19911029 TZCA Arusha

- ~ - 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.