THE DISTRICT COMMISSIONER FOR KONDOA AND OTHERS DRAFT RULING

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA MISC CIVIL APPLICATION NO 26722 OF 2024

BETWEEN IDDI YUSUPH TIMOTI …….………………...……………1ST APPLICANT HAMIDU HASSAN KISHARI……………………………..2ND APPLICANT

VERSUS

THE DISTRICT COMMISSIONER FOR KONDOA DISTRICT ……………………………... 1ST RESPONDENT THE MANAGER, MKUNGUNERO GAME RESERVE…………..………………………………2ND RESPONDENT THE SOLICITOR GENERAL……………………….……3RD RESPONDENT THE ATTORNEY GENERAL……………………..………4TH RESPONDENT

RULING Date of last Order: 06/03/2025 Date of Ruling: 13/03/2025 LONGOPA, J: The applicant instituted an application through Chamber Summons for leave to file a representative suit against the respondents. The application is made under Order I Rule 8 of the Civil Procedure Code, Cap 33 R.E.

2019. The application is supported by joint affidavit of the 1|Page applicants. In course of responding to the application, the respondents raised the following preliminary objection, namely: That this application is incompetent and bad in law for suing wrong parties. At the same time, this court invited the parties to address on the appropriateness of the so-called village/residents meeting that made a decision to prefer an institution of the civil suit against the respondents. On 6th March 2025, the parties appeared for oral hearing of the preliminary objection. The respondent was represented by Mr. Erasto Barua, learned State Attorney while the applicants Mr. Hamis Hamis, learned advocate. It was the submission of Mr. Erasto Barua, learned State Attorney stated that the respondent raised a preliminary objection that the applicants have sued a wrong party. It is the requirement of the law that where any government entity is sued then the suit should be against the Attorney General and a copy of notice should be served to the Solicitor General under Section 6(2) of the Government Proceedings Act, Cap 5 R.E.

2019. The application joined the Solicitor General as one of the 2|Page Respondents appearing as the 3rd Respondent. This is against the law because the Solicitor General is sued by the applicants wrongly thus contravening the law. Also, the Manager of Mkungunero Game Reserve is not proper party to the case as all Game reserves are under the Tanzania National Parks Authority (TANAPA) who should have been proper party. It was the counsel for the respondents’ prayer that this application be struck out with costs. On the issue raised by the Court on validity of the meeting of the Village, it was submitted that prayer one relates to suing on behalf of all the Villagers of Kisondoko Village. The 1st and 2nd applicants are acting on behalf of Kisondoko Village. The parties are bound by pleadings as per case of Lupyana Michael Lupyana vs Mkombozi Commercial Bank and 2 Others, Civil Appeal No 207/ 2023 TZCA 7 December 2023 (TANZLII) at page19- where the court stated that parties are bound by their own pleadings and the court is also bound by the parties’ pleadings as it cannot determine any issue outside the parties’ pleadings. 3|Page The applicants are applying on behalf of the Kisondoko Village. Section 26 of the Local Government (District Authorities) Act, Cap 287 R.E. 2019 provides that once a Village is registered it becomes a body corporate capable of suing and being sued. The

provision of Section 26(2) (a) of the Act is clear on this aspect. There is a doubt that the applicants have locus standi from the village authority as they claim to represent the whole village. Further, even if the applicants have capacity/ locus the same ought to have obtained validation/ permit from the Village Council. Filing an application without the authorization of the Village Council makes the application improper. Section 142 of the Act provides for the powers and functions of the Village Council as it is the executive organ to manage the affairs of the village which are ordinarily vested on the Council. The minutes have not been certified by the Village Council thus the same is violating the law as they have no locus standi. Locus standi has been demonstrated in Chama cha Wafanyakazi wa Mahoteli na Migahawa Zanzibar vs Kaimu Mrajisi wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal No 300 of 2019 4|Page (TANZLII), at page 11, the Court stated that “only person whose interest is interfered shall have the right to sue.” It was reiterated by the learned State Attorney that the interests of the village is vested on the Village itself through the Village Council and Village Assembly. The purported meeting of the villagers to appoint the 1st and 2nd applicants to represent others are null and void making the application incompetent thus deserving to be

