Court name
High Court of Tanzania

Abdillah Juma vs Salum Athumani () [1988] TZHC 19 (01 July 1988);

Law report citations
1986 TLR 240 (TZHC)
Media neutral citation
[1988] TZHC 19

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

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

   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

   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