Lutengano Mwakapalila and Others vs Wimba B' Village Council and Another (Civil Case Number 3 of 1997) [1999] TZHC 475 (10 May 1999)

j I .. I f 11 I I ~() b rn A-·,. · IN TEE HIGH. COURT OF TAN.z.ANIA AT MBEYA --· .. CIVIL CASE NUMBER 3 OF 1997 LUTENGANO IvlWAKAPALILA & 10 OTHERS •••• .PLilN!rIP'FS VERSUS

1. OHAIRW.LAN WI111:2.A trBt- VILL. COUNCIL.~: .l1EFENDANTS
2. THE ATTORNEY GENERAL ~ RULING MVIIPOP0 1 J 1 This suit was filed by 11 Plaintiffs represented by the learned Mr. Mu.shokorwa (Advocate) claiming for ownership ef one acre ®each in an unsurveyed land which they claimed ta have been in· constant occupation and agricultural use for a long time. They also claimed for compensation of destroyed pyrelbnun crop''.C which was destroyed by the co-villagers for purposes tf "--:':. "'·' <'hanging the use of the land from growing pyre·thru.m (cash c;r.,p) tt, that cf growing maize/ cereals (food). •· fhe defendants are two the Chairman of Wimba • B' Village · Council as the 1st defendant and the .Attorney General an the ·~ 2ni defendant both of whom have been represented by the leaniti Mr. Mulokozi (S.A.). Before the start of the hearing cf the evidence there are •:t preliminary points raised by the 1st defendant tbs Chairman •f Wimbs • B' Village Oounoil ::i'bout tbs appli~ation of res judioata whioh could frustrate the enidre suit ,in respect of some i,f the ..... "' plaintiff a. . ........ ; ... --------< _.,,.,/ •.· ., ,,

.. 2 There--are__also---other preliminary points of procedure touching on the joinder of . ~~- sQme plaintiff's 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 this suit as plaintiffs without their knowledge and consent and for no apparent cause. This preliminary / in or9,er point led this court to count the plaintiff's appearan~ in pers$o/ to know their stance in the suit since their letter seeking for i only 2 of them the lat plaintiff Lutengano s/ o I:lwakapalila and the 4th plaintiff .Yakenyu s/o Ma jaliwa to represent them filed in court was only a photocopy wi tb.out its original whi oh has not 1 · been shown or traced in court~ This exercise led to the findins that the 5th plaintiff Kafunga s/ o Mwakalinga has already died and it was not shown when he died ie. prior to or after this suit was· filed in been , ' court. So, his claims if any should have ;filed in court by his • estate's administrator which has not been done. His name in hereby _ this suit the f · t k t re ore 1.s 1 s rue ou • Then, after the court had called each plaintiff in person I and each plaintiff had answered his name and been asked if he 9hose ., 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 beitig ' the 9th plaintiff Japrt Mwakyusa and the 10th plaintiff AsaYf3to ••• /3 ' I !

3

Mwasubila for they $re not the real Japhet s/o Mwakyusa and As aye to Mwasubila in tru'Gh., Oh questioning: thesa two plaintiffs further by the court they corj.fessed that. they were not Japhet s/o Mwakyusa who was not in court but bis name had been answered by one Daudi Samson who purported to h~ a neighbour of Japhet l/Iwakyusa who had gone to Songwe to see a· sick relative• .As for the 10th plaintiff one Juma s/o Dang'ombe came out as the person who p!?rported to be I' I I I I I I I Asayeto s/o Mwasubila since I the said Mwasubila he not told the court I j . I I was sick. At the ,same time he wa/ related to the said Asayeto s/d I I Mwasubila and he didn't even know why the 10th plaintiff pi•ed him as his representative. I I I I I The misrepresentati ve in appearance in oourt of Daudi Samsotj answering and purporting to be Japhet s/o Mwakyusa and Juma s/o i I stood Dang• ombe who / up and identified himself &\S Asayeto s/o Mwasubila while they were not the real Japhet s/o Mwakyusa and / Asayeto s/o Mwas_ubila respectively took r> even the learned Mr. Mushokortfla their ovm advocate by surpriseo The exercise of calling each plaintiff by name resulted from this courts order of this court made on 20.11.98 to this offect, I quote:- rI need to see @ plaintiff in pers,:;n in court before I make a ruling on the preliminary points; Mention on Tuesday l.12e98 for this purpose before Hono udge · All the 11 plai~tiffe must. come in court in person." When we c:onvened on 1.12.98 the learned Mr. Mushokorwa (Advocate) confidently opened up the day believing all the 11 plaintiffs had come in court in compliance with the court's 0 ... /4 I I I , i I I I

