CIVIL APPLICATION NO 53 01 OF 2020 KASTAN MINIG PLC v TANZANIA MORTGAGE COMPANY LIMITED t a MORTAGE ANOTHER

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: MWARIJA, J.A., MGEYEKWA, 3.A. And MLACHA, 3A) CIVIL APPLICATION NO, 53/01 of 2020 KASTAN MINING P L C ...................................................................APPLICANT

VERSUS

TANZANIA MORTGAGE COMPANY LIMITED t/a T- M O R TG AGE....................................................... .........1st RESPONDENT KAISI KALAMBO.....................................................................2 nd RESPONDENT (Application for Revision of the decision of the High Court of Tanzania at Dar es Salaam (Kulita^Jl dated 23rd December, 2019 in Civil Case No. 165 of 2014

RU LIN G OF TH E CO U R T 24th February & 4 th March, 2025 M G EYEKW A. 3.A. This is an application for revision against the ruling and order of the High Court in Civil Case No. 165 of 2014 which was struck out on 23rd December, 2019. The facts giving rise to this revision is briefly as follows: on 19th May, 2008 the applicant and the first respondent entered into a Credit Facility Agreement, whereby the first respondent was to provide a loan to the applicant to finance the purchase of the suit property. To fulfill its obligations under the agreement, the first respondent secured a loan from Colom Investment (T) Ltd. However, before any payment had been made by the applicant to the first respondent, on 14th July, 2008, the first respondent assigned all rights and obligations related to the loan transaction to Colom Investment (T) Ltd, under the terms of a Master Deed of Assignment (the MDA). Following the MDA, the applicant claims that, the first respondent's financial interest in the transaction between him and the first respondent ceased entirely. According to the plaint, on 28th October, 2008, the Land Registry in Dar es Salaam issued a Certificate of Title No. 107479 for the suit property in the applicant's name. However, to the applicant’s surprise, on 14th November 2008, the first respondent collected the said Certificate of Title, which was issued in the

applicant's name. Once the applicant became aware of the situation, he made numerous efforts to reclaim the title deed from the first respondent, but all were in vain. On 14th July, 2011, the first respondent's financial interest in the transaction was terminated pursuant to the terms of the MDA between Colom Investment (T) Ltd and the first respondent. Following the termination of the first respondent's financial interest, he decided to file a notice of deposit for the Certificate of Title with the Land Registry in Dar es Salaam, attempting to create an unjustified lien on the suit property. This action was taken despite the first respondent having no interest in the property, as all rights and interests had been assigned to Colom Investment (T) Ltd. Dissatisfied with the actions of the first respondent, the applicant filed a summary suit in the High Court against the respondents, seeking the removal of the notice of deposit from the suit property to protect it from the respondents’ actions. In response, the respondents applied for leave to defend the case and, in their written statement of defence, they denied all the allegations made against them. Before the hearing commenced, the respondents raised a preliminary objection contending that the suit was res-judicata in relation to Civil Case No. 162 of 2011 which was decided by Utamwa, J (as he then was). After considering the

parties' submissions, the learned trial judge overruled the preliminary objection and raised three issues suo motif, (i) whether the title remained with the Ministry of Lands, Housing, and Human Settlement Development or was in the hands of T-Mortgage (the first respondent); (ii) whether there was a misjoinder of parties; and (iii) whether the speed track had expired. After deliberating on these issues, the learned High Court Judge answered them in the negative and subsequently decided to strike out the suit. This decision prompted the applicant to file the present application for revision. The application is brought by Notice of Motion predicated under rule section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 and Rule 65 (1), (2), and (3) of the Tanzania Court of Appeal Rules, 2009. The applicant is seeking the Court to revise the proceedings, ruling and order of the High Court dated 23rd December, 2019 in Civil Case No. 165 of 2014 on the grounds that: 1. The proceedings and ruling o f the High Court in C ivil Case No. 165 o f 2014 is tainted with illegalities, irregularities and fraud.

