SCANNED 17794 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 17794 OF 2024 MICHAEL CHANZO......................... 1st APPLICANT PAUL MHANGATE MWIKWABE............................................................... 2ndAPPLICAN MUHSIN MWINJA MINTANGA................................................................ 3RDAPPLICAN FELCHISMO FREDRICK FURIA................................................................ 4thAPPLICAN VERSUS MINISTRY OF DEFENCE AND NATIONAL SERVICES......... Ist RESPONDENT MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENT DEVELOPMENT........................................................................................ 2ndRESPOND COMMISSIONER FOR LANDS................................................................. 3rdRESPOND REGISTRAR OF TITLE.............................................................................. 4thRESPOND KIGAMBONI MUNICIPAL COUNCIL......................................................... 5thRESPOND ATTORNEY GENERAL............................................................................... 6thRESPOND RULING 31st July, 2024 L, HEMED, J. MICHAEL CHANZO, PAUL MHANGATE MWIKWABE, MUHSIN MWINJA MINTANGA and FELSCHISMO FREDRICK FURIA are the applicants in the instant application. They have brought this application under Order 1 rule 8(1) of the Civil Procedure Code [Cap. 33 R.E 2019] seeking for the following orders: "1. THAT, this honourable Court be pleased to grant leave to the applicants to file representative suit on their 1 own behalf and that of 197 others against the respondents herein above. 2. Cost to follows event" The application has been supported by the joint affidavit of the applicants. On 31st day of July 2024, the matter was called for hearing. Mr. Daniel Oduor, learned advocate, appeared to represent the applicants while Ms. Rose Kashamba, learned State Attorney, duly acted for the respondents. The learned State Attorney, when called to address the court, she informed that the respondents had no intention of challenging the application. She prayed for the same to be granted without costs. The application being unopposed, I opted to examine it to find out if it meets the laid down conditions provided under Order I Rule 8(1) of the Civil Procedure Code (supra). The said provision states thus:- "8.-(l) Where there are numerous person having the same interest in one suit one or more ofsuch 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 or any other cause such serviceJs not reasonably 2 practicable, by public advertisement, as the court in each case may direct"[Emphasis added] The above provisions envisage that for the court to grant leave to institute a representative suit there must be; One, numerous persons; twoz such persons must have common interest in the suit This was insisted by the court in Abdallah Mohamed Msakandeo and 2 Others vs. City Commissioner of Dar es Salaam and 2 Others [1998] TLR 439 that in application for leave to institute a representative suit, it has to be established that the said numerous persons have common interest in the suit and are willing to join it. The rationale behind the leave of the court prior to the commencement of representative is to enable the court to make a scrutiny as to whether: - i. Those numerous persons seeking to institute a representative suit exist; and ii. The said numerous persons have common interest in the suit. In applications like the one at hand, the court filters the possibility of the person to institute a suit on behalf of dead, non-existent or fictitious persons and gets to know if those persons have duly mandated the applicants to sue on their behalf. In the present case, the applicants have appended to their joint affidavit minutes of the meeting authorising them to apply to institute a representative suit. 3 I have examined the affidavit supporting the application and found it being annexed to it a list of 201 names of the intended plaintiffs who have duly signed. The said persons claim to be lawfully owners of the respective unsurveyed parcels of land cumulatively measuring approximately one thousand acres located at Shina No. 1 & 5 of Kijaka street, shina No.2&3 of Golani and Madege streets and shina No.l & 2 of Ngobanya and Amani Gomvu street respectively in Kimbiji ward, Kigamboni District. They allege that, the 1st Respondent has trespassed into the said suit land and began to demolish houses of the applicants. In my view, the list of prospective plaintiffs which is duly signed reveals that such persons exists and they are willing to be represented by the applicants herein. It has also been clearly demonstrated that such persons have common interests against the respondents herein. In the final analysis, I find the application to have merit and deserves to be granted. Application is thus granted, save for the prayer for costs. Applicants are ordered to file their representative suit within 21 days. Upon filing it, the applicants to publish in Mwanachi News Paper to notify all persons said to have authorized the applicants to institute a representative 4