NDESAMBURO v ATTORNEY GENERAL 1997 TLR 137 (HC) A

NDESAMBURO v ATTORNEY GENERAL 1997 TLR 137 (HC) A 

Court High Court of Tanzania - Dar es Salaam 

Judge Msumi J 

MISCELLANEOUS CIVIL CAUSE 12 OF 1995 B 

Flynote 

Rules of natural justice - Audi alteram partem - Revocation of land - Consideration of party's defence before making decision affecting party C 

-Headnote 

The applicant applied for the prerogative orders of certiorari and mandamus seeking to set aside a decision of the Minister of Lands and Housing revoking the right of occupancy of a certain erf. The applicant contended inter alia that the reasons which he had furnished had not been taken into consideration in deciding whether or not his right of occupation should be revoked. D 

Held: 

 (i) The principle of natural justice which required that a person had to be afforded an opportunity to defend himself necessarily implied that the person determining the matter would consider the party's defence before making a decision which affected the right of the party. 

Failure to consider such defence was as bad as not affording E the party the opportunity of a hearing; 

 (ii) The President had not considered the grounds given by the applicant before the right of occupancy was revoked. F 

Case Information 

Order accordingly. 

Case referred to: 

 1. Agro Industries v Attorney-General [1994] TLR 43 (CA) Mwidunda for the applicant. G Muccadam for the respondent. 

[zJDz]Judgment 

Msumi J: 

This is an application for the prerogative orders of certiorari and mandamus. H These orders are sought against the decision of the Minister for Lands and Housing in revoking the right of occupancy granted to the applicant on 1 April 1989 for plot No 3 at Ununio area, Kinondoni District. According to the submission of Mr Mwidunda, the learned State Attorney who advocated for the respondent the contentious revocation was effected by an order issued on 9 March 1995. For unknown reasons, however, respondent did not I 1997 TLR p138 

MSUMI J 

 A make available to the court the said revocation order. And it appears applicant became aware of the said order by a notice published in a copy of Uhuru newspaper. 

As procedurally required, the application is supported by the affidavit and B statement deposed by the applicant. Among other things, applicant 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 for a building permit. In fact he contended that his application for a building permit had been pending for over two years. 

 C In response 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 prove them. 

 D To augment the affidavit and statement of the applicant, Mr Muccadam, advocate, submitted the following grounds. In order for a revocation order to be legally valid it must have been made on one or more of the grounds stipulated under s 10(1) of the Land Ordinance. The learned counsel respectfully argued that in the present case the purported revocation is not on any of these grounds. Secondly he submitted that it was not legally sufficient for the President to endorse E the word `Nakubali' in the minute sheet in which the Minister for lands made the proposal for the said revocation. To his understanding of the law the learned counsel was of the respectful view that there ought to have been executed an instrument signed under his seal. F 

Thirdly he challenged the counter affidavit when it stated that the revocation was done by the Minister on behalf of the President. He contended that the law does not empower the President to delegate this power. And lastly before the revocation order was issued applicant was not sufficiently notified of the President's intent to G do so and require him to show cause why that intent should not have been effected. For this reason, the learned counsel argued, his client was condemned unheard. 

 H In reply to the first argument, counsel for the respondent submitted that the revocation was done after the applicant had failed to develop the suit plot as stipulated in the condition for offer of the right of occupancy. On the second and third arguments, the learned counsel cited the decision of the Court of Appeal in Agro Industries Ltd v AG Civil Appeal (1) as an authority for his submission that the word `Nakubali' endorsed by the President in the minute sheet is a legally sufficient expression by the President that he has revoked the I 1997 TLR p139 

MSUMI J 

said right of occupancy. In other words there is no legal requirement that such A expression should have been in a form of an instrument signed by the President under his seal. Also relying on the same authority the learned counsel argued that the Minister for Lands and Housing acted properly when he signed the revocation order on behalf of the President. And lastly the learned counsel submitted that B applicant was sufficiently notified of the President's intent to revoke the suit right of occupancy for breach of development condition unless he showed cause why the same should not have been effected. 

Let me first deal with the second and third grounds together. With respect I totally C agree with Mr Mwidunda's exposition of the law on the basis of the decision in the Agro Industries case, supra. The President is not required to execute a sealed instrument in order to render his revocation order legally sustainable. Similarly the Minister was not acting on the power delegated to him by the President. He was just executing the revocation order which had already been issued by the President. D 

The issue raised in the first and fourth grounds are whether applicant was sufficiently notified of the intended revocation and the ground for it and secondly whether the President considered the reasons furnished by the applicant opposing E the intended revocation. As far as the first issue is concerned, I have no doubt in my mind that applicant was sufficiently notified and required to show cause why his right of occupancy should not have been revoked. However my answer to the second issue is on the negative. 

F In is quite evident from the counter affidavit of the Commissioner for Lands that the reasons furnished by applicant were not considered in deciding whether or not the suit right of occupancy should have been revoked. In para 5 of his affidavit the applicant said: 

G `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 support of this assertion application made available to the court and H respondent a cash receipt dated 15 March 1992 for Shs 840/= issued by the City Council in the name of the applicant in which it is clearly indicated that the said payment was for submission of the building plans in respect of plot 3 Ununio. Quite surprisingly the Commissioner for Lands in para 3 of his counter affidavit said: I

1997 TLR p140 

MSUMI J 

 A `That the contents of para 4 and 5 of the affidavit are strongly denied and it is stated the applicant's right of occupancy was revoked lawfully and properly.' 

It is obvious that the Commissioner did not understand what the applicant was B contending in the said paragraph of his affidavit or he decided to be evasive. This assessment is also applicable to the learned counsel for the respondent because in his reply to the submission of the applicant he said nothing on the argument raised by his colleague that the suit plot had been partially developed when it was recommended to the President for revocation.

C From what has transpired, I am of the respectful opinion 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 me with the said grounds or after being so furnished, the President decided not to D consider them. In my opinion the former possibility appears to be the most likely one. However the effect of either of the possibility is the same. It amounted to condemning of the applicant unheard. The principle of natural justice which requires a person to be afforded with opportunity to defend himself necessarily implies that the person determining the matter will consider the party's defence E before making a decision which affects the right of such party. Failure to consider such defence is as bad as not affording the party an opportunity of the right of hearing. 

 F For the aforementioned reasons it is held that the revocation order is bad in law for it was issued in contravention of the principles of natural justice in that the applicant was not given the right of hearing. This application is therefore granted with costs. The said revocation order is hereby quashed and it is directed that the right of occupancy of the applicant be restored. G 1997 TLR p141