Gratian Mukoba and 19 Others vs Buhanga Village Council and 4 Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF BUKOBA

AT BUKOBA MISC. CIVIL CAUSE NO. 24549 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

PREROGATIVE ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS MISCELLANEOUS PROVISIONS) ACT [CAP. 310 R.E. 2019] AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS MISCELLANEOUS PROVISIONS) (JUDICIAL REVIEW AND FEES) RULES, GN. NO 324 OF 2014 AND IN THE MATTER OF VILLAGE LAND ACT [CAP. 114 R.E. 2019] AND IN THE MATTER OF LOCAL GOVERNMENT (DISTRICT AUTHORITIES) ACT [CAP. 287 R.E. 2019]

AND

IN THE MATTER OF AN APPLICATION TO CHALLENGE THE DECISION OF

BUHANGA VILLAGE COUNCIL THROUGH ITS VILLAGE COUNCIL FOR DECIDING ON GIVING THE LAND TO THE 4th AND 5th RESPONDENT AS THE VILLAGE ASSEMBLY HELD ON 26th APRIL, 2024 DID NOT PASS RESOLUTION

OF GRANTING ANY PERSON AS THE VILLAGE GENERAL ASSEMBLY OF

BUHANGA SO ANY GRANT MADE BY THE VILLAGE LEADERS WAS UNREASONABLE, ILLEGAL, IRRATIONAL AND TAINTED WITH PROCEDURAL

IMPROPRIETY

BETWEEN GRATIAN MUKOBA...................................................... 1st APPLICANT BRIGHTON KILAKWA.................................................. 2nd APPLICANT FASTON ALPHONCE..................................................... 3rd APPLICANT JENESTER PETRO........................................................ 4th APPLICANT WAITON SIMON.......................................................... 5th APPLICANT JOHANSEN JASON....................................................... 6th APPLICANT FASTON FREDRICK..................................................... 7th APPLICANT Page 1 of 13 FELIX BUBERWA......................................................... 8th APPLICANT JULIUS JASON............................................................. 9th APPLICANT ASHIRAF HASSAN....................................................... 10th APPLICANT IMELDA ISAYA............................................................ 11™ APPLICANT PRAISON RICHARD..................................................... 12th APPLICANT THEONEST KYOBYA..................................................... 13th APPLICANT AMIDU BIIRU.............................................................. 14th APPLICANT SEDEKI SILAS.............................................................. 15™ APPLICANT DEOGRATIAS SAMWEL................................................ 16™ APPLICANT GELARDINA COSTANTINE........................................... 17™ APPLICANT CYRIACUS KIRO.......................................................... 18™ APPLICANT JOVENARY KIRO......................................................... 19™ APPLICANT RWIZA BYABATO......................................................... 20™ APPLICANT

VERSUS BUHANGA VILLAGE COUNCIL..................................... 1st RESPONDENT MULEBA DISTRICT COUNCIL...................................... 2nd RESPONDENT THE ATTORNEY GENERAL........................................... 3rd RESPONDENT ALFRED TIBAIGANA.................................................... 4™ RESPONDENT NATHAN TIBAIGANA........................................ .......... 5™ RESPONDENT

RULING 20th November and 10th December, 2024 BANZI, J.: Under sections 18(1) and 19(3) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Act [Cap. 310 R.E. 2019] ("the Act") and rules 5(l)(2)(a)(b)(c)(d) and 7(5) of the Law Reform (Fatal Accidents Miscellaneous Provisions) (Judicial Review and Fees) Rules, GN No. 324 of 2014, ("the Rules'), the applicants have filed this matter applying for leave to file an application to seek prerogative orders of certiorari and mandamus. In the main, the applicants are intending to challenge the decision of first respondent to grant land to the fourth and fifth respondents without following the procedure and they are also aiming to get the order of this Page 2 of 13 Court compelling the first respondent to convene another village assembly in accordance with the law. Briefly, according to the statement and affidavit deponed by Mr. Derick Zephurine, learned counsel for the applicants, on 26th April, 2024 the first respondent convened a village assembly which among other things was to pass a resolution of allocating the land to the fourth and fifth respondents in exchange of a house owned by them. However, when the agenda of allocating the land to the fourth and fifth respondents was tabled, a fracas ensued after most of the villagers opposed the allocation, hence, no consensus was reached. Despite that situation, two weeks later, to