2. The Court to revise quash and set aside and the ruling and resultant orders made by the learned tria l Judge in C ivil Case No. 165 o f 2014.

3. The Court to order fo r costs The respondent was served with the application and filed an affidavit in reply to oppose the application. At the hearing of the application, the respondents were represented by Mr. Dickson Mtogesewa, learned advocate. The applicant was duly served with the notice of hearing through publication but did not enter appearance. However, on 16th May, 2020 after the institution of the appeal, he filed his written submissions in support of the application. On 12th January 2020 the respondents filed their reply submission. Mr. Mtogesewa beseeched us to proceed with the hearing in the absence of the applicant given the fact that the applicant had already filed his written submissions in support of his application. The prayer was granted. When Mr. Mtogesewa was called upon to present his arguments, he fully adopted his written submissions in support of the application and had nothing substantive to add. In the course of our deliberations, we think it will not be possible to recite each and every fact comprised in the submissions but we can only allude to those which are conveniently relevant for the determination of the matter before us. In his written submission, the applicant contended that the main issue subject to revision as raised in the notice of motion is that the trial Judge misdirected himself in law when he proceeded to determine suo motu the

issues of disposition of Certificate of Title, misjoinder of parties and the speed track of the case. The applicant further submitted that the only matter that was before the High Court in Civil Case No. 165 of 2014 was a preliminary objection raised by the respondent on whether or not the suit was res judicata . He went on to submit that, the trial Judge determined the ground of preliminary objection and overruled the objection. Surprisingly, in the course of writing the ruling, the learned trial Judge suo motu proceeded to raise three new issues namely; whether the title deed which the respondent registered a notice of deposit to the Registrar of Titles is still in the hands of the Ministry of Land, Housing and Human Settlement Development or in the hands of the first respondent, and if so whether there was a misjoinder of parties. He added that the learned trial Judge also determined the issue of speed track of the case and revised the speed track suo motu. The appellant further contended that the High Court failed to afford the parties an opportunity to be heard on the raised issue. He strongly emphasized that the parties should have been given the chance to present their views, as the right to be heard is a fundamental principle of natural justice. Reliance was placed in the case of Kluane Drilling (T) Ltd v. Salvatory Kimboka, Civil Appeal No. 75 of 2006, to support

the proposition that failure to afford the parties the right to be heard on the issue raised suo motu by the court invalidates the decision. It was his contention that the two new issues; status of the title deed and misjoinder of parties, raised by the High Court suo motu, were devoid of merit. Apart from the above ground, the applicant submitted in considerable length on the issue of jurisdiction blaming the learned trial Judge for failure to consider the allegations of fraud raised by the applicant hence failed to exercise the legitimate jurisdiction of the court. As to the consequences that should arise from the anomaly mentioned above, the applicant urged us to exercise our revisionary jurisdiction to quash the ruling, set aside the resultant order, and direct a rehearing of the suit. The applicant concluded by pressing for costs. In rebuttal, Mr. Mtogesewa in his written submission contended that the applicant was afforded the right to be heard and that even if the right to be heard could have been withheld, nobody was at fault. He clarified that, the learned trial Judge decision did not completely and conclusively determine the parties' right over the suit property. However, submitting further, Mr. Mtogesewa took a different swipe and argued that the trial Judge had raised issues related to speed track of the case suo motu, which was improper because the parties were

condemned unheard. The learned counsel for the respondent relied on Chadha & Company Advocates v. Aruna Ben Chaggan Chhita Mistry & 2 Others, Civil Application No.25 of 2013 (unreported), to support the proposition that, the consequences of determining one's right without giving him/her opportunity to be heard in any proceedings would vitiate the proceedings. The learned counsel for the respondent also submitted at considerable length the issue of jurisdiction and res judicata which was already determined by the trial court. In conclusion, the learned counsel for the respondents partially agreed with the applicant, except on the second issue concerning the jurisdiction of the trial court. Therefore, he urged us to dismiss the application with costs. We have considered the applicant's written submissions and the respondents reply submissions. The main issue under scrutiny is whether or not the High Court Judge determined the issues of the status of the title deed, misjoinder of parties and the speed track of the case suo motu without affording the parties an opportunity to address the court on these matters. The gist of the contention is that the parties were not accorded the opportunity to be heard on the raised new issues, and that had they been, the High Court would not have reached the decision it did on these matters. It is a well-established legal principle that the right

