Fauzia

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 4768 OF 2024 FAUZIA ABDALLAH MOHSEIN MALIK (Adminstrator of the Estate of the late Abdallah Mohsein Malik) PLAINTIFF MALIK ABDALLAH MOHSEIN MALIK (Adminstrator of the Estate of the iate Abdaliah Mohsein Malik) 2ND plaintiff TARIQ ABDALLAH MOHSEIN MALIK (Adminstrator of the Estate of the late Abdallah Mohsein Malik) 3RD plainitIFF

VERSUS UBUNGO MUNICIPAL COUNCIL 1®^ DEFENDANT THE ATTORNEY GENERAL 2ND defendant SHAMSA SALUM alias SHAMSA SALUMU AKLAN alias SHAMSA NASSORO 3RD defendant

RULING Date of Last Order: 06.05.2024 Date of Ruling: 29.05.2024 T. N. MWENEGOHA, J. The and 2"'' defendants above have jointly objected the determination of this case on two grounds as follows; - 1. The suit is untenable in law for failure to comply with section 6(2) of the Government Proceedings Act, Cap 5 R. E. 2019. 1 2. The suit is untenable for non-joinder of necessary parties. In his written submissions, Mr. Stephan Noel Kimario, learned State Attorney for the and 2"“' respondents, started his arguments by citing the case of Mukisa Biscuits Company versus Westend Distributors Limited (1969) EA 696 and the case of Lyamuya Construction Company Limited versus Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). He insisted on the objection that, the suit has been instituted without issuing a 90 days' notice of the intention to sue the government. That, the "annexure N" shows that, the stamp dated 13/10/2022 is of the Office of Solicitor General only. That, the said notice was also supposed to reach the Ministry concerned, Ubungo Municipai Council and the Attorney General. It was his arguments, therefore, that under Section 6 and 7, the Interpretation of Laws Act, Cap 1, R. E. 2019, the words used under Section 6(2) of the Government Proceedings Act, Cap 5 R. E. 2019 were supposed to be strictly

observed. That, failure to do so, made the suit at hand untenabie. That, above ali, in the ietter served to the Solicitor General, the plaintiffs have introduced themseives as representatives of the beneficiaries and not the legal representatives of the deceased Abdallah Mohsen Malik as they did in this Application. On the 2"*^ objection, it was argued that, this suit is untenable for non joinder of the Commissioner for Lands and the Registrar of Titles. The counsel cited the case Ali Shabani & Others versus Tanzania National Roads Agency (TANROADS) and Another, Civil Appeal No. 261 of 2020, Court of Tanzania (unreported). 2 In reply, Advocate Joseph Rutabingwa insisted that, the issue of service of the notice requires evidence. If the learned State Attorney would have included that in his Written Statement of Defence, the plaintiff would have enclosed a confirmation of service in the reply. Above all, the learned State Attorney knows very well that, it is only the office of the solicitor general that accepts service of the said notice and not otherwise. That, the service was properly done and the suit complied with the provisions of section 6(2) of the Government Proceedings Act, Cap 5 R. E.

2019. On the 2"^ objection, it was argued that, the issues of survey and registration of the suit land as stated in the Written Statement of Defence is a fact that is not known to the plaintiffs. That, after all, the presence of the Municipal Council is enough as there are surveyors in it. Therefore, the two preliminary objections are devoid of merits. I have gone through the submissions of the counsels, for and on behalf of the parties herein above, in particular, the and 2^^ respondents and the plaintiffs. The issue for determination is whether the objections have merits or not. As stated in Mukisa Biscuits Company (supra), for the objection to be entertained in Court, it should be on point of law. At hand, the bone of contention on the objection, is whether the filing of present suit complies with the provisions of Section 6(2) of the Government Proceedings Act, Cap 5 R. E.

2019. That, the plaintiffs served the 90 days' notice of intention to sue before the sued the government. For easy reference, I will reproduce the said provisions as here under; - 3 "No suit against the Government shaii be instituted, and heard uniess 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." Now, on record, I have "annexure N" a purported notice (a letter dated 1'^ October, 2022, directed to the Municipal Director, Ubungo Municipal Council), said to be served to the government for the purpose of instituting the instant case. Upon reading the notice in question, the following issues arises. Firstly, in the said letter, it is shown that, the writer who is the counsel for the plaintiffs, was acting on behalf of the beneficial owners of the estate of the late Zuwena Salum and Abdallah Malik. However, the said owners (beneficial owners) were not mentioned in that notice. It is not known if they are the same people who are the claimant or plaintiff in this suit. Secondly, the suit in question has been instituted by Legal Representative of the estate of the late Abdallah Mohsen Malik. These are not

beneficial owners, rather, they are Joint Administrators of the Estate of the Late Abdallah Mohsen Malik. Therefore, one can say, this notice was not issued by them or on their behalf. Lastly, in the purported notice, if I may say, the land in question, seems to be in two different estates. That of to two deceased persons, the late Zuwena Salum and the late Abdallah Malik respectively. The case before me, has been filed by the legal representatives of the late Abdallah 4 Mohsen Malik. One can say, what is referred in "annexure N" is different from what is present before this Court. Therefore, the purported notice, ''annexure /V"cannot suffice to satisfy conditions stated under the mandatory provisions of section 6(2) of the Government Proceedings Act, (supra). Under these circumstances, the Court agrees with the learned State Attorney that, this case contravenes the provisions of section 6(2) of the Government Proceedings Act, (supra). This suit was filed without any notice being issued to the and 2^^^ respondents, prior to its institution. The objection has merits and the same is sustained accordingly. For the above findings, I do not need to discuss the remaining objection, as the first objection found meritorious is capable of disposing the entire case. In the end, the suit is struck out for want of competence. No order as to costs. Ordered accordingly. OF .X r'i ■■ T. MH^WENEGOHA

JUDGE 27/05/2024 5