199861030 TZCA Dar es Salaam

(OOlWb N~1, _c._du .r,wwi:w, :J•A•. -~s~·1~£tt/•A~.1 ;qiiIAR. J,A0 &;lMtii::W,Is-!.·11., MN&£,JA§~ .i,ri.·u 4A4 MEt,1ti14, :j •t+•Y . .. CIVIL 1..PPE.t.L NO .o OF 1989 BE~ ESSO TIJJZANI:.. LIHIT".i!:D (Formerly known as Esso • . • • • • • • • APPELL.'J-iT Stand.a.rd Tanzania. Ltd.) DEUSDEDIT RWl~B.'..rDIZl.. IC.IJ:..GE • • • • , •• • • RESPOlTDEi·JT (Lppeal from the Judgement of the IIigh Court of.Tanzania at Dar es Salaam) '- (Baba.ti, J.) . dated the 2nd da3 of Lugust, 1988 ( in Ciyil Case No 128 of 1981 RULING ln this appeal, the appellant company is euallenging the decision · of t!le Iligh C?urt in a ju~ement in which i~as dismissal ot tb.~ respondent from employment wa.s declared invalid • . f .. total of Six grounds of appeal were filed in the amended liemora.ndum I of appeal. However Proft Shivji learned Counsel for the respondent filed . . a. preliminary objection against ground Ho.1 "on the ground a.."'ld fo':i: reasons that t.J.e issues and matters raised therein are res judicata.11 • :..t tlle hea.ri~, Prof. Shivji submitted that the question of jurisdiction as raised in ground No.1 was finally decided by this Court ~D appeal frem t!:l.e decision of tb.e Iiigb. Court in Civil .lppeal i:fo • 10 of 1982 a.l!d that therefore it cannot be~reopened in the same Court in the same s~it between ~ t~e same parties, Ile added that it was becat-i.se of this earlier decision that the question ot jurisdiction was not eve.1 raised at aubseqt.'.ert the , trial in the IIigh~Court. ••• /2. ... 2 ... In reply, Mr. Uze.nda submitted with commendable boldness that the learned IIigh Court judge should have incll.1.ded the issue of · juri.sdiction as a question for his determination, because it was specifioally raiced in tb.e Written Sta.ter,1ent of Defence and that hie failure to do so rendered his judgment bad in law~ 1-..s the learned judge failed to raise this point, he said, the issue is not res judica.ta. • IIaving considered the matter, we are of the view that Prof. Shivji is correct. It is true tllat the question of the Court's jurisdiction was raised in the \'Tritten Statement of Defence and therefore was one of the issues raised i11 the pleadings, but H was also raised specifically a.s a preliminary point at the start of the hearing on the basis that if successful, it would completely dispose of the suH. Indeed the outcome was successful and the S\..1.i·~ was completely dispooed of by its being dis,:1issed. However, t!le respondent successfully appealed to this Court which held that the ITigh Court had jurisdiction to try the case, This Court ordered the trial to proceed,- When therefore the trial opened before Bahati, J. on 14/4/88, the question of jurisdiction llad already been finally decided by this Cour·~, t~1e learned IIigh Court judge could not reopen the matter by making it one of the issues to be decided by him. The question was and is res ji..ldicata. For these ri;;asons we up.:1.old Prof. s:1iv ji ts prelirninarJ objection and ord8r that ground No.1 be struck off •. ..:.s the question of jurisdiction was tlle basis for eonveni11g the full bench of this Court, this ruling renders such need unnecessary as ,,,, the rest of the grovntls ca11 be dccLled by an ordinary bench.• ..•• J,3 \ .... 2 d.ecided tha.t it should be so, and. it would defea.t the objective ot the la,w if grants over the same land were ma.de, even by superior autho.ri.ties io.thout consultation, or at the very- lea.st knowledge, of the villag.e .au.tho.rities. This, I a.m aa:t.ia1:ied..,. is wha.t happened in the instant case t a.s is clea.r1y brought out by the testilnor.Jy of D.W.3 ALLY Ia.Bl.JANA, the C.C.I-1. Branch Cha..irrnan of the .a.z:ea. and one o! the persons who witnessed the transactions between the appellant i:Uld Nmole. There is no evidence t ha.t a.t the time of the sa.id tz-a.nsa.otion the a.rea ha.cl. a.lrea.dy be-en surveyed, infa.ct the .De.fence evidence is tho.t it ha.c1. not been. Once the appellant got the plot, in April, 1978, i1e contacted the Kinondoni District Land Office for a survey -and title, a.nd the same District Land Office tu.med round and made an offer to the respondent in July, 1978, behind the appella.nt •s back a.a it were, when it knew the.t the a,p)ellant was in pos-se.saion a.nd wanted a title. Accordinc to Kilulumo "The Land O.ff ice would not survey a. r;icce of land and aJ.loca.te it to somebody without involving the Villacc Couno.il". i.. According to the evidence, Mmole got the piece of land from the local authorities 9 wey ba.ck :in 19G3. Mbezi Village found him already there therefore.. His transfa of !\is customa.ry right over the land was witnessed and sanctioned by the village authorities including the Ward Secreta.ry who affixed his official stamp on the docwnent. 'ltiere is also an rmdorsement to the &ffect tha.t the Party Office had no objection.. One of the witnessies to the· transaction wn.s D.M .3 the c.c.n. Ohalrman of the Branch in the Village •. ag.re,e with Prof •. Fimbo that the Village Council in the case of the transaction involving his client. In rrzy- view all land. tJ:a.nsantions in tilt' villaJe need village council approval •. - 3 - I! I underst00d. :'1r. Mka.tte for the respondent, a.nd I think I did, h& submi.tteC:, th.a.t suoh a.pproval waJ:J necessary and was not obta.ined, .As alr~e,d,y' indicated I go along with him on the first pa.rt ,.. that &pprOTal wa.a neoessa.ey, but I do not share the view tha.t the tranae.otion waa void !or la.ck of s:1ch approval. I look at the realiti,ee of the situation, Tl¥') Chairman agrees, the Ward Secretary ~qa there is no objection, c~,d tb.e official stamps a.re affixed in the presence of witnesses. 'l'hoc:e a.uthorities were a.cting on ~halt' <>£--the vW,age and I am sa.tisfied that the sale by Mmolo, and the purcha.se by the appelJ.ll!1t 19wre effective end good in the cit'oum.stances. The transaction wa.s regulated by the authorities a.nd there is no evidence tha.t the portion of land hsd a.t tha lllB,t,p:ia.J. t.uoe a.lrea.cl::r be.en eliena.ted. fron tha village. I ar.1 of "!;he view tha.t the respondent's Right of Occupancy was .:in issueciir.1:,::c:c.;;;~r cu:ownsta.nces and did nothing to disturb or extinguj,-:.;'.1 the appella.nt•s rig-ht. I would allow the appeal wi~h costs. DATED a.t DAJ.1 ES SALAAM this 30th dey·of October, 1986. ,· I i L. M. MAKAME JUSTICE OF APPEAL I certify that this is a true copy of the original. vvl·if? l (J. H. MSOFFE) DEPUTY REGISTRAR, ) , . .•.