ololosokwan village council and ors v ag of tanzania ruling application 15 of 2017 2018 eacj 89 25 january 2018

n ) - -~ ~ IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSH11\ ~ /1 \ FIRST INSTANCE DIVISION . ~ -<-~ ~ ~ Coram: Monica K. Mugenyi, PJ, Faustin Ntezilyayo, J, Fakihi A. Jundu, J.) ~ APPLICATION NO. 15 OF 2017 (Arising from Reference No. 10 of 2017 OLOLOSOKWAN VILLAGE COUNCIL & 3 OTHERS ...... APPLICANTS VERSUS THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA ............................... RESPONDENT 25TH JANUARY 2018 1 RULING OF THE COURT A. INTRODUCTION 1.This is an Application by four (4) Village Councils for interim orders against the Attorney General of the United Republic of Tanzania (hereinafter referred to as "the Respondent") pursuant to Articles 6(d), 7(2), 27(1 ), 30, 39 of the Treaty for the Establishment of the East African Community (hereinafter referred to as "the Treaty") and Rules 1(2), 21 , 22, 23, 84 and 85 of the East African Court of Justice Rules of Procedure 2013 (hereinafter referred to as "the Rules"). 2.The Village Councils in question are Ololosokwan Village Council, Oloirien Village Council, Kirtalo Village Council and Arashi Village Council (hereinafter referred to collectively as the "Applicants"). They are all legal entities established by law in the United Republic of Tanzania, body corporate that are contained within the Ngorogoro District, Arusha Region. 3.The Application arises from Reference No. 10 of 2017 filed against the Attorney General of the United Republic of Tanzania. The gravamen of the Applicants' contention is that, on 04th August 2017, despite possessing legal documents as a proof of ownership of land that borders the Serengeti National Park to the West, members and residents of the Applicants had received correspondence from the Respondent State, directing them to remove their cattle and their bomas (homesteads) from the Serengeti National Park, as well as an area that was termed "the Loliondo Game Controlled Area." 2 4.The Applicants further contended that on 05th August 2017, e~ch Applicant was ordered to vacate its residents from the demarcated area bordering the Serengeti National Park and that the evicHon, removal of livestock and the burning of bomas took place on land that legally belongs to the Applicants. 5.It is therefore the Applicants' contention that the Respondent's aforesaid impugned actions contravened and violated the Constitution of the United Republic of Tanzania, Village Land Act 1999 and Wildlife Conservation Act, 2009 as well as the Treaty .. 6.The Applicants seek the following orders: (a) This Honorouble Court be pleased to dispose with service l of this. Motion in the First Instance Court owing to the ; urgency of the matter. (b) Pending the hearing and determination of this application I inter parties this Honorouble Court be pleased to issue :an ' interim ex parte order restraining and prohibiting the i Respondent from evicting the Applicants' residents from the disputed land, confiscation of livestock by the Respondent belonging to the Applicants' residents grazing I on the disputed land, the burning of bomas belonging1to the Applicants' residents constructed on the disputed lapd; the prosecution of the Applicants' residents found on the disputed land and physically assaulting the Applicar,ts' residents found on the dispute land. (c) The costs of this Application be provided. 3 I ' I I • I 7.The Applicants have approached this Court under a certificate ·of I I urgency whereby they contended that the forceful evictipn, I I confiscation of livestock and burning of bomas was causing unfold I hardship on the villagers residing in the Applicants' land; that the I purpose of the application would be rendered nugatory if it was hot I determined before the commencement of the hearing of the m:ain application and that therefore, they urged the Court to accept the I . I Certificate of Urgency and dispose of the Application as soon i as possible. I 8.This Application is being resisted by the Respondent which, on 15th I • I November 2017, has also challenged its competence by filin~ a I notice of preliminary objection on one point of law, namely "That, I the Applicants do not have requisite authority to institute this I I . Application in Court." i I I 9.At the hearing of the Respondent's preliminary objection held Ion I 17th November 2017, the Applicants were represented by o/IS. I I . Anita Alfred Kyaruzi and Mr. Mark Mulwambo and Ms. Aiclah i Kisumo appeared for the Respondent. I I B. SUBMISSIONS II ! . ! 