Charles Christopher Humphrey Kombe vs Kinondoni Municipal Council (Civil Appeal No. 81 of 2017) [2020] TZCA 1956 (9 June 2020)

l P" VL ~ ~ k-, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM · (CORAM: MWARIJA, J.A., MWAMBEGELE, J.A., And KEREFU, J.A.) CIVIL APPEAL NO. 81 OF 2017 CHARLES CHRISTOPHER HUMPREY KOMBE ................................. APPELLANT VERSUS KINONDONI MUNICIPAL COUNCIL ........................................... RE;SPONDENT · [AppeI from the Judgment and decree of te High Court of Tanzania _(Land Division), at Dar es !Salaam] (Mgetta, J.) / dated the 5 th day of Jun, 2015 ; , in . Ut·•ff \ Land Case No. 107 of 2007 JUDGMENT OF THE COURT pt & 12 th June, 2020 MWAMBEGELE, J .. A.: This appeal arises from the decision of the Land Division of the High Court of Tanzania (Mgetta, J.) pronounced on 05.06.2015 in Land Case Net 107 of· 2007. In that case, the apellnt was the· plaintiff and:·_ th~ respondent was the defendant. Before we go into the determination of th~ appeal in earnest, we find it deserving to narrate the background facts of ·' ·. . . . : .. ·,. , 1 ' .. .· .i .· 1 . 11:~

the appeal before us, albeit briefly, as they could be gleaned from the record of appeal. .... t . }! Sometimes in 1993, the appellant sought and was granted· a permlt for unspecified period to use an open space at Msasani Shamba along Old Bagamoyo Road and erected a stall to run his building materials business. · V ·. · '.:1 1 1· t :1E: Later; in 1999, the respondent commenced criminal proceedings against r .. ' ' . the appellant (Criminal Case No. 2310 of 1999) accusing him of erecting the stall without a valid permit contrary to section 100 and 16 of the Da~';i ·.'·· ;r) alaam City Council Bylaws, 1991. In connection thereof, the respon'dift $ized some items from the appellant's stall. The Resident Magi{frpt¢. ~ . : ·;. ~ -. :_ ._ --- fourt, in which court those criminal proceedings were instituted, decid&-ti {: ' favour of the appellant. f Despite that finding, the respondent :{]~f }eturned the seized items and, in consequence whereof, the appellantjij', . Jg Land Case No. 107 of 2007 in the High Court Land Division claiming,. inte.r lia, Tshs. 1,293,347,000/= being the value of the seized items; .}{t\ ·. :l i ~ -c 1· - h·ea.ring both parties, the High Court retreated to compose· a juddtrt·Ht f . • .; :~..: 1 - 8:uring which it realized that it had no jurisdiction to entertain and t4wi 1 - · r;,¾;' · ~N.: hiatter on account that the subject matter of the suit was not i?~rf8 2

: : · ~ . .. - .. ... J: ·::t dispute but, rather, it was a suit to recover the seized items or the sl)rr1 ·of .·' Tshs. 1,293,347,000/=. On this premise, the High Court dismissei\h~ ' i' . ~uit. The appellant was not amused with the decision. He thus lodged_ thJs ~ppeal on the following three grounds of complaint: ~ .! ·. /:/:.~~; '!}

1. "The learned Judge erred in law in failing . to determine the case according to the issues in declining jurisdiction/
2. The learned Judge erred in law in declining jurisdiction to determine the case on metit/ and
3. The learned Judge · erred in law in failing to accord the parties a right to be heard, having formed the opinion that the court had no jurisdiction. " .. :.' \ .•. ! . -:-· .. :· .. When the appeal was placed for hearing before us on 0l.06.2q29 1 the appellant appeared through Mr. Julius Kalolo-Bundala, la.rneq ·:. . .. ;:.:.\ )-r dvocate: Mr. Vicent Tangoh and Ms. Grace Lupondo, respectively, leJFAB: i .· .·::~~-;_ ·.:l ::-: 1 ~ . ; 1 :.., r· Principal State Attorney and learned State Attorney, joined forcei) =t6 J ·: ·: ::---::\ ·-->:': fepresent the respondent. At the very outset, the learned Principal .Stat . . . .· ~ -~ .. . .---- . ~ -: : Attorney rose to intimate to the Court that the respondent was concdi . ·.·.· . . . . .· . -..,·,.1' .:..,. 3 . ·.··.: .·,:· . . : . :·;t) ·: ([~

