Land Cse No

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

AT DAR ES SALAAM LAND CASE NO. 16038 OF 2024 ATHUMANI AHMED MAKSUDI (Administrator of the estate of the late MAIMUNA MTUMWA MAKSUDI)............................................ PLAINTIFF

VERSUS BAGAMOYO DISTRICT COUNCIL........................ 1ST DEFENDANT THE COMMISSIONER FOR LANDS...................... 2ND DEFENDANT THE REGISTRAR OF TITLES................................. 3RD DEFENDANT THE HONOURABLE ATTORNEY GENERAL........... 4TH DEFENDANT

RULING Date of last Order: 11/11/2024 Date of Ruling: 25/11/2024 LALTAIKA, J, This ruling is in respect of the Preliminary Objection (PO) raised by the Defendants against the Plaintiffs suit, challenging its competence on three grounds: 1. That the suit is untenable and bad in law as it contravenes Section 6(2) of the Government Proceedings Act [CAP 5 R.E 2019].

2. That the suit is bad in law for contra vening Section 102 of the Land Registration Act [CAP 334 R.E 2019].

3. That this Court lacks jurisdiction to grant the reliefs sought. Page 1 of 9 The PO was argued by way of written submissions. Ms Lilian Machage, learned State Attorney for the Defendants and Mr. Richard Kinawari, learned Advocate for the Plaintiff, respectively, drafted the documents for their respective parties. They deserve commendation for complying with the scheduled order. The next part of the Ruling is, in that order, a summary of submissions by both parties, my analysis of the law and the verdict. Ms. Machage contended that the suit was untenable and bad in law for contravening Section 6(2) of the Government Proceedings Act [CAP 5 R.E 2019], that it was similarly defective for contravening Section 102 of the Land Registration Act [CAP 334 R.E 2019], and that the Court lacked jurisdiction to grant the reliefs sought. On the first limb of the preliminary objection, Ms. Machage highlighted that the provision expressly mandates a 90-day notice of intention to sue the Government, specifying the basis of the claim and ensuring that the Attorney-General and relevant Government Minister, Department, or officer receive such notice. Quoting the provision, she noted that it explicitly states that no suit against the Government can be instituted or heard without fulfilling this prerequisite. Page 2 of 9 The learned State Attorney stressed the mandatory nature of this requirement,

as indicated by the word '’shall,'’ which Section 53(2) of the Interpretation of Laws Act [CAP 1 R.E 2019] defines as imposing an obligation that must be performed. Referring to the plaint, Ms. Machage pointed out that while the Plaintiff acknowledged in paragraph 21 that the 1st Defendant had been served with the 90-day notice, the 2nd and 3rd Defendants were not issued such notice. Consequently, Ms. Machage reasoned, the failure to comply with Section 6(2) rendered the suit defective. Citing Arusha Municipal Council v. Lyamuya Construction Company Ltd. [1998] TLR 13, the learned State Attorney reiterated that non-compliance with statutory notice requirements results in a suit being unmaintainable and warrants dismissal with costs. She further cited Emmanuel Titus Nzunda v. Arusha City Council and Others, Land Case No. 28 of 2020 (HC-Arusha), where the apex Court underscored that the notice must be duly served and evidenced before instituting a suit involving the Government. Additionally, she referred to Thomas Ngawaiya v. The Attorney General and 3 Others, Civil Case No. 177 of 2013 (HC-DSM), where the Court held that compliance with Section 6(2) is mandatory and non-negotiable. Page 3 of 9 On the second limb of the preliminary objection, Ms. Machage submitted that the suit was defective for contravening Section 102(l)(a) of the Land Registration Act [CAP 334 R.E 2019], which

requires a party aggrieved by the decision, act, or order of the Registrar of Titles to provide a 30-day notice of intention to appeal before filing the appeal. She cited Ms. Airport Properties Limited v. The Attorney General and The Registrar of Titles, Misc. Civil Case No. 38 of 2011 (HC-Unreported), where the Court emphasized the necessity of adhering to this statutory procedure. Additionally, she referred to George Benjamin Fernandes v. Registrar of Titles and Anna Kibibi Marealle, Civil Appeal No. 65 of 2018 (CAT at Dar es Salaam), where the Court acknowledged the procedural requirement of Section 102 for appeals against decisions of the Registrar. On the third limb of the preliminary objection, Ms. Machage argued that the Court lacked jurisdiction to grant the reliefs sought by the Plaintiff. She noted that the Plaintiffs prayers included compelling the 1st Defendant to restore or allocate plots of land and to cooperate in registering the Plaintiff as the legal representative of the late Maimun Mtumwa Maksud. These remedies, according to her, were more Page 4 of 9 appropriately sought through judicial review and not by way of a civil suit. Consequently, she prayed for the suit to be struck out with costs. Mr. Kinawari, Counsel for the Plaintiff, objected to the Preliminary Objection raised by the Defendants. Regarding the first point of the objection, he argued that

