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Village Councils Incorporated as Body Corporates have Legal Capacity to Institute a case before the East African Court of Justice

Village Councils Incorporated as Body Corporates have Legal Capacity to Institute a case before the East African Court of Justice

Ololosokwan village council & 3 others v the Attorney General of the United Republic of Tanzania

The East African Court of Justice, Arusha

First Instance Division

M. K. Mugenyi, F Ntezilyayo, F. A. Jundu. J January 25, 2018

Reported by Linda Awuor and Wanjiru Njihia

Download the Decision

International Law– law of Treaty-Treaty for the Establishment of the East African Community-Parties to a matter instituted under the treaty- reference by Legal and Natural Persons-whether the village Council had the locus standi to refer issues for determination to the court – Treaty for the Establishment of the East African Community, Article 30 (1).

International law-            Rules of Procedure-East African Court of Justice Rules- appearance and representation-whether the village councils had been duly represented to institute an application before the court-the East African Court of Justice Rules of Procedure, rule 17(3), (5).

Brief Facts

The Application arose from reference No. 10 of 2017 (Reference) filed against the Attorney General of the United Republic of Tanzania. It was based on the forceful eviction of the Ololosokwan residents and their livestock from Serengeti National Park and Loliondo Game Controlled Area.

The Applicants contended that on the August,4 2017, despite possessing legal documents as proof of ownership of land that bordered 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.

They further contended that on August 5, 2017, each Applicant was ordered to vacate its residents from the demarcated area bordering the Serengeti National Park and the eviction, removal of livestock and the burning of bomas took place on land that legally belonged to the Applicants.

It was the Applicant’s 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(Tanzania) as well as the Treaty to the establishment of the East African Court of Justice

Issues:

         i. Whether a village council incorporated as a body corporate under article 26 (2) (b) of the Local Government (District Authorities) Act Cap 287 had the capacity to sue before the East African Court of Justice.

       ii. Whether village councils had been duly represented to institute an application before the Court under rule 17 (3) of the East African Court of Justice Rules of procedure, 2013 on appearance and representation.

Relevant provisions of the Law

Treaty for the Establishment of the East African Community, 1999

Article 30(1)—Reference by Legal and Natural Persons

Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.

East African Court of Justice Rules of Procedure, 2013

Rule 17(3) & (5) –Appearance and Representation

(3) A corporation or company may either appear by its director, manager or secretary, who is appointed by resolution under the seal of the corporation or the company, or may be represented by an advocate.

(5) The advocate for a party shall file with the Registrar a certificate that he or she is entitled to appear before a superior court of a Partner State.

Local Government (District Authorities) Act Capt.287 Revised edn.2002

Article 26 (2) (b)-Village Council to be body Corporate

(2) Upon the issue of a certificate of incorporation in relation to a village, the village council of the village in question shall, with effect from the date of that certificate, be a body corporate

(b) in its corporate name be capable of suing or being sued

Held:

  1.  The Court Rules envisaged the type of parties that would appear before the Court and provided for companies, individual legal entities and body corporates under Rule 17(3).  It was not in dispute that the village councils in question were a body corporate and since the Court Rules provided for a body corporate to appear before it. The Court had laid out the manner in which they could be represented. The Local Government (District Authorities) Act neither talked about appearance by or on behalf of the Village Council nor referred to any authorization to be sought by a Village Council before instituting a case in Court.
  2.  The Court was not convinced that the matter at hand had to be governed by the Tanzanian Laws if at all they provided for village councils’ appearance and representation in Court. It was clear to the Court that the Local Government (District Authorities) Act neither talked about appearance by or on behalf of the Village Council nor referred to any authorization to be sought by a village council before instituting a case in Court.
  3.  The Court found untenable that by extension, since a village council was at the bottom of local government entities, it had to be authorized by a superior body such as the District Council and represented in Court according to the relevant provisions of the Local Government (District Authorities) Act according to section 3 of the Local Government (District Authorities) Act, 1982, the Act only applied to a court of Mainland   Tanzania of competent jurisdiction.
  4. On the Respondent’s other argument that a Village Council could not   sue the Attorney General of the United Republic of Tanzania, a quick perusal of selected case law involving village councils showed that village councils had in the past sued the Attorney General (Tanzania) together with some government institutions seeking order recognizing their ownership of disputed lands.

Application Dismissed.

Orders

                    i.            Application was fixed for hearing forthwith.

                  ii.            Costs were to abide the outcome of the main reference.

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