CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CIVIL CASE NO. 7931 OF 2024 ________ EVELYNE FESTO ANDREW ……………………………………...PLAINTIFF

VERSUS ATTORNEY GENERAL……………………………...……… 1st DEFENDANT UBUNGO MUNICIPAL COUNCIL……………………...…2nd DEFENDANT OFFICER IN CHARGE OF SINZA HOSPITAL…………..3rd DEFENDANT ENESTINA CHAULA JEREMIA………………………….…4th DEFENDANT

RULING Date of last order: 10th September 2024 Date of Ruling: 9th October 2024 MTEMBWA, J.: The Plaintiff has preferred a suit against the Defendants jointly and severally for the tort of professional negligence and assault or trespass to the person committed by the 4th Defendant in the course of her employment as a nursing officer cum midwifery under the watch of the 3rd Defendant. She prayed for an order of payment of 1 Tanzanian Shillings 200,000,000/= as general damages; an order of dismissal of the 3rd and 4th defendants from their employment for the safety of other patients; revocation of the certificate of practice of the 4th Defendant as a nurse or midwife; interest on the decretal amount at the rate of 7% per annum from the date of judgment to the date of full satisfaction of the decree; and costs of and incidental to the suit. According to the Amended Plaint, on 14th April 2021, the Plaintiff was admitted at Sinza Hospital for maternal health services as she was in an advanced stage of pregnancy, expecting delivery of her child at any time. Upon arrival at the Hospital, Plaintiff was received by the 4th and 3rd Defendants, who were on duty by then. Having been admitted, the 4th Defendant, under the watch of the 3rd Defendant, neglected and refused to attend to and offer any medical service to the Plaintiff even after several requests for help. The refusal was

predicated on the failure of the Plaintiff to pay for medical services. The Plaintiff assured the 4th Defendant that she would be paid upon the arrival of the plaintiff‘s husband. However, the 4th Defendant, under the watch of the 3rd Defendant refused to offer any 2 medical service to the Plaintiff until when the Plaintiff’s husband arrived and paid for the service. The facts reveal further that, as a result of the said delay, the fetus (unborn baby) was affected and thus developed health complications in terms of breathing, upon which the Plaintiff was immediately referred to Muhimbili National Hospital for treatment of her newborn baby. That the said baby passed away on 16th April 2021 because of complications caused by maternal prolonged labour. After the death of the baby, the dead body was released to the Plaintiff and her representatives for burial activities. Previously, the 4th Defendant assaulted the Plaintiff by slapping her thus causing bodily harm and psychological torture. After giving birth, the Plaintiff was instructed to go to the washroom to clean herself and on her way back to the labour ward, she felt dizzy and fell down. The dizziness made her unable to move, and thus, she had to lie down along the corridor, where she requested for help. The 4th Defendant undressed her and administered an injection in public. After the incident, the 4th Defendant was

summoned by the Tanzania 3 Nursing and Midwifery Council (TNMC) for a disciplinary hearing. She was later found liable for professional misconduct and was suspended from duty for three months as punishment. However, Plaintiff admitted that the suit had been filed out of time, as the incident happened on 14th April 2021. Upon being served with the Amended Plaint, the 1st, 2nd and 3rd Defendants, under the service of the learned state attorney, raised a preliminary objection to the effect that the suit is incompetent for contravening the provisions of Section 31 (1) of the Nursing and Midwifery Act 2010 (herein the ‘Act’). When this matter came for orders on 10th September 2024, the Plaintiff was represented by Mr. Peter Majanjala, the learned counsel, while Ms. Caroline Lymo, the learned state attorney, represented the 1st, 2nd and 3rd Defendants. Ms. Christer Cornelius, the learned counsel, represented the 4th Defendant. When prompted, parties agreed to argue the preliminary objection by way of written submissions. Having passed through the records, I am satisfied that parties adhered to the agreed schedule. 4 Launching up the missiles, Ms. Lymo, having prefaced on what a preliminary objection entails in view of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd. [1969] 1EA 696, submitted that section 31(1) of the Nursing and Midwifery Act, 2010 provides that

