CHANGWE CHARLES RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) LAND CASE No. 457961 OF 2022 1. CHANGWE CHARLES KIBHIBHI [As an administrator of the estates of the\ late Maburi Saidi Kitanda] I 2. LISSO NYABAMBA V..................... PLAINTIFFS 3. JUMAPILI MABHOJANO I 4. SABA MABHOJANO I 5. MASATU RUTOTYO J Versus 1. MUSOMA URBAN WATER SUPPLY^ AND SANITATION AUTHORITY S......................... DEFENDANTS 2. THE ATTORNEY GENERAL / RULING 25.07.2024 & 06.08.2024 Mtulya, J.: On 17th October 2022, Mr. Changwe Charles Kibhibhi, as an administrator of the estates of the late Mr. Maburi Saidi Kitanda, and four (4) other persons resident of Musoma Municipality in Mara Region (the plaintiffs), had sued government institution called Musoma Urban Water Supply and Sanitation Authority (the first defendant) for declaration of ownership of lands or compensation amounting to Tanzanian Shillings Three Hundred Million (300,000,000/=) for putting water pipes in their lands located at Mgaranjabo Street in Buhare Ward within the Municipality of Musoma in Mara region. i In order to comply with section 6 (2) of the Government Proceedings Act [Cap. 5 R.E. 2019] (the Act), the plaintiffs had joined and served the Attorney General, as a necessary party in the dispute, a ninety days' notice of intention to sue the first defendant. However, on 12th July 2024, the defendants had registered a point of law complaining that: the suit is bad in law and incompetent for contravening the mandatory provision of section 6 (2) Government Proceedings Act [Cap. 5 R.E. 2019] thus this Honorable court lacks jurisdiction to entertain it The defendants were summoned in this court on 30th July 2024 to explain the point of law, and Mr. Anesius Stewart, learned State Attorney had appeared for them. When Mr. Stewart was prompted to explain his complaint, he submitted that section 6 (2) of the Act requires any person who intend to sue the Government or government institutions to prepare and serve a ninety (90) days' notice to the government institution and copy the same notice to the Attorney General and Solicitor General. According to Mr. Stewart, the record of the instant case shows that the plaintiffs have prepared the notice, directed and served to the first defendant and the Solicitor General without forwarding the same to the Attorney General. In the opinion of Mr. Stewart, the law in section 6 (2) of the Act was framed in 2 mandatory terms with condition and in between the Solicitor General and Attorney General to signify that both must be served. In ending his submission in chief, Mr. Stewart stated that there is a breach of the law in the present case which renders the case incompetent and the court cannot proceed with it as it has no jurisdiction to entertain and resolve to the finality. Regarding the available remedies, Mr. Stewart submitted that the case is require to be struck out as it was brought prematurely in the court. In replying the protest, the plaintiffs contended that the office of the Attorney General was established under article 59 of the Constitution of the United Republic of Tanzania, 1977 (the Constitution) and its duties were enacted under the Office of Attorney General (Discharge of Duties) Act [Cap. 268 R.E. 2019] (the Office of the Attorney General Act), which its section 10 provides for the office of Solicitor General to report to the Attorney General. In brief, the plaintiffs submitted that the duties of the dual offices are similar and the same hence they cannot be distinguished in terms of service of the ninety (90) days' notice. In the opinion of the plaintiffs, the two (2) offices cannot be separated by enactment of section 6 (2) of the Act and if they are separated, then the enactment of section 6 (2) of the Act was 3 wrongly enacted and this court must subject it to the Constitution. According to them, the functions of the dual offices are further explained in Government Notice No. 48 of 2018, which was issued for purposes of running the activities of the Attorney General and Solicitor General, which are distinguished from criminal and civil matters. In rejoining his submission, Mr. Stewart insisted that the case was brought prematurely in this court and cannot stand to be entertained. On the claim that the two (2) offices are similar and the same thing, Mr. Stewart submitted that the dual offices are distinct and that section 6 (2) of the Act is very plain and clear, that the notice is to be served to all two (2) offices. According to Mr. Stewart the enactment of the indicated section cannot be disputed in a wrong forum of this court and if the plaintiffs so wish to dispute the constitutionality of the enactment, they have to search for an appropriate forum reserved for resolving constitutionality issues. To him, this court has to interpret the law as it is as there is no any ambiguities. The parties in the present dispute are in agreement that the plaintiffs have sued government institution, the first defendant, without serving the ninety days' notice to the Attorney General. However, they are in disagreement on whether the failure to serve 4 the Attorney General is a breach of section 6 (2) of the Act and if it is a breach, can it be cured by section 10 of the Office of the Attorney General Act. For purpose of the clarity of the matter, I will quote both provisions in this Ruling. Section 6 (2) of the Act reads: 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. According to Mr. Stewart, the word and^X. the very end of the section is mandatory and requires both the Attorney General and Solicitor General to be served, whereas the plaintiffs think that it is one and the same office and cite section 10 the Office of the Attorney General Act. The cited section 10 in its first sub section reads that: Without prejudice to the generality of Article 59B of the Constitution, the Office of the Attorney General shall advise and maintain a link with the National Prosecutions Service, the Office of the Solicitor- General and the Administrator-General for better carrying out of their respective duties. 5 This enactment shows that the office of the Attorney General is required to work in cooperation with the other three (3) offices related to legal issues, namely: the National Prosecutions Service, the Office of the Solicitor General and the Administrator General. The purpose of the linkages is explained at the very end of the enactment that: for better carrying out of their respective duties. The indicated section as a whole is silent on whether the offices of Attorney General and Solicitor General is one and the same thing. It is also mute on service of notice enacted in section 6 (2) of the Act. The plaintiffs have inclined to support section 10 of the Attorney General Act, without any further practice of this court or Court of Appeal. Similarly, Mr. Stewart has also declined citation of precedents available either in this court or Court of Appeal. However, upon reading precedents of this court, I found three (3) decisions related to the interpretation of section 6 (2) of the Act (see: Ester Yasin v. Tarime Town Council & Another, Civil Case No. 8 of 2022; Bwire Nyamwero & Another v. National Microfinance Bank PLC & Five Others, Land Case No. 21 of 2022; and Evetha Mosha v. Arusha City Council &Two Others, Civil Case No. 14 of 2021). Having the cited precedents, this court sees no reason to depart from its own previous decisions. It is so, not only for the sake of 6 certainty and predictability of decisions emanated from this court, but also for confidence building to the parties and justice stakeholders. In the end, I struck out the application for want of applicability of section 6 (2) of the Act. I do so without costs. The reason is obvious that the record shows that the plaintiff were prosecuting their rights in good faith. Ordered accordingly. Judge ■"06.08.2024 This Ru I ing^/aMdeli-yered in Chambers under the Seal of this court in the presence of the first plaintiff, Mr. Changwe Charles Kibhibhi and in the presence of the defendants learned State Attorney, Mr. Anesius Stewart. fr/b n F.H. Mtul Judge 06.08.2024 7