AGRO INDUSTRIES LTD v ATTORNEY GENERAL 1994 TLR 43 (CA)

 

AGRO INDUSTRIES LTD v ATTORNEY GENERAL 1994 TLR 43 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makame JJA, Ramadhani JJA and Mfalila JJA

CIVIL APPEAL NO. 34 OF 1990 B

23 April, 1993

(From the decision of the High Court of Tanzania at Dar es Salaam, Mapiqano, J) C

Flynote

Civil Practice and Procedure - Issues for determination by the Court - Issues not at all

pleaded but the court allows parties to address it them - whether the court should

make a determination on them.

Land Law - Revocation of a Right of Occupancy - Notice of intention to revoke a

right of occupancy - Essence and purpose thereof D

Land law - Revocation of a Right of Occupancy in the Public Interest - Revocation

made in order to protect a trespassing parastatal - Whether it is revocation in the

Public Interest - Section 10(2) of the Land Ordinance. E

-Headnote

Two farms were mortgaged to a bank. Fifteen years later the mortgagor had

absconded, and the debt was unpaid. The bank sold the farms to the appellant who

was then given offers of rights to occupancy. Subsequently, rights of occupancy in

respect of the same farms were given to another company, thereby occassioning a

double allocation. The right of occupancy offered to the appellant F was then

purportedly cancelled in order to protect the interests of the second grantee, a

parastatal company. The appellant filed a case in the High Court, to challenge the

cancellation, and lost. On appeal to the Court of Appeal:

Held:

(i) When a trial court allows parties to address it on any issues, the court

must conclusively G determine those issues, notwithstanding that the issues were

not in the pleadings;

(ii) The whole purpose of issuing a notice to revoke a right of occupancy is

to afford a party an opportunity to put up a case against the proposed revocation; the

appellant in this case was H afforded that opportunity through the meeting in the

Prime Minister's office on 29 August 1985;

(iii) The decision to revoke the right of occupancy was made by the

President when he wrote `Nakubali', that is `I agree', to the minute sent to him

recommending revocation, and what I the Minister subsequently did was not to

revoke himself but merely to signify the revocation made by the President; there was,

therefore, no delegation

1994 TLR p44

A or usurpation of the powers of the President.

(iv) The Kilosa District Authorities had no power to allocate the two farms

in dispute in this case, or to grant any rights over them, to Darbrew;

(v) In the eyes of the law a trespasser is a trespasser, be it a public

enterprise, a private B enterprise or an individual; public interest requires that legal

property rights should be protected against trespassers and the revocation of the

rights of occupancy in this case was done to protect the interests of a trespassing

public enterprise and therefore it was not done the the public interest.

Case Information

C Appeal allowed.

Cases referred to:

(1) Vidyarthi v Ram Rakha [1957] EA 527.

(2) Odd Jobs v Mubia [1970] EA 476.

(3) Patman Garments Industries Ltd v Tanzania Manufacturers [1981] TLR

303.

D (4) Associated Provincial Picture Houses Ltd v Wednesbury Corporation

[1947] 2 All ER 680.

(5) Padfield v Minister of Agriculture Fisheries and Food [1968] 1 All ER

694.

(6) BP Bhatt and Another v Habib Versi Rajani [1958] EA 536.

(7) Hawabai Franjee Petit v Secretary of State for India [1915] 39 BOM

279.

E (8) R v Sussex Confirming Authority, ex p. Tamlin and Sons Brewery

(Brighton) Ltd [1937] 4 All ER 106.

Marandu, for the appellant.

F Mrs Ndosi, for the respondent.

[zJDz]Judgment

Ramadhani, JA, delivered the considered judgment of the court:

This is an appeal by Agro Industries Ltd, the appellant, against the ruling of Mapigano

J who upheld the revocation by the President of the United Republic of Tanzania of

the rights of occupancy which G were granted to the appellant and refused the

prayer to quash the revocation order.

