OMARI FAROUK KARAMALDIN v JUSTINAN R. KAHWA 1996 TLR 100 (HC)

 OMARI FAROUK KARAMALDIN v JUSTINAN R. KAHWA 1996 TLR 100 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkude J

B

CIVIL APPEAL NO 40 OF 1990

17 December, 1990

Flynote

Civil Practice and Procedure - Appeal - Failure to join an affected party as Second

Respondent - C Effect.

-Headnote

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 Appellant. Some four days

later (14 August 1990), and at the instance of an objector, one Mr Mbaga, the same

court D 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 order already

made by the High Court. E

Case Information

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 must cite Mr

Mbaga as a respondent in order to enable him to be heard. F

(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.

Ordered accordingly. G

Chacha, for the Appellant.

Ndyanbo, for the Respondent.

[zJDz]Judgment

Mkude J: On 10 August 1990 the Resident Magistrate's Court of Dar es Salaam at H

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 1990, following objection

I proceedings filed by one Mzava alias Praygod Mbaga, the same court reversed its

decision of 10 August

1996 TLR p101

MKUDE J

1990 and set aside the order of seizure and directed that the vehicle TZ 77961 be A

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 which was

made by this court B 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 of a case which had C

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. D

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 is issued.'

It will be seen that the effect of the order arising from this ruling is to vest possession

of E the vehicle in Mr Mbaga from whom the 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. F

The present appeal falls short of that. Instead only Justinan Rugeiyamu 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

heard. The H 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 to costs. I

1996 TLR p102

A