RAMADHANI SOGOI ANTU VS MUUNGANO VILLAGE COUNCIL

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISC LAND APPLICATION NO 30252 OF 2024 1. RAMADHANI SOGOI ANTU 2. JAMILA DANIEL MICHAEL 3. SAID HASANI MWERYA 4. MATONDO NGASA MLONGOLA 5. MEJA LUKASI HIRIBA&30 OTHERS ……………APPLICANTS VERSUS 1. MUUNGANO VILLAGE COUNCIL ……………1ST RESPONDENT 2. DISTRICT EXECUTIVE DIRECTOR CHEMBA DISTRICT COUNCIL………………….2ND RESPONDENT 3. THE ATTORNEY GENERAL…………………….3RD RESPONDENT RULING Date of the final Order: 27/03/ 2025 Date of the Ruling: 10/04/ 2025 LONGOPA, J.: This is an application for leave to file a representative suit for the five applicants on behalf of thirty-five residents of Mbugani Hamlet in 1|Page Muungano Village within Chemba District in Dodoma Region. The applicants and all other persons to be represented allege to have owning land around 900 acres through customary titles vide clearing virgin lands in 1960s until 2022 when the first respondent invaded the land and allocated it as the pastoral activities’ land without any re-allocation of the applicants to another alternative land or pay them compensation. The application was heard orally on 27th March 2025. Ms. Josephine Mnzava Paul, learned advocate represented the applicants while Mr. Erasto Barua, learned State Attorney appeared for the respondents. Ms. Josephine Mnzava Paul, learned advocate commenced argument by stating that this application is made by the applicants under Order 1 Rule 8(1) of the Civil Procedure Code, Cap. 33 R.E. 2019 seeking leave for five of them to file a representative suit on behalf of other thirty persons making total of about thirty-five persons as listed in the attachment and any other reliefs. The counsel submitted that the application was supported by joint affidavit of all the applicants which was adopted to form part of the submission. 2|Page It was reiterated that the application involves thirty-five persons owning a total of around nine hundred (900) acres of land at Mbugani Hamlet, Muungano Village in Gwandi Ward in Chemba District of Dodoma Region and the boundaries are stated in Paragraph 3 of the joint affidavit. According to the applicant’s counsel, the applicants are owners of the land for many years since 1960s and have used such land for agricultural activities throughout with any disturbances but in 2022 surprisingly they were informed that the land is allocated for pastoral activities by the Village authorities without the consultations of the owners of the respective land. It was a further submission that the applicants intend to institute a representative suit as the claimants are numerous thus the need for the representative suit application for leave. Moreover, it was reiterated that applicants have complied with requirement of service of a mandatory notice of ninety (90) days to all the respondents and the evidence of such service is attached forming part of the affidavit of the applicants. 3|Page Ms. Josephine Mnzava Paul learned advocate stated further that names of all thirty-five persons, their signatures, size of the land each of the applicants is owning, and the identity as well as possible communication of the applicants who shall be part of the representative suit to be instituted are included forming part of the affidavit. Also, the Minutes of the Meeting indicating that the applicants sat and nominated the five applicants to represent others villagers claiming the ownership of their agricultural land that was dispossessed from them by the Village Council is attached forming part of the affidavit in support of this application. Indeed, the application is additionally attached a letter from Divisional Officer of Farkwa Division in Chemba Dodoma to the Village Executive Officer indicating the gist of the application of the applicants against the respondents. The learned counsel for the applicant therefore submitted that this court be pleased to grant leave to the five applicants to represent others before the Court in a representative suit. Thus, the applicants prayed that this application be allowed for it is meritorious. 4|Page Conversely, Mr. Erasto Barua, learned State Attorney adopted the contents of the counter affidavit of one Dominic Nicholaus Ruhamvya to form part of the respondents’ submission. He contended that the application for leave for a representative suit under Order 1 Rule 8(1) of the CPC was discussed in the case of Lujuna Shubi Ballonzi Senior vs the Registered Trustees of the Chama Cha Mapinduzi (CCM) [1996] TLR 2023 where the Court stated the conditions, namely: (a) the parties must have common interests or the same interests; (b) applicant is among the parties to the intended suit; and (c) notice of institution of the suit to such persons to be sued. It was submitted that those conditions are all present in this application and have been met by the applicants thus we support the application as it has met the prerequisite conditions. Having heard the parties’ respective submissions this court is enjoined to determine the validity of the application or otherwise. To do so, this Court is guided by the available records namely the chamber 5|Page summons, affidavit in support of the application and counter affidavit of the respondents, oral submissions, statutory provisions and precedents applicable to the application. It should be noted at the outset that though the respondents objected the application for leave via the counter affidavit, however, oral submission seems to acknowledge that criteria for grant of the leave are met squarely by the applicants. The five applicants are seeking the leave of this Court in order to institute a representative suit on behalf of thirty-five persons claiming the same interest over land located at Mbuguni Hamlet in Muungano Village within Chemba District in Dodoma Region. All thirty-five intended claimants are claiming ownership of land amounting to 90 acres by size in totality against the same respondents thus having a same interest on recovery of such land allegedly alienated by the first respondent. Representative suits in this jurisdiction are governed by the law. As the matter at hand relates to representative suit in claim for land then 6|Page applicable law shall be the Civil Procedure Act. The provision of Order I Rule 8(1) of the Civil Procedure Code, Cap 33 R.E. 2019 provides that: 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 law allows a person who seeks to file a representative suit to seek permission of the court. The criteria are that: First, there should be numerous persons. Second, the persons should have the same interest in one suit. Third, one or more of such persons may be allowed to sue or be sued in a suit on behalf of or for benefits of all the persons so interested. 