20120322 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPLICATION NO. 49 OF 2012 ABDALLAH A. MKONGO JUMBE T. LILLA .................. APPLICANTS HUSSEIN A. BATENGA ATHMANI KAGAWA 81 OTHERS VERSUS THE DIRECTOR GENERAL TANZANIA BUILDINGS AGENCY .................................. 1sr RESPONDENT THE PERMANENT SECRETARY MINISTRY OF INFRASTRUCTURE & DEVELOPMENT .......... 2N° RESPONDENT PERMANENT SECRETARY, MINISTRY OF LANDS & HUMAN SETTLEMENT DEVELOPMENT ...... 3R 0 RESPONDENT THE ATTORNEY GENERAL ............. ........................... 4TH 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 1 Secretary Ministry of Infrastructure, Permanent Secrerary, Ministry of Land and the Honorable Attorney General, first, second, third and fourth Defendants respectively. The learned State Attorney has raised the Preliminary 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 wi.th application for injunctive orders under a certificate of urgency. The application for~injunctive orders has been brought . by way of a chamber summons 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 chamber summons the Defendants proceeded to file their written statement of Defendant, a counter Affidavit together with a preliminary objection subject of this ruling. 2 . .. . ,. J . In the preliminary objection filed the defendants have raised two limbs of objections. These are as here under:- 1) The application is incompetent 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 Order l Rule 8 (I) of the Civil Proced_ure Code (Cap 33 -R:E 2002). Mr. Mwakitalu learned State Attorney in support of the preliminary objection raised averred in court sta'rting with the first limb that, the s-upporting 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, submissions or conclusions. The learned counsel cited the case of Uganda Versus Commissioner of Prisons EX - Porte Matovu EALR 1966 E.A to bring the point home. 3 ' , 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 amounts to fraud and the first and· · second Respondents are liable and the fraud was accordingly particularized. Commenting on paragraph twelve the learned State Attorney submitted that the deponents are arguing that the Applicants have a triable matter in the main case and they have a very big chance of success. The above notwithstanding the learned Stat~ Attorney • ·- ·._:?--_:' invited to Court to look at paragraph two of the Affidavit in that the deponents are affirming 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. 4 ' I In conclusion on this first limb the learned State Attorney summed up by submitting that on the basis of the foregoing as the Affidavit is defective, then the whole application is rendered incompetent and the same should be struck out. Submitting- as to the second limb the learned State Attorney raised a point of Locus standi in that the Applicants lack the Locust stondi 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 without the leave of the Court. Mr. Mwakitalu further submitted that Order 1 Rule 8 of the Civil Procedure Code Cap 33 R:E 2002 is the enabling law in that, one party can su.e on behalf of others but after - obtaining the leave of the Court .. "·· The learned State Attorney submitted that the leave· is mondatory for the simple reason that the litigants must be known and cited the case of K.J. Motors and 3 others Civil 5 I ' - - - - - - - - - - - · - - - - - - -- --- - ------------------ --- Appeal No. 74 of 1999 of the Court of Appeal in support thereof. In respect of the filed land case, the learned State Attorney submitted that it was instituted without the leave of the Court. What appears in the Court is the leave obtained . in .{~lotion to Land case No. 213 of 2010. He clarified further the Land Cose No. 213 of 2010 hod been struck out by this Court and so it follows by the Court strucking out the some oil 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 Lock of locus stondi of the Applicants. In reply there to Dr. Mvungi straight away responded that the accompanying Affidavit does not contravene Order XIX Rule 3 Civil Procedure Code Act Cop 33 as what .. hos been deponed by. the Applicant in paragraph ten ore 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 Government and Applicants. As the Attorney General hod 6 not controverted the said fact then this.amounts to fraud of which they have in black and white particularized and it is thus not a matter of arguments but a matter of fact. On the contents to be found in paragraph 12, Dr. Mvungi submitted that it is a fact known to the Applicants that ithey h·ave 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 1n 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 10. and 12 ore 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 t~_e Affidav_it and there would be no harm done to it. As regards the second limb Dr. Mvungi submitted that they have attached leave granted in miscellaneous application ·No. 53/2010. which was issued in order to 7 ---·-----·---·-------. 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 submissions from both sides I will first and foremost deliberate upon the second limb of the preliminary objection raised in relation to the locus standi of the Applicants in the filed suit whereby the plaint is alledged to have contravened Order 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 Jhere are numerous 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 8 such case give,, at ttie 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 advertisement, 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 Lu·iuna Shubi Ballonzi Senior Versus Registered Trustees of Chama cha Mapinduzi Civil Case No. 212 of 1992 (1996) T.L.R page 204 by Samalta J.K (as he then was) quoting the words of the learned authors of Sir John Woodroffe and Ameer 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 9 proceed to state" it}s 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 namely ( 1) the permission 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 pract-ical, by public advertisement as the court may direct. i I have. noted with concern that the Applicants do hot 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. 10 With due respect to the Applicants counsel I. proceed to find this piece of submission 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 submission 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 om persuaded by the finding of my sister Judge Buheshi as (she then was) in the case of Mussa Honzir Shah and two others Versus Dar es salaam City Council (High Court of Tanzania) Misc. Civil Couse No. 20 of 1995 Dar es salaam Registry. Where she held, 11 The law allows representatiye 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 inde~_dJhot there is no leave sought and granted as for as the present suit is concerned and thus the Applicants hove no locus standi in this matter and as such the suit stands incompetent in _law and is to be struck out. This takes me bock to the first limb of the preliminary objection which relates to the defects to be found in paragraph ten and. twelve of the-accompanying 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 12 .. 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 same 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 13_ are not prevented from executing_ their unlawful intentions" The above paragraph contains information on exfraneous mqtter which are prayers or legal arguments or conclusions. This is contrary to what was laid down in the case of Uganda Versus commissioner 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 persona-I 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 accompanying Affidavit as properly submitted by the learned State Attorney of the Respondents 14 ... 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 circumstances 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 incompetent 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 incompetent but also the Plaint upon which the application is- based is also incompetent. I thus - . . struck out the suit on the . ~ same grounds with-costs. 15 i', -------- i,-·--- 1 B.R. MUTUNGI JUDGE 22/3/2012 Read this day of 22 nd 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 16