esso tanzania ltd vs deusdedit rwebandiza kaijage 1989 tzca 13 30 october 1989

IN THE COURT" OF APPEAL OF TANZANIA " AT PAR m SALAAM (OOHAIii WYfLALI. C .J . , ,MHCAKS. =*♦*. . K ISA K gA .jJ.A .. .QHflR. J .A .* R A U /jpN jfJ;W U , MHZ/.yAS. J . A . . AndMFALILA, J »A .) CIVIL APPEAL NO .6 OF 1989 BETWEEN ESSO TANZANIA LIIHTISD (Formerly known as Esso • • • • » • » « • • • APPELLANT Standard Tanzania Ltd*) AND DEUSDEDIT RWi^a'DIZA KAIJAGE........... .. RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Dar es Salaam) (Bahati. J.) dated the 2nd day of August* 1$8Q in Civil Case No«28 of 1981 R U L I N G MFALILA, J . A . i In this appeal* .the appellant company is challenging the decision of the High Court in a judgement in which its dismissal of the .respondent from employment was declared invalid. A total of Six grounds of appeal were filed in the amended Memorandum of appeal* However Prof. Shiv.ii learned Counsel for the respondent filed a preliminary objection against ground H o .1 "on the ground and for reasons that the issues and matters raised therein are res judicata'1. At the hearing, Prof. Shivji submitted that the question of jurisdiction as raised in ground No*1 was finally decided by this Court go appeal from the decision of the High Court in Civil Appeal No* 10 of 1982 and that therefore it cannot be^r^opened in the same Court in the same suit between the same parties* lie added that it was because of this earlier decision that the question of jurisdiction was not even raised at subsecjuert the » trial in the High^Court* . ..♦ / 2 — 2 *~ In reply, Hr. Uaanda submitted, with commendable boldness that the learned High Court judge should have included the issue of jurisdiction as a question for his determination, because it was specifically rained in the Written Statement of Defence and that his failure to do so rendered his judgment bad in law, /,s the learned judge failed to raise this point, he said, the issue is not res judicata* • Having considered the matter, we are of the view that Prof. Shivji is correct. It is true that the question of the Court’ s jurisdiction was raised in the Written Statement of Defence and therefore was one of the issues raised in the pleadings, but it was also raised specifically as a preliminary point at the start of the hearing on the basis that if successful, it would completely dispose of the suit* Indeed the outcome was successful and the suit was completely disposed of by its being dismissed* However, the respondent successfully appealed to this Court which held that the High 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 had already been finally decided by this Court, the learned High Court judge could not reopen the matter by making it one of the issues to be decided by him* £'he question was and is res judicata* For these reasons we uphold Prof. Shivji’ s preliminary objection and order that ground H o .1 be struck off*- Is the question of jurisdiction was the basis for convening the full bench of this Court, this ruling renders such need unnecessary as the rest of the grounfls can be doci led by an ordinary bench* ***/ 3 decided tha.t it should, be so, and it would defea.t the objective ojC the la.w if grants over the same land were made, even by superior authorities siathout consultation, or at the very least- knowledge, of the village -auihorities. This, I am satisfied,, is what happened in the instant case, as is clearly brought out by the testiiaany of D.W.3 ALLY ICLBWMA, the C.C.M. Branch Chairman of the area and one o£ the persons who witnessed the transactions between the appellant and Mmole. There is no evidence that at the time of the said transaction the area had -already been surveyed, infact the Defence evidence is tha.t it had not been. Once the appellant got the plot, in April, 1978, he contacted the Kinondoni District Land Office for a survey ^ad title, aad the same District Land Office turned round and made an offer to the respondent in July, 1973* behind the appellant *3 ba.ck a.s it were, when it knew tha.t the appellant was in poaseasion and wanted a title. According to Kilulumo "The Land Office would not survey a piece of land and allocate it to somebody without involving the Village Gounodl*1. According to the evidence, Mmole got the piece of land from the local authorities, way back in 1 9 0 . Mbezi Village found him already there therefore.. His transfer of liis customary right over the land was witnessed and sanctioned by the village authorities including the Ward Secretary who affixed his official stamp on the document,. ^Cie^g is also an endorsement to the effect tha.t the Party Office had no objection.. One of the witnesses to the transaction was D.U.3 the C.C.M. Chairman of the branch in the Village. o agree with Prof. Fimbo that the Village C0unci] ssary in the case of the transaction involving his client. In iqy view all land transactions in tl^e villa je need village council approval.. - 3 - If I understood T,Ir. Mkatte for the respondent, and I think I did, he submitted that such approval was necessary and was not obtained, A s already indicated X go along with him on the first part *• that approval was neoes8ary,'but I do not share the view that the transaction vas void for lack of such approval. I look at the realities of the situation* Chairman agrees, the Ward Secretary gays there is no objection*cad the official stamps are affixed in the presence of witnesses. 'I’ hoL-e authorities were acting on b«hal£ of the village and I am satisfied that the sale by Mmolo, and the purchase by the appellant^vere effective and good in the circumstances. The transaction was regulated by the authorities and there is no evidence that the portion of land had at the material tom© already b&en alienated from the village. I am of the view that the respondent's Right of Occupancy was in i s s u e d im^ropur circumstances and did nothing to disturb or extinguic’ .i the appell a n t s right, I would allow the appeal with costs, DATED at DAP, E3 SALAAM this 30th day of October, 1986. L. M. MAKAME JUSTICE OF APPEAL I certify that this is a true copy of the original, (J. H. MSOFEE) DEPUTY REGISTRAR.