20140812 TZHC 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 MWANAN SAO ...•••...•.••••••..•...••....•••.•••.••.••.. 4 ™PLAINTIFF -ELIASELI "AMONI .....................•.........•......•..••....... .. STHPLAINTIFF MTETEZI COMPANY LIMITED ............................... -.6™PLAINTIFF V TANZANIA PORTLAND CEMENT COMPANY LTD •••.••.•••..••.•••...•.•...•.•..•....•.•....•... 1 STDEFENDANT KINONDONI MUNICIPAL COUNCIL .................. 2N° DEFENDANT NATIONAL ENVIRONMENTAL MANAGEMENT COUNCIL (NEMC) ............................................. 3RD DEFENDANT - Date of last Order 4/6/2014 Date of Ruling 12/8/2014 RULING A.Shangwa. J. In this case, counsel for the 1st defendant company Mr. Fungamtama, Advocate, the Principal Officer of the 2 nd 2 defendant council, Mr. Mahenge, Advocate and counsel for the 3 rd defendant council, Mr. Rwekiza, Advocate have raised points of preliminary objection against the suit which was presented for filing by counsel for the plain tiffs 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 maintainable 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 3 ----- - - - - - suit being not a representative suit-li:as-no--cause- -of-act-ie>n- -- -- - against the defendants. Mr. Rweikiza has raised one point of preliminary objection that the matter is pre-mature before the Court of law. Let me start with a point raised by Mr. Fungamtama namely that the suit is not maintainable for non compliance with 0.1 r. 8 ( 1) of the Civil Procedure Code Cap 33 R.E. 2002. You will agree with me that no ruling can be made on this point without first looking at the contents of 0.1 r. 8 ( 1) of the Civil Procedure Code and without looking at the salient features of the plaint. 0.1 r.8 (1) of the Civil Procedure Code Provides inter- alia as follows:- \ I 4 ----- -- ----,,o-:r r.- s·-(]J wh-ifte-tl'fete--are-num-erous-- -- -- - - -- - - - persons 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, notice of the institution of the suit to all such persons either by personal service or by public advertisement, as the Court in each case may direct". At paragraph 35 of the plaint, it is indicated that the plaintiffs are suing in their individual capacities for suffering at the hands of the defendants and out of their duty to protect the environment, their duty to come to the aid of 5 ---~ - - - - ~ ~ those whocannot" defena-tfieinselvesor ignorant-of- th-eir- -- -- - 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 Tanzania 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. - 1'1 6 In support of his submission, he referred the Court to the case of Lujuna Shubi 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. As it was held by Samatta, JK as he then was 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. Fung-amtama 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 plain tiffs 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 Having agreed-with Mr. Furigaintama'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 defendant, I have decided not to do so because the point of objection raised by Mr. Fungamtama for 1st defendant against the hearing of the suit has closed the door for further arguments. I uphold his point and I strike out the plaintiffs' suit. However, I order that each party should bear its own costs. 9 Delivered in open Court this 12 th day of August, 2014 in the presence of Miss Glory Kilawe, Advocate for the plaintiffs and in the presence of Mr. Fungamtama, Advocate for 1st defendant.