7|Page In the case of Abdallah Mohamed Msakandeo and Others vs. City Commission of Dar es Salaam and Two Others (1998) TLR 439, at pages 443-444, the Court observed that: Now the scope and application of Order I rule 8 implies that there must exist numerous people with a communality of interest before anyone can file an application for leave to sue on their behalf. In my considered opinion the provisions of Order I rule 8 do not admit of a situation, like here, where the applicant intends to invite others who may have an interest similar to his. Should they be too few as not to qualify as being numerous, then the leave to file a representative suit will have been given for naught. In these circumstances the application would fail because it does not meet the test regarding the existence of numerous persons with the same interest. Let me now add that the applicants were required to establish further that those numerous persons were indeed willing to join the 8|Page suit because in the event the suit failed the defendant should then proceed to recover his costs from them. Necessarily, therefore those numerous persons must not only be identifiable, each one of them should append his signature against his name and the list of such persons should be an annexure to the application. Failure to do so will offend the clear provisions of Order I rule 8 of the Civil Procedure Code. Paragraph 5 of the joint affidavit provides for it all. It indicates that there are numerous persons i.e. thirty-five in number, all are claiming on the same interest which is dispossession of their agricultural land that they had acquired since 1960s and used the same up to year 2022 when the 1st respondent decided to allocate the land for pastoral activities without re- allocating the applicants to alternative land and without compensation, all the parties are identifiable by either national Identity Cards or Voters Registration Cards. Also, all the applicants have signed the attendance list, 9|Page stated the size of land each of the applicant is claiming, boundaries of each parcel of land and contacts in form of phone numbers. All these demonstrate that all the persons intending to be represented are fully identifiable, they are numerous and they have the same interest i.e. recovery of dispossessed agricultural land and few of them have been nominated to represent all others hence this application for leave to institute a representative suit. The contents of affidavit in support of the application in particular paragraphs 2 to 8, describe that there are numerous persons with the same interests on the land in question. Paragraph 9 of the joint affidavit is explicit on the same interest of all the parties who are to be represented. Thus, the joint affidavit is self-explanatory on the existence of numerous persons with the same interests intending to address the same question of ownership of land at Mbuguni Hamlet in Muungano Village. In Lujuna Shubi Balonzi, Senior v Registered Trustees of Chama cha Mapinduzi (1996) TLR 203, the Court stated that: 10 | P a g e This rule is almost in pari materia with Order I, Rule 8(1), (2) and (3) of the Civil Procedure Code of India. Commenting on the latter rule, the learned authors of Sir John Woodroffe and Ameer Ali’s Code of Civil Procedure, 3rd ed, vol II, state as follows, at 1403: ”The foundation of Order I, rule 8 CPC is to be found in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to the suit. It affects the rights of other persons not present before the Court. Hence a duty is cast on the Court itself to follow meticulously the procedure prescribed by Order 1, rule 8. In view of the far-reaching consequences of a decree passed in what is described in law as a representative suit, it is necessary that the relevant provisions must be treated as peremptory and mandatory’. And at 1405, the learned authors state as follows: “A representative suit cannot be said to have been validly instituted unless and until the mandatory provisions of 11 | P a g e Order 1 rule 8 of the Civil Procedure Code are complied with. The provision contained in Order 1, rule 8, CPC ... is mandatory and not merely directory and is an essential precondition for the trial of the case as a representative suit. It is imperative that the two conditions provided in rule 8 of Order 1, should be complied with, namely, (1) the permission of the Court should be obtained and (2) the Court should, at the expense of the plaintiffs, issue 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 may direct.” In my view, these two passages also accurately state our law. A person cannot seek to advance the claims of a group of persons without adopting the procedure laid down in Rule 8 of Order 1 of the Code. 12 | P a g e As all thirty-five villagers in this application have the same interest which is to recover the respective agricultural land from dispossession by the first respondent who allocated or designated such lands to pastoral activities without consent of the owners nor compensating them or allocating them alternative land. In case each of the thirty- five villagers initiates a suit to claim the land individually there would be multiplicity of suits on the same claim. Indeed, this is a fit case for grant of the leave to file a representative suit. Further, there is a requirement that application for leave must be made at a court with competent jurisdiction to determine the intended suit. In the case of Mussa Hamisi Shah & Two Others v. Dar es Salaam City Council [1996] TLR 200, the High Court stated that: The law allows for representative suits but such application should be handled by the appropriate court that will hear the suit, and since I am inclined to grant leave for this matter to be filed at the resident magistrate’s court, it 13 | P a g e would be in order if this application, is addressed to the competent court once a suit has been filed. This court is a appropriate court as the respondents/ intended Defendants are government institutions which fall under the ambits of the Government Proceedings Act, Cap 5 R.E. 2019 which requires that such proceedings be instituted only on the High Court of Tanzania. As both parties submitted in concurrence that the criteria for grant of the application to institute representative suit to have been met, namely existence of numerous persons who are claiming on the same interests against the same respondent and they have nominated few of them to represent all others, this court finds that the application for leave is meritorious. It is pertinent that this application be granted for the five applicants to file a representative suit against the respondents. The grant shall be subject to the condition that at the expense of the applicants, the notice of institution of a representative suit is published in a well circulating 14 | P a g e newspaper at least a month before the institution of the suit for those who may intend to object their inclusion or otherwise to a representative suit to express their views on the intended suit. In totality of the events, the application for leave to file a representative suit is hereby granted. Each side to bear its own costs. It is so ordered. DATED at DODOMA this 10th day of April 2025 E.E. LONGOPA JUDGE 10/04/2025. 15 | P a g e