IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MWARIJA. J.A.. KITUSI. J.A.. And KEREFU. 3.A.1

CIVIL APPEAL NO. 177 OF 2018

1. ELIEZA ZACHARIA MTEMI

2. ALOYCE RAFAEL AWE
3. ROBERT EMMANUEL SILLO
4. MOSHIIRANGHE
5. JOHN GOBRE AMI
6. JOSEPH AMSI SAQWARE
7. NICODEMUS SLAQWE IRANGHE L ...... APPELLANTS
8. JOHN PETER KARERA
9. DANIEL AWET TEWA
10. GEORGE NDEGE GWANDU
11. KAROLI EMMANUEL NADE
12. MELKIADI NG'ORA SIGHIS
13. XUFO SHAURI NAMAN
VERSUS
1. ATTORNEY GENERAL
2. THE MINISTER, MINISTRY OF REGIONAL
ADMINISTRATION AND LOCAL GOVERNMENT
3. KARATU DISTRICT COUNCIL RESPONDENTS
4. KARATU TOWNSHIP AUTHORITY

(Appeal from the decision of the High Court of Tanzania at Arusha)

(M oshLi)

dated the 11th day of November, 2016

in
Civil Case No. 2 of 2015

JUDGMENT OF THE COURT

17th & 25th February, 2021

KITUSI. J.A.:

In 2009, Karatu Township Authority, the 4th respondent, was

established vide GN No. 353 of 2004. The appellants instituted Civil Case

No. 2 of 2015 at the High Court, Arusha Registry, to challenge the

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establishment of the 4th respondent and the consequences that befell

three villages, that is, Tloma, Gyekrum Arusha and Ayalabe. The first

three appellants are members of Tloma Village. The next four appellants

are members of Gyekrum Arusha village while the last five appellants are

members of Ayalabe village.

At the trial the appellants alleged among other things, that GN No.

353/2004 which established the 4th respondent was not preceded by a

requisite resolution from Karatu District Council, the 3rd respondent.

Therefore, in issuing that Government Notice, they alleged, the Minister

of Local Governments and Regional Administration, the 2nd respondent,

acted outside his powers. They further alleged that as a consequence of

the establishment of the 4th respondent, their three villages were

purportedly abolished, but they fault the said abolishment for having been

carried out by an incompetent authority. In the end they prayed for eight

declaratory orders which have been correctly summarized in the written

submissions of the appellants' counsel as follows:

"(i) The order o f the 2nd Defendant to establish the

Karatu Township Authority (the 4h Defendant) is
inoperative and/or of no legal effect for being
gazetted without being first signified by resolution
o f the Karatu District Council, the J d Defendant.
 (ii) The village o f Ayalabe, Tloma and Gyekrum Arusha
are not Gazetted as part o f the area o f the 4h
Defendant.

(iii) The J d Defendant has no legal power to dissolve

the Plaintiffs' villages as it purported to do."

The appellants also made prayers for compensation for " damages

suffered by the plaintiffs due to the Defendants' acts o f interfering with

the Plaintiffs' rights to own and perform economic activities within their

village areas and without any lawfuljustification."

The Attorney General was cited as the first defendant, now the first

respondent. All respondents maintained that the 4th respondent was

competently established and is validly in existence and that what used to

be Tloma, Gyekrum Arusha and Ayalabe villages are since then no longer

in existence but are part of the said 4th respondent.

At the trial, all the issues revolved around the validity of the

establishment of the 4th respondent and its effect on the three villages.

The trial court concluded that the 4th respondent was established by GN

No. 353 of 2004 dated 17/9/2004 and it became operative from 1/8/2009

after abolishment of the three villages on 31/7/2009 vide GN No. 205 of

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2009. It was found that the 4th respondent was competently established

and that the three villages were abolished by a competent authority.

But the trial court went a step further. It considered the question

whether the appellants had the authority to sue over properties belonging

to the villages, and concluded that they being mere villagers did not have

that authority. The court was of the view that the villages were the ones

empowered to sue over such properties. It also considered in the

alternatives, if the appellants had been authorized by fellow villagers to

institute a representative suit, but it answered the issue in the negative.