dismissed. Mr. Hamis Hamis, learned advocate for the applicant submitted that that the preliminary hearing does not meet the criteria/conditions stated in the famous case of Mukisa Biscuits at pages 696. The criteria of preliminary objection are that it must be capable of disposal of the suit and a pure point of law which does not need ascertainment of facts. According to the applicants’ counsel, the objection does not dispose the application. According to Order 1 Rule 9 of the Civil Procedure Code, Cap 33 R.E. 2019 states that misjoinder or non-joinder of the parties does not defeat the suit. On that ground, it was the applicants’ view that the preliminary objection lacks the standing to be within the matters falling under Mukisa Biscuits case. The respondents have not stated the law that 5|Page prevent the Manager of the Game Reserve to be sued thus they failed to support the objection to fall under the principle of preliminary objection. It is not pure point of law. The counsel for the applicants moved this court to find out that misjoinder of the parties is not fatal and the court may exercise its powers under Order 1 Rule 10(2) of the Civil Procedure Code to order striking out of the party who is wrongly joined. A case of Yahya and Others vs Jesse Mng’uto (Liquidator Tanzania Sisal Authority) and Others [2015] EA 472, the Court of East Africa stated that Order 1 Rule 9 of

CPC is clear that misjoinder of the parties, the cause available is striking out of the party to the suit. Also, in the case of Salaudin Mohamed Mussa vs Registrar of Titles, Land Appeal No 30/2023 at pages 8-9, the High Court stated that the suit shall not be defeated by misjoinder of the parties. Further, the case of Mexons Investment Ltd vs CRDB Bank PLC, Civil Appeal NO 222 OF 2018, at pages 8-9, that non-joinder of misjoinder of a party is not fatal. It was reiterated that this Court has powers to strike the name of wrong person/ party and order that a new party to be joined. The preliminary objection lacks merits. 6|Page On appropriateness of the Village meeting, the counsel for respondents have misdirected themselves on all the cases cited on the supporting the matter. The applicants are applying to sue on behalf of the resident and not the whole village thus the sections cited are irrelevant. The whole submission is about the Village Council while the pleadings are about the residents of the Village. They are not suing on behalf of the Village but on behalf of the Villagers. Under Order 1 Rule 8 of the CPC is very clear on representative suit as the parties have the common interest and the parties are numerous. The applicants are being removed from their land they have owned for long time properly. All the requirements have been adhered to including consent of the

residents as there are in the minutes and the same has been signed. It was submitted that there is no format of the Minutes nor requirement of choosing the leadership to chair the meeting. The Chairman and secretary to record the minutes of the meeting were appointed temporarily as the Village Chairman refused to participate. In the Minutes that we have there is no record as to who was appointed as 7|Page Chairman of the meeting. It was the prayer by the applicants that this Court be pleased to apply the principle of overriding objectives to the find that Minutes are correct and valid as per Articles 108A and 108B that call for the court not to be bound by technicalities. The prayer by the respondents of the dismissal of the application is improper and uncalled for but the appropriate remedy may be to strike out the application if this court finds the same to be incompetent as the court has not heard the parties on merits. We pray that the Preliminary Objection be dismissed with costs for lack of merits. In short rejoinder, Mr. Erasto Barua, the learned State concurred with the counsel for applicants that dismissal of the application would not be an appropriate remedy rather the right approach is to strike out the application. It was reiterated that as the parties are bound by their own pleadings as they pleaded to about all the residents of the village, thus the applicants

wish to deal with the village land generally that is within the Village authorities, namely the Village Council. It was thus prayed that this application be struck out as the overriding objectives principle is inapplicable. 8|Page Having heard the rival submissions of the parties, it is incumbent upon this Court to address the merits or otherwise of the preliminary objection against the application. It is correct position of law that the nature of preliminary objection is matters of pure point of law. This was the position in the case of COTWU (T) OTTU Union and Another vs Hon. Iddi Simba, Minister of Industries and Trade and 7 Others (Civil Application 40 of 2000) [2000] TZCA 14 (30 June 2000) (TANZLII), at page 3, the Court of Appeal stated that: In Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A. 696 where the Court considered what constitutes a preliminary objection. The Court said at p. 700 DE: - a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 9|Page The nature of preliminary objection if

