19990510 TZHC Mbeya

IN TEE Hr..GH. COURT OP ~AN.UNIA AT ...... I/IBEY.A ... • CIVIL CASE NUMBER 3 OF 1997 LOTENGANO MW.AKAPALILA & 10 OTHERS •••• ,PLAIN~IFFS ., VERSUS ,1. CHAIRbIAN WIAU::.A tBe VILL. COUNCIL.l: .llEr.EtlDANTS 2. THE ATTORNEY GENERAL RULING '• ffllOPO, J' . This suit was filed by 11 Plaintiffs represented by t.he leal'118d Mr. Mushokorwa (Advocate) claimi118 . for ownership et ~ one acre ©each in an unsurveyed land which they claimed ta b.aw been in constant occupation and agricultural use for a lon& ti~. ~hey also claimed for compensation of destroyed pyretb,rwn crop".: which was destroyed by the co-villagers for purposes tf chal1ging the use of the land from growing pyre thrum ( cash ci-"1)) t~ that of growing maize/cereals (food). fhe defendants are two the Chairman of Wimba 'B' Village Oounoil as the 1st defendant and the Attorney General an the 2ni defendant both of whom have been represented by the le_ariw«. Mr. Mulokozi (S.A.) • Before the start of the hearing ~f the evidence there are preliminary points r~sed by the 1st defendant the Chairman -,r ·· ... · Wimbs 'B' Village Oounoil ~:lout the eppli~ation of res judicata whioh could frustrate the entire suit .in respect of some t>f the plaintiffs._ ........ ,.,.;,,/ .,,/··... •, ~r / ,, 4\ .. '' ~ .... ~,,,·· ••' ,..-,-;,. :"\. .. ----- - - 2 Trero~are.____also---o-ther ·preliminary points of procedure touching on the joinder of . :,;-, sQme plaintiffs and the 2nd defendant as well as about the cause of action against the 2nd defendant which this court will deliberate upon preliminarily~ The learned Mr. Mulokozi (S.A.) opposed the inclusion of the some of the plaintiffs as parties to this suit on reason that they· had been joined into thie suit as plaintiffs without their knowledge and consent and for no apparent oause~ This preliminary in order point led this court to count the plaintiff's appearance in pei-s~o/ to know ~heir stance in the suit since their letter seeking for only 2 of them the let plaintiff Lutensano s/o Llwrucapallla and the 4th plaintiff Yakenyu s/o Majaliwa to represent them filed in court was only a photocopy without its original which has not been shown or traced in court; This exercise led to the finding that the 5th plaintiff Kafunga s/o Mwakalinga has already died and it was not shown when he died i~e. prior to or after this suit was filed in been court. So, his claims if any should have;filed in court by h,is estate's administrator which has not been done~ Fis name in hereby · this su.i t_ therefore is/struck out; Then, after the court had called each plaintiff in person and each plaintiff had answered his name and been asked if he chose the 1st plaintiff and 4th plaintiff to represent him in appearance and in giving evidence in court the learned Mr. Mulokozi raised the locus standi of those who answered as being the 9th plaintiff Japhet Mwakyu.sa and the 10th plaintiff Asayeto •.• /3 - 3 Mwas.ubila for t.b.ey were not the re.al Japhet s/o Mwakyusa and Asayeto lVIwasubila in trllth4C Oh questioning thesa two plaintiffs further by the court they ccrjfessed that they were not Japhet s/o rJiwakyusa who was not in court but his name had been answered by one Daudi Samson who purported to he a neighbour of Japhet Mwakyusa who had gone to Songwe to see a sick relative~- .As for the 10th plaintiff one Ju.ma s/o Dang' ombe came out as the person who prer-ported to be Asayeta s/o Mwasubila since the said Mwasubila he told the court not was sick. At the same time he wa related to the said Asayeto s/o 1 Mwasubila and he didn't even know why the 10th plaintiff pi•l,ted · him as his representative.0 The misrepresentative in appearance in 0ourt of Daudi Samson answering and purporting to be Japhet s/o Mwakyusa and Juma s/o stood