20130430 TZHC Dar Es salaam

IN THE HIGH-COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEA-l NO. 5 OF 2012 (From the Decision of the District Land and Housing Tribunal of Temeke District at Temeke in Land Case No. 157 of 2006) MOHAMED MANJI ....................................... APPELLANT VERSUS -THE REGISTERED TRUSTESS OF CHAMA CHA MAPENDUZI ............................ RESPONDENT 11 th and 30 th April, 2013 JUDGMENT ; MWAMBEGELE, J.: When this appeal came up for hearing on 07.03.2013, Mr. Mtatiro, learned counsel for the Appellant, was present. The Respondent's counsel was absent but Fatuma Juma Manjenga, Mshindo Salum Mlawa and Ashura Ali Mnara from the Respondent's offices, National Stadium Branch were present. Fatuma Juma Manjenga and Mshindo Salum Mlawa have been tracking the progress of this appeal by appearing in this court most of the times when this appeal was being called on for either mention or hearing. Given the absence of the Respondent's 1 counsel, and having i~ mind that this matter is unnecessarily prolonged by his absence on several occasions, Mr. Mtatiro for the appellant, prayed that this appeal be disposed of by way of written submissions. Fatuma Juma Manjenga, on behalf of the trio, for the Respondent, conceded. She also felt that this course would hasten the determination of this matter which is long overdue. The court grante9 t_he prayer and proceeded to schedule the submissions dates as follows: "1. Submissions in chief by 21.03.2013/ reply by 04.04.2013 and rejoinde0 if any,· by 11.04.2013 2. Judgment 25.04.2013/~ The Respondent has defaulted the court order which was· made at the prayer of the Appellant's counsel and not objected to by it, for it has not filed its reply written submissions as agreed and as consequently ordered by the court. As per court order, the reply submissions were to be filed by 04.04.2013. At the time of drafting this judgment on 22.04.2013, no such submissions had been filed yet. No such submissions have been filed today 30.04.2013 when writing a final draft of this judgment. The Appellant was timeous in filing his written submissions. He filed his submissions in chief on 21.03.2013; quite in line with the court order dated 07.03.2013. 2 This court has held time without number that failure to file written submissions as· ordered by the court is akin to failure to appear when . the case is called on for hearing and consequent orders for such non · appearance are inevitable. There is an unbroken chain of decisions of this court that so hold. These include Hidaya Zuberi Vs Bongwe Mbwana PC·Civil Appeal No. 98 of 2003 DSM (unreported/ Perpetua H. Kirigini & Another Vs Dr Msemo Diwani Bakari, Land Appeal No. 3 of 2005 (unreported), Athumani Kungubaya & Another Vs PSRC & TTCL, Miscellaneous Civil Appeal No. 1 or 2001 (unreported), Tanzania Electric . Supply·:Co. Ltd Vs Abubakar Adam, Civil Appeal No. 46 of 2008 (unreported) and Twaha Songoro & 2 Others Vs Anold Kato,PC Civil Appeal No. 18 of 2003 (unreported), to mention but a few. In View .· of the above case law, I am of a settled view that the Respondent has failed to defend its case. It was ordered to file its reply - submissions by 04.04.2013. It did not do that and consequent order(s) must follow. Therefore, as already alluded to above, I will decide this appeal on the evidence available and as argued by the Appellant. The Appellant had initially filed four grounds of appeal and by leave of this court to amend the Memorandum of Appeal; he filed three more grounds through a document titled "Additional Grounds of Appeal". I pause here to think and ask myself a question whether the Appellant 3 • had complied with the court order. The court order that triggered Mr. Mtatiro to file the additional grounds of appeal reads: "Prayer granted. Amended Memorandum of · Appeal to be filed within fourteen days from today'~ It follows that as per the order, Mr. Mtatiro ought to have filed an Amended Memorandum of Appeal as ordered instead of filing Additional Grounds of Appeal as he did. I note that, save forthe title, the so called "Additional Grounds of Appeal" has a picture of an Amended Memorandum of Appeal as well. I say so because it has changed the prayers. from what was craved for in the Memorandum of Appeal filed , first. The initial Memorandum of Appeal had the following. prayers:. "(a) Proceedings, judgment and decree of Temeke District Land and