f '.< .. :·r ..-l to the third ground; a complaint that the parties were denied the right to : r··:,I "j .:·:.-:.:."·. ::('; be heard. He submitted that the court, having formed an opinion af th ~ . 0 moment of composing the judgment that it lacked jurisdiction to entertain . ' . ;:; the matter, ought to have accorded the parties an opportunity to be heard · ····--011--that--matter. .. In the premises, the learned Principal State Att;6tne~ ! . brayed that the matter should be remitted to the High { i .. judge for the parties to be heard on whether the High Jurisdiction to entertain the matter. Responding, Mr. Kalolo-Bundala for the appellant, having hear~ -Mt ( \ ;· · '-r,,,i- 1 ::,.-i.-' .. ' . ,_JJ. .. l.:,, Ifangoh's concession, prayed that the appeal should be allowed as PrnY.1~ I :.. . . -:;1·1-1i.:{ . .,a.. '- !,n the memorandum of appeal.· He also implored us to remit the marf~~ ., . ,, ).0 ., . ,. :, . the High Court before the same judge to rectify the mishap. _'-t. -l=" .. .. t. -..in J . . • ~ .. ~ We have considered the conceding arguments of the· partis ·.fb respect of the third ground of appeal. Admittedly, the High Court fb.!the .. ' ...... •: ··:.....,;.:. ? . . . ·., ,: ·~~ the opinion at the time of composing the judgment that it .lik-&, L · .- · ifir. to Ju.risdiction to entertain the matter. Having so realized, like the lefr:Aa l. . .\·:.: .: . .. : .. : .. : .counsel for the parties, we are certain in our mind that the High c6dtt } .. ' ... ; ;:.· Tr• ought to have accorded the parties the right to be heard on that point··w..~ r., l j 4 • .,,; •. ••i I 1··/\· .:r. /):1:·,;fi. 'I, ,', ..... ~ - \ .... ~ •' ',· ::.r..(;:.}§ ~ ,, .... '• .. ;. ·:··· • . i . ./ . r :.

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•. :: . . . : i_. ! . . . . ..; .. :} ·,}· are alive to the fact that the learned trial judge was quite in the righLtt'aCk i ·;. --:.1. ~ .. -.i/ to rais~ the issue on its own motion. Order XIV rule 5 ({) of thlJivij Procedure Code, Cap. 33 of the Revised Edition, 2019 (henceforth t6:· bJ referred as the CPC) provids that the court may, at any time befor~ t- . . . ·1s;;( ·,.it/ passing a decree, frame new or additional issues apart from ones frQ:1e9: .. i. . . };i ·-&~~ rhe order reads: :---> Ci.' ·.:. i •?'~ : '}: •i_ c:li ... J "The court may at any time before passing a decree . amend the issues or frame additional issues on such · terms as it thinks fit; and all such amendments of additional issues as may be necessary for determining the matters in controversy between th. parties shall be so made or framed'' . . . .. ' t -{-J: : . . . .•=•·{ .. --··. -;: . ·: . ,r • ..... • i'. the court has to accord the parties the right to address it on that - new· dr 9 dditional issue. That this is the position of the law fou_nded ·.-μpQ.Q t: • . '-r::'t.. -;{"· prudence in this jurisdiction has been heard in a number of decjsions of:)fti~ y . . . . .it::. f{) ourt. In Raza Somji v. Amina Salum [1993] TLR 208, for ihs_ta:i;,c·ej ;: . . .... :.. ·.·:(! ~ . . ........ referring to Order XXXIX rule· 2, we observed: ?c.\··1.1 . Ti -:,· '~ .. the ground of undue influence was, on the ' : · .... ,_. r · evidence, disclosed but was not set forth in the · .· _· ;}JJ:-·?G ·•.r:· ·. f;: :j. .. 5 .

