JUDGEMENT ABRAHAM MWANDAMILA KASW NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL APPEAL NO. 21408 OF 2024 (REFERENCE NO. 202408301000021408) ABRAHAM MWANDAMlLA KASW A..................................................APPELLANT VERSUS TOWN PLANNERS REGISTRATION BOARD.................RESPONDENT JUDGEMENT 16/01/2025 & 24/02/2025 MANYANDA, J.: The Appellant, Abraham Mwandamila Kaswa, who, before 07th day of November 2023, was a registered Town Planer with the Respondent, the Town Planners Registration Board, hereafter invariably referred to as "the Borad" or "Respondent", is disgruntled by a decision by the Respondent that deregistered him on allegations of bringing disrespect to the Borad, breaching conflict of interest rules and professional misconduct. He has come to this Court by way of appealunder section 20 of the Town Planners (Registration) Act, [Cap. No.426 R. E. 2019] armed with five grounds of appeal as follows: - Page 1 of 19 1. The decision o f the respondent is a nu llity as it was made without follow ing the statutory procedure requiring the respondent to give the appellant a sufficient and effective notice o f not less than 21 days notifying the appellant o f the inquiry to be conducted against him, thereby causing m iscarriage o f justice and violation o f Section 18(5) o f the Town Planners (Registration) Act, 2007. 2. The decision o f the respondent is a nu llity because it was made without first giving the appellant a notice o f not less than 21 days requiring the appellant to show cause why an inquiry should not be conducted against him in violation o f Regulation 14(2) o f the Town Planners (Registration) Regulations, 2018 (GN No.174 o f 2018). 3. The decision o f the Town Planners Registration Board is a nullity because it was made without follow ing due process o f law and fa ir tria l guarantees and natural justice rules fo r the appellant in that respondent did not issue a notice o f intention to cancel registration o f the appellant under section 27 (1 (c) o f the Town Planners (Registration) Regulations, 2018 (GN No.174 o f 2018) read together with the prescribed Form TPR-9 and respondent did not com ply with the law as it failed to use Form TPR-10 for Page 2 of 19 cancellation o f the registration o f the appellant when it deregistered the appellant. 4. The decision o f the respondent is a nu llity because respondent violated natural justice rights o f the appellant in that respondent did not afford the appellant with copies o f the investigation report which form ed the basis o f an inquiry against the appellant and ultim ately the decision to deregister the appellant and that respondent did not give the appellant the right to be heard a t the m eeting o f the fu ll Board held on 7.11.2023 as the appellant was condemned unheard on 7.11.2023 thus respondent caused greater injustice to the appellant and m iscarriage o f justice. 5. The decision o f the respondent is a nu llity because it was based on a land dispute or m atters fo r which the respondent did not have jurisdiction to adjudicate upon and these were m atters which could have been solely determ ined by a com petent land court but not the respondent. He is praying for declaration that the decision of the Town Planners Registration Board dated 27 December 2023 is null and void, quashing and setting aside of the same decision, reinstatement of his name in the register and be allowed to pay annual membership Page 3 of 19 subscription fees. That if his appeal is allowed, then, costs of the appeal to be paid by the Respondent. A short background of this matter as gleaned from the record reveals that the Appellant has undergone ups and downs in his civil service. After graduating for his Bachelor of Science in Urban and Regional Planning (BSc. URP) studies at the University College of Lands and Architectural Studies (UCLAS) in 2007 got employed by the Government as a Town Planning Officer II and worked in various places in Tanzania. In 2016 when was working with Mpanda District Council was interdicted on allegations, not related with his professional, but as procurement board member, which culminated with his acquittal from criminal charges by Mpanda District Court. Having been reinstated, was transferred to Mpimbwe District Council on 13/07/2016. However, shortly after his transfer, on 26/08/2016, was arrested and charged before the same Mpanda District Court with economic crimes of abuse of position contrary to section 31 of the Prevention and Combating of Corruption Act, [Cap. 329 R. E. 2019] on allegations that he unlawfully surveyed and allocated land without involving its owners. Page 4 of 19 Hence, he was interdicted again and returned to Mpanda District Council. After these charges were withdrawn, he was reinstated on 27/10/2020 and was transferred to Tanganyika District Council on 12/03/2021. Then, shortly after been transferred to Tanganyika District Council, he was on 18/01/2023 accused of committing some professional misconducts, the gist of this matter. He was summoned to appear before the Board on 20/09/2023 to answer three allegations of misconducts namely, violation of planning procedure in purchasing and selling 500 acres of land in contravention of land laws and failure to pay registration fees in violation of sections 28 and 29 of the Town Planners (Registration) Act and Regulation 