oysterbay properties ltd another vs kinondoni municipal council others 2011 tzca 167 18 november 2011

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IN THE C O U R T O F APPEAL O F TAN ZA N IA

AT P A R ES SALAAM ( C O R A M : M SOFFE, J.A., KIM ARO, 3.A. And M JASIRI, 3 . A . ) CIVIL REVISION NO. 4 O F 2011 1. O YSTERBAY PRO PER TIES LTD. 1 ............. A P P LICAN TS/D ECR EE HOLDERS 2. KAHAM A M INING C O R PO R ATIO N LTDJ

VERSUS 1. KINONDONI M U N ICIPAL C O U N CIL ] 2. THE HON. A TTO R N EY G EN ER A L L......D EFEN D AN TS/JU D G M EN T DEBTORS 3. CO M M ISSIO N ER FOR LANDS J AND 1. PATRICK RU TA BA N ZIBW A 1 2. JOSEPH ISHEN YI SH EW IO I ....................................RESPONDENTS 3. MRS. A LBIN A BURRA (Revision from the decisions of the High C ourt o f Tanzania, (Land Division) at Dar es Salaam ) (Nchim bi, J .) dated the 19th day o f O ctober, 2009 and 2nd Septem ber, 2011 in Land Case No. 14 o f 2008

RULING OF THE COURT 9 & 18 November, 2011 MSOFFE, J.A.: Before us are revision proceedings. For proper appreciation of the circumstances in which the Court was prompted to take this course under Section 4 (3) of the Appellate Jurisdiction Act (CAP 141 R.E. 2002) it is convenient to set out the background of the matter. For convenience and ease of reference we will refer to the parties herein by their names or titles, as the case may be. Although the parties are cited as applicants, defendants/judgment debtors and respondents, respectively, we will not refer to them as such in this Ruling because by its nature, strictly speaking, in this application there is no applicant or respondent. Henceforth, the citation herein above is essentially for convenience only. We also wish to state here that in exercise of our discretion under Rule 65 (6) of the Tanzania Court of Appeal Rules, 2009 we invited the parties to address us. In the process, further to their oral submissions the parties' respective advocates filed written submissions. While we commend them for the effort we will not address each and every point that was raised in their submissions. On 24/1/2008 Oysterbay Properties Ltd. and Kahama Mining Corporation Ltd. instituted Land Case No. 14 of 2008 before the Land Division of the High Court of Tanzania at Dar es Salaam against Kinondoni Municipal Council, The Hon. Attorney

General and the Commissioner for Lands. Among the reliefs sought were: - 3 (a) A declaration that the su it land, P lo t Nos. 1860 and 1861 is the property o f the 2nd P la in tiff and not o f the Defendants. (b) Dem olition o f the buildings b u ilt by the Defendants and vacant possession o f Plots Nos. 1860 and 1861. Thereafter, there were several adjournments. On 19/11/2008 the case was assigned to Nchimbi, 1 to mediate as a mediator Judge. The proceedings that followed do not show clearly whether the case went to full mediation. Instead, on several occasions the parties sought adjournments because they were trying to settle the matter out of court and, if successful, come back to court and record a settlement. On 16/10/2009 the parties executed a DEED OF SETTLEMENT AND COMPROMISE OF SUIT which they presented for filing in court on 19/10/2009. Under the Deed of Settlement Oysterbay Properties Ltd. were to be given alternative plots. On 19/10/2009 Nchimbi, X made the following Order in the presence of all the parties: - O rd e r: In term s o f the settlem ent deed file d herein in respect o f the instant case, the m atter is m arked as settled. The term s o f the deed are hereby registered to form the basis o f the decree. Thereafter the Order, which was a consent judgment so to say, was followed by a decree in which, as per the terms of the Deed of Settlement, ordered thus: - 1. That the 1st Defendant's P lo t Nos. 1272 and 1273 M sasani Peninsula b e converted to com m ercial/residential user and be transferred/allocated to and vest in Oysterbay Properties Ltd. as leg al and beneficial owner thereof.