That decision is being challenged on ten grounds. On our close

scrutiny of these grounds however, we are satisfied that the best part of

those grounds consists of mere details though in essence the decision of

the High Court is being challenged on the following three areas: -

(i) The High Court erred in concluding that the

establishment o f Karatu township Authority
observed all procedures.
(ii) That the trial High court erred in finding that
Tioma, Gyekrum Arusha and Ayalabe villages
were abolished by a competent authority and
are now part o f Karatu Township Authority.
 (iii) That the trial High Court erred in finding that the
appellants have no locus standi to sue over
properties owned by the villages.

Before us, Mr. Peter Qamara and Daniel Welwel, learned advocates

who had prominently featured at the trial as acting for the plaintiffs

continued to represent them now as appellants. The four respondents

were represented by Mr. Deodatus Nyoni, Principal State Attorney who

was assisted by Mr. Aloyce Sekule, Principal State Attorney (PSA), Mr.

Mkama Musalama, State Attorney, and Ms. Glory Isangya, State Attorney.

The appellants had made use of Rule 106 of the Tanzania Court of Appeal

Rules, 2009 as amended (the Rules) by filing written submissions. The

respondent did not.

Before going into the fine points of whether the 4th respondent's

establishment observed the requisite procedures and whether Tloma,

Gyekrum Arusha and Ayalabe villages were abolished and became part of

the 4th respondent, we shall consider the ground on the appellants powers

to sue on the matter, lest we put a horse before the cart. During the

hearing we also raised the issue whether the appellants' action by way of

a plaint was proper and if the High Court had jurisdiction to entertain it.

Therefore, we shall also consider this issue ahead of the substantive

issues because it has always been our duty to consider such preliminary

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legal points first especially matters of jurisdiction. We have had occasions

to emphasize on the need for courts to satisfy themselves on matters of

jurisdiction in a number of cases. For instance, in Fanuel Mantiri

Ng'unda v. Herman Mantiri Ng'unda & 20 Others, Civil Appeal No.

8 of 1995 cited in Alois Hamsini Mchuwau & Another v. Hamadi

Hassan Liyamata, Criminal Appeal No.583 of 2019 (both unreported),

we said: -

'The question o fjurisdiction for any court is basic,

it goes to the very root o f the authority o f the court
to adjudicate upon cases o f different nature... The
question o f jurisdiction is so fundamental that
courts must as a matter o f practice on the face o f
it ascertain and be assured o f their jurisdictional
position at the commencement o f the trial...It is
risky and unsafe for the court to proceed with the
trial o f a case on the assumption that the court
has the jurisdiction to adjudicate upon a case".

Counsel for the appellants argued this issue from several fronts.

One, they argued that as members of the said villages, the appellants

have vested interest in the assets of those villages, so they have the right

to sue so as to protect any intended misappropriation. Two, the learned

counsel submitted that the High Court erred in taking the narrow view of

locus standi. They submitted that theirs is a public interest litigation so

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the High Court should have applied the principle in the case of Rev.

Christopher Mtikila v. The Attorney General [1995] TLR 31 where

this Court stated that in public interest litigation it is not necessary for a

genuine and bona fide litigant to demonstrate personal interest in the

matter under consideration. Three, it has been submitted that the

appellants have a duty under Articles 27 and 28 of the Constitution of the

United Republic, 1977 (the Constitution) to protect public property.

In elaboration, Mr. Welwel submitted that though the appellants

were exercising their right under the Constitution, their suit did not seek

to enforce any article of the said Constitution so the pleadings need not

have changed to reflect that the matter was under the Constitution. He

also submitted that the appellants were not challenging the validity of the

Government Notices that established the 4th respondent and abolished the

three villages. He submitted that the appellants were challenging the

authority of the officer who abolished the three villages and included them

in the 4th respondent's area of jurisdiction.

As regards the long list of names of other members of the villages

annexed to the plaint, Mr. Welwel submitted that the list was only meant

to demonstrate that those villagers were part of the original complaints,

and not for any other purpose. Thus, he submitted, the appellants did not

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file the suit in a representative capacity. Mr. Qamara added that in any

event, in the matter before the High Court, no reliefs were being claimed

on behalf of those villagers, therefore the appellants could not have been

suing on their behalf.

