MANSOOR IDD

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA LAND CASE NO. 4484 OF 20 24

BETWEEN AMINA TWAHA MOHAMED........ . PLAINTIFF

VERSUS MANSUR IDDI........................... ................................ ....1ST DEFENDANT DODOMA CITY COUNCIL................. ......................... ...2ND DEFENDANT THE ATTORNEY GENERAL........ ................ ..................... 3RD DEFENDANT

RULING Date of last order. 4/06/2024 Date of Ruling: 22/07/2024 LONGOPA, J.: The plaintiff filed this suit against the respondents concerning the dispute over the piece of land on Plot No. 106, Block EE Medeli East, Njedengwa within Dodoma District, Dodoma Region. The Plaintiff claims to be the owner of the plot but first defendant unlawfully trespassed to the plot. The first defendant claimed the plot was allocated to him by second defendant. For that plaintiff claims that the act done by second defendant was unlawful for she had already made relevant payments for survey process and expected the land be allocated to her after the survey was conducted. 1 | Pa ge The Plaintiff prays for the declaration that the Plaintiff is the lawful owner of property in dispute, that the 1st Defendant and his agents be evicted from the property in dispute, general damages as may be reasonably assessed by this court, costs of the suit be borne by the Defendants and any other remedies the court may deem fit and just to grant. The Defendants refuted to all claims. In the Written Statement of Defence (WSD) of the 2nd and 3rd Defendants apart from responding to claims, 2nd and 3rd Defendants herein above raised two preliminary objection as hereunder:- (1) The suit is incompetent for contravening Order VII Rule 1 (f) and (i) of the Civil Procedure Code Cap 33 R.E 2019; and (2) The suit is bad in law

for failure to serve 90 days notice to sue to the second defendant and the Solicitor General pursuant to Section 6 (2) of the Government Proceedings Act Cap 5 R.E 2019. On 4th June 2024, the parties prayed to dispose the suit through way of written submission and this court granted that prayer. The parties complied to the scheduling order of submission as agreed. It was submitted by the second and third defendants that the suit is incompetent for contravening the provisions of Order VII Rule 1(f) and (i) of the Civil Procedure Code R.E.

2019. It is the mandatory requirement of law, under Order VII Rule 1 (f) and (i) of the Civil Procedure Code, R.E. 2019 on particulars of Plaint should entail facts showing jurisdiction and statement of the value of subject matter. 2 | Page It is argued that contrary to the cited mandatory provisions of law above, the plaint before this court do not disclose facts showing that this honourable court has jurisdiction to entertain the suit. The plaint further does not contain statement of the value of the subject matter. From the plaint before this court, the subject matter of the present suit is an immovable property involving a piece of land; as such the plaint was supposed to contain facts stating the value of the landed property in dispute as well as the statement how this honourable court have jurisdiction to entertain the suit. It is noted that in the instant case there is no a paragraph in the plaint that provides to that effect. According to the Defendants the purpose of description of the jurisdiction was elaborated in the case of Godfrey Shimbi vs Tabu Ramadhani and 3 Others (Land Case 17 of 2021) [2022] TZHC 9992 (12 May 2022) (TANZLII), at pages 4&10, the court stated that, the issue of jurisdiction is fundamental. If the suit does not comprise issue of jurisdiction will be incompetent and unmaintainable, the Court further reiterates that whatever is done by a Court

without jurisdiction is nullity. The defendants also cited a case of Makwizu Msuko and others V R, Criminal Appeal 326 of 2007 CAT (Unreported), whereby the Court provides that there are several types of jurisdictions, namely: original, appellate, territorial, pecuniary and others. Therefore, failure to state the value of the suit land deprives this Court power jurisdiction to entertain the matter. 3 I Pa ge On the second point of Preliminary objection by the Defendants is that the suit is bad in law for failure to serve 90 days' notice to sue to the 2nd defendant and Solicitor General pursuant to section 6 (2) of the Government Proceedings Act, Cap 5 R.E.

