Ruling GEORGE MAGANIKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND CASE NO 12795 OF 2024 1. GEORGE MAGANIKO NGAKA ……………………………………. 1ST PLAINTIFF 2. VIDA JAMES ……………………………………………….…..…… 2ND PLAINTIFF 3. GEORGINA DAVID KARAZE ………………………….….……… 3RD PLAINTIFF 4. SAULO TUNGARAZA MACHUMO …………………………..…… 4TH PLAINTIFF 5. ABDUMARICK NURU SUED ………………….………..………… 5TH PLAINTIFF 6. JULIUS JASON DWISHA …………………………...…......…….. 6TH PLAINTIFF 7. JANE KAMILI MOSHA …………………………………..………... 7TH PLAINTIFF 8. DAUD DEOGRATIUS MBOYELWA ………..……………....…… 8TH PLAINTIFF 9. ABEID ABDU KAJALA ………………………………………....…. 9TH PLAINTIFF 10. JUMANNE MOHAMED IBRAHIM ………….…………….…… 10TH PLAINTIFF 11. MAGRETH LIMBE ……………………………………..…….….. 11TH PLAINTIFF 12. EMMANUEL SILASI NYINYIMBE ………………………..….. 12TH PLAINTIFF 13. STELLA TITUS NG’ACHENGO ………………………..……..… 13TH PLAINTIFF 14. OMARY AKIDA ………………………………………..…………. 14TH PLAINTIFF 15. SELEMANI WAZIRI JUMA ………………………….……....… 15TH PLAINTIFF VERSUS 1. TANZANIA BUILDING AGENCY …………….…………..…… 1ST DEFENDANT 2. THE ATTORNEY GENERAL ………………………..……..……. 2ND DEFENDANT 3. TWINS AUCTION MART COMPANY LIMITED ………..……. 3RD DEFENDANT RULING 31st July & 13th September 2024 CHUMA, J. The plaintiffs claim to be the lawful tenants of the 1st defendants at Mazengo Estate in Nyamanoro ‘A’ street, Within Ilemela Municipality of Mwanza Region (the suit property). It is alleged that the lease agreements by the plaintiffs and the 1st defendant have been hereditary and renewed 1 from time to time by conduct or written agreements. That, by a letter dated 30.4.2024 they came to know that the 3rd defendant intended to evict them from the suit property after being instructed by the 1st defendant. They further claim that no notice was legally issued to them before the intended eviction. Henceforth, the plaintiffs filed this case for inter alia declaration that they are entitled to an exclusive and unimpeded right to possess the suit property; for declaration that the defendants are trespassers to the suit property and permanent injunction to be issued to the defendants and/or their agents from trespassing to the suit property. The suit however faced one point of preliminary objection from the 1st and 2nd defendants that; The suit is prematurely brought before the court without complying with the requirement of 90 days’ notice to the 2nd defendant contrary to section 6(2) of the Government Proceedings Act, Cap 5 R.E 2019. This objection is argued by way of written submissions. The submissions for the 1st and 2nd defendants were filed by Mr. Felician Daniel state attorney whereas Gibson Ishengoma learned advocate submitted for the plaintiffs. In support of the preliminary objection, Mr. Daniel submitted that section 6(2) of the Government Proceedings Act, Cap. 5 R.E. 2019 2 (hereinafter the Act) is couched in mandatory term by the use of ‘shall’ hence as per section 53(2) of The Interpretation of Laws Act, Cap 1 R.E 2019 it must be performed. That reading annextures “NA-3” to the plaint the Plaintiffs attached the 90 days’ statutory notice with reference No. DA:226/422/388/18 dated 10.6.2023 which was received by the Regional Manager of the 1st defendant on the same date, 10th day of June, 2023. The notice was also addressed and served upon to the office of the Solicitor General on 6.7.2023. However, the said notice was never served to the Attorney General who is a Chief Legal Adviser to the Government in line with Article 59 (3) and (4) of the Constitution of the United Republic of Tanzania of 1977 as amended from time to time. Mr. Daniel submitted further that, according to section 6(2) of the Act, one who wishes to sue the Government need to issue the statutory notice to the Government Minister, Department or officer and send a copy of his claim to the Attorney-General and the Solicitor General before instituting the suit in the High Court further reference was made to the case of Nassoro Mbaruku Nassoro (The Administrator of the estate of Kurwa Abdallah Salum Vs. Makubi Hamisi Mwinyihija & 2 others, Land Case No. 340 of 2022 and Mashaka Abdallah (The Administrator of the 3 Estate of the late Mhoja Juma) & another Vs. Bariadi Town Council & 2 others, Land Case No. 03 of 2020 (both unreported). Mr. Daniel went on submitting that, issuance of ninety (90) days' notice to the second defendant is a mandatory requirement of the law because it ascertains the jurisdiction of this Honorable Court as stated in the case of Zuwena Idd Kasabe Vs. Muhimbili National Hospital & The Attorney General Civil Case No. 26443 of 2023 (unreported) that, “This court cannot assume jurisdiction to entertain the matter unless the issue of service is sorted. It follows that the issue of notice and proof of service as provided under section 6 (2) of the Government Proceeding Act is a question of law touching the jurisdiction of this court in dealing with suits against the government.” Mr. Daniel concluded that this suit is prematurely before this Honorable Court without issuance of 90 days’ notice and non-proof of service to the 2nd Defendant contrary to section 6(2) of the Act. He prayed for the suit to be struck out with costs. In reply, Mr. Ishengoma submitted that the objection is devoid of merit as the notice was