The case of mbeya rukwa autoparts and transport ltd v. Jestina George Mwakyoma. Ultra-vires.

 

WORK OUTLINE

1.0 PRELIMINARY

1.1 DOCTRINE OF ULTRA-VIRES

1.2 SEPARATION OF POWERS

1.3 RIGHT TO BE HEARD

2.0 MAIN BODY

SECTIONS OF LAND ACT WHICH WERE ILL TREATED

3.0 CONCLUSION

PRELIMINARY

Ultra-vires are Latin words, meaning "beyond the powers."  Describes actions taken by government bodies, courts or corporations that exceed the scope of power given to them by laws.  When referring to the acts of government bodies (e.g., legislatures), a constitution is most often the measuring stick of the proper scope of power. Ultra-vires by courts of laws is referred to actions of courts exceeding jurisdiction, an official power of the court to entertain matters. When a courts entertains a matter out of it’s jurisdiction, the decision comes out has no effect, null and void.

In the case of Mbeya-rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma , The High Court of Tanzania ruled in ultra-vires when a court exercised powers of commissioner for land and registrar of titles by revoking and granting right to land which is not a power imposed to courts of law. A court of law is entitled powers to assess and declare a rightful person who possess a piece of land and not to revoke or to grant right of occupancy. Registrar of tittle and commissioner for land, are only officers granted legal powers to grant and revoke right to land, revocation by other departments out the said officers has no legal effects. 

The decision in the case above was not only ultra-vires, but it was against the constitutional  doctrine of separation of powers and functions. Granting and revoking rights to land by court interferes powers of executive. The legal basis of the doctrine of separation of powers is enshrined under Article 4 of the Constitution, under this Article, organs of the state (executive, judiciary and parliament) are granted powers to exercise different activities in the state without interfering to each other. Together with other duties, executive is given by constitution, powers to enforce laws, while Judiciary is given powers to dispense justice and legislative functions are imposed to legislature. The Constitution requires no interferes between these important organs of the state but there might be checks and balances so as to control each other.

Article 4 (4) of The Constitution  provides that, “  Each  organ  specified  in  this  Article  shall  be  established  and shall  discharge  its  functions  in  accordance  with  the  other  provisions of  this  Constitution.”

Also, the decision passed by High Court on the application submitted by deputy registrar of titles failed to abide to basic principle of natural justice. Audi alteram partem is among basic principles of natural justice which requires parties to a suit to be given right to be heard before making any decision which will affects their rights or interests. In the case above, respondent was summoned to appear before court but no any appearance entered and the court proceeded to decide the matter exparte, in one hand, this was a default to a party of a respondent to fail to appear without giving any reason but to another hand, that was a breach of a basic constitutional principle set under Article 13(6)(a) of the Constitution of Tanzania. A court of law entered a decision without prior giving a right to be heard to parties in a suit hence the decision is ultra-vires because the court has no powers to escape requirements of the Constitution and other procedural laws.

Article 13(6)(a) provides that, “when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;”

SECTIONS OF LAND ACT WHICH WERE ILL TREATED

Section 10(1) of The Land Act  was ill-treated in the case of Mbeya-rukwa Autoparts and Transport Ltd. Section 10 provides that, “The Commissioner shall be the principal administrative and professional officer  and adviser to, the Government on all matters connected with the administration of land and shall be responsible to the Minister for the administration of this Act and the matters contained in it.”

This section imposes administrative powers to the commissioner for lands on land matters concerning land transactions (disposition, grants and revocation of rights of occupancy), an office of commissioner for land is granted powers to deal with land matters, the grants and revocation of right to land by any organ or department other than those given powers under statute has no legal effects.

In regarding this section, the decision passed in Jestina George Mwakyoma's case was ultra-vires because the court went too far to interfere powers imposed to executive. Commissioner for land is an officer of the executive who is given all powers concerning land transactions, his duties are secured from interferences from other organs but he is responsible to a minister for land and president. Legislature and Judiciary lacks powers to control an office of commissioner but judiciary has powers to check legality of various activities of the commissioner for the purpose of justice. In the case above, the court was to direct a commissioner for land to allocate the suit land to a person who was declared a rightful occupier of the land and not to decide to perform functions of commissioner for land by revoking and granting right of occupancy.

Section 4, 48 and 49 of Land Act  were ill-treated. As per section 4, all lands vested into president, a president is a trustee who hold land on behalf of citizens. Also, grant and revocation of right of occupancy is a duty imposed to a president after recommendation from commissioner for lands. The decision passed in the case of Jestina Mwakyoma was ultra-vires because it interfered powers of the president to grant and revoke right of occupancy.

The procedure to revoke right of occupancy is provided under section 48, if a commissioner for land think that there is a breach of conditions to the occupancy of land, and if those conditions breached cannot be remedied, a commissioner may issue a revocation notice to a person who breached those conditions. After 90 days, a commissioner will recommend revocation of right of occupancy to president. When a president approves revocation, a commissioner will cause it to be published to the most circulating news paper to inform the society on that revocation of right of occupancy. This procedure was interfered by the decision passed in Jestina George Mwakyoma’s suit, the court skipped the whole procedure and took away the powers of president and commissioner for land to grant and revoke land right of occupancy.

Section 24, 25, 26 and 29 of the Land Act  provides on a whole procedure to grant land right of occupancy. First, there must be an application for land right of occupancy, then a commissioner for land will determine the application, and grant of right of occupancy is the final stage. This procedure was not followed when court decided on its own powers to grant a right of occupancy to a party in Jestina'e case.

The law requires the whole procedure to grant right of occupancy to be followed through an office of commissioner for land and not court of law. The court of law is given powers only to direct the office of commissioner for land to do something in case of dispensing justice but not to interfere core functions of the office of commissioner for lands.

Section 172(1) of The Land Act  was also ill-treated. The section cements on a right to be heard, any department which decides rights or interests of individuals must give parties to a suit an opportunity to be heard. Failure to abide to this basic constitutional principles is fatal. The decision passed by High Court faulted section 172(1) of Land Act and Article 13 (6)(a) of the Constitution of United Republic of Tanzania.

CONCLUSION

Acting out of jurisdiction by court gives unlawful decision. Ultra-vires decisions by court cannot be implemented. The doctrine of separation of powers is among basic constitutional principles which need to be adhered to when a court of law is exercising it’s powers. The organs of the state are imposed with separate duties which are to be performed by only an organ given mandate to perform such duties, interference is forbidden unless it fall within scope of checks and balances between organs

BIBLIOGRAPHY

BOOKS:

Green, k and J. Cursley, (2001) Land law,Geative print and Design, Great Britain

Hayton, D.J ( 1991 ) Megariys Manual of the law of Real propert, 6th Ed,Steve & sons Ltd, London.

William, H. (1987), Land law in a nutshell. Sweets and Maxwell 4th Edition, London

CONSTITUTION:

Tanzania Government of, The Constitution of United Republic of Tanzania, 1977 [as amended from time], Government Printers, Dar es Salaam.

STATUTES:

Tanzania Government of, The Land Act, No. 5, 1999, [Cap 113, R.E 2002], Government Printers, Dar es Salaam.

Tanzania Government of, The Land (Amendment) Act, No. 2 of 2004, Government Printers, Dar es Salaam.

CASES:

Mbeya-rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma 2003, TLR 25