Abdallah Mohamed Msakendo and Others vs The City Commission of D' Salaam and Others (Misc. Civil Case No. 95 of 1997) [1999] TZHC 152 (5 May 1999)

IN 'r.HE HIGH C_OURT OF 'T \N'Zl.NIA !!J){;]__S S/.L1!1M MISC. CIVo Cfl.SE·. NO. 95 OF 97 l.BDALL/IJI MOHAMED MS/1KilNDEO & 2 OTfiERS o o o e> o o o o o ~ o o o o ·o o o o o o o ci o o c o • o o o • c,APPI,IC.ANT VERSUS -THE CITY COHMISSION Qli' · D '-SAL,11\M ·& 2 OTI-L8RS· •••• o •. o. o ••• ., o •• o.; .,R8BPON:OENT RULING Ma ckc'1..-rij a, J., One Abdallah Mohamed Msakm,lo ood two others nave •to.ken out a chamber suf!ll1lons· by t,;hich they hnve lor'lCTed an appliccitio:::i for J.e,we to institute a · representative Sllit challenginf; three matters, to •.-.rit 1 the dissolution of the City Qouncil of Dar es ;32,.lo..nmi the establi.shment of the City Commission of Dar es Salaam and the extent:ion of the life of the snid Commiss i911. The O:pplicant 1:r,rn,-i.!'.'s th-:.,t he and others h::wc been n.ggrieveci by the act of the second respondent in esta.bl:i;shi_ng the fist. res·pondent, a course of action he believes is illegal~ It is on thnt account that, he would wish to lodge a representative suit on behaJ/ of himself two people he has included in the application "aea togetμ -1ith any other interected party resident in Dar es sulo.o.m. 11 The respondents hnve oppose,-:J. the o.pplicationo They have led affidavit evidence in that behalf~ Mro Mallaha, learned Senior Stat_e _ Attorney, wearine; on behalf of. the, second ?lid third respondents st.;1tcs that the applici':.t ion is incompentent on a numb12r of re:ts.om:. Fir.stly, and since the applicr-i.tion is for- le.:we to sue, among others, the Government, the Government Proceedings Acti 1967 1 requives that the applicants had to· have· served notice of were instituted. their intention to do -so 90 ,days before these proceedings Secondly, and ~s it appear to be,· even if the applicants intend to file ·an ap1,:i lication fo-, J_•"'av-::> to .L'J.1· 1,, · t -1- • ~ - " represen ac-ive application for prerogative orders, the application ·is premature because no leave to do so has been obtainedo Th-irdly th:,_t those it is intended to be represented · who -:L.'1.clude aany other interested party 1 ca.'l!lot be ascurtained w-ith . sufficient particularity.

2 The fir.st respondent 4a.s 'its own remo:t;tstr.?tion again.st the application .. In -the affidavit c:·v·::dence that vras sworn by V~"l.cent K., Damian Lyimo, it is contended tha.t the application is incompetent because:- 1 0 . the app:Licr:i.nts h,a.ve not indicated that they have sufferred - a sp;~dal injury or o:ny injury at all in respect of the acts comp1e:;..ned of; 2" the right which the :_;p:plicrmts allege to have been i..11fringed is 11ore of a J?Ublic ri 0 ht than 2..n individual tight, in which case they have no right to ;:me; 3c · the appl:icants have failed to produce <.wideri"ce that they have 6bte,i.'1ed the consent of those they seek to repre,sent a t1lat they have the same interest; l+., the act.s corn1Jlained of a.re not inconsistent with the democratic 1- 0 ights of a large party of the population of Dar es sal::i.amQ So the issue, really,, is vihether this applic.s.tion is maintenable a.t law.. It :is alsonow opportune to record th-c~t Hr .. riweggela, learned advoc-::tte, acts :for e1.ppiicarits 1 H_ro Nchimbi represent the first respondent :.smd the 2nd and 3rd respondents are· ·defcnde"d by ·the Attorney General~ Indeed, this applic::.\tio:n wns· argued by 1-my of· wri-tten submissions. I have. disco-v:ercd, ho1-1ever, that some po::-tions of these written arguments are presented as if a case :for a-representative suit was already in place. I will thc:rdore be cautions. when dealing with them. Whether or not this ap:plica.tion is maintr:mabJ.e e.t law ·depends on a number of factorso One, that it must not be pre-m2.ture .. This: brings us to the issues th.it were r2,ised by Mr., Malla~a/ learned Senior State Attorney, in his affidzwit,, No one will questi6n the tr-u.t_h that a suit ag"!-inst the Government is go". ::,·ned by the Government Proceec\in.gs Act, 1967, as amended., Section 6 (2) ma.kes it plain thd: ... "N? suit a.g,l.inst · the Governmen-t z;halJ he instituted and heard· unless the c1oimsmt ·previously submits to the Government, Depart!112nt or Off.ice:r concerned a notice of not less tha!1 . . ninety days of his intent ion to sue the Government, · specifying tht basis- _of hi,s clnim af9;1irist the Government, and he she.11-scnd a copy of his _claim to the nttorney- ; Gen~raJ,,tt

