NA TZHC Dar es Salaam2 1

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM.- MAIN REGISTRY MISC. CIVIL CAUSE NO ............... 39 OF 97 JOSIAHN BARTHAZAR BAIZI & 138 OTHERS ........ APPLICANTS VERSUS -ATTORNEY GENERAL & OTHERS ............ RESPONDENTS R UL I NG M.ACKANJA, J. Josiah Balthazar Baisi and 137 others have lodged a chamber application in which they pray for leave to apply for the prerogative orders of prohition and mandamus. The application is supported by the affidavit of the said Josiah Batlthaza Baisi, to whom I will henceforth refe~ alternately by name and as the first applicant. I The affidavit supporting the application contains sixteen paragraphs. The first two are devoted to lay the fo~ndation for the communality of interest which has galvanized the applicants to act in unison. Indeed it also appears that it is that common interest, if it exists at all, they seek to protect. It is in that behalf that Josiah Balthazar Baisi has been authorized by his co-applicants to swear the affidavit supporting the application. He swears in paragraph two of that affidavit that he js the chairman of the COMMITTEE AGAINST PROPERTY DEPRIVATION WTTHOUT FULL AND FAIR COMPENSATION THROUGH DANISH "AID" TO TANZANIA. It seems, as he swears, that the first applicant is conversant with the facts to which he deponed by reason of the leadership position he enjoys in tha~,...,committee . - 2 - Paragraphs 3, 4, 5, 6 and 7 of the first applicant's affidavit contain testimony relating·to his own interest in the suit land. He swears that he has o~ned his part of the suit land since 1950 and it is a dee~ed right of occupancy known as Plot No. 8 Block c, Kimara Dar es Salaam. His parcel of land, which lies between O and mile 6.22 mile is surveyed and is within a distance of seventy five ( 75} feet from the centre of the Morogoro high way. documents relating to the survey of that parce 1 of land are annexture IA and IB to the . applicant's affidavit. Po.int 11 0 11 referred to in paragraph 5 is the Askari Statue or monument in the City of Dar es Salaam. Pt" is sworn further that in the course of his apparently undisturbed possession the applicant developed the land by erecting both commercial and residential premises, and that he executed those works without warning or object ion from al 1 or any of the respondents. Paragraphs 9, and 10 specifically relate to matters of a general nature concerning·· interest in the suit land that the other applicants allege they enjoy severally. For instance,it is sworn in paragraph 8 that the majority of the ~arcels of land that are occupied by the other applicants lie bet~een 6.22 and 23 .12 miles from the Askari Statue and within a distance of between seventy - five (75) feet and four hundred ( 400} feet from the centre of the Morogoro highway. According to paragraphs 9 and 10 of the affidavit the bulk of the lands occupied by the other applicants is also held under deemed rights of occupancy, I and that the rest of those lands are held under rights of occupancy granted under the Land Ordinance Cap. 113. In common with the first applicant's own land, it is sworn that the other parcels of land have been developed without let or hinderance . from anyone, with residential and commercial buildings and farms. The peaceful possession of the suit parcels of land changed into uncertainty when sometime in 1991 the second respondent and/or the third respondent marked with an "X" all buildings then standing on the suit land, denoting Governme'nt intention to .- • - 3 - demolish them. It seems that it was· not desired to effect that intention immediately. For it was on Friday, the 11th day of July, this year that the Deputy Minister of Works announced Government resolve to effect that intention when he made a statement in the National Assembly which according to paragraph 12 of the affidavit contained the following directives, that is to say:- (i ) that Government intends to undertake extensive ' ~\ expansion of the Morogoro Road between Ubungo and Kimara/Temboni, (ii) that the Ministry of Works required the applicants to demolish, at their own cost, their houses, buildings and other structures before 1st September 1997; (iii)that the Ministry of Works would itself carry out the demolition after 1st September, 1997. (iv) that no compensation would be paid to the applicants; and (v) that the applicants would bear the cost of such demolition by the Ministry. It is sworn in paragraph 13 of the supporting affidavit that on di verse dates as reported in the pr int media, annextures marked IIA, IIB, IIC, IID, IIE, IIF, IIG and IIH, that the Deputy Minister of Works and on behalf of the second and third respondents, repeatedly stated that the applicants would not be paid compensation upon the demolition of their buildings and other