MUSSA HAMISI SHAH & TWO OTHERS v DAR ES SALAAM CITY COUNCIL 1996 TLR 201 (HC)

 

MUSSA HAMISI SHAH & TWO OTHERS v DAR ES SALAAM CITY COUNCIL 1996 TLR 201 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

E

MISC CIVIL CAUSE NO 20 OF 1995

23 March, 1995

Flynote

Civil Practice and Procedure - Representative suits - Application for leave to file such

a suit - F Before which court such application should be brought.

-Headnote

The Applicants applied for an order in this Court permitting them to institute

proceedings G in the Resident Magistrate's court against the Respondent on behalf of

more than 68 other co-applicants. The Applicants also sought an injunction

restraining the Respondent from `demolishing, damaging, alienating or disposing' of

the properties in the principal suit to be instituted.

Held: H

(i) The law allows representative suits, but any application for leave to

bring a suit in this way should be entertained by the court that will hear the suit in

due course.

(ii) It would be premature for this Court to grant the injunction sought

before the main suit has been filed. I

(iii) Leave is granted to the Applicants to file the main suit, and the

application succeeds to this extent only.

1996 TLR p202

Case Information

Ordered accordingly. A

Case referred to:

1. Frank M Marealle v Paul Kyauka Njau [1982] TLR 32

Lugue, for the Applicants. B

Eustace, for the Respondent.

[zJDz]Judgment

Bebeshi J:

Mr Lugue, learned counsel filed an application under s 63(1) of the Magistrates Court

Act 1984 and also under Order 1 Rule 8, and Order 437 Rule 1(b) and s 95 of Civil C

Procedure Code 1966 seeking on behalf of the plaintiffs/applicants the following

orders:

(a) that this court grant leave to the applicants to file the suit arising from

unsurveyed land at the court of the resident magistrate D

(b) that this court grant leave to the applicants to file a representative suit

on behalf of the other applicants

(c) that this court issue an interim injunction restraining the respondents

from demolishing, damaging, alienating or disposing of the properties in the suit land

E until the matters concerning the said land are adjudicated on merit by the court of

law

This application is supported by the affidavit as deponed by one Faraji S Mziray on

behalf of the other applicants. F

Appearing on behalf of the respondents of the city council was Mr Eustace learned

counsel who submitted before me that he was not challenging the first prayer, that is,

applying for leave to have this matter heard by the resident magistrate's court as the

applicants had engaged the services of counsel. Mr Eustace however was challenging

the second and third prayers. G

Mr Lugue learned counsel on the issue of representation submitted that since there

were more that 68 applicants he though it prudent that the three applicants be

allowed to represent the rest. In fact he said the law allows representative suits Order

1 Rule 8 of H the Civil Procedure Code 1966. To echo that Mr Faraji S Mziray

deponed in his affidavit para two thereto, that the 68 interested persons have

appointed Mussa Hamisi Shah, Feraji S Mziray and Lucas Japhet Kija to appear in

court on their behalf.

Mr Eustace who was opposed to the prayer submitted that this issue should be I

presented before the court that going to try the suit and not this court. I think Mr

Eustace is correct. The law allows for

1996 TLR p203

representative suits but such application should be handled by the appropriate court

that A will hear the suit, and since I am inclined to grant leave for this matter to be

filed at the resident magistrate's court, it would be in order if this application is

addressed to the competent court once a suit has been filed. B

Likewise on the third prayer. The court would not at this juncture grant the

injunction prayed against the respondents. As I understand the current position is

that counsel for applicants after being granted leave by this court will then proceed to

file the suit at the resident magistrate's court. Once he has done so, it would therefore

be open to him to C apply for the injunction or not. It would, in my view, be rather

premature for counsel to ask this court to grant the injunction when the suit has not

been filed. In that regard the authority cited before me of Frank Marealle v Paul

Kyauka Njau (1) is not relevant here.

In the final analysis, the application succeeds to the extent that only the first prayer is

D allowed. The second and third prayers are not allowed.

1996 TLR p203

E