2. Each p arty sh a ll bear its costs.

3. That th is com prom ise sh a ll be file d a n d th e H o n o u ra b le C o u rt is re q u e ste d to iss u e a d e cre e in it s term s.

4. T h a t u p on sig n in g o f th is D eed, th is case sh a ll be m arked settled and there w ill be no further claim s whatsoever. (Emphasis supplied.) From this outset, we wish to consider and decide whether the above so called decree was a decree in the true sense of the law capable of giving rights to the parties. In this regard, there are a number of points we will make as shall be demonstrated hereunder. Under Section 3 of the Civil Procedure Code (CAP 33 R.E. 2002) (the CPC) a decree is defined as: - ... the form al expression o f an adjudication which, so fa r as regards the court expressing it, c o n c lu s iv e ly d e te rm in e s th e rig h ts o f th e p a rtie s with regard to a ii o r any o f the m atters in controversy in the suit... (Emphasis supplied.) In our considered view, the above decree did not conclusively determine the rights of the parties. We say so because a close look at paragraphs 1, 3 and 4 thereto will show that its full implementation was dependant upon the taking of further and future action(s) in the matter. This is evidenced by the use of words like.../re converted to...be transferred/allocated... upon signing o f th is Deed... etc. In this sense, if 6 the future events or actions were not going to happen the rights of the parties would not have been conclusively determined. If all that were to happen, we think with respect, the decree was

going to be only an empty document incapable of giving rights to the parties. We do not therefore, think that the above was the sort of decree envisaged under section 3 (supra). The Deed of Settlement, which led to the Order dated 19/10/2009 and the eventual decree, was a contract, if we may respectfully say so. It is elementary that a contract is an agreement entered into by two parties or more with the intention of creating a legal obligation. Any valid contract will contain terms which are certain and complete. If the terms of the contract are uncertain or incomplete, the parties cannot be said to have reached an agreement in the eyes of the law. Indeed, section 29 of the Law of Contract Act (CAP 345 R.E. 2002) underscores this same point. Section 29 reads: - 66. An agreem ent, the m eaning o f which is not certain, o r capable o f being m ade c e rta in is void. In this sense, conditions are terms which go to the very root of a valid contract. A look at the Deed of Settlement will show that it was uncertain and incomplete because, as already observed, its execution was dependant upon future actions. Furthermore, no terms in the form of conditions were attached to the Deed! Ideally, there ought to have been conditions attached to it with the usual default clause, of course. So, since the Deed was uncertain, incomplete and had no conditions attached to it, it follows that in

law it was not a contract. Since it was not a contract it was not capable of forming the basis of the Order dated 19/10/2009, the resultant Decree and the subsequent proceedings which we will address hereunder. The Decree in this matter also suffers from another serious difficulty or shortcoming. As correctly submitted by Mr. Michael Jeremia Kamba, Mr. Pius Mboya and Mr. Athumani Matuma Kirati, learned Principal State Attorney, Senior State Attorney and State Attorney, respectively; and also by Mr. Audax Kahendaguza Vedasto, learned advocate for Mr. Patrick 8 Rutabanzibwa, Mr. Joseph Ishenyi Shewio and Mrs. Albina Burra (cited herein as respondents but are not parties in Land Case No. 14 of 2008), compliance with paragraph 1 of the decree required actions from two Government departments. In terms of Section 6(3) (k) of the Urban Planning Act No. 8 of 2007 the first action of change of use of the land was to be done by the Director of Urban Planning. The second action was to be effected by the Commissioner for Lands who would allocate the lands and issue certificates thereof. The question, as posed by Mr. Vedasto, would be whether these persons were part of the land case in question. As correctly answered by him, we agree with him that the quick and incorrect answer would be that they were parties by virtue of the fact that the Attorney General was party to the Deed of