. . 4 - and said the follovn..:ng z •. ,. nThe court dire ote d that all the plaintiffs should come to the court to be physically present and express if they authorized Lute:ngano s/o Mv7akapalila the 1st plaintiff and Yakenyu s/o Majaliv1a the 4th plaintiff.," Alas, both the court's and the learned Mr~ Mushokorwa's legs were pulled up by both the said Daucii s/o Samson and Juma I I l I Dang'ombe until the learned Mr. Mulokozi (S.A.) shook our shoulder~ I from being taken for a ride without our legs by the 9th and the 10th plaintiffst 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 prosecuting this plaint and 4th on their own or as represented by the ls1/plaintiffsand the learned Mr. Mushokorwa Advocate to whom their tvvo agents above named also hid their identity just as they did to the court. So, upto now vre 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 esto:pped by section I 123 of the Evidence Act from suing because they were parties to ! the general meetings of the village of 13/9/1980 and of 10/7/1911 which deliberated on b democratically and decided to pull out I pyrethrum and plant maize instead. Both these meeting of 13.9.1980 and 10:7~81 have been opposed by the learned Mr • ••••• /5 I I

5 Musholrorvra- (Ad-vocate} as not binding the 11 plaintiffs who still continued whose young using those rots for a long time and/plants of pyrethrum were pulled out illegally by the 1st defendant as shown in the pleadings •- in the 6th & ?'th paragraphs of the plaint;,/ ' ' I ., The preliminary point raised for the plaintiffs to be estopped from disowrj~~g tbB decision of the general meetings of .I the village Government so that they should grow only maize and ' I ,' I I na,-t pyrethrum and the response thereof that as ovmers of the plots/ I I ,' they were entitled to plant the pyre thrum raise diametrically oppdsed claims over the ownership of the land in dispute on whether it I I I belonged to the village government with the plaintiffs retaining I I I the right of use only as invi tQe s or hirers of the land from the ,: village government which req an adjudication of a court of law., i 1 · / I an this point I don•t subscribe to the approach of the lear;ned I • i Mr. Mulokozi (S oA.) that the plaintiffs should be estopped from i I ' ' claiming compensation for any suffered damat}?,safter any alleged~ uprooted p:yrethrum from the farms in dispute• If such uprootik . . I / I of growing pyre thrum was done it could attract. a civil suit evei'n I I if the plainti!fs vrere mere inviteeso Moreover, the decision io I I grow maize instead of pyrethrum was made in 1980 and 1981. New I environment might have r.,...·rr.e_d 1 '8o as to warrant renewed pyretrum I growing especially because :gyrethru.m too like maize is not a i I I I permanent crop the difference being that maized is a seasonal: crop I only whereas ·p;v:r-ethrum is a 2 - 4 years cycle before it perennial crop lasting for betwe6in replanted 1 •. dies and has to be · ·. /·· .,_: . afre ~h. I ••• /6 I ' I i i I i i I i

' ' 6 In the 1,la:;nt "i:;he plaintiff overred that the pyrethrum uprooted was a y·o·,··.1g crop whl.oh n:sant that they had just planted it.,. the case the alleged planting of the young pyrethrwL crop and its uprooting through trespss appears to be a new dev- lopment not experienced prior to January 1995 when the cause c,: action o·f this suit is lJurporte d to have arise no Otherwise, if the ;yrethrum has been grown previously the conflict, on the face of the presented facts in the pleadings, could have arisen the earlier in/1980 - 1982 period of Who owns those plot pieces;land up_on which the alleged maize or pyrethrum rops was being grown is the brnJ.e of contentions. The same ownership beipg contested is held under customary rights of occupancy as alleged by the plaintiffs in t1e 4 - 6 paraisand under public land owu0rship as alleged by the defendant in the 4th para etc. of tm Written Statement of Dafence; This issue in the types of ownership and occupancy or use of the land mould have to await a trialo ' But, collateral to it is the preliminary objection raised of by the learned l'flr~ Mulokozi (S .. A.) at the time /herring these preliminaries that actually this suit is res judicata in view of previous: civil cases between the same parties or some of them 0 such as in 11:Tbeya Urban Primary Court oC. No40/1995 which went the ladder up to the Mbeya District Court Co Apprfo46/1995 and to this Court (PC) Ci VoAPPe• Noo 59/1995 between the saroo 11 pil.aintiffs and tl10 then Samson Makanje (Village Chairman of Wimba B - then and two others), I I I I I i I ' I :