to be heard in any proceedings is a cornerstone of natural justice; enshrined in judicial practice. Even in cases where jurisdictional issues are raised by a court suo motu, the cardinal rule is that the parties must be given the opportunity to respond to the issue. The right of a party to be heard before an adverse action or decision is taken against him/her has been stated and emphasized by the Court in numerous decisions. For instance, Raza Somji v. Amina Salum [1993] T.L.R. 208, Ottu on Behalf of P.L Asenga & Others v. Ami Tanzania Limited, Civil Application No. 44 of 2012 [2013] TZCA 474 (unreported), and Abbas Sherally and Another v. Abdul S.H.M Fazalboy, Civil Application No. 33 of 2002 (unreported). In Raza Somji v. Amina Salum (supra), we emphasized the need for the court to invite parties to address it, upon raising an issue suo motu before resting its decision in the spirit of the right to be heard in line with the rules of natural justice. Upon reviewing the impugned ruling, it is clear that after the learned trial Judge overruled the preliminary objection, the issues concerning the status of the title deed, the misjoinder of parties, and the speed track of the case were not raised in the submissions of the respective parties. Neither is there any entry made on the record where the learned trial Judge on his own motion either inquired into these issues or asked

the parties to address him. But rather he introduced them in his decision. This is contrary to the requirements of the law and principles of natural justice that parties must be afforded the right to be heard and this right is imperative. Confronted with an akin situation in the case of Mbeya- Rukwa Auto Parts & Transport Limited v. Jestina George Mwakyoma [2003] TLR 251, the Court observed that: "In this country, natural justice is not m erely a principle o f common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard amongst the attributes o f equality before the law, and declares in part: " To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: when the rights and duties o f any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing." Similarly, in the case of Kluane Drilling (T) Ltd (supra) referred to us by the applicant* the Court cited the case of Mire Artan Ismail and Anr v. Sofia Njati, Civil Appeal No. 75 of 2008 (unreported), it held: "We are o f the considered view that generally a judge is duty bound to decide a case on the issue on record and that if there are other questions to be considered they should be placed on record and parties be given

an opportunity to address the court on those questions." The above stance was also emphasized in the decision of the Court in the case of Abbas Sherally and Another (supra), we observed that: "The right o f a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived a t in violation o f it w ill be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f natural ju stice." Based on the above cited authorities, we find that the effect of failure to afford the parties the right to be heard in any judicial proceedings undermined the entire process, rendering it a nullity. For this reason, we find that the application has merit. In the event, we hereby quash the proceedings and ruling of the High Court and set aside the orders arising therefrom. The record shall be remitted to the High Court and assigned to another Judge for recommencement of the proceedings, starting from 29th August, 2019 when the parties presented their arguments on the preliminary objection by way of written submissions. Should the assigned Judge deem it necessary to address the issues raised suo motu by the High Court/ the parties must be afforded the opportunity to be heard. Given the circumstances of the case, we make no order as to costs. DATED at DAR ES SALAAM this 4th day of March, 2025. A. G. MWARIJA

JUSTICE OF APPEAL A. Z. MGEYEKWA

JUSTICE OF APPEAL L. M.J^ACHA JUSTICE OF APPEAL * The Ruling delivered this 04th day of March, 2025 in the presence of Mr. Dickson Venance Mtogeswa, learned counsel for the Respondents and in the absence of Applicant, is hereby certified as a true copy of the original.