francis bundu bulugu and 4 others vs oxfam and 5 others 2023 tzhc 23566 8 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA MISC. CIVIL APPLICATION REVISION No. 03 OF 2023 1. FRANCIS BUNDU BULUGU ........................••••••••••••••••••••. 1sT APPLICANT 2. GEORGE MWANDU ••.••••••...••...•••......•.•.....•.....••..••••••••••• 2ND APPLICANT 3. MWANDU LUSHU .•........•.......................••....•..••.••••••.•••• 3RD APPLICANT 4. SPECIOZA KINGU 4TH APPLICANT 5. GOOFFREY lAYUNGA 11 ••••••••••••••••••••••••••••••••••••••••••• 5TH APPLICANT

VERSUS 1. OXFAM .•........ II II •••• II •••••••• II •••••••••••••••••••••••• II •••••••••••••• 1ST RESPONDENT 2. CASEC ...••..•.•..•...••••.•••••.•••••..••••.••..••••.••.•••••••••••••••••••• 2ND RESPONDENT 3. SUOI DAUD ....•..••.......•••......•••••...•••.•..••••••••••••••••••••••• 3RD RESPONDENT 4. ABA - JAJA COMPANY LIMITED ••..••..••••••••••..•••••••••••••• 4TH RESPONDENT 5. SHINYANGA MUNICIPAL COUNCIL ........••........••••....... 5TH RESPONDENT 6. ATTORNEY GENERAL •••.•..••..••..................••..•••••••••••...• 6TH RESPONDENT

RULING 2JStNovember & dh December 2023 F.H. MAHIMBALI, J This ruling is in respect of the application filed by the applicants on behalf of 113 others for a representative suit relating to suit land located at Plot No. 24 Block SS - at Batengwa area within Shinyanga Municipality. It appears that the said suit land prior to its survey had been in occupation of some other people (intended) plaintiffs. The Municipal Council for some good reasons may be, surveyed the suit land and later allocated it to the 1st - 4th respondents. The applicants on behalf of 113 others are aggrieved by that 1 -~ motion of survey and unlawful deprivation of their land rights, naming the whole exercise as unlawful as it did not comply with the law. They are thus jointly (numerous as they are) and with that common interests have sought for this Court's leave of filing a representative suit on behalf of 113 others. The said application has first been attacked by legal objection for being incompetent for lack of authenticity and consent of numerous persons needed to be represented contrary to order I, Rule 8(1) of the CPC. During the hearing of the application, Mr. Lwenge, learned Senior State Attorney while being assisted by Ms Amina Mkuya also learned state attorney, represented the 6th and the 7th respondents, whereas Mr. Kaunda learned advocate appeared for the applicants. Mr. Tuli on the other

hand, represented the 1st, the 2nd and 4th respondents whereas the 3rd respondent was absent and the application went exparte against him. Arguing on the legal objection raised, Ms Amina Mkuya for the 5th and 6th respondents submitted that pursuant to Order 1 Rule 8 (1) of the CPC, the application lacks authenticity and consent of numerous persons needed to be represented. For such an application to meet the legal thresh hold, there must be proof of the numerous persons having common interests in 2 the matter. Therefore, it is important for the Court at this stage to be satisfied whether the applicants have met that legal requirement. Expounding her argument, Ms Mkuya submitted that reading the applicants' affidavit (para3) and annexure BT1, it is suggestive that the attendants in the said meeting are 117. However, scrutinizing the said annexure (BT1), bears some names with no signatures. This then raises some serious doubts, questioning their attendants and authorization to the filing of the said application to the applicants. Furthermore, the annexure to the affidavit bears some serial numbers with blank names. In her considered view, Ms Amina faults the applicants and their purported application as lacking legal competence over the said authorization to be represented. She added that, even in the said purported list of attendants suggesting authorizing the filing of this

