19971024 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA A.1:.,,P~l3_..E$ SAJJ-.AM CIVIL CASE NO •• 184/97 1. IBRAHIM AMBARY MAKI KA K.J\ SUGA 3. I<P.MBA KASALA . APPLICANTS CONRAD MASSAWE AND 177 OTHERS Verisus THE CITY COMlViISSIO~~ •• ;. • • • • • • • • RESPONDENT RUL I NG NBEKELA 2 J~ According to the plaint filed in court on 16/6/1997, the applicants Ibrahim Ambary and three others were granted leave by this court (Kaji, J) to file a representative suit by. an order of the courtdated 23.4.97. By a chamber summons dated 16.6.97 made under order XXXVII rules I and 2 and section 95 of the CP C, the appl_icants seek from this court the following orders~- 1. . That thi$ Honourable court may be pleased to grant a temporary injunction order restraining the Re.spondent, his agents and. or workmen from demolishing the premises of the applicants pending the date runination of the main suit. 2. That thj_s Honourable court may be pleased to grant a tGmporary injunction order restraining the respondent, his agents and or workmen from evicting the applicants from the area under dispute pending the determination o: the main . -l- SUl L, • The application is supported by an affidavit aff irined ·by o me of· the applicants namely Ibrahim Ambary. On : .8 .1997 when the application came for hearing, Dr. Mvungi lear.:-ied advocate ap-peared for the applicants a1;1d Hrs. Lyamuya, lea;ned aclvoca~e 7 appeared . ' for the respondent, the city commission ...· The court . . ord,ered on that day that the respondent should f:le a counter- af:fidavit on or· by lL;..8.97 and a reply thereto if any be filed 01:i or by 18.8 .. 997 and the hearing of ·the application was fixed t0 b~ heard on 22.8.97. ' = 2 = On 22e8.97 Dr. Mv'Ungi, learned advocate for the applicants duly , entered an appearance and there was no appearance from the respo- dent City Commission. In addition the counter-affidavit that was supposed to be filed mi.or by 14.8.97 had ·11ot bee.~ filed. The court ordered that the respondent be reserv·ed with summons and hearing of the application was scheduled on 28.8.97. The court record shows that the respondent City Commission was duly served. with notice of the hearing date on 22.8.97 •. On 28.8097 Dr. Mvungi for the applicants was present but once again. there was no representative from the respondent. Consequently on an oral application by Dr. Mvungi learned advocate for the applicants, I allowed the applicants to argue the application ex-parte after ~eing sat_isf ied that tl:ie respondent had notice of the hearing date and had &pparently even iquored not to file a counter affidavit an application of Mr. Lyamuya made on 1.8.97. /This application has caused me consideratle ~nxiety, not so much on the principles that govern the granting or otherwise of interlocutory injunctions but rather 011-, a procedural aspect. Section 97 (1) of the Local Government (Urban Authorities) Act, 1982 .reads as.follows~- ,·• 11 97 (1)~ No suit shall be commenced against . an Urban A'.uthori ty· until one morith at least after written notice ·of ·intention to commence · the suit h2.s bee·n served upon the authority by the intending plaintiff or his agent'. · · (2) The notice served under this section shall state the cause of actio:1 the n3.me and_plac~ of abo9-e of the ~nten?-ing plaintiff and thE; relief sought". I have perused the supporting affidavit of IbrahLn Abrary . . trace and its annextures but could not L-· .any intimation of notice ' having been giv~n ~o the respondent, I have examined the.plaint as. well but .. is equally of ... no assistance to this procedural issue. . .. , t; Unfortunately I do not have the benefit of a counte1'...-:-affidavi t from the respondent to assist the court to resolve this issue. . . Is non-comp+i,~nc_e with the prov.is ions of seetion 9.7 quoteq_ above . - . ~ . a procedurai or technical error which does not invalidate.the suit? The answer ·to this is to be found in (CAT) Civil __Appeal No. 25 of 1989 Arli~)i§.Ji.~icipal Council and :Lyamuya Construction ... ... - -Co. . . - . . .Ltd • ...-- e • • 0 0 • '3 ~, = 3 = (unreported) in this Nyalali C.J after posing this question proceeded to answer it. in the following terms:- i; The problem seems to us to be very easy to solve. The language of the statute quoted earlier in on judgment is very clear. It contains ' a definite and peremptory prohibition for suits to be instituted ag3.ins.t an Urban authority, like the appellant ir. this case, before the expiration of one month's noticeH. It is thus abunda:nt1y clear from this judgment that compli- ance with section 97 of the Local Government (Urban Authorities) ' ~ ' , Act, 1982 is mandatory o , A question which follows is vrhat are the consequences of non-compliance? The answer is to be found in the same judgment \\Therein Nya1ali C .J said: - n We are satisfied that since the provisions of section 97 of the Locgl Government (Urban Authorities) Act, 1982 apply to the suit in question, non-compliance within renders the suit un rnani tanable 11 • This is a procedural or technical error on'the part of the applicants but non-compliance with the statutory requirements renders the application unmanitanable. In the event I dismiss the application but there will be no order as to costs. Ruling delivered in the presence of Dr. Mvungi and Mr. Mchimbi. H. NS:2:KELA - - JUDGE 24.10.97. CERTIFIED TRUE COPY OF THE ORIGINAL.