shaban athumani others vs sabri salum mubarak ta united traders 2018 tzhclandd 510 3 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 124 OF 2017 SHABANI ATHUMANI AND 55 OTHERS........ APPELLANTS VERSUS SABRI SALUM MBARAKT/A UNITED TRADERS..................................................RESPONDENT Date of last Order: 30/4/2018 Date of Ruling: 3/8/2018 RULING MGONYA, J. Before me are two points of preliminary objections brought by the Respondent to this Appeal one SABRI SALUM MBARAKT/A UNITED TRADERS which intends to attack the Appeal lodged by Appellants SHABANI ATHUMANI AND 55 OTHERS, the Notice filed on 16th day of August, 2016. If I may reproduce the said points of preliminary objections, they read as follows i (a) In the absence o f Representative Suit, the Appellants' Appeal is bad in law in contravening the provision o f Order I Rule S o f the Civil Procedure Code Cap. 33 R.E 2002. (b) The Appeal is bad in law in referring the decision which is not in record of the District Land and Housing Tribunal for Temeke District. Upon those grounds therefore the Respondent through Kabunga and Kanonyele learned Advocates prays this court to dismiss the Appeal with costs. When the matter came for mention, Parties prayed before the court to argue the preliminary objection by way of written submissions. Accordingly, I granted the prayer hence the written submissions from both parties before me for determination. For the 1st point of preliminary objection it was submitted that the Appeal is bad in law in contravening the provision of Order I Rule 8 of the Civil Procedure Code Cap 33 [R. E. 2002]. Submitting the 1st point of preliminary objection, the Respondent's Counsel started by reminding the court that the instant Appeal originated from Land Application No. 86 of 2017 before Temeke Land and Housing Tribunal. To take his point home, Respondents referred this court to the Applicant's Application where Applicants inter alia requested the Tribunal to grant leave to one THEO TERAS who has been authorized by other Applicants to file the Application pending the expiration of 30 days' notice with intension to sue the Government. From that reminder, it is the Respondent's concern that Appellants ought to obtain leave first before instituting the Application if they wanted one or some Applicants to represent others; however, that was not the case. It is further the Respondent's contention that, if that is the case, the Appellant in the instant Appeal cannot appear before the court as if he is representing other 55 people who were the Applicants when the matter was before the District Land and Housing Tribunal. Respondent's Counsel was of the view that, in the instant situation, leave for representing others is to be obtained first upon legal requirement for the person to represent others before the court and further to the instant Appeal. In support of the Respondent's submission, several cases on Representative suit was cited. Further it is the Respondent's concern that, under the circumstances, if the Appellant here one SHABANI ATHUMANI is not satisfied with the Tribunal's decision, then he is to stand alone as Appellant and not with others who initially at the trial Tribunal were standing as independent parties (Applicants) thereto. It is Respondent's submission that the Appeal be dismissed with costs for failure to comply with the provision of law Order I Rule 8 of CPC. Responding to the point of Preliminary as submitted above, Counsel for the Appellants submitted that Appeal before the court is correct as the same has been brought before the court for determination under Order XXXIX Rule 4 of the Civil Procedure Code Cap. 33 [R. E. 2002]. It is the Appellants' assertion that the Appeal before the court has been brought under the proper procedure since the appeal emanates from the default judgment a result of Counter Claim raised from the 2nd Respondent. Further, if representative suit was inevitable, it was prudent for the trial Tribunal to order for the same and not to proceed entering judgment against the Applicants (the Appellants herein) with such anomaly at the detriment of the Appellants. It was further contended that the Respondent herein is not well acquainted with the meaning and interpretation of Order XXXIX Rule 4 of the Civil Procedure Code Cap. 33 [R. E. 2002]; which in fact permits any one of the Plaintiffs or of the Defendants to proceed with the Appeal. In the event, Appellants herein prays for the point of preliminary objection be overruled with costs and proceed with the Appeal on merit. Looking at the Respondent's submission, I have noted that he directed himself to only the first point of preliminary objection on the issue of Appellants contravening with Order I Rule 8 of CPC and left the second point hanging. I therefore going to proceed to determine the first point as urged by the parties. Upon considering exhaustively submissions advanced by both camps in the advanced point of preliminary objection, the controversy lies on the issue as:- First, whether the Appeal is defective for contravening Order I rule 8 of the Civil Procedure Code Act Cap 33 [R. E. 2002]; Second, whether the Appeal before the court is correctly brought under the provisions of Order XXXIX Rule 4 of CPC; and Third, if the answer is yes on the above issues, what is the remedy for such defects? For the 1st point of preliminary objection, this takes me to the provision of Order I Rule 8 (1) of Civil Procedure Code Cap. 33 [R. E. 2002] which states:- "(I) Where there are numerous person having the same interest in one suit, one or more o f such persons may, with the permission o f 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 the public advertisement, as the court in each case may direct". The plain meaning of the above provisions caters for the Representative suit which is possible where there are many persons who are having the same interest in a suit, consequently, one or more such persons may with leave of the court to prosecute or defend the suit on behalf and for the benefit of all interested persons. It is a conditional precedent therefore to obtain leave of the court before filing a Representative Suit. Failure