PDF EDITED Michusi Mwanzalila v the AG and Another

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA SUB - REGISTRY AT IRINGA MISC. LAND APPLICATION NO.3151 OF 2024 MICHUS J. MWANZALILA & 82 OTHERS ............................. APLICANTS VERSUS THE PERMANENT SECRETARY MINISTRY OF DEFENCE OF THE UNITED REPUBLIC OF TANZANIA…………………………………….1st RESPONDENT THE ATTORNEY GENERAL ........................................... 2nd RESPONDENT RULING Date of last Order: 18/06/2024 Date of Ruling: 18/06/2024 LALTAIKA, J. The applicant herein, MICHUS J. MWANZALILA, & 82 OTHERS are seeking leave of this court to file a representative suit against the respondents. The application is made under Order 1 Rule 8 Sub 1 Section 68 (e) and 95 of the Civil Procedure Code Cap 20 RE 2022. It is supported by an affidavit of Mr. Bastista Mhelela, learned Advocate for the Applicants. When this matter was called on for hearing earlier today, Mr. Bastista Mhelela, learned Advocate, appeared for the Applicants. The Respondents, on the other hand, appeared through Mr. Bryson Ngulo, learned State Page 1 of 4 Attorney, accompanied with Ms. Christina Ilahuka, (Officer from the 1st Respondent). Mr. Ngulo thoughtfully informed the court that the Respondents’ reply to the application was missing because it was not their intention to object the same. He insisted that the applicants are many and they have a common interest of the case they intend to file. I have dispassionately considered the concurrent submissions of the learned Counsel. I have also perused the application with particular emphasis on the supporting affidavit. Before granting leave to file a representative suit, it must be established that; One, there are numerous persons having a common interest in the suit and are willing to join the suit. Two, that the applicants have the consent of the other persons sought to be represent. It is imperative to note that Order I Rule 8(1) of the Civil Procedure Code (supra) is couched in mandatory terms that leave of the court must be sought and obtained prior to the filing of the representative suit. The Court of Appeal of Tanzania in the case of K. J. Motors And 3 Others vs. Richard Kishamba and 7 Others, Civil Application No. 74 of 1999, at Page 2 of 4 Dar es Salaam, (unreported) had the following to say on the rationale for this procedure: "The rationale for this view (meaning the contents of Order 1 Rule 8 of The Code) is fairly apparent. Where for instance, a person comes forward and seeks to sue on behalf of other persons, those other persons might be dead, non-existent, or otherwise fictitious. Else he might purport to sue on behalf of persons who have not, in fact, authorized him to do so. If this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf of the person whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf." Furthermore, this court through the case of Abdala Mohamed Msaka and 2 Others versus City Commissioner of Dar es Salaam and two others [1998] TLR 440 it was stated: "The provisions of Order 1 Rue 8... do not admit where the applicant merely intends to invite others who may have interest in the case." As hinted above, I have not only considered the concurrence of the learned Counsel for both parties but also examined the application in light of the legal procedure obtained in our country. To this end, I am fortified that the application is merited. Page 3 of 4 In the upshot, leave is hereby granted for the applicants to file a representative suit against the respondents. I make no orders as to costs. It is so ordered. E.I. LALTAIKA JUDGE 18/06/2024 Court: This ruling is delivered under my hand and the seal of this court on this 18th day of June 2024 in the presence of Mr. Bryson Ngulo, learned State Attorney, accompanied with Ms. Christina Ilahuka, (Officer from the 1st Respondent) and Mr. Bastista Mhelela, learned Advocate for the Applicant. E.I. LALTAIKA JUDGE 18/06/2024 Page 4 of 4