19990720 TZHC Mtwara

IN THE H!GH COURT OF TANZlu'HA AT.. ).\1TWARA .a,........,__._ MISCBLLAii/EOUS CIVIL APPEAL NO. 7 OF 1998 (Ar:i.sing from the Ruling ofMtwara District Court in Hise. i Civil Apple No. 18 of 1998) ) ISSA ATHtNANI ivO?INI ).ooo•~-APPEIJ,ANTS ZJ-l.INABU MWENDA. AKJ.u,AMA ) versusi _ 1. THE REGISTSRED TRUST1'~ES OF ) ill'10JA WA VIJA.NA WA c.c.H. ) ) i •••• RESPONDENTS 2. THE m;::GIONAL SECP-E'l'ARY ) UNOJA WA VIJ;.\NA WA c.c.H. ) MTHARA REGION ) JUDGMENT The appellants ISSA AT,HWiANI MPINI and ZAINABU NWENDA AKAL.AHA had intended to instistitute a suit in a representative capacity for and on their behalf and that of 18 mcobors of a non-governmental organisation known as MTWARA ECONOMIC DEVELOPMENT INITIATIVE (MEDI). They had intended to istitute that suit before Mtwara Resident Magistrates Court. When the fee for instituting their suit was assessed at shs. 123,000/- they found themselves unable to pay it or part thereof. They therefore applied for leave to institute their suit without paying any fee as paupers. Their· application was turned down by the trial Court which held that they were not so poor to an extent of failing to raise the required fee from their organisation/members. They were aggrieved. Hence this appeal. In their memorandum of appeal they raised 4 grounds of appeal, namely:- 1. That, the learned Senior Resident Magistrate misdirected himself when he considered their status in deciding their application rather than considering the deteriorated financial position of their organisation. 2. That, had the learned trial Senior Resident Magistrate ~arefully evaluated their affidavit, their testimonies and Rule 8(1) he could have found that there were other good causes established which suffieed to grant their e..pplication subject to the requirement of a proviso to the aforesaid rule. • ••• /2 ••• 2 3. That the learned Senior Resident Magistrate erred in fact as he misquoted their testimonies, and thus wrongly held that-they had incurred different types of expenses amounting to about shs,. 1,332 1 000/- the fact which_ is not tru~.• ~. That the learned trial Magistrate erred in failing to evaluate properly the whole matter which was before him and therefore arrived at anunjust decision. In reply the Regioncl SecretC:1.ry Umoja wa Vijana wa CCM Hr.• Juma Hamisi for the respondents-objected strongly this appeal on the ground that the appellants are not so poor .so·a.s not :to be able to pay the required fee 0 He suspected the other members not to be intere.sfed ·in thl.~ case otherwise he said they would contribute that money for their organisation· 1:;o· pay-._ He. suspected the appellants to have taken up the matter on their own initiative for their own interest. I have carefully considered the appellants' grounds for being allowed to institute their suit free of chnrgeo I have also carefully considered the ruling of the learned trial Senior Resident Magistrate together with the Audit Report produced at the hearing of this appeal and the over all circumstances surrounding this caseo There is no doubt that the appellants are intending to institute a suit against the respondents not as individuals but in a representative capacity on their own behalf and on behalf 0£ 18 members of a non-governmental organisation kno\-m as Mtwara Economic Development Initiativeo Therefore in considering whether to all0\·1 them to institute the intended suit free of charge the consideration should not be limited to their individual financial standing, but must also extent to cover the financial standing of the members and the organisation itsGlf whicl--/whom they are intending to represento 1'here is nothing indicating that the appellants and the other members whom they are intending to represent are so poor that they cannot raise the required feeo I have had an opportunity of going through the 1997 Audit Report of their organisation. In that year their organisation's financial stcmding was not a happy oneo There is nothing showing how their orgonisation's financial position was in August 1998 when they filed their a.pplicationo Since there is nothing indicating that the appellants and the other members whom they "\re intending to rcpres~nt a.re so poor that they cannot raise the required fee; and since -~li-:.:.-::-- i .c:: nothing showing how their · organisation's firvt•1.dal po~:i.t:i.--.:n was-in Augustr 1998 when they filed their application',- their nppl:i c;:-+.•: - - -~ ~ 0 z:'--': 1 .:v rcj'.)Ctod. by the trial Court/ There was nothing to m-?.~:8 the trial Court L1voke t.~1e provision of Rule 8( 1) 4!. ~ ./3. 0. 3 of the Court Fees Rules, 1964A Appeal dismissed~ :Court: Judgment has becm delivered in the presence of the appellants in person and in.the presence of tho respondent this-20th dayof Jul,y, 1999a So· - No Ki-I.JI JUDG:'~