structures. What is more, as sworn in paragraph 15, the respondents have arrogantly ignored the applicants' protests. Copy o~:the letter of protests is annexture III to the affidavit. The applicants are now advised by their advoc,ates that the actions threatened by the second and the third respondents are " \ - 4 - i l ~ ttxi» tt:lbe ~ that they contravene provisions of the Highways Ordinance, Cap. 167, the Land Acquisition Act, 1967 and the Constitution of the United ·Republic It is in that connection that Professor G. Mgongo - Fimbo, the applicants' learned counsel, has taken out a chamber summons on their behalf ,, that spells out the reliefs they seek. The respondents have opposed the application, first by notice of preliminary objection, secondly, by counter affidavit. There are four points of preliminary objection. First ,._.. that the :;\ affidavit in support of the application does not give a full and frank disclosure on the following facts:- _(:a) names of applicants who hold title deeds or describe the properties of each in a sufficient extent as to enable the respondents to prepare their defence; (b) the circumstances leading each of the applicants to the ,,_occupation of the land within .the highway corridor and reserve in view of the fact that the occupiers thereof were adequately compensated in the 1970; (c) whether or not the pplicants had been issued with building permits for development of permanent structures thereof; (d) the whole of Dar es Salaam within which the disputed area is located has been declared a development area and as such, deemed rights of occupancy have been extinguished. The first preliminary objection concludes that the affidavit in support of the application unfairly prejudices the respondents in making their defence and, to· that extent, it should be struck out. • - 5 - Secondly, it is averred by the respondents that there are applicants who do not own any_ property within the Highway corridor and road reserve, and consequently, that they have no standing to bring the application and that their inclusion is an abuse of the court process.. Thirdly, that this is an unfit case to be determined by way of judicial review. That the respondents have noticed that some of the certificates of occupancy issued to some of the applicants are not genuine. Fourthly, in the alternative and without prejudice to the ·.<\ first three preliminary points of objection, the respondents pray that the applicants be ordered to provide security to cushion the respondents against increased construction costs that will arise out of the delay in commencing the works due to the applicanats' objections because on a balance of convenience the respondents are likely to be more adversely affected than the applicants. And if I may say now, all that is contained in the counter affidavit that was sworn by Humphrey G. Urio, who, for the time being is the Director of Roads in the Ministry of Works is an elaboration of the preliminary objections put in evidential form. So I will consider the counter affidavit in tandem with the preliminary objections. The preliminary objections raise very fundamental points of law. A decision on them will entail all that this Court is required to do at this preliminary stage of the proceedings. Necessarily, therefore, such a decision will consider the practice and procedure that govern an application such as this one. In order to be consistent I will consider the objections seriatim. Mr. Werema, learned Senior State Attorney, who appears for the respondents and Professor G. Mgongo - Fimbo who advocate for the applicants, are agreed ,. that the practice and procedure we apply in applications such as this one are identical to that obtaining in England, especially in terms of. Order 53 of the Rules of the Supreme Court ( R.S.C.). Because of the identical • ' - 6 - . . nature of these procedures Mr. Werema has invited me to consider .-, ., Ena.lish case the law when deciding . -this application. Of course I would have done so even without such an invitation. It is Mr. Werema's submission that according to that procedure the affidavit supporting the application for leave to file an application for prerogative orders must make a full and frank disclosure of all material particulars in dispute. Failure to 40 so, he argues~ will be-sufficient·ground for the dismissal of the application. He has cited one English decision in support of his submissions: O'RellY and Others v. Mackman and Others, ~" [1983] 2 A. C. 237. It is his contention that the affidavit of Josiah Balthazar Baisi, the first applicant, does not meet that test because when the Dar es Salaam - Morogoro highway was developed in 1972 all owners of land who were affected were compensated. It was therefore incumbent upon the applicants to show how they ·re-occupied