Gapco Tanzania Ltd vs Rungwe District Council and Another (Civil Revision No. 6 of 2015) [2015] TZCA 942 (2 September 2015)

'. IN THE COURT OF APPEAL OF TANZANIA AT MBEYA . (CORAM: MASSATI, J.A. MUSSA, J.A.·And MUGASHA, J.A.) .· CIVIL REVISION N0.6 OF 2015 _,-/ .-GAPCO TANZAl':'IA 'LTD.!'••·····································•·•···············APPELLANT AND

1. RUNGWE DISTRICT COUNC~:1 .. ··
2. MEK ONE INDUSTRY LIMITED J ........................................ RESPONDENT (Revi§ion from the proceedings and Order of the High Court of Tanzania at Mbeya) {Ngwala ,J.) dated the. 17 th day of December, 2014 in Misc. Land Appl. No . .76/2014 and Misc.Appl No. 32/2013 RULING OF THE COURT 1 st & 3 rd Septen:tber, 2015 MUSSA, J.A.: These proceedings · were opened . by · the Court suo inotu and it is . thus, · out . of sheer convenience that the parties.· were assigned the · :respective titles of ''app/icanr/ and 'respondents'. For that. sake, we. shall continue to·· address by· their assigned· titles. It is however; . pertinent to 1

·· .. ' I l ' observe, from the very outset, that the proceedings were initiated by a written complaint to the Court lodged by counsel for the second respondent. At the hearing before us, the applicant was represented by Mr. Peter Hellar, learned Advocate, whereas, the first respondent had the services of Mr. Merick Luvinga, a learned Solicitor of the Rungwe District Council. Ms. Mary Mgaya, learned Advocate, was holding brief for Mr. Kennedy Fungamtama, counsel for the second respondent. Ms. Mgaya had full instructions to proceed with the hearing. Before we address the. learned arguments on the matter, it is necessary to recapitulate, albeit briefly, the factual background. On the 11 th day of April, 2013 the second respondent executed a lease agreement with the first respondent to operate a filling station on the latters' premises located at Plot No. 1B and lC, Tukuyu Township. Subsequent thereto, the second respondent commenced business on the demised premises. 2

In the meantime and, apparently until then unknown to the second· respondent, the first respondent and the applicant were litigating in Land Case No. 6 of 2013 in the High Court of Tanzania (Land Division), with· respect to the referred demised premises. In the course of the proceedings, the High Court made interim orders at least upon two instances which are at the centre of the deliberations before us. The interim orders sought to be impugned were made on the 8 th October, 2013 and lih December 2014, respectively. To appreciate the circumstances giving rise to the first interim order, we think it is opportune to extract in full the short proceeding of the trial court on that date:- "Date: B/10/2013 Coram: Hon A.F. Ngwala,, J. For Defendant - Mr. Amon Nyingi C/C-Japhet Mr. Nyingi- We are ready for the 1 st Plea Trial Conference. Court: Hearing of the 1 st Trial Conference. Commences. 3

Mr. Heller: Madam Judge, we propose that this suit be fixed at the 1 st speed track. Mr. Nyingi: Madam Judge, we have received the plaintiff's reply, however is the circumstances of this suit we pray that Majembe Auction Mart be joined as the Defendants in this suit, this is after reading the contents of Para 2 of the plaint. Mr. Heller: In view of the prayer by the counsel, for the Defendant I pray to amend the Plaint to join Majembe Auction Mart in this suit. Mr. Nyingi: As submitted by my fellow counsel that they are going to amend the plaint to join Majembe Auction Mart I have no objection. Order: 1. Mention 25/11/2013 2. Amended Plaint to be filed on or before 22/10/2013 3. Written Statement of Defence to the amended Plaint on 11/11/2013 4. Rejoinder if any on 18/11/2013 5. Status Quo to be maintained pending the determination of this suit. A.F.NGWALA JUDGE· 8/10/2013" 4

