godfrey wanzagi ruling 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT

CIVIL DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) CIVIL CASE No. 15881 OF 2024 1. GODFREY PAUL WANZAGl\ 2. JOSEPH SIMBA STEPHEN L...................................... PLAINTIFFS Versus 1. BACKFILL COMPANY LIMITEdX 2. TANZANIA RURAL AND URBANK ROADS AGENCY (TARURA) ( ............................. DEFENDANTS 3. THE ATTORNEY GENERAL J

RULING 19.09.2024 & 19.09.2024 Mtulya, J.: The plaintiffs, Mr. Godfrey Paul Wanzagi and Mr. Joseph Simba Stephen are farmers and residence at Butiama District in Mara Region engaging in economic activities of farming and exporting cash crops of sunflowers, coffee and pepper species. The plaintiffs have approached this court complaining that Backfill Company Limited (the first defendant) and Tanzania Rural and Urban Roads Agency (the second defendant) have encroached and destructed their crops to occasion a loss of Tanzanian Shillings Sixty-Nine Million Nine Hundred One Thousand and Four Hundred Only (69, 901,400/=Tshs.). In their reliefs, apart from other claims, the plaintiffs pray for payment of the indicated sum of 69,901.400/=Tshs as specific damages and Tanzanian Shillings Two Hundred Million Only i (200,000,000/=Tshs) as general damages. In order to comply with section 6 (2) of the Government Proceedings Act [Cap. 5 R.E. 2019] (the Act), the plaintiffs have joined and served the Attorney General as a necessary party in the proceedings involving the second defendant. The plaintiffs also alleged to have posted the plaint and other necessary documents to the Solicitor General via normal postal address, 130 Musoma, in Mara Region. The case was then scheduled for necessary orders on 13th August 2024, and Mr. Anesius Kamugisha, learned State Attorney, had replied the complaint

in written statement of defence attached with five (5) points of law in resisting proceedings of the case for want of proper record. In his brief submission on the day, he prayed the points be resolved first before the proceedings could proceed further. The prayer was not protested by the plaintiffs' learned counsel, Mr. Emmanuel Werema. This court then had granted the prayer and ordered the parties' learned minds to appear yesterday, Wednesday, 18th September 2024 at noon hours in order to register relevant materials for and against the points. Yesterday, the parties' learned minds appeared in this court to comply with the court's order of 13th August 2024. However, before the necessary materials were produced, Mr. Kamugisha stood up and prayed to abandon two (2) points of law and proceed with the hearing of the remained three (3) points. In his brief submission in favor of the 2 * first point of protest, Mr. Kamugisha stated that the section 6 (2) of the Government Proceedings Act [Cap. 5 R.E. 2019] was breached by the plaintiffs by declining notice of intention to sue the second defendant to the Attorney General. According to Mr. Kamugisha, the pleadings in the instant case shows that the plaintiffs have registered the notice to the Solicitor General without serving the Attorney General. In his opinion, the case was prematurely brought to this court for want of application

of section 6 (2) of the Act. Regarding the second objection, Mr. Kamugisha stated that the suit violated the enactment of Item I of the First Schedule to the Law of Limitation Act [Cap. 89 R.E. 2019] (the Law of Limitation), which requires all suits related to compensation be filed within twelve (12) months. According to him, the plaint in the instant case shows, in the sixth and seventh paragraphs, that the cause of action, in respect of the first plaintiff, had occurred 13th December 2022 and in respect to the second plaintiff on 16th December 2022, and the suit was preferred in May 2024, which is more than twelve (12) months required by the law. In the final point, Mr. Kamugisha submitted that this court lacks jurisdiction to grant the reliefs sought by the plaintiffs. In the opinion of Mr. Kamugisha, the plaint shows this is a civil suit, but plaintiffs are claiming compensation from land dispute, without alleging ownership of the disputed lands. According to Mr. Kamugisha, failure to plead 3 ownership means that the plaintiffs have declared themselves as trespassers on the lands and trespassers cannot benefit from their own wrongs. The submissions of Mr. Kamugisha were protested by Mr. Werema. In his replies Mr. Werema contended that the first point has no merit as section 6 (2) of the Act is silent on service to the Attorney General, but was enacted by use of the word

send a copy to the Attorney General. According to Mr. Werema they sent a copy of the plaint by way of postal mail addressed to Postal Address No. 130 Musoma, but the plaintiffs have no postal payment receipts. In the views of Mr. Werema, the law is silent on the procedure of sending the documents to be followed for purposes of avoiding inconveniences and costs to litigants to travel to Dodoma to serve the Attorney General. On the second point of time barred, Mr. Werema contended that Item 1 of the First Schedule to the law of limitation is correct and the cited dates are also correct. However, Mr. Werema stated that the plaintiffs are exempted from the enactment as they were in court prosecuting the same cause of action in good faith. In substantiating his submission, Mr. Werema had produced chronological background of the dispute from when the cause of action arose and filed at Butiama District Court (the district court) in Civil Case No. 1 of 2023 (the case) within time on 23rd January 2023, and was resolved on 31st August 2023. However, according to Mr. Werema, the decision had 4 aggrieved the plaintiffs and approached this court in Extended Jurisdiction and was resolved on 23rd March 2024. Mr. Werema submitted further that it is the same cause of action, which was filed in the instant case in May 2024. Mr. Werema submitted that the plaintiffs were prosecuting the same cause

