19870319 TZHC Dar es Salaam

IN THC ~UGH com.T OF T:.:,:Z,~HL AT DAR ES S.~L.,..:.rn J\USCELL,'J!EOUS CIVIL c.-_:m Rt2Yl0J:Cl~ HO. 79 OF 1985 T,\NZ.\ltL':i. ELEC~iUCT SUJ?PLY COMJ?.ANY REG]:OHDENT RULING This :l.s rm o.pplicntion for o.n order to set a.side the order :for "stay of execution" · . court ex-pnrte on 14/ 1O/ 1985. The mode by this o.pplicntion is supported by o.n o.ffido.vit sworn by rars. Mulebyu.,, oounsel for. the o.pplicru!l~ It is purported to be m...'"'.dc under the provision o:f Order 9 rule 13 (1) CPC. which is, in my view 1 ir.iD.;)IJlicr:.ble, because that provision deals exclusively with the setting nside of docroes passed ex-p:--.rte. The respondent brought proceeding before the Resident Wia.gistrnte ot, Kisutu seeking for n temporcry injunction to restrain the o.pplicnnt :from evictine; him from corta.in premises. The procuedj11g wns dismissed 0. by the lenrncd mnGistrote for vmnt off_ co.use of notion. Shortly thereafter the respondent brought o.n up~1lico.tion to ·chis court seeking on order for stny of execution pending the detcrminction of o.n intended nppenl. The nr;plic[:.tion Y1c-.s ~-:oo.rd cx-pnrte boco.use ·c:1e respondent court irnpresGed 1:1pon this L th::t t the mcitter cc.llod for iLuncd:i.ate attention nnd notion. ~s shown nt the beginning, the npplicntion wgs grnnted and the order mnde on 14/10/85. It is r.!rs Mulebyn I s contention thc.t the rospom1ent I s a.pplico.tion w,:-.s. bud in th::..t the provisions of section 22 nnd Or<~...:r 4 rule 1 CPC. were not complied with. With respect, I nm nt n loss to understand thepoint of this submission. Those ~revisions b~ve nbsolutely nothing to do vii th np~;licn.tions. They exclusively deo.1 with the institution.· of suits o.nd they sny thnt every suit sho.11 be instituted by the presenta.tion of n plo.int or in such othc~ mo.m1er 2.r.; nr:.y be prescribed, nnd toot the presentation of n plnint must bu 02dc to the court or such officer as it appoints in that behalf, o.nd that every plnint sho.11 comply with the rules contained ;i..n Orders Eno.n<l 7, so fnr no they are o.pplicnble. Secondly, Mrs. Mulebyo. contends th[tt the responc:,mt 1 s application should not ho.ve "tjeen henrd ex-parte. As a generol st:-,_teruent her proposition is correct. However, where the circurask:nces f'..re pressing, •••••••• /2, 2 I thlllk the court co.n proceed ox-po.rte. -'i.s I ;: :v- :·,.JL,.-c...,d out nbove, this court wns m'.1.dc to bcliev0 -'-:"::1:.i.t t~1r.t wns e::2.c:tly ch ~-i-•-:..·;:.)n in this mtter. Mrs. Hule byn hns correctly I'Ointed out thn t th..: n:i.i'idnvi·: in support of the res:_)ondent's a.pplicntion wc.s l"h,ither sworn nor [l,ttci:::tr,f, She orgued th-:-,t the nffidnvit wc.s ti1us Liefectivc o.nd ir1effectu.,-,_L 5:_._. :..f :_·ight • •\n o.ffidnvi t is written st<1-tement sworn or c.ffi1~med before o. person hnving nuthori tyL;8minister o.n onth or nffirmntion. The 11:::iffidnvit" in qu.),Tcion wo.s pntently inperfect. But thr.~'. :hould nntter foi :i_i t+l-:. :i.n v:· ov, ,·_z 0 the fo.ct that there is discretio;.,_ conferred on thj_s court by th<.: :i,,:i:\1Yi..3o to rule 2 of Order 43 to entert:,.in even an oral npplicf1. tior. -Nhor~ tt'3 oourt considers fit to do so. Mrs J..:,~i-: byn has o.lso o.ttcr.~.:':lc1. tb" ::r:ponclen··_; 's counter - nffido.vi t. She contends th:::i.t the so.id co1.:1.r~-,:_:_~. • : ::i~ i,,_vi t i,s I respectfully ngree. The viol~. declo.runt should be c,11 j_,.1d,,- Il•:,C"•~·:: one c;nC:. i10t -~:,-·; -rte :-.(~-rt o:!'c-J who hns · been engnged by the docl-~.r·::.i-i-t ·:0 l'np:;.'oscnt hiu ~.:.-. ~::.'!e j .Uc:·_::-:.~ :.;;roceeding. I c-.grce, the countur-nf:fic::::·'":!.t ~.uc1,; not c1;:)G<J:..~v,.. :--.r:;,:- ::'.t -mtion nnd I will disregard it. But wha.t is all this CC\.S3 ~,1'01.,-b? Hot :::~-icu:~}J t!:- r: ·. ;~l C.:i.sclosed nbout the r<::spondent 1 s bnsi:.: co ::.:.;l'.'.iI1'G r,,e;o.inst tb,. ,:-,ppJ i_cc.nt. 0 :::t would n.ppeor thnt his employment with the a.p1,lico.nt ho.8 b:JG!1 .. -~,".i-.::::.~~,L,.ed o.nd tho.t it is either o. cnsc of suruiu'.'.r;r disL1issnl or ternin.