20170821 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA LAND APPEAL NO. 51 OF 2017 (From the Decision of the District Land and Housing Tribunal of Kondoa in Land Appeal No. 25 of 2016) HUSSEIN MB UVA ............................................................APPLICANT VERSUS MWENYEKITI WA KAMATI YA SHULE ............................. RESPONDENT JUDGMENT 22/6/2017 & 21/8/2017 A. MOHAMED, J: This second appeal arises from the decision in Land Appeal No. 25 of 2016 of the Land and District Housing Tribunal for Kondoa ("the 1st appellate tribunal") that gave judgment for the respondent, Mwenyekiti wa Kamati ya Shule. The matter originated from the ltololo Ward Tribunal which had also given judgment to the respondent. Briefly stated, the appellant brought an action against the respondent in the ward tribunal for trespass over his ½ acre of land at the village in 2015 which he claimed had been part of the parcel of land allocated to him in 1974 during Operation Vijiji. Having lost in the ward tribunal and the 1st appellate tribunal, he has preferred this 1 appeal on three grounds; one: the 1st trial tribunal's judgment was null; secondly that the 1st appellate tribunal erred in holding he had sued the wrong person, and 3 rd that the 1st appellate tribunal based its decision on weak evidence. After the respondent's failure to appear in court despite being properly served to defend the suit, he was served by way of substituted service in the Mwananchi newspaper. Finally, this court ordered the appeal o be proved ex parte against the respondent by written submissions which were duly filed within time. In support of the 1st ground, the appellant essentially argued he had been- lawfully allocated th~ land. by the Village authority pursuant- ~ - -· to section 15 ( 1} of the Village Land Act No. 5 of J 999. He also contended in the 2nd ground that the Chairman of the Village school committee was a proper party that he ~orrectly sued in the ward tribunal. He went on to_ say th~re _are no school b_oards in primary schools particularly those owned by the government. He also refuted any irregularity in the ward tribunal's proceedings as the tribunal was properly constituted. After reviewing both the submissions and the record, I will consider the 2nd ground: that the 1st tribunal erred in holding the appellant sued the wrong party since the School Committee 2 r' Chairman is not a legal person. Section 26 of the Local Government {Local Authorities) Act !'lo. 7 of 1982 stipulates thus; "26. (2) Upon the issue of a certificate of incorporation in relation to a village# the village council of the village in question shalt with effect from the date of that certificate# be a body corporate# and sha/1- (a) Have perpetual succession and an official seal; (b) In its corporate name be capable of suing or being sued; (c) Subject to this Act be capable of holding and pur_~hasing# or acquiring in any other way# and disposing of any movable or immovable property. From the foregoing provision, the village council is, according to section 26 (2) (b), a body corporate which owns the school and thus has legal capacity. I do therefore agree with the 1st appellate tribunal's finding that the chairman of the school committee is simply a functionary of the village council and cannot sue or be sued either in his personal or functionary capacity. Consequently, this ground fails. In the event, I uphold the lower tribunal's sound decision. However, I think the Village council is the sole party to be sued. In the 3 circumstances of this case, I also think each party should bear its costs as the matter has not been conclusively determined. It is so ordered. A. MOHAMED JUDGE 21/8/2017 The right of appeal explained. A. MOHAMED JUDGE 21/8/2017 4