Two farms, conveniently known as farms No 6 and No 7, are situated in Msowero

Village, Kilosa District of Morogoro Region. These belonged to one Akberali

Abdulrasul Dharamsi who mortgaged H them for a loan of Shs 45,000/= from the

National Development Credit Agency, the predecessor of the Tanzania Rural

Development Bank (hereinafter referred to as the Bank). That was in 1968. Until 1983

the debt had not been liquidated and the mortgagor had absconded. So the Bank was,

I naturally, keen to sell the farms.

1994 TLR p45

RAMADHANI JA

Two firms had their eyes on the farms. The appellant company was quick to pursue

the legal A channels. As early as February 1983 the appellant company approached

the bank for a sale. The Regional Development Director of Morogoro Region gave his

consent on 30 July 1983 vide his letter C30/16/65. The appellant company paid a total

of Shs 98,880/= being the land rent, and debt and B interest thereon, and capital

gains tax. That was on 6 October 1983 and the deeds of title were given on 8 July

1985.

The other firm was Darbrew Ltd. This applied through the Msowero Village

Government on 1 November 1983 and were granted the use of the farms on 19

November 1983 vide the letter ref No C KL/1322/172. Darbrew immediately took

possession and went into cultivation.

Obviously a dispute blew up and Darbrew Ltd petitioned the President on 13 June

1985. The President referred the matter to the Prime Minister on 6 August 1988. The

Prime Minister convened a D meeting on 29 August 1988 which resulted in the

recommendations of 2 September 1985 that the rights of occupancy granted to the

appellant company be revoked and new ones be granted to Darbrew Ltd. The

President gave this consent on 5 September 1985. E

The appellant company was advocated for by Mr Marandu, learned counsel. He

prayed for and we granted him leave to adduce additional evidence. The effect of that

evidence was to prove that farm No 7 too met the same fate. The revocation order for

this farm was produced as exh CAI. F

Mr Marandu filed a memorandum of appeal containing seven grounds of appeal. As

for the first ground he attacked the learned Trial Judge for having failed to take into

account issues which were not pleaded. These issues were three. Firstly there was the

question that the appellant was not given notice of the President's intention to revoke

the Rights of Occupancy. Second, that the appellant was G not given an opportunity

to be heard. Lastly, whether the Minister for Lands usurped the powers of the

President or whether the President had delegated his powers to the Minister.

Mr Marandu pointed out that the learned Trial Judge dealt with those issues but as

obiter because `It is now established that evidence and arguments in legal

proceedings should be confined to the H pleadings'. The learned Trial Judge cited

Vidyarthi v Ram Rakha (1).

Mr Marandu submitted that the learned Trial Judge had erred not to decide those

issues since both parties adduced evidence and made submissions on them and the

Court allowed that to be done. I

1994 TLR p46

RAMADHANI JA

A On behalf of the respondent was Mrs Ndosi, learned State Attorney. She did not

actually address herself to whether or not the learned Trial Judge should have decided

those unpleaded issues. Instead she dealt with the merits of the issues themselves

which form the content of the other grounds of appeal.

B Admittedly, the three matters were not pleaded and so contravened the decision

of the East African Court of Appeal in Vidyarthi v Ram Rakha (1) supra. However, as

properly pointed out by Mr Marandu, both sides dealt with these issues and so, as

correctly submitted by Mr Marandu again, the decision of the same Court of Appeal

in Odd Jobs v Mubia (2) is pertinent. It was decided therein C that a Court may base

its decision on an unpleaded issue if it appears from the course followed at the trial

that the issue has been left to the Court for decision.

We are of the opinion that those three issues were left to the Court for its decision.

The learned Trial D Judge, however, did not dismiss those issues with a wave of the

hand. He discussed them at length and rejected them, thus signifying his findings.

Admittedly, after making those three determinations the learned judge went on the

remark that:

E `All that I have stated above are essentially in obiter . . .'

The reason he gave for saying so was that those were unpleaded issues. With respect

we think the F learned judge was wrong to have regarded his decisions on the three

issues as obiter. So long as he had allowed both counsel to address him on them, then,

under the authority of Odd Jobs v Mubira (2) he had to conclusively decide them.

