adinan almas and others vs mwajabu jongo and another 2021 tzhclandd 863 30 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.583 OF 2021 ADINANI MOHAMED ALMASI.................................................................. 1stAPPLICANT SILVESTER MATHIAS KIHAMBI............................................................. 2ndAPPLICAN HARUFANI SEIF MTASNGENANGE....................................................... 3rdAPPLICAN SILVESTER MATHIAS KIHAMBI.............................................................. 4thAPPLICAN

VERSUS

MWAJABU ABDALLAH JONGOA

ASHA JONGO ABDALLAH SALEHE JONGO ABDALLAH ........................ 1st RESPONDENT

AMINA JONGO ABDALLAH HERICK ERICK MGAYA................................................2nd RESPONDENT

RULING Date of last order: 29.11.2021 Date of Ruling: 30.11.2021 A.Z.MGEYEKWA, J Adinani Mohamed Almasi, Silvester Mathias Kihambi, Harufani Seif Mtasngenange, and Silvester Mathias Kihambi, the applicants herein stand on behalf of 159 people or victims having similar interests and intend to i sue the respondents. The applicants urge this court to allow them to represent other applicants in all necessary steps of initiating and instituting the intended suit. The applicants stated that all applicants are having the same interest. The application is brought under Order I Rule 8 of the Civil Procedure Code Cap. 33 [R.E 2019]. The applicant filed an affidavit deponed by Mr. Walter Godluck, learned counsel for the applicants. The respondents opposed the application by filing a joint counter-affidavit deponent by Mwajabu Abdallah Jongoa, Asha Jongo Abdallah, Salehe Jongo Abdallah, and Amina Jongo Abdallah, the respondents. At the hearing of this application, the applicants enjoyed the legal service of Mr. Walter Godluck, learned counsel whereby the respondents had the legal service of Mr. Frank Chacha, learned Advocate. Mr. Walter was the first to kick the ball rolling. He submitted that in the instant application for Representative suit the applicants are seeking leave for the applicants to sue on behalf of 159 other applicants. The learned counsel submitted that the applicants are

vendors of Vikundi Market. He added that all applicants are having similar interests, they are intending to sue the respondents. The learned counsel went on to submit that the dispute originates from the breach of contract and trespass. He went on to submit that the applicants are lawful tenants in the land in dispute since 2 the 2nd respondent assisted by the 1st respondent to remove the applicants unlawful and unprocedural from the suit land. It was Mr. Walter further submission that since the applicants are many and have the same and common interest against the respondents they have found that it is better to lodge a suit whereby the applicants will represent the other 159 applicants. He added that the applicants had a meeting and appointed the applicants to sue the respondents on behalf of others. On the strength of the above submission, the learned counsel for the applicants urged this court to allow the applicants to sue the respondents on behalf of the other 159 applicants. He claimed that the applicants are seeking for justice since they feel that their rights have been infringed. Opposing the application, the learned Advocate for the respondents commenced his submission by praying for the adoption of the content of counter affidavit to form part of respondents’ submission. Mr. Chacha contended that for the matter of clarity he referred this court to the ingredients of

representative of suit. He complained that the applicant have not shown clear interest on the subject matter. It was his view that the applicants are tenants to the suit land but as per paragraph 2 of their affidavit there is no direct interest on the suit land. He added that there is no clear evidence that the applicants' rights have been infringed as tenants. He went on to submit that there no notice for eviction contrary to the learned counsel that the 2nd respondent is disturbing them. He referred this court to paragraphs 3 and 4 of the counter affidavit. The learned counsel for the respondents continued to submit the second principle of the representative suit, with the permission of the court the representative party must represent other interested parties. He went on to submit that the court is required to check the authentic of the application and whether there is a clear interest in the subject matter. Insisting, he claimed that in the instant application there is no evidence to show that the complainants have direct interest in the subject matter. The learned counsel for the respondents further contended that the minutes of the meeting is an internal arrangement between an unregistered union of vendors at Vikundi Market the same does not comply with the requirement of Order I Rule 8 of the Civil Procedure Code Cap.33, which states that there must be a memorandum of

understanding. He added that the same creates doubt on the authentic of applicants’ signatures, contents of the members since they did not attach their ID’s or business licence. Mr. Chacha did not end there, he lamented that the affidavit is sworn by one person Godluck, the learned counsel while there is no any authorization from other members to allow the advocate to swear on their 4 behalf. He insisted that the applicants were required to swear their own affidavit as per the requirement of Order I Rule 8 of the Civil Procedure Code Cap.33. To fortify his submission he cited the case of Lujuna Shubi Baloonzi Senior v Registered Trustees of Chama Cha Mapinduzi, Civil Case No. 214 of 1992 [1995], HC. On the third ground, he claimed that in order to certify that the person to be represented carries common intention, the 2nd respondent is the owner of the suit land thus he is not required to get permission from the applicant on how to use the land since the 1st to 4th respondents are not bound to sell the suit land to the tenants rather the sale is based on market value. He claimed that there is no proof that the cause of action arises from the breach of the contract since there is no any contract annexure to the application. He claimed that it is not possible for the land owner to trespass on his own land. He spiritedly contended that the key grounds are as per Order I Rule 8 of

