19980227 TZHC Dar es Salaam

. ,; ' ,. . .... '

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM ~ ~ - - - . . . . - .... &... .....,..,.. CIVD:, CASE. NO .•• f.9.U,1,2.91 KITERIA MENEZES & 33 OTHERS •••••• o • • • PWNTIFFS

VERSUS AFRA' ENGINEERING WORK LTD ............ 1b'.i:. DEFENDANT THI;;° ATTORNEY GENERAL ••••••••• ~.. • • • 2Nl 1 DEFENDANT .@.+PETA.J J. This is a ruling on preliminary points r,f ·law raised by Mr.· Maira, Mr. ;, Kilindu, and Mr. Mugare 1 learned oounsels for the defendants/.respondents • . · The background of ·the matter is that on 21st October, 1997, Kit~ria Menezes ana. 33 others filed civil case no.297/1997 seeking, inter alia, an order to ,.,.,. . -.-........-. ,nulli.fy the M.1.1eof · a building then situated on ·plot no. 16 ·, Old Kisutu/UWT Stte~t:i • I • . • ·• to the plaintiff, 0n' 1_0th Nqvember, 1997, Kiteria Menezes' file,d a chamber application in that same case seeking, int~r a?,ia, leave to:- 11 represent 33 people who .have similar interest in this suit.· 1 On 18th December, 1997, the defendants, namely, Afra Engineering Worka_ttd, , . and_ tl;ie Attorney General, filed a counter affidavit opposing the chamber applica- . tion. On the same day they filed notice of proliminary objectiona oh three· points, namely, that the application had been brought under wrong provisiens of ' the law, that the application was incompetent for want of locus standi. in t.hat ~ ....--.·..-::.. "1ttn ...- ' Kiteria Menezes had.not oitained leave to institute the proceedings under repre- ·sentative procedure, . and that . the application was bad in law as it was founded . in a

suit which is re,s_j_1:.,~~'t!!• I' • During the hearing of these proeeedin~S;< permitted learned counsels s of bo'th • sides to address t~e court in respect ·of both the civil case and the app~ieation. Mr. Maira submitted that Kiteria Menezes· had no locus 'standi as she had not sought and been granted leave of the court to file a representative ' suit • - -=---- I .. under ... '. ' . Order ' I, Rule 8 of.the Civil Procedure . Code, an omission which,he submitted, •was :fatal to the proceedings. In his submission, the accepted practice and procedure . was for a party to file· a miscellaneous application for leave to file· such a . . suit 1something which had not been done in this matter and so, in law, there .j.s "" ':no application but only a civil suit, Mr Maira accordingiy prayed that all· the proce"edings be strµck out as being incompetent. For this submission.', learn~d . counsel ~elied_ on the case _of [<J_~~ ,v ... ]:i~~• ( 197,1 ) ~.A.

443. Secondly, Mr. Maira submitted .t~t the suit was !:~.._iudi,2.at.!, in that it ,. f ' ., offends section 9 of the Civil Proced.ure Code because the issues in this case between the parties· lvere decided in Kisutu Miscellaneous f\.pplio~tion no. 263 of., 1997. .. . 2 1•l · .that the suit disclosed Thirdly, Mr. Maira~submitted no cause of aetion because the plaintiffs did not·state whose tenants they were. For those reasons, Mro Maira submitted that both the suit and the application were not properly before the court and so should be st:r.u ·. ·. out. Mr. Kilindu added that in the application, the plain·:·.iffs/applicants referred to II the suiti: 9 thus disclosing that they had already filed the suit. Mr. Salula, lear;neci Senior State Attorney for the Att:>rney Gener.al:·, s~bscribed to 'the submissions made by Mr. Maira and Mr. Kil:~ndu. ., ' . Professor Fimbo, learned counsel for the applfoants/plaintiffs, submitted that this was an application for leave to file a rt:presentative sui~, and t~at the application, on which the suit was de_p'endant, "~ould·stand al'6ne. And so, he submitted, it could not be said that there was no application because there was no suit as both the suit and the application ,.,,0re filed on the same day. While conceding that an application for leave·to file representative suit sho~l~ precede the filing odI such sui ts:CXn his subnrLssion, there

