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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND CASE NO. 25 OF 2023 GRACE AMBILIKILE MANDALA (as a Legal Representative of the Late WILLY RICHARD MWASUNGA) …………………………..PLAINTIFF

VERSUS ASIFIWE MWAKALONGE.……..……….………………..1ST DEFENDANT COMMISSIONER FOR LANDS……………...………..….2ND DEFENDANT ATTORNEY GENERAL…………………………………….3RD DEFENDANT

RULING Date: 18 June 2024 & 6 August 2024 SINDA, J.: The Plaintiff is suing as a legal representative of the late Willy Richard Mwasunga (the Deceased). The plaintiff is claiming that the suit land which is a two-acre land located at Iwindi Village TITLE No. 15743-MBY, L.O No. 240045, L.D No. MB/3597, PLOT No. 2, Iwindi area, Mbeya District (the Disputed Property) is part of the estate of the Deceased. 1 The cause of action against the first defendant is trespass to the Disputed Property. The cause of action on the second defendant is the act of the respondent to survey, allocate and grant the Disputed Property to the first defendant without involving the plaintiff. The third respondent is added as a necessary party to the suit as a legal adviser to the Government of the United Republic of Tanzania. The plaintiff is claiming against the three defendants the following reliefs; i. That, this Court be pleased to declare that the suit land is part of the estate of the late Willy Richard Mwasunga. ii. That, the title deed described as TITLE No. 15743-MBY, L.O No. 240045, L.D No. MB/3597, PLOT No. 2, IWINDI AREA MBEYA DISTRICT issued by the Second Defendant to the First Defendant be revoked iii. That, alternative to prayer (ii), the Second Defendant be ordered to allocate the Plaintiff alternative plot. iv. Costs be granted. v. Any other remedies this Court may deem fit to

grant. 2 In reply, the respondents filed their written statements of defence (WSD) and disputed most of what was stipulated by the plaintiff in her plaint. In addition, the second and third respondents raised a preliminary objection (the P.O) on a point of law to the effect that: 1. That, this suit is incompetent and bad in law as for contravening Section 6 (2) of the Government Proceedings Act, Cap 5, R.E 2019 (the GPA). The hearing of the P.O was by way of written submission where the plaintiff was unrepresented. The second and the third respondents were represented by Ms. Edina Mwamlima and Mr. Michael Fyumagwa both learned State Attorneys. In her submission in chief, Ms. Mwamlima argued that the second defendant is a Government Department of which a 90 days’ notice should have been issued before filling a case against it. That, the plaintiff in the matter at hand issued a 90 days’ notice to the Solicitor General and the Attorney General but not to the Commissioner for Lands. Thus, makes this suit incompetent. She added that the requirement for issuing 90 days’ notice to the government departments, Solicitor General and Attorney General is 3 mandatory. The word “shall” is used and is duly defined under section 53 (2) of the Interpretation of Laws Act, Cap 1, R.E 2002. She cited the case of Arusha Municipal Council vs. Lyamuya Construction Company Limited TLR (1998) 13 to

support her arguments. In her reply submission, the plaintiff submitted that there is no format for the notice to the government departments. That, the 90 days’ notice was served to the government through the Attorney General and Solicitor General. This means the service to the Attorney General and Solicitor General was equivalent to the service to the Commissioner for Land. She emphasized that the Attorney General is an overall in charge in all legal matters to all Ministries and Government Departments. She summed up by arguing that the second and the third defendant ought to have stated the extent to which they have been affected by failure to address the second defendant. In his rejoinder, Mr. Fyumagwa reiterated on their submission in chief and insisted that the case is incompetent for contravening with Section 6(2) of the GPA. He stated that the plaintiff’s contention that no specific format governs statutory notices to government departments is misplaced. Therefore, the plaintiff’s attempt to construe the statute in such a manner 4 appears to be a deliberate misrepresentation designed to excuse her failure to serve the second defendant with the 90 days’ statutory notice. Furthermore, Mr. Fyumagwa argued that service of a ninety days’ notice upon the Attorney General and Solicitor General does not constitute proper service upon the Commissioner for Land. Further, each

government entity possesses distinct service requirements mandated by law and adherence to these requirements is essential for a valid lawsuit. I have carefully gone through the arguments from both sides and will thus deliberate on the P.O based on the submissions, statutes and case laws put forth. I would like to reproduce the provision of Section 6(2) of the Government Proceeding Act (Supra), to wit “6 (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.” On the foregoing, it is not disputed that the office of the Commissioner for Lands falls under the definition of Government Departments. It’s not 5 disputed that any Government Department must be issued a 90 days’ notice by the plaintiff before a claim or suit is instituted against it, as per the requirements of the law. However, the plaintiff only served the said notice to the 3rd respondent only i.e. the Attorney General. From the above provision, it is clear that the plaintiff should have first served the ninety days’ notice to the second respondent and then a copy be sent to the third

respondent. I therefore agree with the arguments by the respondents’ counsel that it was mandatory for the second respondent to be issued with the notice as well. The plaintiff in her reply submission claimed that the second and the third respondents should have stated how they were prejudiced by the failure to address the second defendant i.e. the Commissioner for Land. It is my belief that the plaintiff misdirected herself with that contention. A P.O. once raised, it goes beyond the parties and how they have been affected with the said point of law. I therefore maintain the preliminary objection and find that the suit has been prematurely instituted before complying with the mandatory requirements 6 of Section 6(2) of the GPA for the failure of the plaintiff to serve the second respondent with the 90 days’ notice as required by law. In the case of Arusha Municipal Council versus. Lyamuya Construction Company Limited [1998] TLR 13 the Court of Appeal of Tanzania held that failure to issue the statutory notice before institution of the suit against the government makes the suit unmaintainable. I proceed to hold this matter to be incompetent and consequently, it is hereby struck out. The plaintiff if she wishes to pursue the matter further, could do so by following the procedure as provided by the law. Dated at Mbeya on this 6 Day of August 2024. A. A. SINDA

JUDGE 7