HASSAN SALMINI NTANDU VS

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND CASE NO. 6296 OF 2024 BETWEEN HASSANI SALMINI NTANDU (As Administrator of the Estate of the Late Mariam Kholo Mrasii)…………..…….…..……PLAINTIFF Versus MSISI VILLAGE COUNCIL…….……….…...………….…………………1ST DEFENDANT THE ATTORNEY GENERAL……….…………………….…………………2ND DEFENDANT SOLICITOR GENERAL……………………………………..………………3RD DEFENDANT MIRAJI SHABAN ………...…………….……………………………..……4TH DEFENDANT ALLY RAMADHANI SHABANI..….…………………….…………………5TH DEFENDANT RULING Date of last order: 07th Aug, 2024. Date of Ruling: 06th Sept, 2024. E.E. KAKOLAKI, J. This ruling seeks to address the preliminary objections raised by the 1st, 2nd and 3rd defendants and 4th and 5th defendants against the Plaintiff’s suit. The grounds raised by the 1st, 2nd and 3rd defendants are three. One that, the suit is incompetent and bad in law for suing a wrong party, second that, the suit is bad for failure to comply with section 26(3) of the Local Government (District Authorities) Cap. 287 R.E 2002 as amended by section 30(2) of the Written Laws (Misc. Amendment) Act No. 1 of 2020 and third that, the plaintiff has no locus standi to sue. The 4th and 5th defendants contend that, the suit is bad in law and unmaintainable for being hopeless time barred and that, the 1 suit is bad in law and unmaintainable for being instituted by the plaintiff who has no locus standi. Basing on those grounds it is their prayers that, the suit be dismissed with costs. The reasons as to why the plaintiff is suing the defendants before this Court as deduced from the averment in the plaint are simple to narrate. Suing as administrator of the estate of the late Mariam Kholo Mrasii, the plaintiff is claiming against the 1st, 4th and 5th defendants ownership and recovery of the land located at Mghondwe Hamlet, Msisi Village and Ward within Singida District estimated to comprise one hundred (100) acres as part of the estate, in that the 1st defendant stopped him from enjoying its use since the year 2022 on assertion of being a forest reserve of Mghondwe in Msisi village and that, the eight (8) and sixteen (16) acres of the said piece of land purported to have been sold or allocated to the 4th and 5th defendants respectively by the 1st defendant were never legally owned by them for failure to pay the purchase price. As regard to the 2nd and 3rd defendants the plaint is silent as to why are they sued apart from mentioning them as legal persons and give description of their addresses. It is from that cause of action the plaintiff is praying for judgment and decree against the defendants jointly and severally as follows: 2 1. Declaratory order that, the land in dispute which is located at Mghondwe hamlet, within Misisi village and Ward in Singida District is the lawful property of the deceased one Mariam Kholo Mrasii. 2. Declaratory order that the allocation of the suit plot to the 4th and 5th defendants done by the 1st defendant is null and void. 3. An order for permanent injunction to restrain the defendants, their agents, workmen or any other persons acting on his behalf from claiming any interest over the land in dispute. 4. Costs of the suit and any other relief(s) as this Court deem fit to grant. In response to the claims by the plaintiff, apart from filing their respective WSDs the defendants raised the above stated grounds of objection. As it has always been practice of the Court to dispose of first the objections whenever raised, both parties agreed to dispose them of orally as were all represented. At the hearing Mr. Isaya E. Nchimbi, learned Advocate appeared for the Plaintiff while the 1st, 2nd and 3rd defendants enjoying the services of Ms. Kumbukeni Kondo, learned State Attorney. On the part of the 4th and 5th defendants Mr. Denis Odhiambo, learned advocate appeared for. In the course of submitting in favour of the said raised preliminary objections Ms. Kondo, for the 1st, 2nd and 3rd defendants abandoned the 2nd ground while opting to proceed with the rest. As to the 2nd ground of objection for the 4th and 5th defendants since the same looked similar to the 3rd ground by the 1st, 3 2nd and 3rd defendants Mr. Odhiambo chose to drop it by supporting and adopting the submissions made Ms. Kondo in respect of the 1st ground of objection by the 1st, 2nd and 3rd respondents while proceeding to argue the 1st ground only. In this ruling I would have opted to address one ground after another in seriatim as argued, but due to the reasons to be apparent soon I choose to deal with the first ground only. Submitting in support of the first ground of objection by the 1st, 2nd and 3rd defendants Ms. Kondo argued that, plaintiff’s act of suing the 3rd defendant who is a non-juristic person renders this suit incompetent. According to her