fully saved as depicted on the annexure attached to the 4 Plaint. Mr. Ishengoma agrees that according to Section 6(2) of the Act, no suit shall be instituted against the Government, including its departments, unless a 90-day notice of intention to sue has been served to the Attorney General. The purpose is to give the Government sufficient time to investigate the claim and potentially resolve the dispute without litigation. In the present case, the notice was served on the Solicitor General, who is a representative of the Attorney General's office and performs functions on behalf of the Attorney General. Mr. Ishengoma submitted further that, the office of the Solicitor General was established under the Office of the Solicitor General Act, Cap. 168 [R.E. 2019]. That, the Solicitor General is mandated to represent the Government in all civil proceedings under Section 4(1)(a) of the Office of the Solicitor General Act. That, serving the Solicitor General with a notice of intention to sue should be deemed sufficient compliance with the statutory requirement to notify the Attorney General. The Solicitor General performs duties that are closely related to those of the Attorney General, including handling legal matters on behalf of the Government. That, whether the notice is served on the Attorney General or the Solicitor General the purpose of the same is not defeated as both offices 5 operate under the same legal framework and mandate. In the case of Attorney General Vs. Amos Shavu [1999] TLR 264, it was held that where a party serves a notice to the Government, substantial compliance with the requirement to notify the Attorney General is sufficient as long as the Government is aware of the impending suit and is not prejudiced by the technicality. That, in the case of Kajubi Vs. Kibirige [1973] E.A 564, the court held that failure to serve the Attorney General directly did not invalidate the proceedings provided that the same was served to the relevant government office. Mr. Ishengoma reminds this court of the principle that rules of procedure are meant to be the handmaid of justice, not a master as stated in the case of Mbeya-Rukwa Auto Parts & transport Ltd. Vs. Jestina Mwakyoma [2003] TLR 251. To him, failure to serve the notice to the Attorney General should not be used to defeat substantive justice as stated in the case of Registered Trustees of Marian Faith Centre @ Wanamaombi Vs. The Registered Trustees of the Catholic Church Sumbawanga Diocese, Civil Appeal No. 64 of 2007 (unreported) where it was held that procedural technicalities should not be used to defeat justice. 6 He submitted further that, the defendants have not demonstrated any prejudice suffered by the Government due to the notice being served on the office of the Solicitor General instead of the Attorney General. The Government was effectively informed of the suit, and the purpose of the statutory notice was fulfilled. That, dismissing the suit based on a technicality would result in grave injustice, especially when the Government, through the Solicitor General, was duly notified of the plaintiff's intention to sue. On the issue of technicality, I was further referred to the case of The Registered Trustees of the Archdiocese of Dar es Salaam Vs. The Chairman of the Board of Trustees of Casmir Care Home, Civil Appeal No. 112 of 2006); and Diamond Trust Bank Tanzania Limited Vs. Idrisa Shehe Mohamed & 2 Others, Civil Appeal No. 262 of 2017 (unreported). Mr. Ishengoma prayed for the Court to dismiss the preliminary objection with costs and allow the suit to proceed to trial on its merits. Having keenly considered the submissions for and against the preliminary objection, there is no dispute that according to Section 6(2) of the Act, the 90 days’ notice need be served upon the government department and the copy be served upon the Attorney General and the 7 Solicitor General. Parties are also in agreement that the 90 days’ notice by the plaintiff was only served upon the 1st defendant and the Solicitor General. Nevertheless, Mr. Ishengoma is of the view that failure to serve the Attorney General cannot vitiate the suit for the reason that the government was accordingly informed with the intention of the plaintiff to sue and the office of solicitor General has mandate to represent the Government in civil proceedings. Mr. Ishengoma backed up his argument with several authorities to the effect that substantial justice need not be impeded by mere technicalities. To him, strict requirement to serve both the Attorney General and Solicitor General is a mere technicality. I will therefore consider the contention by Mr. Ishengoma. The need to serve the Solicitor General was brought by The Written Laws (Miscellaneous Amendment) Act, 2020. Before that, Section 6(2) of the Government Proceedings Act, Cap 5 R.E 2002 read; “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 8 the Government, and he shall send a copy of his claim to the Attorney-General.” After amendment, S. 6(2) of the Act reads; “(2) 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 and the Solicitor General” (emphasis added). Mr. Ishengoma was of the view that service to the Solicitor General meets the purpose because he has been mandated to