an area in repsopect of which compensation was paid. This failure, according to Mr. Werema, indicates that the affidavit supporting the application does not cont~in a full and frank disclosure of material facts. -Mr. Werema has also pointed out that in a planned area like Dar es Salaam, the Town and Country Planning Ordinance, C~p. 378 requires anyone to obtain a building permit before he puts up a building. He contends that there is nowhere in the affidavit supporting the application where it is disclosed that the · ap~licants lawfully constiucted their house and other structures which are the subject of tbis application. There is also the question of the deemed rights of occupancy. Mr. Wererna contends that the applicants have failed to make their case in that regard because the affidavit of the first applicahi does not disclose how the purported deemed rights of occupancy were acquired legally. Indeed, it is learned Senior State Attorney's submission that the list of applicants incluqes names of people who are not within the road corridor. Their names, he says, are listed in paragraph 6,of their counter affidavit. ~· ............. · ....... 1 '· .- -~~- "t A t ; ~; / ' .-: ..'· - 7 ... 0 •- .... -. Accordj ng to.~learne.d S(i)nior,,Sta.te- Attorney, the inclusion of such ~ --- ..... - . . . . .- ~ - ~ ~ - " " ' " :, - ....... , • ,: ..... , •0 ,._ _ _ R-- -• -~ ---~ ~-•••- names should lead to a finding that the disclosure is · not sufficiently frank as the affidavit includes names of people who are not covered at all. It would appear from his ~ubmissions that Professor Fimbo -..d~ i: i:i,e,t ::¥~~t.:it:-- f~~:-d--!!cSe±esttre'- ·of mater ia 1 facts as a basic -~_,:.::....:.I consideration which has been contravened by his client. According to him section 17A of the Law Reform ( Fatal Accidents and Miscellaneous Provisions} Ordinance, cap 360, has not done away with the preliminary character of an applicati.c;m ,~ such as . this one. He submits that altl:l_ough the Attorney General must now /~:~:-.~?<l-:e-,"a~p:am•¥.:""tcr·:"t.'ffntt"'·proc:~edings, all that is. necessary at this sage is for the applicants to establish arguable or triable i.ssues. He derives. support for this proposition from the decision of this Court Cih Mecaiana Establishment v. Commissioner i of Income Tax and Six Others. Misc. Civ. Case No. 156 of 1993. He has therefore invited me to allow this application because it .... ~~-~as:,~ato:.•1·ecrse.:::.1t;tfree ·ar"'gU~bTe· issue's, namely:- ( l) _. rwhether the applicants own interests in the suit ~parcels of land; ;, (2) Whether the applicants have property in the houses; ~uildings and other structures within a distance ·of 400 feet from the centre of Morogoro Road, and : ,,, :.·r3'f,~·-whe't'h_eiJ.,Hi~ appli.ca'~ts or any of them are entitled to ~ompensation or otherwise for the houses, buildings ~nd other structures due to be appropriated for the purpose of the Highways Ordinance. -.According to Professor Fimbo evidence that the there are ·•;:.,·.,e:tria'ble· issti'ef~'fncludes, 'ttie. fact that the respondents concede in paragraph 14 of their count~r affidavit that Government has threatened to demolish the applicants' houses, buildings and other structures without f irsJ · paying them full and adequate compensation. ~--,!·. -~- ,-~·.-:•"t-::'f:· , .-.;!"· ·-, So before me there are two competing propo~itions. The one is as submitted by Mr. Werema _a,i.:td the other is as submitted by ·.:.~t - 8 - Professor Fimbo. I have given a careful consideration to those proposition which I think are sound. They are worth considering although in saying so I do not. intend to say that those propositions alone, sin~ly or in 6ombinationr-would be sufficient ground upon which leave. would or· would not, be granted. on the other hand, if taken at face value Mr. Werema's contention is rather pre-emotive of the application for the prerogative orders. What he has urged me to accept are matters the legitimate forum of which would be in an application of the prerogative orders. As I do not intend to prejudice the case one way or the other, I am satisfied that for the ~urposes of the present application .,, the applicants have made a sufficiently full and frank disclosure. A part from the applicants obligation to make a full and frank disclosure of all material facts on which they rely, I accept Mr. Werema.'s submission that uberrima fides, that is the utmost good faith, is required. It is, ,in fact, a mandatory requi_r:ement. This position of the law as is applicable in Engla-nd was made clear as long ago as in the case of R. v. · Kansington Income Tax Commissioners ex parte Princes Edmond [1917) IKB 486. But, as pointed out by the learned authroers of Judicial Review of Administrative Action by S.A. De Smith, 2nd Edition which is the only