F Bahati, J.: The dispute in this case is whether the respondent was entitled to build on the appellant's father's land. The Primary Court held that he was not entitled. But the District Court held that he was entitled because he had been given the plot on which he built the house by the village authorities.
G In his submission, Mr. Maira, learned counsel for the appellant, said that the village government had no power to allocate land which is not vacant. In reply to that, Mr. Marando, learned counsel for the respondent argued that the land had fallen vacant after the appellant's father died and that the village government then allocated it to the H respondent. Mr. Marando further submitted that the appellant should have asserted ownership of his land against the village government and that the appellant did not even have letters of administration to administer his father's estate. He concluded that the proceedings in the Primary Court should be looked into as they appear to be irregular I in view of the summing up made which is contrary to government notice No.2 of 1988.
In a further reply, Mr. Maira submitted that the land never became vacant upon the demise of the appellant's father A and that the appellant was claiming as a successor and that his title was not in dispute. With regard to GN. No.2 of 1988, Mr. Maira said that the summing up did not occasion a failure of justice.
I accept the submission that the village government may allocate land to anyone. But that does not mean that the B village government has power to taken away land from one person and give it to another. Although Mr. Marando cited the Ujamaa Village Act, he did not specify which provisions in the Act empowered the village government to allocate land belonging to one person to another. C
Therefore prima facie the allocation of the land to the respondent was ultra vires and therefore void. Secondly, there can be no questioning of the appellant's competence and his relations to succeed their late father.
This was not in dispute in the courts below and it cannot be made an issue now. As for the summing up which was D made in contravention of GN.2 of 1988, in view of the fact that it did not occasion any failure of justice the irregularity is curable.
Appeal allowed. E