Mr. Nyoni, PSA was strongly opposed to the learned submissions by

counsel for the appellants. He began by submitting on the lOths ground

of appeal involving the issue of locus standi. First, he took the view that

annextures are part of the pleadings therefore the appellants must be

taken to have been litigating on behalf of over 400 villagers whose names

are listed in the annextures. Second, he submitted that the appellants

ought to have petitioned for a Judicial Review because theirs is a

complaint against administrative decisions. Then he went on to submit

that as the appellants cite articles of the Constitution in their submissions,

they should have invoked the Basic Rights and Duties Enforcement Act

[Cap 3 R.E 2002]. Third, the learned Principal State Attorney submitted

that the appellants appear to recognize that Tloma, Gyekrum Arusha and

Ayalabe villages still exist. That being so, he submitted, the suit should

have been preferred by those villages under section 26 of the Local

Government (District Authorities) Act [Cap 287 R.E. 2002].

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 As regards the contemporary view of locus standi as decided in the

Rev. Christopher Mtikila case (supra), Mr. Nyoni submitted that the

case is irrelevant to the present case because that one was a

constitutional petition whereas this one is not.

It is convenient for us to determine this issue upfront. In deciding

this ground of appeal, we shall combine it with the issue we raised in the

course of hearing this appeal, that is, whether the appellants' action by

way of an ordinary suit was maintainable and whether the High Court had

the requisite jurisdiction. With respect, first of all we agree with Mr.

Qamara and Mr. Welwel that over the years, the narrow view of locus

standi in human rights issues has given way to a broader view, so that

one need not plead personal interest in the matter. See for instance,

Federation of Mines Associations of Tanzania and 2 Others v.

Africa Gem Resources (AF GEM) and 7 Others [2003] T.L.R. 294.

All the same, it is still the duty of a plaintiff in a civil suit to establish

standing and also that the court before which he presents his case has

jurisdiction, in line with Order VII Rule 1 (e) and (f) of the Civil Procedure

Code [Cap 33, R.E. 2002] hereafter, the CPC. In Lujuna Shubi Ballonzi,

Senior v. Registered Trustees of Chama cha Mapinduzi [1996] TLR

203, the plaintiff had instituted a suit by a plaint claiming from the
defendant political party, payment of the money it had allegedly acquired

from the people through compulsory contributions when it was the sole

political party in the country. The High Court stated in part: -

"In this country, locus standi is governed by the

common law. According to that law, in order to
maintain proceedings successfully, a plaintiff or an
applicant must show not only that the court has
power to determine the issue but also that he is
entitled to bring the matter before the court".

In our case at hand, even by randomly selecting some paragraphs from

the 39 - paragraph plaint, the cause of action is unmistakable. We shall

demonstrate by reproducing paragraphs 17, 19 and 21: -

"17. That) on 17th August, 2009, the J d Defendant

issued another letter which was directed to Chair­
persons o f Ayalabe and Tioma villages stating that,
on 17thSeptember, 2004, vide GN No. 205 o f2009,
the Government o f the United Republic o f Tanzania
established 90 Town authorities including the 4h
Defendant and that thereafter the J d Defendant
vide its resolution dated 3&h May, 2009 in Minute
No. 180/FUM/05/2009 resolved to establish the 4 h
Defendant with effect from 1st August, 2009.

19. That, on the 17th August, 2009, when the above

referred letter was issued by the J d Defendant to

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 the Chairperson o f Tioma Village, the 1st Plaintiff
was the sitting Village Chairman o f Tloma Village;
the 2ndPlaintiff was Tloma village Council's member
and J d Plaintiff was a villager o f Tloma Village in
Karatu Districtm
, Arusha Region, whom together with
other villagers were duly notified by their village
Chairman and consequently they lodged their
objection with the Jd Defendant against
establishment o f the 4 h Defendant. Annexed
hereto and marked "PA-5 (a) & (b)"collectively are
copies o f the 1st to J d Plaintiffs' identity cards and
their objection lodged dated 16/10/2010, attesting
the above stated facts for which leave o f this
Honourable Court shall be craved to refer to it as
part o f this plaint.