2019. It is the requirement of the law that notice of 90 days' must be submitted and served to a Government, Ministries, Department or officer concerned on the basis of the intended suit against such Government department or officer. This was elaborated in the case of Jamila Hussein Almansa vs The Kigamboni Municipal Council & Another (Mise. Application No. 516 of 2023) [2023] TZHCLandD 16931 (4 September 2023) (TANZLII), at page 5 and 6 The Court insisted the requirements of 90 days' notice as one of the requirements provided by the Law, in such cases the Court failed to invoke the principle of overriding objection as the applicant has contravened mandatory of the law. It was humble submission of the Defendants that the present suit is incompetent and the remedy sought by your humble defendants is to struck out the same with cost. On the other hand, the Plaintiff responded to the written submissions of the 2nd and 3rd Defendants on points of preliminary objection raised as follows: Plaintiff acknowledged the first point of objection raised by the defendants that the plaint does not expressly contain the requirements under Order VII, Rule 1 (f) and (i) of the Civil Procedure Code [Cap 33 R.E 2019]. The Plaintiff therefore concedes to 4 | Pa g e the errors committed in drafting the Plaint that was filed to institute the case at hand. The plaintiff also concurs with the

defendants on the second point of objection that the 90 days' notice was not served to the defendants by the plaintiff. The plaintiff also concedes to the errors altogether because she is a lay person to law and did not understand the implications for failure to serve the 90 days' notice against the Government. The plaintiff rather has a cause of action against the defendant's altogether pursuant to Order VII, Rule 1 (e) of the Civil Procedure Code, due to that fact the plaintiff recognizes that the Honorable Court is vested with power to provide timely and just decisions to matters brought before it. Having concurred that two points of the Preliminary Objection, the plaintiff prays for the withdrawal of the suit with leave to refile as provided under Order XXIII, Rule 1 (2) (b) of the Civil Procedure Code in order for the plaintiff to sustain the conceded errors and refile a new Plaint for her claims. I have perused the record as well as written submissions by the parties to underscore the validity of the Preliminary Points of Objection. For a Preliminary Objection to be worth a name, it is a settled law in this jurisdiction that such point of preliminary objection should be on point of 5 ) p a ge law. It may include time limitation, lack of Court's jurisdiction and issues of similar nature. The case of Milcah Kalondu Mrema vs TIB Development Bank Limited & Another (Civil

Appeal No. 513 of 2020) [2023] TZCA 17982 (15 December 2023) (TANZLII), at page 3, the Court of Appeal noted that: Both parties are in agreement on the principle of iaw propounded in the famous case of Mukisa Biscuit Manufacturing Co, Ltd v, West End Distributors [1969] 1 EA 696 that preliminary objections are points of law which are argued on assumption that all the facts pleaded by the other side are correct." It is my view that if the two preliminary objections are true then the enunciated principle of Mukisa Biscuit's case as demonstrated in the cited case apply. The two preliminary objections on the case being the suit is incompetent for contravening Order VII Rule 1 (f) and (i) of the Civil Procedure Code, Cap 33 R.E 2019; and the suit is bad in law for failure to serve 90 days notice to sue to the second defendant and the Solicitor General pursuant to Section 6 (2) of the Government Proceedings Act, Cap 5 R.E 2019 are points of law which are capable of disposing this matter in proper circumstances if there is sufficient arguments on their existence. The first preliminary objection is about the suit being incompetent for contravening Order VII Rule 1 (f) and (i) of the Civil Procedure Code, 6 I Page Cap 33 R.E 2019. That particular provision explicitly and lucidly states that: The plaint shall contain the following particulars:- (f) the facts showing that the Court has

jurisdiction (g) n/a (h) n/a (i) a statement of the value of the subject matter of the suit for the purpose ofjurisdiction and of Court fees, so far as the case admits. The plaint should contain among other things the jurisdictional clause that is to show that the Court has jurisdiction and also a statement of the value of the subject matter of the suit for the purpose of jurisdiction and of Court fees, so far as the case admits. This helps in determining whether the suit is within the jurisdiction of the Court or must be returned for presentation to proper Court. The effect of failure to state the value of the subject matter has been explained in the case of Fereji Said Fereji vs Jaluma General Supplies Ltd and Another (Land Case 86 of 2020) [2021] TZHCLandD 167 (23 April 2021) (TANZLII), at pages 4-8, the High Court (Hon. Kalunde, J.:) observed that: In accordance with O. VII Rule I fl) of the CPC, a plaint must contain a statement of the value of the subject matter involved in the suit. The requirement to state the 7 | Pa ge value of the subject matter is not a cosmetic one because it is useful in determining the jurisdiction of the Court as well as ascertaining the requisite court fees. The law is very clear under o. I/// r. 1 (i) of the CPC that a plaint must contain a statement of the value of the subject matter of the suit. In the present case, the plaint does not

