Ruling DAWASA1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 8960 OF 2024 (Appeal from the Judgment and Decree of the Resident Magistrate Court of Dar es Salaam at Kisutu (Hon. A.A. Magutu, SRM) in Civil Case No. 107 of 2015 dated 6th March 2024) DAR ES SALLAM WATER AND SEWAGE CORPORATION --------------------------------------------APPELLANT VERSUS MOHAMED LIUNDI ------------------------------------------------RESPONDENT RULING 14th & 30th, Aug, 2024. KIREKIANO; J. The respondent sued the Appellant before the Court of Resident Magistrate of Dar es Salaam at Kisutu in Civil case No. 107 of 2015. Upon ex-parte hearing, the appellant lost the suit in the decision delivered on 27th March 2024. I find it prudent to note here that the life span of that case was prolonged with an order of retrial. The appellant has come to this court by way of appeal. When the respondent was served with a memorandum of appeal, Miss Leah Nixon Feruz, advocate for the respondent, raised two points of preliminary objection that: - 1. The memorandum of appeal filed before this Honourable Court is incurably defective for having 1 been drawn and signed by an officer of the Solicitor General who is not a party to the case. 2. The Memorandum of Appeal filed before this Honourable Court is incurably defective for not having been signed by the Appellant. When the preliminary objection was called for hearing, Mr. Edwin Joshua Webiro, Mr. Amos Masala, and Mr. Steven Kimaro, learned state attorneys, appeared for the appellant, while Miss Mariam Majamba and Mr. Amir Feruz appeared for the respondent. The hearing of the preliminary objection was done orally. Submitting in support of the first point of preliminary objection, Miss Majamba invited this Court to look at pg. 13 of the Memorandum of Appeal, where on the last page, shows that Mr. Edwin Joshua Webiro, State Attorney from the Office of Solicitor General, signed it. She submitted that the Attorney General was not involved in the trial and not a part of this appeal; thus, the Solicitor General can not act upon the same to prepare and sign the memorandum of appeal before this Court. She went on to submit that the person who signed it did not indicate authorisation to sign the memorandum of appeal. To support her stance, she referred this Court to Order VI Rule 14 of the CPC Every pleading shall be signed by the party and his advocate (if any); provided that, 2 where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same. She argued that the appellant is a corporate body thus they were the only signatory. On the second point of preliminary objection, she referred this Court to Order VI Rule 14, which stated that there was nowhere in the document the appellant signed. She submitted that various people may sign for the corporation as per Order VI Rule 14, She referred to the case of Registered Trustees of Masjid Haq Zaidi Khamsini Buguruni vs. Kambi Furahisha & 12 Others, Land Case No. 20 of 2008 at Pages 6 to 7 and the case of Hamza Omary Pandamilango and 4 Others vs Namera Group of Industries (T) Ltd (Land Case 42 of 2019) [2021] TZ HC Land 6746 (4 June 2021) at page 6-7 on who may sign pleadings. She added that a plaint contains the information constituting the case and the verification clause. She argued that the plaintiff must sign both parts, whose failure renders the plaint fatally defective. It was her view that the absence of the signature of the party renders the document incurably defective. Therefore, she prayed the appeal to be struck out with costs. 3 In their reply, Mr. Webiro, the learned State Attorney, stated that the two points raised are misconceived and the cited provision does not apply. He submitted that, the appeal before this Court is governed by Order XXXIX Rule 1 (1) of the Civil Procedure Code Cap 33, which states that the Memorandum of Appeal must be signed by the appellant or his advocate. He submitted that the word “or” implies an alternative to the words used; there is no harm for an advocate to sign the same. He added that the document's signatory is the state Attorney from the Office of the Solicitor General pursuant to GN 50/2018, which makes clear that the office of the Solicitor General may conduct all government claims representing the Attorney General. Mr Webiro submitted that all government institutions or cooperations are represented by the solicitor general, who can also sign the memorandum of appeal on behalf of the appellant, which is the case at hand. It was his view that Order VI was quoted out of context. He argued that this Court should apply literal interpretation and not purposive interpretation. To support this, he referred this Court to the case of Republic vs Mwesige Geofrey Tito Bushahu Cr Appeal no 355/2014, at the last paragraph of page 13, and Ajirath Said and Another vs Sephene Antony (Land Case Appeal 57 of 2021) 4 [2021] TZHC 5951 (31 August 2021), at pa 5 to buttress his point that the appellant or his advocate may sign that memorandum of appeal. It was his submission that, per Order XXXIX Rule 1(1) of the CPC, the second point of preliminary objection lacks merit. He prayed that the objection be overruled with costs. In rejoinder submission, Miss Majamba argued that the attorney general could intervene in suits involving government institutions, but not without an order joining the Attorney General; the solicitor general cannot just appear to take up the matter through the state Attorney. She added that Advocates and the Solicitor’s General legal team do not fall under the same procedure when representing parties in the case; that is to say, representation by the Solicitor General is by procedure. She reiterated her submission in chief that there is no record showing that the Solicitor General was representing the appellant; thus, the Solicitor General could not just appear to become an advocate for other party. Having heard the submissions from both parties, the issue for determination is whether the preliminary point of objection raised has merits. 