their surprise, they saw the fourth and fifth respondents erecting boundaries in the presence of the first respondent. Aggrieved by unlawful allocation of that land, on diverse dates, they complained to the second respondent for unlawful allocation but the second respondent took no action. Their main contention was that, the land in question which has been used by the villagers for grazing, harvesting grasses and for funeral use, was unlawfully allocated to the fourth and fifth respondents. They added that, the land has been reserved for future use such as building dispensary, schools or vocational training centres. Therefore, they pray for this Court to grant leave to file the judicial review in order to protect the land that has been reserved for villagers' daily activities and for future use. Page 3 of 13 Upon being served with the copies of the application, in their counter affidavit, the fourth and fifth respondents raised a Preliminary Objection of four points thus: i. This honourable court has no jurisdiction to entertain the matter of which the Applicants failed to first exhaust all remedies available to them under the Village Land Act [Cap. 114 R.E. 2019] read together with Land Act [Cap. 113 R.E. 2019]; ii. This application is incompetent and bad in law for being not accompanied with valid Statement to support the application in terms of Rule 5(2)(a) of the Law

Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 [G.N No. 324 of 2014]; Hi. This application is incurably irredeemable defective for being supported by a defective Amended Applicants' Joint Affidavit deponed and verified by DERICK ZEPHURINE, Counsel for the Applicants; iv. The application is misconceived and bad in law for being improperly amended in contraventions of the Order of this Honourable Court dated 2Sh day of October, 2024. When the matter was called for hearing of Preliminary Objection, the applicants were represented by Mr. Derick Zephurine, learned Advocate, the first to third respondents were represented by Messrs. Lameck Buntuntu and Muyengi Muyengi, learned Senior State Attorneys, whereas the fourth and Page 4 of 13 fifth respondents enjoyed the services of Mr. Zedy Ally, the learned Advocate. Taking the floor first, Mr. Ally submitted that, this matter was prematurely filed in this Court, thus this Court lacks jurisdiction to entertain the same. According to him, before filing this application, the applicants ought to have exhausted available remedies under sections 61(2) and 62(2)(e) of the Village Land Act [Cap. 114 R.E. 2019] ("Village Land Act") and 167 (l)(e) of the Land Act [Cap.113 R.E. 2019] ("the Land Act"). Hence, before seeking for judicial review, the applicants were supposed to refer the dispute

to the village land council and by failing to do so, the matter was prematurely filed to this Court. He cited the case of Hekima Mwasipu and Others v. Tanganyika Law Society (TLS) and Others (Misc. Cause No. 2 of 2023) [2023] TZHC 17555 TanzLII to support his point. In respect of the second point, Mr. Ally argued that, the application is incompetent for not being accompanied by valid statement according to rule 5(2)(a) of the Rules. Paragraph 1.1 of the amended statement does not mention the names and description of the applicants as required under the law. In his view, such omission is fatal because the statement in question is going to be attached in the main application for judicial review as per rule 8(l)(a) of the Rules. He prayed for the same to be struck out for being defective. Page 5 of 13 Turning to the third point, Mr. Ally contended that, affidavit in support of the application which was deponed by Derick Zephurine is defective for containing lies. Under paragraph 8 and 9 of the affidavit, the deponent included himself as the person who saw and do some acts but in verification, the deponent said, the contents of paragraph 8 and 9 are information supplied to him by the persons he mentioned. In that regard, the deponent deponed lies under paragraph 8 and 9 hence, making the affidavit defective as it was stated in Lilian Ricard v. Idd Hamis (Civil Application No.

