NATIONAL HOUSING CORPORATION v TANZANIA SHOE COMPANY AND OTHERS 1995 TLR 251 (CA)

NATIONAL HOUSING CORPORATION v TANZANIA SHOE COMPANY AND OTHERS 1995 TLR 251 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA G

Civil appeal No 48 of 1994

October 26, 1995

(From the judgment and decree of the High Court of Tanzania at Dodoma,

Mwalusanya, J) H

Flynote

Constitutional interpretation - Parties to proceedings involving interpretation of

Constitutional provisions enshrining basic freedom, rights and duties - Attorney

General a necessary party - Section 17A(2) of the Law Reform (Fatal Accidents and

Miscellaneous I

1995 TLR p 252

KISANGA JA

A Provisions) Ordinance, Cap 360, as amended by Act No 27 of 1991.

Constitutional interpretation - Parties to proceedings involving interpretation of

Constitutional provisions for basic freedoms, rights and duties, and competence of the

court - Court proceeding with hearing without summoning Attorney General to

appeal as a party - Consequences thereof. B

-Headnote

The High Court entertained proceedings involving the interpretation of the

Constitutional provisions enshrining basic rights and freedoms without summoning

the Attorney General to appear as a party in the proceedings. On appeal the Court C

of Appeal considered whether or not the High Court was competent to proceed with

the hearing without the Attorney General.

Held:

D (i) The Attorney General was not summoned as a party to appear for the

hearing of the proceedings and the failure to so summon the Attorney General by the

trial court contravened the provisions of s 17A(2) of the Law Reform (Fatal Accidents

and Miscellaneous Provisions) Ordinance, Cap 360 as amended by Act No 27 of 1991;

E (ii) Since the trial commenced and continued in the absence of a necessary

party the Court proceeded without authority and that constituted a major defect

which went to the root of the trial thus rendering the proceedings null and void.

Case Infomation

Appeal allowed.

F Case referred to:

(1) Laura Alfan Salum and 9 Others v. Minister for Land Housing and Urban

Development and National Housing Corporation. Civil Appeal No 15 of [1994] TLR

237

G N Rweyemamu, ED Kisusi and N Mselem for the appellant.

D C Mbezi, for the respondent.

E Kifunda and S B Salula for the Attorney General.

[zJDz]Judgment

Kisanga, JA: delivered the following considered judgment of the Court:

H This appeal arises from the decision of the High Court (Mwalusanya, J) granting

orders of certiorari and prohibition against the appellant, The National Housing

Corporation (NHC), for having effected rent increases to its tenants to the tune of

800% per annum. Before the matter proceeded to hearing the Trial Judge, following

representations from the Bar, ruled that in terms of s 17A(2) of the I

1995 TLR p 253

KISANGA JA

Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap 360, A

as amended by Act No 27 of 1991, the Attorney-General be served to appear. The case

was then adjourned a number of times between 23 July 1993 and 16 June 1994

because the Attorney-General could not be served. The record shows that when the

case came up for hearing on 16 June 1994 Mr Mussa, the senior state-attorney,

Dodoma, communicated information to the Court: B

Mussa - Senior State Attorney: We do not like to be heard. Counsel for the

defendants will take care of our interests. C

Following receipt of such information the Court proceeded to hear the case at the

conclusion of which it granted orders of certiorari and prohibition as indicated above.

In this appeal the appellant corporation is represented by a team of three D

advocates, namely, Mr N Rweyemamu, Mr E D Kisusi and Mr N Mselem. The

respondents are represented by Mr D C Mbezi, learned advocate, while the Attorney

General was at first represented by Mr E Kifunda and later by Mr S B Salula, learned

State Attorney and Senior State Attorney respectively. E

On behalf of the appellant, a memorandum of appeal was filed containing a total of 13

grounds of appeal. But at the commencement of the hearing we directed counsel for

both sides to address us first on grounds three and four only which raise the issue of

jurisdiction or competence of the trial Court, it being apparent F that should those

grounds succeed, that was sufficient to dispose of the entire appeal, and it would serve

no practical purposes to argue the rest of the grounds. The two grounds allege as

follows:

3. That the learned Trial Judge erred in law in holding that the G

Attorney-General was duly served without considering the question whether the

Attorney-General, or his representative designated by him for that purpose, was

summoned to appear as a party to the proceedings in the trial Court.

