D4N Ltd v Kakonko DC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL CASE NO. 000005554 OF 2024 D4N COMPANY LIMITED .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KAKONKO DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 13 & 13/03/2025 The plaintiff is suing the defendants for breach of contract which is even not attached to the plaint which, I am afraid may, contravenes the decision of the Court of Appeal in Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 where it was stated that: “The claim of the appellant was based on breach of the said agreement. It would follow, therefore, that, exhibit P1 constituted the cause of action between the appellant and the respondent in respect thereof. Hence the exhibit should have been expressly pleaded in the plaint and its copy attached thereto so as to afford the defendant opportunity to rebut by way of written statement of defence and preparing himself for the actual trial.” The above, having not being relevant in this preliminary objection, I proceed to indicate the reliefs the plaintiff is seeking: 1. Payment of an outstanding debt of T.shs 33,753,611/=. 2. Payment of general damages at a tune of T.shs 100,000,000/= for breach of contract. 3. Interest at Court rate of 12% per annum from the date the cause of action arose to the date of judgment in (1). 4. Interest at commercial rate of 21% of item 2 above from the date of judgment to the date of payment. 5. Any further orders and reliefs as the Court may deem fit and just to grant. 6. Costs of this suit be borne by the 1st defendant. The defendants, along with their written statement of defence, have a preliminary objection which has one wheel to the effect that: Page. 1 This suit is incompetent for failure to serve a copy of 90 days’ statutory notice of intention to sue the Government to the 2nd Defendant and to the Solicitor General contrary to Section 6(1) & (2) of the Government Proceedings Act Cap. 5 R.E. 2019. At the hearing of the preliminary objection, the plaintiff was represented by Mr. Bakari Chubwa, learned advocate. The defendants were represented by Mr. Frank Makigijo, Ms. Beatrice Manyori and Ms. Winfrida Kombe, all learned State Attorneys. I am indebted for the submissions of the counsel for both parties. In submission in chief, Mr. Makigijo maintained that the suit is incompetent for failure to serve a copy of the Notice of intention to sue the government. He pointed out that the plaintiff has infringed Section 6 (1) and (2) of the Government Proceedings Act, Cap. 5 R.E. 2019. He exemplified Emmanuel Titus Nzunda v. Arusha City Council & 4 Others, Land Case No. 28 of 2020 HC, Arusha. Mr. Makigijo too parroted Salim O. Kabora v. Kinondoni Municipal Council & 3 Others, Land Case No. 10 of 2020, HC. He urged me the suit be held to be struck out with costs. Mr. Chubwa ardently resisted the preliminary objection because in his view, it hinges on evidence. He pressed that they attached postal receipt and pleaded it at paragraph 10 of the plaint. He went on to say that there is a document which indicates that the Attorney General and Solicitor general received the service by one payment (receipt) but two different envelopes, one for each. Mr. Chubwa added that there is no need of any affidavit from the Postal Office to prove that indeed, what is represented in the receipt is service of notice to the Attorney General and the Solicitor General. He railed down that the preliminary objection does suffice to be a preliminary objection. Mr. Chubwa concluded by saying that the preliminary objection requires evidence to be determined. He prayed the preliminary objection be overruled and suit proceeds on merit. In a short rejoinder submission Mr. Makigijo resisted the reply submission of the counsel for the plaintiff because the preliminary objection is in accordance with the law, as perMukisa Biscuits Manufacturing Company Ltd v. West End Distributors Ltd [1969] E.A. 696. I have closely examined the submissions of both parties. I have also carefully perused pleadings that are in the Court file especially the plaint on the above said preliminary objection about premature filing the suit for failure to serve the Attorney General (the 2nd Defendant) with a copy of statutory notice. In my view, truly, there is nothing in the attachment, I can presume, as authoritatively stated inCOTWO (T) OTTU Union and Another v. Honourable Iddi Simba Minister of Industries and Trade & Another [2002] T.L.R. 88, that the necessary copy of the 90 days’ notice of intention to sue the government was served to the Attorney General. Thus, I agree with the submissions of Mr. Makigijo that the suit was prematurely instituted as I have indicated above. Presuming from a blank photocopy of a document which does not indicate the addressee of the postal package is irresponsible because, what if the document so photocopied document is irrelevant because mistakes do happen. The submission by the counsel for the plaintiff is thus, rebuffed. I also reject the proposition by Mr. Chubwa that the preliminary objection be overruled and suit proceeds on merit. In the premises, I rule that the suit is incompetent. All things considered; I sustain the preliminary objection. Civil Case No. 5554 of 2024 is struck out off this Court’s register with costs to the defendants. Page. 2 It is so ordered. Dated at KIGOMA this 13th of March 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 3