upheld goes to the root of the case. That is the reason for same being determined prior to hearing the parties on merits. In ABSA Bank Tanzania Limited & Another vs Hjordis Fammestad (Civil Application No. 695/16 of 2022) [2024] TZCA 246 (26 March 2024), at page 4, the Court of Appeal stated that: It is settled in our jurisdiction, that when an application is encumbered with a preliminary objection, it should first be resolved before hearing the application on its merits. Failure to adhere to statutory provisions is regarded as a pure point of law. In the case of Razaki Omari &12 Others v Buseresere Village Council & 6 Others (Land Case No.12 of 2022) [2023] TZHC 23788 (10 October 2023) (TANZLII), at pages 4-5, the High Court (Hon Robert, J.:) observed that: The statutory provisions cited by the Defendants are clear and unambiguous in their requirement for a 90-days' notice before instituting a suit against the Government or a local government authority. The objection is founded on a pure point of law - the failure to adhere to a statutory prerequisite. The statutory provisions cited by the Defendants are clear and unambiguous in their requirement for a 90-days' notice before instituting a suit 10 | P a g e against the Government or a local government authority. The omission of the Solicitor General in the list of the served institutions as noted in paragraph 13 of the

Plaint and failure to serve the 1st and 6th Defendants as noted on the notice annexed to the Plaint, contravenes the statutory prerequisites. The Court acknowledges the Defendants' reliance on precedents, particularly HC Civil Case No. 28 of 2021, Audacity Intercon (T) Limited v. Bukombe District Council and The Attorney General, and HC Case No. 4 of 2021, Msafiri Makindi Mtigandi v. Mwanza City Council and 3 others. These cases emphasize the mandatory nature of the 90-days' notice requirement, and the failure to establish compliance renders the case incompetent. Non-joinder and misjoinder are governed by Order I rule 9 and 10(2) of the CPC. It is a general rule that nonjoinder and misjoinder should not defeat the matter. That principle has exception where the party is a necessary party for full determination of the case. The Wildlife Conservation Act, Cap 283 R.E. 2022 provides some hints on the proper party responsible for management of wildlife in game reserves. For instance, section 8 of the Act provides that: 11 | P a g e The Minister shall, in consultation with relevant authorities and subject to other written laws, cause the establishment of a Wildlife Authority which shall be autonomous and whose structure and functions adequately addresses the protection, management and administration of wildlife resources outside the Ngorongoro Conservation Area and national parks and

which shall be capable of implementing and fulfilling international obligations relating to wildlife conservation by engaging such companies for purposes of this section. Section 3 of the WCA provides that head of such institution shall be known as Conservation Commissioner. The Act specifically stated that “Conservation Commissioner” means the head of an Authority, a unit, agency or corporation established under the relevant law within the Ministry responsible for wildlife and forests. This is also cemented by Section 11 and 12 of the WCA which provides for powers of the Wildlife Service including the Conservation Commissioner being commandant of the respective Service. I have seriously perused if the authority envisaged by Section 8 of the WCA exists. Indeed, there is one. This is known as the Tanzania Wildlife Management Authority (TAWA) which was established vide the 12 | P a g e Wildlife Conservation (The Tanzania Wildlife Management Authority) Establishment Order, 2014 GN No. 135 dated 9th May 2014. The functions of the Authority are among other to manage all areas that are designated as Game Reserves and Game Controlled Areas. Mkungunero Game Reserve is falls with the mandate of the Tanzania Wildlife Management Authority abbreviated as “TAWA” thus it would appear that suing the Manager, Mkungunero Game Reserve is inappropriate as any order that this court can issue might

not be implemented fully because the institution with mandate to manage the game reserve is not party to the application. As such it would proper in my humble view that proper party to be sued in this matter would be the Conservation Commissioner, Tanzania Wildlife Management Authority (TAWA) as any order against that institution is bound be implemented that suing an employee of the institution work is assigned duty to oversee the Mkungunero Game Reserve with no mandate to change even an inch of the game reserve without the head of the institution owns the process. 13 | P a g e That being the situation at hand, I am convinced the Manager Mkungunero Game Reserve is not proper party rather the Conservation Commissioner, Tanzania Wildlife Management Authority who is the head of the institution. By virtue of Section 6(2) of the Government Proceedings Act, Act the Conservation Commissioner ought to have been served with a statutory notice of 90 days prior to institution of the matter against it. As the mandatory provisions of the law are required to be complied with, this application becomes incompetent. Order I Rule 9 and 10(2) of the CPC cannot apply by mere striking of the existing party and adding the name of the other party. It is lucid that as a general rule the non-joinder of the party appears to have no effect. However, that general rule is limited to situation where the

non-joinder does not involve necessary parties to the case. This was a principle articulated in the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018) (TANZLII), at pages 27-28 where the Court of Appeal of Tanzania stated that: 14 | P a g e Our CPC does not have such a corresponding proviso but, upon reason and prudence, there is no gainsaying the fact that the presence of a necessary party is, just as well, imperatively required in our jurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and nonjoinder of non- necessary parties. On the contrary, in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, so to say, to pass a decree which would be of no practical utility to the plaintiff. It is certain that where there is non-joinder of necessary party, such suit should be struck out. Illustratively, for example in the registered land, Commissioner for Lands and the Registrar of Titles are necessary parties. In the case of Ongujo Wakibara Nyamarwa vs Beatrice Gryson Mmbaga (Civil Appeal No.122 of 2021) [2024] TZCA 74 (20

