Petro Kazoya v KAsulu DC

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000012099 OF 2024 PETRO KAZOYA AND 3 OTHERS .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS KASULU DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT

RULING KAHYOZA, J, Petro Kazoya, Ndongo Mbeho and Mgema Mlyashuma, the first, second and third Applicants respectively have filed the present application, seeking for court’s leave to sue the three Respondents in a representative capacity. The Respondents are Kasulu District Council, Kasulu District Commissioner and the Hon. Attorney General. The application has been preferred under Order I Rule 8 of the Civil Procedure Code, CAP 33 R.E.

2019. It is supported by the affidavit of Mr. Daniel Edward Rumenyela, counsel for the Applicants. On the other hand, the application is resisted by the Respondents through a counter affidavit sworn by one Emmanuel Ladislaus, a principal officer of the first Respondent. It is averred in the affidavit supporting the application that the applicants together with all those sought to be represented have common interests in the land under dispute. It is further averred under paragraph four that the eviction of the applicants from the land in dispute is unlawful and also that the change of land use from residential and farming to game reserve was not participatory as the applicants were not involved. On the part of the Respondents, it is deponed in the counter affidavit under paragraph 4(b) that the eviction is lawful since the applicants are trespassers. When the matter came up for hearing, counsel for both sides made brief submissions. Mr. Daniel Rumenyela who appeared on behalf of the Applicants after adopting the affidavit supporting the Page. 1 application, submitted that the application was in compliance with Order I Rule 8 of the Civil Procedure Code, and as such he prayed the same be granted. Mr. Frank Makigijo, learned state attorney who represented the respondents did not take the application smoothly. He resisted the same. He submitted that the application was bound to

fail on a number of reasons. First, he pointed out that according to the list annexed to the applicants’ affidavit, the figure of persons with common interests was not certain, as the affidavit speaks of 103 persons, while the list annexed to the affidavit speaks of only 100 persons. According to him, this defect vitiates the application. Secondly, Mr. Makigijo also pointed out that since the figure was not certain, that suggests that there was no proper requisite consent as required by law. Thirdly, Mr. Makigijo submitted that in the affidavit, it was not clearly averred that the applicants and those they intend to represent have common interests in the matter. To bolster his stance Mr. Makigijo cited the cases of Abdallah Mohamed Msakandeo &2 others vs City Commissioner of DSM and 2 Others, 1998 TLR 438; and KJ Mottors & 3 Others vs Richard Kisilamba & Others, Civil Appeal NO. 74/1999, CAT at DSM For these reasons he prayed that the application be dismissed with costs. In his brief rejoinder, Mr. Rumenyera started by dismissing the issue of difference in figures as the same was already dealt with when the court was determining the preliminary objection raised by the respondents. As for the existence of common interests, he submitted that the same was specifically pleaded under paragraphs 3 and 4 of the affidavit supporting the application. As for the cases cited by the

learned state attorney, specifically the case of KJ Mottors, Mr. Rumenyela submitted that the case was in full support of the applicants’ application because all the interested persons had appended their signatures to show that they were not fictitious persons and also to show that they had given the requisite consent. He concluded by reiterating his prayer that the application be granted. In determining this application, I shall start by examining the position of the law under which this application has been brought. As it is, this application has been brought under Order I Rule 8 of the Civil Procedure Code, [Cap. 33 R.E 2019]. Order I Rule 8 provides as follows: 8.-(1) Where there are numerous persons having the same interest in one suit, one or more of such 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 service is not reasonably practicable, by public advertisement, as the court in each case may direct. The key requirement here is existence of numerous persons. As the pleadings will bear me out, existence of such numerous persons is specifically pleaded under

paragraphs 3, 4 and 5 of the Page. 2 supporting affidavit. As for the difference in figures as queried b Mr. Makigijo, I wish to say, as rightly submitted by Mr. Rumenyela that this issue was addressed in this court’s ruling dated 8th October, 2024 and there were specific directives made to that effect. In other words, this issue was addressed and settled once and for all. It cannot be re-introduced again for consideration. As for the issue of common interests and consent, I wish to say that by looking at the supporting affidavit as well as the annextures to it, no doubt they provide right answers to these questions. Apart from what is averred under paragraphs 3 and four of the supporting affidavit, we have also the list of all 100 persons interested in the matter that was annexed to the affidavit. All those persons on the list (annexture A) have appended their signatures on the document not only to show that they all have interest in the land but also to show that they are not fictitious persons. This, I believe, is in line with the holding in KJ Motors case (supra). Just in fine and from the foregoing discussion, I am satisfied that the application is in full compliance with the requirement of the law, that is, Order I Rule 8 of the Civil Procedure Code. I will for that reason grant the same, meaning that the applicants are given leave to file a representative suit on behalf of the other 97 persons. Given the nature of this case, I order that each party shall bear own costs. Dated at KIGOMA this 4th of April 2025 . P. R KAHYOZA

JUDGE OF THE HIGH COURT Page. 3