3 Does an application for leave to file a representative fall under the above provision? I find the &-riswer in t.h,j fol1owints observations. In order to be, covered by .Section 6(2) the application mw.,t meet the qualific,?.tions of a suit. The learnd · authors of Blacks law Dictionar:y, Abridged .Sixth Edition, define the word :suit to be a generic terms at pages 10001 - 1002:- 17,..,,. referri:ag to any proceedinG by one person or persons against another or others in a court of law in which the plaintiff persues., in such court; the remedy which the law affords l1i1n for the redress of any injury for the redress of any injury or the enforcement of a right whether at law or in equity,.. 11 A suit, therefore, is com.rnenced wlrn~ D. person institutes proceedings for the recovery of-remedy or fo:::- the enforcement of a right or an interest. There is no doubt that an applic.:,tion· such the instant one does not have, as its _pr.imary obj2ctive 1 the recovery of ari.y compensation, damages or any remedy whr.1.tever,. It is a'.n D.pplication the success of which. is a condition , precedent fo:i.· the irLStitution of an '2.ction in •r1hich reliefs or damages will be azked for,. In my judgment an applicant like the one in these proceedings is not required to serve the· 90 day,s not:ice on the Attor:2ey-General,. He will be required to do so if his applicatfon succeeds., And th_e reason for this is quite simple, for should he fail to secure the necessary leave he will not, be able to file a representative suit 0 .The first object::i.on. that was raised by the second 2nd th0 third respondents would therefore fai],. The contention by the first respondent, ;1m,rever that it lJ.,3.s not been established tJv,t the a-gplicants :io possess the same interest with the absent pirsons they wa.nt to sues on their behalf has e. lot of force., It . . . is obvious from the affidavit evidence suppcirtinr: the application that those people have yet to be known., That is so has been made 'l1U.Ch clearer by Mro Mwengela's written submissions. He states at page one thus:- 11Th<:: purpose of this applica.t ion i,s to invite residents of Dar es Salaam who have. similar inteFests. to· come forward and join the applicant in his claimsaoe"• This statement is repeated· :i.t page two of ·hose written arguments,.

4 Now the scope-and' application of Order 1 rule 8 implies that there must exist numerous people with a communality of interest before anyone can file an application f6r leave to sue on their behalf~ This view is · derived from the wording of those i-:irovisions:- • 1 8. Where there are num.erous persons having the tiame interest in cne sut, one or mo:-e of such persons may, 1 Jith the permission of the court, sue or be ,sued, or may defend, in such suit, on behalf of or for the benefi_t of all person.s so interestedo•o"• In my considered opinion the provisions of Order 1 rule 8 do not admit of a. situation, like here where the applicant intend$ to invit~ others who ma.y have an interest similar to hiso should they be too f'ew as not"to qualify as being numerous, then the leave to file a. representative suit will have been given for n0.ught& In these cir;curnstc.°'.nces the application would fail because :i.t does not meet the test regarding the existence of • . numerous persons with. the samt"< interes'to Let me now add that the applicants were required to establish further that those numerous persons were indeed

willing to join the suit bornuse in the event the suit failed the defendant should then proceed to recover his costs fro~ thens Necessarily, therefore those numerous-person must not only be identifiable,. each one of them should -- . append his signature agai..".l.st r:.is name and the list of such persons should be an annexture to the application. Failure to do so will offend the dear provisions of Order· ·rule 12 of the Civil Proc0dure Code., According~~ Mrp Lyimo has sworn, Order 1 rule 8 requires prcof that indeed the applicant and those he intends to represent have sufferred I some injury in respect of the acts complained of wel+; all of is contained in Mr. Msctkandeo' s affidavit is tha.t he h,_:v3· been. aggrieved by the acts complained cf., He · doe not [!;O _further' to establish any injury he has thereby sufferred,. In these •circumstances the second ground of objection of the second and third respondent would- succeed,. Mro Hallaba' s affidavit has al13c.1 r.iised the issue th2.t the complaint that has been faisi;;d is one which, if founded, wonld be attr::=tct the enforcement of a public rightc In that case the applic::cnt would seek a public remedy by i,my of a prerog2tive or.der. I am persuaded that a prerogative order does not reside in a suit . j

5 Upon th,=, foregoing cofl...Siderations the application fails and it is accordingly dismissed with co,sts. Delivereda A;epeance Jo Mo Mackanja JUDGE ---- 12/3/1998 Mr. Mwengela / Mro Jundu : For Appiicants Mr. Nchimbi: For 1st Respondent Mr. Ngwemba,: For 2nd & 3rd Respondent B.A I certified that the true copy of the Original. -:,.· .. ?· ~ ;, ~ .t.: J . -,··""•~~.;./;··: .. cc'-'· DH. J. Ji}. RUHXNGISA DFTRICT REQI';TR:'..R .-.,;.a" ________ .,;..,....,.;o.11r ..,.__.,.__~ 5/5/1999