pius msigwa others vs secretary of kijiji cha ujamaa marocha 1978 tzhc 3 8 november 1978

IN 031*5 HIGH COURT OP TiJNZAOTA AT TABORA (DC) CIVIL APPEAL NO. 13 OP 1977 (lh?on the decision or the District Court of SuLibawanga at Sunbawanga in Civil Case No. 4/77) BEFORE: P. P. MOYO, ESQ., RESIDENT MAGISTRATE pius m m iA 5 VITALIYA BONALD A ........................ APPELLANTS DETELIHA PANGAZI*i Versus THE SECRETARY OP KEJIJI C M UJAMAA I'iAROCIIA ,,,, RESPONDENT JITO-1ENT SAMATTA, J., - Sumbawanga district has many villages. One of then is called Marocha. It is an ujamaa village* Its members are sworn enemies of exploitation of man by man# The village has been in existence at least since 1974* In 1976 i"ts members included the tliree appellants* Before the end of that year all the three appellants flitted^from the village. None of them gave a three — month notice (in writing)of resignation, as they were required to do by s* 11 (2 ) of the village’s constitution, before their emigration. Before leaving the village each of them had participated for more than two hundred days in communal work at the village. A few months after their departure the remaining members of the villc,ge shared between them the money which was realised out of the fruits of the communal toil. Each appellant believed that, since he had also toiled in the communal projects, he was entitled to be paid for his labour. The remaining members of the village did not agree with that stand. They argued that, as they had not given the required notice of resignation, the appellants had forfeited whatever rights they would otherwise have had in the fruits of the communal labour. The appellants were unimpressed by that argument. Ihey refused to be victims 01 what they considered as exploitation by the village. They resolved to summon the law to their aid. On January 18, 1977» they jointly instituted civil proceedings before the district court of Suiobawanga district against the secretary of the village. Each claimed, shs. 600/- fron the defendant* The latter strongly- resisted the claims, lie must have entertained the belief that the appellants wanted to use the law as an instrument for exploitation. As the end ofthe trial the suit was dismissed, thelearned trial magistrate holding that the provisions of two sections inthe village1s constitution stood in the way of the claims. The learned trial magistrate concluded his judgment with these words ''Section 11 of the village1s constitution (Exh. D.l) says that a village member can resign after giving three months’ notice. The three plaintiffs did not give any notice. Section 18 of the sane constitution says that a village member who has resigned cannot claim any share from the village’s proceeds. In view of the above provisions of the constitution of the defendant village, I hold that the three plaintiffs, who quit the village without notice, do not deserve a single cent as claimed in the plaint or otherwise. He it not been for the provisions of said constitution I would have held otherwise." Taking into account of the nature of the order I intend to mak« later in this judgment, I think it would not be i)roper for me to express any views on the learned trial magistrate’s interpretation of s. 18 of the village’s constitution. V/hat I can properly do is, I venture to think, to qu.ote the section and leave it to the reader to determine for himself whether or not the section was relevant to the facts of this case. The section reads as follows, in Swahilis- '1Sharti la 18 s (1) ICila mwaka kijiji kitatenga fedha kwa ajili ya Mfuko wa maendeleo na Mfuko wa Huduma kutolcana na sehemu ya mapato ya kila nwaka; (2) Fedha za hfuko wa I'aendeleo zitatumika katika utekelczaji wa mipango ya uchumi na naendeleo. Mfuko wa Huduma utatunika kwa shughuli za huduma na ustawi wa jaixii kijijinij (3 ) I'wanachama aliyojiuzulu na/au kufu]cuzwa hatakuwa na haki ya kudai malipo yoyote kutokana na Hfuko wa Kaendeleo na Mfuko wa Iluduna." The record of the case is silent as to whether Karachcv village was registered under s. 4 of the Villages and TJjanaa Villages (Registration, Designation and Administration) Act, 1975* If it was, then the suit by the appellants should have been instituted against the Council of the villo,ge; see s. 11 (2 ) of the Act. ~ 3 - I an prepared, for the present purpose, to assume that the village had not been registered under that Act. On that assumption, it nust be correct to say that the suit by the appellants wasgoverned by the provisions of 0.1, r. 8 of the Civil Procedure Code, 1966, which I proceed to read:- "8. - (1) Where there are numerous persons having the sane interest in one suit, oi_e or more of such persons nay, with the permission cf the cou t, sue or W & may defend, in such suit, on behalf of or for the J 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 .^ait 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, b;- public advertisement, as the court in each case may dii.^ct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (l) may apply to the *coiu?t to be made a party to such suit.1’ It will be readily noted from the above rule that institution of a representative suit is not a matter cf right, a party wishing to commence such proceedings must first seek leave of the court to do so. Such leave must be sought by way of chamber application. This procedure was not followed inthe present case. It will also be readily noted from the rule that after leave has been granted by court and the representative sui^ Las been filed, the court riust_ give notice of the suit to all persons having thesameinterest with the plaintiff/s or defendant/s, as the case maybe.Hie record of the present case does not ,lve oven a hint that the rest of the members of the village, who clearly s h a r e d a comiipn interest with the respondent in the mit, were made aware by the court of the institution of the su-:t. That was a serious omission. It is quite possible - although not likely - that some of the leaders of the villagers would have wished to be made parties to the suit. What, then, is to be done now? I have given the most anxious consideration to that question and, L.l the upshot, I have arrived at the opinion that a new trial sho-'M-l be ordered. The second procedual error made by the learned ~?ial magistrate is so serious that, in my view, it vitiates the- proceedings conducted in the oase. I an not disposed to think that the provisions of s. 73 of the Civil Procedure Code can be brought in aid to cure the error. 'Hie rest of the members of the village wore denied their right to elect to defend the suit. Hie fact that the suit was resolved in their favour is unimportant because it is quite possible that if the present appeal were to be determined on its merits this cou'-'t night not share the learned trial magistrate1s conclusion. For the reasons I have endeavoured to state, I hope not at an unreasonable length, I have reached the view that the appeal trust be allowed. The lower courts decision is, accordingly, set aside. It is ordered that the case bo dealt with andheard de novo by another magistrate of competent jurisdiction. Of course if the village is registered under s. 4 of the Villages and Ujanaa Villages (Registration, Designation and Administration) Act, 1975# the new trial magistrate should consider allowing the appellants to amend their plaint by substituting the village’s Council as the defendant for the respondent. I make no order as to costs of this appeal. E . A . S/.MATTA JUDGE November,8. 1978