abdallah a mkongo and 3 others vs the director general tanzania building agency and 3 others 2012 tzhclandd 120 22 march 2012

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPLICATION NO. 49 OF 2012 ABDALLAH A. MKONGO JUM BET. LILLA .APPLICANTS HUSSEIN A. BATENGA ATHMANI KAGAWA 81 OTHERS VERSUS THE DIRECTOR GENERAL TANZANIA BUILDINGS AGENCY...........................................1st RESPONDENT THE PERMANENT SECRETARY MINISTRY OF INFRASTRUCTURE & DEVELOPMENT............ 2 nd RESPONDENT PERMANENT SECRETARY, MINISTRY OF LANDS & HUMAN SETTLEMENT DEVELOPM ENT.........3RD RESPONDENT THE ATTORNEY G ENERAL................................................... 4™ RESPONDENT RULING MUTUNGI. J. This ruling is subject to a preliminary objection raised by Mr. Mwakitalu learned State Attorney representing the Defendants namely Tanzania Building Agency, Permanent Secretary Ministry of Infrastructure, Perm anent Secretary, Ministry of Land and the Honorable Attorney General, first, second, third and fourth Defendants respectively. The learned State Attorney has raised the Prelim inary Objection upon the Plaintiffs Abdallah A. Batenga, Athuman Kagwa and 81 others being the first, second, third and fourth Plaintiffs dully represented by Dr. Mvungi learned counsel having filed a Land case together with application for injunctive orders under a certificate of urgency. The application for injunctive orders has been brought by way of a cham ber sum m ons supported by an Affidavit under the ambit of Order XXXVII Rule 1 and 2 and Section 95 of the Civil Procedure Code Cap 33 R:E 2002 and any other enabling provision of law. Having been served with the Plaint and the cham ber sum m ons the Defendants proceeded to file their written statem ent of Defendant, a counter Affidavit together with a prelim inary objection subject of this ruling. In the preliminary objection filed the defendants have raised two limbs of objections. These are as here under:- 1) The application is incom petent and bad in law for being accompanied by a defective Affidavit. 2) The plaint which the application is based is defective for contravening the provision of O rder 1 Rule 8 (I) of the Civil Procedure Code (Cap 33 R:E 2002). Mr. Mwakitalu learned State Attorney in support of the prelim inary objection raised averred in court starting with the first limb that, the supporting Affidavit is defective for contravening Order XIX Rule 3 of the Civil Procedure Code Cap 33 (R:E 2002) in that contrary to what is known as a general principle in civil litigation the Affidavit being a substitute of oral evidence, it should contain facts, The Applicants have instead filed an Affidavit containing argument, opinion, subm issions or conclusions. The learned counsel cited the case of Uganda Versus C om m issioner of Prisons EX - Parte Matovu EALR 1966 E.A to bring the point home. The learned State Attorney proceeded to pin point paragraph ten and twelve of the supporting Affidavit as those clearly contravening the provisions of order XIX rule 3 of the Civil Procedure Code Act Cap 32 R:E 2002. The learned State Attorney proceeded to elaborate further that what is stated in paragraph ten as regards the change of land use am ounts to fraud and the first and second Respondents are liable and the fraud was accordingly particularized. Com m enting on paragraph twelve the learned State Attorney subm itted that the deponents are arguing that the Applicants have a triable m atter in the main case and they have a very big chance of success. The above notwithstanding the learned State Attorney invited to Court to look at paragraph two of the Affidavit in that the deponents are affirm ing that they have an order from this Court allowing them to institute a representative suit which is un numbered yet they have attached leave in respect of another suit all together. In conclusion on this first limb the learned State Attorney summed up by subm itting that on the basis of the foregoing as the Affidavit is defective then the whole application is rendered incom petent and the same should be struck out. Subm itting as to the second limb the learned State Attorney raised a point of Locus standi in that the Applicants lack the Locust standi in instituting the suit. He explained that the Applicants have filed the present land suit christened No. 49 of 2012 on behalf of 81 others w ithout the leave of the Court. Mr. Mwakitalu further subm itted that Order 1 Rule 8 of the Civil Procedure Code Cap 33 R:E 2002 is the enabling law in that, one party can sue on behalf of others but after obtaining the leave of the Court. The learned State Attorney submitted that the leave is m andatory for the simple reason that the litigants must be known and cited the case of