application, applicant no. 4 who is Specioza Kingu is not one amongst the attendants in the said authoritative meeting. This, doubles the doubt of the competence of the application, argued Ms Mkuya. She further contended that, since the rationale of filing a representative suit is ascertainment whether the purported applicants as intended plaintiffs are in existence and that they are real interested, that can be primarily established through the relevant annexures to the said 3 application and on what is deposed by the said applicants. Reading the affidavit and its annexure BT1, raises more doubts on the authorization of the said leave application for none mentioning of some attendant names and lack of signatures to some appended names. In support of her submission to the legal objection argued, she invited this Court to be persuaded by the decision of the High Court Labour Division in the case of Gibson Weston Kachingwe & 620 Others Vs. Unitrans (T) Limited, Mise. Application No. 07 of 2022. As if that is not enough, she referred this Court to the case of K.J. Motors & 3 Others Vs. Richard Kishamba & Others, Civil Appeal No. 74 of 1999, CAT at DSM at page 4 (para2). Based on the above submission and the authorities provided, Ms Amina Mkuya, was of the firm view that the application did not meet the legal threshold for its grant, she thus prayed for it being struck out. Mr.

Tuli for Pt, 2nd and 4th respondents supported the submissions as argued by Ms. Mkuya. He had no more to add. Resisting the legal objection, Mr. Kaunda first attacked the submission by Ms. Amina on the basis that, the argued legal objection is conflicted with 4 the respondents' counter affidavit in court. Since, parties are bound by their pleadings, then the respondents are precluded from resisting the application while they didn't oppose so in the body of their affidavits countering the application. However, for argument's sake Mr. Kaunda conceded with the legal objection that as per BTl (annexure), there are some persons who did not sign nor their names appended in it. However, Mr. Kaunda was of the considered view that for franchise of justice, the appropriate legal remedy on the defective affidavit as it has been established is not to defeat the justice of the whole case but only to expunge the names of the said persons whose representation is questionable for lack of names display and authenticity of signatures appended. That notwithstanding, he queried if there is any legal requirement of convening a meeting and the issue of attendance for it to authenticate the legality of the application for a representative suit. Making a rejoinder submission on what has been purportedly countered by Mr. Kaunda, Mr. Lwenge learned senior state attorney, submitted that, the legal

objection being a question of law it can be raised at any time. Thus, it being preceded by a counter affidavit is not an excuse of being legally challenged. 5 He submitted further that, this being a representative suit, its legality is only founded on commonality of interests which is ascertained from the existing parties and not fictitious persons. Since the applicants themselves through their learned counsel present in court is convincing for the grant of this application, and amongst the instruments supporting the application is affidavit and its annexures, upon a thorough scrutiny of it, the same suffers the important ingredient of commonality of interests and numerousness of persons on the basis of lacking appended signatures and blank serial numbers making the 117 members thus defeating the merit of the application. On the cited authorities by Mr. Kaunda on the issue of estopel, the same does not apply in the context of legal objection as it can be raised at any time of the proceeding, insisted Mr. Lwenge. The current application is • legally on its fundamental basis, thus liable to be struck out with costs, insisted Mr. Lwenge. This being a legal objection, as a matter of law it must first be dealt with, before determining the merit of the application. Having heard the submission of both parties' counsel for and against this application on the 6 legal objection raised,

the issue for determination by this court now is whether this application is properly before the court for its consideration. In determination of the issue, the relevant law providing for application for representative suit is Order 1, Rule 8(1) of the cpc. The rule provides that, I quote;- "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, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement as the court in each case may dtrect" From the above cited rule, it is an established principle that a person can only act as a representative and initiate proceedings on behalf of others with the same interest after he or she has obtained leave of the Court. In the case of Kiteria Manezes and 33 Others vs. Area Engineering Work Ltd and The Attorney General [1998] TLR 434, it was held inter lia that; 7 f~ •• A pre-condition to filing a representative suit is that an application for leave to file such suit has first to be made ... If Also, in the case of Abdallah Mohamed Msakandeo and Others versus City Commission of Daressalaam and Two

Others (1998) TLR 439, the Court was of the view that the law requires an applicant for leave to file a representative suit to establish that numerous persons are similarly interested in the intended suit and they are willing to join in it. From the above position, the mere existence of numerous persons in the suit does not suffice the grant to leave to file a representative suit. The Applicants have to show their willingness to be represented by one or several of them. In the current case, the expression of that interest by numerous persons can be shown from what is stated in the affidavit and the accompanying annexures that those to be represented are willing to be joined in the intended suit and the same have consented to be represented by the applicants by appending their signatures against the list of the respective names. As well argued by Ms Mkuya learned state attorney for the 5th and 6th respondents, that for a representative suit to be filed, first and foremost, the applicants must establish that the numerous persons are similarly interested in the suit to be filed and that they are willing to join it (see order 1, rule 8 8 of the CPC, Abdalah Mohamed Masaka and 2 others Vs City Commissioner for Oar es Salaam and 2 others [1998] TLR).

