By Evarist Baimu Nyaga Mawalla - Home

applicants. And if I may say now, all that is contained in the counter affidavit that wassworn by Humphrey G. Urio, who, for the time being is the Director of Roads in theMinistry of Works is an elaboration of the preliminary objections put in evidential form.So I will consider the counter affidavit in tandem with the preliminary objections.The preliminary objections raise very fundamental points of law. A decision onthem will entail all the this Court is required to do at this preliminary stage of theproceedings. Necessarily, therefore, such a decision will consider the practice andprocedure that govern an application such as this one. In order to be consistent I willconsider the objections serjatim.Mr. Werema, learned Senior State Arrorney, who appears for the respondents andProfessor G. Mgongo – Fimbo who advocate for the applicant, are agreed that thepractice and procedure we apply in applications such as this one are identical to thatobtaining in England, especially in terms of Order 53 of the Rules of the Supreme Court(R. S.C.) Because of the identical nature of these procedures Mr. Werema has invited meto consider English case the law when deciding this application. Of course I would havedone so even without such an invitation.It is Mr. Werema’s submission that according to that procedure the affidavit supportingthe application for leave to file an application for prerogative orders must make a full andfrank disclosure of all material particulars in dispute. Failure to do so, he argues, will besufficient ground for the dismissal of the application. He has cited once English decisionin support of his submissions; O’Relly and Others v. Mackman and Others, (1983) 2.A.C. 237. It is his contention that the affidavit of Josiah Balthazar Baisi, the firstapplicant, does no meet that rest because when the Dar es Salaam – Morogoro highwaywas developed in 1972 all owners of land who were affected were compensated.It was therefore incumbent upon the applicants to show how they re-occupied an area inrepsopect of which compensation was paid. This failure, according to Mr. Werema,indicates that the affidavit supporting the application does not contain a full and frankdisclosure of material facts.Mr. Werama has also pointed out that in a planned area like Dar es Salaam, theTown and Country Planning Ordinance, Cap. 378 required anyone to obtain a buildingpermit before he puts up a building. He contents that there is nowhere in the affidavitsupporting the application where it is disclosed that the applicants lawfully constructedtheir house and other structures which are the subject of this application.There is also the question of the deemed rights of occupancy. Mr. Weremacontends that the applicants have failed to make their case in that regard because theaffidavit of the first applicant does not disclose how the purported deemed rights ofoccupancy were acquired legally.233