o l 7 In that suit in which tho 11 present plaintiffs won ex parte .. , · i1i ti-2 -Urban Pri1{1ry·.·cour. 9 i,lfbeya ·District Court t.b.is_ court quashed the ·tower court's ·decision . and ·allowed. the 11 plaintiffs to . ~ . ~ ;•. . . ' ~ . i• .... sue the proper pnrty to• the· suit instead of the incli vidual 4 \iefendants then being sued. the said Smson _s/q Makanje, John. .-'.M-alege· and "Georie··•sote· arid another person going by name of Wilson Makanji. • In respect of this previous case the present case •an't be stopped on grounds of the doctrine· of res judicata because the ' . .- . '. . de·cision of this court quashing thepToceedinBS __ ip. U.tban Court Civ.Case was based on wrongly sued pa_rties. If the same parties ... · .. .-·· . ·•·.•, ·., had been sued now, then res jud.icata lJOuld .• :"\ '!. the have a1Jr,lien:1.'- But, ·:.-:,. h.3re the sued · parties ar'l Villega Council of the Government Wimlb.a B and the .Attorney General - who are new comers to this sw. t based on the same facts. In that case the present· Lutengano Mwakapalila was the representative suing for the other 10 plaintit(s without the consent of the court whlch · had.· been erronously done. Here, this legal hurdle has been oye_rco~e or hypassed by the lE:arned Mr. Mushokorwa (Advocate) by· having all ~ ' .. : ;:· .... ·· ~ .. , .. ! the 11 plaintiffs sue in their own incμ vi dual capacities _put • . ~ ) : l.. with only two main spokesmen being the same 1st plaintiff Luvmgano Mwakapalila and the /1-':"h plaintiff Yakfill:YU Ma.j~~• ·, -· . ... . The learned Mr. Mulokozi 1 s other case pre1imin_ari.ly brought up establishing the application of the doctrine of res judicat_a is._that of i.lJt..alizi Primary Court c.c. 4/94- Jo.hn .-. Msalege as plaintiff Vso Wilson Mwaipopo, Nyakenya Majaliwa ·and • • • T .. 0. /8

8 • C Gayang':ombe Wayih1ba as· defendants. · The said John Msalege as the Village··chairman of Wimba B .- ·village -·sued the 3 defendants .for . --~ ;:~ ' for p:ayment of shsl> 21 1 000/= -b:ing feeo/ hiring their plots fr-em the · in ,.:.llage --go"vernment~ .. The three defendants lost;the pri~~ry_ ourt · on appeal and again/;hey were of ·the_ Mbeya District Court _CApp. No40/9.4 rtheiy lt ·that ordered to pay the land use fees, meaning/the· and "cwr:i.t9rship, ,issue of the plots was, determined to be the: _p:r:operty of the -village government· of Wimba ~ The proceedings show clearly i: . th.at the plaintiff John Msalege sue_d as a village government• Ohairmap._ not as- an individual. That being the case the said tbree ·: -defend.ants are barred by the doctrine o:1 res judicata .from·.suing ,-:~~~L ,, · )/:t'he. ~~~l:age govern.ment on the ownership:; of land plots ·they are To this suit the same · three defendants have ·come up and joi.ne hands with the other 8 plaintiff' to sue- the same :;y~+lage government. for 01-.mership.; of the· sanie pieces of Lo?,nd for-which . .