edition I could lay hands on from our Library, at page 439:- '' ... Uberrima fides is required and leave will not be granted if there has been a "deliberate misrepresentation or concealment of material facts in the applicant's affidavits .... " I have perused the applicants' affidavit with due care. I am satisfied that that· affidavit does not: show that there is delibeiate misrepresentation or concealment of facts. All that there is in the counter affidavit that tends to indicate that such a situation exists are contentious matters. There is for .i.nstance the claim that some of the applicants were compensated in 1972; - 9 - or that yet others have no property within the disputed lands. To me these are matters that requir~ proof by concrete evidence. I find no evidence in the ~ounter affidavit that proves these allegations. I am satisfied, therefore, and I find as a fact that the first applicant's affidavit meets the requirement of uberrima fides. It is in this vein that I uphold Prof. Fimbo's submission on this point. If not considered carefully a decision on the various paragraphs of the first point of bjection wi_ll pre.:::-empt an r.:, application for the prerogative orders if such an application will be filed. Matters that are raised in paragraphs (b)(c) and (d) in the first objection will have their legimate place in that other application. By and larger therefore, the first objection would fail. The second preliminary objection relates to the locus standi of the applicants. Mr. Wereml has argued in this connection that the affidavit of Josiah Balthazar Baisi does not disclose that all the numerous applicants have a right to appear and to be heard in these proceedings, namely that they have no locus standi. If I understand Mr. Werema well, which I do, he is of the view that the applicants had to establish their title to the parcels of land they claim before leave is granted them to file an application for the prerogative orders. Without doing so they have no locus standi . Professor Fimbo · has traced the law relating to how the Morogoro Road became a highway and how his clients as owners or reputed owners or people being in actual possession of land are entitled to compensation before such land is appropriated by the Government. So, to him, his clients have locus standi . I think it is important fo make a distinction between locus standi as regards claims of an individual nature for a private law remedy and claims the purpose of which is to get a relief or remedy for the public good which is based on pijblic law. The present application falls under the second category where an - 10 - individual or several individuals who had suffered damage may be allowed to file an application for.leave for an application for judicial review for the benefit or a segment of society who have suffered a similar injury. In this connection the decision in the English case of Reg. v. Inland Revenue Commissioners, ex parte National Federation of Self - Employed and Small Businesses Ltd, [1982] [1982] A.C. 617, at p. 641 instructive. In that case Lord Diplock, quoting Lord Denning in Reg. V. Greater London council ex parte Blackburn [1976] I w. L.R. 550 at p. 559 endorsed th& following principle which I :i;\ ' propose to emulate in thesef proceedings:- " I regard as· a matter of high· constitutional principle that if there is good ground for supposing that a government department or public authority is transgressing the law, or is about to transgress it, in a way wh:i.ch off ends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of .law and seek to have the law enforced, and the courts in their discretion dan grant whatever remedy is appropriate." ( Italics supplied by Lord Diplock). So, even if all the applicants had not joined the first applicant, he alone or with several others would have been entitled to apply for leave for application the remedy of which i'-1 would cover even those who did not came to court for redress.· Today locus standi is not viewed in its original narrow meaning It has been expanded to include "sufficient interest", so that anyone with sufficient interest may seek a remedy on behalf of others who are also injured. The expression llsufficient interest" was given the widest possible meaning in the =R~v~.-~I=n=l=a=n=d=-~R=e~v~e~n=u=e"-~C~o=m=m=1=·s=s==io=n=e=r~s-=e=x'--=P~·-=t=h=e-=N=a=t=i=o=n=a=l Federation of Self Employed and Small Business Ltd (supra) when Lord Wolberforce said, at page 630:- ..... - 11 - - . 