19990315 TZCA Dar es Salaam

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Although in his counter-affidavit the respondent made a mention of the application being time-barred, he did riot pursue the point at the hearing of the application in the High Court and as a result the appellant did not make any submission on it and the High Court (Nchalla, J.) didnot at all address its mind to it. In the circumstances, we do not think it would be proper for us to deal with the issue. The preliminary objection mist, and is, therefore, dismissed. The respondents case at the trial was simply that members of his association were collectively assigned the land in question in 197+ during the scheme commonly known.in the country as Oeration Viji, but later the appellant unlawfully took possession of it claiming that the shamba was his. The primary court was satisfied of.the truthfilriess of the evidence given by the respondent and his witnesses and accordingly entered judgment .in his favour. On appeal to it against that decision, the District Court held that theprimary court reached a fair finding that the shamba in question belongs to the respondents Kikundi cha Nkoanekoli.. The appellant, whose defence at the trial was that the 200 acres had been allocated to him in 1962 by a local land authority, was aggrieved by that decision and consequently appealed against it to the High Court which, as already indicated, dismissed the appeal. The principal issue raised before that Court was whether the primary court had jurisdiction to ehtertain the suit. The issue was answered in the affirmative. Nchalla, J., certified that the following three points . of law emerged from the High decision: . . u( a ) Whether in law the plaintiff/respondent has locus to sue on behalf of 20 other group member without having any authority from them?. (b) Whether the said group of 20 members has any capacity to sue the appellant? 0 -3-- (c) Whether the omission to follow proper procedure in visiting locus in quo vitiates the trial? 1 The appellant has sought to impugn the High Courtts decision on three grounds of appeal, namely: The subordinate courts erred in law by entertaining plaintiff' s/respondents suit who has no locus standi 'to sue on behalf of 20 other group members without having any. authority from them. The said goup of 20 members hasno • . capacity to sue he appellant in law The trial court follow the ropë/ ' procedure in visiting loeus in quo, Since KikundiNkoanekoli is an unincorporated body, it cannot be disputed that what the repondent purported to do in this case was to institute before the prinary court a rpreseritative suit. Does a primary court have jurisdiction to entertain such a suit? In view of the conclusion we have arrived at in this appeal, we do not find it necessary to answer that question. We shall assume, without deciding, in favour of the respondent that the answer,to the question is in the affirmative. We proceed. to ask ourselves, therefore, whether the procedure the primary. court adopted in entertaining and dealing with the suit was correct in law. We entertain not the slightest doubt' that it was not. First,, it is trite law that a representative suit cannot be instituted as of right. A person or persons wishing to institute such a suit must first seek and obtain permission of the court in which the suit is to be filed to I institute the action. Secondly, It is also an elementary rule of law that the named plaintiff or plaintiffs or the named defendant or defendants, as the case may be, must disclose to the court the identities and addresses of the other persons on whose behalf or for whose benefit - the suit is to be instituted or resisted. Two reasons make compliance with that requirement mandatory. First, the court has a duty to give notice of the institution of the suit to all such persons. If that duty is not discharged, the persons on whose behalf or for whose benefit the suit is to be instituted or resisted may not be able to xercise the right they have under the law to apply to the court to be made parties thereto. Secondly, although those personsare not full parties to the suit (they may be described as quasi parties) because they are not liable individually for the costs thereof, they are bound by the eventual result of the case and,, to that limited extent, they may be described as parties to the suit: see Pricey Rhondda Urban District Council /1-92 7 All E.R. Rep. 679; Mocn and Others vArtherton /T972 3 All E.R. 145 146j. To revert to the instant case, it is incontrovertible that neither of the two mandatory requirements we have described above was complied with. In our set.tIedopinion those omissions are fatal irregularities. The proceedings which the primary court purported to conduct in this case were plainly a nullity. in the circumstances, we are of the opinion that the High Court erred in law in not treating those proceedings as such. You cannot put / 'something on nothing and expect that it will stay there. It must fall. For the foregoing reaons, we allow the appeal, set aside the decisions of High Court andDistrict Court and declare that the pr5Oeedings which the primary court purported to cdnduct'before it were a nullity. The appellant shall have his costs in this Court as well as in the three courts below. DATED AT DAR ES SAAM this /S 11 day of M/ 1999.