Bibi Kisoko Medard v Minister for Lands, Housing and Urban Development and Another 1983 TLR 250 (HC)

BIBI KISOKO MEDARD v MINISTER FOR LANDS, HOUSING AND URBAN DEVELOPMENT AND ANOTHER 1983 TLR 250 (HC)

Court High Court of Tanzania - Arusha

Judge Mwakibete J

MISC. CIVIL APPLICATION 10 OF 1982 B

Flynote

Civil Practice and Procedure - Functus officio - When a tribunal becomes functus officio.

-Headnote

The Minister for Lands, Housing and Urban Development heard an appeal from the Customary Land Tribunal and decided in favour of the applicant. He later discovered that he had not heard the witnesses of the second respondent before giving his decision. He decided to rehear the appeal and now decided in favour of the second respondent. The applicant filed an application challenging the Minister's decision to rehear the case.

Held: 

(i) In matters of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio;

(ii) the Minister, having reached a decision and made it known to the parties became functus officio and could not sit in judgment of his own decision.

Case Information

Application allowed.

No case referred to.

F.B. Mahatane for the applicant.

M.P. Mtingele for the first respondent.

[zJDz]Judgment

Mwakibete, J.: This application concerns a case under Customary Leasehold (Enfranchisement) Act 1968. A party who had lost before the Customary Land Tribunal had appealed to the Minister for Lands and Urban Development, and the Hon. Minister had given his decision in that appeal on 27/1/1981, in favour of the applicant - Bibi Kisoko Medard.

Following that decision the 2nd respondent (Prosper S. Mahedi) lodged a complaint to the same Minister to the effect that there was a failure of justice in that his (2nd respondent's) witnesses had not been heard. The Minister was satisfied that the 2nd respondent's witnesses had indeed not been heard in the matter - when he decided to rehear the appeal. The rehearing naturally resulted in a 2nd decision on the same appeal. And the 2nd decision happened to be inconsistent with the previous one of A 21/1/1981. The 2nd decision is dated 30/12/1981.

It is this decision, of the Hon. Minister, to rehear the appeal and ultimately reverse his first decision, which is the subject of challenge in these proceedings by way of certiorari.

The case of the applicant is basically one that once the Minister had made known his first decision to parties, he was functus officio in the matter - that is that he would be incompetent in law to rehear the appeal for whatever reason because he had already discharged his duty as an appellate tribunal in the matter; that if the 2nd respondent was aggrieved by the 1st decision on the grounds that the principles of natural justice had not been observed, it was open to him to challenge the same in the High Court, by way of certiorari, under the Judicature and Application of Laws Ordinance (Cap 453) - Vide s. 2 with a view to quash the alleged offending decision.

Mr. Mtingele, learned state Attorney for the 1st respondent, conceded that the proper course in law was as propounded by Mr. Mahatane learned counsel for the applicant - that the 2nd respondent ought to have invoked the provisions of the Judicature and Application of Laws Ordinance to move the High Court to cure the alleged injustice! He however observed that since the Minister was satisfied that justice was not done in E his first decision and that since what the Minister did in his 2nd decision was to correct the injustice occasioned by his first decision he could not be faulted for having so acted - after all his function in his appellate jurisdiction was to see that justice was done to the parties. So when it had become apparent that justice was not done in the 1st decision F which happened to be his own decision, he was entitled to revise the same as he did. In any event, he went on, the Tribunal was not bound by strict rules of procedure as required in the ordinary courts of law.

The 2nd respondent fully associated himself with the observations of the learned State Attorney. And like Mr. Mtingele he, too, asked this court to dismiss the application with costs. I agree with Mr. Mahatane that in matters of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes 'functus officio'. So was the Hon. Minister 'functus officio' in the matter of appeal between the applicant and the 2nd respondent, after his decision of 27/1/81.

It may, as suggested, have become apparent to the Hon. Minister that justice was not done in his first decision, yet that is no basis in law to rehear and reverse his own decision. There is no such authority under the Customary Leasehold (Enfranchisement) I Act 1968 or under the regulations made under the Act. And according to the law of the land only 2nd appellate tribunal, if provided, or, in the circumstances of this case, a High Court, may reverse a decision of another tribunal of limited jurisdiction. There is no room under the law for any tribunal, be it appellate or otherwise, to sit in judgment of its own decision. Matters of 'review' as provided under the Civil Procedure Code are irrelevant because the Civil Procedure Code is inapplicable to litigations under the Customary Leasehold (Enfranchisement) Act 1968.

If the Hon. Minister was satisfied that the first decision was lacking in some respects, all he could do was to advise the aggrieved party to seek redress in the High Court under the law as above. There was no legal short cut! 

From the foregoing it is clear that the proceedings before the Hon. Minister that culminated in the 2nd decision of 31/12/81 were null and void. As such the 2nd decision was of no effect and is hereby quashed. Which means that the Minister's decision of 27/1/1981 is still valid and it is so declared.

Application allowed.

1983 TLR p252

E