Therefore these decisions on the three issues were not obiter and can properly be

subjects of this appeal.

G As his second ground of appeal Mr Marandu said that Mapigano J erred in holding

that the meeting in the Prime Minister's Office (hereinafter referred to as PMO)

amounted to prior notice of the intention of the President to revoke the appellant's

right of occupancy. Mr Marandu submitted that at the time of the meeting at PMO

the President had not made up his mind either to revoke or not to H revoke. The

learned advocate pointed out that even the minutes of that meeting indicate that. So,

he argued, the appellant's Managing Director, Mr Kimoi, `could not be expected to

anticipate or forestall the President's future state of mind or intentions'. Mr Marandu

argued further that as the decision to I revoke the rights of occupancy was made

after that meeting then the President was

1994 TLR p47

RAMADHANI JA

duty-bound to give the appellant company a notice of his intention. The learned

counsel referred us to A Patman Garments Industries Ltd v Tanzania Manufacturers

(3) at 309.

In reply Mrs Ndosi said that the Director of Land Development Services, Mr

Mtetewaunga (PW2), had written a letter on 5 July 1984 to the Regional Land

Officer, Monogoro, suggesting revocation. That B letter, Mrs Ndosi pointed out, does

not show that it was copied to the appellant company but nevertheless the appellant

responded to it on 4 August 1984 and so, she argued, they must have had notice of it.

What Mrs Ndosi submitted is true. There was the letter, exh A7 from PW2 suggesting

revocation and C that was contested by the appellant company vide exh A8.

However, the same PW2, almost a year later, on 27 May 1985 to be precise, wrote

another letter (exh A9) saying that the Minister had ruled that the farms remain with

the appellant company and that Darbrew was to be given adequate D land to suit

their requirement. So even if there was notice of revocation then that notice was

waived so to speak. What we are then left with is the meeting of 29 August 1985.

It is true, as Mr Marandu said, that that meeting was `basically and merely called to

discuss a long outstanding dispute between the appellant company and Darbrew Ltd'.

But then we ask, after the E discussion what next? Was the discussion an end in

itself or was it a means to arriving at a solution to the dispute? It is obvious to us that

the Principal Secretary of PMO would not involve himself in an academic exercise. In

fact the minutes are in black and white that Mr Kimoi, for the appellant F company,

was asked whether they would be prepared to compensate Darbrew if it were decided

that the farms continued to be of the appellant company. The same question was put

to Darbrew. These two questions clearly showed that there was a possibility of

revocation. The minutes (exh A12) go G further to record that the stand of the

appellant company was that `hawatakubali shamba lingine badala ya hilo

walilokwihapewa "title deed" '. We are left in no shade of doubt that the issue of

revocation was made transparent to the appellant. In our opinion the whole purpose

of notice is to afford a party an opportunity to put up a case. The appellant had that.

H

We agree with the learned Judge, therefore, that:

`The applicant thus knew, or ought to have known, the consequence which

might follow an adverse decision by the authority, namely the revocation of their

rights over the two farms.' I

1994 TLR p48

RAMADHANI JA

A As for the case cited, with respect we find it not relevant to the point at issue but

we shall discuss it at the appropriate juncture.

So the second ground of appeal fails.

The third ground of appeal avers that there is no revocation in fact and that the

President merely B wrote `Nakubali' to the minute sent to him from PMO. Mr

Marandu argued that that was a mere expression of the mind of the President and that

he had to actually sign the revocation order to show that he had revoked. Mrs Ndosi

said that when the President wrote `Nakubali' to the letter from PMO he signified his

decision to revoke the title.

C We cannot resist the thought that this is semantics. PMO was instructed by the

President to investigate the dispute and they wrote to him recommending revocation

of the title for two reasons which are not necessary to divulge for the time being.

Then the President wrote `Nakubali' ie he agreed that the title be revoked. Now we

fail to see what Mr Marandu is up to. As far as we are D concerned the manifestation

of the mind of the President can take other forms than just personally appending his

signature. The endorsement of `Nakubali' that is `I agree' is one of those other forms.

