CIVIL APPLICATION NO 08 07 OF 2021 AHMADI ISSA CHINGANGA 2 OTHERS VS TANZANIA PORTS AUTHORITY TPA 4 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA CIVIL APPLICATION NO. 08/07 OF 2021 AH MADI ISSA CHING'ANG'A...................................................1st APPLICANT SELEMANI ABDALLAH KANULA A N D ................. ................... 2nd APPLICANT MOHAMED HAMISI MANDITI ON BEHALF OF 168 OTHERS.,3rd APPLICANT VERSUS TANZANIA PORTS AUTHORITY (TPA).................................1*t RESPONDENT MTWARA DISTRICT COUNCIL.................. .......................... 2nd RESPONDENT THE COMMISSIONER FOR LANDS................. ..................... 3 rd RESPONDENT THE ATTORNEY GEN ERAL..................... ............ ....... .......4th RESPONDENT (Application for extension of time to serve the respondents copies of notice of appeal and a letter requesting to be supplied with copy of the proceedings of the High Court of Tanzania at Mtwara) (Nqwembe. J.1 dated the 30th day of November, 2020 in Land Case No. 05 of 2019 RULING 10th & 28th June, 2024 RUMANYIKA. J.A.: The applicants, Ahmadi Issa Ching'anga, Selemani Abdallah Kanula and Mohamed Hamisi Manditi the 1st, 2nd and 3rd applicants respectively, on behalf of 168 Others had lodged this application by way of notice of motion. It is predicated on Rule 10 of the Tanzania Court of Appeal Rules, 2009 ("the Rules") supported by an affidavit sworn by Ahmadi i Issa Ching'ang'a who is the first applicant herein. They seek the granting of an extension of time within which to serve the respondents documents namely, notice of appeal and copy of their letter requesting for copy of the proceedings in the High Court for appeal purposes. They have fronted two grounds of application, as set out in the notice of motion. Those grounds are paraphrased to read as follows: one, that, the respondents' attemp to serve the Solicitor General at Mtwara was refused. Since, the applicants were directed to serve the respondents through Head Offices in Dar es Salaam and two, that, due to the prevailing heavy rains of those days, some floods had hit between 7th and 13th January, 2021 so, the applicants' representative could not travel and effect service timely in Dar es Salaam. To appreciate what prompted the filing of the present application, it is important to depict, albeit briefly, the background to it. It goes thus: The applicants had sued the respondents before the High Court of Tanzania at Mtwara (the trial court) in Land Case No. 5 of 2019. In that suit, the applicants sought, among other things, one, a court's declaratory order that they are rightful owners of the pieces of land comprising Plot No. 1/1 Port Additional Area, Msanga Mkuu-Ngwale (the suit land), and two, that, the survey on the suit land, the subsequent 2 registration and reallocation were unlawful. Since, the respondents did not let them participate in the purported allocation of the suit land to the 1st respondent on 12th December, 2007. The respondents, in their Written Statement of Defence refuted all the claims. They as well successfully raised a Preliminary Objection that, the suit is time barred. Since, owners of the suit land were compensated between the years 1999 and 2001 and that, the cause of action arose in 2001 latest, when the last person was compensated. The suit, therefore, was dismissed for being time barred on 30th November, 2020. Dissatisfied by that decision, the applicants filed a notice of appeal on 29th December, 2020.They wrote a letter to the Registrar requesting to be supplied with the copy of the proceedings, the same day. However, the applicants failed to serve copies of the said documents to the respondents within the prescribed time, hence the instant application. In the course of hearing of the application, I invited the parties' learned counsel also to address me on the competence of the application. Since, it was purportedly filed at the instance of the applicants on behalf of 168 others. However, its supporting affidavit was sworn by the 1st applicant only. It is not disputed that, the respondents .3 had filed an affidavit in reply, sworn by Lucy Kimaryo, a learned State Attorney of the office of the Solicitor General resisting the application. At the scheduled hearing of the application, the applicants were represented by Mr. Ndanu Emmanuel, learned counsel while the respondents were represented by Ms. Getruda C. Songoi, Mr. Abubakar Msangi, Ms. Lucy Kimaryo and Mr. Emma Ambonisye, all learned State Attorneys. Mr. Emmanuel, a part from showing good cause, he contended that, only the affidavit sworn by the 1st applicant only is sufficient, he is conversant with the application. Since he is the one who had followed up the case from scratches. Ms. Songoi had no any significant reply on the issue of competence. Rather, she embarked on the merit of the application. On my part, I will discuss the issue of competence of the application only, as it is capable to dispose of the application. Upon hearing the submissions of the parties' learned counsel, the issue thus, is whether the application is competently before the Court. It is common ground that the filing of this application is guided by Rule 48 (1) of the Rules, which stipulates that, applications of this nature shall be by way of notice of motion supported by affidavit. And that, the supporting affidavit would be sworn by one or more