IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)
AT DAR ES SALAAM

MISC. LAND APPLICATION NO.42 OF 2021

(Originating from Land Case No. 224 of2021)

ADINANI MOHAMED ALMASI 1®^ APPLICANT

SILVESTER MATHIAS KIHAMBI APPLICANT
HARUFANI SEIF MATANGENANGE ..3'^'^ APPLICANT
JOSEPH KASHINJE KASHIN3E 4™ APPLICANT
LUCY PAUL HOSEA -S™ APPLICANT
FATUMA KASSIM MANGARE 6™ APPLICANT
VERSUS
MWA3ABU ABDALLAH 30NG0A 1®^ RESPONDENT
HERICK ERICK MAGAYA 2^0 RESPONDENT

RULING

Date ofLast Order: 06/09/2021

Date ofRuiing: 29/10/2021

T. N. MWENEGOHA,3.
In this application, the applicants herein above are seeking leave to file a
representative suit to sue for and on behalf of 159 other applicants. The
application has been field under the provision of Order I Rule 8 and Section
95 of the Civil Procedure Code, Cap. 33 R. E. 2019 (Herein after the C.P.C).
The applicants have also prayed for costs and any other order the Court may
deem fit and just to grant. This application is supported by the affidavit of
the Applicant's, advocate Walter Godiuck dated 21®'- January, 2021.
Both parties were represented, while the applicants were represented by Mr.
Walker Godluck, Advocate, the and 2"^ Respondents were represented by
Mr. Frank Chacha, Advocate.

On the 5^^ March, 2020 the respondents raised two preliminary objections: -
a. The application is incompetent in law for lack of authenticity and
consent of numerous persons contrary to order I Rule 8 of the C. P. C;
b. The application is incompetent for want of proper verification clause.
By the order of the court the hearing of the preliminary objection proceeded
by way of written submissions.

Supporting the preliminary objection Mr. Godluck submitted that,the legal

position to representative suit is provided under Order I Rule 8 of the C. P.
C. Mr. Godluck cited the provision as follows;-

"Where there are numerous person having the same interest in one
suit, one or more ofsuch person may, with the permission ofeth Court,
sue or be sued, or may defend, in such suit, on behaif of or for the
benefit of aii persons so interested; but the court shaii in such case
give, at the piaintiffs expense, notice ofthe instruction ofthe suit to
aiisuch persons either by personaiservice or, where from the number
of persons or any other cause such service is not reasonabiy
practicabie, by pubiic advertisement, as the court in each case may
direct"

He continued to submit that for the applicants to be granted leave to sue

under representative capacity by the Court three factors must be
ascertained.
 a) The intended parties to be represented must have the common or the
same interest to the subject matter,
b) With the permission of the Court the representative parties must be
suing or defending a suit for on behalf of others or interested person
including themselves;
c) Notice of institution of the suit must be given to the represented
persons.

That, it is a trite law for the Court to grant leave to the applicants in order
to sue under representative capacity, it must satisfy itself that the purported
person to be represented carry the common or the same interest in the
subject matter. To support this argument, he cited the case of KJ Motors and
3 others Ltd vs. Richard Kishimba and Others, civil Appeal No. 74 of 1999
(Unreported) where the Court held that:-
The rationale for this view is fairiy apparent where, for instance, a
person comes forward and seeks to sue on behaif of other persons,
that other person might be dead, non-existent or either fictitious. Eise
he might purport to sue on behaif of persons who have not, infact,
authorized him to do so. Ifthisis notcheckeditcan lead to undesirable
consequences. The Court can exclude such possibilities oniy by
granting leave to the representative to sue on behaifofpersons whom
he must satisfy the court they do exist and that they have duii
mandated him to sue on their behaiT'.

That, the Court must satisfy before granting leave to the applicants in order
to properly check whether this application is genuine, Mr. Godluck further
submitted that this application is a fictitious one with malicious intention to
cause hurdle to the respondents, and the long-listed persons are just coined
by a single person who signed at larger in the list while other are non
existent persons. That, this Court should dig further to find the reality behind
this application.

That in the affidavit and annexure there are numerous numbers of persons
listed but did not appear anywhere from No.1-159. That, those persons in
the list given from No. 1 - 159 did not consent on this application at hand.
He cited the case of Mselem Ally Ng'ondya and Alex Godfrey Dalali vs.
National Social Security Fund, Misc. Land Application No. 102 of
2018 where the court while dismissing the application quoted with approval
at page 3 the decision of this court in the celebrated case of Lujuna Shubi
Balonzi Senior vs. the Registered Trustees of Chama cha Mapinduzi
[1996]TLR 203 whereby Samatta,3.(as he then was held that:-
'The foundation ofOrderIRule 8ofCP.Cis to be found in a principle
which transcends the personal or parochial natural ofthe combatants
who ae arrayed as parties to the suit it affects the rights of other
persons not present before the court. Hence the duty is set on the
court itseif to follow meticulously the procedure prescribed by OrderI
ruie 8in view that that ofthe far-reaching consequences ofa decree
passed in what s described in iaw as a representative suif it is
necessary that the relevant must be treated as presentory and
mandatory.
It was respondent's further submission that, the duty which cast on the side
of the Court to ascertain the respondent's further submission that genuine
of the appiication for leave to file a representative suit is paramount and the
court must scrutinize the documents presented before it on face of records
to find their authenticity to whether the persons intended to be represented,
did willfully consent and if at all they are alive. The respondent contended
that the applicants and ail other person in the list annexed in their affidavit
have no common interests, and the said annexure is at fully doubt as there
is no authenticity in regarding to the signatures and consent of number 1 -
159 as those persons' signatures are missed.