It is common ground that the second respondent was not, then, a party to the proceedings but, it is, perhaps, worth the remark that the order for the maintenance of the status quo came about unsolicited. On the 17 th December, 2014 the applicant preferred another application before the High Court in which both respondents were joined. The substantive portion of the application was couched as follows:- Ex-parte (at the ad-interim stage only)

1. That this Honorable court be pleased to grant or order requiring the District Executive Director or 1 st Respondent and the Managing Director of the Z1d Respondent to show cause as to why they have ignored valid order of this Honorable Court dated ffh Octobe02013 requiring of parties to maintain status quo pending final determination of the main case;
2. That this honourable Court be pleased to restore possession of the suit premises to the Applicant.
3. Cost of the application be borne by the Respondents.
4. This honorable court be pleased to make any other order(s) that it may deem fit and just to grant. 5

InterParte

1. That this Honorable court be pleased to grant or order requiring the District Executive Director of 1 st Respondent and the Managing Director of the Z1d Respondent to show cause as to why they have ignored valid order of this Honorable Court dated ffh Octobe02013 requiring maintain status quo of parties to pending final determination of the main case;
2. That this honourable Court be pleased to restore possession of the suit premises to the Applicant.
3. Cost of the application be borne by the . Respondents.
4. This honorable court be pleased to make any other order(s) that it may deem fit and just to grant. Apparently, the application was placed before the Judge on that same day, whereupon she issued the following order:- 6

. •· .. ORDER Upon perusing the Chambers Summons which has been filed under a . Certificate of Urgency, and upon perusing the Application and Affidavit in support thereof which is annexed with the order of this court dated ff'1 October, 2013 and its Drawn Oiderissued on the same date; I have no doubt on the strength of the Affidavit of one Anna Mwakatundu, that this is a clear act of intentional disrespect to Judicial Proceedings and court orders by the Respondents. For this reason, I do not see no good reason in the circumstances of this Application to waste the court's precious time to summon the parties for the hearing of this suit instead of issuing the order of restoring the courts order dated Efh October, 2013 requiring the Applicant and the 1 st Respondent to maintain the Status Quo pending· final determination of the main case in Land Case No.6 of 2013 forthwith. The Z1d Respondent too, its agents, servants, officers and all the parties in this Application should comply with the said order. It is further ordered that The District Executive Director of the 1 st Respondent and the Managing Director of the Z1d Respondent should be charged with of the offence of 7

contempt of court proceedings under the provisions of Section 114 (1) (k) \· of the Penal Code. CAP 16R.E 2002. A.F.NGWALA JUDGE 17/12/2014 From the applicant's affidavit, it is discernible that the prayers before the trial court were two fold, that is, first, ex-parte (at the ad-interim stage only) and, second Inter parties. Ironically, in the ultimate order, the learned trial Judge wholly granted both the prayers "pending final determination of the main case in Land case No.6 of 2013". To say the least, in the order, the learned Judge even strayed beyond the ambit of what the applicant was seeking at that stage and, much worse, the respondents were thereby condemned unheard. Mr. Hellar conceded that much. Affording parties an opportunity to be heard is an enshrined right under Article 13(6) (a) of the constitution, the breach of Which undermines the entire decision. On the premises, we are constrained to intervene and, 8

in the interest of justice, we invoke our revisional jurisdiction under section 4(3) of the Appellate Jurisdiction Act chapter 141 of the Revised Laws. In the result, we set aside the two orders, respectively dated the 8 th October,2013 and the 17 th December, 2014. We further order that the record be remitted back to the trial court where it should be placed and heard by another Judge of competent jurisdiction. DATED at MBEYA this 2 nd day of September, 2015. S.A.MASSATI JUSTICE OF APPEAL K.M.MUSSA JUSTICE OF APPEAL S.MUGASHA JUSTICE OF APPEAL . I certify that this is a true copy of the original. ~ P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9