Kazimoto, J.: The appellant was sucessfully sued by the respondent in Myangayanga Primary Court. He appealed to the District Court Mbinga and his appeal was dismissed. B He is now appealing to this court. The appellant appeared in person and the respondent was represented by Mr. Mwingira learned counsel. Having heard arguments from both parties I dismissed the appeal with costs and reserved my reasons. Now I proceed to give them.
First the background to the case. The respondent is a resident of Mateka village. The C appellant is the chairman of Mateka Village. The respondent had land in Mateka village and from the evidence on record he has been in that land since 1953. There is a house and permanent trees like coffee trees etc. It appears that he has never abandoned the land. In 1978 one Osmund Leodgar Ndunguru (DW3) was transferred from Tunduru D district to Mbinga district. He is a teacher and he was posted at Mateka primary school within Mateka village. He applied to the Matkea village government for a piece of land to build, and the appellant, through the village building committee allocated him land, E which the respondent claimed to be his. The respondent instituted proceedings against Osmund Ndunguru in Kigonsera Primary Court Civil Case No. 59 of 1983 which the respondent succeeded. Osmund Ndunguru appealled to the District Court Mbinga in Civil Appeal No. 81 of 1983. The district court quashed the proceedings for lack of F jurisdiction on the part of the trial court. The respondent was advised, if he wished, to institute fresh proceedings in the court having jurisdiction to try the suit. It transpired during those proceedings that Osmund Ndunguru had a letter of allocation issued by the appellant as chairman. The respondent then instituted the present proceedings against the appellant who allocated the subject matter of the suit. G
Both the trial court and the first appellate court found that the land which appellant had allocated to Osmund Ndunguru belonged to the respondent, that the land belonged to the father of the respondent one Francis who actually planted the permanent trees. The H district court held further that the village government had no right to allocate developed land without the prior consent of the owner thereof.
Now I turn to the grounds of appeal. The first issue is whether a village government can lawfully allocate land within its jurisdiction which is under the possession of another I villager who is developing it. I do not hesitate to answer that question with a big emphatic no.
Common sense will not allow it. Equity will forbid it. While saying so I should not be A taken to question the power of a village government to allocate land within its jurisdiction which has not been allocated to any person. Nor do I question the powers of a village government to allocate land which is already allocated to another person if the person in possession of such land is consulted prior to the re-allocation and he had consented to B the proposed re-allocation. A village government which allocated land, as in the present case, which is already under development and in the possession of another person would not only bring lawlessness and anarchy to the villages but would also retard the C development of the villages.
In Lukas Masirori Kateti v Sebege [1969] HCD 11 this court warned village development committees to use their powers justly and wisely instead of creating discontent amongt the inhabitants whom they are entrusted to look after. In that case the D respondent had already been allocated land. The village development committee re-allocated the same land to the appellant in that case. I would like to associate myself with the decision in that case and echo the same warning.
In the present case the respondent has been in possession of the land. He was not E consulted prior to the re-allocation of the land by the appellant to Osmund Ndunguru. The respondent did not consent and as it turns out he has resisted it. In my judgment I concur with the findings of the district court that the appellant has no right to allocate or re-allocate land within its jurisdiction which is in the possession of another villager F without the prior consent of the respondent.
The appellant has argued in his memorandum of appeal and before me that he was wrongly sued and that the person to be sued was Osmund Ndunguru. Mr. Mwingira for G the respondent has argued that Osmund Ndunguru had no fault. He applied to the village government which, allocated him the land in question by the appellant. He contendend that the case against the appellant has been properly instituted.
I agree with the submission of learned counsel. Osmund Ndunguru did not forcefully H enter the respondent's land. He submitted an application to the village government. That application was accepted and approved. The appellant as chairman allocated the land to Osmund Ndunguru who entered into the land under the authority of the appellant. Had I he done so without authority Osmund Ndunguru would be liable to be sued for ejection. As the appellant
is the authority which allocated the land in dispute he cannot be heard to complain for A being sued in court.
The appellant has raised another point in his memorandum of appeal and in his submissions. He has submitted that this case has already been decided by the High B Court between Osmund Ndunguru and the respondent. He querried the "wisdom" of the law in instituting this fresh suit against him. He was having in mind the principles of res judicata.
Mr. Mwingira has argued that the appellant has no defence under section 9 of the Civil C Procedure Code. He submitted that the appellant was not a party to those proceedings.
I have already indicated that in Kigonsera Primary Court civil case No. 59 of 1983 the parties were Antony Hyera and Osmund Ndunguru. In Mbinga District Court Civil Appeal No. 81 of 1983 the parties were Osmund Ndunguru and Antony Hyera. The D appellant as chairman was not a party to those proceedings. As I have said those proceedings were quashed. The effect of quashing court proceedings is to put the parties in the same position as if there had never been any proceedings. Under the circumstances nothing has been finally decided.
Even if Osmund Ndunguru had won the appeal, that is there was a final decision on the E matter the plea of res judicata is not open to the appellant. One of the conditions for successful invocation of the plea of res judicata is that the parties in the previous suit must be the same as in the present suit. As demonstrated the appellant was not a party in F the previous suit in Kigonsera Primary Court Civil Case No.59 of 1983 and Mbinga District Court Civil Appeal No. 81 of 1983. The plea is therefore not maintainable in law.
The appellant has argued that the trial court and the District Court had wrongly analysed the evidence on record. He contended that there were no permanent trees on the land. G He complained about the sketch plan and that they did not take into account the evidence of Mputa who said that the land which was allocated was his and not that of the respondent.
Mr. Mwingira has argued that the appellant did not personally go to the land to ascertain H if Osmund Ndunguru was allocated proper land. He stated that according to the evidence the appellant said that he thought the land belonged to Joseph Lihakihala who denied that the land allocated to Osmund Ndunguru was his.
The evidence of Vicent John (DW4) and Joseph Lihakihala and Mputa DW5 is I unambigous. DW4 was the chairman of the building committee. According to his evidence they went to DW5
who showed them the area they allocated to Osmund Ndunguru. But DW5 had denied A this for he stated that the village government asked him who was living in the shambas which they were asking. He said in no uncertain terms as follows and I quote.
Serikali ya kijiji haikuwa na madaraka na sehemu hiyo. Waliokuwa wanaishi katika eneo la B ugomvi wote wamekufa akiwa ni baba yake Francis.
According to the testimony of the respondent Francis was his (respondent's) father. The trial court considered this evidence and accepted it as correct. The first appellate court C agreed with the assessment of the trial court. In view of the evidence of DW5 this court does not agree that the courts below had come to a wrong conclusion in its evaluation of the evidence of DW4 and DW5.
In the upshot therefore, I dismiss the appeal with costs. D
Appeal dismissed.
E
