ABDILLAH JUMA v SALUM ATHUMANI 1986 TLR 240 (HC)

ABDILLAH JUMA v SALUM ATHUMANI 1986 TLR 240 (HC)

Court High Court of Tanzania - Dodoma

Judge Samatta J

12th July, 1988. A

(PC) CIVIL APPEAL 74 OF 1985

Flynote

Civil Practice and Procedure - Suits - Representative suits - Suit instituted in a

Primary Court by a person other than a B relative or member of the household -

Identities of those represented unknown - Whether representative action may be

instituted in Primary Courts - Whether identities of those represented must be

known. C

-Headnote

The respondent filed a representative action in a Primary Court. He was not a

relative of those represented and he did not disclose their identities. The High Court

considered whether a representative action by a person other D than a relative may

be instituted in a Primary Court. The correct procedure to be followed in such suits

was also considered.

Held: (i) Since a Primary Court can, and is bound to, exercise its civil jurisdiction in

accordance with 0.1 r. 8 of E the Civil Procedure Code, 1966, it follows that a

representative action can, in law, be instituted before it;

(ii) although persons on whose behalf a representative suit is instituted are not

parties to the proceedings it is necessary that their identities be known to the Court.

F

Case Information

Order accordingly.

No cases referred to .

[zJDz]Judgment G

Samatta, J.:This is an appeal from a decision of the District Court of Kondoa District

whereby the decision of the Primary Court of Haubi dismissing the respondent's

claim for recovery of possession of a piece of land measuring one and a half acres was

reversed. H

The respondent purported to institute the civil proceedings on his own behalf and on

behalf of ten other persons. It was his case that the piece of land in question was the

property of the ten persons and himself and that they used it for grazing purposes, but

the appeallant, without their consent, had cultivated it. The ten persons were I said

to be the respondent's fellow villagers, but their

1986 TLR p241

SAMATTA J

identities were not disclosed in the pleadings or during the trial. The appellant

contested the claim, asserting that A the piece of land was his property since 1981

when his father gave it to him. The Primary Court held that the respondent had not

established his case and accordingly dismissed the suit. The learned District

Magistrate was B unable to share that view. He allowed the respondent's appeal and

entered judgment for him. In the course of his judgment he said, among other things:

Indeed, the case for the plaintiff has merits. The plaintiff is claiming

communal land which respondent has cultivated on C his own accord. There is

evidence that the land in dispute is communal one for use of the masses and not for

individuals as alleged by the respondent. According to PW4 an elderly witness,

appellant was appointed to claim on D behalf of other villagers - some of whom

attended this court during hearing of the appeal.

It is therefore in compliance with section 31(2) of the M.C.A. No. 2 of 1984 which for

ease of reference states, I quote: E

31(2) Subject to the provisions of subsection (1) and (3) of this section and to

any rules of court relating to the representation of parties, a Primary Court may

permit any relative or any member of the household of any party to any F

proceeding of a Civil nature, upon the request of such party, to appear as and act for

such party.

With respect to the learned District Magistrate, the provisions he quoted are those of

s. 33(2), and not of s. G 31(2), of the Magistrate's Court Act, 1984. The provisions

were plainly inapplicable to this case. No question of representation by a relative

arose in this case. What the respondent purported to do in the Primary Court was H

to institute and prosecute a representative action. Could he in law do so and, if he

could, did the court follow the right procedure? These are the questions which I ask

myself in this matter and which I shall endeavour to answer. In this Court, the

Resident Magistrate's Court and the District Court a litigant can, with the leave of the

court, institute a representative suit. The authority for doing so is embodied in Order

1 Rule 8 of the Civil Procedure Code, 1966 (hereinafter referred to as "the Code"),

which reads as follows: I

1986 TLR p242

SAMATTA J

8.-(1) Where there are numerous persons having the same interest in one suit,

one or more of such persons, with A permission of the court, may sue or be sued, or

may defend, in such suit, on behalf of or for the benefit of all persons so B interested.

But the court shall in such case give, at the plaintiff's expense, notice of the institution

of the suit 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, the public

advertisement, as the court in each case may direct. C

(2) Any person on whose behalf or for whose benefit a suit is instituted or

defended under sub-rule (1) may apply to the court to be made a party to such suit.

There are no provisions in the Magistrates' Court (Civil Procedure in Primary Courts)

Rules, 1964 (whose D application has been saved by s. 72(3) of the Magistrates'

Courts Act, 1984, and which hereinafter will be referred to as "the Rules"), which are

analogous with these provisions. Does the omission to incorporate in the E Rules

such provisions deny a Primary Court the right to permit a party to institute before it

a representative suit? I do not think so. In my view, the situation is taken care of by

s. 6 of the Judicature and Application of Laws Ordinance (Chapter 453). As amended

by the Magistrates' Courts Act, 1963, that section is couched in the following

language: F

(6) Subject to the provisions of any written law and to the limits of its

jurisdiction, a magistrate's court shall exercise its jurisdiction in accordance with the

laws with which the High Court is required by this Ordinance to exercise its

jurisdiction G and with such other laws as shall be in force in Tanganyika from time

to time and applicable to the proceedings before it, but no magistrate's court shall

exercise any Jurisdiction or powers that are by any such law conferred exclusively on

the High Court as such or on a court of record. H

The laws with which the High Court is required by the Ordinance to exercise its

jurisdiction are described in section 2 of the said Ordinance, which reads as follows: I

1986 TLR p243

SAMATTA J

2-(2) Subject to this Ordinance, the jurisdiction of the High Court shall be

exercised in conformity with the written laws A which are in force in Tanganyika

on the date on which this Ordinance comes into operation (including the laws applied

by this Ordinance) or which may hereafter be applied or enacted... (The ordinance

came into operation on December B 9,1961).

It is my considered view that a Primary Court can, and is bound to, exercise its civil

jurisdiction in accordance C with O.1., r. 8 of the Code. It follows from this that the

Haubi Primary Court could in law permit the respondent in this appeal to institute

before it a representative action. But was the procedure which that court adopted

right? I think not. Although it is perfectly correct to say that persons on whose

behalf a representative suit is instituted D are not parties to the proceedings, it is

necessary that their identities be known to the court. The necessity arises from two

principal reasons. Firstly, in terms of O.1 r 8 of the Code, the court is under duty to

give notice E of the institution of the suit to all such persons. Secondly, the doctrine

of res judicata applies to all such persons. Thus, none of them can institute fresh

proceedings for the same relief. As already pointed out, the identities of the ten

persons on whose behalf the respondent purported to institute the proceedings in the

Primary Court were not disclosed to the court. It was not enough in law to disclose

that those persons were the respondent's fellow villagers. F

In my view, the errors into which the Primary Court strayed in this case are so

serious as to vitiate the proceedings conducted before it. I would, therefore, allow the

appeal and set aside the decisions of both courts below.

The respondent is at liberty to institute proper proceedings before the Primary Court

against the appellant, but if G he does so, the case should be heard by another

magistrate of competent jurisdiction and a new set of assessors, and no fresh fees

should be demanded from him. The appellant will have his costs in this Court as well

as in the two courts below.

Order accordingly

1986 TLR p244