• they were already held _to be mere ·hiring invitees whowe:re liable . .. .. '. to p_a? land use fee totalling shsl) 21,000/=. In this'· su,i t they have featured as the 3rd plaintff - -Wils_on 11/Iwaipopo (lst defendant in (PC) c. c. rfo 4/94), the 2nd plaintiff Gayang' ombe . Wayo~l;>a ( the 2nd defertdant in the. other case) and the 4th plaintiff Yakenyu Ma jail wa (th 3rd defendant in the previous case) • So, the preliminary objection in respect of these.· 1)-il..aj.ntiff qn point of res juclicata is sustuinGd-c. The suit fi,7.ed by the these three plaintiff is hereby dismissed with costs. '.

• ...

• 9 - the So, now, we remain with onlf 1st plaintiff Lutengano Mwakapalila, the 6th plaintiff Anyosisye Mwasandwanga, the 7th plaintiff Pangeni Kalengo, the 8th plaintiff Ambikile Ngumbuki and the llth plaintiff Anyandwile Mwanjelwa. These 5!...plaintiffs should have preferably complied with s. 183 of the Local Government(District Authori t"is) Act-No. 7/1982 ·. . which requires that a suit against a Local Government Authority must be preceded with a Mont written notice of intention to · · t'; I I I I I I ! I I ,I I I I I I I . . 'I commence· the suit stating the caus~. of Action and reliefs claimedi · Whereas s_. 3 I ... of this Act - defines a •*District Authori ty"meas ' i I a district Council~ a towns.h:i.p authority or a village council 0, I i for purposes of suing the village ocil it has been prtected 1 just like any other local government authority under s. 183 of 1 ' .'.'.'. ,::', .l'!,-i'-• - i the ·Act ·whioh--cowrs. oJ?,l;y,.a Local overnmen,- Ath~~~,~~ ~~ch is / . ·-'·. ·.- ... u·· __ ... 1' under the same section 3 defined as: "means a District Author~ty or an Urban Authori ty 0 • / An Urban Authority ha.s been defined under tllo same seotioj I 3 "means A 6ity Co:μncil, a municipal council or town council ... / Therefore, the Local Government Authori ty;!otected under/ I se·ction 183 of the Act from civil aw. ts unless a monthl3 wri tte'n I ,I notice is served are six,mamely the District Council, a towns.pip I authority, a village council, a city council, a municipal coupcil I and a town council. I I I In tllis suit the llmonths • written notice to sue has not/ been i · proved leave alone to be mentioned anywhere in the pleading to I ' have been served upon the Village Council of Wimba B. This/ is i I I .... /10/

.' .J....: .. :, ,J; . . ' .. ..

• ... :.10 ... fatal statutory error which v:t'.ti_ates these procoedings ab ini tio. with Therefore, th.is suit is di$missed/costs for this ,ground aloneJ I decline to· order a new t:rial because this su.i t a:1pears quite vexous for purposes f the claims of the ownership of the land in dispute throughou the proceedings in the Lutengano l\lfw~~.Ealil' and 10 others Va. S-amson_ Makanje and 4 others in this court O s ·· · · · · . In the other s.uit _of . (PC) C,A. No~~g/95 cited aboveiJohn _Msalee vs. Wion Mwa:1;:Qopo and 2 others the issue of the ownership of the land being in the ....... • =-· J • hands o.f the village Government and that the plaintiffs were merely use re of the land at the invitation of the village government was true· quite accepted as the /state of facts obtaining in that locality. Moreover, in the 4th para of this plal"i1t the: plaintiff ledges th.at their village government has carried· out operat-ion·r:ri ji ji (Villagization programme of 1974) und'.r whi-ch -rieo·ple were reallocated to different places and public land was acquired' 1 for Ujamaa activities within which the ·present land in di13pute appears to have fallen as public land for public use for which the plaintiffs retained · ht f · · t - the · · t t· f t,,,e· · 11 t 1 on.1y a rig o using i nit invi a ion o . .L.1! VJ. age govermnen • this status ·.quo should not be disturbed. But, even with such publicly owned land the landlord is not supposed to destroy his invit.aies young.pyreth:: Therefore, I allow the 5 plaintiffs. to sue in a proper lower court in respect of the value of only the allegedly destroyed you,,,~·- ~?T9thrum crop; - and not in respect of the owners.hip of the lane;. as public land · under the land.lordship of the village council. i,fte::1· due notice will have been complied with under s. 183 of the , ... ::-t No. 7/1982. • ••• /11