represent the Government in all civil proceedings pursuant to Section 4(1)(a) of the Office of the Solicitor General Act Cap 168 [R.E 2019]. In my view, the law cited by the counsel for the plaintiffs is misleading. I have reasons; one, there is no law called the Office of the Solicitor General Act; two, the Office of Solicitor General was established under paragraph 3(1) of the Office of the Solicitor-General (Establishment) Order, 2018, three, Chapter 168 of 9 the Laws of Tanzania is the Road Traffic Act; four, Chapter 168 of the Laws of Tanzania was never revised on 2019 the last revised edition was on 2002. The office of attorney general is within the organization structure in the office of Attorney General but it is autonomous from the office of Attorney General. Paragraphs 2(1) and (2) of the Order establish the office of Solicitor General it reads; “2. (1) There shall be the Office of the Solicitor-General within the organization structure of the Office of the Attorney-General. (2) The Office of the Solicitor-General shall be autonomous from the Office of the Attorney- General.” The office of the Solicitor general was objectively established. Under Paragraph 3 of the Order, the objectives states that; 3. The objectives of establishing the Office of the Solicitor- General shall be to (a) enhance and strengthen the Government's ability to litigate civil cases including human rights and constitutional matters in courts of law and undertake arbitral proceedings in tribunals; 10 (b) enhance effective supervision of civil cases in courts of law including human rights and constitutional matters; and (c) carry out the general coordination of the conduct of civil litigation and arbitral proceedings on behalf of the Central Government, independent departments, executive agencies, and local government authorities. Reading all the objectives for the establishment of the office of the Solicitor General and its functions as provided under Paragraph 4 of the order, I am of the view that, the office of the Solicitor General deals with the conduct and coordination of civil litigation. It does not discharge the functions of reporting potential litigations to the Attorney General or advising the Government or the Attorney General. The purpose of serving notice, albeit involves service to the Solicitor General, is to give the government a chance to resolve the dispute at the earliest stage before resorting to litigation. That being the case, I am of the considered view that service to the Attorney General cannot be undermined because he is the Chief divisor of the Government under Article 59(3) of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. The Attorney General on discharging his duty of advising the government has the power 11 under section 6 of the Office of Attorney General (Discharge of Functions) Act, Cap 268 R.E. 2019 which provides; 6. In the discharge of the functions under sub-article (3) of Article 59 of the Constitution, the Attorney General shall have and exercise the following powers: (a) to require any officer in the public service to furnish any information in relation to any matter which is the subject of legal advice; (b) to issue directions to any officer performing legal functions in any Ministry of the Government, Government Department, or Government Agency, other than those working in the National Prosecutions Service or the Office of the Solicitor-General. Guided by these laws, I disassociate with the reasoning of Mr. Ishengoma that, service to the Solicitor General served the purpose of 90 days’ notice. The Attorney general was denied a chance to advise the government with regard to this matter. Serving the Attorney General is not a matter of mere technicality but of law. In the cited case of Mashaka Abdallah (The Administrator of the Estate of the late Mhoja Juma) & another Vs. Bariadi Town Council & 2 others, (supra) this court on pages 9 and 10 said; 12 ‘‘…I therefore agree with the Defendants' Counsel that the 2nd and 3rd Defendants have not been served. This in my view, is a mandatory legal requirement and wasn't meant to be a mere fashion. Had the parliament intended so, then it wouldn't have legislated so.’’ (emphasis added). Before I conclude I have also noted that annexure NA-3 was served upon the first defendant on 10.6.2023 and the solicitor General on 6.7.2023. The said notice has no bearing on the present cause of action. It does not state the intention of the defendants to evict the plaintiffs rather it is in respect of the rent raise from TZS. 40,000/- to 150,000/-. Therefore this notice cannot be relied upon in this case as it referred to a different cause of action on which the government was not notified. Consequently, this suit was prematurely filed before complying with the mandatory requirement of section 6 (2) of the Government Proceedings Act, Cap 5 R.E 2019. I proceed to struck out the suit with cost. It is so ordered. Dated at MWANZA this 13th day of September 2024. W. M. CHUMA JUDGE 13 Court Ruling delivered in court virtually in attendance of Mr. Felician Daniel, State Attorney for the Defendants and in absence of Mr. Ishengoma, advocate for the plaintiffs this 13th day of September 2024. C. KISONGO DEPUTY REGISTRAR 14