JOSEPH AND OTHERS V THE PERMANENT SECRETARY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB-REGISTRY AT SHINYANGA LAND APPLICATION NO. 72 OF 2023 1. JOSEPH JIGEMELO MASANJA 2. JILUKA KOBELI 3. VELONIKA HOJA APPLICANTS 4. JILALA DAUDI 5. BUSIGA NJEMU VERSUS 1. THE PERMANENT SECRETARY, MINISTRY OF NATURAL RESOURCES & TOURISM RESPONDENTS 2. SHINYANGA DISTRICT COUNCIL 3. THE ATTORNEY GENERAL RULING 18th March & 10th May, 2024 MASSAM, J.: This ruling is in respect of the application filed by the applicants on behalf of 1205 others for a representative suit relating to suit land namely Lyamidati Kadoto, Nghomango, Mwabundala, Mwajiji, and Mwabasa in Shinyanga District, within Shinyanga Region which are located at Nindo area. 1|Page The application is brought by way of chamber summons under order I rule 8 (1) of the CPC supported by supplementary affidavits of theapplicants,seeking for thefollowing Orders; (1) That this honorable court be pleased to grant leave to the applicantsto file a representative suit. (2) Any other relief as it may please the Hon. Court to grant in thecircumstances. During the hearing of the application, the applicants were presented by the learned advocate Mr. Chrispine Myeke Simon whereas the respondents were represented by learned State Attorney Ms Amina Mkuya. Submitting in support of his application, Mr. Myeke argued that regarding to his first reliefs; the representative suit there are four conditions emanating from Order I Rule 8(1) of the Civil Procedure Code [CAP 33 R.E 2019] to be met and that is; 1st there must be numerous parties, 2nd there must be a common or shared interest among the parties, 3rd the reliefs sought must be beneficial to all and 4th the leave must be sought and obtained from the court with competent jurisdictions. 2|Page He submitted that, parties in this suit are 1205 in number and the applicants are in sought of leave to represent the remaining aggrieved 1200 persons, he referred this court to the case of Hasanali V Mansoorali, (1947-48) 75 IA where it was decided that number of those represented must be definite to enable the court to recognize the participants in the case. He added on that the second condition is that, all 1205 applicants are residents of the suit land in dispute namely Lyamidati Kadoto, Nghomango, Mwabundala, Mwajiji, and Mwabasa in Shinyanga District, within Shinyanga Region which are located at Nindo area and that they are the lawful owners of the pieces of land comprising residential houses, agricultural land, animal husbandry and permanent trees since 1957s until 2022 when they were ordered to vacate by the respondents alleging public interest and trespassing on reserved land, therefore the 1205 applicants shares a common interest and grievance in the case. He urged on the third condition that, the relief sought by the 5th representatives on their behalf is beneficial to all 1205 applicants as was held in Duke of Bedford V Ellis HL Dec, 1900. Lastly on the fourth condition, he submitted that all the applicants have given their consent to be represented hence this leave of the court 3|Page to file representative suit against the defendants as was pinned in Diwakar Shrivastawa V State of M.P. 1984 Supp SCC 214:AIR 1984 SC. On her reply Ms Amina Mkuya contended that the application for leave to file representative suit by the applicants should not be granted because there is no proof that the applicants did meet the requirement of Order, I Rule 8 (1) of the CPC. She expounded that as the requirement of the law as for the court to grant leave to the applicants to sue under representative capacity, it must satisfy itself that the purported person to be represented have common interest in the subject matter. She added that in the applicant’s supplementary affidavit at paragraph 10 states that 1200 others have appointed the applicants herein to file on their behalf but there is no copy of minutes of the meeting in the annexture authorizing the applicants to represent other 1200 persons which means that they did not consent to the application at hand. She argued further that, the list in the annexture shows that there is a total of 31 people who have not appended their signature which means they have not consented to this application and have not mandated the applicants to sue on their behalf. 4|Page She cited the case of Abdallah Msakandeo & Others Vs City Commission of Dar es Salaaam & two others (1998) TLR 439 and K.J. Motors & Three Others Vs Richard Kishamba & Others, Civil Appeal No. 74 of 1999 Court of Appeal of Tanzania at page 4. She concluded that, the existence of numerous persons in the suit does not suffice the grant to leave to file a representative suit, but applicants have to show willingness to be represented, and in this case the numerous persons did not append their signatures to show their willingness/consent to be represented hence the applicant’s applications contravenes the provision of Order I Rule 8 (1) of the CPC. Having heard submissions from both parties, the issue for determination iswhether the applicants have been able to satisfy the court that they deserve tobe granted leave to file a representative suit. This application was brought under Order 1 rule 8 of the CPCCap. 