence, was b fact a trespasser." This
disposes off grounds of appeal numbers 2, 3, and 4.
As regards ground qf appeal number 6, I think a brief comment will suffice. Looking at all the decided·
cases including the Onorato and l\c:tafya cases it is clear beyond any dispute that a trespasser cannot claim·
the benefits flowing from the operation of the provisions of subsection (2) of s.19 of the Rent Restriction
Act, 1962. The question whether it is reasonable to issue an order for vacant possession under the Rent
Restriction Act, 1962, only arises where the person seeking to avail himself of the protection of the law is in
lawful occupation of the premises either as a tenant or subtenant as defined under the Act. In the result I am
unable to agree with Mr. Lakha that the point he .has raised regarding the operatio:q. of the provisions of!
subsection (2) of s.19 of the Rent Restriction Act, 1962, with regard to a trespasser, has any validity
whatsoever.
I now turn to cons~der grounds of appeal numbers 5 and 7. I will take ground of appeal number 5
first. The first question that arises is ~hether the Registrar of Buildings had accepted the appellants as the
tenants of the respondent as contended by the appellants in paragraph (a) of the fifth ground of appeal or
not. On the evidence found established in the case I cannot see how the Registrar of Buildings coulc;l nave
accepted the appellants as his tenants. How could the Registrar of Buildings do that since as between him
(the Registrar of Buildings) and the lawful subtenants of the plaintiff, which the two appellants were not,
there was no privity of contract and, therefore, in terms of the provisions of s.4(2), 11(1) and l 1(2)(a) and
(b) of the Acquisition of Buildings Act, 1971, Act No. 13 of 1971, the Registrar of Buildings could not step
into the shoes of the owner of the acquired premises, leaving the relationship of leasee and sublessee
unchanged? This question was in my respectful opinion fully dealt with and decided by the Court of Appeal
for East Africa in the case of Habib Yusufali v. Abdulasattar Riaziaddin, [1972] L.R.T. n.64 at p.277. The
submissions made by counsel in that case, who incidentally is the same counsel who has represented the two
appellants in the instant case, were more or less similar to those now canvassed before us. In rejectingi
Mr. Lakha's submissions in the Habib Yusufali case, Mr. Justice Law, learned Acting Vice President, in a
judgment in.which the other members of the Court concurred, said at p.279:
C /\, AMRATLAL DAMODAR AND ANOTHER v. A.H. JARIWALLA 37
To whom does a subtenant of part of an acquired building pay the rent reserved by
the sublease? As I have already pointed·out, the.owner is not, so far as I am aware,
usually a party to the sublease, and he was not a party to the su~lease t~e subject_ of
this appeal, so that the sublease in this case wa!I not a document m relation to which .
the Registrar was substituted for the owner 'as a party thereto'. The rent reserved
under the sublease therefore continued to be payable, in my opinion, to the tenant by
the subtenant. The tenant, who by virtue of his lease entered into with the owner as
a party, must pay the rent reserved by the lease to the Registrar, who bas been
substituted by the· Act for the owner.
'f1u, learned Acting Vice-President concluded his judgment thus:
It follows that I cannot accept the submissions made by Mr. M.A. Lakha for the
appellant that the Registrar becomes substituted for the owne1 in rel~tion to every
person in occupation of an acquired building, i.e., the tenant or subtenant or-
presumably-licensee or trespasser. If the Act had intended this to be so, it could
so easily have said so. Instead, the Act only substitutes the Registrar for the owner
in respect of instruments to which· the owner was a party.