disclose the value of the subject matter. The failure to state the value of the subject matter renders the suit incompetent. The only available remedy for an incompetent suit is to be struck out. The jurisdiction of a Court depends upon the nature and value of the suit. The plaintiff's plaint did not show jurisdiction nor the value of the suit in which it renders this court to determine whether the court has jurisdiction to try and adjudicate this matter or not. In the case of Joha Ismail & Sada Ally vs Juma Kilongozi (Land Case 3 of 2021) [2022] TZHC 11669 (5 August 2022)(TANZLII), at pages 5-6, the High Court (Hon. Bahati, J.:) stated inter alia that:- The basis of the pecuniary jurisdiction of the court in land matters is based on the estimated value of the suit. The plaint does not disclose and state the estimated suit properties. I would have expected the plaintiffs to disclose the estimated value of the suit properties. This is the land case to assure the court has jurisdiction the 8 ] Pag e estimated value of the disputed properties shall be disclosed in the plaint. In the instant case, the plaint did not show the jurisdiction of the court and has no clause to show the value of suit. The Plaintiff does not dispute that there is no statement as to the jurisdiction of the court and also acknowledges that the first point of objection raised by the defendants that the plaint

does not expressly contain the requirements under Order VII, Rule 1 (f) and (i) of the Civil Procedure Code [Cap 33 R.E 2019]. The plaintiff therefore conceded to the errors committed. On basis of the applicable law in respect of statement showing value of suit, it is my settled opinion that the matter before this Court is incompetent for failure to disclose the value of the subject matter. I find the objection has merits thus the Plaint is unmaintainable before the Court. The second preliminary objection is based on the suit being bad in law for failure to serve 90 days' notice to sue to the second defendant and the Solicitor General pursuant to Section 6 (2) of the Government Proceedings Act, Cap 5 R.E 2019. Indeed, Section 6(2) of the Government Proceedings Act, Cap 5 R.E. 2019 is illustrative on the notice requirement. The said provision is couched on mandatory terms as follows: Alo suit against the Government shall be instituted, and heard unless the claimant previous!/ submits to the 9 | Page Government Ministries, Department, or officer concerned a notice of iess than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government and he shah send a copy of his claim to the Attorney General and the Solicitor General {Emphasis added). It is settled law that such notice is a mandatory requirement of the law. The parties are not

at qualms regarding the failure to serve a mandatory notice to the Government prior to the institution of the case against the Government. In the case of Gamba Nyakibai Matimu versus Mwenyekiti wa Serikali ya Mtaa wa Nyasaka and Others (Land Case 10 of 2022) (2023 TZHC 17051(4 May 2023) (TANZLII), at page 6, the High Court (Hon Dyansobera, J.:) Nonetheless, after the amendment any suit by or against such legal entities are treated like Government suits and the procedure for institution of such proceedings must conform to the provisions of the Government Proceedings Act regardless of the nature of the claim. Under the current procedure, before suing a public corporation, parastatal organization, executive agency or local government authority the plaintiff has to serve 10 | P a g e such legal entity with a 90 clays' notice of Intention to sue. The notice should articulate the factual basis of the claim and re/iefs sought. Further, a copy of the notice must be served upon the attorney Genera/ and So/icitor General. The plaintiff may institute the suit after the expiration of the notice period and a copy of the plaint shou/d be served on the defendant and the So/icitor Genera/. The service of notice of the intention to sue is of paramountcy importance in the administration of civil justice especially for suits against the Government. It is a duty of the Plaintiff to

indicate categorically in the Plaint that a notice was served to 2nd Defendant and copied were sent and served to the 3rd Defendant and the office of Solicitor General in compliance to the legal provisions. As I have noted that it is on record that Plaintiff admitted that the Plaint is was failed prematurely in the sense that there are some aspects that makes the same incompetent, it is pertinent that the same should be struck out from record of the court for being incompetent. In the upshot, both points of preliminary objection seem to have merits and have effect of making the Plaint incompetent before the court. The incompetence of the pleadings of this nature has an impact of resulting into striking of the defective pleadings from the records of the court thus the same should be removed from the records of the 11 IP a g e Court. It is on record that Plaintiff prayed for withdrawal of the case with leave to refile. However, I cannot agree with such prayer for the reasons that normally withdrawal would presuppose that the pleadings were competent before this court. I am settled that striking out will be an appropriate order as the parties if interested may at appropriate time revive the same upon addressing the anomalies. The preliminary objection has merits as the Plaintiff has preferred the institution of the case against the Defendants in violation of the mandatory provisions of the law. Both points of preliminary objection are upheld and I shall proceed to strike out the Land Case No. 4484 of 2024 for being incompetent. Each party shall bear its own costs. It is so ordered. DATED at DODOMA this 22nd day of July 2024. E.E. LONGOPA

JUDGE 22/07/2024. 12 | P a g e