4. That the learned Trial Judge erred in law in commencing and

continuing H the proceedings in the trial Court without summoning the Attorney-

General, or his representative designated by him, for that purpose to appear as a party

to the proceedings in the trial Court.

Essentially these grounds are alleging non-compliance with the provisions of s 17A

(2) of the Law Reform (Fatal Accidents and I

1995 TLR p 254

KISANGA JA

A Miscellaneous Provisions) Ordinance, Cap 360, as amended by Act No 27 of 1991.

That sub-section provides that:

'17A (2) In any proceedings involving the interpretation of the Constitution

with regard to the basic freedoms, rights and duties specified in Part III of Chapter I

of the Constitution, no B hearing shall be commenced or continued unless the

Attorney-General or his representative designated by him for that purpose is

summoned to appear as a party to those proceedings; save that if the AttorneyGeneral

or his designated representative does not appear before the Court on the date

specified in the summons, the court may direct that the hearing be C commenced or

continued, as the case may be, ex-parte.'

The sub-section requires that the Attorney-General be summoned as a party in the

proceedings which involve the interpretation of the Constitution with regard to basic

rights and freedoms enshrined in the Constitution. D

Mr Mbezi seemed to doubt the applicability of this provision to the facts of the

present case which, in his view, did not raise the question of interpretation in the

sense of clarifying some provision or provisions of the Constitution. With due E

respect however, we think that this argument is misguided. The case seeks to

challenge the constitutionality of Government Notice No 41 of 1992 which, it is

alleged, is discriminatory on its effect and which denied the respondents their right to

be heard before the appellant corporation, their land lord, effected rent increases F

unilaterally and arbitrarily. We are of the settled view that these are matters which

fall squarely within the purview of the sub-section, and we can find no justification

for counsel's misgivings on that point. It seems that a question might G arise

whether or not the claims of unconstitutionality can be remedied or redressed upon

application, as in this case, for certiorari and prohibition, but that of course is a

different matter; the point here is that the issue of constitutionality of a subsidiary

legislation was raised, in which case sub-section (2) above quoted was applicable.

H The pertinent question now, therefore, is whether or not the trial was conducted

in contravention of s 17A(2) of Cap 369 as amended by Act No 27 of 1991. For the

appellant corporation it is alleged that it was, and the Attorney General is in

agreement. However, the advocate for the respondents maintains that it was not. In

an attempt to resolve this question we recorded additional evidence from a number of

witnesses. Mr K M Mussa, Senior State Attorney I

1995 TLR p 255

KISANGA JA

Dodoma, in his evidence before us seriously disputed the endorsement on the A

court record by the Trial Judge on 16 July 1994 to the effect that they did not wish to

be heard and that counsel for the defendants/appellant corporation would take care of

their interests. Mr Mussa denied making any such statement and indeed went on to

say that on the day in question, i.e. 16 June 1994, he was on safari B away from

Dodoma where the proceedings were being conducted.

Further additional evidence from witnesses confirms that on the day in question Mr

Mussa did not, in fact, attend the court in Dodoma to state therein what has been

attributed to him. On the evidence, what appears to have happened was that when on

16 June 1994 the Attorney General did not appear, and indeed there is no C

indication whatsoever that he was summoned for this date, the Trial Judge adjourned

the case briefly with instructions to his clerk, one Mr B S Kihame, to contact the

office of the Senior State Attorney Dodoma to find out what was the position of the

Attorney General in the matter. According to Mr Kihame who gave D additional

evidence before us, he spoke to Mr Mussa over the telephone, and the gist of that

conversation as reported back by Mr Kihame is contained in the Judge's endorsement

on the file as reproduced earlier.