! • I • • 11

There is another issue not covered by both parties: ['he 2nd defendant The AttornY, Ge_beral was 1.vrongly sued in this court for ,, ·-·· there is no cause of·action against him in the entire'plaint state The plaint and its para . 1 tha~ v~~mba B village counci·l is a statutory body wbic;h under secion 26 of the same .Act No. 7/1982· i:s a body corporate· gapable of suing and being sued, Therefore, it doesn't have to ·be sued through the Attorney General who is only sued under the government only not hereinabove c, 'Government Frooeedings Act for the central . i,h . for/ ocal government Authorities mentioned Of course, the Attorney General i,s free to represent t:hkm .. if ,, .. he choses to do so, a: the. learned Mr. Mulokozi (S.A.) . chose to I I I I I . ,·, -.: < represent the 1st defendant in this. case as an offi-cer;, of this j , ' ... l: court. I: If the plai_ntiffs had devided to sue tho .Attorney GenrEll 1 I of court a J as a frann yet· he should have indicate~ so and g~ ven reason 1 why he did so i.eo what public interest matte:r ·he wants tQ/ I That was no:t / / ' •. '· ., . ,,,-: .. i ! . ' have the legal ,1;opiriion of rt'rie ·Atto!1;1ey _qnerl~- I / ··, ' the case he re • ' . . . . ! I . thi I in. s / eu.iilD·The plaint against him is struclt out the re cord with. coss. i I I ··· "With the stricking out of the . .Attorney Gonerel from thi~ sui t 1 . .• I there· _is no·.pecu.niary or legal or judicial matter fof-thls· c~urt , , i I to get invo,lved •• Thi.s slti. t was wrongly filed it:. this court •. / The , . ' ~- • . . , I I pecuniary claim at highest amounts to only 5e5m/- :::·illingst • I i with the remaini-- 5. plaintiffs it amounts to only shso 2. 5nV= . I purported ,value of the destroyed young pyrethrum. •• ~/12 I I / I I ! i i I I I ' J I / I I I I I ! j i I J r I I I ! J ,I ! J I

• t ... ·. ..... . c~, ~ ... ·,· .:,· r . . . ·r -- -- .,,Ih ii. ts. e!,ltirety this SW. t is hpelssiy'-'i,eing -draggeq. ,in,,' ,(' . . . . . . •. . ~ L J , C , :· ... •. . :. ,_- .• ,- . ,,i ', . -~ . •· :1.: . :r r. • , . ' . . . . this court: ar:t 7 apppabl~: i ~~~io·Wiich must 'be · 1 terminate.d . )i:.i:· j • : '.. ·; .. i, -.:.~ \ --;t~:•a~ , t"• .. -..c r· .)-, .. ' p.er. (dis'Ill:is1:- of t,h~e suit explained aboye;. -· ··-'- 1 -· ·, ·l l0/5/99

• .... , r-; ••• '. -- .. ,.,, ,. ' . C...(5-.,5. 9'9 ".J,• \ f • ·, '°' 1 ~ •. f· . .. - .. , ,Coram:. Hon.J. Mwipopo, J. ·.,.·_,.,·c,. , ,: . t -·- •. •.:·,.,.,•"\ ·::_i ' ' t, .. I .J.. .. l - ,:, _,·j "--:- .. ) . : . I ,A ' ~ •• ' • • ls Plaintiff Lute.nganc> Mwakapalila. -". 2nd .,P~?i:nt.i,/~ ,., 3rd Plaintiff - l. ,"' - ;: ·, f. , • , • '• ~ ... • • . ,;.;-,: .. ; ... , ., r 4th Plaintiff, 5th Plaintiff :_Jle~d 6, ... P.lntiff .... All :present·. 7th Plaintiff Absent 9th· ,. ~•: 1htil': .2nd .AT l\lIBEYA ELKM/ATM' lima., ',. ,· .. V' !_ . \• . : '',, - . ..:.:,...,.. ..,;.· ... ; . ":-· . ;1·:: Ct ... • ~-t· .. ':_'Jl ~ .,.., ~- :, ~ (.;:i::f/c•< ... '-1( f'-. ~~. 'j . ! ·. JUDGE . , : J ' ,· 10- .. 5. 99 •.' . i,. '·