272/08 of 2021) [2024] TZCA 549 TanzLII. According to him, the affidavit containing lies cannot be used to support the application, it should be struck out for being supported by defective affidavit. Submitting on the last point, Mr. Ally argued that, the verification clause in the amended statement was amended contrary to the court order which only required removal of names and everything concerning the parties who were wrongly joined. Apart from that, even the jurat was modified as it is different from the former documents especially on the date. On his part, Mr. Buntuntu supported the submission made by Mr. Ally and had nothing more to add. In reply, Mr. Zephurine prefaced his submission by stating that, this application is not concerned with land dispute rather is the administrative matter. The applicants have no land dispute but they are disputing the illegal Page 6 of 13 decision made by the village council. In his view, there is no other remedy available to the applicants other than judicial review considering that, they appealed against the decision of the village council to the Executive Director but he failed to entertain the matter within time that is why they decided to come to this Court to seek assistance. He further contended that, the cited case of Hekima Mwasipu and Others vs Tanganyika Law Society (TLS) and Others is not applicable. In regard to the second

point, Mr. Zephurine contended that, the applicants referred at paragraph 1.1, means the twenty applicants by their names as there is no other persons apart from the twenty applicants in this application. Turning to the complaint that the affidavit is defective, Mr. Zephurine contended that, the errors at paragraph 8 and 9 are human grammatical errors which cannot vitiate the whole affidavit rather, the offensive paragraphs can be expunged. According to him, there was no false affidavit. Thus, the case of Lilian Richard v. Idd Hamis is distinguishable. In respect of the last point, Mr. Zephurine was of the view that, former documents and the amended ones are not different as both are the same. Hence, the Preliminary Objection should be overruled and the main application be heard on merit. Page 7 of 13 In a brief rejoinder, Mr. Ally insisted that, the applicants did not exhaust available remedies under the law before filing this application. According to him, this case was prematurely filed because, if they went to the Executive Director, there is no decision that has ever been made by the Executive Director. Responding to the argument made by Mr. Zephurine that the word applicants meant the twenty applicants in this case, Mr. Ally insisted that, the names and description of the applicants ought to be disclosed, thus, by stating "the applicants" does not mean the names of the

applicants in this case. In addition, the affidavit is evidence, hence there is nothing concerning grammatical errors. Also, the advocate sworn as among of the applicants something which is false and thus, the issue of expunging offensive paragraph is not applicable here. Having carefully scrutinized the pleadings and the arguments for and against the preliminary objection, I find it prudent to begin with the first point which touches the issue of jurisdiction. Basically, there is no dispute that, this Court is clothed with jurisdiction of judicial review. Notably, filing of judicial review is preceded by application for leave. Among the criteria for granting leave for judicial review is that, the decision subject matter of judicial review is final and conclusive in the sense that, there is no alternative remedy available for the applicant. According to Page 8 of 13 Mr. Zephurine, there is no any other remedy available to the applicants that is why they filed this application seeking leave to file judicial review. However, on his side, Mr. Ally objected the application contending that, the applicants have alternative remedy under sections 61(2) and 62(2) of the Village Land Act. This argument was strongly resisted by Mr. Zephurine who contended that, the matter at hand is not a land dispute upon which the provisions of section 62(2) can be invoked. According to the affidavit

and statement in support of the application, the applicants are challenging allocation of the village land to the fourth and fifth respondents without following the procedure of the law. In other words, the applicants are aggrieved with allocation of the village land to the fourth and fifth respondents, the allocation which was not approved by the village assembly as required by the law. In a simple statement, the applicants are alleging that, the first respondent has illegally allocated village land to the fourth and fifth respondents. Now the next question to be answered is whether or not the grievance of the applicants is the land dispute falling under the land disputes mechanism established under sections 62(2) of the Village Land Act. Section 61(1) of the Village Land Act provides that: "Where any villager or person residing or working in a village or the village council or a non-village organisation within the village ora person coming within an agreement Page 9 of 13 made under section 11 or an arrangement made under section 58 has a dispute with any other villager or person residing or working in a village or with the village council or a non-village organisation within the village or a person coming within an agreement made under section 11 or an arrangement made under section 58 over any matter concerning village land within that village or land to which section 11 or