In a further attempt by Mr Mussa to establish his absence from Dodoma on the E

particular day, he stated that between 12 June 1994 and 22 June 1994 he was away in

Singida on a special assignment by the Minister for Justice, that he had taken out an

imprest for his subsistence allowances covering that whole period, that he returned to

Dodoma on 19 June 1994, and finally he referred to a document F dated 30 June

1994 against which he had retired the said imprest. He therefore maintained that he

could not have been in Dodoma on 16 June 1994 to state that he is alleged to have

told the Judge's clerk over the phone.

It is not conclusive that on 16 June 1994 Mr Mussa was not, or could not have G

been, in Dodoma. While Mr Mussa maintains that he was away on that day and that

he returned to Dodoma only on 19 June 1994, Mr Kihame, the judge's clerk, equally

maintains that he spoke to him over the phone in Dodoma that day and got from him

the information which he relayed to the judge. Thus it amounts to one H man's

word against another, and there is really no good reason for preferring the one to the

other. As the evidence stands, it is possible that Mr Mussa could have returned to

Dodoma before 19 June 1994 and thus could have spoken on the phone to Mr Kihame

on 16 June 1994.

However, even assuming that this is what, in fact, happened, does I

1995 TLR p 256

KISANGA JA

A it amount to saying that there was compliance with the provisions of sub-section

(2) above quoted? In order to comply with that sub-section, it was necessary to show

that the Attorney General or his representative designated for that purpose was

summoned to appear as a party to the proceedings. Mr Mbezi contended that the

Attorney General was duly summoned, and in support of this B submission he relied

on a summons dated 19 October 1993 sent to the Attorney General and requiring him

to appear for mention of the case on 12 November 1993. However, in that summons

the Attorney General is not cited as a party. He is C summoned merely as the

Attorney General, while the only parties to the case are shown to be Tanzania Shoe

Company Ltd and 28 Others (plaintiffs) and National Housing Corporation

(defendant).

In this connection reference was made to the case of Lausa Alfan Salum and Others v

Minister for Lands and Housing and Urban Development and National D Housing

Corporation (1) in which, as in the present case, the constitutionality of Government

Notice No 41 of 1992 was challenged. It was contended that in that case the Attorney

General was not cited as a party, and yet this court proceeded to deal with the appeal

on the merits. It seems to us, however, that that case is E distinguishable. In the first

place in that case no objection was raised that the Attorney General was not cited or

summoned as a party. In the present case, however, the non-summoning of the

Attorney General was objected to from the very beginning of the trial. Indeed as

shown above, Lausa's case cited the Minister F for Lands, Housing and Urban

Development as a party, and at the hearing the Minister was represented by the

Senior State Attorney. The clear object of sub-section (2) above quoted is to make sure

that the government is afforded the opportunity to be heard upon a application for a

prerogative order. Thus it seems to G us not an irregularity which went to the root

of the matter. For, one can say that the Government was, in a real sense, a party to

the case especially as the Senior State Attorney on behalf of the Attorney General and

representing the Minister for Lands, Housing and Urban Development, appeared and

participated in the proceedings. In other words the government was, in a true sense,

afforded the H opportunity to be heard. There was compliance with the spirit,

though not with the letter, of the sub-section, and had the Attorney General been

cited instead of the Minister, it would not have made the slightest difference in the

conduct of the proceedings.

In the instant case the summons which was addressed to the Attorney General was

returned with an endorsement on it that: I

1995 TLR p 257

KISANGA JA

'Attorney General is not a part of (sic) this suit. I think that this notice was to

be served to the A Secretary, National Housing Corp.'

