20140317 TZCA Bukoba

I' J ,.Ii IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: KILEO, J.A., LUANDA, J.A. And MUSSA, J.A.) CIVIL REVISION NO. 3 OF 2013 1. TANZANIA REVENUE AUTHORITY } 2. SPIDERS AUCTION MART & COURT BROKERS ...................... APPLICANTS 3. AMRI AMIR 4. AMRI AMIR EL HABBSY CO. LTD VERSUS ZINUNULA CORPORATION {TANZANIA) LIMITED ..................... RESPONDENTS (Revision from the decision of the High Court of Tanzania, Land Division at Bukoba) (Kibella. J.) dated the 17th day of July, 2011 in Land Case No. 1 of 2008 RULING OF THE COURT 12th & 17th March, 2014 KILEO, J.A.: This is a ruling p~rtaining to a revision that was initiated by the Court I ) suo motu in terms of section 4 (3) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002 with a view to satisfying itself as to the propriety and correctness of the proceedings and orders in Land Case No. 1 of 2008 the High Court of Tanzania (Land Division) at Bukoba. 1 'r A brief background to this matter shows that on 13th day of June 2008 the present respondents filed a plaint in the High Court, Land Division at Bukoba, against the four applicants claiming for, among other remedies, a declaration that the land comprised in factory premises at Omukakorongo, Karagwe District belongs and be returned to the plaintiff, a declaration that the sale of the suit premises and property thereon was illegal and unlawful and an order to set aside the sale of the suit premises. Following the filing of the plaint, summons for filing defence was issued and was served upon the current 1st applicant on 18.06.2008. The 3rd and 4th applicants were served with the summons to file defence on 17.06.2008. The second applicant was never served with the summons. On 8.07.2008 the applicants filed a joint Written Statement of Defence (WSD). This was followed by a Reply to the WSD in which the respondents raised a preliminary objection to the effect that the Joint WSD was filed out of time. 1 After a consideration of the submissions that were advanced in regard to the preliminary objection it was sustained and the joint WSD was expunged from the record in a ruling by Nchimbi, J. dated 24.11.2010. Following the expulsion of the WSD from the record the matter was set for exparte hearing on17.05.2011. On this day Mr. Salvatory Switi, learned advocate 2 who appeared on behalf of the defendants asked the court to proceed exparte as against only the defaulting parties, being the 3rd and 4th defendants whose Defence was found to have been filed out of time. The request did not find favour with Kibella, J who had taken over the matter. The learned judge was persuaded by the submission of Mr. Galeba, learned advocate for the plaintiff who argued that the WSD was incapable of being divided as between the defaulting parties and the non- defaulting parties. He insisted that the whole WSD had been expunged from the record and the plaintiff was entitled to proceed exparte. His contention was based on a statement in Nchimbi, J's Ruling where he stated: '1 therefore take it that there is no written statement of defence filed by the defendants. The same is ordered expunged from the record'~ Kibella, J gave the following order after he had heard both advocates "ORDER: Since the expunged WSD was a Joint one by the 1st, 2'1d, :Id, and 4fh defendants, I conced with Mr. Galeba ~ argument that I have no power to undo the Ruling of this court. Thus, I therefore order that the case to proceed exparte as there is no WSD filed by all the defendants at all. It is so ordered. " It was not disputed that in so far as the 1st and 2nd defendants were concerned they were not out of time by the time the joint WSD was filed. 3 At the hearing of the Revision proceedings Mr. Salvatory Switi appeared on behalf of all applicants while Mr. James Kabakama appeared on behalf of the respondent. Both counsel were invited to address the Court on the matter. In his address, Mr. Switi submitted that in so far as the 1st and 2nd applicants were not late in filing their WSD, the order to proceed exparte against them violated their basic right to be heard which rendered ~he proceedings null and void. The learned counsel made reference to Mbeya - Rukwa Autoparts and Transport Ltd vs Jestina George Mwakyoma [2003] TLR 251 where it was held that the right of hearing is a fundamental constitutional right in Tanzania by virtue of Article 13 (6) (a) of the constitution. The proper course that the learned judge ought to have taken was for him to expunge the WSD in respect of the 3rd and 4th defendants and leave the pt and 2nd defendants to continue with the case, the learned counsel argued. Mr. Switi also submitted that the High Court Land Division acted without jurisdiction as the case was not a land matter but it emanated from enforcement of the Value Added Tax Act which was, in terms of section 7 4 of the Tax Revenue Appeals Act, within the exclusive jurisdiction of the Tax Revenue Appeals Board. Responding to Mr. Switi's submission Mr. Kabakama argued that since each paragraph in the WSD was speaking of all the four defendants it would not have been practically possible for the pt and 2nd defendants to be severed from the other two. He referred us to a High Court decision in Hersi Warsame Mohamed & Sons v. Gapco Tanzania Ltd, Commercial case No.10 of 20008- unreported where the High Court dismissed a suit on the ground that the plaint comprised of time barred and non-time barred claims. Fortunately we are not bound by decisions of the High Court and we will leave the matter at that. In any case the High Court case is distinguishable from the present one in that in the High Court the issue was in relation to accrual of causes of action whereby some claims in the same plaint were within time while the others were not. The issue in the matter before us concerns a WSD filed jointly by defendants, some of who were within time and others who were not. On the issue of jurisdiction Mr. Kabakama maintained that the matter in the High Court was a land matter which fell squarely within the 5 mandate of the High Court. We have given the issue of jurisdiction due consideration and we have come to the settled view that in the circumstances of this case, where one party is saying it is a land matter and the other saying it is a tax matter, it is the court before which the matter is filed which is best placed to deal with the question of jurisdiction. We will therefore refrain from addressing ourselves to the issue of jurisdiction. Mr. Kabama also informed the Court that the applicants are in the High Court taking steps with a view to pursuing an appeal against the decision of the High Court. Mr. Switi denied this allegation but it has come to our knowledge that there is, in the High Court at Bukoba, Miscellaneous Civil Application no. 46 of 2013 in which the present applicants are seeking an extension of time to file a Notice of Appeal against the decision which is the subject of this Revision. It is unfortunate that Mr. Switi was not forthright on this aspect. We need not however, tarry on this point. This application was filed in the High Court on 1st November 2013 which was sometime after the file in Land case no 1 of 2008 had been called for revision which was as early as 19th December 2012 as per Court record. 6 I t -· ' Now, coming to the issue of expulsion of the whole WSD we are settled in our minds that in expunging the whole WSD and proceeding exparte, the learned judge committed a serious irregularity as he denied the parties who had filed their defence in time their constitutional right to be heard. In a situation like this, where it appears to a trial judge that a joint WSD consists of defendants who are within time and others who are not, the proper course to take would be to allow the defendants who are within time to file an amended WSD reflecting only those whose defence is not time barred. We find no merit in Mr. Kabakama's argument that it was not practicable for the judge to detach defaulting defendants from non- defaulting ones. We see no impracticability whatsoever in that. We need not detain ourselves any further. The denial of the 1st and 2nd applicant's fundamental right to be heard was a serious irregularity which has to be corrected. In consequence, we quash all the proceedings and orders in the High Court starting from the Ruling delivered on 24/11/2010 in which the whole WSD was expunged up to the exparte decree which was given on 11/07/2011 and any processes that flowed there from. The matter is remitted to the High Court for it to continue with the matter in accordance with the law. 7 It is accordingly ordered with no order as to costs as the revision was initiated by the Court suo motu. DATED at BUKOBA this 17th Day of March, 2014. E. A. KILEO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL Z.A.~A DEPUTY REGISTRAR COURT OF APPEAL 8