11 Before proceeding to consideration of these matters, something more needs to be said about the threshold requirement of of 'sufficient interest'. The courts in exercising the power to grant prerogative writs, or, since 1938, prerogative orders, have always received the right to be satisfied that the applicant-had some genuine locus standi to appear before it. This they expressed in different ways. sometimes it was said, usually in relation to certiorari, that that the applicant ~µ~t -. •\ be a person aggrieved or having a particular grievance ... ; usually in relation to mandamus, that ;,.he must have a specific legal right ... ; sometimes that he must have a sufficient interest .......... By 1977 when R. S. C. Order 53 was introduced, the courts, guided by Lord Parker, C. J. , in cases where mandamus was sought, were moving away from the Lewisham Union test of specific legal right, to one of sufficient interest ... " Loid Diplock shared the same views with Lord Wilberforce as can be seen from page 636 to 642. Lord Scarman said this, at page 653:- "The interest The sufficiency of the interest is as I understand all your Lordships agree, a mixed question of law and fact ... . .. . The one legal principle, which is implicit in the case law and accurately reflected in the rules of court, is that in determining the sufficiency of an applicant's interest it is necessary to consider the matter to which the application related. It is wrong in law, as I understand the cases, for the court to attempt an assessment of the sufficiency of the applicant's interest without regard to the matter of ., - 12 - his complaint. If he fail~ to.show, when he applied for leave, a prima facie case, or reasonable grounds for believing that there has been failure of public duty,the court would be in error if. it granted leave. The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such . a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief - makers ... " Hence, whether or not sufficiency of interest has been established is a matter that is within the discretion of the Court. The natural question that flows from these considerations is, therefote, whether the applicants or any of them have established sufficient interest. I am satisfied that they have done so. Firstly, there is the first applicant whose claim is sufficiently detailed in his affidavit. Secondly, there are those Mr. Werema has admitted are entitled to compensation. All,these have a right to be heard in pursuit of their rights. It appears that there may be some confusion that hovers around the issue of locus standi. It seems that this isue once decided, then.whoever has been seen to have the right to be heard during the application for leave will necessarily have that right in the application for the prerogative orders. The position is not so for all cases. Locus standi can be raised as an issue during the preliminary stage in the application for leave. At that early stage the Court may i·• find, in simple cases, that an applicant for judicial review has no right of being heard, he has no standing, as it were. These are the kind of people Lord Denning called busybodies, cranks and mischief-makers. These ·are the kind of people who have no interest at all, or they have no =suffieicnt interest to support their claim. It will, in these circumstances, be corre~t at the threshold, to r~fuse , leave to apply. In cases that invo1 ve · complex issues, the question of sufficiency of ,interest has to ' . ' 13- be considered together with the legal and factual context of the_ application. If the application for· the pregative orders is made, the question of locus· stand:i will :then be determined regarding those who passed the test at the threshold stage; those who can establish that indeed they had a grievance. So, although public - spirited land owners may succeed in an application for or leave on behalf of a larger a group they may not of necessity succeed at the stage of the application for those orders if they cannot establish their right of standing. In view of the foregoing observations I am satisfied ~;\tbat the applicants have established a sufficient interest to be able to .apply for leave. The second objection would accordingly fail. As to the third preliminary objection, that this is an unfit case to be determined by way of judicial review, one may say right from the outset that the answer resides iri the purpose for which prohibition and mandamus is all about. Before I go to that stage I will revisit submissions by learned counsel. Mr. Werema has submitted that the application,, considered in the light cif the first applicant's affidavit, concerns a matter that may not be decided by way of judicial review. He refers to those applicants who have certificates of occupancy and to those who will be compensated and that the latter group are already made aware of the Government decision in their favour. I understand him to mean that although such people may have grievances, they can get-a remedy in private law in the nature of a civil process other than by way of a public law remedy through judicial review. Indeed , he