By Evarist Baimu Nyaga Mawalla - Home

Indeed, it is learned Senior State Attorney’s submission that the list of applicants includesnames of people who are not within the road corridor. Their names, he says, are listed inparagraph 6 of their counter affidavit.According to learned Senior State Attorney, the inclusion of such names should lead to afinding that the disclosure is not sufficiently frank as the affidavit includes names ofpeople who are not covered at all.It would appear from his submissions that Professor Fimbo does not view a frankdisclosure of material facts as a basic consideration which has been contravened by hisclient. According to him sections 17A of the Law Reform ( Fatal Accidents andMiscellanious Provisions) Ordinance, cap 360, has not done away with the preliminarycharacter of an application such as this one.He submits that although the Attorney General must now he made a party to theseproceedings, all that is necessary at this sage is for the applicants to establish arguable ortriable issue. He derives support for this proposition from the decision of this Court inMecaiana Establishment v. Commissioner of Income Tax and Six Others. Misc. Civ.Case No. 156 of 1993 has at therefore invited me to allow this application because it hasat least three arguable issues, namely:-(1) whether the applicants own interests in the suit parcels of land;(2) whether the applicants have property in the houses, buildings and otherstructures within a distance of 400 feet from the centre of Morogoro Road,and .(3) whether the applicants or any of them are entitled to compensation orotherwise for the houses, building and other structures due to be appropriatedfor the purpose of the Highways Ordinance.According to Professor Fimbo evidence that the there are tribal issues includes thefact that the respondents concede in paragraph 14 of their counter affidavit thatGovernment has threatened to demolish the applicants’ houses, buildings andother structures without first paying them full and adequate compensation.So before me there are two competing propositions.The one is as submitted by Mr. Werema and the other is as submitted by ProfessorFimbo. I have given a careful consideration to those proposition which I think aresound. They are worth considering although in saying so I do not intend to saythat those propositions alone, singly or in combination, would be sufficientground upon which leave would or would not, be granted. On the other hand, iftaken at face value Mr. Werema’s contention is rather pre – emotive of theapplication for the prerogative orders. What he has urged me to accept are mattersthe legitimate forum of which would be in an application of the prerogativeorders. As I do not intend to prejudice the case one way or the other, I amsatisfied that for the purposes of the present application the applicants have madea sufficiently full and frank disclosure.234