YOHANA MNYIKAMBI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPEAL NO. 78 OF 2022 (Originating from District Land and Housing Tribunal for Dodoma Misc. Land Application No. 440 o f2021) YOHANA MNYIKAMBI................................................................. APPELLANT VERSUS MWENYEKITI SERIKALI YA KIJIJI CHA H U ZI..........................RESPONDENT RULING 11. 09. 2024 Hassan, J.: The appellant herein, one Yohana Mnyikambi seemed unsatisfied by the decision of the District Land and Housing Tribunal for Dodoma in the Land Application No. 440 of 2021 of which the judgment and decree went in favour of the respondent one Mwenyekiti Serikali ya Kijiji cha Huzi. With a view to search for remedy in his favour, the appellant launched a petition on appeal geared with three grounds of appeal thus: l 1. That, the honourable chairman erred in law and in fact by deciding that the appellant therein did not comply with schedule of disposing the case by way o f written submission has the appellant had his submission and filed it. 2. That, the honourable chairman erred in law and in fact for not considering my application which, if not allowed shall deny my right to the said piece o f land. 3. That, the honourable chairman erred in law and in fact for deciding that the applicant is contradicting his prayers as the applicant's only sought to have time extended for review. In defence of the judgment and decree attained, the respondent filed reply to the petition of appeal pitched with one ground of preliminary objection (PO) to wit: "This appeal is incompetent before this honourable court for contravention o f section 26 (2) (b) o f the Local Government (District Authority Act) Cap. 287R.E 2 2002 for not suing the Village Council which is capable o f suing or being sued in its corporate name." Hearing of PO advanced by way of written submissions under the scheduling order set forth by the court. The appellant was represented by Ms. Liberata Switbert whereas learned State Attorney, Mr. Rimond Machango represented the respondent. Supporting the preliminary objection raised, learned State Attorney held that his submission will be guided by the principle raised in Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [ 1969] EA 696 that objections should be raised on a pure point of law, and that cannot be raised if any fact has to be ascertained Thus, submitting on the instant appeal, learned state attorney submitted that this appeal is incompetent before this honorable Court on the ground that, it contravenes with the provision of section 26 (2) of the Local Government (District Authorities) Act Cap. 287 RE 2019, for not suing the village Council which is capable of suing and be sued in its cooperate name instead the Appellant wrongly sued the village chairman. For clarity he reproduced section 26 (2) which reads as follows: 3 "Upon the issuance o f certificate o f incorporation in respect o f the village, the village council of the village in question shall, with effect from the date of the certificate, be a body corporate, and shail:- a. N/A b. In its corporate name be capable o f suing or be sued c. N/A." Reflecting from the above, he averred that the Appellant sued the respondent who is not a juristic person under the law, he is a mere village leader hence, this Appeal is incompetent and should be dismissed. To strengthen his point, he referred the case of Singida Sisal Products & General Supply Vs. Rofal General Trading Limited and 4 others, Commercial Review No. 17 of 2017, at page 5 paragraph 3, the court had this to say: "Let me conclude by saying that a non- juristic person has no legs to stand, no hands to prosecute, no eyers to see and no mouth to speak either on her own, or on behalf o f any other person before any court o f law" 4 See also in the case of Jonathan Tumaini Mbwambo (as administrator of the estate of the late Tumaini Enock Mbwambo) Vs Peter Joseph Keto and the village chairman of Hedaru village, Land appeal No. 32 of 2023 High Court of Tanzania at Moshi (unreported) where by the Court at page 9 paragraph 2 had the following to say: " ........... by virtue o f section 3 and 26 o f the Local Government (District Authorities) Act Cap 287RE 2019 a village council is a body corporate capable o f suing or being sued, thus the law does not provide for official capacity for the chairman o f the village or village Executive Officer VEO to be sued in his official capacity. Therefore, it is my settled opinion even where the said chairman acted on behalf o f the village Government, the actualparty to suit should be the village council and not the said chairman in his capacity...." He also directed the court to the case of Farao Raiton Mafya Vs Veo Chamoto Village (Misc Land Appeal 17 of 2019) [2020] TZHC 2285(12 August 2020) as cited in the case of Jonathan Tumaini Mbwambo (as 5 administrator of the estate of the late Tumaini Enock Mbwambo) (supra), whereby the court at page 9 paragraph 2 had the following to say: "It is thus, dear that, in taw, VEO cannot sue or be sued in his capacity for or on behaif o f the village council or the village itself. It is my settled opinion therefore, that, even w here the VEO decided to act on behalfo f the village council in judicial proceedings, the actual party to suit should be the village council and not the VEO in his capacity...." In the end, the respondent argued the court to dismiss the appeal with costs for suing the wrong party. In reply thereof, the appellant submitted that this case was initially instituted by the respondent against the appellant herein way back in January, 2019 in the Ward Tribunal of Huzi. After hearing had been completed, it was decided in favour of the respondent herein on 14th January, 2019. Thus, it is from that decision the appellant herein decided to appeal to the District Land and Housing Tribunal. 