Michael Willy Misabo v. the receiver & manager napoco Ltd Civ no 184 of 2005

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  KILEO, J.A., BWANA, J.A. And MANDIA, J.A.)

CIVIL APPLICATION NO. 184 OF 2005

MICHAEL WILLY MISABO…………………………………….………APPLICANT

VERSUS

1. THE RECEIVER & MANAGER NAPOCO LTD

2. BARNABAS NDIKA                                          …………..…RESPONDENTS

3. EMANUEL PAPIAN

4. NDIKUMANA GWA MAGOGWA

(Application to call for and examine the record of the proceedings from the decision of the High Court of Tanzania at Dar es Salaam)

(Kalegeya, J.)

dated the 24^th day of March, 2004

in

Commercial Case No. 169 of 2001

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RULING OF THE COURT

23 February & 16 March, 2009

KILEO, J.A:

This is an application for revision in which the applicant, Michael Willy Misabo, is seeking a revision of the decision of the High Court of Tanzania Commercial Division dated 24^th March 2004 in Commercial Case No. 169 of 2001. The Notice of Motion which has been preferred under section 4 (3) of the Appellate Jurisdiction Act is for orders that:

“This Honorable Court may be pleased to call for and examine the record of the proceedings in High Court of Tanzania (Commercial Case No. 169 of 2001) for the purpose of satisfying itself as to the correctness, legality and propriety of the decision of that Court dated the 24^th day of March, 2004 ordering the Applicant herein to give vacant possession of Kilimo House No. 01 situated at Vingunguti area, Dar es Salaam referred to in the said Order as the house in the 1^st row at NAPOCO QUARTERS – Vingunguti, and to quash the said decision, on the grounds that the Applicant was not a party to, nor had he any notice of the proceedings in Civil Case No. 169 of 2001 prior to judgment and decree resulting in the issue of the order for vacant possession being made against him without being given an opportunity to file his defence in Court”.

The Notice of Motion is supported by the affidavit of the applicant himself and that of his learned advocate, Mr. Mark Stephan Lebba. The applicant states in his affidavit that he had been living in the disputed house since 1990 and he got into occupation by virtue of his employment as a civil servant. He went on further to state that the house which was known as Kilimo Quarters No 01 at Vingunguti was lawfully sold to him by the Government on 22/03/2003. No affidavit in reply was filed by the respondents to counter what is contained in the affidavits mentioned above.

The main complaint is that the applicant was not given an opportunity to be heard in proceedings in which he had an interest.

A brief background to this matter may help in better appreciating the issues involved. The 2^nd – 4^th respondents filed Commercial case No.169 of 2001 in the Commercial Court against the Receiver and Manager, NAPOCO LTD. (1st respondent). In their plaint they prayed for specific performance, by the Receiver & Manager, of purchase agreements between them. By the said purchase agreements the Receiver & Manager had sold to the 2^nd – 4^th respondents houses that belonged to NAPOCO but delivery of possession did not take place within the time agreed. This was because there were some third parties in occupation of the houses who were not willing to let the houses go. When the plaint was filed in court, the Receiver & Manager for NAPOCO LTD made an application for Third Party Notice. The Third Party Notice application was in respect of three people, namely; Severine Silayo, Abdi Kilenga and Misabo. The case against the Third Parties proceeded against Severine Silayo and Abdi Kilenga. The applicant was neither served with the Third Party Notice nor summoned to appear in court in relation to the case in the Commercial Court.

Judgment was entered against the Third Parties and execution proceeded. In the course of execution a delivery warrant was issued against the applicant. This ended up in the applicant and his family being evicted from the premises. The matter did not end there, while the applicant was in the process of pursuing his rights the house was demolished.

Arguing the application on behalf of the applicant, Mr. Lebba asked the Court to revise the High Court proceedings which ended in his client losing the disputed house as his client was never given an opportunity to be heard in defence of his rights over the house in which he had an interest. The learned counsel pointed out that though there was Third Party Notice application against his client, he was nevertheless never served with the said Third Party Notice and the case proceeded without him.

Mr. Mauggo, the Receiver & Manager appeared in person at the hearing of the application. The 2^nd – 4^th respondents were represented by Mr. Mdamu, learned counsel.

At first, Mr. Mauggo tried to resist the application, but when proceedings of the original record were brought to his attention, which showed that he had applied for Third Party Notice against the applicant and yet had not served him, he left the matter to the Court to decide. Mr. Mdamu was of the view that the applicant had sat on his rights.

There is no doubt that the applicant was never given a right to be heard in a matter in which he had an interest and which eventually seriously affected him. The proceedings of the commercial case show that on 8.10.2001, Mr. Mauggo, before Hon. Nsekela J, as he then was, made an application for Third Party Notice against three people, one of them being Misabo, who must have been the present applicant. For unexplained reasons Mr. Mauggo filed Third Party Notice against only two people- Severine Silayo and Abdi Kilenga. When it came to execution, a delivery warrant was issued against the applicant in terms of Order XXI, Rule 34 of the Civil Procedure Code. If the judge who ordered execution had perused the record, he would no doubt have realized that the applicant was supposed to be one of the Third Parties and probably he would have taken appropriate action to deal with the situation. It is a pity that while the applicant was in the process of fighting for his rights, execution proceeded hurriedly resulting in the demolition of the disputed house.

We have no doubt that there are apparent errors on the face of the record of the Commercial Court necessitating our intervention. As we have already laboured to show above, the applicant was never given an opportunity to be heard though at the end of the day his interests in the house in dispute were adversely affected. Having given due consideration to the circumstances of this case we find it necessary to revise the proceedings of the Commercial Court case in so far as the applicant is concerned. We quash and set aside all proceedings and orders pertaining to the applicant, which resulted in his eviction from the house and the demolition of the house. The case against him is to proceed according to law from the stage where the 1^st respondent asked for leave to file a Third Party Notice against him- i.e. 8/10/2001.

In the end result, this application is allowed with costs.

DATED at DAR ES SALAAM this 11^th Day of March, 2009.

E.A.KILEO

JUSTICE OF APPEAL

DR. S. J. BWANA

JUSTICE OF APPEAL

W. S. MANDIA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(P. B. KHADAY)

DEPUTY REGISTRAR

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