Settlement in whose name under Section 6(3) of The Government Proceedings Act (CAP 5 R.E. 2002) all suits against the Government are filed. But that would be a simplistic answer because under Section 6(2) thereto the Attorney General comes in only after the other Government departments and officers have taken part in receiving the ninety days notice within which to deal with the case in issue. Section 6(2) provides: - 9 6(2) No su it against the Governm ent sh a ll be in stitu ted and heard unless the claim ant previously subm its to the Governm ent M inister, Departm ent o r o fficer concerned a notice o f not less than ninety days o f h is intention to sue the Government\ specifying the basis o f the claim against the Government-r and sh a ll send a copy o f h is claim to the Attorney-General. In this case, the notice appearing on page 38 of the record was addressed to the Commissioner for Lands, among others. The record does not show whether the Director of Urban Planning was served with the notice as per the requirement under section 6(2) above. At any rate, the notice was "for the recovery o f m ore than USD 1,372,000 plus co sts..." The notice therefore, had nothing to do with the plots mentioned under paragraph 1 of the decree. Be as it may, execution of paragraph 1 of the decree would not have, therefore, been possible for want of involvement by the Director of Urban

Planning from the early stages of the case. In conclusion on the above points, since there was no decree capable of execution it follows that all the subsequent proceedings in the matter were a nullity because they had no leg to stand on. They had no basis, so to speak. For this single reason, we could have easily determined these revision proceedings at this stage by making the necessary order for nullification of the relevant proceedings. But for purposes of completeness, we have found that it is necessary and prudent to visit the other proceedings in the record before us. As can be gathered from the record, execution of the above decree became impossible, perhaps due to some of the reasons we have endeavoured to give above. This prompted Oysterbay Properties Ltd. and Kahama Mining Corporation Ltd. to file an application on 22/3/2010 citing Mr. Patrick Rutabanzibwa, Mr. Joseph Ishenyi Shewio and Mrs. Albina Burra as the 1st, 2nd and 3rd respondents, respectively. The application, which was by way of a chamber summons, was made under Section 95 of the CPC and Section 2(3) of the Judicature and Application of Laws Act (CAP 358 R.E. 2002) plus any other enabling provisions, and it was intended "to summon the Respondents herein and punish them fo r violating the dear and categorical orders o f th is Honourable Court, Hon. A. A. Nchim bi, J. in Land Case No. 2008... dated l$ h O

ctober 2 0 09 ..." It is also evident from the averments under paragraph 7 of the affidavit deponed by Mr. ABBA PATRICK MWAKITWANGE that the application was also intended to ensure that "the honour and dign ity o f the court as w ell as the office o f the Attorney G eneraf'w ere not brought into disrepute. Nchimbi, X heard the parties by way of written submissions. On 2/9/2011 he delivered his Ruling in which he found Mr. Patrick Rutabanzibwa, Mr. Joseph Ishenyi Shewio and Mrs. Albina Burra "guilty" of civil contempt and accordingly sentenced each one of them to pay a fine of shs. 500,000/= or six months imprisonment in default. It was also ordered that: - ...a ll co n ce rn e d have to com ply with the term s o f the deed o f settlem ent registered by this court on 19/10/2008 (sic) by signing the title deeds also w ithin a span o f five days from today... (Em phasis supplied.) As submitted by Mr. Kamba, Mr. Mboya, Mr. Kirati and Mr. Vedasto, we too are of the view that the "contem pt"proceedings were pregnant or fraught with several problems/shortcomings in law. We will not address all the shortcomings canvassed by learned counsel. For purposes of this Ruling, we will highlight only a few features in the said proceedings. 12 To start with, as already stated, the application was made under Section 95 of the CPC. This is a general provision which is usually invoked where there

is no specific provision to cover a particular situation. In this case, for all intents and purposes, this was an application for execution of a decree. If so, the proper provision that ought to have been invoked in support of the application ought to have been Section 42(c) of the CPC which reads in part as follows: - 42. ... the court may\ on the application o f the decree holder, order execution o f the decree - (a )... (b )... (c) by arrest and detention in prison. In this sense, it was wrong to move the court under Section 95. We are supported in this view by this Court's decision in Tanzania Electric Supply Company v Independent Power Tanzania Ltd; AND The Permanent Secretary Ministry of Energy and Minerals and two Others v Independent Power Tanzania Ltd., Consolidated Civil Applications Nos. 19 of 1999 and 27 of 1999 (unreported) where Samatta, 13 J.A. (as he then was) made the following pertinent observation to the effect that section 95 - ...does n ot confer any ju risd iction on the High Court o r courts subordinate thereto. W hat it was intended to do, and does, is to save inherent pow ers o f those courts. The section is undoubtedly a very useful provision, bu t it is not a panacea fo r a ll ills in the adm inistration o f ju stice in c iv il cases. Com m enting on section 151 o f the Indian Code o f C iv il Procedure, which is in p a ri m ateria with that section,

