Ruling Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI MISCELLANEOUS LAND APPLICATION NO. 24671 OF 2024 JOSEPH SLAA SULE ……………………………………….……..1ST APPLICANT JOHN AMSI LOHI ………………………………………………. 2ND APPLICANT

VERSUS MASUSU VILLAGE COUNCIL…………………….……....……..1ST RESPONDENT GISAMBALANG VILLAGE COUNCIL………………… ……..2ND RESPONDENT TANZANIA FOREST SERVICES AGENCY………………………3RD RESPONDENT HANANG DISTRICT COUNCIL……………………………………4TH RESPONDENT THE ATTORNEY GENERAL……………………………….........…5TH RESPONDENT

RULING 4th & 22nd November, 2024 Kahyoza, J.: Joseph SLaa Sule and John Amsi Lohi (the applicants), are praying for leave to file a representative suit on behalf of 86 claimants against the local government. The respondents opposed the application contending that they did not notify and obtain consent from people they wish to represent and that the notice of 90 days is irregular so the applicants applied for leave to sue prematurely. 1 Mr. Mlingi, learned advocate who appeared for applicant, submitted that the applicants intend to sue the respondents who invaded their land. He contended that the claimants have common interest and they nominated the applicants at meeting conducted on 15.5.2024 to represent them. Mr Tenges, learned state attorney, opposed the application contending that the applicants did not obtain consent from the person they seek to represent as the minutes authorizing the applicants were not signed by the chairman and the secretary. He added that even if, the minutes were properly signed, still there is another defect as the notice of intention to sue depicts that there were 125 undisclosed residents of Masusu and Gisambalang villages who intend to sue the government whereas the current application shows that there are 88 persons who intend to institute a suit. He argued that there is no evidence the applicants and 86 issued the notice in terms of section 90

of the Local Government (District Authorities) Act, [Cap. 285] and section 6 of the Government Proceedings Act. [Cap. R.E.2019]. The law is clear that a person who intends to sue the government should issue a notice of 90 days to the respective government department and to the Attorney General. He cited the case of GoodChance John Msaki and three others v. Kibaha Town Council and Two Others, Mis. Land 2 Application No. 409/2023 to support his contention. He prayed the application to be dismissed. The issue is whether the applicants have established the conditions for granting leave to institute a representative suit. Order I rule 8 of the Civil Procedure Code, [Cap. 33 R.E. 2019] (the CPC) provides for conditions a person applying for leave to file a representative suit must establish for the Court to grant the application. The conditions are- 1. the intended suit must involve numerous persons with the same interest; 2. a person seeking to institute the representative suit must have obtained consent from persons he is seeking to represent or the persons must be notified that the applicants intended to represent them and give their consent; and 3. obtain permission from the court. Order I rule 8 of the CPC stipulates thus- “8.-(1) 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 3 or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.” The applicants are seeking a leave to represent 86 people whose names are disclosed in the attendance list attached to the minutes. The minutes were annexed to the affidavit. The deponents averred that all 88 people have common interest, which is a claim for land, to which the respondents invaded. Thus, going by the affidavit and the annextures, there is no dispute that there are numerous persons with the same interest. The dispute is whether 86 persons gave consent to the applicants to represent them. The state attorney contended that the applicants did not establish that they obtained consent from 86 people they are applying to represent as the minutes of the meeting were not signed by the chairman or the secretary. Indeed, the chairman and the secretary did not sign minutes of the meeting of 88 persons appointing the applicants to sue on their behalf. There is no law requiring a person seeking leave to file a representative suit to submit signed minutes to support the

application. The law requires a person who wish to file a representative suit to give a notice to persons whom he seeks to file or to defend the suit on their behalf. The above cited law reads- 4 “…court shall in such case give, …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.” From the above cited law, it is vital that persons to be represented must be made away that a suit has been filed or will be filed on their behalf. The issue is whether the applicants notified 86 persons that they intend to sue on their behalf. To prove that 86 persons are aware and did nominate the applicants to present them, the applicants filed the minutes. The purported chairperson and secretary did not sign the minutes. It is my considered view that valid minutes as records of a meeting must be signed by a chairperson and a person who recorded them. A list of names and signatures of people who attended the meeting coupled with the record of what transpired at the meeting without names and signatures of the chairperson and secretary is short of the proper minutes of the meeting. Such minutes, lack authenticity as there is no one to hold accountable. I therefore, agree with the respondent’s attorney that

the applicants have not proved that they obtained consent from 86 persons they seek to represent or that 86 persons they seek to represent are aware of their intention to sue on their behalf. 5 It was also raised that the notice to sue was incompetent, for thar reason, the applicants did not issue a notice as required by law. There is no doubt that a person who intends to sue the local government authority at any level, must issue a 90 days’ notice as provided by sections 90 and 6 of the of the Local Government (District Authorities) Act and Government Proceedings Act, respectively. The applicants attached a notice of intention to sue the government, which the Law Accent Advocates issued on their behalf and on behalf 125 unknown persons. The notice does not unveil names of 125 persons who intend to sue the government. For that reason, no one can tell who are those 125 persons who intend to sue the government or whether 86 persons whom the applicants seek to represent are among 125 persons who issued the notice. I find, therefore that, only two persons, the applicants out of 88 persons who intend to sue the local government authority issued a notice of 90 days as per the law. The law does not allow a person or a ground of persons to give a representative notice of intention to sue but it states that “no suit against the Government shall be instituted, and heard unless the

claimant previously submits ….a notice of not less than ninety days”. There is no doubt that a notice issued by the applicants 6 representing 125 unknown persons is incompetent as far as 125 persons are concerned. It is a competent notice for the applicants as their names are specified. I am alive of the fact that, before this Court is an application for leave to file a representative suit but not whether the notice to sue is competent. The applicants are seeking a leave to represent 86 persons to sue the local government authority who have not issued a 90 days’ notice of intention to sue. 86 persons cannot sue the local government authorities unless they have issue a 90 days’ notice of the intention to sue. It is settled as the Court of Appeal of Tanzania held in Arusha Municipal Council versus Lyamuya Construction Company Limited [1998] TLR 13 that failure to issue the statutory notice before institution of the suit against the government makes the suit unmaintainable. It would be a futile exercise to grant the applicants leave to institute a suit on behalf of 86 persons who have not issued the notice to sue the local government authorities. I will abstain from granting leave to the applicants to institute unmaintainable representative suit. In the end, I strike out the application with costs as; one, the applicants filed the application for leave to file a representative

suit 7 prematurely without issuing a notice of intention to sue the local government authorities; and two, the applicants failed to prove that they notified 86 persons whom they wish to represent and obtain their consent to sue on their behalf. I order accordingly. Dated at Babati this 22nd day of November, 2024 John R. Kahyoza Judge Court: Ruling delivered in the absence of the parties and their advocates who could not connect to the virtual court. B/C. Mr. Shadrack (RMA) present. John R. Kahyoza Judge 22. 11.2024 8