20180608 TZCA Dar es salaam

IN THE COURT Of ·APPEAL OF TANZANIA AT DAR 'ES SALAAM n {CORAM: MUSSA, J.A'., MZIRAY, J.A., And NDIKA, J.A.) CIVIL APPEAL NO. 70 OF 2016 KINONDONI MUNICIPAL COUNCIL ............................................. APPELLANT

VERSUS Q CONSULT LIMITED ............................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) __ {Nchimbi, J.) _ dated the 23 rd day of July, 2015 in - Land Case No. 334 of 2009

JUDGMENT OF THE COURT 4 th & 12 th June, 2018 NDIKA, J.A.: On 21 st December 2007, Kinondoni Municipal Council, an urban authority established under the Local Governments (Urban Authorities) Act, Cap. 288 RE 2002 ("the appellant'') entered into an agreement with Q Consult Limited, a limited liability company incorporated under the laws of Tanzania ("the respondent''). Under the said agreement, the respondent undertook to develop Oysterbay Beach, a prime seaside area in Dar es Salaam, upon a "Design, Build, Opercite and Transfer" arrangement, into a modern and sustainable beach area for the benefit of the general public. The appellant, on its part as lessor, agreed 1 •; to grant the respondent the exclusive right to use the beach area covering 21.6 . .., hectares. n As it turned out, the aforesaid agreement was not performed to the letter. By its letter of 17th July 2008, the appellant sought to terminate the agreement alleging that the respondent had failed to complete preparations for execution of the construction works within six months. The respondent countered that it had been prevented by the appellant's acts from performing its part of the agreement ancl, _then, lodged qn_ c1ctiQD _c:1g9inst thg appgllc:111t_tJ_~fqr~__ th~ _H_igh ~QlJft:_ qf Tanzania, Land Division for breach of the agreement. After a trial, the High Court entered judgment for the respondent with costs

upon finding the appellant in breach. As a consequence,. the Court issued an order of specific performance by which the appellant was enjoined to perform its contractual obligations. In addition, the Court awarded the respondent TZS. 500,000,000.00 as general damages. Discontented, the appellant now challenges the aforesaid judgment and decree upon a Memorandum of Appeal containing five grounds of complaint. For reasons that will become apparent shortly, we need not reproduce the grounds of appeal herein. At the hearing of the appeal before us, Mr. Ponziano Lukosi, learned Principal State Attorney, appeared for the appellant. He was assisted by Mr. Harun Matagane, learned Senior State Attorney, and Mr. Hussein Ugulum, 2 .-,, learned Municipal Solicitor. Mr. Mpaya Kamara, learned advocate, represented ,_, the respondent. At the very· outset, Mr.· Lukosi acknowledged that the appellant had received copies of the respondent's , letters to the Registrar, Court of Appeal, dated 1st July 2017 and 15th September 2017 intimating that the respondent wished to concede to the present appeal and that it relinquished all its rights under the judgment and decree of the High Court, Land Division, in Land Case appeal be allowed. On his part, Mr. Kamara _confirmed that the respondent conceded to the appeal. He cited the main basis of the concession being the ground that the High· Court, having

ruied at the pre-triai stage in an interiocutory appiication that it had no jurisdiction to deal with the matter, wrongly proceeded with the main suit to its conclusion. The respondent's concession apart, we prompted the parties to address us on the propriety of succession of presiding judges at the trial before the High Court in view of the provisions of Order XVIII, rule 10 (1) of the Civil Procedure Code, Cap. 33 RE 2002 ("CPC''). We had noted, upon our examination of the record of appeal, at page 250, that Nchimbi, J. assumed:tbe- trial on 23 rd March 2015 by receiving and recording the testimony of the second plaintiff's witness (Manjuanath Panchal) and proceeded to compose and deliver the judgment, now 3 I• the subject of this appeal. While it is noticeable that Nchimbi, J. had dealt with certain pre-trial aspects of ·the ·suit as shown at pages 215 through 222 of the record of appeal, it was Kalombola~ J. who handled the trial from the beginning, as shown from pages 230 to 249 of the record, by hearing and recording the testimony of the first ,plaintiff's witness (Mwinyimkuu Abdallah Mkuyawa) on 3rd December 2014. Both Mr. Lukosi and Mr. Kamara were of the firm view that Nchimbi, J.'s takeover -of the partly heard case from Kalombola, J. without putting on the record the reasons for the succession was highly irregular and that the entire proceedings before Nchimbi, J. as