This ground too fails.

E Had the President to sign the revocation order personally? Mr Marandu said yes.

That was his fourth ground. To him, since the letter from PMO did not suggest to the

President that he should direct the Minister for land to revoke, then the word

`Nakubali' cannot be taken to signify the F delegation of the Presidential powers to

revoke to the Minister. We understood Mr Marandu to be saying that there was no

delegation specifically for this revocation order in question.

Mr Marandu did not stop there, he also argued that there could not be a general

delegation of these G powers either. He submitted that the powers under s 10(1) of

the Land Ordinance are quasi-judicial and discretionary and so in the absence of

express statutory provision there can be no delegation. He referred us to Halsbury's

Laws of England for that proposition of law. Mr Marandu contended, H therefore,

that the order of revocation signed by the Minister is ultra vires.

Mrs Ndosi conceded that there is no instrument delegating the powers of the

President of revoking rights of occupancy. However, she submitted that s 2 of the

Presidential Affairs Act (cap 502) permits delegation of presidential powers provided

there is no contrary intention appearing in the I specific statute which gives the

President the powers in question. The learned State Attorney

1994 TLR p49

RAMADHANI JA

submitted that the Land Ordinance provides no such contrary intention and so, she

contended, the A power to revoke is capable of delegation.

To that contention Mr Marandu responded that the provisions of s 2 of the

Presidential Affairs Act are circumscribed by the clause in s 10(2) of the Lands

Ordinance which says `. . . if in the opinion of the B President . . .'.

It appears to us that Mrs Ndosi agreed with Mr Marandu that there is no delegation of

statutory powers without express statutory provisions and that is why she came up

with the Presidential Affairs Act. Paragraph 134 of the Halsbury's Laws of England

3rd ed provides: C

`Without statutory authority to do so, statutory powers cannot be assigned.

Although such powers may, in general, be exercised by the hands of servants, agents

or contractors and, in the case of corporate bodies, must be so exercised, the question

whether statutory powers may be delegated in any wider sense than this depends on

the D proper construction of the enactment conferring the powers and, in particular,

whether that enactment specifically authorise delegation.'

Now there is no provision for delegation in the Land Ordinance and according to Mrs

Ndosi there is E no instrument of delegation that has been given. Does s 2 of the

Presidential Affairs Act provide for a general delegation of the functions of the

President to Ministers? We think not. That section provides:

`2. Where by or under any written law, other than the Constitution . . ., any

power, duty or function is conferred or F imposed on, or is vested in, the President,

the exercise of such power or the performance of such duty or function by the

President may, unless a contrary intention appears, be signified under the hand of a

Minister, a junior minister or G a permanent secretary' (emphasis added).

This section merely empowers a Minister to signify `the exercise of such power or the

performance of such duty or function by the President'. The section does not

authorize a Minister to exercise H power or perform a duty or a function on behalf

of the President.

However, in the present situation the Minister for Lands merely signified the exercise

of the power of revocation of the rights of occupancy by the President as is provided

by the above quoted section. We have already said that we are satisfied that the

President actually made up his mind to revoke I when he had minuted

1994 TLR p50

RAMADHANI JA

A `Nakubali'. All that the Minister did was to signify that revocation. In fact just

above the signature of the Minister there are these words typed in capital letters: `By

command of the President'.

For the sake of completeness, and not that it is essential to this judgment, we wish to

comment on B the distinction which Mr Marandu made that the revocation powers

of the President are quasi-judicial and not executive. That distinction is no longer

relevant. We have decided so in Patman Garments Industries Ltd (3) at 307 and 308.

This ground also fails. These was no delegation C or usurpation of the powers of the

President. The Minister signed the revocation order merely signifying the exercise of

that power by the President.

The fifth ground of appeal was that Mapigano J erred when he held that the Kilosa

District Authorities D allocated the farms in dispute to Darbrew. The learned

counsel pointed out that PW2, Mtetewaunga, who was then the Director for Land

Development Services, was not aware of such grants. Mr Marandu went further to

submit that even assuming that Darbrew were so granted that allocation was null and

void since the District Authority had no such capacity. He referred us to Associated

Provincial Picture House Ltd v Wednesbury Corporation (4) and Padfield v Minister

of E Agriculture (5).

