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Ololosokwan Village Council and Others v Attorney General of the United Republic of Tanzania (Appeal No.13 of 2022)

East African Court of Justice · [2023] EACJ 12 · 2023 Appeal Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice arising from Reference No. 10 of 2017 concerning alleged unlawful evictions from community land
Decision
Matter remitted to the Trial Court for fresh hearing and determination de novo on substantive issues

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division of the East African Court of Justice allowed the appeal, finding that the Trial Court erred in law by failing to examine and consider all evidence adduced by the Appellants, including affidavits of nine witnesses and expert evidence, without providing valid reasons. The Court further held that the Trial Court applied an incorrect standard of proof, requiring absolute certainty rather than proof on a balance of probabilities. The matter was remitted to the Trial Court for hearing de novo on the substantive issues of whether evictions occurred within or outside the Serengeti National Park, whether the Respondent violated Treaty provisions, and what remedies the parties are entitled to. Costs were awarded to the Appellants.

Outcome

Matter remitted to the Trial Court for fresh hearing and determination de novo on substantive issues

Facts

Four village councils in Tanzania (Ololosokwan, Oloirien, Kirtalo, and Arash) held certificates of incorporation and land titles to community land adjoining Serengeti National Park. In 2012, disputes arose over the exact boundary between the National Park and the villages' land. In August 2017, the Tanzanian government ordered the villages to move, claiming they were within the National Park. When the villagers refused, the government conducted forceful evictions. The villages filed Reference No. 10 of 2017 in the East African Court of Justice alleging violations of the EAC Treaty. The Trial Court granted interim orders restraining further evictions in September 2018. In September 2022, the Trial Court dismissed the Reference, finding the villages had failed to prove the evictions occurred outside the National Park boundaries. The villages appealed, challenging the Trial Court's evaluation of evidence and application of the standard of proof.

Issues

  1. Whether the First Instance Division erred on a point of law by failing to examine and consider the evidence in support of the Reference
  2. Whether the acts, omissions and conduct of the Respondent State violated Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community
  3. Whether the First Instance Division erred on a point of law by applying a standard of proof other than the balance of probability
  4. What remedies, if any, are the parties entitled to

Orders

  • Appeal No. 13 of 2022 allowed.
  • Judgment of the Trial Court dated 30th September 2022 set aside.
  • Reference No. 10 of 2017 remitted back to the Trial Court for hearing and determination de novo of Issue No. 3, Issue No. 4 and Issue No. 5 as framed in the Trial Court.
  • Costs of the Appeal awarded to the Appellants.
  • Costs in the Trial Court incurred up to 30th September 2022 awarded to the Appellants.
  • Costs in the Trial Court to be taxed after hearing and determination of the remitted Reference.

Rules and key headnotes

Evidence — Evaluation of Evidence — Duty of Court to Consider All Evidence
A court commits an error of law when it fails to examine and consider all evidence adduced by parties, including affidavits and oral testimony, without providing valid reasons for disregarding such evidence. Where a court considers only selected evidence and ignores other evidence without explanation, it fails to meet the legal requirement for proper evaluation of evidence and creates uncertainty as to whether justice has been done.
Evidence — Expert Evidence — Rejection of Expert Evidence
Where an expert witness testifies that he can produce documentary evidence of his entry into a country if required by the court, but the court does not request such evidence and subsequently rejects the expert's entire report and testimony on the ground that he failed to prove his entry, the court commits a procedural irregularity. A court has inherent powers and discretion under its rules to require production of evidence essential for the just determination of a matter, and failure to exercise such powers where a witness offers to produce evidence may result in a miscarriage of justice.
Civil Procedure — Inherent Powers of Court — Power to Summon Evidence
A court has inherent powers to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the court. These inherent powers include the power to summon witnesses to produce evidence or documents essential for the just determination of any matter. If a court has power to summon a witness who is not before it to produce evidence, it necessarily has power to direct a witness who is before it to produce evidence that the witness states is available.
Evidence — Standard of Proof — Balance of Probabilities
The standard of proof in civil proceedings before the East African Court of Justice is proof on a balance of probabilities. This standard requires that evidence incline the court to one side of the issue rather than the other, but does not require the party to free the mind of the court of all reasonable doubt or to prove matters with absolute certainty. A court errs in law when it applies a higher standard requiring elimination of all doubt or absolute proof rather than preponderance of evidence.
Civil Procedure — Appeals — Remittal to Lower Court
An appellate court will remit a matter to the trial court for hearing de novo where the trial court has committed errors of law or procedural irregularities that have occasioned an irreparable injustice to the parties. To proceed and dispose of an appeal despite such irregularities would be to condone and perpetuate injustice. The appellate court has power under its rules to remit proceedings to the trial court with such directions as may be appropriate where it is manifest that a miscarriage of justice has occurred.
Civil Procedure — Costs — Costs Follow the Event
The general principle is that costs follow the event unless the court for good reasons otherwise orders. A successful litigant can only be deprived of costs where the litigant's conduct has led to litigation which might have been averted. The award of costs is discretionary but the discretion is a judicial discretion which must be based on facts, and an appellate court will not interfere with the exercise of that discretion unless there are no grounds to support it.
Civil Procedure — Judgments — Requirements for Valid Judgment
A judgment must contain the decision arrived at and the reasons for such decision. It must appear from the judgment that all issues were considered and analysed, otherwise it creates the impression that only part of the submissions were considered. A proper evaluation of evidence involves an objective scrutiny of the entire evidence proffered by the parties, whether oral, documentary, real or demonstrative, with a view to reaching balanced conclusions of fact and applying them to the governing law.