well as the judgment and decree were a nullity. We think that we are enjoined, at first, to determine the propriety of the succession of the presiding judges before dealing with the respondent's concession to the appeal. In dealing with the procedural issue now before us, we find it apposite to reproduce herein below Order XVIII, rule 10 (1) of the CPC, a provision that regulates the succession of judges or magistrates by providing them with the power to deal with the evidence taken before another judge or magistrate: "Where a Judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down 4 or made under the foregoing rules as if such evidence or ..,- '•' memorandum has /;Jeen taken down or made by him or under his direction under the said rules and may proceed with the suit· from the stage at which his predecessor left it. ''[Emphasis added] In M/S Georges Centre Limited v. The Honorable Attorney General and Another, Civil Appeal No; 29 of 2016 (unreported), this Court, having considered the foregoing provisions, held that: "The general premise that can be gathered from the above provision is that once the trial of a case has begun before -one judicial officer that judicial officer has to bring it to completion unless for some reason he/she is unable to do that. The

provision cited above imposes upon a successor judge or magistrate an obligation to put on record why he/she has to take up a case that is partly heard by another. "[Emphasis added] The Court went ahead to provide the rationale for that position: "There are a number of reasons why it is important that a trial started by one judicial officer be completed by the same judicial officer unless it is not practicable to do so. /;or one thing/ as suggested by Mr. Maro/ the one who sees and hears the witness is in the best position to assess the witness's credibility. Credibility of witnesses which has to be assessed is very crucial in the determination of any case before a court of law. Furthermore/ integrity of judicial proceedings hinges on transparency. Where there is no transparency justice may be compromised. ,,,, 5 '• In M/S Georges Centre Limited (supra) the Court took cue from the settled 'cl position in respect of criminal trials in terms. of section 214 (1) of Criminal () Procedure Act, Cap. 20 RE 2002 that reasons for a takeover by a magistrate ofa partly heard case must be put on the record. Referring to Priscus Kimaro v. , The Republic, Criminal Appeal No. 301 of 2103 and Abdi Masoud @ Iboma and Others v. The Republic, Criminal Appeal No. 116 of 2015 (both unreported), the Court held that in the absence of any reason on the record for the succession by a judicial officer

in partiy heard case, the succeeding judicial officer lacks jurisdiction to proceed with the trial and consequently all proceedings pertaining to the takeover of the partly heard case become a nullity. Without much ado, we wish to state that we wholly subscribe to that position. In the instant matter, we agree with the parties that the takeover of the partly heard case by Nchimbi, J. was highly irregular as no ground for the succession was put on the record. As a result, we find, without doubt, that Nchimbi, J. lacked jurisdiction to take over the case and that the entire proceedings before him, after his takeover, as well as the judgment and decree that followed are a nullity. In exercise of our powers under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 RE 2002, we quash and set aside the proceedings before Nchimbi, J. as well as the judgment and decree dated 23 rd July 2015. Given the circumstances of this matter that the takeover occurred after only one witness 6 &' ·,. (PW1) had testified and for the sake of convenience -and interests of justice, we <( r/ quash and set aside the trial proceedings before Kalombola, J., which include the recorded evidence of the aforesaid witness. We, then, remit the matter to the High Court, Land Division for a fresh trial before another judge in accordance with the law. In view of the foregoing, we are unable to deal with the

respondent's concession to the purported appeal. In the absence of valid proceedings in the law, there cannot be an appeal from a nullity. If by conceding to the purported appeal the respondent necessarily manifested that it was no longer interested to pursue its claims against the appellant, it should raise that matter . to the attention of the High Court for an appropriate action to be taken. Ordered accordingly. DATED at DAR ES SALAAM this 8 th day of June 2018 K. M. MUSSA JUSTICE OF AP-PEAL R. E. S. MZIRAY

JUSTICE OF APPEAL G. A. M. NDIKA

JUSTICE OF APPEAL I certify that this is a true copy o uss·

DEPUTY R GISTRAR

COURT O APPEAL 7