21. That, the above referred decision o f the J d Defendant

o f dissolving Ayalabe and Tioma Villages was
unlawful for being made without power to do so
and for being based on GN No. 205 o f2009 dated
2&h June, 2009 which provides for the list o f
registered villages by 2009 and not for the
establishment o f the 4h Defendant, as claimed by
the J d Defendant. Annexed hereto and marked"PA
- 7" is a copy o f GN No. 205 o f 2009 dated 26fh
June, 2009, attesting the above stated facts for
which leave o f the Honourable Court shall be craved
to refer to it as part o f this plaint".
 From those paragraphs of the plaint and others which we have not

reproduced, and from the submissions of the learned counsel for the

appellants, it is obvious that the appellants took upon themselves the duty

of protecting property belonging to their villages and did so by challenging

the authority that abolished those villages as well as the authority that

established the 4th respondent. The question is whether the High Court

sitting as an ordinary court had the jurisdiction to determine that cause

of action.

It is a well-known principle that jurisdiction of courts is conferred by

statute, as we have stated in many of our decisions. See the case of Aloisi

Hamsini Mchuwau and Another v. Ahmad Hassan Liyamate,

(supra). On that basis, it was imperative for the appellants to indicate and

establish that sitting as an ordinary court, the High Court had the requisite

jurisdiction just as it was also the duty of the court to ascertain this aspect.

This is because although the Constitution gives a person wide powers of

protecting the rights under it and seeking redress in courts of law, such

rights musts be enjoyed according to law as it is clearly stipulated in

Articles 13 (6) and 26 (2) of the Constitution.

In line with the above, in the case of Federation of Mines

Workers Associations of Tanzania (supra), a bench of three Judges

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of the High Court observed the following in holding No (i) to which we

subscribe: -

"While we are aware o f the well-established modern-

approach to human rights matters that provisions o f law
relating to human rights have to be construed liberally,
with elasticity and not restrictiveiy or rigidly, that does
not mean that a party in a human right case can disregard
compliance with legal requirements with impunity."

The suit from which this appeal arises intended, inter alia, to

invalidate decisions of the Minister of Local Governments and Regional

Administration, (second respondent), decisions of the District Council for

Karatu (the third respondent) and those of the Registrar of Villages. As

correctly submitted by Mr. Nyoni, the suit aimed at questioning

administrative actions of officials of the Government because that is

evident from the pleadings by which the appellants must be bound. The

appellants' claims, though actionable under some other laws of the land,

do not fall under a branch of ordinary civil suit. We are keenly aware that

what the appellants were pursuing at the High Court falls under the realm

of public law and could not be pleaded under the CPC which deals with

private law. It is, undoubtedly, settled that where the law provides for a

special forum, ordinary civil courts should not entertain such matters. See
the cases of Mohsin Somji v. Commissioner for Customs and Excise

and Commissioner for Tax Investigations [2004] T.L.R 66,

Tanzania Revenue Authority v. Tango Transport Company Ltd,

Civil Appeal No. 84 of 2009; and Commissioner General Tanzania

Revenue Authority v. JSC Atomoredmetzoloto (ARMZ)

consolidated Civil Appeals Nos. 78 and 79 of 2018 (both unreported).

We agree with Mr. Nyoni again that the case of Rev. Christopher

Mtikila (supra) is of no assistance to the case at hand because unlike the

instant case, that was a constitutional case.

As for the issue whether or not the suit was a representative one,

the appellants have categorically stated that it was not. Certainly, the

procedure for instituting a representative suit as stipulated under Order 1

Rule 8 of the CPC has not been followed, therefore this could not have

been a representative suit. But then, one wonders why did the appellants

attach that long list of names of fellow villagers, knowing that such

annextures are part of the pleadings, under Order VII Rule 14 of the CPC.

All this considered, it makes it hard for us to place the appellants' suit

under any known category.

In the circumstances we shall dismiss this appeal for mainly two

reasons that are intertwined. First, for the suit being unmaintainable

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because it sought to question administrative actions of government bodies

through an ordinary court by a suit. Secondly, within the same suit, it

sought to enforce constitutional rights of the appellants to protect public

property by way of an ordinary suit. We think for the two reasons alone,

the suit from which this appeal arises was misconceived and the trial court

erred in entertaining it.

The appeal is hereby dismissed in its entirety, with costs.

DATED at ARUSHA this 24th day of February, 2021.

A. G. MWARIJA
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

The Judgment delivered this 25th day of February, 2021 in the presence

of Mr. Peter Qamara, learned advocate for the Appellants and Mr. Peter

Musetti, learned Senior State Attorney for the Respondents, is hereby

certified as a true copy of the original.

H. P. N SAMBURO
DEPUTY REGISTRAR
CO URT OF APPEAL

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