the Solicitor General being the Government counsel in civil matters only whose functions are lucidly stated under section 5(1),(4),(5) and (6) of GN. No. 50 of 2018 and his office established in terms of section 4(1)(a),(b) and (c )and (2) of the same GN, is a non-juristic person hence incapable of suing and being sued. To buttress her stance she referred Court to the case of Singida Sisal Products and General Supply Vs. Rofal General Trading Limited and 4 Others, Commercial Review No. 17 of 2017 (HC) where this Court observed thus, a non-juristic person has no legs to stand, no hand to prosecute, no eyes to see and no mouth to speak either in her own or on behalf of any other person before any court of law. As the sued person this matter is non-juristic incapable of being sued the only remedy she submitted is to struck out the suit as it was held by this Court in the case of Respicius Emilian Mwijage Vs. The Municipal Director, Ilala Municipal Council 4 and 2 others, Land Case No. 27 of 2021 (HC) where this court struck out the suit on the ground of the plaintiff suing a wrong party. She therefore urged the Court to be persuaded with its own decision and follow suit by striking out this matter with costs. In respect of this ground of objection Mr. Odhiambo for the 4th and 5th defendants had nothing to add than supporting the objection while adopting the submissions by the 1st, 2nd and 3rd defendants’ counsel to form also part of his submission. In response Mr. Nchimbi resisted the submission by all defendants in the above argued ground. He contended, it is wrong for the defendants to rely on the provisions of GN. No. 50 of 2018 to impress upon the Court that, the Solicitor General is wrongly sued in this matter, as subsection (2) of section 4 of the said GN is very categorical that, any suit brought by the Solicitor General, Deputy Attorney General or his officers shall be in the name of Attorney General in which in this case the person suing is neither the Solicitor General nor his Deputy or officer. As to the application of section 5(1),(4),(5) and (6) of the same GN. No. 50 of 2018, he contended the law mentions the Solicitor General as the person with the right to appear in Court and not the Attorney General. That being the legal position Mr. Nchimbi convincingly argued, Solicitor General cannot only appear in Court without possessing the right to of being sued hence the submission by the defendants that he is nonjuristic person is misplaced as in his opinion, the Solicitor General can sue 5 or be sue in his names. It is from that argument he submitted, this ground lacks merit and prayed the Court to so find and proceed to dismiss it as even the relied on cases by the defendants do not bind this court hence should be disregarded. In rejoinder Ms. Kondo, reiterated her submission in chief while adding in respect of the interpretation of the law establishing the office of Solicitor General that, Mr. Nchimbi was confusing between right of appearance and the locus to sue or being sued. While agreeing with him that, Solicitor General can prosecute or defend any case against the Government she differed with his argument that he can also sue or be sued. To her therefore the cited cases in support of the argument that, Solicitor General is non-juristic person are highly persuasive to this Court hence a prayer for the Court to consider them and proceed to struck out this suit. I have keenly considered the conflicting submissions by the parties and consulted the law related to or governing the Office of Solicitor General in a bid to answer parties’ point of controversy as to whether he has the right to sue or be sued in his name. The consulted law is The Office of Solicitor General (Establishment) Order, 2018 GN. No. 50 of 2018 published on 13/02/2018 in which section 2(1) and (2) establishes the Office of Solicitor General which is autonomous from the Office of Attorney General. Its functions as stated in section 4(1)(a),(b) and (c) of the same GN. No. 50 of 2018, among others are 6 to take and conduct or direct Law Officers, State Attorneys and Legal Officer to do so on civil litigation or arbitration on behalf of the Government, to prepare and institute suits, claims in subordinate courts, the High Court, the Court of Appeal and arbitration tribunals or coordinate civil litigation where Central Government, Independent department, government agencies, Local Government are suing or sued on behalf of the Government. The said section 4(1)(a),(b) and (c) of GN. No. 50 of 2018 reads: 4.