Dang'ombe who / up and identified himself as Asayeto s/o Mwasubila while they were not the real Japhet s/o Tu1wakyusa and Asayeto s/o Mwasubila respectively took 6 even the learned Mr. Mushokorttm their ·own advocate by surprise. The exercise of calling each plaintiff by name resulted from this courts order of this court made on 20.11.98 to this effect, I quote:- ar need to see·@ plaintiff in person in court before I make a ruling on the preliminary points. Mention on Tu~sday l.l2e98 for this purpose before Hon. Judge. All the 11 plai~tiffe must come in court in persona" When we convened on 1.12.98 the learned Mr. Mushokorwa (Advocate) confidently opened up; the day believing all the ll plaintiffs had come in court in compliance with the court's order 0 •• /4 4 - and said the follovling :- ""The court directed that all the plaintiffs should come to the court to be physically present and express if they authorized Lutengano s/o lVIwakapalila the 1st plaintiff and Yakenyu s/o Majalii,;;a the 4th plaintiff." Alas, both the' court's and the learned Mr: Mushokorvra's legs were pulled up by both the said Daudi s/o Samson and Juma Dang' ombe until the learned Mr~ Mulokozi (S • .A.) shook our shoulders from being taken for a ride without our legs by the 9th and the 10th plaintiffs' stooges. The same 9th and 10th plaintiffs as far as it concerns this suit are dummies not real persons who were phycisally present in court when required to do so. They are struck out of the plaint for their failure to show their identity if they exist for purposes of prosec1.,:ting this plaint and 4th on their mm or as represented by the lsyplaintiffs and the learned Mr. Mushokorwa Advocate to whom their two agents above named also hid their identity just as they did to the court, So, upto nov1 we remain with only 8 plaintiffs the 1st - 4th plaintiffs, the 6th - 8th plaintiffs and the 11th plaintiff: The other preliminary p.oint raised by the learned Mr. Mulokozi (S.A.) was that the plaintiffs were esto1Jped by section 123 of the Evidence Act from suing because they w3re parties to the general meetings of the village of 13/9/1980 and of 10/7/1981 which deliberated on b democratically and decided to pull out py.rethrum and plant maize instead. Both these meeting of 13.9.1980 and 10~7~81 have been opposed by the learned Mr • ••••• /5 Mu.shokorwa- {Ad-vocate) as not binding the 11 plaintiffs who still whose young continued using those r.,1').ots for a long time and/plants of pyrethrum were pulled cut illegally by the 1st defendant as shown in the pleadings <Ch . i:n the 6th & 7-th paragraphs of the plaint • The preliminary point raised fo:r th.e plaintiffs to be estopped from disovrof.J?J,g th9 decision of the general meetings . ' of the village Goverr.u-nent so that they should grsow only maize and not pyrethrum and the response thereof that as mmers of the plots they vrere entitled to plant the pyrethrum raise diametrically opposed claims over the ownership. of the land i.11 dispute on whether it belonged to the village government with the plaintiffs retaining the right of use only as invitOes or hirers of the land from the village government which requ:ire13 an adjudication of a court of Oh this point I don 2 t subscribe to thEl approach of the learned Mr. Mul6kozi (S.A.) that the plaintiffsshould be estopped from claiming compensation for any suffered damat.:~esafter any allegedly uprooted p:yrethrum from the farms in dispute. If such uprooting . of growing pyre thrum was done it could attract a civil suit even if the plaintiffs were mere invitees. Moreov8r 1 the decision to grow maize instead of pyrethrum was made in 1980 and 1981. New . environment might have t':ri::.,_ripe...d /io as to warrant renewed pyrethrum growing es:pe cially be cause pyre.thrum too like maize is not a perrnanent crop the· difference being that maized is a seasonal crop only whereas py.rethrum is a perennial crop lasting for between replanted , :. 