8(1) of the Town Planners (Registration) Regulations, 2018 (GN No.174 of 2018). On 13/10/2023, the Appellant appeared before what was called in Kiswahili "Kikao cha Mahojiano (interrogation meeting) constituted of "Wajumbe wa Kam ati ya Usim am izi wa Sheria ya Bodi ya U sajiii wa Wataalamu wa M ipangom ji na wataalamu w alioshiriki" the unofficial translation would be "Members of the Town Planners (Registration) Act Compliance Committee and Participant Technical Officers," hereafter the Page 5 of 19 Committee. After entering his defence, the Committee deliberated thus: "c) Maelekezo ya Kam ati i. Kuhusu TP. Abraham Mwandamila Kaswa kudaiwa ada ya mwaka ya shiling i 551,943.57; Kam ati iiim weiekeza kuwasiiisha barua ya 'com m itm ent' ya kuiipa deni hiio. ii. Kuhusu k ijiji kutoa idhini ya kum iiikisha hekta 50 (ekari 123.5) badaia ya hekta 20 (ekari 50); Kam ati iiieiekeza kuwa Menejim enti ya Bodi itafute ufafanuzi wa kisheria utakaobainisha n i eneo Hpiambaio k ijiji hakiruhusiw i kum iiikisha zaid i ya ekari 50 (eneo Unaiomiiikiwa na k ijiji au eneo ioiote ndaniya ardhiya k ijiji)." Literally meaning that in respect of allegations of failure to pay registration fees, the Appellant was directed to submit a commitment latter to pay it, while in respect of purchasing and selling of 500 acres the Committee directed the Board Management to conduct investigation in order to find out whether or not the land in issue was a village land. After all of these, the Appellant was served with a letter by the Registrar of the Town Planners Registration Board, who is also its secretary and was present at the Committee's meeting on 27/12/2023, Page 6 of 19 informing him that he was deregistered by the Board, an act which, as stated above, triggered this matter. When the appeal was called on to hearing viva voce, the Appellant was represented by Dr. Chacha Murungu, learned Advocate and the Respondent enjoyed services of Messrs. Benjamin Kashindye Mihayo, learned Senior State Attorney and Omary Ngatanda, learned State Attorney. After abandoning ground two, Dr. Murungu started kicking the ball, by referring this Court to the famous case on right to be heard, the Mbeya-Rukwa Autoparts and Transport Limited (MRAPATA) vs. Jestina George Mwakyoma, Civil Appeal No. 45 of 2003 now reported in [2003] TLR 251 in which the Court of Appeal of Tanzania discussed principles of natural justice and held inter alia that non observance of the right to be heard renders a decision void and with no effect. Then he argued in support of ground one that the impugned decision dated 27/12/2023 is a nullity because the Board did not give the Appellant a 21 days' notice prior to inquiry per section 18(5) of the Page 7 of 19 Town Planners (Registration) Act and Regulation 14(2) of the of the Town Planners (Registration) Regulations, 2018. The Counsel submitted that the Appellant received a summoning letter dated 20/09/2023 by e-mail from the Board Registrar on 28/09/3023, the hard copy reached him on 22/01/2024 to attend an inquiry on 13/10/2023. According to the Counsel, the period was 15 days only, which is less than 21 days, hence in violation of the Appellant's right to fair trial as he had no enough time for preparing his defence. The Counsel submitted in support of ground four arguing that the Board convened on 07/11/2023 discussed investigation report but the same was not supplied to the Appellant. That, the Appellant was neither notified nor summoned. He concluded on this ground four relying on the cases of Enza Zaden Africa Limited vs. Edwin Kasena, Civil Appeal No. 427 of 2021 and Kibo Berry Limited vs. John Van Der Voort, Civil Appeal No. 248 of 2021 both insiting on supply of investigation report. He argued that non supply of the investigation report means the Appellant was condemned unheard which is violation of natural justice. Page 8 of 19 In respect of ground five, Dr. Murungu submitted that the Board had no jurisdiction the matter before as it concerned land. He argued that the discussion in paragraphs 3(a), (b) and (c) of the impugned decision dated 27/11/2023 were about sale of a farm land of 420 acres, failure to pay income tax from sale of land and absence of village council minutes permitting sale of land. He referred this Court to the provisions of section 167 of the Land Act, 1999 which establishes courts and tribunals empowered to handle land, the Board been not among. Regarding ground three, the Counsel submitted that the decision to cancel Appellant's registration is a nullity in that it did not follow the procedures under Regulation 27 of GN No. 174 of 2018 which provide for a requirement of issuance of a notice of intention to cancellation in the Form TPRB 9 and cancellation notice in the Form TPRB 10. He referred this Court to the case of Ardhi Plan Limited vs. Town Planners Registration Board, Misc. Civil Application No. 01 of 2019 where a Board's decision was nullified for want of a 21 days' notice. He also referred this Court to the cases of Judge In-charge of Arusha and Another vs. Munuo Ng'uni, [2004] TLR 44 and the case of Munuo Ng'uni vs Judge In-charge of Arusha and Another [1998] TLR 460, both discussing on the right to be heard. Page 9 of 19 He prayed for grant of the reliefs asked in the petition of appeal. Responding, Mr. Mihayo opposed the appeal submitting in the same sequence the Appellant's