· ·:_:__en nr.d tho.t he is aggrieved by the dctoraina.tion. If th~,t is -:;he cr: ·e them I cnnnot see how the Permo.nent Lnbour Tribvna.l ca.n hel;? hirn, rego: :t being pnid to the decision of the Court of ,~ :-1r;•:.:-,l in Z['..;;1bin_ ?·~nz::m~ Ilo.::i.<.1 Service Ltd~ V.i ~allcms,v:.Q., Civil i\ppenl :i:io.9 of 1982~ th.'.'.t the Tribu:x:,l '02s not hnvc jurisdiction to deo.l Vii th n disynt . which is exclusivel;; betv:een ,.:.• individunl employee o.nd his Gff.i:'.,,y..:r~ The prospects of' ,uoc"'ss .:ere dim and the circumsto.nccs :::-.s o. v1l10J.cs do rwt ji;stif;r t~:': ::'.'.) ,~; 'Jf 2.n or0.er for a.n injunction ngo,inst the ~;l'/~icnnt. ,\.ccordingly, this a.pplico,';ion is gr2.nted ::.~nr1 tl,-:., ..--~~ur of t 1 i.G court dated· 14th Octoli>or,· i 985 is discbn·.·Ged. costs., Delivered. 1'".trs. Mulebyn for the .'lppliC'.:'.T';. Respondent in person. JUD(-:; Dar es So.lo.nm 21st Decenber, 1985. IN THF; HIGf;f <";OURT OF TANZANif, T r .. _, . MISCELI~NEOC3 ~IVIL ~~SE N0.91 OF 1985 IN THE M,\TTT.::R OF AN APFI..,I':.L.TION BY .'ULY lv,CoHAMED =ci,'.,JI :?OR OR)ERS OF r:'.ERTIOHARI AN:J !?ROHIBI'IION ~ o e c O '7 :, " #'. ,'l Cl i o c :> r, o a o ,:, I') o o o .., a o o o o o o ,:, o APPLICANT AND IN THE r,,;,r-, ER GF '"HE IvlINIST2R F'OR LANJS, r-IOC.3ING AND URBAN JEVELOPilENT, ALJ THE ~I':'Y J IRE"'.T'JR OF DAR iES SALAAi"i onooc,0000 ,;,oeof!loooqoooooooooooo• RESPON·JENT R U L I N G --·----- KAZIMOTO J. , This is ar. •:i-:>plicati.on for Qtv.teit;S 0f eert:1,.6,::ari and prohibition~· The dispute is aboµt a p~.~~e of land 1r:n0wn as. 'J'l~~ M~ .. 5 ·and 6 Bloc1r B 1 ;ln Sinza area. ! t qomipr-iees r::ert-ifi~ate o:'"" oc•::w_Jancy No .. 25575 which was registered on 25/2/1181 i~ the n2~c of the ~coli~ant. The Minist~r, by G.N.No.852 dated 25 July, 1985, c.~ive no+-ice that the Presi.jent intended to acquire the said land for public purpose. That notice was given under section 6 of the ILand Acquisition J,i;t i\0047 of 1967 o The applicant was served with a copy of the scd.i noticeo The annli,..,ant is. objectir:g to the acquisition or intended acquisition and he has filed an affidavit in support of his app.:..:!.,-: .tion~ 0 '::'n:,, r•-,:-:~<::r- .. ,. of ~-he effi-iavit have been admitted except pctragr:::oh 12 3nj 13. The disr::·:t-e-:1 n rc'graJJhs state as follows:- 1112 In annexture "J" the 1'•in:sf-c-r do1=:s not -:1.isr:lose the nature of the :,ublic purr,ose for which -1-he 'J.L ,nerty is requi.::-ed and_ I ''·:!t~~;_j ', believe the purl:)ose is the; t disr:losei in ::i.~ r.J0r,, r,h 11 hereinabove. 13 I have read Act No.47 of 1967 unier whi1;h1the ~inister is acting, partictiiarly section 4 thereof ~~1 I b2lieve th~t ,_he purpose for which' the Presiient intends to acquife the property ~snot a publie purpose under ~he Lw .:. ni I have not .l>een heard l;>y the t'1inister to exolain my r.use" ·\ Mr. Marando learned counsel for the appH,-r.:1,nt hci s ,stc1 . . ed thu t there was dispute between the officer of t'he F.!ity C··.u~r:il c1r,j tn,:, Ministry of Lands housing and Urban 8evelopment over the: r: ie,:::c of lc1:1i i~ qu(2: ·:ion and 1 that the Ministry intended to acquire the lar.d in or:ier to give it to another person. He. stated that the law do"s not allow His Exr::ellency the President to acquire land end tten give it t0 another person. He is also of the view that reason for ~he acquisitJon shouli be ~iven in the Notice of intention to acquire the J and. As r-=-g::rds paragraphs 12 and 13 he submitted thc:t these concern legal consider"tion for the court to decide. ooeo~•••/2 2 / Mr11 M2cha learne1 sbte ;,tt-orney, has submitted t:h:ot the Minister has acted under se<ction 4( 1) (g) o She st.