6 The appellant submitted further that; it was the respondent herein who had first instituted the claim before the Ward Tribunal against the appellant herein. Therefore, he argued that the respondent cannot come up now with a claim of suing the wrong party. For that, he blamed the respondent that he is trying to hide himself from his own wrong. He insisted that, the provisions of section 19 of the courts (Land Disputes Settlements) Act, 2002 which was in force by then, requires a person who is aggrieved by the decision of the Ward tribunal has to appeal to the District Land and Housing Tribunal. Additionally, the appellant averred that it is due to the parties first appearing in the original suit as instituted by the respondent herein that gives rise to the same parties on appeal to the District Land and Housing Tribunal. Notably, the provisions of section 19 of The Courts (Land Disputes Settlements) Act, 2002 states: "A person aggrieved by an order or decision o f the Ward Tribunal may appeal to District Land and Housing tribunal." 7 Based on the aforesaid section of law, the appellant argued that only the aggrieved party can appeal against the Ward Tribunal's decision against the adverse party to that original suit or claim. At this stage, having considered the submissions from the parties, the question to be answered is whether the preliminary objection raised by the respondent has merit. To answer it, it took me down to ascertain the profiling sequence of this case from its foundation. Indeed, it started with Land Dispute No. 76 of 2018 of Huzi Ward Tribunal where parties were Mwenyekiti wa Serikali ya Kijiji cha Huzi, where one Peter Masso, the Village Executive Officer of Huzi village appeared on behalf of the applicant. Whereas, the Respondent was Yohana Mnyikambi. Dissatisfied by the decision of the Ward Tribunal, the appellant appealed to the District Land and Housing Tribunal (DLHT) of dodoma in the Land Appeal No. 57 of 2019. Here parties were Yohana Mnyikambi as the appellant and Mwenyekiti wa Serikali ya Kijiji cha Huzi stood as the respondent. All the same, like before the decision went against his wish. 8 Coming on 2021, the appellant lodged Miscellaneous Application No. 440 of 2021 to the District Land and Housing Tribunal (DLHT) of Dodoma seeking for an extension of time to file the application for review of the Land Appeal No. 57 of 2019. Once again, the same parties appeared. It remained ill-fated to the appellant; the application was decided unsuccessful to his side. Consequently, the appellant still felt aggrieved, hence he filed the instant appeal thus, Land Appeal No. 78 of 2022. In compliance to the scheduling order, the respondent also raised preliminary objection to be determined first. Now, looking to the profiling sequence of this matter, it is clearly true that the respondent herein is Mwenyekiti wa Serikali ya Kijiji cha Huzi. The same name which has been used by the applicant at the Ward Tribunal. That being the case, the question now is whether it was proper to sue under the name Mwenyekiti wa Serikali ya Kijiji cha Huzi. Going through, I will first, for the sake of reference, reproduce provision of section 26 (2) of the Local Government (District Authorities) Act Cap. 287 RE 2019. The same it tells: 9 " Upon the issuance o f certificate o f incorporation in respect o f the village, the Village Council o f the village in question shall, with effect from the date o f the certificate, be a body corporate, and shall: d. N/A e. In its corporate name be capable o f suing or be sued f. N/A." By looking at it, the provision of section 26 (2) of the Local Government (District Authorities) Act Cap. 287 RE 2019 is clear on the personality status of the Village Council. Indeed, its status is as better as any other entity which enjoys separate legal personality which includes right to sue and being sued by its corporate name. Therefore, by observing the matter at hand, Mwenyekiti wa Serikali ya Kijiji cha Huzi sued in the Ward Tribunal instead of the Village Council of Huzi. In my view the error started from there onward. Definitely, by suing under Mwenyekiti wa Serikali ya Kijiji cha Huzi the application was bad in law from the scratch by suing the wrong party. Consequently, had this fault be observed before or during appeal at the DLHT, the same would have been 10 dismissed. But, as unfortunately as the fault was not observed, the DLHT acted on the wrong proceedings to determine the matter. Though I can understand the cry and frustration from the appellant that, to involve Mwenyekiti wa Serikali ya Kijiji cha Huzi as applicant at the Ward Tribunal was the respondent's error. However, as sorrowful as it may be, that cannot salvage its illegality. Therefore, by invoking the power bestowed to this court in terms of section 41 (1) (2) of the Land Dispute Court Act, Cap. 216, I revise the proceedings and henceforth, I sustain the preliminary objection raised by the respondent. Ultimately, I nullify the whole proceedings, quash the decision arrived from Ward Tribunal uphill and set aside the orders meted. On the way forward, since the DLHT had acted upon the nullified proceedings with respect to the Land Appeal No. 57 of 2019, and any other application ascending therefrom, the proceedings thereof are futile. That said, since the current mode of business does not sanction the Ward Tribunal to litigate, thus I hereby struck out the appeal. To their wish, as they may desire, parties are at liberty to institute a fresh complain as per the law. At the end, based on the circumstance, I order each party to bear its own costs. 11 It is so ordered. DATED at DODOMA this 11th day of September, 2024. S. H. HASSAN JUDGE 11/ 09/2024 Ruling read over in the presence of the appellant's advocate and the appeal is struck out. S. H. HASSAN JUDGE 11/ 09/2024 12