| dc.description.sponsorship | MUFINDI PAPER MILLS LIMITED VERSUS IBATU VILLAGE COUNCIL AND OTHERS THREE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL REVISION NO. 555/17 OF 2019
(Revision arising from the decision of the High Court of Tanzania at Dar es Salaam) Mjemmas, J dated 30th day of October, 2015 in Civil Application No. 532/17 of 2017)
CORAM: MWAMBEGELE. J.A, LEVIRA J.A and RUMANYIKA J.A.
FLY NOTES;
Land Laws, Application for revision- nullification of Certificate of occupancy –Whether the trial judge was proper to order nullification of the Certificate of occupancy of the Applicant t without being given right to be heard.
BRIEF FACTS;
This is an application for revision of the proceedings and decision of the High Court of Tanzania (Mjemmas, J.) dated 30/10/2015. It has been brought by way of a notice of motion taken under section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 RE 2002, (the Act). The application was supported by an affidavit of Saride Venkata Satyanarayana, Principal Officer (Business Manager) of the applicant. The respondents contested it by way of an affidavit in reply deposed by Hangi M. Chang'a, the respondents' representative filed on 23/03/2020.
At the hearing of the application, Mr. Charles Rwechungura, learned counsel appeared for the applicant, whereas the respondents had the services of Mr. Hangi Chang'a and Ms. Stella Machoke both learned Principal State Attorneys. Briefly, before the High Court of Tanzania (Land Division), the trial court, there was Land Case No. 201 of 2009 (the suit) where, the 1st respondent successfully sued the 2nd, 3rd and 4th respondents for recovery of a parcel of land known as Farm No. 929 located at Ibatu Village in the district and region of Njombe (the suit land). In that decision, on account of what it termed improper allocation of the title, the trial court nullified the applicants Certificate of Title No. 12054- MBYLR, LO No. 332643, LD No. 277003 just in the latter's back among other orders, which decision, the applicant knew after lapse of one and a half years in April, 2017 when the Ministry of Industry and Investment drew it to its attention. As the applicant was aggrieved by that decision and was time barred to file a revision to challenge its correctness, it sought and was granted extension of time on 21/10/2019. Thereafter, it filed the present application on one ground, namely; that it lawfully owned the suit land but was condemned unheard, as it was not made a party to the proceedings. Nonetheless, the trial court extinguished its title. At the outset of the hearing of this application, Mr. Chang'a before
adopting the 2nd, 3rd and 4th respondents' written submissions, he readily rose to support the application and tell the Court that, indeed the trial court nullified the applicant's Certificate of Title irregularly hence denied her the right to be heard and for that reason the trial court's proceedings are flawed, thus, liable to be nullified. He asked us to nullify those proceedings and make any other appropriate orders. To bolster his argument, he cited Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended. Mr. Rwechungura submitted that as the applicant was denied the fundamental right to be heard, the proceedings of the High Court are improper, irregular, flawed, and are liable to be nullified with an order of retrial, among other orders.
Application granted with costs.
ISSUES
Whether the trial judge was proper to order nullification of the Certificate of occupancy of the Applicant without being given right to be heard.
HELD
We are, in this case settled in our mind that whereas the applicant was not made a party to the proceedings, nevertheless the title that she claimed in the suit land was extinguished without her being heard. On account of that breach of fundamental right to be heard, in exercise of the provisional powers conferred on us under section 4 (3) of the AJA, we are inclined to accede to the uncontested prayer of Mr. Rwechungura and hereby grant the application with costs
STATUTORY PROVISIOS REFEED TO;
1. Section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 RE 2002 Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977
2. Order 1 Rule 10(2) of the Civil Procedure Code, Cap. 33 R.E 2019
3. Section 4 (3) of the Appellate Jurisdiction Act
CASE LAWS REFEED TO;
1. Patrobert D. Ishengoma v. Kahama Mining Cooperation Ltd and 2 Others, Civil Application No. 172 of 2016 (unreported)
2. Tang Gas Distributors Ltd v. Mohamed Salim Said and 2 Others, Civil Revision No. 68 of 2011 (unreported)
3. Mbeya — Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] TLR 251
4. Eco Tech (Zanzibar)Limited v. Government of Zanzibar, ZNZ Civil Application No. 1 of 2007
5. DPP v. Sabina Tesha & 2 Others [1992] T.L.R 237
LEGA MAXIM
audi alteram partem rule
Charles Rwechungura for the Applicants
Hangi Chang’a and Stella Machoke for respondents | en_US |