K.J. Motors and 3 others Civil Appeal No. 74 of 1999 of fhe Court of Appeal in support thereof. In respect of the filed land case, the learned State Attorney submitted that it was instituted w ithout the leave of the Court. What appears in the Court is the leave obtained in relation to Land case No. 213 of 2010. He clarified further the Land Case No. 213 of 2010 had been struck out by this Court and so it follows by the Court strucking out the sam e all the orders therein also go with it. In view of the above foregoing submission the learned State Attorney prayed that the application be struck out for Lack of locus standi of the Applicants. In reply there to Dr. Mvungi straight away responded that the accom panying Affidavit does not contravene Order XIX Rule 3 Civil Procedure Code Act Cap 33 as w hat has been deponed by- the Applicant in paragraph ten are facts known to the Applicants. He clarified that the change of the land use was done by the Respondents while in full knowledge that there exists contracts between the Governm ent and Applicants. As the Attorney General had not controverted the said fact then this am ounts to fraud of which they have in black and white particularized and it is thus not a m atter of arguments but a m atter of fact. On the contents to be found in paragraph 12, Dr. Mvungi submitted that it is a fact known to the Applicants that they have a chance of success and this is why the Respondents have not raised a preliminary objection on the plaint. The Applicants have further stated that they will suffer irreparable loss if the properties are demolished which in reality is a fact known to the Applicants. Be as it may be, Dr. Mvungi went ahead to state that should the Court find that paragraph TO and 12 are in contravention of the laid down provisions of law then the court can proceed to struck out the same as it will not alter the meaning of the Affidavit and there would be no harm done to it. As regards the second limb Dr. Mvungi submitted that they have attached leave granted in m iscellaneous application No. 53/2010 which was issued in order to institute the Land Case No. 213/2010 the same was struck out and as a result of instituting the present plaint they have made use of the same. Even Considering the plaint that was struck out, it was due to other grounds but not basing on the leave for a representative suit. It follows therefore that once a suit had been struck out the leave does not collapse with it. This is why Dr. Mvungi concluded that the Applicants have a locus standi in this matter. Having gone through the well argued and elaborate subm issions from both sides I will first and forem ost deliberate upon the second limb of the prelim inary objection raised in relation to the locus standi of the Applicants in the filed suit w hereby the plaint is alledged to have contravened O rder I Rule 8 (2) of the Civil Procedure Code Cap 33 (R:E 2002). The same reads “One person may sue or defend on behalf of all in same interest, “(1) Where there are num erous person having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued or may defend in such suit, on behalf of or for the benefit of all persons so interested, but the Court shall in such case give, at the Plaintiffs expense, a notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisem ent, as the court in each case may direct” Reading through the lines of the above provision, it is obvious that in a representative suit leave should be sought from the Court in a suit intended to be filed first. This is what was laid down as a principle in the case of Luiuna Shubi Ballonzi Senior Versus Registered Trustees of Chama cha Mapinduzi Civil Case No. 212 of 1992 (1996) T.L.R pgge 204 by Samalta J.K (as he then was) quoting the words of the learned authors of Sir John W oodroffe and Am eer Alis Code of Civil Procedure, 3rd edition Vol. II that, “A representative suit cannot be said to have been validly instituted unless and until the mandatory procedures of Order I Rule of the Civil Procedure Code is complied with” The authours proceed to state” it is mandatory and not merely directory and is an essential pre-condition for the trial in a representative suit". The Rule 8 to Order 1 Civil Procedure Code Act Cap 33 R:E 2002 provides two conditions nam ely (1) the perm ission of the Court should be obtained (2). The court should at the expense of the Plaintiffs, issue notice of the institution of the suit to all such persons either by personal service or where from the number of persons, or any other cases such service is not reasonably practical, by public advertisem ent as the court may direct. I have, noted with concern that the Applicants do not dispute the condition of seeking leave but it is alleged