4. Further, it is the duty of the court to establish whether the said applicants are duly authorized to represent others. This is because, the rationale of order 1, rule 8 of the CPC is apparent. There might be fictitious persons, or otherwise dead and none existent. If this is not checked thoroughly, it can lead to undesirable consequences. The court can only exclude such possibilities only by granting leave to the representative to sue on behalf of the persons whom he must satisfy the court that they do exist and that they have duly mandated them to sue on their behalf (see the decision of the court of Appeal, in the case of K. J Motors and 3 others vs Richard Kishamba and others, Civil Appeal no 74 of 1999, Dar es Salaam). As the annexure "STl" of the joint affidavit in support of the application misses some members purporting to authorize the applicants in filing the said application in court, the said joint affidavit purporting to contain evidence is put into question on its truthfulness, since an affidavit being substitute of oral evidence, should only contain true statements of facts. As the applicants swore that they all obtained the consent of all 113 people sought to be represented while not, the said joint affidavit cannot be 9 relied upon. Just at this early stage of scrutiny as per annexures in the affidavit, 52 persons seem not to have consented the filing of

this application. Out of this number, 48 have not appended their signatures on the said called minutes of meeting authorizing the filing of the representative suit (See serial numbers 2,3,5,6,9,11,34,36,37,38,40,41,43,44,45,47,48,49,51,52,53,54,57,59,60,61 ,62,64,67,69,72,74,75,85,87,88,89,92,93,94,102,103,104,105,106,109,115, 116,117) and the remaining 4, being just serial numbers with no any name (See blank names in serial number 4,68,90, and 95). This number is almost half of the intended plaintiffs. Considering the applicants' mandates of filing this application is founded on what is deposed under paragraph 3 of the applicants' joint affidavit which state that on 7th day of January 2023 the residents as per annexure BT1 met and discussed the nitty gritty of the dispute and resolved unanimously that the applicants herein should represent others in the potential suit, as per established 52 names (blank serials and names not signing the attendance thus not assenting to the resolution of the representative suit), it is suggestive that what the applicants are deposing is falsity. The authenticity of the application is then put into question. 10 The argument by Mr. Kaunda that Mr. Kaunda for franchise of justice, the appropriate legal remedy on the defective affidavit as it has been established is not to defeat the justice of the whole case but only to expunge the names of the

said persons whose representation is questionable for lack of names display and authenticity of signatures appended. I am not prepared to buy that idea in the context of this case as it renders the whole affidavit unreliable. That notwithstanding, Mr. Kaunda queried if there is any legal requirement of convening a meeting and the issue of attendance for it to authenticate the legality of the application for a representative suit. I may agree with him lightly. However, since parties are bound by their pleadings, it is the same affidavit and its annexure dully deposed and relied by the applicants which on its scrutiny has raised that query. The issue here is not whether there was a meeting or not, but the authenticity of what is pleaded, is it reliable? Should we then keep on relying on the false affidavit? That said, I find the application deficient in competence. By the way, just by passing following the legal stand in the case of National Agricultural and Food Corporation V. Mulbadow Village Council and Others (1985) TLR 88 (CA» that no one will testify for the other, in the 11 - circumstances of the case as per facts in the affidavit, the best approach in my considered view was to file a case on joinder of plaintiffs other than a representative suit. Filing of the suit under representative suit serves no good legal purpose in the circumstances of this case as it will entail

each one giving his own evidence. In that suit it was held: 'fl person may act and represent another person but we know of no law or legal enactment which can permit a person to testify in place of another. All that P.W3 could say was that he was told by certain claimants as to the facts of their dstrns. and what was said was pure hearsay .." That said, the applicants are dully advised as I strike out their application for incompetence. -- F.H. Mahimbali Judge 12 Ruling delivered this 8th day of December, 2023 in the presence of Mr. Paul Kaunda, learned advocate for the Applicants and the 4th respondent being in W. S. Ng'humbu

DEPUTY REGISTRAR 8/12/2023 13