the consent of the Attorney General. Elaborating further the learned City Solicitor submitted that
where public rights are at issue, individuals would 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 to 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 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 under Act No. 8/1982 and the accompanying regulations there to which
require the respondents to ensure that their residents live in a healthy 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 applicant 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 & 74 Other Vs Dar es Salaam City
Council. And in conclusion 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 consent
of the Attorney General.
On careful consideration of the respective submissions 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 Artic1e 26 (2) of the
Constitution applied with approval by this Court in the cases cited above. In the event that 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 argued that there is nothing in the application 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 dumping site, at Vingunguti the
learned City Solicitor informed the Court that the site has a dual purpose, as a dumping site and a
reclaimed 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 interests 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 the applicants and the respondents as well
as the submissions there to show that the grounds of the preliminary objection appeal 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 clean environment have
certainly a cause of action against the respondent. Applicants can be heard on the matters raised
in their deposition 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 issue presented.