THE LAW FORUM (LLB MoCU)

REPRESENTATIVE SUIT IN TANZANIA BY MWAKISIKI MWAKISIKI EDWARDS

Representative suit is the suit brought or instituted before the court of law

specifically when some persons represents another persons interested in filing a particular suit. As far as Tanzania laws are concerned the provisions of Order 1 Rule 8 of civil procedure code elaborate several issues regarding representative suits including the conditions and procedures and this order and rules is considered to be an exception to the general rule stipulated under Order 1 Rule 1 and 3 of civil procedure code , which provides for joinder of plaintiffs and defendants respectively.

A representative suit shows a significant variation from normal civil suits in many aspects for example in an ordinary suit, no prior leave of the court is required for institution while in a representative suit prior leave is required that is it cannot be a representative suit unless prior leave of the court has been sought and granted.

By closing closely observing the provision of Order 1 rule 8 of the Civil Procedure Code , the following conditions can be deduced which normally make a representative suit a representative one and this includes:- there must be numerous number of parties, the interest of all parties must be the same, the court should give permission and lastly notice must be issued to proposed parties, which are detailed below:-

There must be numerous people, This means that there must be many people who shares or must have a communality of interests and that interest must exist at the time of making an application for a representation order. These numerous people will elect or nominate few people to represent them in contesting a suit before the court of law and they must sign a memorandum of agreement since the decision which will be given at the disposal of the suit will bind all the member.

The interest of all parties must be the same, Unlike in joinder of the parties where the cause of action must be the same, in representative suit its essential only there is communality of interest to all members and such interest must exist at the time of making an application for an representative order. In case the people suing under representative suit did not share common interests the court will not grant a leave or representative order.

Court should give permission, The court permission is greatly required for parties to be allowed to institute their suit under a representative character and the member wishing to due Under representative suit are obliged to seek the leave of the Court first and the Court will determine on whether to grant permission or not by observing other required conditions stipulated under order 1 rule 8 of civil procedure code if are met.

Notice must be issued to proposed parties, This also constitute to another significant condition prior in instituting a representative suit and under this respect notice of the suit must be given to all persons on whose behalf or for whose benefit a suit is instituted or defended, and such notice shall be given either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

The case of Abdallah Mohamed Msakandeo & Others v The City commission of Dar es salaam , summaries the requited conditions for representative suit and its an important case that stipulated some requirements which must be fulfilled so that we can have a legally representative suit. One according to the case, there must be numerous people. Two, these numerous people, must have a communality of interests and that interest must exist at the time of making an application for a representation order. Third, the numerous people must express a willingness of having the applicant for the representation order representing them. A person cannot be bound on the decision unless he is willing to be represented. Those people who don’t appear before the court must be shown to have acquiesced.

It should be noted that not all courses of action can give rise to a representation suit. The case of Balunt Sigh v Joginder Sigh says not all courses of action may raise a representative suit. This was a Libel defamation case. It developed the general rule that libel actions are personal actions. Therefore the lesson we are getting from that case is that before deciding to apply for a representation order, you must decide whether the suit is based on an action in rem or an action n persona. If it’s in persona it does not qualify to be a representative action.

For representative suit to be legally a representative suit the following stages and procedures must be followed and this includes the followings:-

Nomination of the representative and signing of a memorandum to the effects, the several plaintiffs or defendants may nominate a few of them for purposes of appearance. Therefore in terms of appearing before the court and receiving directions of the court, the parties may agree to choose a number of them to make such appearance. They agree by filling a memorandum to that effect. The rest must sign the memorandum and all the parties should be impleaded during an action taken by a smaller group of people would be an action which binds all of them. Having that done it follow another stage which is making application for leave to file a representative suit.

Application for leave to file a representative suit, Order 43, Rule 2 of Civil Procedure Code provides that, every application made in court must be filed or made by way of Chamber Summons and affidavits, which will contain the names of the numerous people, If there’s no such annexure, then the application will be incompetent and the court will have to dismiss it.

Issuing representative order, This is an order made by the court under Order 1, Rule 8 allowing one or more parties to a suit (who are interested in a suit) to prosecute or defend the suit on behalf of a wider group of persons interested in the same suit. When a representative order is made, a decision in the suit will bind all those interested in the suit whether they had appeared before the court or not.

The most important implications of a representation order are two. One the numerous people who will not be in court, will be bound by the judgment which will be issued and therefore they cannot institute a suit based on the same course of action and seek relief subsequent to the representative suit, and two, in case they do not succeed in the suit, they will be liable to pay the defendant his costs. There are cost implications if they do not win the case, they will be liable to pay the defendant his costs. After a court have received the application its time for it to determine on whether to issue a representative order or not, and this constitute to another stage of a representative suits.

The case of Kiteria Menezes and 33 others v Area Engineering works Ltd and AG , carries the decision that disagreed the position that you can file a representative suit before getting a representation order, and that the correct interpretation of Order 1 Rule 8 is that what comes first is the representation order. The suit comes after the representation order has been made. ‘‘It will be absurd for a representative suit to exist before a representation order has been made because an application for a representation order may be refused. Therefore a representation order is a necessary precondition for the institution of a representative suit.’’

In Murdin Ibrahim & 899 others Vs. THA, In this case, a representative order was made after the suit had been instituted. The plaint was filed by 900’s plaintiffs, their names were cited in plaint and they all signed, but the different is that all their names appeared in the list of annexed to the plaint except two of them. All two people signed the plaint. Technically the suit was indication by only two people but there was an indication by annexing a list of names to the plaint as the names of those people who will be interested in the suit. The question was when did the suit come to be involving those names appeared in list? The answer was that, they became partly to the suit after the representation order were interested in the same suit. And the application was made after the file.

Kamuti Kamwengo & others v Tanzania Zambia Railway Authority , the Court of appeal in that case repeated the position that a prior representation order must be sought and obtained before a representative suit is instituted.

Notice of the suit, Rule 8 above ordains in mandatory terms that notice of the suit must be given to all persons on whose behalf or for whose benefit a suit is instituted or defended, and such notice shall be given either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. That notice is published as expenses of those seeking a representative order. In the case of Masawe and Company v. Jasper Cartel & 18 Others Was looking at the provisions of Order 1 Rule 8 and it said that notice to the suit must be sought and be issued to the proposed party and such notice will be issued by the Court and normally will be done in a way of public advertisement like in newspaper.