the learned authors o f The Law o f C ivil Procedure, 6fh ed., observed, a t p .324, as follow s: - The pow er is intended to supplem ent the other provisions o f the Code and not to evade them o r to invent a new procedure according to individual sentim ent. So, prim a facie, section 95 constituted no authority to the High Court to entertain the application before Nchimbi, J. We also note that, as stated above, section 2(3) of the Judicature and Application of Laws Act was cited 14 in support of the application. Admittedly, the CPC cannot be said to be exhaustive. It is legitimate therefore, to apply, under section 2(3) above, the relevant rules of common law and general statutes of application in force in Englandon the twenty second of July, 1920. But that canonly be done where the CPC is silent. In this case, as demonstratedabove,the CPC is not silent. In a number of occasions thisCourt has stated that a court can only be moved to hear and determine anapplication if a proper provision of law is cited. We are supported in this view by a number of decisions made by this Court, notably this Court's recent decision in Chama cha Walimu Tanzania v Attorney General, Civil Application No. 151 of 2008 (unreported) wherein it was stated: - I t m ay also be worth w hile pointing out here that the gravity o f the error in om itting either to cite the enabling provision o r citing a wrong one was succinctly stated by th is Court in the case o f

C H IN A H EN AN IN T ER N A T IO N A L C O O PER A T IO N G R O U P v SA LV A N D K . A . 15 R W EG A SIR A , C ivil Application No. 22 o f 2005 (unreported). This Court s a id :- ...H ere the om ission in citin g the proper provision o f the rule relating to a reference and worse s till the error in citin g a wrong and inapplicable rule in support o f the application is n ot in our view, a technicality fa llin g w ithin the scope and purview o f A rticle 107(2) (e) o f the Constitution. I t is a m atter which goes to the very root o f the m atter. We reject the contention that the error was technical. Henceforth, in Chama cha Walimu the Court stated that the High Court (Labour Division) was duty bound to strike out the application for want of citation of the applicable provision of the law. The principle in Chama cha Walimu equally applies in the justice of this case. Since the court was wrongly moved, Nchimbi, 1 ought to have struck out the application. The next point we wish to address in relation to the "contem pt" proceedings is the right to be heard. The record before us shows that on 15/4/2010 one Mr. Muyunge appeared on behalf of Mr. Patrick Rutabanzibwa, Mr. Joseph Ishenyi Shewio and Mrs. Albina Burra, and intimated that they were intending to file a counter affidavit. On 17/5/2010 Mr. Muyunge reported that they had failed to file the counter affidavit after which he

prayed for, and was granted, extension of time to file the counter affidavit. Up to 21/6/2011 no counter affidavit was filed as a result of which the court decided to determine the application by calling on the parties to file written submissions in support of their respective positions in the matter. The submissions were eventually duly filed. It will be observed at once here that the court took this step without inquiring from Mr. Muyunge as to why the three persons had up to that date failed to file the counter affidavit. In taking this step, we think, with respect, the judge erred. We say so because, although he did not say so in so many words, by asking the three persons to file a counter affidavit he, in effect, invoked the provisions of Order XIX Rule 1 of the CPC by inviting them to prove their side of the case by an affidavit. Having done so, we think, again with respect, the judge ought to have pursued this course to a conclusive end 17 before asking the parties to file written submissions in support of their respective positions in the matter. As it is therefore, in the circumstances of this case, the above three persons were not given a full hearing because they did not put up evidence in the form of a counter affidavit to contest the evidence of Mr. Patrick Abba Mwakitwange contained in the affidavit in support of the application, as it were. Admittedly, they filed

