Representative suit in Tanzania

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    Meaning of representative suit

    Where more than one person to suit is to be involved in an action, the law permits a style in which one or more party to suit may sue or defend the suit on behalf of all other interested persons. This kind of suit is technically known in law as “a Representative Suit”.

    The law which governs representative suit in Tanzania is Civil Procedure Code [Cap 33 R: E 2003] under Order I.

    This procedure is an alternative to the common procedure where each party prosecutes or defends his interests in the case.

    In U.S.A representative suit is termed as group action. It happens where there is a group that intends to pursue group interests.

     

    Generally, representative suit or group action cannot be instituted without court issuing ‘Representative order.’


    Grounds or Conditions for Representative Suit

    In order for a court to issue a representation order, it has to be satisfied itself that the following conditions exist;  

    Seek Leave to File Representative Suit

    Persons who wish to file a representation suit must seek leave (permission) of the court to that effect. Leave is sought by a formal application through a chamber summons supported by an affidavit or by an oral application.

    Seeking leave of the court is mandatory, as stated in Christopher Gasper And Others V Tanzania Harbours Authority [1997] TLR 301 (HC) and Kirigiti Sasi V. Genkuru Village Manager & 6 Others HC. MISC. CIV. APPL. NO; 74 of 2003, AT MWANZA. (unreported) that filing a representative suit is not a matter of right, one must first obtain leave of the court, and the court must give notice to all the interested persons to the suit, be it plaintiffs or defendants.

     The rationale of this condition was stated by the Tanzania Court of Appeal, in K.J. Motors And 3 Others Vs. Richard Kishamba And Others CIV APP NO; 74 OF 1999, at DAR ES SALAAM (unreported

    The rationale for this view (meaning the contents of Order 1 Rule 8 of The Code) is fairly apparent. Where for instance, a person comes forward and seeks to sue on behalf of other persons, those other persons might be dead, non-existent, or otherwise fictitious. Else he might purport to sue on behalf of persons who have not, in fact, authorized him to do so. If this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf of the person whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf

     

    The intended representative(s) and the person (s) to be represented must have the same interests in the subject matter of the intended suit.

    That condition was clearly observed in DUKE OF BEDFORD Vs ELLIS [1901] AC 1(8) Also in K.J MOTORS Vs RICHARD KISHAMBA (supra).

    The representative(s) must be suing or defending the case not on his/their own but on behalf or for the benefit of all persons so interested in the suit.

     That was observed in RAMASESHAYYA Vs RAMAYYA AIR 1957 AP 964 that;


    “….the relief sought should, in its nature be beneficial to all”

    Notice of the institution of the suit must first be given by the court to all persons to be represented

    The said notice may be given either by personal service or, wherefrom 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.

    In Kirigiti Sasi V. Genkuru Village Manager & 6 Others HC. MISC. CIV. APPL. NO; 74 of 2003, AT MWANZA (unreported) it was observed that

    “…after the leave has been granted by court and the representative suit has already been filed the court must give notice of the suit to all persons having the same interest as the plaintiff or defendants as the case may be”

     KIRIGITI’s case observation on the condition of the representative suit was also followed by the decision in PIUS MSIGWA AND 2 OTHERS v. THE SECRETARY OF KIJIJI CHA UJAMAA MAROCHA. (1979) LRT N. 13

    Final Remarks

    A representative suit depends upon the existence of the joint interest in the suit by those seeking to represent others and those to be represented. In actual fact when the court is considering a representative suit it has to take into account whether there is a common interest among the parties and whether they have a common grievance.

     

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