2 - 4 years cycle before it di.es and has to be ·. /·· .;.: afresh.· ••• /6 6 In the plaint the plain.ti.ff ovBrred that the pyrethrum uprooted was a young crop whi oh ms ant that they had just planted it. Tha-:, he.i.:o;,;.I:_ the case the alleged planting of the young pyrethrur.c crop and its uprooting through tresp~ss appears to be a new deV'c J.o:pment not experienced prior to January 1995 when the cause c/ action o·f this suit is purported to have ariseno Otherwise, if the ,;;;:re thrum has been grovrn previously the conflict, on the face of the presented facts in the pleadings, could have arisen the earlier in/1980 - 1982 periodo of Who owns those plot pieces;land up.on which the alleged maize or pyre thrum ~::reps was being grown is the · ·b<Y.?J.e of contentions. The same ownership being contested is held under customary rights of occupancy as alleged bJ the plaintiffs in the 4 - 6 pa:rnsand under public land ovr.L.arship as alleged by the d,Jfexidant in the 4th para etc. of th~ Written Statement of Tofehce; This issue in the types of ownership and occupancy or use of the lana mould have to await a trialD But, collateral to it is the preliminary objection raised of by the learned ltr., Mulokozi (S.A.) at the time /her'ring these preliminaries that actually this suit is res judicata in view of previQUs_.~ civil cases between the same parties or some of them such as in Wlbeya Urban Primary Court 0 o c.. No~ 40/1995 which went the ladder up to the ~ifbeya District Court C.. .Ap})~No~46/1995 and to this Court (PC) CivoApp~ Noo59/1995 between the sam8 11 p:il.aintiffs and the then Samson Makanje (Village Chairman of Wimba B then and two others) c /7 . 7 f~ that" suit in which the 11::presemt., plaintiffs won ,e4- parte 0 in the Urban Prin'i~r; C~u.rt~ I\fue y~-~ D:i";~ri ct .•Do~t-- t~J.s - colftt quashed .• .... • • ,. !'_ ~; • • . • • _1 • ' L . • -,,: • - ~ the lower court's decision and allowed -tlie.11 plaintiffs to··· ..) ~ue tk··prope·r party to the· s:ui t instead· of the individual- 4 •,!•!. .. ·t·.. f • .. , : ~ ' r"' ... ; \. • defendants then · 'being sued the said. Sanurnn s/6 Makanjet John' , J Wilson Mak an ji • • ,._. t In respect of this previous case ·tm";-present case bn't be ., . .. ,I • ... .... ,- • • • • . stopped on grounds of the•· doctrine. of res judicata be_cause · the . de?ision of _this .co~ rt- ·quashing tnE/-~r~oeedings in :Urban Court Civ.Cfise was based ori wrongly sued pa'.::f.ties;· <- If the ·same--;parties ' had been sue_d now, then res judicata l!ouia. 'have· a:pr::li~d,. But, the- h3re the sued . parties ar;' Village Council of the Government -- . . B . and the .Attorney General - who ·are-· new com0rs Wimlh.a to this suit based on the same facts. In that case the present Lutengano ::·' ' Mwakapalila was the representative suing for the other 10' .... plainti~~s wi tho_ut the consent of the court which had been erronously done• Here 1 this; legal hurdle has -been •o:vercom~ or ., ·- •. 'l , . hypassed by the le;_arned Tulr~ Mushokorwa (Advocnte) by naving'·'-all .. the 11 plaintiffs sue in their ovm individual ·ca:paci ties but,: . . ., Y"i th only two main spokesmen being the ·same ist plainti.ff ~, -'. Lumngano mwakapalila and the t. -':h :plaintiff Yalrnn;yu Maj~.li:Jna• - ' " ...... t· The learned Mr.. mulokozi 1 s other case preJiminarily brought up establishing the:. application of the doctrine of ·- ' res judicata is that of Mt.alizi Primar7 Court c.c~ 4/94 John ••• _ \ C. •• Msalege as plaintiff Vs. Wilson rv'Iwaipopo, Nyakenya Majaliwa and • 0. /8 --- --- 8 Gayang 1 ombe Wayimba as defendants~ The said John Msalege as the Village Chairman of Wimba B - village sued the 3 defendants for for payment of shs. 21 1 000/= being feeo/ hiring· their plots• from the in --r.:..llage governme!)