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.
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
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
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
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
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 BPresident . . .'.
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
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.
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 Bsubsidiary 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
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
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
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.
D
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