'f'hi., other point Mr. Lakha has raised in the fifth ground of appeal is whether the learned fit st appellate judge
tm,d in law ''in holding that the respondent did not waive the breach of the appellants (which is denied)
ity ncccptance of rent only because he continued with his suit, and ought on the evidence to have held that
U,., nppcllants wue impliedly accepted as the tenants of the 1espondent." I do not think there is any basis
rnr (his particular complaint. The learned first appellate judge quite properly dealt with ~r. Lakha's
t,i\m1plaint on the question of waiver at a considerable length from the last paragraph of p.187 to the end of
ft IK9 of the record of proceedings. There is no doubt in my mind that the learned first appellate judge was
rl1ht in rejecting Mr. Lakha's submissions on the question of waiver. Counsel's arguments, attractive as
!hoy urn, have no foundation in law. Apart from the cases to which the learned first appellate judge
hi\1 roforred in his judgment, support for the first appellate judge's view may be found in two decisions of
me Bnglish Court of Appeal; See Clarke v. Grant and Another [1950] I K.B. 104 pp. 105 and 106; and Carter
t, (Jrccn [1950] 2 K.B. 76. In the former case Lord Goddard, C.J. discusses the principles to which a court
ftHUil have regard in deciding whether an acceptance of rent after a notice to quit has been given by a landlord
!UHounts to a waiver or not. He deals with this question as follows:
.. .if a notice to quit has been given in respect of a peiiodic tenancy such as a
yearly tenancy the result is to bring the tenancy to an end just as effectually as if
there had been a term which had expired. Therefore, when a landlord ha~ brought
a tenancy to an end by means of a notice to quit, a payment of rent after that date
will only operate in favour of the tenant if it can be shown that the parties intend
that there should be a new tenancy. A new tenancy must be created. That has
been the law ever since it was laid down by the Court of King's Bench, presided over
by Lord Mansfield, in Doe d. \Cbeny v. Batten (1775) 1 Cowp. 243. I need not read
the judgments in extenso, but Lord Mansfied said (at p.245): 'the question therefore
is, quo animo the rent was received, and what the real intention of both parties was.'
It is impossible to find that the parties here intended there should be a new tenancy.
The landlord was all the time desiring to have possession of the premises: that is why
he had given his notice to quit. The mistake of his agent in accepting as rent which
had already accrued, rent which was in fact payable, if it was payable at all, in advance,
cannot be used to establish that the landlord was agreeing to a new tenancy.
lit• tliat ,,_., it may, there can be no doubt on the evidence on the record of this case that theplaintiff's
1kccptance of the refund of rent from the Registrar of Buildings was net an unequivocal act of affirmance
,,r t lie l.wo appellants as the tenants of the plaintiff. In fact, as Mr. Raithatha, counsel for the respondent'
"·"· <:orrcctly stated: the money refunded to the plaintiff by the Registrar of Buildings is properly
w 110 regarded as mesne profit.s which the plaintiff was entitled to claim from the two appellants. With
1l11it 111tid, I hold that the fifth ground of complaint is without any substance and it is rejected.
38 TANZANIA LAW REPORTS [1980] TLR
Finally, the seventh ground of appeal. Mr. Lakha has submitted on this ground of appeal that the
learned first appellate judge was wrong in law in confirming the order of costs on mesne profits because
according to counsel the two appellants in this case tendered. a cheque as payment for rent due to the plaintiff.
I am unable to agree that the position in law is as urged upon us by learned Counsel. In Osborn,
The Concise Law Dictionary, Fourth Edition p.329 the word 'Tender' is defined as "an offer; e.g., by a
debtor to his creditor of the exact amount of the debt; the offer must be in money, which must be actually
produced to the creditor, unless by words or acts he waives production. If a debtor has ma~e a tender and
continues to be ready to pay, he is exonerated from liability for the non-payment, but the debt is not discharged. ;i
:l
Therefore if he is sued he should plead the tender and pay the money into court." In thi; respect see also 1
'
the provisions of the Civil Procedure Code 1966 relating to Payment into Court, Order XXIV, .r. l. As in '
this case the two appellants made no payment into Court in full satisfaction of the respondent's claim for
mesne profits, the learned first appellate judge was perfectiy entitled to affirm the trial Court's order of costs
on mesne profits. Thus this ground of appeal also fails.
I would accordingly dismiss the appeal.
Appeal dismisaed.