5 Regarding the first point of preliminary objection, that the memorandum of appeal is drawn and signed by an officer of the Solicitor General who is not a party to the case, Miss Majamba argued that since the Attorney General (AG) was not a party, they could not sign the memorandum of appeal before this Court. It is clear that the attorney General was not a part in the proceedings before the trial court. To resolve this, it is worth revisiting the law governing the representation of the Attorney General. Order 4(1) (h) of the Office of the Solicitor General (establishment Order) GN. NO. 50 of 2018, Section 17(1)(a) of The Office of Attorney General Discharge of Duties Act, Cap 268, together with Section 6A of the Government Proceedings Act, provides for the right of the Attorney General through the Solicitor General to have the right of audience and to intervene in any proceedings before the Courts of Law at any stage. Order 4 (1) (h) (2) (3) of G.N. No. 50 of 2018 provides: (1) The functions of the office of the Solicitor General shall be to; (h) intervene and take over at any stage civil proceedings, appeal, execution or any incidental proceedings before any court of law or arbitral tribunal in 6 which the central Government, independent departments, agencies or local government authorities have an interest; (2) For the purpose of paragraph (1), all matters instituted, filed, taken and conducted in courts of law or arbitral tribunal by the Solicitor-General, Deputy Solicitor-General, Law Officers, State Attorneys or legal officers shall be in the name of the Attorney General. (3) all claims against the central Government, independent departments, executive agencies and local government authorities to which the Attorney General is a party, shall be taken and conducted in that behalf by the Solicitor General." Section 17 of CAP 268 provides that: - "17- (1) Notwithstanding the provisions of any written Law to the contrary, the Attorney General shall through the Solicitor- General have the right of audience in proceedings of any suit, appeal or petition in court or inquiry on administrative body which the Attorney General considers- (a) to be public interest or involves public property; or (b) to involve the legislative the judiciary or an independent department or agency of the Government (2) In the exercise of the powers vested on the Attorney General with regards to the provisions of sub-section (1), Solicitor General shall- 7 (a) notify any court, tribunal or any other administrative body of the intention to be joined to the suit, inquiry or administrative proceedings; and (b) satisfy the court, tribunal or any other administrative body of the public interest or public property involved, and comply with the directions of the court, tribunal or any such other administrative body on the nature of pleadings or measures to be taken for purposes of giving effect to the effective discharge of the duties of the office of the Attorney General. (3) Where a suit, inquiry or any other proceeding is pending before the court, tribunal or any other administrative body to which the Solicitor-General does not have a right of audience, it shall be sufficient for the Solicitor-General to file a certificate of the intention of the Attorney General to be joined and the court, tribunal or any such administrative body shall immediately forward the record of proceedings to the nearest court, tribunal or administrative body for purposes of enabling the Solicitor-General to appear." Section 6A of the Government Proceedings Act provides that: - 6A (1) The Attorney General shall, through the Solicitor General have the right to intervene in any suit or matter 8 instituted by or against the Ministries, Local government authorities, independent departments, and other government institutions. (2) Where the Attorney General intervenes in any matter in pursuance of sub-Section (1), the provisions of this Act, shall apply in relation to the proceedings of that suit or against the ministries, local government authorities, independent departments and other government institutions. Provided that the requirement of ninety days’ notice of intention to sue the government as stipulated under this Act shall not apply where the Attorney General intervenes under this Section. What can be gathered from the above extracts of the law is that; One, the Attorney general has the right to audience in all matters involving the government; two, the Attorney general can intervene and take up matters in which he was not a part in the original proceedings three the attorney general will have to notify the court or tribunal and will be represented by the solicitor general, Deputy Solicitor-General, Law Officers, State Attorneys or legal officers. In this appeal, there is no dispute that the attorney general was not a party in the proceedings before the trial court. This is according to the proceedings and judgment. It follows that the attorney general could, 9 under Section 17 (1) (2) (b) and (3) and Order 4 (1) (h), intervene and take up the proceedings by institution of appeal. However, intervention should be formal and communicated. This is to say one cannot rely on Section 17 (1) without complying with the requirements of Section 17 (2) (b) and (3) and Order 4(2) cited above. The court of appeal in CRDB BANK PLC vs SYMBION POWER (T) LIMITED, Civil Application No. 496/16 of 2022, CAT at Dar es Salaam, was faced with an akin situation on intervention by the attorney general in the proceedings which he was not a party. In that appeal, the court of appeal considered the compliance of section 17 (2) (a) on duty to notify the court and found that the letter communicated to the Registrar on the intent to intervene was not detailed enough. The court went on to hold at pg 17 that; “It is thus important that before the Attorney General through the Solicitor-General intervenes in or takes over the conduct of the proceedings as counsel or intervener as contemplated under section 6A (1) of the GPA, he should follow the procedure laid down by law, including to demonstrate that the respective Authority or institutions mentioned under section 6A (3) of the same Act and section 17 (1) (b) of Cap. 268 had exercised its duty stated in the former provisions to notify the Attorney General of any 10 impending suit or intention to institute the suit or matter against the Authority or institution”. In this appeal, nothing on record indicates that the Attorney General intervened in the matter by institution of the appeal. It follows that the complaint by Miss Majamba is valid. The attorney general, through Mr Webiro, a learned state attorney, could not take up the matter, draw the documents, and institute the appeal without following the procedure stated above, particularly notifying the trial court or this court. This shortcoming goes to the root of the competence of this appeal. As a result, the first point of the preliminary objection has merit, and it is sustained. The second point of objection was on the signing of the purported memorandum of appeal. Given what I have deliberated on the first point, I shall end here and refrain from indulging on this point. Ultimately, the memorandum of appeal is incompetent, and it is struck out with costs. A. J. KIREKIANO. JUDGE 11 30.08.2024 COURT: Ruling, delivered in the chamber in the presence of Mr Amos Enock, State Attorney for the appellant and in the presence of the respondent. A. J. KIREKIANO. JUDGE 30.08.2024 12