of action in good faith hence the complained delay in time may be excluded, as per section 21(1) & (2) of the Law of Limitation and practice of the Court of Appeal (the Court) in Geita Gold Limited v. Anthony Karangwa, Civil Appeal No. 42 of 2020. Finally, Mr. Werema submitted that this court is empowered to grant the reliefs sought by the plaintiffs, as the dispute is of civil nature of compensation species emanated from crops destructions, and that there is no any specific claim of land ownership or trespassing in land. According to Mr. Werema the complained issue of trespass on land needs evidence and the case is not at the stage of producing evidences. Mr. Werema submitted further that the defendant had declined to state whether the crops belong to them in the written statement of defence. In a brief rejoinder, Mr. Kamugisha insisted his earlier submission and added further materials that: first, Mr. Werema had distinguished the words serve and send in section 6(2) of the Act, but the plaintiffs have declined to attach receipt of payment or any document which shows that they posted the document to the Attorney General. In the 5 opinion of Mr. Kamugisha, even if it is correct as stated by Mr. Werema, the cited address No. 130 Musoma does not belong to the Attorney General hence it was posted in the wrong postal address. Mr. Kamugisha submitted further that the plaintiffs

were prosecuting their cases in good faith, but in filing the present case were out of time limitation hence cannot be saved by section 21 (1) & (2) of the Law of Limitation and precedents in Geita Gold Limited v. Anthony Karangwa (supra). According to Mr. Kamugisha, the indicated section provides for the same parties, but in the instant case the parties were different with those in Civil Case No. 1 of 2023 and Civil Appeal No. 2 of 2023, as they did not involve the second and third defendants. In the final point, Mr. Kamugisha submitted that the defendants did not allege that the crops are theirs, but complained on the properties claimed by the plaintiffs. According to him the plaintiffs had planted their crops in road reserve owned by the second defendant hence anything on it belongs to the second defendant. In his views, the plaintiffs cannot claim compensation to the lands which are not theirs. I have perused the present record and submission of the parties and found that this is a straight forward case. Both learned minds of the parties are in agreement that the Attorney General was neither served or posted the plaint and its associated documents. The plaintiffs 6 have declined either a statement in the pleadings or by documents that they have served or sent the documents to the Attorney General. The law enacted in 6 (2) of the Act, in brief, provides that: no suit

against the Government shall be instituted and heard unless the claimant previously submits to the Government institution concerned a notice of not less than ninety days of his intention to sue the Government and shall send a copy of his claim to the Attorney General and Solicitor General. The available interpretation on record shows that a claimant suing Government institution must serve both the Solicitor General and Attorney General (see: Ester Yasin v. Tarime Town Council & Another, Civil Case No. 8 of 2022; Bwire Nyamwero & Another v. National Microfinance Bank PLC & Five Others, Land Case No. 21 of 2022; Evetha Mosha v. Arusha City Council & Two Others, Civil Case No. 14 of 2021; and Changwe Charles Kibhibhi & Four Others v. Musoma Urban Water Supply and Sanitation Authority, Land Case No. 457961 of 2022). The plaintiffs in the instant case have declined the enactment of section 6 (2) of the Act and a bunch of precedents of this court. Having said so, this court sees no reason to depart from its own previous decisions. It is so, not only for the sake of certainty and predictability of decisions emanated from this court, but also for confidence building to the parties and justice stakeholders. 7 I am aware of the other two points of law raised by the defendants. The points invite short replies. Regarding the complaint on time barred, the position is clear and there is

precedent of the Court of Appeal on the subject (see: Geita Gold Limited v. Anthony Karangwa (supra). In the present case, the plaintiffs were prosecuting the same cause of action in different levels of courts hence saved by section 21 (1) of the Law of Limitation and the indicated precedent in Geita Gold Limited v. Anthony Karangwa (supra). Similarly, the issue of mandate of this court was brought in such a way that this court is required to scrutinize necessary materials in evidence to resolve the same. This court cannot venture into evidences at this stage. A point of law must be pure point of law as indicated in the citation of the Act and Law of Limitation. The last complaint was based on facts without any support of the law. In the end, I struck out the plaint for want of the application of section 6 (2) of the Act. I do so without costs as the parties had brought the case in good faith searching compensation of their alleged destructed crops. 8 Court: This Ruling was delivered in Chambers under the Seal of this court in the presence of the Plaintiffs' learned counsel, Mr. Emmanuel Werema and in the presence of the defendants' learned State Attorney, Judge 19.09.2024 9