hassan abdallah kitigi 2 others vs temeke municipal council another 2022 tzhclandd 12645 25 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 694 OF 2022 1. HASSAN ABDALLAH KITIGI ............................................ 1ST APPLICANT 2. UWESU ABDALLAH MOHAMED....................................... 2nd APPLICANT 3. SELEMAN JUMA SALAMBA ........................................... 3rd APPLICANT

VERSUS 1. TEMEKE MUNICIPAL COUNCIL.................................. 1st RESPONDENT 2. ATTORNEY GENERAL.................................................. 2nd RESPONDENT

RULING Date of last Order: 25.11.2022 Date of Ruling: 25.11.2022 A.Z.MGEYEKWA, J Hassan Abdallah Kitigi, Uwesu Abdallah Mohamed and Seleman Juma Salamba, the applicants herein stand on behalf of 20 people or victims having similar interests and intend to sue the respondents. The applicants urge this court to allow them to represent other applicants in all necessary steps of initiating and instituting the intended suit. The applicants stated that all applicants are having the same interest. The application is brought under Order I Rule 8 (1) of the Civil Procedure Code Cap. 33 [R.E 2019], The applicant filed an affidavit deponed by Hassan Abdallah Kitigi, Uwesu Abdallah Mohamed and Seleman Juma Salamba, the applicants. The respondents opposed the application by filing a counter affidavit deponed by Annastazia Hamis Murady, Principal Officer of the 1st respondent. At the hearing of this application, the applicants enjoyed the legal service of Mr. Juma Nassoro, learned counsel whereby the respondents had the legal service of Ms. Fidelia Kyando assisted by Mr. Peter Mhando, learned State Attorneys. In his submission, Mr. Nassoro was brief and focused. He submitted that the applicant has filed his application to file a representative suit under Order 1 Rule 8 (1) of the Civil Procedure Code Cap.33 [R.E 2019]. Mr. Nassoro stated that there is a land dispute between the applicants

and the 1st respondent. He stated that the applicants and their fellow businessmen have a common interest. To buttress his submission he referred this Court to the list of interested parties. Hence the learned counsel for the applicants urged this Court to allow the applicants to file a representative suit. 2 The learned counsel for the applicants continued to state that the respondents in their joint counter affidavit are not disputing that there is no proof of ownership, but the same requires evidence, thus, Mr. Nassoro was on his view that the issue of ownership will be determined in the main case. He added that the respondents are not disputing that the applicants are treading in Keko Market, a common area hence the same shows clearly that they have common interests. In conclusion, the learned counsel for the applicants beckoned upon this Court to allow the application. In his reply, Ms. Fidelia urged this Court to adopt the applicant’s counter affidavit to form part of her submission Ms. Fidelia stated that the list of the businessmen is a mere list without showing that they have a common interest. She stated that the applicants have not specified the number of interested businessmen whom they want to represent. She faulted the wording used in annexure 'A' that it is not clear if the applicants are representing the other businessmen contrary to Order 1 Rule 8 (1) of

the Civil Procedure Code, Cap. 33 [R.E 2019]. Ms. Fedelia stated that it is not clear if the other businessmen might oppose that they did not ask the applicants to represent them. Fortifying her submission she referred this Court to the case of Kihila William & 5 others v National Ranching Company LTD and other, Misc. Land Application No. 11 of 2022. 3 In conclusion, the learned State Attorney urged this Court to strike out the application with costs. In his short rejoinder, Mr. Nassoro reiterated his submission in chief. He added that the annexures are part of the affidavit and chamber summons. He stated that in a matter related to a common interest, only few people are praying to represent others. He added that the applicants are the ones who are praying to represent others and other businessmen appended their signatures. The counsel went on to state that there is no counter affidavit sworn by businessmen who pray to be joined opposing that they have consented. The learned counsel for the applicants continued to submit that one of the conditions stated under Order 1 Rule 8 of the Civil Procedure Code Cap.33 [R.E 2019] if leave is granted before lodging the suit, there must be an advertisement of the institution of the suit to allow the joined parties to object to be represented in the intended suit. Mr. Nassoro distinguished the cited case of Kihila (supra), that in the said

case the applicants did not show any common interest unlike in the instant application the applicants have shown their common interest. Ending, he urged this Court to grant the application. 4 I have heard the submission made by Mr. NassorO and Ms. Fidelia. The issue for determination is whether the applicants have adduced sufficient reasons to move this Court to grant their application to file a representative suit. There is no dispute that the applicants are applying to file a representative under Order I Rule 8 (1) of the Civil Procedure Code Cap.33 [R.E 2019]. The said order provides for requirements for instituting the representative suit. It reads as follows:- 8.-(1) Where numerous persons are 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, a 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 direct. The above provision of law requires that where numerous persons with the same interest want to appear in the suit on behalf of other interest persons have to do so

after obtaining the permission of the court to file the same. The learned State Attorney has opposed the application, 5 however, I find that her reasons are unfounded because the names of the businessmen whom they want to represent them are listed and they appended their signatures. The issue of whether they consented or is not an issue for determination at this juncture. The Court of Appeal of Tanzania has expounded on the principle and the relevancy of leave-in representative suits which have more than one person. In the case of KJ Motors & 3 Others Ltd v Richard Kishimba & Others, Civil Appeal No. 74 of 1999, CAT at Dar es Salaam (unreported) held that: - " 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 dead, non-existent, or either fictitious. Else he might purport to sue on behalf of persons 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 5 possibilities only by granting leave to the representative to sue on behalf of persons whom he must satisfy the Court they do exist and that they have duly mandated him to sue on their behalf" [Emphasis added]. Applying the above provision of the law in the instant application, it is clear that the other 20 businessmen have

authorized Hassan Abdallah Kitigi, 6 Uwesu Abdallah Mohamed and Seleman Juma Salamba, the applicants to represent them in a land dispute against the respondents. In paragraphs 1, 2, 3, and 4 of the applicants’ affidavit, they have stated that all of them have common interests since they are entrepreneurs and owners of the business cages at Keko Magurumbasi market, Temeke Municipality Dar es Salaam and the respondents have decided to assume ownership of the disputed premises. In the upshot, the application for the representative suit is allowed. I hereby allow Hassan Abdallah Kitigi, Uwesu Abdallah Mohamed, and Seleman Juma Salamba, the applicants to represent their fellow businessmen in the intended case against the respondents. No order as to the costs. Order accordingly. Mr. Juma Nassoro, learned counsel for the applicants, and Ms. Fidelia Kyando and Mr. Peter Mhando, learned State Attorneys for the respondents were remotely present. 7 A.Z.MGEYEKWA

JUDGE 25.11.2022 8