NYAMETE RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA MISCELLANEOUS LAND APPLICATION NO. 32799 OF 2024 (Arising from Land Case No. 32630 of 2024 in the High Court of Tanzania (Mwanza Sub-Registry at Mwanza) HENRY MARO NYAMETE (SUING AS A NEXT FRIEND OF ALLAN MFAUME NYAMETE).………………………APPLICANT VERSUS ILEMELA MUNICIPAL COUNCIL…………………………………1ST RESPONDENT MINISTER FOR LANDS, HOUSING AND HUMAN SETTLEMENTS DEVELOPMENT……………………….2ND RESPONDENT THE REGISTERED TRUSTEES OF ARCHDIOCESE MWANZA…………………………………………3RD RESPONDENT THE ATTORNEY GENERAL…………………………………………4TH RESPONDENT RULING 26th & 28th February, 2025 KAMANA, J. This is a ruling on the preliminary objections raised by the third defendant. The applicant filed this application, seeking an order declaring him the lawful owner of Plot No. 72 Block 8 Nyamhongolo, Ilemela in the Mwanza Region. 1 In its reply, the third respondent raised three preliminary objections. One, the application was filed prematurely as there was no main case which is pending before this court; Two, the application is incompetent as the applicant did not issue a statutory notice contrary to section 6 of the Government Proceedings Act, Cap. 5 [R.E 2019]; and Three, the Affidavit is fatally defective for want of proper verification clause as per the provisions of Order VI Rule 15 of the Civil Procedure Code Cap 33 [RE 2019]. After my off-record discussion with Mr. Kisigiro, learned Counsel for the third defendant, the latter abandoned the first preliminary objection. The abandonment ensued after he was satisfied that at the time when this application was filed, Land Case No. 32630 of 2024 under which this application was filed, was already instituted. Submitting the second preliminary objection, Mr. Kisigiro contended that the applicant was incompetent before the court as it contravenes section 6(2) of the Government Proceedings Act, Cap. 6 [RE.2019]. The learned Counsel amplified that since the first, second and fourth respondents are Government institutions, the applicant had the duty to expressly state that the said respondents were served with the statutory notice of ninety days before the institution of the 2 application at hand. In the absence of that, Mr. Kisigiro held the view that the application was incompetent. On the third preliminary objection, Mr. Kisigiro contended that the affidavit that supports the application is defective as the verification clause was not dated. The learned Counsel contended that according to Order VI Rule 15(3) of the Code, a verification clause must be dated. Mr. Felician Daniel, learned State Attorney representing the first, second and fourth respondents opted not to submit. In response to the second preliminary objection, Mr. Kassim Gilla, learned Counsel for the applicant, argued that the third respondent was served with the plaint that initiated the main suit. He added that the said plaint annexed various annexures including the statutory notice of ninety days that was issued to the Government institutions that are parties to this application. He argued further that the Government Proceedings Act is about suits and not applications. He held the view that there are no requirements that the notice must be mentioned in the application. On the third preliminary objection, Mr. Gilla contended that Order VI Rule 15 provides for the verification of pleadings that do not comprise the affidavit. He expounded that according to Order VI Rule 1 of the Code, an affidavit is not part of the pleadings. Mr. Gilla argued further that since Mr. Kisigiro did not submit the affidavit which he claims to be 3 dateless in its verification clause, it is not easy for this court to determine the same. Rejoining, Mr. Kisigiro reiterated his submissions in chief. Starting with the first preliminary objection, it is apposite to put clearly that the same was premised on section 6(2) of the Government Proceedings Act. Section 6(2) is reproduced in full for the sake of putting matters into context. It states as follows: ‘(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. ‘ The understanding by this court is that a claimant against the Government institution must issue a ninety-day notice to the respective institution. The said notice which ought to be issued before the filing of the suit must also be copied to the Attorney General and the Solicitor General. Further, it must lay down the cause of action. Mr. Kisigiro and Mr. Gilla sharply differed as to whether this application is a suit or otherwise. While Mr. Kisigiro held the view that 4 this application is a suit and hence is within the ambits of section 6(2), Mr. Gilla had a different view. It is very unfortunate that neither the Government Proceedings Act which specifically regulates civil proceedings by or against the Government nor the Code which generally governs civil proceedings interpret the word “suit”. However, in my view, the word ‘suit” connotes legal proceedings in which parties assert their rights with a view to having final remedies against each other. This means that a legal proceeding in which parties are seeking interlocutory orders against each other is not a suit. In this, I am inspired by the position of the Court of Appeal in the case of Tanzania Motor Services Ltd and Another v. Mehar Singh t/a Thaker Singh, Civil Appeal No. 115 of 2006. In the cited case, the Court of Appeal appreciated the fact that the term “suit” is comprehensive and entails the final determination of the rights of the parties to the suit. It had this to state: ‘We have also sought guidance from the Law Lexicon, The Encyclopaedic & Commercial Dictionary, 2002 (Reprint) at page 1831 where it is stated - “The term "suit" is a very comprehensive one 5 and is said to apply to any proceeding in a Court of Justice by which an individual pursues a remedy which the law affords him. The modes of proceedings may be various; but if the right is litigated between the parties in the Court of Justice the proceeding in (sic) is a suit". It is evident that the word "suit" is a word of comprehensive import and we subscribe to the view that the appellant's petition falls within the ambit of the word "suit". This, however is not all. The appellant has to show that the decision had the effect of finally determining the suit.’ (Emphasis Added). Based on the above excerpt, it is my opinion that the determinant factor for any proceeding to be considered a suit is the determination of the dispute to its finality. This entails that if the sought orders determine the dispute to its finality, the proceedings initiated whether by a plaint, an application or a petition is a suit. The Supreme Court of India had the time to discuss what constitutes a suit in the case of Ethiopian Airlines v. Ganesh Narain Saboo, AIR 2011 SUPREME COURT 3495 where it stated: 6 ‘In that sense, the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of the right vested in him in law.’ The Supreme Court went on: ‘In the same vein, the U.S. Supreme Court has read the term "suit" broadly, finding that a "suit" is "any proceeding in a court of justice by which a person pursues therein that remedy which the law affords him," Upshur County v. Rich, 135 US 467 (1890). Likewise, "the modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.’ Reverting to the matter at hand, no right is litigated by the parties. What is before this court is an application for temporary orders which in essence do not determine the rights of the parties. That being the case, this application is not the suit and hence, the provisions of section 6(2) of the Government Proceedings Act do not apply. It should be noted that as a general rule, temporary injunctions or declaratory orders are only issued when there is a suit before the court. This is per Order XXXVII Rule 1 of the Code. So far as this application is concerned, it is not in dispute that the same was premised on Land Case 7 No. 32630 of 2024 which is pending before this court. My perusal of the said case reveals that the statutory notice was issued to the relevant government institutions. For the sake of argument, it would be very absurd for this court to refuse an application of this sort against the government institution for want of the statutory notice while the suit under which the application was preferred complied with the requirements of section 6(2) of the Government Proceedings Act. However, this application would be incompetent before this court if there was no compliance with section 6(2) as generally, an application of this kind must conform to the provisions of Order XXXVII Rule 1 of the Code. Given that, the second preliminary objection crumbles. Coming to the third preliminary objection, I hasten to state that only Mr. Kisigiro is aware of the fact that the verification clause was not dated. I have perused the electronic Case Management System (eCMS) and found that the verification clause was verified on 23rd December, 2024. The ground fails. For those reasons, the preliminary objections are overruled. Since Mr. Gilla did not press for costs, I order none. DATED at MWANZA this 28th February, 2025. 8 KS KAMANA JUDGE 9