CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 11761 OF 2024 _________ SELINA THOMAS MUSHI…………………………………1ST PLAINTIFF SELINA THOMAS MUSH (As a next friend of SAID MUSSA MNYAGALI)………………………………..2ND PLAINTIFF SELINA THOMAS MUSHI (As a next friend of SPENCIOZA MUSSA MNYAGALI)………………………3RD PLAINTIFF

VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LTD…….1ST DEFENDANT HON. ATTORNEY GENERAL ……………………………2ND DEFENDANT

RULING Date of last order: 27th February 2025 Date of Ruling: 2nd April 2025 MTEMBWA, J.: In this case, the Plaintiffs claim against the Defendants jointly and severally for a total sum of Tanzania shillings 1,000,000,000/=) as compensation for damages caused as a result of negligence actuated by the 1st Defendant; interest on the decretal sum at Court’s rate from the date of judgment to the date of full payment and costs of the suit. 1 Briefly, in May 2023, the Plaintiffs were involved in an electric power accident at their residential home at Mbagala-Mbande area in Dar es Salaam Region. It was alleged that Said Musa Mnyagali (8 years old) was shocked after touching an electric pole supporter owned by the 1st Defendant. Having seen that, his two sisters, Specioza Musa Mnyagali and Happiness Thomas Mushi, in the absence of any knowledge, went to rescue him. As a result, they were too shocked and left unconscious. Following such failure, the 1st Plaintiff, the two sisters’ biological mother, came into rescue. She was also shocked by electrical power. Having been served with the Plaint, the Defendants resisted the claim and further raised a preliminary objection that the suit is unamenable in law for being filed in contravention of sections 6 (2) and (3) of the Government Proceedings Act, Cap 6 R.E 2019. When the matter came for orders on 27th February 2025, the Plaintiff

was represented by Mr. Kelvin Challe, the learned counsel, while Mr. Sarehe Manoro, the learned state attorney, represented the Defendant. By consent, both counsels agreed to argue the preliminary objection by way of written submissions. Having reviewed the records, I noted that only the Defendants’ counsel adhered to the agreed schedule. The 2 Plaintiffs never filed the reply submissions. As such, this ruling is issued exparte against the Plaintiffs. Arguing in support of the objection, the learned state attorney submitted that the suit has been filed in contravention of the Government Proceedings Act, which requires the claimant or Plaintiff to issue ninety days’ notice before instituting any suit against the Government or its institutions. She referred this Court to section 6 (2) of the Act which provided that no suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, Department or Officer concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall send a copy of his claim to the Attorney-General and the Solicitor General. Based on that, the learned counsel observed that service of the notice of intention to sue the Government and proof thereof are prerequisite conditions and must be ascertained before the

Court assumes jurisdiction to hear or determine the matter against the Government. He contended that the Court must be sure of whether section 6 of the Government Proceeding Act has been complied with. The learned counsel insisted on service of the notice and proof 3 thereof. In addition, the said notice must be seen to have been served to the government institutions, with a copy sent to the Attorney General and Solicitor General. To fortify, he referred this Court to the decision of this Court in Zuwena Idd Kasabe vs. Muhimbili National Hospital and Another (Civil Case No. 26443 of 2023) [2024] TZHC 6008 (27 June 2024). Stretching further, the learned counsel vigorously attacked the notice and email attached to the Plaint. He contended that the notice did not show the name of the recipient nor the official stamp of the institution that was served with it. As to the email, the learned counsel observed that the attachment is not a proof that the notice was served because it does not show the type and contents served nor the name of the recipient. To cerebrate his argument, he cited the case of Nasoro Mbaruku (the Administrator of estate of the late Kurwa Abdallah Salum) vs. Makubi Hamisi Mwinyi & 2 Others, Land Case No. 340 of 2022, where it was observed that as a standard of proof of service, there must be a signature of receiving officer, the stamp of the concerned Government