=ite that the -"rea has been acquired and allocated to another oerson for other purpose. The first issue is whether the l'lins+er is boundto 1isclose the nature of the public purpose in the notice of intention to ta~e lands under section.6 of the ~and Acquisition Act 1967. Counsel for the applir.ant seems to hold this view when he st2ted in his submission that reasons for the a~quisition were not disclosed in the notice. Section 6 of the Land Acquisition Act 1967 does not apoear to require the , :.... ,_ . .,_ Minister to disclose in the notice the nature of the public pur~ose the land is intended to be ~quired by the President. The section does~ however, require the Minister to serve noti(;e of intention to acquire land to persons interested or claiming to he interes+-ed in such land. In my view the Minister is not obliaed to iis~lose the cublic purpose for which the land is' intenied to be acquin'<L ,, The second issue is whcth r the appli,.. nt w:,s not given an apoortunity to be heard by the Minister to explain his ~- se as ~llened in paragraph 13 of his affidavit. I accord no credenr,e to the allegation. ~- The applicant has st, ted in pcir2graph 10 4-hc/t notice to acquire the land was sent to him by the Minister and he has ten1ered the notice as annoxture J to the affid~vit. That notice required the aoolicant to furnish his claim, if any, over the l;-.nd to the hinister within six wee1<"s from the date of +-he notice in the a ._zette. He did not do that and now he cennot be herrd to ~omnlaim for his fe.ilure to lodge an objection to the ir,t~nded acquisition on the ground th~t he was not given an opportunity to be heard. The next issue is whether the land vr,s acquired for a public purposeo Section 4(1) of the Land Acquisition Act 1967 gives \ ,. deftni tion of what constitutes public nurnose. It states as follows., 4 - ( 1) Land shall be deemed to be required for a r>ublic purpose:: where it is required for any of the following :::,urposes: (a) for exclusive Governm~~t use, for gen~ral oublic uset for the develooment of agricultur4al~ land or for the nrovision of sites forinjustrial, agricultural or commercial develooment social servi~es or housing; (b) for or in connection with sanitary imorovement of any ~ind, incluiing reclamation; (c) for or in connection with the laying outof any new city, muni~inality, townshi~,or minor se~tlement or the extension or imnrovement of any existinct city, municipality, township or minor settlement;, (d) for or in ~on~e~+ion with the develooment of any airfield, oort or harbour, (e) for or in ~on~e~tion with mining of minerals or oil; (fi for use by the Community or a Corpor"-tion within th"' community. e e e D e O e D Cl Cl f> D e e /3 -,. '/ ... ,,,..,, 3 ( g) for use by anv ~erson or grouo of oersons who 7 in the ooinion of the President, should be granted such \ acr:cultu~~: land for .. development. Mrs Macha is relying on ser.':.on 4(1) (g). In o:rder to sur:ceed it must be shown that the land to bf. ar:::ruir"'"'d is +o b'? user} for a_gricultural development. Mr. Naran1o has arcued thLt from the corres □ o~jence tendered in court the acquisition was intended to allocate the plot to . another person for bui1'iing nuro,;::es. have re2d all the a~nextw~e I accempanying the affi--:lavi+.o First the area· in question is a residential area within Dar es Salaam City. This is clearly shown in annexture C tendered in court. Again annexture K ten1ered in court show that the plot in question was allor.c ted to the ariclir:~ nt and one A.R. Che1<:anae., The letter ended with a ple-:lge to acouire part of the Lrnd in,jispute belonging to the apnlir:ant. If, ~sit a~~e~rs, thP nurpose of ~cquiring the land in 1isputeZ_~o give it to onother person in order to build i t then the Jv1inister wss wrong in exerrcising his 001.,1 ers under ~.section 4(1)(g) of the Land Ar:quisition Act 1967. There is no provision under section 4 of the s~id Arct which emnowers the Presiient to a~quire land in possession of one 02rson for the r..urnose of qiving i t to another . for the purpose of ere~ting a hous~ or for residential puroose. The purposes for which such land can be acquired must be used for the objects listed in section 4 and not otherwisw. The acquisition being illegal cannot be allowed to st;rnd. In the result the reliefs sought in the statements are granted with costs. Dated and delivered on 19th t•1 i:lrch, 1987 in the oresence of Werema state attorney for Attorney General and b'v.1:ef for fv1r. Marando for the applicant. DAR .ES SALAA!"i ~ H , 19 8 7