MISC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000026939 OF 2024 KABIKA SADALA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF KAMOE SWED .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF RUFU MRISHO BAMBE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF MWANAISHA AMANI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF TWAKALI IBRAHIM .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE SPECIAL ECONOMIC ZONE AUTHORITY .............................. RESPONDENT / DEFENDANT KIGOMA SPECIAL ECONOMIC ZONE .............................. RESPONDENT / DEFENDANT THE OFFICE OF ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING RWIZILE, J, Through the chamber application, five applicants, have filed before this court an application for leave to file a representative suit for 89 others who are residents of Rutimba area, Machinjioni ward within Kigoma Ujiji Municipal Council, in Kigoma region. The applicants’ joint affidavit has clearly advanced reasons for this application. The applicants are represented by Mr. Emmanuel Thomas Msasa and Prosper John Maghaibuni learned advocates while the respondents, are in the services of Mr. Celestine Ngailo, Beatrice Manyori and Frank Makigijo learned state attorneys. When the application came for hearing, the respondents raised a preliminary objection on the point of law that; Page. 1 That, this application is unmaintainable in law for suing the 1st and 2nd respondents who are non- existing parties. At the oral hearing, it was submitted by Mr. Celestine that the first and 2nd applicants are not legal entities which can be sued. In his view, the Export Processing Zones Act created an authority called Export Processing Zones Authority, which may acquire land for investment. The Economic Zones established are under it, and therefore the 1st and 2nd respondents are not legal persons, they cannot therefore at law sue or be sued. The second respondent as well is not existing, he added. What is in place here in Kigoma, is a Company called Kigoma Special Economic Zone Company Limited, which in terms of the Companies Act, it is a legal entity and therefore can sue or be sued. According to the learned attorney, Kigoma special economic zone is not a legal entity, citing the case of Change Tanzania Ltd vs Registrar Business Registration and Licensing Agency, Civil Appeal No. 3 of 202 on page 13. In reply, according to Mr. Msasa the 1st and 2nd respondents are existent persons. He said, according to the Special Economic Zones Act, section 4(1) of the law establishes Special Economic Zones Authority. Its functions are stated under section 4(2) (a) and (b) and therefore it can sue and be sued. In Mr. Msasa’s view, the authority acquired the disputed land. The Act as well, establishes zones, among them is Kigoma Special Economic Zone, which is abbreviated as KISEZ, which took the applicants' land. He said, the applicants are legal entities which can sue and be sued. I was asked to overrule the objection. Mr. Celestine, by way of rejoinder, submitted that according to section 12 and 13 of the Export Processing Zones Act, Kigoma Special Economic Zone Company Ltd has all the powers under the law, not the respondents. Having heard the submissions of both parties, it is clear to me that there are two laws that pose a great challenge in interpretation. It seems, the Export Processing Zones Act, [Cap.373 R.E 2012] creates an Export Processing Zone Authority under section 12. For avoidance of doubt, the section provides 12. (1) There is hereby established an autonomous Government agency to be known as the Export Processing Zone Authority. (2) The Authority shall be a body corporate and shall – (a) have perpetual succession and a common seal; (b) in its corporate name, be capable of suing and be sued; Page. 2 (c) Subject to this Act, be capable of purchasing or otherwise acquiring, and or alienating movable and immovable property. Further, the Special Economic Zone Act [Cap. 420. R.E 2012] establishes the Special Economic Zones which means under section 3, an area of land established as such under section 4(1) of the Act. But section 4(1) provides that: there shall be established special economic zones in selected geographical areas, as which shall be provided with special business environment to promote priority economic activities for fostering economic growth as may be determined, from time to time, by the Authority. The same Act defines the authority under section 3 in the following terms; Authority” means the Export Processing Zones Authority established in the Export Processing Zones Act. It is therefore clear to me that neither the Export processing Zones Act, nor the Special Economic Zones Act, that creates an authority called, Special Economic Zone Authority. All is referred under the two laws is a creation of the Export Processing Zone Authority, which in terms of section 12 of Export Processing Zones Act, is an autonomous government Agency capable of acquiring land and therefore able to sue and be sued and it has perpetual succession and a common seal. It is from the dictates of the law; I agree with Mr. Celestine that there are no such things as the respondents. Based on the law, it is clear to me that the applicants, if allowed to file a representative suit, will be doing so against none-existing persons. The objection is sustained. The application is struck out. For interest of justice and bearing in mind that this case is at the preliminary stage, I make no order as to costs. Dated at KIGOMA this 4th of April 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 3