written submissions. But submissions are not evidence. Ideally, submissions are mere statements of law or fact which are meant to supplement evidence already given. In the justice of this case, it occurs to us therefore, that the three persons were not accorded a full and fair hearing before they were "convicted and sentenced". The right to be heard was succinctly underscored by this Court in Halima Hassan Marealle v Parastatal Sector Reform Commission, Civil Application No. 84 of 1999 (unreported) thus:­ ... the concern is w hether the applicant whose righ ts and interests are affected is afforded the opportunity o f being heard before the order is made. The applicant m ust be afforded such opportunity even if it appears that he o r she 18 w ould have nothing to say, o r that what he o r she m ight say would have no substance... As correctly pointed out by Mr. Vedasto, the "co n tem p t"application was for all intents and purposes an attempt by a decree holder to enforce the decree against third parties. The third parties here were Mr. Patrick Rutabanzibwa, Mr. Joseph Ishenyi Shewio and Mrs. Albina Burra. They were third parties because they were not parties to the decree issued pursuant to the Order dated 19/10/2009. With respect, this was improper because the CPC requires a decree to be enforced against a party to the suit. Indeed, this is the import and spirit of Order XXI

Rule 30(1) of the CPC which provides in part thus: - 30(1) W here th e p a rty against whom the decree for... has been passed, has had an opportunity o f obeying the decree and has w ilfu lly fa ile d to obey it, the decree m ay be enforced by h is detention as a c iv il prisoner... (Emphasis supplied.) 19 If we may repeat, since the above three persons were not parties to the suit, or judgment debtors so to speak, the decree could not be enforced against them. Even if the above three persons had properly been found to be liable for contempt the "punishm ent" was illegal for contravening Section 46(1) (b) of the CPC providing for detention of a civil prisoner for a period of six weeks if the decree is not for payment of a sum of money. In this case the decree was not for payment of money so the "im prisonm ent" of six months was illegal. In similar vein, the alternative "punishm ent" of a payment of a fine of shs. 500,000/= would appear to be illegal. Admittedly, the amount of a fine to be paid is not stated in the CPC. In an ideal case however, the court could seek inspiration from Section 114(1) of the Penal Code (CAP 16 R.E. 2002) and impose a fine not exceeding five hundred shillings. Since sub-section (1) above provides for imprisonment for six months it is inconceivable that if it were to provide for an alternative to imprisonment for six weeks it would have stipulated a

fine of 500,000/=! We think that it would have provided for a lesser amount of money. Yet again, the "sentence "meted by the judge was erroneous because it did not 20 provide for possibility of stoppage of detention before expiry of the six months. This went contrary to the spirit of the proviso to section 46 of the CPC which reads in part as under: - Provided that he sh a ll be released from such detention before the expiration o f the sa id period o f... six weeks... (0 - (ii) on the decree against him being otherw ise fu lly settled. Finally, the order that "a ll concerned have to com ply with the term s o f the deed o f settlem ent..." was, as correctly pointed out by Mr. Kamba, Mr. Mboya, and Mr. Kirati, unclear and ambiguous. The order was incapable of enforcement against anybody because it was directed to nobody. When all is said and done, acting under Section 4(3) of the Appellate Jurisdiction Act we hereby quash and set aside the Order of Nchimbi, J. dated 19/10/2009 and all the subsequent proceedings, notably the decree dated 19/10/2009, the chamber application filed on 26/3/2010 and the 21 Ruling of Nchimbi, J. delivered on 2/9/2011. The matter is remitted to the High Court (Land Division) for it to deal with Land Case No. 14 of 2008 in a manner it will deem fit, according to law, from where it stopped on 16/9/2009. We make no order as to costs. DATED at DAR ES SALAAM this 17th day of November, 2011. J. H. MSOFFE

JUSTICE OF APPEAL N. P. KIMARO

JUSTICE OF APPEAL S. MJASIRI

JUSTICE OF APPEAL I certify that this is a true copy of the original. ^ , j (J. S. Mgetta)

DEPUTY REGISTRAR

COURT OF APPEAL