applicants or any other person having knowledge of the facts deposed, as envisaged under rule 49 (1) of the Rules. It reads as follows: "Every format application to the Court shai! be supported by one or more affidavits o f the applicant or o f some other person or persons having knowledge o f the facts." Although the present application has been preferred by the applicants on behalf of 168 others, as observed earlier, it is supported by an affidavit sworn by the 1st applicant only, that, he had the mandate of the fellows to do so. The import of Rule 48(1) of the Rules, requires thus, that, this application be supported by either three affidavits or by an affidavit jointly sworn by the applicants, or, though quite unusually, by a total of 171 affidavits. It is common knowledge that, unlike in informal applications where evidence is given viva voce, formal applications, as this one, are supported by evidence which is lead by way of affidavit(s) or joint affidavits, as the case may be. It follows therefore, that the issue of the deponent being mandated by fellow(s) to swear/affirm an affidavit(s) cannot arise, as it may bring in hearsay evidence which is not admissible. Put in other words, the 1st applicant's affidavit is too incompetent to support the instant application. We note that, the requirement of a joint affidavit may sound cumbersome and bureaucratic. However, I wish to stress that, if chances of an applicant to by-pass fellows cannot be so minimized by the restrictions above, then the possibilities of executing the resultant decision being carried out against strangers would not be ruled out. It is trite that, failure to append affidavit/affidavits to cater for all applicants in a matter is fatal. Since, by any stretch of the imagination, that defect cannot be cured by invoking the overriding objective principle. The defect noted above thus, renders the application incompetent before this Court thus, liable to be struck out. See-our decision in The Registered Trustees of St. Anita's Greenland Schools (T) and six Others v. Azania Bank Limited, (Civil Application No. 168/16 of 2020) [2022] TZCA 334 (9 June 2024: TanzLII). In that application, seven applicants had applied seeking an order for stay of execution but the notice of motion was accompanied by an affidavit sworn by the 3rd applicant only on behalf of the 1st applicant. In those circumstances, the Court found the supporting affidavit to have such a fatal ailment which could not be grossed over. Further, the Court observed that: "the omission renders the application incompetent and thus it cannot be partly saved as urged by Mr. Vedasto. In the event; the incompetent application is hereby struck out with costs. " The Court followed the decision above in ABSA Bank Tanzania Limited and Another v. Hjordis Fammestad (Civil Application No. 695/16 of 2022) [2024] TZCA 246 (2.6 March 2024: TanzLII) where the we had been faced with an akin situation. Also see- LRM Investment Company Limited and 5 Others v. Diamond Trust Bank Tanzania Ltd, Civil Application No. 418 of 2019 [2022] TZCA 476 (25 July 2022: TanzLII). Where the Court held that; "The ailment o f the application not being supported by affidavit o f the fifth and sixth applicants renders the application incompetent". We stress that, such an incurably defective affidavit, be it incorrectly attested or where there is no affidavit sworn by any other deserving party (s) it is not a mere procedural illegularity. Since, the defect goes to the root of the matter. Moreover, and without prejudice to the foregoing, the present notice of motion which reads the applicants and "168 others" did not disclose who those 168 others are. This is yet a fatal ailment, as the Court has pronounced itself in a number of its previous decisions. One of them being in Mohamed Issa Mtalamile and Others v. Tanga City Council and Another (Civil Appeal 376 of 2022) [2023] TZCA 17306 (6 June 2023: TanzLII) where the Court held; "... They have, instead, been referred to as "For and on behalf of Others 144 appellants." This is where the problem lies. While we appreciate that there could be a joint notice o f appeal, ....we do not condone... for the parties to be generally described as "and others" as it appears in the present appeal. And this stems from the settled position that representative suits or appeals are not applicable in the Court o f Appeal." (Emphasis added) Having observed as above, that the application is incompetent before the Court, it follows, therefore that, the hearing of the merits of the application would now save academic purposes only. Consequently, the application stands to be struck out as, I hereby do, as the Court held 8 in Tatu Mgetta & Another v. Mwanza Sattelite Cable TV (Civil Appeal 142 of 2019) [2022] TZCA 779 (6 December 2022: TanzLII) that: "a court o f law or quasi-judicial board is not enjoined to determine on merit any incompetent matter. In case o f any incompetent matter being placed before it, the remedy is to strike it out..." In the up short, the application is struck out with costs. DATED at DAR ES SALAAM this 27th day of June, 2024. S.M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 28th day of June, 2024 in the presence of Mr. Ndanu Emmanel, learned counsel for the Applicant and Ms. Lucy Kimaryo, learned State Attorney for the Respondent; is hereby certified as a true copy of the original. 9