any person who is aggrieved by the decision of the Council may, within three months from the date of notification of the decision, appeal to the Minister. She referred this Court to items (e) and (f), where the Plaintiff prays for the dismissal of the 3rd and 4th Defendants from their employment for the safety of other patients and revocation of the certificate of practice of the 4 th Defendant in nursing and midwifery. The learned state attorney referred this Court to the council's decision, in which the 4th Defendant was suspended from practice for three months for professional misconduct. She added further that section 31 (1) of the Act provides that any person aggrieved by the council's decision is required to present his grievances to the Minister. In such circumstances, the prayer under clauses (ii) and (iii) relating to the revocation of the certificate of practice of the 4th Defendant in 5 Nursing and Midwifery cannot be entertained by this Court. It was added that this Court has no jurisdiction to grant the requested remedies. To fortify, she cited the case of Commissioner General TRA vs. the Attorney General of the United Republic of Tanzania & Another, Civil Appeal No. 62 of 2022, Court of Appeal of Tanzania at Dar es Salaam, where the Court stated that jurisdiction is a creature of statute and not the likes and dislikes of the parties or mere compelling

situations. Based on the foregoing arguments and cited authorities, the learned state attorney implored this Court to strike out the suit with costs. In response, Mr. Majanjara considered the objection worthless and implored this Court to dismiss it with costs. In line with Mukisa Biscuit’s Case, he observed that an objection should be based on law and the Court should not be called upon to look for evidence. Considering the import of Section 31(1) of the Nurses and Midwifery Act No. 1 of 2010, the learned counsel argued that this Court has jurisdiction to entertain the prayers sought in the Plaint. He 6 considered the argument by the learned state attorney a gross misconception of the law. He added that this Court can grant or refuse to grant prayers after the matter has been determined on merits. Parties cannot pre-empt what the Court can award by raising a preliminary objection. He cited the Indian case of Bachhaj Nahar vs Nilima Mandal & Anr, Civil Appeal Nos. 5798-5799 of 2008, Supreme Court of India. It was the submissions by Mr. Majanjara that, having heard the parties on merit, the Court can conclude whether to grant or refuse a prayer in the prayer clause. He considered the objection to be not a pure point of law because it requires scrutiny of the evidence. He was fortified by the decision of Ibrahim Abdallah (the Administrator of the Estate of the Late Hamisi

Mwalimu) vs. Selemani Hamisi (The Administrator of the Estate of the late Hamisi Abdallah), Civil Appeal No. 314 of 2020, Court of Appeal of Tanzania at Arusha. Mr. Majanjara argued in the alternative that if the court finds that the preliminary objection is worth determining, it is called upon to 7 ascertain whether it has jurisdiction in terms of the cited section 31(1) of the Nursing and Midwifery Act No. 1 of 2010. He cited the case of Adcon Electronics Pvt. Ltd vs. Dr. P. Kalyana Chakravarthy, Original Side Appeals Nos. 104, 110, 111, 122 & 123 of 2017 and CMP Nos. 7343, 7344, 7517 & 8147/2017, the High Court of India (High Court of Judicature at Madras) where it was observed that the nature of the suit and its purpose have to be determined by reading the plaint as a whole. The inclusion or absence of a prayer is not decisive of the nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint on which the reliefs asked in the prayers are based. The learned counsel also referred this Court to prayer (e) and (f) of the prayer clause and noted that the Court has jurisdiction to handle the matter. He was fortified by the argument that the jurisdiction of the court is not determined by the prayers sought, but the nature of the suit itself. That if the Court finds

that it has jurisdiction to entertain the suit, then it can proceed to grant or refuse 8 to grant reliefs sought. He added that section 31(1) of the Nurses and Midwifery Act No. 1 of 2010 does not bar the High Court from entertaining suits basing on torts. That the TNMC has no powers to grant relief basing on compensation. He cited Section 28(3) of the Act and referred this Court to paragraphs 18 and 19 and annexure 4 of the amended Plaint. In gathering the arguments together, Mr. Majanjara submitted that the Court should look at the substance of the claims in the facts of the Plaint and the prayers to determine the nature of the suit and ascertain whether it has jurisdiction. It should not isolate the prayers, as counsel for the Defendants suggested. Based on the submissions and cited authorities above, Mr. Majanjara beseeched this Court to overrule the preliminary objection with costs. Considering the parties' rival arguments, the question would be whether the objection is meritorious. The learned state attorney for the 1st, 2nd, and 3rd Defendants raised a preliminary objection that the suit is incompetent for contravening the provisions of Section 31 (1) 9 of the Nursing and Midwifery Act 2010. To determine this objection, one must examine the import of the Act as a whole and not in piecemeal. Indeed, section 25(1) of the Act requires the Registrar, on behalf of the