1O.From the onset, Counsel for the Applicants said that she '4tas seeking an adjournment of the hearing on the preliminary objec~ion i stating that she had only been served of the same that very 1 morning. It was then her contention that as provided for by ~u-le I I 41 (2) of the Court's Rules, the Respondent should have given ,not I less than 7 days written notice of preliminary objection to the Cqurt and to the Applicants. i· I ! I 4 I I !I • I 11.ln response to Ms. Kyaruzi's contention, Mr. Mulwambo poin~~d I out that Rule 41 (2) talked about a preliminary objection t~ a Reference raised before the scheduling conference in accordari, ce with Rule 53 and that the Rules did not provide for raisin~ a preliminary objection on an application for injunction. In additi(o·n, ! stressing that they had proceeded under Rule 41 (1) of the Rules, he prayed the Court to hold that the preliminary objection was vk lid I as it was properly before the Court. I· l I 12.ln reply, Ms. Kyaruzi submitted that in the absence of any rules I governing the notice of preliminary objection of an application, ~he same rules that apply to a notice of preliminary objection tcb · a I Reference should also apply to an application. Therefore, $he maintained that the Applicants should still receive the 7 dJys' notice. I . 13.0n that disputed matter, the Ruling of the Court was as follolvs: i I "Rule 41(2) is very clear as it specifically talks aboutI a I scheduling conference to a Reference and therefore, if the I . Rule is silent, the Court cannot impute it to apply to Ian i I application. Consequently, the Notice of Preliminary I Objection on the Application is properly before the Court and I I • the Court shall proceed to hear it." : I 14.Moving the Court on the preliminary objection, Ms. Kisu;mo contended that the Applicants before the Court did not have ~he requisite authority to institute the Application. She argued that tief I Application was brought by four (4) Village Councils which are Piart I and parcel of the local government authorities in the Respond:ent I· I I l 5 i I I I I. i li I, u ~ l., ! II I I State and as such, they form part of the Government of the Uni~ed Republic of Tanzania which is the Respondent before this Courtl. · 15.lt was Counsel's further submission that the Government of l he I United Republic of Tanzania appearing before this Court a~ a State was by law required to be represented by the Attorhey I General of the United Republic of Tanzania and that, therefore, ~he Applicants were improperly before this Court. j 16.ln support of the foregoing arguments, learned Counsel relied! On the Local Government District Authority Act Cap. 287 revised I edition 2002 under sections 55 and 56. She also referred to ~he I Office of the Attorney General (Discharge of Duties) Act of 2~05 and stated that section 31 of that Act amended the Ldcal i i Government District Authority Act, Capt. 287 revised edition 2~02 ! by creating a new section which is cited as section 192(A) which I . provides under sub-section one that: I ! Save as it is otherwise expressly provided appeara~ce ! by or on behalf of a district or a township in any civil 1 case or matter in a Court in which a local governm~nt I authority is a party shall be made by a Solicitor authorized by the local government authority. I I I. 17.She also cited sub-section 3 of that section which states that: ! i I Notwithstanding the provisions of sub-section 1 wher~ a I local government authority had not employed \ or engaged a Solicitor or where with respect to ,ny proceedings in Court to which a local government i$ a party that local government authority may Ibe I 1 · 6 Ij i I I . I I I I 1. II represented by any law officer, a State Attorney or a I legal officer authorized in that behalf by the lo'.cal I. government authority. 1 18.ln light of the foregoing, learned Counsel submitted that rhe I Counsel representing the Applicants before this Court was neither I. a law officer nor a State Attorney, a Solicitor or a legal officer quly I I authorized by the Local Government (District Authorities) Act C~pt.I 287 revised edition 2002. I I 19.Learned Counsel further submitted that Village Councils w~re I required by the Local Government (District Authorities) Act cap. 1 287 to institute proceedings where necessary through the District I Councils and that the present Application was improperly beff "re this Court. l 20.ln conclusion, Ms. Kisumo submitted that since the Vill~ge ! Councils did not have the authority to institute the matter befp·re this Court and whether they have the authority to institute ~he i matter, the matter should have been instituted by the Attorney ! General of the United Republic of Tanzania since they form part I and parcel of the Government of the United Republic of Tanzai ia. It was the Respondent Counsel's submission that this Applica~ion I I is improperly before this Court. : I . I 21. With regard to the additional argument that the Village Councils did not get the Village Assembly's Authority