It seems plain to us that by such endorsement the Attorney General refused, and

rightly so in our view, to accept service. Thus we could find no justification

whatsoever for the view that the said summons was asking the Attorney General to

appear on 12 November 1993 for the purpose of mentioning the case only. But B as

intimated earlier, there is not the slightest evidence or suggestion that any process

was ever sent out to summon the Attorney General for the hearing of the case either

on 16 June 1994 when the hearing commenced or any day subsequent thereto. C

Once we hold, as indeed we do, that the Attorney General was not summoned as a

party to appear for the hearing on 16 June 1994, then there can be no basis for saying

that Mr Mussa, the Senior State Attorney Dodoma, was summoned as the Attorney

General's representative designated for the hearing on 16 June 1994. For, D the

Attorney General cannot have designated Mr Mussa to take part in the proceedings

on 16 June 1994 to which proceedings the Attorney General himself was not

summoned and to which he was not a party. In which case, therefore, the calling by

the court upon Mr Mussa on 16 June 1994 and what Mr Mussa is alleged E to have

said on that day that they did not wish to he heard etc. even if it be true, all this

becomes wholly irrelevant for the simple reason that Mr Mussa was not the

representative of the Attorney General within the meaning of the sub-section. In

other words, in terms of the sub-section, Mr Mussa had no authority to be F

contacted or to say anything on behalf of the Attorney General in this matter,

especially after the Attorney General had expressly stated on the summons which was

sent to him that he was not a party to the case.

It is true that the sub-section under consideration empowers the Court, in certain G

circumstances to commence or continue hearing the ex-parte if the court so directs.

But in this case the court did not direct that the hearing be commenced or continued

ex-parte. Indeed, if we may say so in passing, the circumstances of the case could not

have warranted any such direction. H

The available evidence therefore amply demonstrates that on 16 June 1994 the

Attorney General or his representative designated for the purpose was not summoned

as a party to the case before the court. Indeed the Attorney General was not

summoned at all on that day or any day thereafter. Nor did the court direct that the

proceedings be commenced or continued ex-parte. Section 17A(2) of I

1995 TLR p 258

KISANGA JA

A Cap 360 as amended by Act No 27 of 1991 reproduced above is couched in

mandatory terms, and in the light of the foregoing the hearing of the case was

commenced and continued in contravention thereof. The trial was commenced and

continued in the absence of the necessary party and in the absence of any B

direction by the trial Court to do so. Thus the court proceeded without authority and

that constituted a major defect which went to the root of the trial. It rendered the

proceedings null and void. In the event, the appeal succeeds. The proceedings before

the High Court are declared null and void and are accordingly set aside.

C As regards costs, counsel for the appellant corporation asked us to certify costs for

three counsel on the ground that the appeal raised complicated issues and that it

involved the calling of a number of additional witnesses to give evidence during the

appeal.

D Although a total of 13 grounds of appeal were filed, only two grounds were

argued, namely grounds three and four. These grounds raise the issue of commencing

and continuing the proceedings in the absence of the necessary party, i.e. the

Attorney General. That issue had surfaced from the very beginning. Indeed at some

stage before the hearing started the trial Court had to rule, E following

representations from the Bar, that the case be adjourned until the Attorney General

was served. In other words the necessity of having the Attorney General participating

in the proceedings was clearly seen and appreciated from the start. However, as it

transpired, the Attorney General was never served and yet the trial commenced and

proceeded without any direction by the trial Court to proceed without him. F

It ought to have been quite clear to the advocate preparing, or counselling the

preparation of, the memorandum of appeal that the Attorney General's lack of

participation in the proceedings must be made a ground of appeal. Upon a glance G

through the proceedings, it should have been equally easy to see that the appeal stood

great chances of succeeding on that ground alone. In our considered view it was not

really necessary to mobilize or enlist the services of three counsel to see or discover

these points; a single advocate would do for the purpose. It is on that account that we

find ourselves unable to certify costs for three counsel.

In the event, we allow the appeal with costs for one counsel only. H

1995 TLR p 259

A