to that, there won't be a Representative suit. From the above, the emphasis here is "upon leave of the court". I have managed to go through the record of the Land Application No. 86/2017 before Temeke District Land and Housing Tribunal where this matter originated, and as submitted by the Respondent, I have also managed to see paragraph 2 of the Affidavit to the Chamber Summons to the Appellants' Application which reads: "That there are numerous applicants in this application who have the same interest over the same matter and the same respondents hence the former are authorizing one THEO TERAS to be their representative in this application " It came across my eyes that despite of the representative prayer be included in the Applicants' Affidavit, ( which to me is a strange practice), there is no any place in the record that the prayer was officially presented before the court and leave be granted in that respect. It further came to my knowledge that, in the trial Tribunal, Applicants (herein Appellants) were appearing themselves (individually) and the Coram in their favor was taken accordingly. This means that every Applicant was representing himself/herself. It is for that matter, even the name of the case didn't change and read THEO TERAS and 55 OTHERS; but it remained with all 55 Applicants name up to the time of District Land and Housing Tribunal decision and Decree. At this juncture let me emphasize that, it is well settled law and leading authorities are that, any suit which is by way of Representative Suit, leave must first be sought and granted under Order I Rule 8 (1) of CPC, for one or more than one person to represent others having a common interest in a matter. Indeed, the reasons for that have been clearly elucidated in the case of LUJUNA SHUBI BALONZI SENIOR VS. REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI [1996] TLR 203 AT PAGE 211 - 212 where his Lordship Samatta, J. (as he then was) propounded the following sentiment, I quote:- "The foundation of Order I Rule 8 o f CPC is to be found in a principle which transcends the personal or parochial natural o f the combatants who are arrayed as parties to be s u it" His Lordship proceeded to observe that:- "It affects the rights of other persons not present before the court. Hence a duty is caste on the court itself to follow meticulously the procedure prescribed by Order I Rule 8 in view that o f the far reaching consequences o f a decree passed in what is described in law as a representative suit, it is necessary that the relevant provisions must be treated as presentory and mandatory." 8 Now the sine quo non conditions for Representative Suit are so clear that the Applicant must establish that:- First, the intended represented parties must have the common or the same interest to the subject matter, Second, the court must first grant leave to the representative suit before one intend to represent others; Third, the representative parties must be suing or defending a suit for on behalf of others or interested person including themselves; Fourth, Notice of institution of suit must be given to the Represented persons. To start with, in the instant Application, if the said leave was not granted, then as rightly said by the Respondent, each party is standing alone on his /her own feet defending his own interests against the Respondent since there is no one who was representing others. It has been further observed that, even the affidavit in support of the Application neither disclose the names and signatures of the said other people intended to be represented by Applicant nor list of the names and signatures intended to be represented by Applicants. Suffice to say there is no list of names attached in the affidavit as annexure forming part of it as the law requires. Since the law dictate that the application for representative suit affect the rights of other persons not present before the court, it is unfortunate, there is no any list attached in the affidavit described the names and number of the represented parties. This is enough to say that the leave to represent others was not granted under these circumstances where even the essential requirement to this type of application was not met. Now, coming to the wording of Order XXXIX Rule 4 of CPC, there is no any difficult in interpreting the said provision. The same is very clear which states that: "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all defendants, any one o f the plaintiffs or o f the defendants may appeal from the whole decree. and thereupon the Court may reverse or vary the decree in favour o f all the plaintiffs or defendants, as the case may be." From the above law, my emphasis is "a/7/ one of the plaintiffs or o f the defendants may appeal from the whole decree". It is from the said provision, any person out of many in the Litigation who in the case of appeal who is not satisfied, is at 10 liberty to appeal against the said decision. Further, there is nothing in that provision suggests representing other parties to the appeal. In this case, and in the event where from the very beginning there was no leave granted to anyone to represent others, then any one among the Applicants in this case now Appellant can decide to appeal. In this case, if MR. SHABANI ATHUMANI was not satisfied with the District Land and Housing Tribunal decision, he was to appeal under his own capacity as an individual to the Appeal and not representing others wholesale un-procedural. In the event, it suffice to say that the Applicants have grossly misunderstood and seriously misdirected themselves in the use of Order XXXIX Rule 4 of the CPC to this Appeal. Linder the circumstances, I find the point of preliminary with merit, and in the event, I proceed to sustain it. Consequently, the Appeal is hereby struck out without costs as Appellants me being assisted under Legal Aida by Legal and Human Rights Centre. It is so ordered. L. E. MGONYA JUDGE 20/7/2018 COURT: Ruling delivered in the in the presence of Appellants in person, Advocate Kangonyele holding brief for Advocate Kabunga for Respondent and Ms. Theresia B/c on 3rd day of August, 2018 in chamber No. 16. L. E. MGONYA JUDGE 3/8/2018 12