33 R: E 2019 that provide as follows:- 8(1) “Where there are numerous persons having the same interest in one suit,one or more in 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 ofall persons so interested; but the court shall in such 5|Page case give at the plaintiffs'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 such the court in each case may direct.” This rule establishes principle that a person can only act as a representative and initiate proceedings on behalf of others with the same interest after he or she has obtained leave of the Court. In the case of Kiteria Manezes and 33 Others vs. Area Engineering Work Ltd and The Attorney General [1998] TLR 434, it was held interalia that; "...A pre-condition to filing a representative suit is that an application for leave to file such suit has first to be made..." On the other hand, in Abdallah Mohamed Msakandeo and Others versus City Commission of Dar es Salaam and Two Others (1998) TLR 439, the Court was of the view that the law requires an application for leave to file a representative suit to establish that numerous persons are similarly interested in the intended suit and they are willing to join in it. Therefore, from the above preposition theapplicants have to show their willingness to be represented by one orseveral of them, the mere 6|Page existence of numerous persons does not automatically serve the grant to leave to file representative suit. The rationale of seeking leave to sue on behalf of other was well elaborated in K.J. Motors & Others Vs Richard Kishamba & Others, Civil Appeal No. 74 of 1999, that: “…where for instance, a person comes forward and seeks to sue on behalf of other persons, those others persons might be dead, non-existent or otherwise fictitious, else he might purport to sue on behalf of persons who have not, in fact, authorised him to do so….” In the perusal of the supplementary affidavit filed by the applicants and its annexure MM1 purported to be a copy of minutes dated on 1/08/2023 and the list of names of all applicants, there is no copy of said minutes of the meeting in the annexture authorizing Joseph Jigemelo Masanja, Jiluka Kobeli, Velonica Hoja, Jilala Daudi and Busiga Njemu to represent 1200 others but rather the list of names of the applicants. Furthermore, the applicants needed to consent to be represented by the persons by appending their signatures in the affidavit, the signatures signifies that they have consented and authorised the 7|Page applicants to sue on their behalf, also that means that they are ready for any consequences which will be resulted in that case, for example if they succeed will succeed together and if they fail they fail together and the execution will be executed to all and not to the representatives only so their consent are very important. It is the duty of the court to look at the affidavit and its annextures to ascertain the existence of the persons being represented and their consent to be represented. In this application the applicants swore that they all obtained the consent of all 1200 people to be presented by appending their signature as per annexture MM1, I have perused the list of the names of other 1200 applicants and the total of 31 peoples as contended by the respondents have not appended their signatures which means that, they have not consented to this application and have not authorised the five applicants to sue on their behalf as purported under paragraph 11 of the applicant’s supplementary affidavit. For instance, the list of the names of the applicants of Buzinza - Ndala area items 31, 32, 36, 37, 47, 52, also those at Bugonelo Mashariki Mwabasa village at items 63, 64, 65, 82, 97, Also those at Nyabubinya Kadoto on items 23, 24, 25 just to mention a few have not appended their signatures which gives doubt this court as to their existence and if they exist, their consent to be represented as 8|Page was observed in K.J. Motors & Others Vs Richard Kishamba & Others (SUPRA). From the above observations as correctly submitted by the respondents it is uncertainly if the other 1200 applicants have consented to be represented by the Joseph Jigemelo Masanja, Jiluka Kobeli, Velonica Hoja, Jilala Daudi and Busiga Njemu. That being said, there is no proof whether there was a meetingas per the affidavit that the residentsmet and discussed the dispute over the disputed land and resolved unanimously that the applicants herein should represent others in the potential suit contrary to the applicants to the provision order I Rule 8 (1) of the CPC. In the result and for the reasons given above, the application is hereby struck out for being incompetent. No order for the costs. It is so ordered. DATED at SHINYANGA this 10th Day of May 2024. 9|Page R.B.Massam JUDGE 10/5/2024 10 | P a g e