20140812 TZCA Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE N0.175 OF 2013 ALICHERAUS MWESIGA ................... ................. .... 1 sTPLAINTIFF FATUMA RAMADHAN MSENGI. .............................. 2N°PLAINTIFF CHRISTIAN KAONEKA ........................................... 3RDPLAINTIFF STELLA MWANANSA0 ............................................ 4THPLAINTIFF ELIASELI AMO NI.••••••••••••••••••••• a•••••••••••••••••••••·•••••••• 5THpLAJNTIFF MTETEZI COMPANY LIMITED ................................ 6THpLAINTIFF V TANZANIA PORTLAND CEMENT COMPANY LTD ...••••••.••••••••.••..••.•••..•••.••••••.•••••• 1 STDEFENDANT KINONDONI MUNICIPAL COUNCIL .................. 2Nn DEF'ENDANT NATIONAL ENVIRONMENTAL MANAGEMENT . COUNCIL (NEMC) ... ......................................... . 3RD DEFENDANT Date of last Order 4/6/2014 Date of Ruling 12/8/2014 0 t I r'· ~ (9 C'f'C \:"\~~-h~ c~ ~ RULING ~~~-vc:::.. s: '-~ \Jv".U. -.::r-- 1....--v,e_ - A.Shangwa. J. s·U'\:+ -. \ .,, C ~ •-,""~➔ In this case, counsel for the 1st defendant company Mr. Fungamtama, Advocate, the Principal Officer of the 2 nd ., ,. ..,. . . , ··1:· ~-:::, "\ •.. :, :; ;',? ,', ):- ~._·Ji;·r · ,:>~:;.,:; - ,. ·• i,'f'~T·~i~r• •~~,.: ~- ' , t 2 defendant council, Mr. Mahenge, Advocate and counsel for the 3rd defendant council, Mr. Rwekiza, Advocate have raised points of preliminary objection against the suit which was· presented for filing by counsel for the plaintiffs Dr. Rugemeleza Nshala on the 30 th day of August, 2013. Mr. Fungamtama has raised one point of preliminary objection that the suit is not n~aintainable . for ' non . compliance with 0. Ir. 8 (1) of the Civil Procedure Code Cap 33 R.E. 2002. Mr. Mahenge has raised two points of preliminary ._ objection namely that the 6 th plaintiff did not issue a 30 days' notice to sue the 2 nd defendant contrary to S. 106 of the Local Government Urban Authority Act Cap 288 R.E. 2002 and that the 6 th plaintiff being an unnatural person and the - ~ .,. ~._.· . . ·~ ., .. ,...... _-,·.). ·-. ;. . \ ~ ' ~ . . ~-·: . ·j .' .-~ _.:.,;, -· •:t.~---~ . ' : ·,:.: . • ·- _.. ; ~.- • ~ ">.' • • • - •• :•.··: . -_ ' \•,;._\~'; 0 ,., } 5 those who cannot defend themselves or ignorant of their plight and cause and on public interest. As it can be seen from. paragraph 35 of the plaint, the plaintiffs are not suing in their individual capacities alone but are suing also on behalf of numerous other persons having the same interest in the suit namely to protect their environment from health hazards alleged to be caused by the 1st defendant namely Tanzartia Portland Cement Company Limited. Mr. Fungamtama submitted that as the plaintiffs are suing in a representative suit~ ·before suing the defendants, leave of this Court was necessary for them to sue on behalf of or for the benefit of other persons having the same interest in the suit. I I 6 In support of his submission, he referred the Court to the case of Lujuna Shuhi Ballonzi, senior V. Registered Trustees of Chama cha Mapinduzi (1996) TLR at page 212 where Samatta, JK as he then was held inter-alia that a person cannot seek to advance the claims of a group of persons without adopting the procedure laid down in Rule 8. of 0.1 of the Code. That is without first obtaining leave of the Court to sue in a representative character. I agree with the submission made by Mr. Fungamtama. Asit was held by Samatta,-JK as he then 'Nas in the above· referred case, a representative suit which is instituted without first obtaining leave of the Court such as the plaintiffs' case herein. must - be struck . out for being incompetent in law. 7 I agree with Mr. Fungamtama also in his rejoinder submission to the reply made by Dr Rugemeleza Nshala to his point of preliminary objection that the Case of Rev. Christopher.Mtikila V. Attorney General (1995 ) TLR 31 and the case of Julius Ishengoma Ndyanabo V. Attorney General, Civil Appeal NO. 64 of 2001 · are distinguishable from the suit between the parties. I agree with him because whereas the question in both cases was whether the plaintiffs had a locus standi to sue in a matter of public interest relying on Article 26 (2) of the Constitution· of the United Republic, the question in this case is not whether the plaintiffs have a locus standi to :sue the defendants. It is whether the plaintiffs in .their individual capacities can sue on behalf of numerous .other persons to · protect their ... ( environment without first obtaining leave of this court to do so and if the answer is no whether the suit is maintainable. 8 V Having agreed with Mr. Fungamtama's submission on his point of preliminary objection, I hold that the plaintiffs' suit is not maintainable for being incompetent in law. Much as I would have liked to deal with the points of preliminary objection against the suit raised by Mr. Mahenge for the 2 nd defendant and the point of preliminary objection raised by Mr. Rweikiza for .the _3 rd defend ant, I have decided not to do so because the point of objec_tion- raised by Mr. Fungarntama for 1st defendant against the hearing of the suit has closed the door.for further. arguments. I uphold his poirit and I strike out the plainti~fs' suit .. Hovvever; I order that each party should bear its own costs~ 12/8/2014 . .. , ~ :· ... - .• ~"· -.:- ·< . r-~ .• .,.,.-s.:..::t" •. _;;.,_•~-,..- .&(.- ·,: ,,_,_=,_~ ..." '···•~.,._'.,,; ,•.,,,. ',,+-,-,: • -·~.,.-.-:,.,'...,,,,.~>-""..,:~,::P'l"~,.;.'..;.-,.., •._.::,'.",.;,':"~- ,j.- .,,...,,.,,,.,:_.'· :J_·,~;.:;_ ;··_,~"'w'.'·::''""•~t ·••~:~~"" . :·•::~t'.\"'': • l . 9 Delivered in open Court this 12 th day of August, 2014 in the presence of Miss Glory Kilawe, Advocate 1· for the plaintiffs and in the presence of Mr. Fungamtama, Advocate for 1st defendant. .. . , .. ~ ., .. : ··.- .: . . .