19970430 TZHC Dar es Salaam

H: THI!:: HIGH COURT OF TANZANIA (DARES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISCo CIVIL CAUSE.NO. 12 OF 1995 . •.·-~-=-~--~_..........~~----..-.--··-·-. · - - ..........=......-.!..o--.,, PHILEMON NDESAMBURO •••••••••• APPLICANT VERSUS THE HON ATTORNEY GENERAL •••••••••• RESPONDENT I RULING r MSUMI J. ~--'~ This is an application for the prerogative orders<. Certiorari and Mandamus.,. These orders are so1Aght against. The decisi9nof the Ministe~ for Lands and Housing of revokin"?, the right of oceupancy ~aia.tid.toi~he applicant on 1/4/89 for plot number 3 at Ununio area, Kinond-oru.·'·Dis_tr_ict. According to the submissi~n of Mr Mwidunda, the learned State Att~rney ~he-- advocated for the respondent the contentious revocation was effected by an order issued on 9/3/95. For unknown reason, however, res~dent did'not make available to the court the said revocatioll, ~att.,. /wi41i.t• ·aP,peo.rs applicant o&wa ~CY&. oA th.a .said Qrder by a notice published in a coF.f of Uhuru newspaper. As procedurally required, the application is supported by the affidavit'. and statement deposed by the applieant. . . Among other .th~ngstapplicant · asserted that at.the time when the revocation was done ·he had partially · developed the suit plot and had submitted plans to the then City _Council ier building permit. Infact he contended that his applicatisn for building permit had been pending for over two years. In respo.ru::e to the applicant's contentions, respondent filed a counter affidavit deposed by the Commissioner for Lands one Emil Temigunga Luyangi who generally disputed all the contentions and demanded the applicant to strictly pr~ve them~ 'ro ul.ugment th~ affidavit and sJatement of the applicant, Mr. Muccadam, adv~ate, submitted the foll4wing grounds. In order for a revocation -1'der to be· legally valid it must have been made on one or more of the ground.'3 stipulated under section 10 (1) ~f the land ordinance. The learned ~ounsel re'12pectfuliy argued that in the present case the purpoted revocation is ( on not/any of these ground~o Secondly he submitted that it was not legally ' . sufficient f~r the President to endorse the word •· Nakubali :; in '11e minute \· . \ . i:,heet in,, whieh the Minister for lands made the pr~osal for the said . \ revocation. Tc his understanding of the law the learned counsel was 1f the respectful view that there ought to have been executed an instrument signed under his seal. - 2 - - 2 - · Thirdly he challenged the counteF affidavit when it stated that the·revocation was done,by the Minister~tn behalf of the President. He II. •,, contended that the law doen n~t empower the president to delegate this power. And lastly before the revocation order was issued applicant was issued applicant was not sufficiently notified of the President's intent to do so and require·him to show cause why that intent shtuld not have ' . been effected. For this reazo.n, the learned counsel argued, his Client was t::.onderim.ed unheard 0 In reply to the- first .argument,. c'OUl'lsel for the respondent 'submitted that the revocation was 4•ne after the applicant had failed to devel-,p the suit plot as stipulated in the condition for offe~ of the right of occupancy. On the seeond and third arguments, the learned counsel cited the da-0ision of the 60Ul'.'t of Apwal in Agro Indu.etrie.s ~ Ltd. v. A.G. ,.c ...... -~.. 4,~--..---..... ..,,. ... •••••••~ i . . , ~ . r•.,. • ..._,_..,. _ _ • ~ •. Civ.i.l Appeal I}•• 34 ef 1990 as an autH.irity for his submissi•n that the word " Nakubali ,: endorsed by the President in the minute sheet is l&gally su;f'ficisnt expreS.:Si~n by the President that he has revoked the sa:i..d right of occupaney. Iri.:•ther words there il:I no legal requirement that sU-Oh expression should .have been in a form of an instrument signed ' by the President under his seal. Als~ relying on the same-authority _the learned counsel argued that the f4inister for Lands and Housing acted properly,when he signed the revocatiol't order on behalf of the ~ide.n.t .. And lastly the learned counsel .suhmi ttad that appJ.ican.t wa.a. sufficiently notified of the President's intent to revoke the suit right of occupanc3 • for breach of development condition unless n.e shOW&d cause why the same should not have been effected. Let me first deal with the ·second and third g:rotUl.d.s t~ther. With :respect I totall,y agree with Mr. Mwiduruila 1 s exposition of the law o~ the ~asis of the decision in ~.In§ustries_ca_.sa. The President is not required to exe·eute a sealed instrument in order to .render his revocation order legally sustainafile. Similarly the Minister was not acting on the poWe?' delegated to him by'the President._ He was just executing·the revocation order whieh had already been iss~ed by the President. The issue raised in the first enikfourth grounds are whether applicant • was .sufficiently notified of the intended revocation and the ground for it and secondly whether the Prasident considered the reasons furnished·by the applic~t opposing the intended revocation. As far as the first issue is co~•erned, I have no doubt in my mind that applicant was sufficiently norified and required to show cause why his right of occupancy should not have been revoked. However myanswer to the second issue is on the negative. - 3 - . . ":.i:ii,·~~""~- ,,;_.,...,''... I. It is quite evident from the counter affidavit of the Commissioner for Lands that the reasons furnished by applicant were no considered in deciding. whether or not the suit right of occupancy should have been revoked. In paragraph 5 of his affidavit the applicant said;•·· That I have partially developed_ the land and I have plans submitted to City Council for approval. of my project on the land since March, 1992. And in suppOl!'t · of this ~rtion applicant made availab-l.e to. the ,c-0:uJ'."'t 9.nd reaponaent ca.sh re,caipt dated 15/3/92 for shs 84o/- issued by the City Council in the name of the applicant in·which it is clearly inclicat~ that the said payment was for submission of the·buildibg plans in respect of plot 3 Ununioo Quite surprisingly th0 Commissioner for Lands in paragraph 3- o£ his. count-sr affidavit saidG That the contents of paragraph 4 and 5 of the affidavit .ar-e stron~ deniGd and it is etated the ap;gli-cant 1 s right of oc~upancy was_revoked lawfully and preperly. It is obvious that the Commissioner did.not underrs:tand ·what .the applioani was eon~nding :iJl. th.a said para.g-raph of his affidavit or he decided to be evasiveo This assessment ls also applicable to the lea.med oouns.el for the respondent because in his :r-eply to the submission of the applicant he said nothing on the argu1nent raised b-y his colleague that the .suit plot ti-ad been- partially dGVGloped when it was rec0Illll10n.ded to the PrthSid.ent £,or reiroca.tion.. From what has transp.irGd• I am of the re.spe-cti.''.\l opu.ion that the President did not consider the grounds given by the applicant before the suit right of occupancy was revoked. This could have happened either the officers concerned did not furnish h_im with the said groundE/~ter being ·;o furnished• the President decided not to consider them. In my opinion the ' former possibilty appears to be the most likely one. However the effect of either of the possibility is the same_. It amounted,to Gondemning the applicant unheard. The principle of natural justice which requires a person to be affor- ded with opportunity to defend himself necessarily implies that the person determining the matter will consider the party's defence before making a decision which affects the right of such partyo Failure to eonsider such defence is as bad as not affording the party an opportunity of the right of hearing. For thr aforementioned reasons it is held that the revocation order is bad in law for it was issued in contravention od the principles of natural justice in that the applicant was not given the right of hearing·. This applica- tion is therefore granted with costs. The said revocation order is hereby quashed and it is directed that the right of applicant be r0stored.