Legislation cited (28)

  • Treaty for the Establishment of the East African Community Article 6(c)
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 15(1)
  • Treaty for the Establishment of the East African Community Article 23(1)
  • Treaty for the Establishment of the East African Community Article 24
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 35A
  • Protocol on the Establishment of the East African Community Common Market Article 15(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 1(2)
  • East African Court of Justice Rules of Procedure 2019 Rule 4
  • East African Court of Justice Rules of Procedure 2019 Rule 24
  • East African Court of Justice Rules of Procedure 2019 Rule 25(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 35(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 63
  • East African Court of Justice Rules of Procedure 2019 Rule 63(4)
  • East African Court of Justice Rules of Procedure 2019 Rule 66(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 79(5)
  • East African Court of Justice Rules of Procedure 2019 Rule 86
  • East African Court of Justice Rules of Procedure 2019 Rule 110(5)
  • East African Court of Justice Rules of Procedure 2019 Rule 120
  • East African Court of Justice Rules of Procedure 2019 Rule 127(1)
  • Village Land Act No. 5 of 1999 (Tanzania) s.3(1)
  • Land Disputes Act Cap 216 (Tanzania) s.3(1)
  • National Parks Ordinance Cap 412 (Tanzania) s.4
  • Professional Survey (Registration) Act Cap 270 (Tanzania) s.11
  • Constitution of the United Republic of Tanzania 1977

Cases cited (23)

  • Martha Wangari Karua v Attorney General of the Republic of Kenya & 2 Others (EACJ Reference No. 20 of 2019)
  • Henry Kyarimpa v Attorney General of the Republic of Uganda (EACJ Appeal No. 6 of 2014)
  • Abba Ltd v Attorney General of the Republic of Rwanda (EACJ Reference No. 18 of 2018)
  • Attorney General of the Republic of Rwanda v Plaxeda Rugumba (EACJ Appeal No. 1 of 2012)
  • Niyongabo Theodore & 2 Others v Attorney General of the Republic of Burundi (EACJ Reference No. 4 of 2011)
  • Angella Amudo v Secretary General of the East African Community (EACJ Appeal No. 4 of 2014)
  • Alcon International Limited v Standard Chartered Bank (EACJ Reference No. 6 of 2010)
  • Alice Nijimbere v Secretary General of the East African Community (EACJ Appeal No. 1 of 2016)
  • Attorney General of Kenya v Peter Anyang' Nyong'o & 10 Others (EACJ Application No. 4 of 2009)
  • UPRONA Party & 2 Others v Attorney General of the Republic of Burundi (EACJ Reference No. 2 of 2004)
  • Simon Peter Ochieng and Others v Attorney General of the Republic of Uganda (EACJ Appeal No. 4 of 2015)
  • Attorney General v Ryan [1980] AC 718
  • K.K. Velusamy v. N. Palaanisamy [2011]
  • Ismail Dabule & 1004 Others v Attorney General of the Republic of Uganda (EACJ Appeal No. 1 of 2018)
  • Commonwealth v Webster 59 Mass (5 Cush) 295 (1850)
  • Darboe & AMP, ORS V. The Republic of the Gambia (ECWICCJIJUDI01120) (2020) ECOWASCJ 1
  • Martha Wangari Karua v IEBC & 3 Others (Petition No. 3 of 2019)
  • Attorney General of the Republic of Kenya v. Hon. Martha Wangari Karua & 2 others
  • Union Trade Centre Limited v Attorney General of the Republic of Rwanda (EACJ Appeal No. 1 of 2015)
  • East African Civil Society Organizations' Forum v Attorney General of the Republic of Burundi & 3 Others (EACJ Appeal No. 4 of 2018)
  • Devram Manji Daltani v Danda (1949) EACA 35
  • Supermarine Handling Services Limited v Kenya Revenue Authority (Civil Appeal No. 85 of 2006)
  • Schuller v. Roback (2012) British Columbia Supreme Court

Full judgment

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Ololosokwan Village Council and Others v Attorney General of the United Republic of Tanzania (Appeal No.13 of 2022) [2023] EACJ 12 (29 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.