APPLICATION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 3023 OF 2025 GEOFREY BUKENE 1 ST APPLICANT OMARY CHISHAKO 2ND APPLICANT VERSUS THE REGISTERED TRUSTEE OF THE DIOCESE OF WESTERN TANGANYIKA 1 sr RESPONDENT THE REGISTERED TRUSTEE OF THE DIOCESE OF CENTRAL TANGANYIKA 2ND RESPONDENT MINISTRY OF LAND, HOUSING AND HUMAN SETTLEMENT DEVELOPMENT 3RD RESPONDENT THE COMMISSIONER FOR LANDS 4TH RESPONDENT REGISTRAR OF TITLE 5m RESPONDENT BUGAGA VILLAGE COUNCIL GTH RESPONDENT HON. ATTORNEY GENERAL 7TH RESPONDENT RULING 03 & 18/03/2025 NKWABI, J.: This application has been brought under the provisions of Order 1 Rule 8 of the Civil Procedure Code, Cap. 33 R.E. 2019 and any other enabling provisions of the law. It is supported by the joint affidavit of the 1 applicants. Order I Rule 8 (1) of the Civil Procedure Code, Cap. 33 [R.E 2019] provides that: "Where there are numerous person 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 detend. 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 plaintiffs expense, notice of the institution of the suit to all such persons either by personal service or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct" Nevertheless, the applicants are craving for orders inter-parties against the respondents that: 1. That, this honourable Court be pleased to grant leave to the applicants to file a representative suit on their own behalf and that of 235 others against the respondents herein above. 2. Costs to follow the event. 2 The application is not contested by the 3 rd to the 7th respondents be it by counter-affidavit or by preliminary objection. In fact, Mr. George Kalenda, learned Senior State Attorney, encouraged this Court to grant the application However, the application is contested by the 1st and 2nd respondents. They lodged a counter-affidavit through Mr. Michael Mwangati, learned counsel. When the application was called on for hearing, Mr. Daniel Oduor, learned advocate, appeared for the applicants. Mr. Michael Mwangati, also learned advocate, appeared for the pt and 2nd respondents. Mr. George Kalenda, learned Senior State Attorney, appeared for the 3rd to the 7th respondents. I am grateful for the submissions made by the learned counsel for both parties. In his brief submission in chief, Mr. Oduor adopted the joint affidavit of the applicants as part of his submissions. He went on to ask this Court to decide on the following grounds. 1. Application for leave should be filed. 2. Common interest. 3. Consent of the persons sought to be represented. 3 On the 1st ground, Mr. Oduor concluded by saying that since there is this application filed, then, the pt ground is satisfied. On the aspect of common interest, he explained that the applicants have shown common interest. Mr. Oduor made reference to the joint affidavit especially paragraphs 2, 3 and 4 of the affidavit. Mr. Oduor too elucidated the ground 3 by pointing out to paragraph 3 of the joint affidavit to file a representative on behalf of others. He added that granting the application would not prejudice the respondents. He beseeched this Court the application be granted as prayed on the chamber summons. As intimated above, Mr. Kalenda did not object the application. The stance of the 1st and 2nd respondents about this application was spotlighted by Mr. Mwangati in reply submission who said the 1st and 2nd respondents object the application. Building on that stance, he declared that they dispute that there is common interest because there is not common interest displayed in the affidavit. He pointed out that the cited paragraphs do not establish common interest because every person owns the piece of land individually. Mr. Mwangati further elaborated that they doubt the consent of the rest of the other applicants. The document has a stamp of the village council while the village council which was not involved, he emphasized. He added 4 that some of the members who signed do not know how to read and write. He too beefed up that the signatures appear to be signed by one person or two. Mr. Mwangati was also of the view that the signature of the secretary differ from that is in the affidavit and that in the minutes for filing representative suit. He stressed that each should come to Court because if a representative suit is filed, the 1 st and 2nd respondents would be denied the right to cross-examine each of the relevant persons. He insisted that the application be dismissed. In rejoinder submission Mr. Oduor maintained that the applicants have common interest as clearly illustrated under paragraph 5 of the affidavit and the way the piece of land was allocated to the applicants and those who wish to be represented, by the village council, so there will be common evidence, the facts will be the same. He asked me to see annexure 3 collectively. It is his further witty remark that concerning consent, paragraphs 9 and 10 of the 1st and 2nd respondents counter-affidavit, the respondents admit that they demolished the