AMOS MAGOILE

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISCELLANEOUS LAND APPLICATION NO. 5752 OF 2024 AMOSI MAGOILE MAGUBIKE.......................................................1st APPLICANT MAGUBIKE MAGOILE.....................................................................2nd APPLICANT REUBEN MUHUMPHA.................................................................... 3rd APPLICANT MALAKI MWALUKO AND 198 OTHERS.........................................4th APPLICANT

VERSUS THE EXECUTIVE DIRECTOR, CHAMWINO DISTRICT COUNCIL ................. 1st RESPONDENT MEMBE VILLAGE COUNCIL.................................................................................. 2ndRESPONDE CHITABULI VILLAGE COUNCIL........................................................................... 3rdRESPONDE

PERMANENT SECREATARY MINISTRY OF AGRICULTURE............................................................................. 4thRESPONDEN

PERMANENT SECRETARY MINISTRY OF LANDS AND HUMAN SETTLEMENT DEVELOPMENT................ 5th RESPONDENT THE ATTORNEY GENERAL...........................................................6th RESPONDENT

RULING Last Order: 22nd October 2024 Ruling: 13th November 2024 MASABO, J:- The applicants herein have preferred this application under Order 1 rule 8 (1) of the Civil Procedure Code Cap. 33 R E 2019 praying for leave to file a representative suit. The application is supported by an affidavit deponed by the applicants' counsel one Keneth Nchimbi. The application was heard by way of written submission as ordered by this court on 17th September 2024. The applicants were to file their submission in chief on or before 01st October 2024, the reply on or by 15th October 2024 Page 1 of 8 and rejoinder if any on 22nd October 2024. Both parties complied with the scheduling order. The submissions by the applicants were drawn and filed by Mr. Nchimbi, learned Advocate whereas those of respondents were filed drawn and filed by Mr. Omary Ngatanda, learned State Attorney. Submitting in support of the application, Mr. Nchimbi narrated the background of the matter. He submitted that the applicants are the legal owner of the suit land measuring eight thousand acres located at Membe and Chitabuli villages in Membe Ward, Chamwino District within Dodoma Region. They have been living there for years and have been using it for agricultural activities and settlements. The respondents trespassed the suit land claiming to be its owners and upon trespassing, they demolished the houses and ordered the

applicants to vacate. That, following the incident, the applicants took various steps including reporting the matter to the village council and ward tribunal in vain. Hence, they convened a meeting at which the four applicants were appointed and authorized to institute a suit against the respondent in a representative capacity. Further to this background, the learned counsel submitted that Order 1 Rule 8(1) of the Civil Procedure Code, Cap, 33 R.E 2019 provides that, one or more person may institute a representative suit if he has similar interest with the people he seeks to represent and upon obtaining a leave of the court as stated in Raja Ali Shan vs Messrs Essem Hotel Limited and Others 2007 SCMR 741. He then argued that, in the instant application, the suit intended to be instituted involves 202 people, the 4 applicants Herein inclusive. In fortification he cited the case of Abdallah Mohamed Msakandeo and Others vs City Commission of Dar es Salaam and Page 2 of 8 Two Others [1998] TLR 439 and submitted that all the 202 persons have a common interest in the land subject to the intended suit. And, for this reason, leave is now sought to institute the representative suit considering also that, all the persons intended to be represented have been notified of the intended suit and in addition, a 90 days' notice has been issued to the respondents. In reply, Mr. Ngatanda, before

submitting on the merits of the application, challenged the competency of the application. He argued that the application has been supported by a defective affidavit as it has been sworn by advocate Mr. Nchimbi instead of the applicants themselves. Thus, it contains hearsays which cannot be acted upon by this court. He pointed out that the averments in paragraphs .2,3,4,5,6,7,8,9,10, 11, 12, 13, and 14 are all hearsay. In fortification of his submission and prayer that the affidavit should not be acted upon, he cited the case of Said Salim Hamdun and Two Others vs. The Administrator General Miscellaneous Civil Application No. 267 of 2022 [2022] TZHC 14099 TanzLII where it was held that an advocate can swear and file affidavit in proceedings in which he appears for his client but only on matters which are in the advocate's personal knowledge only. Submitting on the merits of the application, he argued that, the conditions set out under Order I, Rule 8 must be fulfilled for the court to grant leave to file a representative suit. But, in the present case, such conditions have not been fulfilled. In the present case, it has not been sufficiently demonstrated that all the 202 persons have a common interest because in paragraphs 2 and 4 of the affidavit it is deponed that the applicants occupied land in Page 3 of 8 different villages namely Membe and Chitabuli villages. It is also

deponed that the land was used for different activities namely residence and agriculture. Thus, they have different interests and not common as required by the law. He cited the case of Silvanus Kotei and 10 Others vs Dodoma City Council and Another Miscellaneous Civil Application No. 56 of 2023 [2023] TZHC 23152 TanzLII and argued that the application be dismissed. In rejoinder, Mr. Nchimbi challenged Mr. Ngatanda for irregulary raising a preliminary objection in the course of his submission in chief instead of raising it through a proper notice of preliminary objection. He stated further that, in the verification clause the deponent disclosed the source of information and stated that the information deponed therein was availed to him by the applicants themselves. In the alternative, he submitted that should the court find the affidavit defective, it should invoke the principle of overriding objective and order the amendment of affidavit or filing supplementary affidavit. On the merit of the application, it was rejoined that the common interest has been demonstrated as all the 202 people were using the suit land for agriculture and settlement activities. The defect if any, he rejoined, is curable by the principle of overriding objective. I have considered the submissions by both parties alongside the application, its bracing affidavit and its supporting documents. I am now

