19911029 TZCA Arusha
- Citation
- 19911029 TZCA Arusha
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZCA
- Decision
- 29 October 1991
- Posture
- Civil Appeal / Final Appellate Judgment
- Language
- English
More details
- Court
- TZCA
- Decision
- 29 October 1991
- Posture
- Civil Appeal / Final Appellate Judgment
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court lacked jurisdiction to hear the suit as proceedings were wrongly commenced before it; all proceedings and orders are null and void.
Court disposition
proceedings declared null and void for want of jurisdiction; appeal disposed
Orders
- All proceedings and orders set aside
- Parties to bear their own costs in this Court and the Court below
02
Material facts
Parties
Tito Sitoro and 7 Others
Appellants Counsel: B. LobuluMatinya Sentiyu and 4 Others
Respondents Counsel: F.K. MuseiDeputy Attorney-General
Amicus Curiae Counsel: Mr. Chenge03
Procedural history
Posture
Civil Appeal / Final Appellate Judgment
04
Questions and positions
Legal issues
- 01
Whether the High Court had jurisdiction to hear the suit involving unsurveyed land
- 02
Whether the appellants could recover land contributed to a cooperative society upon resignation
- 03
Whether the society's constitution violated basic constitutional rights
Party arguments
- Applicant
- Appellants claimed they never joined the cooperative society nor pooled their land, and sought recovery of land allegedly appropriated by respondents.
- Respondent
- Respondents asserted appellants voluntarily joined the society and contributed land, and were bound by the society's constitution prohibiting recovery upon resignation.
05
Court’s reasoning
Legal principles
- 01
Arusha Municipal Council v. Lyamuya Construction Company Ltd. Civil Appeal No. 25 of 1989
Section 63(1) of the Magistrates' Courts Act 1984 does not empower the High Court to order commencement of suits involving unsurveyed land before itself.
- 02
Article 24 of the Constitution of Tanzania
A provision in a cooperative society's constitution prohibiting recovery of land by a resigning member and not guaranteeing prompt compensation violates basic constitutional rights.
06
Ratio, limits and disposition
Ratio decidendi
The High Court lacked jurisdiction to hear the suit as proceedings were wrongly commenced before it; all proceedings and orders are null and void.
Obiter and limits
- The appeal raised important questions of basic rights under the Constitution, but these must await valid proceedings before the Court.
Court disposition
proceedings declared null and void for want of jurisdiction; appeal disposed
- All proceedings and orders set aside
- Parties to bear their own costs in this Court and the Court below
Source and reliance status
TZCA · 29 October 1991
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZCA
Judgment· 29 October 1991
- ~ - COURT OF APPDli.L OF TJJ.ITZ!:.NIA AT lill.USIU.. C h- KISANGL. AND !-!NZL.Vl..S \ _TIT.O SLTORO lulD 7 OTHJRS •••••••• APPDLL.£.NTS 1.JID M.i:.TIY.i~ SI:lNTIYJ:.. .iJID 4 OTJDiIB ••••• RESPONDTINTS (Appeal from the Jud@llent and Decree of the Jli@l, ..Cour-t of Tanzania at li.rusha.) / (Chua 2 J•! dated the 26th cley of October, 1988 in -~ · .. ....... .. ~~ Ciyil Case No. 2] of, 1982, ::,/ ._;-'~ ', JUDGMTINT OF THD COURT / \ tg.s1.µGJ. iJ;eM ..___,_ This appeal a.ti.sea from the decision of the IIie;h Court ( Chua., J.~) a.t JU'USb.a disallowing the appellants' claim, inter alia 3 to recover 1 \ . . < ' a parcel of land comprising 172 acres situate in Ma:reu Villa.go, ~ \I District. The facts giving rise to the claim oa.n briefly be summari!,a as folloireu The appellants and th.0 respondents live in M.::.reu Village, \ 1.11'Ulneru District. In 1971 they decided to go. "Uja.maa." by pooling . . together part o:f their individual land holdings and working it jointly. This scheme came to be known as Mareu Uja.maa. C~perative Society which was du!,Y ;rogisrored in December, 1972. Subsoqucntly, however, the a.ppollants became disatis:fied with the affairs of the Co-operativ~ Society and one aftor the othor decidod to 'quit t:io Society. In this suit they claimed that they never joined tho Co-:-oporative Socioty in tho first instance, and that thoy novor pooled toc;other