58 apply, all parties to that dispute may agree to call in the services of the village land council or its member to mediate between and assist those parties to arrive at a mutually acceptable solution to the dispute." (Emphasis supplied). It is apparent from the provisions of the law cited above that, where any villager has a dispute with village council over any matter concerning the village land within that village, is required to refer the dispute in question to the village land council for mediation. If any party does not accept the conclusions of any mediation, is required to refer the dispute to a court having jurisdiction over the subject matter of the dispute pursuant to section 62(1) of the Village Land Act. According to section 62(2) of the Village Land Act, the courts vested with exclusive jurisdiction, to hear and determine all manner of disputes, actions and proceedings concerning land are; "(a) the Court ofAppeal; (b) the High Court; Page 10 of 13 (c) the District Land and Housing Tribunal; (d) the Ward Tribunal; and (e) the Village Land Council." As alluded above, the applicants are aggrieved with the decision of the first respondent to allocate village land to the fourth and fifth respondents without following the procedure of the law. Obviously, a decision concerning allocation of village land is purely a land matter and any dispute arising therefrom, should

be dealt with under the land disputes mechanism established under section 62(2) of the Village Land Act. It is my considered view that, the applicants are supposed to challenge the alleged decision of the first respondent through the land disputes mechanism established under section 62(2) of the Village Land Act because allocation of land is purely land matter and not administrative matter subject to judicial review as suggested by learned counsel for the applicants. Since the grievance of the applicants falls squarely on land dispute, such dispute ought to be channelled to land disputes mechanism. Besides, it was stated in the case of Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 that: "...courts would not normally entertain a matter for which a special forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum." Page 11 of 13 See also the case of Commissioner General Tanzania Revenue Authority and Another v. Milambo Limited (Civil Appeal No. 62 of 2022) [2022] TZCA 348 TanzLII. In that regard, by seeking leave in a view of filing application for judicial review, the applicants have chosen the wrong path as their proper remedy is available in the special forum dealing with land disputes. Be it as it may, just for the sake of argument, assuming that, the applicants7 grievance falls

under the judicial review, yet still, they would not have met the criteria for being granted with leave because, the purported decision of the first respondent was not final and conclusive. In his submission, Mr. Derick contended that, after the first respondent had reached into the decision of allocating the land to the fourth and fifth respondents, they appealed to the District Executive Director of the second respondent but the Director failed to entertain the matter within time that is why they decided to come to this Court for redress. From his submission, it is apparent that, the final decision subject to judicial review could be the decision of the second respondent which is yet to be made. That being the case, it cannot be said that all available remedies were exhausted before filing this case. In the circumstance, the application could still be incompetent for being filed prematurely. Page 12 of 13 From the foregoing reasons, I find the first point of preliminary objection with merit and it is hereby sustained. Thus, I don't see the need to delve into the remaining points because the first point suffices to dispose of this application. Consequently, this application is hereby struck out for being incompetent. However, owing to the nature of the matter, each party shall bear its own costs. It is accordingly ordered. I. K. BANZI

JUDGE 10/12/2024 Delivered this 10th day of December, 2024 in the presence of the first, third, fourth, tenth and eighteenth applicants, fourth respondent, Mr. Nestory Lutambi, learned State Attorney for the first to third respondents, Mr. Zedy Ally, learned Advocate for the fourth and fifth respondents, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 10/12/2024 Page 13 of 13