to institute ~he Application, when asked to clarify, Counsel abandoned it. I i. i 22.ln response to the Respondent's submissions, Counsel for the Applicants submitted that the instant Application's aim was to b~ing I.7 I I ! I I I. I to the attention of the Court the Respondent's violations ofl its international obligations under the EAC Treaty and other rele~ant international legal instruments. I. I 23.She contended that the Applicants were bringing this ApplicaJion in their position as the heads of the various Village Councils, ! nd that therefore they were representing the claims of the villa~brs within those Councils. She further submitted that their purpose r as to have the checks and balance of the acts of the Respondr nt State. i I. 24.Responding to an issue raised by the Respondent that Counsellfor the Applicants could not duly represent them, learned Cou ~sel I referred to Rule 17(5) of this Court Rules that states that: "the advocate for party shall file with the Registrar a certificate tf,at he/she is entitled to appear before a superior Court o~ a partner State." She contended that she had been duly appoin~ed I by the Applicants in this particular case instituted by the four (4) Village Councils as indicated elsewhere above, and that accor9ing to the Court Rules, those Village Councils were properly befpre this Court. \. i 25.She further contended that this matter had not to be brou'.g ht i before the District Courts as wrongly argued by Counsel for ~he I Respondent because it was a matter on the violations ! of I international obligations of the Respondent State. That theref6re, l the Applicants had duly come before this Court to seek guidat ce on the issue of the violation of the Respondent's alleged I . international obligations. I i i I s I lI . I i I 26 .ln reply, Mr. Mulwambo stated that they had no objection to counsel in person and her ability to appear before this Court, lbut that the Respondent's objection was that the group she was representing, that is the Village Councils being part of the Un~ed Republic of Tanzania's Government, should be represented by he f category of four (4) people according to the Village L°lcal Government Authority Act, to wit a State Attorney, a Legal Offid:er, I a Law Officer or a person who has duly been authorized by ~he Local Government Authority to represent those Village Councils] 27 .Mr. Mulwambo further argued that for the Village Councils to c+ e and institute this matter before this Court was like the Governm:ent suing itself, which was not proper. He thus contended that the rib ht person who was authorized by law to represent the Governmr_nt was the Attorney General of the United Republic of Tanzania c;1nd I that the Applicants did not have the capacity to insti~ute proceedings without the consent or authorization of the Dis~rict i Authority or the Attorney General. I· I C. COURT'S DETERMINATION l 28.We have carefully considered the oral submissions made by b!oth i Parties and analyzed the authorities referred to us in support of I I their respective arguments. I 29. It can be gleaned from the Respondent's Notice of Prelimin~_ ry Objection and Parties' submissions thereto that the only issue j for determination is whether the four (4) Village Councils have fhe requisite authority to institute the instant Application in this Ccurt I against the Attorney General of the United Republic of Tanzanil · II Ii 9 i i. II 1- I II I 30.Counsel for the Respondent have submitted at length ~hat according to Tanzanian Laws, especially The Local Governm ent 1 (District Authorities) Act, 1982 and the Office of the Attonfley General (Discharge of Duties) Act, a Village Council, despite bi ing a body corporate, had to be authorized by the local governm ent 1 authority in order to institute a lawsuit and that in any case, it c uld not sue the Attorney General of the United Republic of Tanzqnia 1 since a Village Council was part of the Government. ! 31.Counsel for the Applicants, on her part, relied on the provision$ of I the Treaty, the Court Rules, i.e. Rule 17(3) & (5) and the L9cal Government (District Authorities) Act, 1982 and contended that ~he Village Councils in question had locus standi before this Court c;ind that she had duly been appointed to represent them. I I 32.ln light of the foregoing rival submissions, it is apposite! lo reproduce the main legal instruments applicable to the instant case ! 1 for ease of reference. According to Article 30 (1) of the Treaty, !" ••• any person who is resident in a Partner State may refer for 1 I determination by the Court, the legality of any Act, regulatipn. I Directive, decision or action of a Partner State or !an l institution of the Community on the grounds that such Act, I. regulation, directive:. decision or action is unlawful or is j an infringement of the provisions of this Treaty." (Emph1sis added) I I . I 33.As for Rule 17(3) of the Court Rules, it states that "a corporate or I company may either appear by its director, manager j or i secretary, who is appointed by resolution under the sea1i ~f the corporation or the company, or may be represented byt an I ! 