Yoram Paulo Ndumizi and 5Others vs The Permanent Secretary of the Ministry of Defence and National Service

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF DODOMA AT DODOMA MISC. LAND APPLICATION NO. 11970 OF 2024 YORAM PAULO NDUMIZI......................................................................... 1stAPPLICAN REV. PETRO JACKSON MPOLO................................................................. 2ndAPPLICAN SAMSON CHISWAGALA MGONHWA........................................................ 3rdAPPLICAN JULIUS CHIWALIGO MGONHWA............................................................ 4thAPPLICANT ELIAS YAKOBO MHANDO......................................................................... 5thAPPLICANT ASHERI CHIWAGILO MGONHWA............................................................ 6thAPPLICAN VERSUS THE PERMANENT SECRETARY OF THE MINISTRY OF DEFENCE AND NATIONAL SERVICE........................................................ 1st RESPONDENT THE ATTORNEY GENERAL............................................... 2nd RESPONDENT RULING Date of the last Order: 3/9/2024. Date of the Judgment: 21/10/2024. KHALFAN, J. The applicants filed an application in this court under Order 1 Rule 8 of the Civil Procedure Code [Cap 33 R.E 2019], (hereinafter referred to as the "CPC") seeking for one substantive relief, namely this court be pleased to allow the six applicants to institute and defend suit for and on behalf of 511 other residents of Ihumwa and Mahoma Makulu in Dodoma city. The application is supported by a joint affidavit sworn by the applicants. On the other hand, the respondents filed a joint counter affidavit to contest the application. This application was disposed of by way of written submissions. The applicants were represented by Hafidhi Mohamed, learned Advocate, while Ms. Kumbukeni Kondo, learned State Attorney, represented the respondents. In his submission in support of the application, Mr. Hafidhi pointed out that, the applicants are the representative of 511 residents of Ihumwa and Mahoma Makulu who are legitimate owners of a piece of land measuring about 4402 acres with the following boarders: East-Mji wa Serikali, west-Ihumwa Hombolo road, north Mahoma Makulu road to Asheri Chiwagilo house and south- Morogoro road. The applicants claimed that the referred piece of land was illegally taken by the 1st respondent. The learned advocate for the applicants 2 submitted that, the objective of Order 1 Rule 8 of the CPC is that there must be a large number of persons who are interested in a subject matter without recourse to the ordinary procedure. To buttress his argument, he referred to the case of Kodia Goundar vs. Valandi Goundar AIR 1955 Mad at Page 287 ILR 1955 which was quoted in the case of Yoram Paulo Ndumizi vs. Permanent Secretary Ministry of Defence and National Service & another Misc. Land Application No. 88 of 2022. He submitted that, there were 511 residents who had common interest in the land referred above. He submitted that all the interested people had authorized the applicants to file the instant application on their behalf. He urged the court to grant the relief sought. In reply, the learned state attorney argued that, the application is res judicata and abuse of court process since the applicants filed Land Application No. 88 of 2022 with the same issue and same respondents who sought leave to file a representative suit. She argued that, the application was granted and the applicants filed Land Case No. 14 of 2023 but the same was dismissed for being time barred. She further argued that, dismissal of the suit does not mean the application was dismissed as well. 3 > // , (/ She maintained that the applicants could use the previous granted leave to file a new suit in order to avoid multiplicity of suits. She averred that, if the court finds that the application is properly filed before the court, the respondents do not contest the application. The applicants did not file rejoinder. Having gone through the parties' rival submissions, I find it appropriate to address first; the concern raised by the learned state attorney regarding the competence of this application. Initially, there was a preliminary objection raised by the learned State Attorney that this application was res judicata since the applicants were initially granted leave to file a representative suit. After hearing the parties, this court overruled the preliminary objection and ordered the application to proceed on merits. Therefore, raising the same objection again in her reply submission while the court had already determined it before, amounts to abuse of the court's process. Thus, the concern raised by the learned State Attorney is out of place and it is disregarded. Essentially, the respondents did not contest the application. I will therefore determine whether it has merits on the strength of the applicants' submissions. As pointed out before, the present application which has been preferred under Order I Rule 8 (1) and (2) of the CPC. Order I Rule 8 (1) reads that: 8.-(l) 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..." [Emphasis added]. Hence, in order for an application under the above provision of the law to succeed, it must be established that, there must be numerous persons having the same interest in one suit. In the matter at hand, there is no dispute that the applicants intend to represent 511 people from Ihumwa and Mahoma Makulu residents. The list of names of those villagers has been attached to the applicants' affidavit as annexure "Pl". Going through the affidavit in support of the application, the applicants claim that 5 the land referred to above was illegally taken by the 1st respondent. It further claimed that the 511 residents claim ownership over the said land. Thus, I am satisfied that the applicants have demonstrated sufficient interest in one suit against the respondents. I therefore find the application to have merits and it is hereby granted. The applicants are granted leave to file representative suit on behalf of 511 others. In the circumstance, I will not make an order as to costs. Ordered accordingly. DATED at DODOMA this 21st October, 2024. F. R. KHALFAN JUDGE 6