Housing Tribunal be quashed and set aside with costs. (b) Any other reliefs and orders that the Honourable Court finds and deems fit, just and equitable to grant'~ In the Additional Grounds of Appeal the Appellant changed the goal posts in seeking relief. The reliefs sought in the "Additional Grounds of Appeal" read: 4 "(a} The proceedings, rulings, orders judgment and decree of Temeke be quashed and set aside with costs. (b} The Respondent be ordered to return the properties of the Appellant and be ordered to make good of the loss caused hitherto. (c} Any other relief ad orders that the Honourable Court may find fit and just to grant'~ It 'would seem therefore that the Appellant intended to amend the ,_·. Memorandum- of Appeal but was carried away by the title: Additional Grounds of Appeal. In the process, he purported to add the three grounds of appeal and did not bother (or did not remember) to reload the second -Memorandum of Appeal with the first four grounds previously advanced in the first Memorandum of Appeal. I must confess that I am somehow caught up in a situation of dilemma. This predicament has been caused by the Appellant himself. This is the dilemma: if I take that the Appellant filed additional ground.s of appeal and therefore treat the three grounds of appeal in the "Additional Grounds of Appeal" as furthering the four grounds of appeal initially filed, I will be saying the Appellant did not comply with the court order dated 20.02.2013 which ordered him to file an Amended Memorandum 5 of Appeal. The consequence of such _noncompliance will be to ignore the second Memorandum of Appeal and continue to rely on the first Memorandum of Appeal. On the other hand, if I take it that the subsequent document is an Amended Memorandum of Appeal, then, as demonstrated (infra), I will . be saying the second Memorandum of Appeal replaced the first Memorandum of Appeal. Each course to be taken will have its consequences. I shall · demonstrate. I start with the first assumption: that the second document actually comprises additional grounds of appeal as the title and numbering indicate. This assumption will _put~ m-e- in yet another • predicament as the document titled Additional Grounds, of Appeal cons_ists of grounds of appeal that seek to challenge steps taken during execution of the decree of the District Land and Housing Tribunal after the appeal was filed. The first Memorandum of Appeal seek tcr challenge the decision of the decision of the Trial Tribunal dated 19.07.2011 while the second one (titled Additional Grounds of Appeal) seek to challenge the execution orders of the said decree which orders, as per the additional grounds of appeal and court record, were given on 24.01.2012. On the other ha □d, if I hold that the second document is an Amended Memorandum of Appeal then, it would imply that the second 6 •· Memorandum· of Appeal replaced the first Memorandum of Appeal iA which case I will be required to consider the second Memorandum of Appeal and ignore the first one. It is the. law in this jurisdiction that once pleadings are amended, the pleading which stood before the amendment is ·no longer material before the court [see: Tanga Hardware and Autoparts Ltd & Six Others- Vs CRDB Bank, Civil Application No'. 144 of 2005 (unreported)]. In the Tanga Hardware and Autoparts case, the Court of Appeal (Ramadhani, J.A) quoted with approval an English case (with persuasive authority in this jurisdiction) of Warner Vs Simpson & Another, [1958] 1 Q.B 297 in which it was held: - '~" once pleadings are amende~ that which· ·stood.before amendment is no longer material ·before the court✓, And the Court of Appeal went on: -· "... pleadings ... covers (sic) notices of motions ··,' but in any case I am positive that that holding can be extended to cover all documents presented to courts. ... once there is an amended document then the previous one before the amendment should be 7 treated as if it never existed at all'~ [Bold supplied]. In the light' of the two documents which l have carefully analysed, I am convinced that the second document did not comply with the court order. The document titled Additional Grounds of Appeal whose title speaks for itself, has indicated that it was made pursuant to the order _of this court dated 20.02.2013. That order, as already shown above, permitted the Appellant to file an Amended Memorandum of Appeal in a fortnight from the date