On the preliminary objection, that the application is incompetent for want

of proper verification clause, Mr. Godluck submitted, that it is evidently under
Order VI Rule 15(i) of the C.P.C that:-

""^Save as otherwise provided by any iaw for the time being in force,
every pieading shaii be verified at the foot b the part or by one ofthe
parties pieading or bysome other person provide to the satisfaction of
the court to be acquainted with the facts ofthe case.

Therefore, failure to date the pleading is a tantamount as to failure to

properly verify the pleading as required for by the law. This omission is fatal
as the same remains incurably defective and bad in law.

Mr. Godluck finalized his submission by praying for this Court to dismiss this
application with costs.

When replying, Mr. Chacha, advocate for the plaintiff, submitted that,
preliminary objections should only be on the point of law which do not
require any evidence to prove it. He argued that, the definition of a
preliminary objection was well set out in the famous case of Mukisa Biscuit
Manufacturing Co. Ltd vs. West End Distributors Ltd (1969)EA 696.
"5(9 far asrm aware, a preliminary objection consists ofa point ofiaw
which has been pleaded, or which arises by dear implication out of
pleadings, and which ifargued as a preliminary point may dispose of
the suit.

The court further held that:-

"The first matter relates to the increasing practice of raising points,

which should be argued in the normal manner, quite improperly by
way ofpreliminary objection. A preliminary Objection is in the nature
of what used to be a demurrer. It raises a pure point ofiaw which is
argued on the assumption that aii the facts pleaded by the other side
are correct. It cannot be raised ifany fact had to be ascertained or if
what is sought is the exercise ofjudicial discretion. The improper
raising of points by way of Preliminary objection does nothing but
unnecessarily increase costs and, on occasion, confuse the issue. The
improper practice should stop.

Mr. Chacha submitted that the respondent's advocate utilized the first,
second and half of third page to summarize the provision of Order 1 Rule 8
of the C.P.C instead of putting his energy on what specifically was his
objections is all about according to law.
Mr. Chacha continued to submit that the respondents are aware that the
applicants operate their daily activities in a market place. That, all people in
that market area have similar interest, and also that the respondents are
aware that they once have been in court wit the applicant but the court did
strike out the applicant's pleadings because the market place has not been
registered henceforth the applicants decided to file this application seeking
leave to file the representative suit, in the process of pursuing their rights.
Mr. Chacha continued to submit that, the point raised does not amount to a
preliminary point of objection because the question as to consent,
authenticity, investigation are questions of facts and the facts deposed
through the affidavit are within the knowledge of the applicants and only the
applicants ae capable to prove the same not the respondent nor his attorney.
To support his argument, he cited the case of Soitsambu Village Council
vs. Tanzania Breweries Limited and another. Civil Appeal No. 105
of 2011(Court of Appeal (unreported). The court observed that: -
"Where a court is to Investigate facts, such an issue cannot be raised
asa preiiminary objection on pointofiaw.....it wiiitreatasa preliminary
objection oniy those point that are pure iaw, unstained by facts or
evidence...."

With regards to the second objection, Mr. Chacha submitted that, the
application has been properly verified. He submitted that the preliminary
objections raised are baseless and should not be entertained. That in the
case of Ashmore vs. corp. of Lloyds(1992)2 Ail ER 486(HL)at page
493 the court held that:

"It is the duty of counsel to assist the judge by impiicitization and

concentration and not to advance a multitude ofingenious arguments
 in the hope that out often bad points the judge wiii be capabie of
fashioning a winner.

Mr. Chacha further submitted that, on the alternative, even if all facts to
these objections where correct, the remedy was not to dismiss the
application rather to reject it. To support this argument, he cited the case of
John M. Byombalirwa vs. Agency Maritime Int.(Tz) Ltd (1983)TLR
1.

Mr. Chacha, finalized his submission by praying for this court to dismiss this
application with costs for lack of merits.

Having gone through parties submissions, the main issue for determination
is whether the preliminary objections raised are meritorious deponed based
on knowledge, information or belief he was of the view that.-
"f/7e question whether any matter deponed in an affidavit is based on
knowiedge, information or beiief can be answered by iooking at the
verification dause.

In the instant application the verification clause only stated as follow:-

VERIFICATION

j Waiter Godiuck, verify that what is stated herein above under

paragraph 1, 2, and 3are true to the best ofmy own knowiedge and
based on the information suppiied to me by the appiicants.
Dated at Dar es Saiaam this 21^ day ofJan 2021 (The emphasize is
mine)

This verification clause is silent on which paragraphs were information from

the applicants, and which were from the deponent's own acknowledge. For
that reason, I am in agreement with the respondents that applicant's
affidavit is incompetent and defective for want of proper verification clause.
In the case of Mantrac Tanzania Ltd vs. Raymond Costa, Civil Appeal
No. 11 of 2010 (CAT Mwanza, Unreported), which was cited with
approval in the case of Rhoda Mwasifiga vs. The Manager NBC Bank
and 3 Others Misc. Land Application No. 65 of 2017 the Court ruled
that:-

"An affidavitintended to be usedinjudiciaiproceedingsshouid, among

other things, be properiy verified. It foiiows therefore that the
reguirement to properiy verify the affidavit is set as a mandatory
requirement under the iaw."

Owing to the above observations, the 2"^^ preliminary objection is

meritorious. Henceforth, the instant application is hereby struck out with
costs for lack of competence.

It is so ordered.

Date at Dar es Salaam this IB^^^day-of October, 2021.

T. N. MWENEGOHA

JUDGE
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