Counsel for the Defendants had misinterpreted paragraph 21 of the Plaint. He stated that the paragraph clarified that statutory notices were issued to all Defendants, with the 1st Defendant receiving a 90-day notice, evidenced by a signed dispatch book. Without prejudice to this clarification, Counsel asserted, one must consider not only individual paragraphs but also the entirety of the statement of facts and attached annexures. He supported this assertion with references to Allawi Rajabo Kassim v. Efatha Bank Limited under the Receivership of the Director Deposit Insurance Bond & 3 Others, Commercial Case No. 115 of 2019 (HC-Commercial Division, DSM, unreported), specifically the second paragraph on page 11 of the Ruling, and Investment House Limited v. Webb Technologies (T) Ltd & 2 Others, Commercial Case No. 97 of 2015 (unreported) at page 20. These cases, according to Mr. Kinawari, emphasize the necessity of reading the Plaint in conjunction with its annexures, such as "F" and "G" Page 5 of 9 attached to the instant Plaint. He concluded that the legal provisions and case law cited by the Defendants were distinguishable from the present case and prayed for the dismissal of this point of the objection with costs. Addressing the second point of the objection, Mr. Kinawari contended that neither the deceased nor his administrator had been issued with a certificate of title

that would warrant a decision, act, or order by the 3rd Defendant. He emphasized that under Section 101 of the Land Registration Act [CAP 334 R.E 2019], the Registrar must issue a written decision or order for Section 102 of the same Act to apply. In the absence of such a decision or order, Mr. Kinawari reasoned, the Plaintiff could not appeal to the High Court. Furthermore, he pointed out that the use of the word "may" in Section 102 conferred discretion, as clarified under Section 53(1) and (2) of the Interpretation of Laws Act [CAP 1 R.E 2019], where "may" allows discretion while "shall" imposes a mandatory obligation. Mr. Kinawari argued that the Plaintiff's claim was not based on an appealable order or decision and noted that the names of individuals allocated disputed plots, and the title number of the disputed property Page 6 of 9 were not disclosed, as evidenced by paragraph 2 of the Defendants'Joint Written Statement of Defense. Since the Plaintiff's claim was for restoration of farmland or allocation of promised plots, Counsel argued, the Preliminary Objection on this ground was misconceived. He prayed for this point to be dismissed with costs. On the third point of the objection, Mr. Kinawari argued that no administrative action or order had been issued against the Plaintiff that would necessitate judicial review. He pointed out that the Defendants had not attached

any such evidence in their Defense. Moreover, he contended that the third point was one of fact rather than law because Counsel for the Defendants failed to cite any provision of law allegedly contravened by the Plaintiff. Without a cited law to oust the jurisdiction of the Court in granting the Plaintiff's reliefs, Mr. Kinawari reasoned, this point of the objection lacked merit and prayed for its dismissal with costs. I have dispassionately considered the rival submissions. I will address each limb of the preliminary objection sequentially. Page 7 of 9 On non-compliance with Section 6(2) of the Government Proceedings Act (supra) Section 6(2) of the Government Proceedings Act requires a 90-day notice to be served on the concerned Government entity and the Attorney General before instituting a suit. The use of the word "shall" makes this requirement mandatory. While the Plaintiff asserts compliance by citing annexures "F" and "G," the Court finds that these documents were not adequately referenced in paragraph 21 of the Plaint. A dear and explidt averment of compliance is necessary to satisfy the statutory requirement. In fact, as this Court is fast moving towards e-justice, Counsel are advised to their respective plaints clearly "speak" the language of the court. Reference to an obscure annex not only requires searching for evidence but also its availability cannot be

guaranteed. On Contravention of Section 102 of the Land Registration Act Section 102(l)(a) of the Land Registration Act requires aggrieved parties to appeal within three months after issuing a 30-day notice to the Registrar. However, the provision applies only when a written decision, order, or act of the Registrar exists. Page 8 of 9 In this case, the Plaintiff has demonstrated that no such decision or order was issued. Thus, the Defendants' reliance on Section 102 is misplaced. The limb is overruled. On jurisdiction to grant the reliefs sought, the reliefs sought by the Plaintiff involve restoring land or allocating plots, which are primarily administrative in nature. Had the Plaintiff been issued with the said decision, Ms. Machage's argument would have won the day. I appreciate her efforts in expounding Administrative Law remedies. However, the learned State Attorney for the Defendants has not provided a specific provision of law ousting this Court’s jurisdiction. The objection, therefore, lacks merit. In the upshot, the first ground of objection is upheld. Consequently, the suit is struck out for non-compliance with Section 6(2) of the Government Proceedings Act. It is so ordered. E.I. LALTAIKA

JUDGE 25/11/2024 .. ./ COURT: Ruling delivered in Court Chambers this 25th day of November 2024 in the presence of Ms. Rose Kashamba, learned State Attorney for the Defendants and Mr. Richard Kinawari, learned Counsel for the Plaintiff. Page 9 of 9