Sebastian Ngimbwa v. The minister for lands & 3 others Civ no 28 of 2003 (plot dispute)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: KAJI, J, A, RUTAKANGWA, J. A  AND KIMARO, J. A.)

CIVIL APPEAL NO.28 OF 2003

SEBASTIAN NGIMBWA……………………………………..………...APPELLANT

VERSUS

THE MINISTER FOR LANDS &

HUMAN SETTLEMENT DEVELOPMENT ……………….……1^ST RESPONDENT

THE COMMISSIONER FOR LANDS……………………..…...2^NDRESPONDENT

THE ATTORNERY GENERAL…………..………….…….…….3^RD RESPONDENT

(Appeal from the Ruling and Order of the

                        High Court of Tanzania at Dar es Salaam)

(Kyando, J.)

Dated the 14^th day of May, 2002

in

Miscellaneous Civil Case No. 109 of 2000

JUDGMENT OF THE COURT

30^th May, & 27^th June 2007

KAJI, J. A.:

        In this appeal, the appellant, Sebastian Ngimbwa, is appealing against the decision of the High Court at Dar es Salaam (the late Kyando, J. ) dated 14^th May, 2002 in Miscellaneous Civil Cause No.109 of 2000.

        The background giving rise to the matter may briefly be stated as follows:-

        On 12^th July, 1988 the appellant was allocated plot No. 182 Block L Mbezi Medium Area, Dar es Salaam by Dar es Salaam City Council, by letter bearing reference number D/ KN/ A/ 30239/ 1/ TNP. He paid the requisite fees and applied for a title deed. While waiting for the same, one Christina@Christa Pendo constructed a wall upon the said plot claiming the same to be hers.

        On 25^th July, 1992 the appellant filed a suit in the Resident Magistrate’s Court at Kisutu (RM Civil Case No. 94 of 1992) against the said Christina Pendo praying for, inter alia, the following orders:

             i.        A declaration that the appellant was the lawful owner of Plot No. 182 Block L Mbezi Medium Area, the suit plot, and the letter of offer granted to Christina Pendo over the said plot be declared null and void;

            ii.        A perpetual injunction restraining Christina Pendo, her workmen, or agent acting on her behalf from trespassing, entering or otherwise occupying the plot in dispute in whatever manner;

          iii.        An order against Christina Pendo directing her to demolish at her own costs development she erected on the suit plot.

The case proceeded ex parte and ended in the appellant’s favour who was declared the legal owner of the suit plot, and the offer issued to Christina Pendo was nullified. Efforts by Christina Pendo for extension of time in which to apply for the ex parte judgment to be set aside by the trial court failed. Christina Pendo was dissatisfied. She lodged an application in the High Court for extension of time within which to file an application for revision of the order that dismissed her application. Again she was unsuccessful. The appellant who had been issued with a building permit started constructing a house. However, in July 2000, he received a letter from the 2^nd respondent, the Commissioner for Lands, addressed to him with the following message:-

“ Haki ya kumiliki ardhi yenye maelezo hapo juu iliyotolewa kwako imebatilishwa na mheshimiwa Waziri wa Ardhi na Maendeleo ya Makazi kwa amri ya Mheshimiwa Rais mnamo tarehe 29 Mei, 2000 baada ya kudhihirika kuwa haki hiyo ilitolewa  kwako kinyume cha sheria na taratibu”.

An English translation could read as follows:-

“The Right of occupancy mentioned above has been revoked by the Honourable Minister for Lands and Human Settlements by Command of His Excellency the President on 29^th May, 2000 after it had been discovered that it was issued to you contrary to law and procedure”

It is this letter which prompted the appellant to institute an application for prerogative orders of (1) certiorari by removing to the High Court and by declaring the purported revocation of the appellant’s offer on Plot No182 Block L Mbezi Medium Area made under letter of revocation bearing Ref No LD/TEMP. 153292 dated 8^th June, 2000, as null and void and bad in law.

(2) An order of Mandamus by compelling and directing the 1^st respondent, the Minister for Lands and Human Settlements Development,  to issue a Right of Occupancy to the appellant who had already applied for survey instructions from relevant authorities.

(3) An order of prohibition prohibiting the respondents permanently from revoking or acquiring in whatever manner the plot in issue allocated to the appellant without compensating the appellant for the unexhausted improvements he had made on the plot in dispute. The appellant listed three grounds upon which the reliefs sought were grounded, that is,

       i.        Failure of Natural Justice,

      ii.        Excess and Abuse of Discretionary Powers, and

    iii.        Grounds for revocation not stated.