of the order. What was filed was "Additional Grounds of Appeal" and indeed the numbering (which start from 5) suggests that the intention was to file additional grounds of appeal; not to amend the previous Memorandum~·of Appeal; If the-Jnter:1tio.n,was:to~' file an Amended Memorandum of- Appeal 1 it would have!; .beerr so, indicated quite clearly. As_the second document was filed contrary to the court order, it is expunged. It is~bound to be· ignored,as.if it was · never filed at all. In the premises;· I will not rely on the,-second·· document otherwise titled "Additional Grounds of Appeal".: I thus turn to consider the grounds of appeal as appearing on the Memorandum of Appeal filed on 25.01.2012. As already alluded to, there are four grounds of appeal. However, I think, they can be compressed into two: first the challenge of entertaining the suit without the resolution of the Board of Trustees of Chama Cha Mapinduzi and second is a challenge on the evaluation of evidence by the Tribunal. 8 I start with the challenge on want of resolution of the Board of Trustees of the CCM to institute the suit the subject matter of this appeal. Mr. Mtatiro,. . learned . ·counsel thinks it was wrong for the· Tribunal to · entertain the suit without evidential proof that the Board of Trustees sanctioned the institution of the ,same._ I note that the Appellant did not raise. any alarm at the trial in respect of this point. Actually, the Appellant is on record as advocating the notion that the Board of Trustees ..of CCM cannot ·do everything on its own but could perform some :of its. duties through its agents. In his Written Statement of Defence, the Appellant stated in paragraph 4 as follows: · ·· -· " .. : officials of Chama Cha Mapinduzi of any branch of CCM act for and on ·behalf of the trustees who can· be sued. · Chama Cha Mapinduzi by .itself in non existence (sic). -~ · Under the law it is a fallacy to think that the trustees can sign each and every document intended to be signed [by] party branches'. It would therefore seem that the Appellant felt it apposite for the Registered Trustees of Chama Cha Mapinduzi to sign document like tenancy agreements through its agents. In the same line of argument, the Appellant was expected to say Mr. Msewa, a legal officer of the Respondent, in instituting the suit the. subject of this appeal, was in 9 ·normal course of business acting for and behalf of the Respondent. But now the goal post has been changed by·. the Appellant; · he now has "become wiser" and challenges the very Registered Trustees of Chama . Cha Mapinduzi for not sanctioning the filing of this suit by way of resolution. The Appellant submits that the resolution of the Board_is . relevant in. the institution of the suit, short of which, he argues, the suit . becomes incompetent. That argument aside, my serious concern is the fact that this argument was not raised at the trial. It does not need a PhD to understand why the Appellant did not raise this argument at the · trial: an elementary knowledge of law would reveal that the appellant would not have raised this point at the trial as it would mean contradicting his defence as· appearing in .paragraph 4 of his Written - Statement of Defence. He was, it would seem, avoiding being cold and·. hot at the same time. His not raising this defence at the outset is therefore pregnant with meaning. It has a negative impact on his case as well. Had he raised- this aspect at the trial, it would have been covered in the issues resolved at the trial. That was not done as a result of which, the issues drawn did not cover this very pertinent point. It is settled law that an issue not canvassed at the trial, unJess it is a point of law which can be raised at any stage, cannot be raised on appeal. On this point, I find inspiration in the decision of the Court of Appeal in Elisa Mosses Msaki Vs Yesaya Ngateu Matee, [1990] TLR 90 (CA) in which the Court of Appeal (Mnzavas, J.A) faced with a similar situation in which an IO Applicant in an application for leave to appeal to the Court of Appeal sought to base his appeal on new matters which were never at issue in the trial court nor raised at the High Court on appeal, had this to say: " This Court will only look into matters .which came up in the lower Court and decided/ not on which were not raised nor decided by neither the trial Court nor the High Court on .appeal' This was a.case