Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 337 OF 2023 ABLA ESTATE DEVELOPERS & AGENCY CO. LIMITED......... 1st PLAINTIFF NASSOR KHALIFA GHARIB...................................................2nd PLAINTIFF

VERSUS I & M BANK (T) LIMITED.................................................. 1st DEFENDANT HAMDUN HAMDUN............................................................ 2nd DEFENDANT REGISTRAR OF TITLES..................................................... 3rd DEFENDANT THE ATTORNEY GENERAL................................................. 4th DEFENDANT

RULING Date of last Order: 25/11/2024 Date of Ruling: 29/11/2024 LALTAIKA, J, This Ruling resolves the preliminary objection (commonly referred to by its acronym PO) raised by the 3rd and 4th Defendants challenging the competence of the suit on the ground that it contravenes section 6(2) of the Government Proceedings Act, Cap 5 R.E.

2019. The PO was argued by way of written submissions. Ms. Lightness Godwin Msuya, Senior State Page 1 of 9 Attorney argued in support of the PO while her learned brother in the bar, Jeremia Mtobesya, learned Advocate, vehemently objected to the same. According to the ordered schedule, the Defendants were to file their submissions in chief on 4th November 2024, the Plaintiff was to reply by 18th November 2024, and any rejoinder by the Defendants was to be filed by 25th November 2024, which was also set for mention to fix the date for Ruling. I hereby register my commendations to Counsel for their spotless compliance with the scheduled order. This positive habit of time management, which is growing among Counsel in this country, is essential to enable this Court to fulfil its constitutional mandate of timely dispensation of justice. The next part of this Ruling is, in that order, a summary of submissions by the parties, my analysis of the law and the verdict. Ms. Msuya explained that the objections were grounded on a point of law, asserting that the suit was bad in law for contravening the mandatory requirements of section 6(2) of the Government Proceedings Act (supra). She stated that the Defendants prayed for the dismissal of the suit in its entirety with costs. Page 2 of 9 She strongly argued that the Plaintiff had not met the mandatory requirements under section 6(2) of the

Act, as they failed to serve the requisite 90 days' notice to the 4th Defendant (the Attorney General) and the Solicitor General. She added that the notice annexed to the plaint as Annex "J" lacked the address of the Solicitor General and was therefore not properly served, rendering it ineffective. Quoting section 6(2) of the Government Proceedings Act, Ms. Msuya emphasized that no suit against the Government could be instituted and heard unless a prior 90 days' notice was served to the relevant Government department or officer, with copies sent to the Attorney General and the Solicitor General. She underscored that the term "shall" in the provision connoted a mandatory requirement, as interpreted under section 53(2) of the Interpretation of Laws Act, Cap. 1 R.E. 2020, which stipulates that functions conferred using the word "shall" must be performed. Ms. Msuya further submitted that the Plaintiff's failure to serve the notice on both the Attorney General and the Solicitor General contravened section 6(2) of the Act and was tantamount to not issuing the notice at all. Page 3 of 9 She cited this Court's cases of Martinair Holland N.V. and Another v. Tanzania Civil Aviation Authority and Others, Civil Case No. 89 of 2022 and Twaha Said Mpendu v. Hamis Said Ngwere & 16 Others, Land Case No. 2269 of 2024 and M/S Gracefem Investment Ltd v. Tanzania National Roads Agency (TANROADS)

and Another, Civil Case No. 42 of 2022 to buttress her arguments. In conclusion, Ms. Msuya prayed for the suit to be dismissed with costs. Mr. Mtobesia, learned Advocate, on his part, explained that the case was initially filed before the Court in October 2023 against the 1st and 2nd Defendants. While the matter was pending determination, Counsel averred, the 3rd Defendant undertook actions that affected the subject matter of the case, despite being informed of its pendency, which involved a dispute over ownership of the subject matter. Aggrieved by these actions, the learned Advocate narrated, the 2nd Plaintiff issued the statutory 90 days' notice and subsequently sought to amend the plaint. The Court granted this prayer, asserted the learned Advocate, resulting in the inclusion of the 3rd and 4th Defendants after the amendment. Page 4 of 9 Mr. Mtobesia acknowledged the provisions of section 6(2) of the Government Proceedings Act and the cases cited by the 3rd and 4th Defendants. However, he contended that the cases cited were distinguishable from the current case for several reasons, and thus, their legal effect differed. He argued that the primary purpose of section 6(2) was to notify the relevant government entity of a claim to allow for adequate preparation. In the present matter, he asserted, the notice had been served on the 3rd Defendant, the entity responsible for