-t. The t:qree defendants lost;the Jrimary t,ourt i on sppeal of the 1iibeya District Court C.App. lfo~40/94 rthely·· l,o-st and • --.·,T . that again/they were ordered to pay the land use fees, meaning/the land .! - ov·,?1er13bip) iss~e of. the plots was determined to be the property of the village gowrnment of Wimba B. The proceedings show clearly that the plaintiff John Msalege sued as a village government's Ghuirrri~:n not as an indi vidual4 That being the case the sai·d three defendants are barre,d' by the do~trine o.f res judinat'a from suing ·the village governmerit <5n the ownership, of land. plots they.. are using •. Tu this sui. t the same three defendants have come up and joined hands with the other 8 plaintiff to sue the same village gowrnment+ for 01:mership.1 of the same pieces of L~rid for which they were already held to be mere hiring invi tee·s v;ho we:re liable ., to Ray land use fee totalling shs~21,000/=. In this suit they have featured as the 3rd plaintiff - Wilson Mwaipo~o (1st defendant ~ f 2nd defendant in the other case) and the 4th plaintiff Yakenyu Majaliwa (th~ 3rd defendant in the previous case). so, tt-ie preliminary objection in respect of t_hese plaintiff on p.,oint of res jud.icata is sustcinodc The sui. t filed b;y: the these three plaintiff is hereby dismissed with costs • ••• /9 - ' 9 - the So, now, we remain with onJ.o/'lst plaintiff Lutengano Mwak.apalila, the 6th plaintiff Anyosisye Mwasandwanga, the 7th plaintiff Pangeni Kalengo, the 8th plaintiff Ambikile Ngu.mbuki and t:t:i9 llth plaintiff Anyandwile Mwanjelwa. These 5.'..plaintiffs should have preierably conr_plied with s. ····- . . •' _.183, of the Local_ Government(District Authorities) .Act"'No. 7/1982 which requires that a suit against a Local GoVE:lrnment Authority must be preceded with a Mont~ 'Written notice of intention to·· commence the suit stating the cause of Action and reliefs claimed• Whereas s .• 3 of this Act - defines a "Dist~ic~ Authori ty"means • ,,... .- .. r- -. a di.strict Council' a towhahip authority. or a village council~•, for purposes of suing the village . pµw;i.cil - ...... ·.·: it has been protected just like any other local government a:uthori ty under s. 183 of th£/ Act whi ch··:covers only ,a Local ~overnment Authority which is under the same section 3 defined as .: "means a District Authority or an Urban Authority 0 • An Urban Authority has been defined under tho same section 3 "means A 6i ty C0uncil, a municipal council or town council". ir; Therefore, the Local Government Authority/protected under section 183 of the Act from civil au.its unless a monthl! written notice is served are six,mamely the District Cmmcil, a township authority, a village council, a city council, a municipal council ana a town council. In this suit the ll.months • written notice to sue has not been proved leave alone to .,be mentioned anywhere, in the pleadings to ha~ been served upon the Village Council of Wimba B. This is •••• /10 fatal statutory error which vitiates these proceedings ab ini tioi with Therefore, this suit is dismissed/costs for this ground alone. · I decline to order a new trial because this suit aJpears quite vexous for purposes.of the claims of the ownership of the land il'l dispute throue;hout the proceedings in the Lutengano Il'Iw~a;ealila and 10 others Va.