-(1) The functions the Office of the Solicitor-General shall be to- (a) take and conduct civil litigation and arbitration on behalf of the Government and for that purpose, to direct Law Officers, State Attorneys and Legal Officers who conduct civil litigation or arbitration proceedings; (b) coordinate civil litigation in the courts of law and arbitral tribunals on matters to which the Central Government, independent department executive agency or local government is a party or has interest; (c) prepare and institute suits, claims in subordinate courts, the High Court, the Court of Appeal and arbitral tribunals in that behalf; It is also stated in section 4(2) of that GN. No. 50 of 2018 that, all matters instituted, taken and conducted by the Solicitor General in the course of 7 discharging the functions of his office shall be preferred in the name of Attorney General. Section 4(2) of GN. No. 50 of 2018 provides thus: (2) For the purpose of paragraph(1), all matters instituted, filed, taken and conducted in courts of law or arbitral tribunal by the Solicitor General, Deputy Solicitor General, Law Officers, State Attorney or Legal Officers shall be in the name of the Attorney General. From the above exposition of the law it is now settled law that, all civil matters by the Government or against the Government duly instituted or filed, taken and/or conducted in courts of law or arbitration tribunals by the Solicitor General or Deputy Solicitor General, Law Officer, State Attorney or Legal Officers are so handled by him in his capacity as Government Counsel (lawyer) and not as a party to the case for being instructed by the Attorney General whom all civil matters must be instituted, filed, taken and conducted in his name or against him on behalf of the Government, its Ministries, independent departments, Agencies, Local government and other institutions. In view of the above settled legal stance, I am not ready to endorse Mr. Nchimbi’s proposition that since the Solicitor General has a right to appear in court and institute or take over a case or defend it in courts of law and arbitration tribunals he cannot do so without being sued. I so do as his act of instituting, filing, taking over suits by or against the Government and conduct them in Courts of law or Arbitration Tribunals in my humble view does not entitle him 8 with the right to sue or be sued in his name as Mr. Nchimbi would want this Court to believe for being the Government counsel or lawyer only. Had the law intended to cloth him with such locus it would have unambiguously stated so since section of the 6(3) of Government proceedings Act, [Cap. 5 R.E 2019] provides categorically that all suit against the Government shall be brought against the Attorney General. Section 6(3) of Cap. 5 reads: (3) All suits against the Government shall, after the expiry of the notice be brought against the Attorney-General, and a copy of the plaint shall be served upon the Solicitor General, Government Ministry, Department or Officer that is alleged to have committed the civil wrong on which the civil suit is based. (Emphasis supplied). In this matter, since Office of the Solicitor General is a one of the established offices of the Government and going by the dictates of section 6(2) of Cap. 5, I hold when suing or be sued any claim by or against the Government must be brought against the Attorney General as the Solicitor General has no locus to sue or capacity to be sued on his name for being a non-juristic person with no legs to stand on independent of the Attorney General in the suit gainst or by the Government. Hence the case Singida Sisal Products and General Supply (supra) on the locus of non-juristic person to sue or be sued, I find is relevant in the circumstances of this case. In view of the above it was wrong for the plaintiff to sue the Solicitor General in his name and capacity, the act which renders the suit incompetent as it was also held in the case of 9 Respicius Emilian Mwijage (supra). This ground of objection disposes of this suit for being rendered incompetent and I see no reason to venture much efforts in discussing the rest of the grounds of objection. In the premises and for above mentioned findings this Court is satisfied that, the 1st preliminary point of objection raised by the 1st, 2nd and 3rd defendants is meritorious hence sustained. I therefore proceed to stuck out the plaintiff’s suit for being incompetent. Given the circumstances of the case, each party to bear own costs. Order accordingly. Dated at Dodoma this 06th of September, 2024. E. E. KAKOLAKI JUGDE 06/09/2024. Court: The Ruling has been delivered at Dodoma today on 06th day of September, 2024, in the presence of the plaintiff in person, Mr. Issaya Nchimbi, advocate for the Plaintiff, Ms. Kumbukeni Kondo and Ms. Lela Salum, State Attorneys for the 1st to 3rd Defendant, Mr. Denis Odhiambo, advocate for the 4th and 5th defendants, the 4th and 5th defendants in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 10 06/09/2024. 11