went on to say that that appears to be the position because none of the applicants opposed the road expansion project. That they clcµm compensation which may be paid even after the works have been executed. Professor Fimbo did address this issue especially emphssing. the point that his clients are entitled to a remedy because their property in the suit land will be appropriated by the Government. So that the Government should be prevailed upon by way of an order of prohibition until the compensation is paid, and an order of mandamus t9 compel the Government to pay the compensation. • • . . ' - 14 - Now, what really is the purpose and essence of the prerogative order of mandamus? There is no doubt that the order of mandamus may be issued to any person or body commanding him or them to carry out some public duty. The public duty envisaged in thes~·proceedings is the statutory requirements that have to he met before private land is acquired for purposes of public roads construction or for expansion of such roads. Professor Fimbo has made the point that the parcel of land on which it is intended to expand the Morogoro highway is owned by his clients the ' .~ in terms of the definition of the word "owner" in section 2 of Highways Ordinance, Cap. "'1676, which includes a "reputed , owner", the applicants he argued, fall under this category. In addition, the Township and Country Planning Ordinance defines the word "owner" to include "any other person in actual possession of land". His clients are covered by this definition as well he argued .. To me these defitions per se do not bestow uncontroversial rights on the applicants. They have to establish, in view of Mr. Werema's contention, and in view of the counter affidavit, that they are not trespassers after the Goverrnnent is said to have paid compensation to owners of the same land when it was appropriated for construction of same highway in 1972. They are required to establish their title to that land. Of course this will not be done in proceedings for judicial review. Indeed the applicant's must show th;;it they have at least a prima facie case for the quantum of their claim for compensation before the Government is compelled to effect such payment. Quantum of the compensation -cannot be proved in an applciaton for judicial review. I would therefore agree with Mr. WerMna that the issue of payment of compensation in the peculiar circumstances of this case cannot be justiciable in a proceeding for judicial review. Once, as I have held, · the Government has no statutory duty to pay compensation to anyone who has not established his titled to land so also the Government cannot be compelled, as is prayed for in the statement to initiate the process of compulsory acquisition of the applicant's 1 ands under the Land Acquisition Act, 1967. Similarly, the appljcants have not showri in their affidavit and in the Statement .• ' • • • .:.. 15 - that there exist circumstances which make justified the issuance of an order of mandamus to allocate alternative plots to all the applicants when they have not shown, by probative evidence that the land earmarked for the road expansion in law belongs top them. They have to establish their interest before they can seek a public law remedy. The above consideration have made my task easier as regards the remedy that is sought by way of the order of prohibition. According to the chamber summons and to the Statement the .,, _purpose ~f that order is to restrain the Government and its agents from carrying out expansion of the Morogoro Road and from demolishing the applicants' houses, buildings and other structures before fair and adequate compensation for the same is paid in full. As I have pointed above the applicants' right to compensation is inchoate. They have yet to prove it and this cannot be done in an application such as this one. The third objection would therefore succeed. Finally, Mr. Werema made afi alternative prayer, that if the application for leave is allowed, an order for security be made against the applicants so that they may cushion the Government against spiralling construction costs that may arise from the applicants' obstruction. Professor Fimbo considers that such a prayer is strange because orders for security for costs are aimed at non- resident plaintiffs in terms of Order XXV of the Civil Procedure Code. I agree, and, that said the prayer for deposit~for security fails. Upon the foregoing observations and considerations the application for leave to apply for the orders of prohibition and mandamus fails. It is accordingly dismissed. There will be no order for cosis. Delivered. J. M. MACKANJA JUDGE - 16 - Appearances:· Professor - G. Mgongo - Fimbo - For Applicant Mr. Werema, SSA Mr. Chidowu. 'SA: For Respondent Certified true copy of the original.