the Civil Procedure Code Cap. 33 are not met. In his rejoinder, the learned counsel for the applicants maintained his submission in chief. He stated that the applicants have not registered their business that is why the application is brought under Order I Rule 8 of the Civil Procedure Code Cap.33 he added that the 2nd respondent bought the suit land while the applicants were residing at the suit land. Stressing, Mr. Walter stated that the applicants' affidavit shows that the applicants 5 have interest and goal on the suit land and they are operating as small vendors. Insisting, he stated that all applicants have written their names and signed the minutes. After hearing the submission for both parties the main issue for determination is following is whether the applicants have sufficient reasons to be granted leave to file a representative suit. Before generally canvassing the grounds for application, I have dispassionately considered the so called preliminary point of objection. With due respect to the respondents’ Advocate, I do not think that the preliminary point of objection has been raised at the right instant. Mr. Chacha tried to move this court by raising a point of objection that the learned counsel for the applicants was not required to depone the affidavit. Mr. Chacha was supposed to follow proper procedure, in case the respondents Advocate wanted to challenge the

instant application, then he was supposed to challenge by raising an objection before the hearing of the application. For the aforesaid reasons, the respondent’s point of law is disregarded. Therefore, I proceed to determine the application on merit. This application for representative suit by the applicants is brought under Order I Rule 8 of the Civil Procedure Code Cap.33 [R.E 2019]. The 6 rule provides for requirements for instituting the representative suit. It reads as follows:- 8.-(1) Where there 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 such case give, at the plaintiff's 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. It is a requirement of the law that where there are numerous persons with the same interest who want to appear in the suit on behalf of other interest persons have to do so after obtaining the permission of the court to file the same. In the instant application, the applicants through their learned counsel have moved this Court to allow them

to appear and be heard or defend the case on behalf of other persons with the same interest in a suit. The Court of Appeal of Tanzania has expounded the principle and the relevancy of leave-in representative suits which have more than one person. In the case of KJ Motors & 3 Others Ltd v Richard Kishimba & 7 Others, Civil Appeal No. 74 of 1999, CAT at Dar es Salaam (unreported) held that: - " The rationale for this view is fairly apparent where, for instance, a person comes forward and seeks to sue on behalf of other persons, those other persons might be dead, non - existent or either fictitious. Else he might purport to sue on behalf of persons who have not, in fact, authorized him to do so. If this is not checked it can lead to undesirable consequences. The Court can exclude such 5 possibilities only by granting leave to the representative to sue on behalf of persons whom he must satisfy the Court they do exist and that they have duly mandate him to sue on their behalf.” [Emphasis added]. Applying the above provision of the law in the instant application, it is clear that the other people have authorized the applicants to represent them in this intended suit against the respondents. In the present case, the applicants have prayed for Adinani Mohamed Almasi, Silvester Mathias Kihambi, Harufani Seif Mtangenage, Joseph Kashinje Kashinje, Lucy Paulo Hosea, and Fatuma Kassimu

Mangare to represent 159 people. On paragraph 2 of the applicant's affidavit, they have stated that all of them have similar interests and intend to sue the respondents. They 8 claimed that the cause of action is also similar whereas the cause of action originates from the breach of contract and trespassing. All applicants are claiming that they are legal and lawfully tenants of the land in dispute which has been trespassed by the 2nd respondent with the assistance of the 1st respondent with an intention to remove the applicants unlawfully and unprocedural. It was the respondent’s Advocate's contention that the applicants have not exhausted the legal requirement in the representative suit, he claimed that the annexure does not show applicants interest and its authentic and signatures and contents. It was his view that the application is devoid of merit. I am not in accord with Mr. Chacha that the applicants have no common and similar interests. Reading the applicants' affidavit, the submission made by the learned counsel for applicants, and the minutes of the meeting its clear that the applicants convened a meeting and appointed the applicants to represent other people in the intended suit against the respondents. Therefore, there is no dispute that the other people authorized the applicants to represent them in the intended suit against the respondents. However, I have

noted that in the listed names; three of them namely; Farar Stepheano, Ujamaa Bashiri Ribumbili, Habiba Mohamed did not sign the minutes of the meeting. Thus, I am doubtful whether they are alive or authorized the 9 applicants to represent them in this suit as held in the case of Lujuna Shubi (supra). Thus, in exclusion of the three people, it is my finding that the applicants have met all the requirements for being granted leave to file representative suit against the respondents. In the upshot, the application for the representative suit is allowed. I hereby allow Adinani Mohamed Almasi, Silvester Mathias Kihambi, Harufani Seif Mtasngenange, and Silvester Mathias Kihambi to represent other applicants in the intended case against the respondents. In exclusion of Farar Stepheano, Ujamaa Bashiri Ribumbili, Habiba Mohamed, who did not sign the minutes. No order as to the costs. Order accordingly. Dated at Dar es Salaam this date 30th November, 2021. A.Z.MGEYEKWA

JUDGE 30.11.2021 Ruling delivered via audio teleconference whereas Mr. Walter Godluck, learned counsel for the applicants was remotely present. C MGE^KWA //&'/ v. A\ JUDGE 30.11.2021 47