counsel did. In respect of ground one, he argued that the principle of natural justices as expounded in Mbeya- Rukwa Autoparts case (supra) was complied with as the Appellant was accorded with opportunity to be heard via a demand letter with Reference No. AC.87/168/01/B/3 dated 18/01/2023 which required him to give explanations on the allegations levelled against him in 21 days. That the Appellant complied by writing a reply letter dated 30/01/2023 in which he also acknowledged receipt of the demand letter. The Senior State Attorney added that the Appellant was also served by e-mail on 21/09/2023 at 10:00 p.m. with a letter with reference number TP/T0314/0245/15 dated 20/09/2023 which he acknowledged receipt on 22/09/2023 at 11:03 a.m. summoning him to attend at an inquiry meeting convened on 13/10/2023. He was of the view that the Appellant was given more than 21 days, if counted from 22/09/2023 to 13/10/2023. Consequently, the Appellant attended at the inquiry meeting as scheduled on 13/10/2023 and presented his defence case. Page 10 of 19 Therefore, according to him, the provisions of section 18(5) of the Town Planners (Registration) Act and Regulation 14(2) were complied with. The Senior State Attorney submitted in support of ground three that forms TPRB 9 or TPRB 10 are inapplicable in the case at hand because the dispute is under section 18(5) of the Act and Regulation 14(1) of GN No. 174 of 2018. According to the Senior State Attorney, the said forms are applicable where the dispute is under Regulations 8(4) and 27(1)(b) and (c). He was of the view that since the Appellant underwent inquiry under section 19(2) of the Act, then the forms in the Fourth Schedule were inapplicable as they concern a registration cancellation or a cancellation decision without inquiry. Then, Mr. Ngatanda took over the mic and submitted in respect of ground four arguing that Part IV of the Act guides the Board by providing the procedure on conducts of inquiries. That, Regulation 14(1) empowers the Board to conduct inquiries and Regulation 15 provides for the Borad to form a committee to conduct inquiry and report to it. He was of the view that the Board chose to use a committee instead of conducting the inquiry itself and acted on the report submitted to it by the committee where the Appellant was accorded with opportunity to be Page 11 of 19 heard. The Board could not mount another inquiry as that would be double tasks. He distinguished the Enza Zaden Africa Limited vs. Edwin Kasena's cases (supra) arguing that it delt with a labour case under Rule 13(1) of GN No. 42 of 2007 which require investigation report which is not needed in the instant case where only inquiry suffices. In respect of ground five, Mr. Ngatanda conceded that the Board has no power to adjudicate land matters, but he quickly pointed out that in the instant matter, the Board was investigating professional misconduct issue which is empowered under section 5(g) of the Act. He was of the view that since there is no definition of the words "professional misconducts", then it is meant to be wide enough to cover disputes concerning conflict of interest. According to him, the demand letter dated 18/01/2023 contains allegations of professional misconduct such as conflict of interest and in particular, it was about "the manner of obtaining landed property" not ownership of landed property. The State Attorneys prayed the appeal to be dismissed for want of merit. Page 12 of 19 In rejoinder, Dr. Murungu basically reiterated his submissions in chief and added that in this matter the allegations are about ownership and sale of a land, it is more than mere professional misconducts. That, inquiry and investigation are synonymous words, hence there is a requirement of supplying the report. In respect of use of notices, the counsel elaborated that, according to the endorsement on Annexure A2, the Appellant was given only 15 days which is in violation of the law. Those were the parties' submissions; they did a commendable work. After reading both pleadings and the counsel's submissions, I find the main issue is whether the appeal has merit. I will examine the grounds in the same sequence as the parties' counsel did. In ground one, the dispute is whether the Appellant was afforded with fair hearing being served with a requisite 21 days' notice of inquiry within the meaning of the law. In the first place, I agree with the counsel for the parties that it is a legal requirement that before an inquiry is held, it mandatory for the Board to serve the person accused before it with a 21 days' notice. This is a requirement under section 18(5) of the Act which reads as follows: - Page 13 of 19 "18(5) The Board shall, in not less than twenty-one days p rio r to the date o f the inquiry, notify the person against whom inquiry is to be held." In this matter, the Appellant' counsel says on 28/09/3023, his client received via e-mail the summoning letter from the Board's Registrar dated 20/09/2023 which required him to attend at an inquiry on 13/10/2023. This was only 15 days contrary to 21 days as mandatorily required by the law. The counsel relied on an endorsement on Annexure A-2 On the other hand, the Respondent's counsel submitted that the summoning letter was sent to the Appellant via e-mail on 21/09/2023 at 10:00 p.m. received on 22/09/2023 at 11:03 a.m. which