The respondents resisted the application. The learned trial judge made the following observation and directed as follows:-

“I feel that it is unfair to decide the case without hearing Christina Upendo (sic) as well. I do not think that the present respondents can be said to be sufficient representatives of hers in her claim to the disputed land. I have decided therefore that this application be dismissed, and direct the applicant to file an ordinary suit, if it will still be his desire to pursue his claims to the plot of land, in which he should join then Christina Upondo (sic) as a party. I think this course of action will have the other benefit of determining the matter between all the parties concerned just in one action”

It is against this decision that the appellant is appealing. Before us the appellant was represented by Mr. C. Tenga, learned counsel. Ms. Monica Otaru, learned State Attorney, appeared for the respondents. Mr. Tenga contended forcefully that, the learned judge erred in holding that it was unfair to decide the case in the absence of one of the claimants, whereas in actual fact there was no other claimant to the plot other than the appellant who had been declared by the courts below to be the legal owner of the plot. The learned counsel further contended that, the learned judge erred in law in directing the appellant to file an ordinary suit because, after his allocation was revoked, he had no more interest to protect, and that the only remedy was to challenge the revocation by way of the prerogative orders he had applied for. The learned counsel reiterated the three grounds upon which the application was based as demonstrated above, and pointed out that, had the learned trial judge considered them, he would have granted the orders prayed for.

        On her part, Ms Otaru, strongly resisted the appeal on the ground that the learned judge’s direction was proper in the sense that, if the orders applied for by the appellant would have been granted, that would have deprived Christina Pendo of her Plot unheard which would be against the principle of natural justice that prohibits a person to be condemned unheard. The learned State Attorney pointed out that, Christina Pendo was not a creation of the learned judge but that her name had widely featured in their counter affidavit. Ms. Otaru remarked that, the issue of ownership of the plot was not adequately dealt with by the courts below as the matter was decided on technicalities rather than substantively.

On our part, upon close consideration of the rival submissions by learned counsel for both parties, we think it is instructive first to determine the import of the direction given by the learned judge.

The learned judge dismissed the application and directed the appellant to institute an ordinary civil suit and join Christina Pendo as a party. In his view, Christina Pendo was one of the allocatees of the plot in dispute. With great respect to the learned judge, we think it might perhaps have escaped his mind that the issue as to who was the legal owner of the suit plot had already been determined by Kisutu Resident Magistrate’s Court in Civil case No 94 of 1992. The court had declared the appellant to be the legal allocatee of the plot. That decision was not varied by any higher court. Therefore there was no more question on who was the legal allocatee between the appellant and Pendo.

        After the appellant had been declared the legal owner of the plot, his allocation was revoked by the President through the Minister for Lands and Human Settlements Development. It is against this revocation that the appellant is challenging. He is challenging the manner in which the President acted in revoking his allocation. In his statement before the High Court, he listed three grounds for his complaint, that is;

One, that he was not afforded an opportunity to be heard.

Two, that the President exceeded and abused his discretionary powers.

Three, that the grounds for the revocation were not stated.

He elaborated on these in his written submission through his advocate. The respondents also submitted on the same. Therefore what was left was only for the learned judge to decide on the matter on merits. There was no room for abdicating from making a decision on merit instead of directing the appellant to file an ordinary civil suit and join Christina Pendo as a party.

        As observed earlier on, the issue as to who was the legal owner of the plot between the appellant and Christina Pendo had already been determined by Kisutu Resident Magistrate’s Court. Directing the same issue to be determined would amount to quashing and varying the said decision. We think it is not proper to quash and vary the decision of a subordinate court in an application for prerogative orders against an administrative act. That could be done in an appeal or revision.

        For the foregoing reasons, we are of the firm view that, the learned judge erred in failing to determine the matter on merits and in directing the appellant to institute an ordinary Civil suit joining Christina Pendo as a party.

        In the result, and for the reasons stated above, we allow the appeal with costs, and we quash the decision appealed against. We note from the record that the revocation letter by command of the President appearing on page 98 of the record was brought to the learned judge for his perusal after counsel for both parties had made their final submissions. However both counsel have expressed their view that, in the event the matter is referred back to the High Court for decision on merits on the materials already before the court, they are not desirous of submitting on that letter because, in their view, it is self explanatory. We are aware that the learned judge is no longer in service. He passed away a couple of years ago. Since learned counsel for both parties had already filed their written submissions, and since they are not desirous of submitting on the revocation letter which was brought to court after submitting their submissions, and for the interest of justice, we do hereby refer back the matter to the High Court for decision on merits by the succeeding judge.

DATED at DAR ES SALAAM this 27th day of June, 2007.

S. N. KAJI

JUSTICE OF APPEAL

E. M. K. RUTAKWANGWA

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

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

S.M. RUMANYIKA

DEPUTY REGISTRAR