ScannedLAND CASE NO 1525 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.1525 OF 2024 ATHUMAN SALUM HASSAN (Administrator of the Estate of the late ASHA MASUDI LIKOLOVELE).................1st PLAINTIFF VERSUS INNOCENT LEONARD MALLYA.................................................. 1stDEFENDANT KINONDONI MUNICIPAL COUNCIL......................................... 2ndDEFENDANT THE ATTORNEY GENERAL........................................................ 3rdDEFENDANT RULING Date of Last Order: 21.10.2024 Date of Ruting: 28.10.2024 T.N. MWENEGOHA, J This Ruling is in respect of a Preliminary Objection on point of law, raised by the counsel for the 2nd and 3rd defendants that, the suit is premature and untenable in law for being filed without issuance of the 90 days' notice of intention to sue the Government, contrary section 6(2) of the Government Proceedings Act, Cap 5 R.E 2019. Arguing in favour of the Objection, learned State Attorney for the 2nd and 3rd defendant insisted that, according to paragraph 16 of the plaint, the notice that was served to the government as per annexure ASH-6 is in respect of Plot No. KND/MBS/KWN30/76 and Plot No. KND/MBS/KWN30/76, Mwananyamala Kisiwani Area, Kinondoni Dar es i Salaam, occupied by the 1st defendant. The amended plaint filed in this case, is in respect of a different property which has been described as Plot No. KND/MBS/KWN30/96, Mwananyamala Kisiwani Area, Kinondoni Dar es Salaam, as seen under paragraphs 5, 8 and 15. That this is a new property and the government was not notified on the case involving this property. That, the essence of issuing notice before suing the government has been insisted in Joshua Athar Mhagama & Others versus TANESCO & Others, Land Case No. 42 of 2022, High Court Land Division at Dar es Salaam (unreported). Having heard the submissions of the counsel for the 2nd and 3rd defendant, the issue for determination is whether, the Objection has merits or not. Order VI Rule 17 of the Civil Procedure Code provides to the effect that the Court may, at any stage of proceedings allow either party to amend or alter the pleading in such manner and such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties. Therefore, the plaintiff in this case had a right to pray for and be granted amendment accordingly. He did so and that's when the problem started. As in his amended plaint, he has brought in a new case. This Court has visited the amended plaint on paragraphs 5, 8 and 15, the subject matter has been described differently from the original plaint. That is to say, the amended plaint has been preferred on a new property. Indeed, the amendment Order only limited the matter to what is necessary for the determination of the suit. Hence bringing in new claims and different properties is tantamount to bringing in a new case. 2 Therefore, the 2nd and 3rd defendants have to be issued with a new notice before instituting the case. Hence, the Objection has merits. Refer to Joshua Athar Mhagama & Others versus TANESCO & Others, (supra) In the end, I allow the Objection and the suit is struck out with costs. ra-,: MWENEGOHA, WO/ JUDGE, 28/10/2024 3