applicants' houses. Further they are calling the applicants are trespassers. Mr. Oduor went on to say that there is nothing 5 in counter-affidavit to indicate that the signatures of the other applicants were forged and pressed home the point that the Court should not decide on hearsay. He stressed that the counsel for the pt and 2nd respondents should have come up with affidavit to show that those persons did not sign. Regarding the complaint about the stamp of the village council, he rejoined that it is there for purpose of verifying that they were permitted by the village council to conduct the meeting and that they are residents. Mr. Oduor demanded that the 1st and 2nd respondents have not come with a counter-affidavit of the chairman of the village council so, that is merely submission from the bar. He added that paragraph 1 of the counter- affidavit be closely examined. Mr. Oduor finally asserted that without expert opinion, no one can challenge the signatures of the applicants. He reiterated his prayer that the application be granted. In my view, in bringing this application, the applicants appear to be dead sure that they are supported by a number of authorities including K.J. Motors & 3 Others v. Richard Kashamba & Others, Civil Appeal No. 74 of 1999, CAT where it was remarked that: 6 "The rationale for this view is fairly apparent Where for instance/ a person comes forward and seeks to sue on behalf of other persons. those other persons might be deed. non-existent or otherwise fictitious. Else he might purport to sue on behalf ofpersons who have not in fact authorized him to do so. If this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf of persons whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf. ... Ifleave to sue is not sought and granted there is a danger of the court issuing process to deed. non-existent or otherwise fake persons which would certainly be improper. /I' Likewise, in Lujuna Shuhi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi [1996] T.L.R. 203 (HC), Samatta, J.K., as he then was stated that: "The provision contained in Order 1/ rule ~ CPC . . . is mandatory and not merely directory and is an essential precondition for the trial of the case as a representative 7 suit. It is imperative that the two conditions provided in rule 8 of Order 1/ should be complied with namely, (1) the permission of the Court should be obtained and (2) the Court should, at the expense of the plaintiff~ issue 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 edvertisement; as the Court may direct: ... He cannot as the respondent in the case now before me has purported to do/ institute a representative suit without first obtaining leave of the court to bring such suit. When such suit is instituted without that leave/ it must struck out for being incompetent in law. " Truly, it is trite law that he who alleges must prove, that includes the three conditions outlined by the counsel for the applicants for the grant of the leave that is sought. I may make reference to East African Road Services Ltd v. J.S. Davis & Co. Ltd. [1965] E.A. 676 8 "He who makes an a/legation must prove it It is for the plaintiff to make out a prima facie case against the defendant. H It is equally worthy to note here that oral evidence, like affidavit evidence is sufficient to prove a fact. I find solace, in my stance from the decision in Ahas Kondo Gede v. Republic [2020] 2 T.L.R. where it was stated that: "Oral evidence if worthy of credit like in circumstances obtaining in the present case is sufficient without documentary evidence to prove a fact or title/ thus where a fact may be proved by oral evidence it is not necessary that documentary evidence must supplement that evidence as this is the other method ofproving a fact. H However, the resistance of the 1st and z= respondents towards the grant of the leave to file a representative suit crumble to the ground over a number of hurdles. In the first place it is in respect of the claim that the signatures of some of the persons who have permitted the applicants to file a representative suit have been forged. This would require evidence above the proof on balance of probabilities as stated in City Coffee Ltd 9 v. Registered Trustees of Ilolo Coffee Group, Civil Appeal No. 94 of 2018 CAT where it was underscored that: "... it is clear that regarding a/legations of fraud in civil cases, the particulars of fraud, being a very serious a/legation, must be specifically pleaded and the burden of proof thereof, although not that which is required in criminal cases, of proving a case beyond reasonable doubt, it is heavier than a balance ofprobabilities applied in civil cases." Too, and as correctly pointed out by Mr. Oduor, the allegation of forgery of signatures may require expert opinion as amplified in The D.P.P. v. Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of 2012 where it was underscored that: •~ .. to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form its own independentJudgment by the application of these criteria to the facts proven in evidence. ,, I cannot, as lamented by the counsel for the applicant rely my decision on submissions made by the counsel for the 1st and 2nd respondents. That 10 stand view is supported by the case of The Republic v. Donatus Dominic @ Ishengoma & 6 Others, Criminal Appeal no. 262 of 2018, CAT, (unreported) which quoted with approval the case of Transafrica Assurance Co. Ltd v. Cimbria (EA) Ltd [2002] 2 EA where it was stated thus: ':.4s is well known a statement of fact by counsel from the bar is not evidence and therefore/ court cannot act on, '' I have said the above, myself following the stance, where one has personal knowledge, as held in Ibrahim Twahili Kusundwa & Another v. CRDB Bank PLC & 3 Others, Civil Appeal No. 194 of 2021, CAT (unreported) dated 19/01/2024 where it was emphasized that: ''It is pertinent to stress here that as a matter of law the burden of proof lies on the plaintiff who claims entitlement to mesne profits. tvonetnetess. the onus of proof, not being stettc; will shift from one party to the other depending upon applicable legal presumptions and the weight of the evidence adduced. Crucial!½ the onus of proving the amounts of money received lies on the defendant since that fact in most cases, is exclusively within his actual or constructive knowledge ... '' 11 Again, in an application for representative suit, no contentious matters (facts) should be decided at a stage of this application which ought to be decided in the Land case which is intended to be lodged as was stated in Josiah Balthazar Baisi & 138 Others v. Attorney General [1998] T.L.R. 331 (HC) where it was ruled that: "This position of the law as applicable in England was made clear as long ago as in the case of R. v. Kansington Income Tax Comaussioner. ex parts Princes Edmond (3). But as pointed out by the learned authors of Judicial Review of Administrative Action by S.A. De Smith, Z'd Edition/ which is the only edition I could lay hands on from our Ubrsry; at page 439: ... Uberrima Fides is required and leave will not be granted ,t there has been a deliberate misrepresentation or concealment of material facts in the applicant's affidavits ... I have perused the applicants' affidavit with due care. I am satisfied that affidavit does not show that there is deliberate misrepresentation or concealment of facts. All that such a situation exists are contentious matters. . . . To me these matters that require proof by concrete evidence. 12 If not considered carefully a decision on the various paragraphs of the first point of objection will pre-empt an application for prerogative orders if such an application will be filed Similarly in The Regional Manager - TANROADS Lindi v. DB Shapriya & Company Ltd, Civil Application No. 29 of 2012, CAT, (unreported) it was stated that: ''It is now settled that a Court hearing an application should restrain from considering issues that are to be dealt with by the appellate Court This is so in order to avoid making decisions on substantive issues before the appeal itself is heard ... '' Indeed, Mr. Mwangati satisfied the requirement of his affidavit as per Anatol Peter Rwebangira v. The Principal Secretary, Ministry of Defence and National Service & Another, Civil Application No. 548/04 of 2018 CAT (unreported) where it was ruled that: "Where an averment is not based on personal knowledge, the source of information should be clearly disclosed ,, However, he fell short of the position enunciated in Lalago Cotton Ginnery & Oil Mills Company Ltd v. The Loans and Advances 13 Realization Trust, Civil Application No. 80 of 2002 CAT (unreported) where it was ruled: ''An advocate can swear and file an affidavit in proceedings which he appears for his client but on matters which are in Advocates personal knowledge oruy." Additionally, in Benedict Kimwaga v. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 and NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 in the latter case it was stated that: ': .. an affidavit which mentions another person is hearsay unless that other person swears as well. // After discussing as above, it is clear that the counter-affidavit and the submissions of the counsel for the 1st and 2nd respondent have not shaken the application, the application has to be granted. Granting this application will be, I think, in accordance with Kirya General Supplies Import and Export Company Ltd vs. The Attorney General, Civil Appeal No. 98 of 1998 (unreported) where it was stated that: •: .. is only an alternative option to the ordinary procedure of each member of the group suing separately. // 14 The above said and done, the application is granted because the applicants have satisfied the requirements for the grant of the application for filing a representative suit. Costs shall abide by the outcome of the intended Land Case. It is so ordered. DATED at KIGOMA this 1sth day of March 2025. 15