IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
CIVIL CASE NO. 316 OF 2000
FELIX JOSEPH MAVIKA & 4 OTHERS………………………..PLANTIFF
1. DAR ES SALAAM CITY COMMISSION………………….1ST DEFENDANT
2. ILALA MUNICIPAL COMMISSION………………………2ND DEFENDANT
This is an application under Section 68 (c) and (e) and 95 as well as order XXXVII Rule 1 and 2 of the Civil Procedures Code by Felix Joseph Mavika, Leonard Manyara Massawe, Beatus Paul Duma, Gasper Eliheri Maruma and Badi Adballah Khamisi on behalf of 353 others against the Dar es Salaam City commission and Ilala Municipal Commission. The application which is accompanied by an affidavit of Felix Joseph Mavika on behalf of the others, herein after to be referred to as applicants seeks for the following orders:-
(i) An interim order to restrain the Respondents severally and jointly by themselves or through their agents, workpersons etc. from dumping solid and liquid wastes in Vingunguti area because of pollution of the areas environment as well as endangering the health and lives of the applicants, their families and other residents pending the determination of an application for temporary injunction
(ii) An interim order restraining the Respondents severally and jointly by themselves or through their agents, workpersons etc. from using the abattoir located in Vingunguti area for slaughtering of animals due to dilapidation and total disrepair as well as due to its vicinity to the dumping site and the use of polluted water from a water hole dug near the dumping site pending the determination of an application for temporary injunction;
(iii) And a Temporary injunction to restrain the Respondents from dumping solid and liquid wastes in Vingunguti area as well as the use of abattoir located in the area pending the determination of the suit.
It is further noted that the applicants/plaintiffs have filed an substantive suit pleading for specific remedies and reliefs among which is a prayer for a permanent injunction prohibiting the respondents/ Defendants from dumping liquid and solid wastes in Vingunguti area.
The applicants are advocated by a team of learned counsel with Rugemeleza Nshala as the lead counsel. The respondents on other hand, are represented by Ms. Makuru, Learned City Solicitor and Mr. Maganga the legal officer of the Ilala Municipal Commission. The respondents upon being served with the application and the suit filed a counter affidavit, a written statement of defence and a notice of preliminary objection. The essence of the preliminary objection is to challenge the locus standi of the applicants, the incompetence of the application as well as the absence and or lack of a cause of action on the part of the applicants. In arguing the preliminary objections Ms. Makuru the learned City Solicitor has contended that the matter before the court is a public right because the applicants are alleging public nuisance, the existence of which if proved would call into play the provisions of Section 66 of the Civil Procedure Code requiring the consent of the Attorney General, Elaborating further the learned City Solicitor submitted that where public rights are at issue individuals have no right to represent individuals hence the applicants as individuals would have no locus standi in the matter before the court without the consent of the Attorney General.
In reply on this point, Mr. Nshala learned advocate was of the view that the application was properly before the court in terms of Section 66(2) of the Civil Procedure Code which Mr. Nshala contended does not take away any independent right of a suit that may exist. It was also Mr. Nshala’s considered view that the applicants’ action is based on the respondents’ failure to perform a statutory duty under Act No. 8/ 1982 and the accompanying regulations there to which require the respondents to ensure that their residents live in health and clean environment. By dumping the liquid and solid wastes at Vingunguti area where the Applicants live, Mr. Nshala submitted that the respondents have failed to perform as required by Section 53 of Act No. 8/82, which in itself gives the applicants a right to bring this matter in court. Mr. Nshala also called in support the doctrine of public interest litigation enshrined in article 26 of the Constitution of Tanzania upon which the High Court of Tanzania has already given effective reliefs in the cases of Joseph Kessy & others Vs. DCC and Festo Balegele & Others Vs. DCC. And in conclusion Mr. Nshala urged that as the applicants sought leave and were accorded such leave to institute a representative suit, they have a right to bring this action without the consent of the Attorney General.
On careful consideration of the respective submission of both counsel on whether or not the applicants have locus standi to bring the matter before this Court, I am satisfied that the applicants do have a leg to stand on. There is authority in Section 66 (2) of the Civil Procedure Code as well as the doctrine of public interest litigation enshrined in Article 26(2) of the Constitution applied with approval by this court in the cases cited above. In the event this ground of objection fails and is dismissed. This then disposes of the grounds of objection relating to locus standi and incompetence of the application.
The respondents have further advanced the ground that the applicants have no cause of action to assert a public right or special damage suffered over and beyond the general public. Arguing this point the learned city Solicitor urged that there is nothing in the applicant to show that the Attorney General has been asked to perform this public right or refused consent to the applicants. The learned City Solicitor argues strongly that applicants cannot be allowed to circumvent the law to enforce a public right and that the application is an attempt to fetter the statutory powers of the Attorney General and with regard to the existence of the dump site at Vingunguti the learned City Solicitor informed the Court that the site has duel purpose, a dump site and a reclamation of land.
In reply Mr. Nshala has submitted that the applicants’ have ably indicated in the deposition that there are special interests over and beyond public interest. The special interest emanate from pollution, foul and noxious smell due to the dumping of liquid and solid wastes.
I note that from careful analysis of the depositions of both at he applicants and the respondents as well as the submissions thereto shows that the grounds of the preliminary objection appear to be interrelated. The applicants who are claiming to be affected by the action of the respondents in the dumping of liquid and solid wastes as well as failure to provide a healthily and clean environment have certainly a cause of action against the respondent. Applicants can be heard on the matters raised in their depositing in asserting both a public right and or special damage suffered or likely to be suffered over and beyond the general public. And in conclusion I have no doubt in my mind that the matter is properly before the court for trial of the issues presented.
Having disposed of the preliminary objection raised by the respondents I will proceed to address the prayers in the chamber application. These are (i) to issue an Interim Order restraining the respondents severally and jointly from dumping solid and liquid waste in Vingunguti area due to pollution and endangering the health and lives of the applicants and other residents; (ii) to issue an interim order to restrain the Respondents from using the abattoir located in Vingunguti area, (iii) to issue temporary injunction to do as provided in (i) and (ii) above.
As it is on record that the parties were allowed to argue the preliminary objection and the chamber applications simultaneously the relevant prayers to be addressed at this stage are the temporary injunction pending the determination of the main suit.
I have given due consideration to these prayers for temporary injunction and I have come to the considered view that I defer making a decision on the prayers until the final determination of the suit is filed. I have reached this decision partly due to the fact that the applicants/plaintiffs have made similar assertions in pars 3 – 19 both in the affidavit and the plaint, assertions which in my considered view need to be verified at the trial. To this end interest of justice demands that the suit filed proceed for trial as soon as is expedient.
It is ordered accordingly.