·S-arp.son_Makanje and_ 4 others in this court's · ··.. . In the other s.lli-t .of . (PC) C.A. No.59/95 cited aboveiJohn Msalege vs. Wilson ~waipopo ......... ___ and 2 others the issue of the .ownership of the land being in the hands oif the village Gove~nment and that the plaintiffs were merely L { 1~ O usere of the land at the invitation of the village government was true quite accepted as the;state of facts obtaining i_n that locall ty. Moreover, in the 4th para of this plaint the plainti.ff . a«Jmowledges that their village government has carried out oper~~io~ vijiji (Villagization programme of 1974) under which pe~pl~ were reallocated to different places and public land was acquired for Ujamaa a cti vi ties within which the pre sent land· in di ppu te appears to have fallen as public land for public use for which the plaintiffs d · ht f retaina only a rig · o using 1· t nit- the 1.nvi · · t a t·ion o f ti.... .ue VJ..· 11age goverrune?he "'" 1 this status quo should not be disturbed. But, even with such publicly owned land the landlord is not supposed to destroy his invi tthes young pyretrr~: Therefore, I allow the 5 plaintiffR to sue in a proper lower court in respect of the value of only the allegedly destroyed yo1~r•·· .... .,.-rethrum crop; - 1 and not in respect of the. ownership of the lancl as public land under the land.lordship of· the village council. t:ftE::.c due noJti ce will have been complied with under s. 183 of the ~~t No.7/1982. • ••• /11 There is another issue noi{ covered by both parties; The 2nd defendant The Attorney· Geber~l was wrongly sued in this court for there is no cau·se o.f action against him_ i_n the entire plaint, state 'l The plaint and its para: that Wimb~ _B Village council i'·s a statutory body whlch under secion 26 of the same .Act N~ •. 7/1982 · is a body corporate •"capable of suing and beihg sued: Therefore, it doesn't have to be sued '·thr.o~g~ the Attorney General who is onJ.y sued under the Government Proceedings Act for the central government only not for )h~ocal government Authori tics mentioned hereinabove 0: • :, . . Of course, the Attorney General is free to represent theril 'if •l U, {I ', ~· 1 , , • • • • J • he cho,ses to do so, as the learnec(Mr. ~'.hllokozi (S.Ao) chose to ' ' •, • :•·. _. J •• .:•• _ . . • •• ·.,: ' '.' •• : _'. I • .:. .:_ !'-'.L represent the 1st defendant in this case as an officer of this court. If the plaintiffs had dev:ided to sue the Attorney;, Gene:ra1 of court as a frlinn~ yet he should have indicated so and .3i reason ven why he did so i.e., what public interest matter he wants to have the legal ~pinioi.i c5f the ·.Atto:rn~.;;r.}l:~neral.~ . .·.; . '.; ' That was riot the case he re • • I . . .... Therefore,·_ the 2nd defendant wa~ wrongly joined in this euii:fr~The plaint against him is struclt. out the rGcord with costs • • >~ ~'::· · Wilh the stricking out of the .Attor:qe.y G0:1.eral . _from ',.,. this suit ' ' . there _i's no· pec~ary or legal or judicial matter for ~hi_s court to get inv.oiwd.~ This ..suit was wrongly filed ir:. this court. The pecuniary claim at highest amounts to only 5.5m/°- ~.::~·:illings., with the remaining 5 plaintiffs it amounts to only shso 2. 5m/= purported value of the destroyed young pyrethrum. " ••• /12 .... 12 I In its entirety this suit ii3 hopelessly being dragged in un this court en acoeptable situation which mu.st be: terminated as 1 per_ dismissals of the suit explained above. '\,J'-./'v~~ .~.L~Kl MWI.POPO ... JUDGE 10/5/99 Coram: Hon~ Mwlpo'po,' J,. 1st· Plaintiff Lute.ngano ~wekapalila ~ 2nd Plaintiff, 3rd Plaintiff. 4th Plaintiff, 5th ~lain~iff Dead. 6th plaintiff - All pre.sent. 1th Plaintiff~ Absent 8th ,, n • 9th " VI .: . 10th y 19 11th n !I Mr. Mu.shokorwa (Adv~) for Plaintiffs - Absent. 1st Defendant - Absent 2nd tt Attorney ·General - Mr. Boniface (s• .A.) - p,iesent._ B/C: Kosam ,· Court: Ruling ::..delivered in the presence of both parties. \ " , • -.... ' E.L.K. MWIP0P0 JUDGE AT MBEYA 10.5~99 ELKM/ATM' lima •.