memorandum of appeal. Rule 2 of order 39 of the Civil Procedure Code empowered the learned Judge to raise it suo riiotu. However, under the proviso to that rule the Judge was enjoined to give the appellant the opportunity to contest the issue before resting his decision on it as he did,·'' . . . ., . ~ .... , Corresponding remarks were made by the Court in John M'i~_rri~ · .. r,-1paki v. NBC Ltd and Ngalagila Ngonyani, Civil Appeal No. 95 _of2Qf.:~ (unreported). In that case, the Court made reference to its previous decision in Deo Shirima and Two Others v. Scandinavian· Exp:te~~ ·: . ,.:.•::. . '. . . . , ... ,., ervices Limited, Civil Application No. 34 of 2008. (unreported):(ry8. bbserved: ' j.· 11 The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests of any. person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard. This principle of law of respectable antiquity needs no authority to prop it up. It is common knowledge." ! : • . .· i.· . ic .. · .,_ .. :· t ,.- 6. · ... : ':

· ... :· .. ;: ;· .. :! The Court went ori to reproduce the following excerpt from Deci Shirima and Two Others: "We have already shown that the order of ffh June, 2007 was made suo motu. None of the parties had pressed for that order. None of the parties was heard at all before the order was made. As it turned out, the order, made in breach of the rules of natural justice, immediately adversely affected the plaintiffs in the suit and subsequently the current applicants who were the agents/servants of the former. It is established law that any judicial order made in violation of any of the two cardinal rules of natural justice is void from the beginning and must always be quashed, even if it is made in good faith. In view of the above, we have found ourselve constrained to rule that the High Court order dated · ffh June, 2007 was bad in law and therefore a nullity.'' [See also: Ibrahim Omary (Ex.D 2323 Ibrahim) v. The Inspector General of Police and .2 ·.::\·-~·-. 1·t~~ D >'t.} .· :·· . .. . '· others, Civil Appeal No. 20 of 2009, Mire Artan · ·:'·.: ··:,·: Ismail & Another v. Sofia Njati, Civil Appeal No. 7

75 of 2008 and Scan-Tan Tours Ltd v. The Registered Trustees of the Catholic Diocese of Mbulu, Civil Appeal No. 78 c-f 2012 (all unreported decisions of the Court)]. On· the authority of the decisions cited above, we are certain in·_ our mind that the High Court erred in basing the decision of the_ case on· 'Hi~ issue raised suo motu without according the parties the right to be heard on that issue. In John Morris Mpaki (supra) we held that any decisio_n affecting the rights or interests of a party is a nullity even if the s:arne :: . . ·: decisiqn would have been arrived at had the affected party been· fiJfHC ..... : .·· r · . .,:::· i -.:;}i This ground only disposes of the appeal. We shall not consider the dhei two grounds of appeal, for doing so will not change the outcome o('th~ ppeal. For the reasons we have assigned, we are constrained to aUp\fY. t.hi. c: . · -l,}a:<:r. pppeal on the strength of the third ground of appeal. We quaSQiJ~~ . . . ;-;1·. -"',·: " . i., .• _ ... decision of the High Court and order that the record be remitted to the triI i ,:·· :·,·1.- ourt before the same judge for composition of a fresh judgment .. C?.ftr :.. .· .. · •. ::.:, .. -i_, c::. tlearing the parties on the issue of jurisdiction. As Mr. Kalolo-Bundala ·did ,.:;:::_; ·: 1£~ 8 , ·~ ............ -.) t:·,s !.}J·(f -~ ,-_t .:1e :·. ·- ,,., ;·:.U·tr

; :. : ·.:i : . .... r '•.1 hot press for costs, we order that each party shall bear its own costs in th'i~ appeal. DATED at DAR ES SALAAM this 9 th day of June, 2020. A. G. MWARIJA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL R.J. KEREFU JUSTICE OF APPEAL ·: ·. : i:. .. . ·:-:·~ . -:· ... ·/·· . .. . : :· . . , .. : • :. ~~~ 1' : . ·. : :.; . . ::.,.: .. The Judgment delivered this 12 th day of June, 2020 in the abs~~c~ of the appellant duly served and in the presence of the Ms. Kause,: .. jHRnzo ·:· ! learned State Attorney for the respondent/Republic is hereby ·certifi'ecl ij_s a . . , .. . ~. · .. ·.·'·.· ·;.:. rue copy of the original. { .·· E. F. F SSI DEPUTY RE ISTRAR COURT OF PPEAL 9 ,.· .. ·.· ,: ·: .. ... -·•. 1 ·· .. r:. .""\ ~· ~-:· ••.• j