Mrs Ndosi agreed with Mr Marandu and we think there is much weight in that

submission. Section 3 of the Land Ordinance has declared the whole of the lands of

Tanzania Mainland to be public land. F Then s 4 goes on to vest in the President all

public lands and rights over them and that `no title to the occupation and use of any

such lands shall be valid without the consent of the President'. Section 9(2) provides

further that a certificate of a right of occupancy is valid if signed by the Land Officer

on behalf of the President. The Kilosa District Authority did not have such powers to

grant any rights G over the two farms to Darbrew or any body.

This ground therefore succeeds.

The sixth ground of appeal is that the learned Trial Judge erred to have found that the

revocation of the rights of occupancy granted to the appellant company was in the

public interest. Mr Marandu H stated that the recommendations sent to the

President were that as Darbrew is a public enterprise then it is in public interest to

protect it.

Mr Marandu argued that that reasoning is faulty because first no proof had been

adduced to show that Darbrew was a public enterprise and secondly there was

abundant evidence that Darbrew was I a trespasser.

1994 TLR p51

RAMADHANI JA

Mrs Ndosi replied that Darbrew is a parastatal organisation since the National

Development A Corporation (NDC) which is owned by the Government had 55%

majority shares. She reiterated that the revocation was in the public interest as the

revocation order said so.

We feel that we should not be detained by whether or not Darbrew is a public

enterprise. Mr Marandu conceded that GN 55/80 transferred shares in Darbrew from

Lonrho to Tanzania Breweries Ltd, a B subsidiary of the NDC. We are satisfied that

Darbrew is a public enterprise.

Let us come to the real issue: was the revocation in public interest? Maybe before we

address ourselves to that question we have first and foremost to determine what is

public interest. C Unfortunately both learned counsel did not assist us in this regard.

So we have to depend on our own research and we have to admit there is not all that

much.

The phrase `public interest' was discussed by Law J of the High Court of Tanganyika

in B P Bhatt D and another v Habib Versi Rajani (6) where he held, according to the

head note, that to be `in the public interest . . . it is not sufficient that public interest

may benefit indirectly or incidentally, if the primary purpose of the application is to

benefit the landlord's interest and not that of the public'. E

The learned judge relied on Hawabai Franjee Petit v Secretary of State for India (7)

which dealt with the phrase `public purpose' which to the learned judge means the

same as `purpose in the public interest'. In the Indian case it was said: F

`. . . the phrase, whatever else it may mean, must include a purpose, that is to

say an aim or object, in which the general interest of the community, as opposed to

the particular interest of individuals, is directly and vitally concerned'.

Yet in R v Sussex Confirming Authority, ex p Tamplin and Sons Brewery (Brighton)

Ltd (8) at 112 it G was said:

`It is fallacious to say that a condition is not in the public interest, or may not

be in the public interest, if it is the case that a great many of those persons who

constitute the public are not directly affected by it; and it is equally fallacious to say

that a condition cannot be in the public interest if a great many members of the

public neither know nor care H anything about it.'

So what do we understand by an action being in the public interest? We think it is so

when looked at objectively with impartial I

1994 TLR p52

RAMADHANI JA

A eyes the section is primarily and not incidentally in the interest of the public

which, depending on the matter at issue, may even comprise the individual or

individuals concerned, and it matters not whether the public is aware of it or not.

B With that understanding in mind, let us see what exactly the President decided

by saying `Nakubali'. We have no option but to start at the beginning and that is the

letter from PMO.

On 26 June 1986 the Principal Secretary to the President wrote to the appellant

company (exh A15) saying:

C `Tarehe 2.9.85 Waziri Nkuu aliwasilisha spala hili kwa Rais akishauri Darbrew

wamiliki mashamba hayo kwa sababu zifuatazo:

(a) Darbrew tayari wanayamiliki mashamba hayo, walikwisha kuvuna

msimu mmoja mwaka jana na hivi sasa wanavuna msimu wa pili, wakati Agro

Industries hawajafanya kazi yoyote pale. Walikuwa wanasubiri kwanza D wapate

hati ya kumiliki ardhi ili waende Benki kuomba mkopo.