is more than 21 days prior to the inquiry. However, the State Attorneys did not point at nay piece of evidence. In their submissions, neither the counsel for the Appellant nor the State Attorneys for the Respondent provided this Court with any tangible evidence on record to support their contentions. The relevant documents in this matter, as far as the impugned decision is concerned, are contained in the Digital File in the Judiciary of Tanzania Electronic Case Management System (JoT e-CMS). I said in the case of Odero Charles Odero vs. National Council for Non-Governmental Organizations and 2 Others, Miscellaneous Civil Cause No 12602/2024 of 2024, [2024] TZHC 5492 (4 June 2024), that the Digital Case File in the Judiciary of Tanzania Electronic Case Management System abbreviated as "JoT e-CMS" has replaced wholesomely the then hard-copy file used to keep records of the case in court before the judiciary going full electronic. The said documents contained in the Board's Proceedings available in the Digital File are a letter written on 18/01/2023 which demanded the Appellant to give explanations against the allegations levelled against him. The same letter does not show how it was served to him and does not tell when it was received by the Appellant. There is also a reply letter by the Appellant to the demand letter giving some details in defence against the allegations. This letter by the Appellant dated 20/01/2023 shows it was received by the Registrar, Town Planners Registration Board on 08/02/2025 and it bears an endorsement that on 09/02/2023, it assigned to a "MEM/EO" for the same to be summarized ready to be tabled before a Legal Committee Meeting. Page 15 of 19 The reply letter is followed by another letter dated 20/09/2023 which is signed by one TP. Immaculate M. Senje, a Deputy Chairman addressed to the Appellant, just as the previous one, this one also does not bear any reception endorsement, hence it does not tell whether it was received by the Appellant. However, on 13/10/2023, the name of the Appellant appeared in the signing list of attendants at a "Kikao cha M ahojiano" (Interrogation Meeting) which was concluded on the same day. The "Kikao cha M ahojiano" document is followed by another document, a notification letter by the Registrar headed "Kufutiwa U sajiii" meaning "cancellation of registration". From these documents I could not discern any evidence showing proof of service of either demand letter nor summoning letter. What the counsel for the parties submitted was only based on their own experience, the same is un supported by any evidence from the record. Can in such circumstances be said that the Appellant was afforded with enough time to get prepared? The answer in my view is in negative. I say so because, in absence of proof of service of the letters inviting him to either give explanations or invitation to the interrogation meeting, it can not safely be said that the Appellant was afforded with time to defend against th allegations levelled against him. Equally, with Page 16 of 19 the same strength, it can not be said that he was afforded with time to present his defence. It is from the above finding that I see the principles of natural justice were violated by failing to give the Appellant time to be heard. I agree with the counsel for Appellant that the principle of law stated in the case of Mbeya-Rukwa Autoparts (supra) was violated. In that case this Court revoked right of occupancy of the Appellant without affording time to hear them, the Court of Appeal on revision, held, inter alia, as follows: - "(v) The right o f hearing is a fundam ental constitutional rig h t in Tanzania by virtue o f A rticle 13(6)( a) o f the constitution; (vi) It was a breach o f the rule o f hearing, thatjustice m ust not only be done but m ust m anifestly be seen to be done, when the tria l judge considered it as needless to give M is Kagera an opportunity to be heard; (vii) The judge's decision to revoke the rights o f M is Kagera and the appellant,without giving them opportunity to be heard, was not only a violation o f the Rules o f natural justice, but also a contravention o f the Constitution, hence void and o f no effect." Page 17 of 19 It follows therefore that the act of violating of rules of hearing against the Appellant by the Respondent in this matter was is fatal and renders such the impugned decision void and of no effect. In the upshot, for reasons stated above, I do hereby allow the appeal and make the following consequential orders: - i) I do hereby declare that the decision of the Town Planners Registration Board dated 27 December 2023 is null and void; ii) I do quash and sett aside of the same decision of the Town Planners Registration Board dated 27 December 2023 iii) I do hereby order reinstatement of the Appellant's name in the register; iv) I order that the Appellant be allowed to pay annual membership subscription fees as required by the law; and v) Costs of this appeal to be paid by the Respondent. Order accordingly. Dated at Dodoma this 24 day of February, 2025 Page 18 of 19 F. K. MANYANDA JUDGE Delivered at Dodoma this day of February, 2025 in presence of the appellant, Mr. Abraham Mwandamila Kaswa virtualy and Mr. Nicodemus Agweyo, State Attorney, for the Respondent. Appeal allowed. Right of appeal dully explained. F. K. MANYANDA JUDGE Page 19 of 19