w.as nothing _fatal to the applicationo ·> As to the practice and procedure of thia court, Professor Fimbo submitted that there was nothing expressly ruling out a s:L tuation where a representative suit' ·is filed prior to the grant of permission and the requisite permission is · sought subsequentlyo He relied for this submission on a ruling of this Court. (Late Mkude ,Jo) in the case of Cal?J:&J:}.._1?~~!1~ti.e~~A- an,<!, O_\~.~!!! vrs. & _?O,ll}P_U~-~d 1 O~'tE.~~t.~, (HC) Civil caseono. 117 of 1992, Dar es Sal~am Registry. On the submission of no cause of action! Professor E'imbo submitted that · pleadings could be amended. In the altenative, he submitted that the pis.int did disclose a cause of action. On the question of res jJdi~i1~, learned Professor submitted that the issues in the Kisutu R.M.S 1 Court matter were different from those in the Present suit, and so, he submitted, there was no qu3stion Jf r_!E j._':!dica~ in the pres~nt, ' . suit. The crucial question in these proceedings, it is clear to me, is as to whether Civil Case no, 297,of 1997, and the application filed in that case are ·· prop!=3rly before thls court. Since Civil case ._no.297 of 1997 purp~Ls to be a representative suit, then the provision of Order 1,· Rule 8 of the Civil Procedure Code had to be complted with In other words, the plaintiffs, as a precondition. to filing that case, had to file an

application for leave to file such a repre~ sentative suit. The Plaintiffs did not do so befone filing Civil ease.no. 29? of 199?. In my view, that ·'"'as 8. funda~cntal error. I do not subscribe to the view expressed in -Bend~~'.~ case (Supra ) that one can file-td a reprentative suit and ,, then apply for leave latero 3 3 - That would be putting the cart be.fore the horse. The absurdity _of such a situation is not far to seek: what if the court should refuse ~o\,. grant leave? T:l-\e law, in my view, is that a party desirious of filing a representative suit ~st,. as a .precondition, seek ~d obtain leave. l?!,0:,~ . . filing such suit. That,in my view, is the plain, ordinary, natural, and reasonable meaning of Order I; Rule 8 of the Civil Procedure Code. To conclude, therefore, it is· abundantly clear that Civil Case no~ 297 of 1997 was prematurely filed and filed contrary to law, and so the same is not properly before this court. I now turn to the application for leave. As was correetly~pointed out by Mr. Maira, the correct practice is that in applications s~ch as the one canvassed here a miscellaneous application or cause must be filed as a sub- stantive application. It cannot be filed as an interlocutory application becau.se/i't not dependent 21IDY, existing proceedingsi,hat' is exactly what • the plaintiffs/applicants didt'!\e application was filed as an

interloeu:tory application in Ci-vil Case no. 29? of 1997. That is clear not only from, the contents of the chamber application but also fr6m the fact that it bears the number of Civil case.noo 297 of 1997• That was a serious error calcu- lated to. circumtcent the provisio~s of the law. It appears to me that this application was filed as an afterthought after the plaintiffs had realized that Civil Case.no. 297 of 199? had been fiied cbntra±-y to law. Incidentally, the application and Civil Cas~ no. 297 of 1997 were E_C?j:_ filed on the same day. %e applicati6h papers were filed almost three weeks later. • For these reasons, I hold that both Civil Case no. 297 of 1997 and the accompanying application for leave to file a representative suit are not properly before this Court. Both are accordingly_.struck·out with costs to the defendants/respondents. It is so ruled. ._ BoD,CHIPETA JUDGE,... Ruling delivered in chambers this 27th day of FeblM.lary, 1998. BoD.CHIPETA JUDGE, •""-11a.~ Prof. Fimbo .. for applicatrto/plaintiffs. Mr. Maira 1 Mr. Kilindu, and Mr. Mugare - for 1st defendant/respondents •. Mr. Salula, S,SoA ... for 2nd defendant/respondent.