juma mloka ngafungwa and another vs the registered trustee of the korea church mission 2020 tzhclandd 2213 11 september 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 126 OF 2020 JUMA MLOKA NGAFUNGWA.................................... 1st APPLICANT MARIAM MWALIMU KAM BI.....................................2nd APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE KOREA CHURCH MISSION.......................................... RESPONDENT (Application for an order to file a representative suit on behalf of themselves and of 75 others) RULING MGETTA, J: Through a legal service of Dr. Chacha Murungu Bhoke, the learned advocate, the two applicants namely Juma Mloka Ngafungwa and Mariam Mwalimu Kambi claiming to act on behalf of seventy five (75) others, brought a Chamber Summons made under the provisions of Order I rule 8(1) of the Civil Procedure Code Cap. 33, asking for a representation order to file a representative suit on their own behalf and on behalf of 75 others. The names of 75 others are listed and annexed to the affidavit affirmed by the two applicants supporting the application. i Responding to the affidavit, the respondent, the Registered Trustees of the Korea Church Mission through a legal service of Mr. Isaac Nassor Tasinga, the learned Advocate, filed counter affidavit together with four preliminary objections as listed hereunder: (i) That the application is bad in law as it is supported by defective affidavit whose verification clause is basing on information of 75 persons while there is no where such persons are seen or listed with their countersignatures. (ii) That application is incompetent for lack of consents of the beneficiaries of the suit as a result the provision of Order I rule 8(1) of Cap.33 is violated. (iii) This application is incompetent for reason that the intended suit will be affected by the principle of Res judicata in terms of the judgment in Land Case No. 157 of 2008 in which most of the persons to be represented were also involved. (iv) The intended suit if granted will be time barred. As a cardinal principle, I start to resolve the preliminary objections raised. In the course of accomplishing this duty, the learned advocate 2 representing their respective clients requested and the court accepted the request to argue the application by way of written submissions. I thank the two learned advocates (Mr. Bhoke and Mr. Tasinga) for their well-researched submissions, which have assisted me to reach at this end. Let me start with the first and second preliminary objection that whether the application is incompetent for lack of counter signatures and consent from all persons ought to be represented by the present applicants. Well, the application is supported by the affidavit affirmed by the two applicants. In law, that affidavit to be complete must contain a list of all interested persons who must have put their signatures against their respective names signifying that they have given consent to the applicants to represent them. It is one of the law requirement that in order the application for representative suit to be granted; the one who is seeking the permission of the court must prove that the other numerous people have given consent. As stated herein, the list of such people with their corresponding signatures must be attached to the affidavit. It is true that there is a list of persons to be represented by the two applicants. But, looking at that list, one can find that the other people listed have not put 3 their signatures. Impliedly, those who have not signed have not consented. In other words, the two applicants have not obtained consent from those who have not put their signatures. If I can mention them, these are as follows: Aeshi.M. Juma, Machano Hamis Machano, Fatuma Salum Dololo, Halima Mmite Hemed, Ally Salumu, Mwaasha Shadadi, Mwashe Shadadi Seleiman, Ibrahim Abdalah Mkali, Yusuf Ally Pandu and Misimbi Mihayo. In the event, I agree with the submission of Mr. Tasinga, the learned advocate for the respondent that lack of the signatures of the above mentioned persons whose names appear on the list of persons to be represented makes the application incompetent as their consent were not obtained by the present applicants. As these two preliminary objections dispose of this application, I see no need of proceeding to ponder on the rest two preliminary objections. For reasons given herein above, I find the present application incompetent. I proceed to strike out this incompetent application with costs. It is so ordered. J.S.MGETTA JUDGE 11/9/2020 4 COURT: This ruling is delivered today this 11th September, 2020 in the presence of the two applicants and in the presence of Mr. Richard Maforo, the learned advocate for the respondent. J.S.MGETTA JUDGE 11/9/2020 5