entity and a date indicating the date of receipt. 4 Based on that, the learned state attorney implored this Court to sustain the preliminary objection. As said before, the Plaintiffs’ counsel never filed the reply submissions. Having dispassionately considered the objection and the submissions supporting it, the question is whether it warrants the immediate dismissal of this suit. The objection is premised on the failure to issue a ninety-day notice to the Defendants and the solicitor general. Stressing points are on the failure to serve and proof that the same was served as required by law. The learned state attorney considered what was attached as evidence of service immaterial, falling short of the name of recipients and the official stamp. Indeed, section 6 (2) of the Government Proceedings Act provides in lucid terms that no suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, Department or officer concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall serve a copy of his claim to the Attorney-General and the Solicitor General. Discerned from the cited section, one, a party must issue to the Government Minister, Department, or officer concerned a notice of not 5 less than ninety days of his

intention to sue the Government; two, a notice must specify the basis of the claim against the Government and; three, a copy of it must be copied and served to the Attorney-General and the Solicitor General. It must be noted that the requirement to issue or serve the ninety-day notice is not a fashion or constimetic. A party must ensure that the respective entity is served with it and records or keeps the evidence of service for future use. In Willam Said Kitundu Vs Osmund Makario Kapinga and 3 Others (Land Case No. 05 of 2023) [2023] TZHC 23124 (5 December 2023) this Court observed; The ninety days' notice to the Attorney General and the Solicitor General is a mandatory requirement of the law and thus ought to be disclosed in the plaintiff’s plaint and annexed on pleading. This is because this is part of the initial prerequisites in filing suits against the government and is important in ascertaining the jurisdiction of the court. It follows, therefore, that this Court has no jurisdiction to entertain the suits against the Government if the notice has not been so served and/or a copy of it has not been copied and served on the Attorney General and Solicitor General. There is no shortcut to this. Since it is a legal requirement from which this Court draws its jurisdiction to entertain such matters, ascertaining the service of the notice is mandatory before doing anything, and

the rule is the Court cannot assume that the 6 respective institutions were accordingly served without evidence on record. A party, therefore, must attach all necessary information to the originating document, like the Plaint, to prove that the service was done correctly to avoid preliminary objections like the instant one. In our case, a demand notice dated 16th August 2023 was directed to the Managing Director of the 1st Defendant. It is signed and dated to have been received by someone who did not disclose his name and title. It was not quickly established whether it was received by the addressee, his personal assistant, the office cleaner, his driver, or his office attendant. For future guidance and to avoid such imaginations, the recipient's name, title, rank, and office stamp must be vivid, as a case may be. Even for the sake of argument that someone received it on behalf of the addressee, it must be clearly shown that he or she was mandated to receive the office correspondence. In Nassoro Mbaruku Nassoro (The Administrator of the estate of the late Kurwa Abdallah Salum) (supra), which the leaned state attorney correctly cited to me, the Court observed that; As a standard of proof of service, there must be a signature receiving officer, the stamp of the concerned Government entity and a date indicating the date of receipt. 7 The email titled Demand Notice (90 days) was

sent to info@agctz.go.tz. While I agree that email is a proper means of service, the question is whether it went through. Even if I agree that it went through, the confirmation of receipt was never laid to enable the Court to ascertain whether it was served to the 2nd Defendant. From what I have tried to endeavor hereinabove, I agree with the learned counsel that it is uncertain whether the ninety-day notice was served to the defendants in accordance with the law. Since it is unclear, assuming that the law was complied with is unsafe, and by doing so, this Court will be assuming its jurisdiction to try this suit. To that end, the preliminary objection raised by the Defendants is hereby sustained. In effect, this suit is therefore struck out for failure to issue the ninety-days notice in view of section 6 (2) of the Government Proceedings Act. Considering the circumstances, there will be no order as to costs. I order accordingly. 8 Right of appeal explained. DATED at DAR ES SALAAM this 2nd April 2025 H.S. MTEMBWA

JUDGE 9