Alisum Properties Limited vs Salum Salenda Msangi (Civil Appeal No. 39 of 2018) [2022] TZCA 3085 (24 June 2022)

ALISUM PROPERTIES LIMITED V. SALUM SALENDA MSANGI COURT OF APPEAL OF TANZANIA – DAR ES SALAAM (CORAM: KWARIKO. J.A. KEREFU. J.A. and KIHWELO, J.A.) CIVIL APPEAL NO. 39 OF 2018 (An Appeal from the judgement and Decree of the High Court of Tanzania at Dar es Salaam District Registry Case No.67 of 2010 dated 5 th February,2016) Civil Practice & Procedure – Issues raised by parties-determination of issues- Whether it is appropriate for the Judge to proceed with hearing without determining issues raised by parties? Civil Practise & Procedure- issues- new issues raised by the Court- whether it is appropriate for the Court to raise new issues at the judgement stage? The appeal concerned ownership of Plot No. 33/4 at Kunduchi Beach, Dar es Salaam, measuring 1.773 hectares. The appellant filed a suit in the High Court alleging that the respondent had trespassed onto the land and sought eviction, a declaration of lawful ownership, and mesne profits of TZS 5,000,000 per month from 31 December 2008. The respondent denied the claim, asserting that he had occupied and owned the land since 20 November 1967, and argued that the suit was time-barred. Although the trial court framed issues mainly on ownership, the respondent later raised additional objections in written submissions, including limitation and expiration of the speed track period. In its judgment, the High Court dismissed the speed track objection and proceeded to determine ownership. However, the Judge held that the appellant lacked locus standi, stating that the proper party to sue was M/S Concern World Wide Ltd, which had not been joined, and reserved determination on the competence of the suit. The appellant appealed, challenging the propriety of the Judge determining the merits without first resolving the preliminary issues and raising new issues of locus standi and non-joinder at the judgment stage without hearing the parties.

Held: (i) The Court stated that it is an elementary principle of law that an issue raised by the parties should be resolved, failure to do so renders the judgement defective. (ii) Further, the Court held that cases must be decided on the issues or grounds on record and if it is desired by the Court to raise other new issues either founded on the pleadings or arising out of evidence adduced by witnesses or arguments during the hearing of appeal, those new issues should be placed on record and parties must be given an opportunity to be heard by the court. The Court ordered that, in exercise of its revisional powers under section 4(2) of the Appellate Jurisdiction Act, the decision of the High Court be revised, nullified and quashed. The appeal was struck out for lacking any basis to stand. The Court further ordered that the case file be remitted to the High Court for hearing and determination of the issues relating to time limitation, the appellant’s locus standi to institute the suit against the respondent, and the non-joinder of M/S Concern Worldwide Ltd as a necessary party. The High Court was directed to determine the case according to law depending on the outcome of those issues. It was ordered that each party bear its own costs. Statutory Provisions referred : (i) Section 4(2) The Appellate Jurisdictions Act, (Cap.141 RE;2019) (ii) Rules 105(1), 106 (1) (7) Court of Appeal Rules as amended Case Law referred to: (i) Alnoor Shariff Jamal vs. Bahadir Ebrahim Shamji, Civil Appeal No.25 of 2006 (unreported) quoted Kukal Properties Development Limited vs. Maloo and others (1990) EA 281. (ii) Celestine Maagi vs Tanzania Elimu Supplies (TES) and Another, Civil Revision No.2 of 2014 (unreported).

(iii) Scan -Tan Ltd vs. The Registered Trustees of Catholic Diocece of Mbulu, Civil Appeal No.78 of 2012 (unreported). (iv) Abbas Sherally and Another vs, Abdul S. H. M Fazalboy, Civil Application No.33 of 2002 (unreported). For the Applicant: Mr. Samson Mbamba. For the Respondent: Mr. Yahaya Njama and Daimu Khafan.