in which the applicant, just like what the Appellant has done in the present case, sought to peg his appeal on matters which the trial court and the fir.st appellate court did not consider. As already seen, the Court of Appeal held that that was improper. This being the case, it is not proper for the Appellant to rely on matters which were not raised and decided upon by the trial Tribunal. [See also MS I/ab/la Industries.Ltd & Two Others Vs Tanzania Investment Bank,,& Another, Civil Applications No. 179 of 2004]. On appeal, this Court will only .look into matters . which were canvassed in the lower Court and ·decided upon; .not on which were not raised nor decided by the trial Court. For the avoidance of doubt, I am alive to the decision of this Court in Masumin Printways and Stationers Ltd Vs M/S TAC Associates Commercial Case No. 7 of 2006, which case the Appellant has urged this 11 court to rely upon. But, I am afraid, the case is distinguishable from the instant case. In the Masumin Printways Case this Court was . grappling with a preliminary point of objection and, relying on what was . held in the most cited case of Mukisa Biscuit Manufacturing Ltd Vs East End Distributors _Ltd [1969] E.A 696, the court held tbat the , point_ - sanction of the Board of Directors to institute a suit in the name of a Company - did not qualify as a preliminary point of objection as it would need evidential proof. This is not the case in the instant case. This point is not being raised as a preliminary point. Even if it was to be raised as a preliminary point, it -would fail in the light of the Mukisa Biscuits case. Worse more, the issue has been raised· at an appellate stage·; · It being"'· not a point of law and the fact that it was not an issue at. tfle trial, it · cannot be entertained at this stage. From the court record, I am made aware that this point first surfaced in the Appellant's submissions at the trial. It is elementary law that final submissions are not part of evidence.- An issue not raised at the trial, unless it a point of law, cannot be raised at an appellate stage. This being the law, the first ground of appeal, as consolidated, is bound to fail. I find and hold that the issue of requirement of a board resolution of Chama Cha Mapinduzi to institute a case for and on behalf of the Registered Trustees of Chama Cha Mapinduzi cannot be raised on appeal as it was not canvassed at the trial. On appeal, the High Court will only look into matters which were canvassed. in the lower Court and decided upon. 12 ... · Matters wh_ich were not raised nor decided by the trial Court will not be -~ptertairied ·o·n . appeal. The, first ground of appeal, as consolidated, .fails. ; The second· ground of appeal, as consolidated, hinges on the evaluation of evidence. · The trial Tribunal was convinc~d _that the_ Respondent did make up its case. It (the trial Tribunal) was of the view that the Respondent proved its case to the required standard. The Tribunal was satisfied that 'it was wrong for the Appelfant to enter into tenancy agreement with Chama Cha Mapinduzi Uwanja wa Taifa in respect of property standing on Plots No. 284 and 285 Block H Uwanja wa Taifa . Temeke within the city of Dar es Salaam. With respect, l am of the ·--· .~":"": same view.;• I find· nowhere to fault this· finding. The Registered ~ ~ .·' Trustees of Chama Cha Mapinduzi, being a legal person, must sue and be::sued:in its name. Plots No. 284 and 285 Block H Uwanja wa Taifa Temeke is, undisputedly, the property of the Registered Trustees ,of· Chama Cha Mapinduzi. I take judicial notice that the Registered Trustees· of Chama· Cha Mapindwzi is a body incorporated under the Trustees' Incorporation Act, Cap 318 (RE 2002). It was incorporated on -30.03.i978. · As the property under dispute, according to court record ana ·evidence at the trial, is its property, it_ is the one supposed to enter into tenancy agreements in respect of it [See also Muungano Branch · & Another Vs Prosper Mashele, Civil Appeal No. 164 of 2002 DSM (unreported)]. The second ground of appeal as consolidated, like the first one, fails. 13 . In the final analysis, this appeal, decided in the absence of the · Respondent's defence, fails. In view of the fact that the Respondent did not defend the appeal, the same is dismissed with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 30 th day of April, 2013. J. C. M. MWAMBEGELE JUDGE 14