(b) Darbrew ni shirika la umma, kwa hiyo katika mashindano ya kumiliki

ardhi baina yao na kampuni ya watu binafsi ya Agro Industries, shirika la umma

linastahili kupata ushindi.

Ukiridhika hivyo, iliyobaki ni kufuta hati ya Agro Industries ya

kumiliki ardhi hiyo. Uwezo huo Serekali inao E kisheria, na nashuari utumike.'

Then the President wrote `Nakubali'. Thus the President decided to revoke the rights

of occupancy of F the appellant company because: One, Darbrew was already in

possession of the farms and was cultivating them; and two, Darbrew is a parastatal

and that in a bid to the ownership of land a parastatal should be favoured against a

private firm.

G But how did Darbrew came into possession? Admittedly they were allowed to

occupy the farms by the Village Government on 1 November 1983 because there was

a big bush which provided refuge for destructive animals. Darbrew then applied for

title on 9 May 1984. So they were cognizant of the legal position that the Village

Government could not give title. Five days later, on 14 May 1984, the H General

Manager of Darbrew rang the Land Development Officer of Morogoro saying that the

Bank had rescinded its contract to sell the two farms to the appellant company and

that the Bank was going to sell them to Darbrew (exh A3). A copy of that letter from

the Land Development Officer to the Bank was sent to Darbrew who did not protest

their innocence. That was an unabashed lie which I only meant that Darbrew was

well aware that

1994 TLR p53

RAMADHANI JA

the farms were already sold to the appellant who in fact had paid for them as far back

as 6 October A 1983.

Admittedly since the consent to the Commissioner for Lands had not been obtained

the transaction between the appellant company and the Bank was an inoperative

agreement. But then the title remained with the Bank, the mortgagee, it had not

passed to the Village Government. So Darbrew B were trespassers and we are

satisfied that they knew their status to be so. In the eyes of the law a trespasser is a

trespasser be it a public enterprise or a private enterprise or an individual.

So the crucial question is what action is in the public interest: to protect one with a

legal title or to C protect a trespasser? What is at stake in the sanctity of a legal right,

and particularly right to property, against the use of naked force. Which of the two

should be protected in the public interest?

We are satisfied that public interest, as we have stated to understand it, requires that

legal property D rights should be protected against trespassers. Except for these two

farms in question, it is also in the interest of Darbrew themselves that legal property

rights should be respected and protected.

So the revocation which was done in favour of a trespasser and against a lawful owner

never be in E the public interest. So the revocation is null and void because s 10(2) of

the Land Ordinance provides:

`Notwithstanding the provisions of ss (1) the President may revoke a right of

occupancy if, in his opinion, it is in the F public interest so to do.'

This we are satisfied was not done in the public interest.

Admittedly that subsection provides a subjective test that is: in the opinion of the

President. In this G case that opinion was based on the recommendations of PMO

which did not describe Darbrew in its true colours that it was a trespasser. In fact the

President was misled by `Darbrew tayari wanayamiliki mashamba hayo . . .'. If the

President was seized of the full and correct situation he H would not, in our opinion,

have used his name to protect a trespasser albeit a public enterprise. He would have

been of the opinion that that was not in the public interest.

Lastly there is the issue of compensation. This is straightforward. As already said at

the meeting called by PMO both the appellant and Darbrew had agreed to pay

compensation to the other party I

1994 TLR p54

A should it be so decided. Admittedly the revocation order did not say anything

about compensation but that does not mean that it was denied. So the applicant

should compensate Darbrew for unexhausted improvements.

B This appeal is allowed with costs. The revocation order is quashed. The appellant

company still has rights of occupancy over farm 6 and 7 and it shall compensate

Darbrew for unexhausted improvements. It is so ordered.

1994 TLR p54

D