poised to determine the application. Before I do that, I will first address the preliminary point raised by Mr. Ngatanda. Although I entirely agree with Mr. Nchimbi Page 4 of 8 that the preliminary point has been improperly raised from the bar to the surprise of the applicant and this court I cannot desist from entertaining it for the following two reasons. First, it concerns the competence of the affidavit which is the centre point of the application. Second, the hearing proceeded in writing and the applicant's counsel had sufficient time to research and respond to it as he did in his rejoinder submission. It is cardinal principle of law that, an affidavit being a substitute of oral evidence need be factual, free from extraneous matter such as hearsay and should be confined to matters within the personal knowledge of deponent thus he is able of his own knowledge to prove save on interlocutory applications on which statements of belief may be admitted (see Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA 514; Salima Vuai Foum v Registrar Of Cooperative Societies and Three Others [1995] TLR 75 and Phantom Modem Transport (1985) LTD v D.T. Dobie (Tanzania) Ltd. Civil Reference No. 15 2001 and 3 of 2002 [2002] TZCA 6 TanzLII. Sequel to this principle, it is also trite that, if an affidavit mentions another person that other person should also take an affidavit (see the

decision of the Court of Appeal in Franconia Investments Ltd vs. TIB Development Bank Ltd, Civil Application No. 270/01 of 2020 [2021] TZCA 563 TanzLII and Sabena Technics Limited vs. Michael J. Luwunzu, Civil Application No. 451/18 of 2020 [2021] TZCA 108 TanzLII. And, as correctly argued by Mr. Ngatanda, much as ah advocate can swear an affidavit on behalf of a client, he/she can only competently do so on matters within his personal capacity. Elucidating this principle in Lalago Cotton Ginnery and Page 5 of 8 Oil Mills Co. Ltd vs. The Loans and Advances Realization Trust (LART) Civil Application No. 80 of 2002 (unreported), the Court of Appeal stated that: 'An Advocate can swear and file an affidavit in proceedings in which he appears for his client, but on matters which are in the advocate's personal knowledge only. For example, he can swear an affidavit to state that he appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings.' Further, in Issa H. Samma vs. AG and Another Misc. Civil Cause No. 74 of 2001 (unreported), this court having cited the above paragraph proceeded to state that: "These are the limits within which an advocate can make an affidavit in proceedings in which he is an advocate for a party. The affidavit in support of the present application, however, is a far cry from what the passage above

from the Court of Appeal ruling demands. Indeed, the affidavit is the foundation of the entire application of the applicant. And it is made on instruction from the client. I am of the opinion that he cannot be both an advocate and a witness for a party in a cause or matter. The affidavit in support of the instantaneous application seems to have sharply departed from these principles. It was deponed by Mr. Nchimbi who I is identified as the applicant's advocate. Yet, the depositions do not concern facts that might have come to his personal knowledge in the cause of Page 6 of 8 representing the applicants in court. They are facts related to the kernel of the dispute and specifically assert the manner by which the applicants acquired the suit land, how they have used and developed the same over time, the alleged the trespass by the respondents and the loss that the applicants are likely to suffer if this application is not granted. These are certainly matters that an advocate cannot depone. It is in this context, in the verification clause, Mr. Nchimbi has stated that all facts deponed from paragraphs 2 to 14 are not in his personal knowledge but are based on information supplied to him by the applicants. Yet, there are no supplementary affidavits of those applicants contrary to the established principle that when an affidavit mentions another person, such other person must also

swear an affidavit as stated in Power & Network Backup Ltd vs Olafsson Sequeira (Civil Application No. 307 of 2021) [2023] TZCA 80 TanzLII where it was held that "It is settled position of the law that if an affidavit mentions another person, that other person must swear an affidavit otherwise it will be hearsay. See- NBC Limited v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002, Benedict Kimwaga v. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000, (both unreported) and John Chuwa v. Antony Ciza [1992] T.L.R.

233. In the former case it was stated that: "...an affidavit which mentions another person is hearsay unless that other person swears as well. Basing on the above, I find that the alleged legal advisors, who it is claimed caused the delay to file the instant application because they were out of the region, ought to have sworn affidavits in support of the allegations that they were out of Page 7 of 8 the region and that they could not render their advice to the appellant company in good time." As there is no such supplementary affidavits, the facts in paragraphs 2 to 14, can not be acted upon as they are merely hearsay. Likewise, in my view, paragraph 16 can not be acted up as it states the damage that the applicants are likely to suffer should the application fail. Although it had been verified to be within the learned counsel's personal acknowledge, it is unlikely so. The learned counsel would not, in his own accord, know that the "applicants and their families solely depend on the suit land for agricultural activities and residential purposes". Such information must have been obtained from the applicants. In the foregoing, this too is hearsay and inactionable. Mr. Nchimbi has argued that, the anomaly be found curable by the principle of overriding objective. I understand that, the law permits the court to expunge the offensive paragraphs from the affidavit and, where appropriate order the filing of a supplementary affidavit. I am however not inclined because, if paragraphs 2 to 14 and 16 are expunged for being hearsay, there would remain no affidavit to be supplemented. Accordingly, the point traised by Mr. Ngatanda is upheld and application is struck out. Each party shall bear its costs. DATED and DELIVERED at Dodoma this 8th day of November, 2024.

ASABO

JUDGE Page 8 of 8