By Bernard James
The Citizen reporter
Dar es Salaam. The Court of Appeal has quashed an order seeking the jailing of permanent secretary in the lands ministry Patrick Rutabanzibwa, and his two senior aides for alleged contempt of court, noting that proceedings that gave rise to the order were ambiguous and a nullity.

Justices Nathalia Kimaro, Sauda Mjasiri and January Msoffe said the three were not accorded a full and fair hearing. They added that the order was incapable of enforcement against anybody because “it was directed to nobody”.

Two months ago High Court judge Agaton Nchimbi ordered the jailing of Mr Rutabanzibwa, director of planning Albina Burra and commissioner for lands (East Zone) Joseph Shewio after they refused to sign a title deed endorsing the occupation of an open public space at Masaki in Dar es Salaam for commercial use.

The judges said the order was not only incapable of being enforced against anybody but also “unclear and ambiguous.”

The dispute revolved around a case filed in January 2008 by Oysterbay Properties Limited and Kahama Mining Corporation (KMC) against Kinondoni Municipal Council, the Attorney General and the Commissioner for Lands.
The two sought a declaration that the suit involving plots No. 1860 and No. 1861 was the property of KMC. They also sought an order for the demolition of buildings standing on the plots.

In October 2009, the two parties executed a deed of settlement under which Oysterbay Properties Limited was to be given alternative plots, the ones currently under dispute.

Justice Nchimbi then went on to register the deed for settlement, followed by a decree which ordered for the conversion of the plots to commercial or residential use as well as being transferred to OPL as legal and beneficial owner. He marked the case as settled.

But the three judges said in their decision on Friday that the decree did not conclusively determine the rights of the parties and the subsequent contempt proceedings were “pregnant or fraught with serious shortcomings in law.”

The court said the trio was not only deprived of the right to be heard in the proceedings, but also the deed of settlement was uncertain and incomplete because its execution depended on future actions.“Since there was no decree capable of execution, it follows that all the subsequent proceedings in the matter were a nullity because they had no leg to stand on,” they said.

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