that they infact have sought leave from this Court but it was in regards to a different case to be precise Land Case No. 213 of 2010 which was struck out and so they have filed the present suit upon relying on the said granted leave. With due respect to the Applicants counsel I proceed to find this piece of subm ission ridiculous and if stretched further will end up in the abuse of the Court process. As was rightly submitted by the learned State Attorney I concur with the said subm ission that the leave that is granted by the Court should not be used in succession to other suits filed. As already noted the leave sought in representative suit is to be able to advance the claim of a group of persons who are to be known before the Court trying the case. It follows therefore as each case is to be tried on its own merits, the leave sought in a suit and once such suit or application is struck out it also goes with the suit. I further proceed to find that the leave that was issued earlier was done so in a suit which had necessitated its grant. The same was not done in order for it to be used in this present Land case. I am persuaded by the finding of my sister Judge Buheshi as (she then was) in the case of Mussa Hanzir Shah and two others Versus P a r es salaam City Council (High Court of Tanzania) Misc. Civil Cause No. 20 of 1995 P a r es salaam Registry. Where she held, The law allows representative suits, but any application for leave to bring a suit in this way should be entertained by the court that will hear the suit in due course. It follows then a fresh leave should have been sought in the present suit to enable the court to hear it in due course. In the upshot, I find indeed that there is no leave sought and granted as for as the present suit is concerned and thus the Applicants have no locus standi in this m atter and as such the suit stands incom petent in law and is to be struck out. This takes me back to the first limb of the prelim inary objection which relates to the defects to be found in paragraph ten and twelve of the accom panying Affidavit paragraph 10 states, “The changing of Land use of the Applicants Land whilst in full knowledge of the existing contracts with the Applicants amounts to fraud for which the first and second Respondents are liable ” If one takes the literal meaning of the words to be found in this paragraph will find that they contain or are words which are conclusive in nature. It is not clear of how the Applicants came to know of the same and if they can prove the same as provided by Order XIX Rule 3 (1) of the Civil Procedure Code which states, “Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on introductory applications on which states of his belief may be admitted”. Paragraph 12 sails in the sam e boat and it reads as follows: - “Applicants have a triable matter in the main case which they have a big chance of succeeding and they stand to sustain irreparable loss that cannot be atoned by compensation if they are not prevented from executing their unlawful intentions” The above paragraph contains inform ation on extraneous matter which are prayers or legal argum ents or conclusions. This is contrary to what was laid down in the case of Uganda Versus com m issioner for prisons Exparte Matovu (1966) E.A.C cited by the Respondents which held, “.... An affidavit for use in Court, being a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes either from his own personal information or from information which he believes to be true, such an must not contain extraneous matters by way of objection or prayer or legal argument or conclusion” In all fours the accom panying Affidavit as properly subm itted by the learned State Attorney of the Respondents contravenes the provisions of Order XIX Rule 3 of the Civil Procedure code Cap 33 R:E 2002. What then is the fate of the Affidavit in the circum stances as narrated above? Dr. Mvungi had prayed that the court should proceed to struck out the two paragraphs. I proceed to state that this is not the proper procedure, once an Affidavit is termed to contain defects it renders the whole application incom petent as it has no legs to stand on. It is not the duty of the Court to start deleting the defective paragraphs the only noble duty the Court has is to strike out the application filed for being accompanied by a defective Affidavit. The above said not only is the application filed incom petent but also the Plaint upon which the application is based is also incom petent. I thus struck out the suit on the same grounds with costs. B.R. MUTUNGI JUDGE 22/3/2012 Read this day of 22nd day of March., 2012 in the presence of Dr. Mvungi for Applicants and Miss Ngoro for the Respondents. B.R. MUTUNGI JUDGE 22/3/2012