Karamaldin v Kahwa (Civil Appeal No 40 of 1990) [1990] TZHC 623 (17 December 1990)

100 TANZANIA LAW REPORTS [1996] T.L.R A OMARJ FAROUK KARAMALDIN v. JUSTINAN R. KAHWA HIGH COURT OF TANZANIA (Mkude, J.) B CIVIL APPEAL NO 40 OF 1990 17 December, 1990 - DAR ES SALAAM C Civil Practice and Procedure - Appeal - Failure to join an affected party as Second Respondent - Effect. On 10 August 1990, the Resident Magistrate ’ s Court of Dar es Salaam at Kisutu issued an order returning motor vehicle TZ 77961 to the present D Appellant. Some four days later (14 August 1990), and at the instance of an objector, one Mr Mbaga, the same court reversed its decision of 10 August 1990 and ordered the vehicle in question to be released to Mr Mbaga on the basis that the Appellant failed to disclose to the court that proceedings in respect of the vehicle were pending in the High Court and that the order of 10 August 1990 was at variance with an interlocutory E order already made by the High Court. The Appellant appeals against the Magistrate ’ s order of 14 August 1990. Held: (i) Any appeal seeking the reversal of the order made on 14 August 1990 can affect Mr Mbaga in his possession of the vehicle and such appeal p must cite Mr Mbaga as a respondent in order to enable him to be heard. (ii) It is against the rules of natural justice to condemn a man without giving him a hearing. (iii) The appeal is dismissed and no order is made as to costs. G Ordered accordingly. Chacha, for the Appellant. Ndyanaho, for the Respondent. Mkude J: On 10 August 1990 the Resident Magistrate ’ s Court of H Dar es Salaam at Kisutu issued an order seizing motor vehicle TZ 77961 and gave it to Omari Farouk Karamaldin, the .appellant herein. This was in civil case No 93 of 1990 in which the appellant had successfully sued one Justinan Rugeiyamu Kahwa and the said vehicle was seized in satisfaction of the decree. Then on 14 August I 1990, following objection proceedings filed by one Mzava alias Praygod Mbaga, the same court reversed its decision of 10 August

KARAMANALDIN v. KAHWA (Mkude, J) 101 1990 and set aside the order of seizure and directed that the vehicle A TZ 77961 be released to Mbaga, the objector. The reason for this step by the court is contained in its ruling which is the subject matter of this appeal. The ruling states in part: ‘ An application has been filed by Mr Mkatte objecting to an order g which was made by this court ordering the seizure of a motor vehicle which was in the possession of his client and handing it to the respondent. The order was made by this court on 10 August 1990. When that application was made, the respondent who was the plaintiff in this case did not disclose to this court at all that the motor vehicle which is the subject matter of this case is also a subject matter C of a case which had been filed at the High Court earlier on and it is still pending. Apparently the order which has been made by this court is in a total variance with an interlocutory order which has already been made by the High Court. □ As correctly submitted by Mr Mkatte if at all this fact was disclosed to this court, this court would have never issued the order which it issued. ’ It will be seen that the effect of the order arising from this ruling is to vest possession of the vehicle in Mr Mbaga from whom the E vehicle was taken under the order of 10 August 1990. It follows that any appeal seeking the reversal of the order from that ruling must cite Mr Mbaga as a respondent so that he can be heard before the order depriving him of the possession of the vehicle can be made. The present appeal falls short of that. Instead only Justinan Ru- F geiyamu Kahwa is cited as respondent and Mbaga does not feature at all. I note that one of the prayers of the appellant is ‘ that the first ruling of the same court be upheld and confirmed ’ . G What the appellant calls ‘ the first ruling ’ is the ruling dated 10 August 1990 which gave him possession of the vehicle after taking it away from Mbaga. In other words, the appellant is now asking this court to make an order under which the vehicle will be taken away from Mbaga while Mr Mbaga was not given the opportunity to be H heard. The appellant did not see it fit to join him in his appeal. It is against the rules of natural justice to condemn a man without giving him a hearing. It is against the constitutionally guaranteed rights to deprive a man of property without a hearing. Accordingly this appeal fails and I dismiss it. I make nor order as I to costs.