actions affecting the subject matter, and the 3rd Defendant had 90 days to act or consult the 4th Defendant if necessary. He maintained that the notice served on the 3rd Defendant fulfilled the purpose intended by the law. Mr. Mtobesya further argued that striking out the suit would prejudice the Plaintiffs' rights, as the 3rd and 4th Defendants had failed to demonstrate how they would suffer prejudice if the case proceeded. He submitted that not every noncompliance results in adverse effects on the opposing party, and the circumstances of the case invoked the principle of overriding objective, which warranted that the service effected on the 3rd Defendant be deemed sufficient to meet the requirements of section 6(2). Page 5 of 9 In the alternative, Mr. Mtobesya argued, unlike the cases cited by the 3rd and 4th Defendants, the Attorney General in this matter had been joined in an existing, properly filed suit. He submitted that this situation constituted an issue of misjoinder of parties rather than noncompliance with section 6(2). He referred to Order 1 Rule 10(2) of the Civil Procedure Code (Supra), which deals with misjoinder of parties, and emphasized that misjoinder does not render a suit incompetent. Counsel also cited Order 1 Rule 9 of the Civil Procedure Code (supra) which provides that no suit shall be defeated by reason of misjoinder or non­ joinder of parties. He

argued that in such cases, the Court should remove the wrongly joined parties and allow the suit to proceed against the remaining defendants. He further prayed that if the Court found merit in the preliminary objection, it should order the removal of the 3rd and 4th Defendants from the suit for misjoinder and grant leave for them to be joined later upon compliance with section 6(2). However, he maintained that the raised objection lacked merit and prayed for its dismissal on the grounds advanced. Page 6 of 9 I have dispassionately considered the submissions by both Counsel. The issues for determination are: 1. Whether the suit contravenes section 6(2) of the Government Proceedings Act.

2. If so, what is the appropriate remedy? On the first issue, section 6(2) of the Government Proceedings Act (Supra) provides: "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." The language of the provision is mandatory, as emphasized in the cases cited by the 3rd and 4th Defendants, including Martinair Holland N.V. fsupra) and Twaha Said Mpendu (supra). The statutory notice serves as a prerequisite for instituting a claim against the Government, ensuring the relevant authorities are informed and prepared to respond. Page 7 of 9 In this case, the Respondent concedes that the 90 days' notice was served only on the 3rd Defendant and not on the Attorney General or Solicitor General. The annexed notice does not contain the address of the Solicitor General, nor is there evidence of service upon these key government offices. I entertain no doubt in entering a fining that this constitutes a clear breach of section 6(2). On the second issue, I am mindful of the Respondent's submission invoking the principle of overriding objective and the plea to

avoid prejudicing the Plaintiffs. However, statutory requirements such as those under section 6(2) cannot be overridden without exceptional circumstances. Noncompliance with mandatory procedural requirements renders a suit incompetent. The Respondent's alternative argument regarding misjoinder of parties is similarly untenable. While Order 1 Rule 10(2) of the Civil Procedure Code allows for the joinder or removal of parties, it does not permit the circumvention of mandatory preconditions for suing the Government. However, I am persuaded by the Respondent's prayer for an alternative remedy to minimize prejudice. Instead of outright dismissal, I find Page 8 of 9 it appropriate to strike out the suit with liberty to refile upon full compliance with section 6(2) of the Government Proceedings Act. In the upshot, the suit is hereby struck out. The Plaintiffs are at liberty to refile the suit upon fulfilling the statutory requirements and subject to the law of limitation. No order as to costs. It is so ordered. E.I. LALTAIKA

JUDGE 29/11/2024 Page 9 of 9