a.ey- pa.rt of -·• .l j ,'" _t· i --·~ 2 their land for co-operative use.· According to them the resj;>ondents simply invaded their land and appropriated it to the Ujamaa Co-operative Sc,ciety. The High Court found that the- appellants at first volu.ntari lf joined· the Vjamaa Co-operative Society and did contribute some cf their land to the Society., ,The Court went on to £ind that" subs<: qt1ently the appellants decided to quit but could not retrieve the iand so contributed to the Society b_ecause ('If a provision in the Society ';"3 constitution which prohibited the recovery of land by a member \.Jho resigned his membership<> The Court observed that such a provisj~n was ' unfortunate, and that if the appellants were free to come to Uja nt.a ~operative Society with their land, they should also be a~le t, walk out with their land upon their resignation. Howev:er, the. l,Jamed · 1. judge held tha.t the appellants ·were bound by such provision of tlLe \ . '~ciety 1 s constitutionf and as.such they could not recover their land" - While eonsidering this issue the learned judge stated that 1ho provision· in the Societyts constitution which pr6hibited recovery c,f . . land by a member who resigns and which did not guarantee prompt "ompensation to such a member, violated a basic right of the indi rid.u.al as guaranteed under article 24 of the country's constitution. Th.1.a . . .the
lea.med judge_ in his judgement raised a c6nati tuti onal issue which,· however, was not raised during the trial, and when this app,1r~1 ' . came before us for the first time we, by our order dated 21.4.90, remitted the matter to the trial judge for·him to try and decide or. the const~tutional issue, and having done so_he accordingly sent back the file to us for f.in;:iJ '.'lisposF.1.J of the n.ppeal. i - --- Dep1:ty Attorney-General who appeared as ilamicus --~uriae", raise(~ inter alia, the issue of jurisdicti:n,, It. sc transpired that tr/ suit in this case involved unsur;reyed landr and that the High Cr ·t pursuant to section 63 (1) c:f the Magistrates I Courts Act 1984 µ:ad ordered that the suit involving such land ::e commenced before i ~self! -- -- Mr •. Chenge submitted that the section did not confer any such p ~·er ,. Pn the High Court, and for that submission he relied on the dee ~ion of this .Court in the case of Arusha ~cipal Co:iE}.Q_il Vo Ly§:Im tl'1 Constru_ction Comp¥J,_Y Ltd. Ci vii Appeal Ne o 25 of 1989 (Unrepl'lrt .a). This same issue was raised in that case where, after dealing wi ;tit etXhaustively 1 the Court held that s0cti ,n 63 (1) above cited di• (tot 0 I. emp()wer the High Court to ')rder that a suit involving unsurveyet: ~..and be commenced before itselfo That 0ase was decided on 30.7.90 ~rl;,· a£ter the matter in the present appeal had peen
remitted to the ~gh Court ~n 21.4o~J to try the constitutional issue 0 Thus Mr. Chentf concluded tha.t once the Ifagh Court had n0 · power to order the· commencement· of this 0ase before l tseH} then the prc:ceedings we •e wrongly commenced ;)cfo:re that Couri.o That is to say, the High C, ru,:-t lacked jurisdiction over the sui t 11 with the consequence that the ·~:-:-ial and I all the proceedings and. c,rders subsequent thereto were null and , o.:._d. Mr. B. Lobulu and Mro F.K. Musei reprsenting the appellants and the"' respondents t respectively readily ::,onceded to Mr. Chenge ~ submission and, i~ our view~ rightly soo In the circumstances, therefore, the prcceedings in this case are deola.i:-ed null and void.' f~ want of jurisdiction, and they are a.coordincly set aside. - l \ r t - 4 i Admittedly the ap~eal raised important quostions of basic rights of I the individual under the Constitutionp but in vi.ew 0£ the deoiai,?n we have taken, the matter has obviously been. overtaken by the evf'.lt, i and bas to await a deoision on some future' d~,te when it is vaJ.i, (y before the Court. The question (>f coats bas been of some concern, but consid•Jring all.the circumstances of the oase we think that the ends of jus;J~e would be me~ if the parties bear their own costs in this Court and in the Court below. It is ordered accordingly. DATED at ARUSHA this 29th day of Oct~ber, 1991. Ro !!,,. ICTSANGA
JUSTICE OF APPEAL AoMoAo OMAR
JUSTICE OF APPEAL N.S, MNZAVAS JUSTICE OF .APPF.AL l certify that this is a true copy of the origin.al.
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