Council, to receive complaints against any nurse or midwife on unfitness to practice and present such complaints to the Council. Under subsection (2), “unfitness practice" means a person whose fitness to practice is impaired because of, among other things, professional misconduct and lack of competence. Section 26 provides for the powers of the council to conduct an inquiry, while section 27 provides for the procedures for conducting such an inquiry when necessary. In view of section 28 (1), (2) and (3) of the Act, the council, having received a complaint against a nurse or midwife or a report from a supervisory authority, temporarily may suspend a nurse or midwife from practicing pending the conduct or completion of inquiry. On completion of the inquiry, the Council may suspend, confirm, extend, or reduce the temporary suspension. The Council, after due 10 inquiry made, may order the removal of the name of the nurse or midwife from the register or roll, order the suspension from practice, caution, censure, or otherwise reprimand the nurse or midwife. According to section 31 (1) of the Act, any person aggrieved by the decision of the Council may appeal to the Minister within three months from the date of notification of the decision. Under subsection (2) thereof, the Minister may dismiss or allow any appeal, alter or vary the decision of the Council or make any order as he or

she deems fit. Section 32 (2) provides that any person aggrieved by the decision of the minister may, within three months, refer the matter to the High Court. From what I have gathered hereinabove, the powers to suspend from practice of revoke the certificate of practice is not originally entrusted to this Court. It is the council that can suspend the nurse or midwife from practice or revoke the certificate of practice. If the person is aggrieved by the decision of the Council, he or she may appeal to the minister, who in turn may allow, dismiss, or vary the decision of the Council. It is when the person is aggrieved by the 11 decision of the minister that he or she may refer her of his grievances to this Court within three months. According to the records, the Plaintiff was one of the complainants before the Council in Complaint No. 2 of 2022, in which the fourth Defendant was the Respondent. According to the charge, on 14th April 2021, the fourth Defendant, while at Sinze Hospital, neglected, delayed or failed to take care of the plaintiff, who was by then in the advanced stage of pregnancy, expecting delivery of her baby at any time. As a result of the said delay, the fetus (unborn baby) was affected and thus developed health complications. The baby was born however he passed away on 16th April 2021 because of complications caused by prolonged maternal labor. Having

considered the complaint and the evidence presented before it, the Council found the fourth Defendant guilty on two counts and was suspended from practice for three months. The right to appeal to the minister was fully explained to the complainants, including the Plaintiff. However, as per the records, the Plaintiff and her co-complainant did not appeal to the minister. Under sub-clauses 12 (ii) and (iii) of the prayer clause of the Amended Plaint, the plaintiff prays for orders that the 3rd and 4th defendants be dismissed from their employment (duties) for the safety of other patients and revocation of the certificate of practice of the 4th Defendant in Nursing or Midwifery. If I may recap, the 3rd Defendant had previously not been a party to the dispute referred to the Council. The Plaintiff's counsel maintained that this Court has jurisdiction to determine and grant the orders requested for in the prayer clause of the Amended Plaint. With respect, I find the argument manifestly flawed. The Counsel for the Plaintiff appears to have misinterpreted the law. This Court has no original jurisdiction to suspend from employment or revoke the certificate of the practice of the nurse or a midwife. Such jurisdiction is vested to the Council under section 28 (3) of the Act. It is when a nurse or midwife is aggrieved by the decision of the minister that he or she may refer the matter to

this Court under the provisions of section 32(2) thereof. To that end, the preliminary objection raised is hereby sustained. In the premises, 13 prayer (ii) and (iii) in the prayer clause of the Amended Plaint are hereby struck out. In prayer (1), the Plaintiff prays an order of payment of the sum of Tanzanian shillings 200,000,000/= as general damages for compensation for the loss of her baby, mental, physical, and psychological tortures sustained by the Plaintiff as a result of the 4th Defendant’s negligence and tortious deeds. The prayer is predicated under the law of tort, which is within the jurisdiction of this Court. It is thus maintained. From what I have endeavored herein above, Prayers under clauses (i), (iv), (v), and (vi) in the prayer clause of the Amended Plaint are maintained. This Court has no original jurisdiction to grant the orders requested under clauses (ii) and (iii) in the prayer clause in the Amended Plaint. I thus proceed to strike them out from the records. I order accordingly. Right of appeal explained. 14 DATED at DAR ES SALAAM this 9th October 2024. H.S. MTEMBWA

JUDGE 15