10 j iI . I' I. I I I advocate." (Emphasis added). Rule 17(5) provides that: "The advocate for a party shall file with the Registrar a certific~"te that he or she is entitled to appear before a superior court . JI,a Partner State." I I. 34.Article 26(2) of the Local Government (District Authorities) t ct, 1982 reads as follows: " ... Upon the issue of a certificate\ of ! incorporation in relation to a village, the village council of fhe village in question shall, with effect from the date of that certificate, be a body corporate, and shall- ( ....) \ i I (b) in its incorporate name, be capable of suing or being sur d. 35.Counsel for the Respondent has also referred us to section 31 ·o f ! I the Office of the Attorney General (Discharge of Duties) Ac~ of I 2005 which amended the Local Government (District Authoriti;e s) Act Capt. 287 revised edition 2002 by creating a new sec~ion l which is cited as section 192A (1 ), reproduced elsewhere abov~l in I this Ruling. 1 I 36.As clearly indicated in the abovementioned Court Rules, the latter I envisage the type of parties that would appear before the Court I and provides for companies, individuals, legal entities, body I corporate under Rule 17(3). It is not in dispute that the Village Councils in question are body corporate and since the Court RJl~s 1 have provided for a body corporate to appear before this Court ~nd I had laid out the manner in which they can be represented, we are not convinced by the Respondent's argument that the matteJ ·at l hand has to be governed by the Tanzanian Laws if at all t~ey provided for Village Councils' appearance and representatio rl in Court. In this regard, having carefully read the provisions of ~he l i l 11 Ii I !. 1 - i I Local Government (District Authorities) Act referred to us, it is cl~ar in our mind that this Act neither talks about appearance by or qn behalf of the Village Council nor refers to any authorization to be sought by a Village Council before instituting a case in Court. We find untenable, therefore, the Respondent Counsel's argument ,h.at by extension, since a Village Council is at the bottom of lqcal government entities, it should be authorized by a superior b~dy I such as the District Council and represented in Court according to the relevant provisions of the Local Government (Disi rict I Authorities) Act. It is also worth noting that according to section I 3 of the Local Government (District Authorities) Act, 1982, this ~ ct ! only applies to a court of Mainland Tanzania of compeie_nt jurisdiction. I 37.Regarding the Respondent's other argument that a Village Cou hcil I cannot sue the Attorney General of the United Republic \ _ of Tanzania, a quick perusal of selected case law involving Village I I Councils shows that Village Councils had in the past sued t he I Attorney General (Tanzania) together with some governmental ! institutions seeking order recognizing their ownership of dispu~ed lands. (See Mondorosi, Sukenya and Soitsambu vmJge Councils vs. Tanzania Breweries Limited, Tanzahia I Conservation Ltd, Ngorongoro District Coun!ctl, Commissioner for Lands and Attorney General (Tanzania), reported in Gilbert, J. (2017). Litigating Indigenous Peoples' Ri9hts in Africa : Potentials, Challenges and Limitations, lnternati°inal Comparative Law Quarterly, 66(3), 657-686). Thus, the afore, aid argument is untenable as well. 1 Ii I ·12 i I I I I . I I 38.Given the foregoing, therefore, we are of the view that Article 3r 1) I of the Treaty and Rule 17(3) & (5) of the Court Rules give /of ~s standi before this Court to a Village Council which is a b0dy corporate in the terms of Article 26(2) of the Local Governm~ nt (Districts Authorities) Act, 1982. I D. CONCLUSION 39.ln light of our findings, we are of the considered view that the three (3) Village Councils in question have the legal capacity to instf te a case before this Court and therefore, the Notice of prelimin a·ry 1 objection raised by the Respondent is dismissed . We direct that Application No. 15 of 2017 be fixed for hearing forthwith . I I! . 40.Costs to abide the outcome of the main Reference. I 41. It is so ordered. I Dated, Signed and Delivered at Arusha this 251" Day of Janur ry 2018. /J I ............................................/...................... . HON. LADY JUSTICE MONICA K. MUGENYI I PRINCIPAL JUDGE (\ .~ I ........... ~ ..... HON. DR. FAUSTIN NTEZILYAYO I JUDGE I IV\__ I I II . HON. JUSTICE FAKIHI A. JUNDU JUDGE