February 2024) (TANZLII), at pages 5-6, the Court noted that: However, we are similarly aware of a settled position of the law that non-joinder of a necessary party is bound to 15 | P a g e defeat a suit. The learned counsel for the parties were in agreement that the non-joining of the Commissioner for Lands, the Registrar of Titles, the Temeke Municipal Council and the Attorney General rendered the suit unmaintainable. We agree with them. Effect of failure to join a necessary party has been enumerated in plethora of authorities. For instance, in the case of Nestory Msoffe & Others vs The Registered Trustees of Catholic Archdiocese of Arusha (Civil Appeal No. 254 of 2019) [2024] TZCA 536 (10 July 2024) (TANZLII), at page 6, the Court of Appeal restated that: In the premises, in view of the state of the pleadings and the stated position of the law, it was incumbent on the High Court to be keen enough and require the parties to amend the pleadings and join the Registrar of Titles who is alleged to have registered the respondent's property in question held under Certificate of Title. Since it is clear that the Registrar of Titles had a role in the registration of the land in question, the non-joinder of her in the suit before the High Court it means that the Registrar was not heard which occasioned a miscarriage of justice which cannot be condoned by the Court by hearing

and determining the present appeal. In the result, we have no 16 | P a g e option but to annul the trial proceedings and the impugned judgment. The first aspect on the suing the wrong parties has merits as the joining of the Solicitor General was not proper. Similarly, failure to join the Conservation Commissioner for Tanzania Wildlife Management Authority (TAWA) goes to the root of the application. The Conservation Commissioner, TAWA cannot be joined without compliance to provisions of section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2019 as a notice of 90 days’ would be required before joining him as party to the case. On the second aspect relating to the validity of the applicants representing the rest of the villagers. To address this aspect, two important aspect may provide a quick guide, namely: the statutory law on representative suit and the pleadings. The Civil Procedure Code, Cap 33 R.E. 2019 caters for the representative suit and in particular Order I Rule 8 (1) requires that there should be numerous persons having the common interest. It states that: 17 | P a g e 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 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 direct. It is settled law that parties are bound by their own pleadings. In the case of Equity Bank Tanzania Limited vs Ndume Ng'okorome Maswale t/a Ndume General Supply (Civil Appeal No. 443 of 2022) [2024] TZCA 1268 (12 December 2024) (TANZLII), at page 13, the Court stated that: It is trite that parties are bound by their own pleadings, [see Maria Amandus Kavishe v. Norah Waziri Mzeru, Civil Appeal No. 365 of 2019 (unreported)]. It is clear that from the pleadings of the parties namely joint affidavit in support of the application. Paragraphs 6, 7, 8 and 9 of the joint affidavit in support of the application reiterate on the village land and the Kisondoko 18 | P a g e Village being registered village have a primary school that is owned by government and that the villagers have not trespassed to the reserved land. In all the averments in the affidavit, the applicants are referring to the village land. There is nothing on the joint affidavit that indicates that either of the residents in question own any portion of land that was interfered or intended to be interfered. Given the applicants are seeking this Court’s leave

to sue on behalf of other villagers for village land, it is settled view of this court that the mandate to deal with village land would fall within the mandate of either the Village Council or the Village Assembly. As such, the provisions of sections 26,146 and 147 of the Local Government (District Authorities) Act, Cap 287 R.E. 2019 apply in the circumstances. Thus, the applicants as such would lack mandate to deal to act on behalf of the Village Council. In totality of events, I am inclined to find out that the application before this Court is incompetent on account of failure to sue proper parties to the case and contravening the role governing exercise of functions of 19 | P a g e the village council on the village land. The preliminary objection raised by the respondents is upheld. The application is struck out for being incompetent. No orders as to costs. It is so ordered. DATED at DODOMA on 13th day of March 2025. E.E. LONGOPA

JUDGE 13/03/2025. 20 | P a g e