20140919 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL CASE NO. 12 pF 2014 ENDASAGU COMPANY LIMITED ......... ~ ..................... J. .• PLAINTIFF , . I VERSUS THE ATTORNEY GENERAL .................. ~····················· . DEFENDANT RULING, MUGASHA, J. ' I The plaintiff sues the defendant for immediate I payment of Tshs. 499,305,431/= being compensation for 50.675 acres, 23 trees, value ' of destroyed contours, land terraced by road, costs of producing a new map of the farm, other incidental costs usep or intertupted ,by TANROADS in construction of the road namely Minjingu ..... Babati - Singida and interest. In her Written Statement of Defence, the defendant rai~ed Preliminary Points of Objection on the following:- ( a) That; the suit is time barred. (b) That; the suit is barred in law for non joinder of a necessary party. (c) That; the suit is bad in law for want of prJper notice to I sue the Government. The hearing of the Preliminary Points of Objection w~s by written submissions. The defendant was represented by Janet Sekul~ learned State I Attorney while the plaintiff had services of M/S John J. Uundu and Co. I 1 _t Advocates. The learned State Attorney abandoned the 2nd Preliminary Point of Objection thus remaining with the two (2) points. Parties complied with the Court Order though the learned State Attorney for the defendant did not prefer a Rejoinder for reasons undisclosed to this Court. Addressing the 1st Point of Preliminary Objection, the defendant's counsel submitted that; on 30th day of October, 2008, TANROADS through her Regional Office in Manyara, paid to the plaintiff compensation in respect of his farm along Minjingu - Babati - Singida road. Dissatisfied, the plaintiff lodged a complaint and on 5th day of January, 2012, he was in addition compensated Tshs. 14,962,500/=. Besides; the plaintiff lodged the present suit on 2nd day of April, 2014 which is more than two (2) years which is in contravention of paragraph 1, part I to the 1st schedule of the Law of Limitation Act, [CAP. 89 R.E, 2002] which require compensation to be made within a year. She urged the suit to be dismissed in terms of section 3(1) of the Law of Limitation Act (supra). She cited the case of HEZRON M. NYACHIYA vs. TANZANIA UNION OF INDUSTRIAL AND COMMERCIAL WORKERS & ANOTHER, Civil Appeal No. 79 of 2001 (Dar es Salaam Registry)(Unreported) where the Court of Appeal of Tanzania underscored that, time barred suit should be dismissed. Regarding the 3rd point of Preliminary Objection, the learned State Attorney submitted that; since the plaintiff's ninety (90) days Notice to sue was addressed to the Ministry of Works and Infrastructure which is none existent in terms of G.N. No. 494 of 2010 as the existing is, the Ministry of 2 Works, the alleged notice was not as such served to the appropriate Ministry, the reason why the Ministry of Works did not reply. In response; the plaintiff's counsel submitted for the 1st Preliminary Point of Objection that, paragraph 1 of Part I to the 1st schedule of the Law of Limitation Act (supra) does cover the matter at hand because the same refers to a person who has done or omitted to do something unlike the present suit which refers to compensation for a property taken. He argued that, the suit at hand is covered under paragraph 1 item 24 of part I to the 1st schedule of the Law of Limitation Act (supra) which is for suits not otherwise provided for, that is, the time limitation of six (6) years. Regarding the 3rd Point of Preliminary Objection, the plaintiff's counsel submitted that; the Notice of Intention to sue in terms of section 6(2) of the Government Proceedings Act, [CAP. s R.E, 20021 was properly addressed to the responsible Ministry for the wrong done. He thus urged this Court to dismiss the Preliminary Points with costs. Starting with the 3rd Point of Preliminary Objection; as rightly submitted by the learned State Attorney, the plaintiff has instituted the suit implicating a nonexistent Ministry. Even though the Ministry of Works and Infrastructure sometimes existed, that cannot be an excuse and extend to cover this matter. That is the essence and spirit of proper parties to suit. If at all one is at liberty to forge a name of his choice, that tantamount into harnessing the legal profession into a demon who knows no where he is heading to. 3 • Besides; even if one believes that an intended plaintiff is at liberty to forge a name of his choice, then; what was the essence of G.N. No. 494 of 2010 which laboured to stipulate the name of the Ministry responsible for roads? Moreover; there is a possibility to have a Ministry for Works and another for Works and Infrastructure. Under the circumstance; which will be the responsible Ministry if at all the plaintiff is left at liberty to choose a name of his choice. What then, if the plaintiff sues both of the two and is in fact, paid? Should the Government not be involved into unnecessary costs? There is another aspect that I wish to address in respect of the issue of who ought to be parties to the present suit. Even if one acknowledges that the plaintiff issued the said Notice of intention to sue to the proper Ministry, then; was it proper for the Attorney General to be sued alone? This Court views such action as total misconception because section 6(2) of the Government Proceedings Act (supra) provides:- "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'~ Going through section 6(2) of the Government Proceedings Act (supra), the subsection gives a purposive interpretation that, the person to be sue (be it the Government Minister, Department or Officer) has to be issued with Notice of the intention to be sued and a copy thereof be availed to the 4 I to the Attorney General. That also connotes ,that, the proper party to be su~d is the very Government Ministry, Department and or Ofticer with the I . Att:orney General be impleaded just as a necessary party. ' In that regard; it is wrong for the plaintiff to solely impleadr a necessary party to a suit (who did not as such injure the plaintiff) leavi11g the proper party to the suit (who might have injured the plaintiff) at large. In the ! premises; although the learned State Attorney raised but lat~r abandoned the Preliminary Point of Objection, the present suit suffers non joinder of a II proper party to a suit. Consequently; that renders the suit badI in law. I I In the circumstances; since the proper party to the suit! is not been impleaded as a party to the suit, addressing the issue of time limitation serves no useful purpose. In case the proper party is impleaqed, the same issue will obvious crop up . In that regard; the suit is struck o~t with costs. I It is so ordered. 1 S.E. MUGAS JUDGE 19/09/2014. Ruling delivered in chambers this 19th day of September, 2014 in presence I of Mr. Lundu learned counsel for the Plaintiff and in presenae of Ms. Swai ! learned counsel for the defendant S.E. MUGASHA JUDGE 19/09/2014 5