High Court verdict on Coco Beach nullified
Justices Kipenka Mussa, Richard Mziray and Gerald Ndika reached the decision while determining an appeal lodged by Kinondoni Municipal Council after noting some irregularities by the High Court Judge who presided over the dispute.
They argued that one of the irregularities related to Judge Agathon Nchimbi to have taken over the conduct of proceeding from another High Court Judge Hamisa Kalombola without assigning any reasons for the move as required under the Civil Procedure Code.
“In exercise of our powers under section 4 (2) of the Appellate Jurisdiction Act, we quash and set aside the proceedings before Judge Nchimbi, as well as the judgment and decree dated July 23, 2015,” the justices declared in their recent judgment in Dar es Salaam.
For the sake of convenience and interest of justice, they also quashed and set aside trial proceedings before Judge Kalombola given circumstances of the matter that the takeover occurred after only one witness had testified.
They remitted the matter back to the High Court for fresh trial before another judge.
Judge Nchimbi, according to the High Court judgment, had ordered the Municipal Council to pay Q-Consult Limited, allegedly owned by businessman Yusuf Manji, 500m/- as damages for breach of agreement relating to the development of Oysterbay Beach, a prime seaside area in the city and ordered specific performance of such contract.
During the appeal hearing, Q-Consult Limited conceded to the appeal, with Advocate Mpaya Kamara, for the company, confirming that his client’s concession was based on an error that had been committed by the High Court when hearing the matter.
He submitted that having ruled at the pre-trial stage in an interlocutory application that it had no jurisdiction to deal with the matter then the High Court wrongly proceeded with the main suit to its conclusion. Such position was communicated in advance to the court through two letters.
In their judgment, the justices stated that they were unable to deal with the concession by Q-Consult to the “purported” appeal, pointing out that in the absence of valid proceedings in the High Court, the Municipal Council could not credibly claim to have a right of appeal “For, in law, there cannot be an appeal from a nullity. If by conceding to the appeal (Q-Consult Limited) necessarily manifested that it was no longer interested to pursue its claim against the Municipal Council, it should raise the matter to the High Court for appropriate action to be taken,” they ordered.
It was alleged that the Kinondoni Council concluded an agreement with Q-Consult Limited for development of the Oysterbay waterfront by designing, building and operating the beach area, which is one of the few remaining public beaches in Dar es Salaam.
The Q-Consult was allegedly leased about 21.6 hectares of the beach stretching from Kenyatta Drive to the outer edge of police officers’ mess compound on Toure Drive.
The area is demarcated in four zones within the coral cliffs, the sand beach, the park and the hilltop ledge, which covers about seven hectares described as the master plan that will provide for built environment and place for communal recreation.
It’s further claimed that under the fiscal terms of the project, Mr Manji would pay 300,000 US dollars (over 700m/-) annually in royalty to Kinondoni Municipal Council or five per cent of revenues, whichever is higher from the first year of operation.
Structures to be built as part of the project master plan were an arrival centre, chalets, marina, amusement park, car park, aquarium, Marine park, botanical garden, children’s park, deep-water diving facilities, bird and butterfly sanctuary, restaurants and bars, recreational places and services.
Other would include telescopic tower, picnic spots, handcraft stalls, youth and health centre, sports ground, water sports, jetty, shark protection fence, mobile kiosks and children’s games.
Additionally, the park would have a jogging track, horse riding, food stalls, aerobics ground and an open-air theatre. As it turned out, the agreement was not performed.
On July 17, 2008, the Municipal Council sought to terminate the agreement, alleging that Q-Consult Limited had failed to complete preparations for execution of the construction works within six months.
The Q-Consult countered that it had been prevented by the council’s acts from performing its part of the agreement and file against the council before the High Court’s Land Division for breach of contract.
Having ruled in favour of Q-Consult Limited, the Municipal Council challenged the verdict at the Court of Appeal, staging several grounds.
However, before commencement of the hearing, Q-Consult wrote to the court, stating that it was not opposing to the appeal.
Sometimes in June 2017, Mr Manji published an advertisement in the media, stating that he was ready to abide by the directives given by the government under President John Magufuli to maintain the current status of the area in question for use to all citizens.
He, therefore, announced to the public that he was apologising to the president and his entire government for any inconveniences caused while following up the dispute involving the matter.
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