RULING KEVIN SHONGA VS LUCAS NGONYANI AND 13 OTHERS

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY

AT SONGEA LAND CASE NO. 5545 OF 2024 KELVIN SHONGA (The Administrator of the Estate of late JANUARY MGUBU SHONGA)………………………………………………………………………PLAINTIFF

VERSUS LUKAS NGONYANI………………………………….………………..1ST DEFENDANT GERMAN SOKO………………………………………………….……..2ND DEFENDANT SIPILIANO MKIMBIZI…………………………………...…………..3RD DEFENDANT JOSEPH BRUNO MAPUNDA…………………………………..……..4TH DEFENDANT SAIDI MITI……………………………………………………….……..5TH DEFENDANT NESI NYONI……………………………………………..……………..6TH DEFENDANT STEVEN NGONYANI…………………………………………....……..7TH DEFENDANT ABDALLAH NJOVU……………………………………..……………..8TH DEFENDANT REGINA MILANZI……………………………………...……………..9TH DEFENDANT BOSINESI……………………………………………………..…..…..10TH DEFENDANT YAKOBO MBEYU……………………………………………………..11TH DEFENDANT KWANGUTI……………………………………………….….………..12TH DEFENDANT MBINGAMHALULE VILLAGE COUNCIL……………….………..13TH DEFENDANT 1 THE ATTORNEY GENERAL……..…………………………………..14TH DEFENDANT

RULING 7th & 7th October, 2024. KAWISHE, J.: This is a ruling in respect of the preliminary objections raised by the 13th and 14th defendants’ learned State Attorney against the plaint filed in this court. The plaintiff filed a cause of action against the defendants jointly and severally for the recovery of land measured 200 acres with the value of Shillings 60,000,000/-, the land situated at Mbingamhalule Village at Kiloleni Area within Songea District, bordered by Sikiliza Nyoni at North, Boramungu at West, Mikalu Mapunda at South and Lazarus Ngonyani at East. The plaintiff prayed to this court to declare that the land in dispute is the property of January Shonga, that the defendants are liable for the tort of trespass and payment of general damages. After being served with the plaint while filing their written statements of defence, the 13th and 14th defendants filed their joint written statement of defence accompanied with the following preliminary objections that: (i) The suit is bad in law for failure to comply with section 6(2) of the 2 Government Proceedings Act, Cap. 5 R.E 2019, and section 26 (1) of the Local Government (District Authorities) Act, Cap. 287 R.E 2002. (ii) The suit is bad in law for failure to issue a competent statutory notice of intention to sue. As a matter of principle, when preliminary objections are raised, they must be determined prior to

proceeding with the main suit. Being guided with that principle, this court had to dispose of the objections raised. When the matter was called for hearing, the 13th and 14th defendants were represented by Mr. Ibrahim Kabelwa assisted by Mr. Hamidu Hussein both learned State Attorneys. The plaintiff enjoyed the services of Mr. Dickson Ndunguru assisted by Haji Shaban learned counsel. The 1st, 3rd, 5th, 6th, 7th, 8th and 11th defendants had no legal representation. They chose to adopt the learned State Attorneys submission. Submitting on the first ground of objection, that the suit is bad in law for failure to comply with section 6(2) of the Government Proceedings Act (Cap. 5, R.E 2019) (the Act) and section 26(1) of the Local Government (District Authorities) Act (Cap 287 R.E 2002), Mr. Kabelwa averred that, section 6(2) of the Act states that any person who intends to sue the government including governmental departments, ministries and 3 institutions must prepare and serve a 90 days’ notice to the institution concerned. He added that after serving the notice the claimant has to copy the Attorney General and the Solicitor General with such notice. The learned State Attorney insisted that the intention of the notice among other issues is to allow the government to see if it can settle the matter administratively. Mr. Kabelwa, contended that, on the plaint filed to this court

which is attached with the notice, there is no evidence that the 13th and 14th defendants were served in accordance with the provisions of the Act. The learned Attorney claimed that the notice was only served to the Solicitor General. Thus, in his view, the plaintiff failed to meet the mandatory requirements of section 6(2) of the Government Proceedings Act (Cap. 5 R.E 2019). He prayed the suit to be struck out for failure of service as required by the Act. Mr. Kabelwa decided to abandon the claim on section 26(1) of the Local Government (District Authorities) Act (Cap 287 R.E 2002). Reverting to the second ground of preliminary objection, that the suit is bad in law for failure to issue a competent statutory notice of intention to 4 sue Mr. Kabelwa avowed that, the base of this objection as stated earlier, is that, section 6(2) of the Act requires that, a person intending to sue the government or a department of the government to notify the same on the type of claim. Mr. Kabelwa claimed that, the notice attached to the plaint differs from the plaint filed in this court. He observed that, the notice shows the plaintiff’s intention is to sue for recovery of 299 acres. That the notice dated 23rd May, 2023 was received by the Office of the Solicitor General on 25th May, 2023. Whereof, in the plaint, the plaintiff stated that, he is suing the government for the recovery of 200

acres as shown at paragraph 5 of the plaint. The learned State Attorney contended that, the plaintiff is claiming 200 acres and he never notified the government on such. That as result, the plaintiff contravened section 6(2) of the Act. He insisted that, with such shortfalls, the notice is not a competent statutory notice. He maintained that, the intention of the law to require the claimant to notify the government is to see if the matter can be settled before going to court. The learned State Attorney emphasized that the government was notified on a claim of 299 acres and was prepared to settle the claim. Nonetheless, before the court the plaint is for 200 acres. That the notice differs from the plaint significantly, as a result renders the suit 5 incompetent. It was the learned State Attorney’s prayer that the court struck out the suit for contravening section 6(2) of the Act. In bolstering his argument, he referred to the case of Rabbo Joachim Masumbuko Thobias vs. The Tanzania National Road Agency & 2 Others (Misc. Land Application No. 376 of 2023) [2024] TZHC Land D 65 (22 February 2024) at page 7 where this court stated that, issuance of the 90 days’ notice is a statutory requirement, it has to be adhered to before suing the government. That failure to issue the notice, denies the government an opportunity to deal with the dispute administratively in order to

avoid litigation. That, by so doing it benefits both sides to the claim. That the suit was struck out for failure to meet the requirements of section 6(2) of the Act. He prayed that this court though not bound by its decision rather, to be persuaded by the decision in the case cited. He prayed the plaint to be struck out with costs. Mr. Ndunguru, the plaintiff’s learned advocate, having satisfied himself of the shortfalls regarding the notice and its service, he conceded to the preliminary objections with an intention to file a fresh plaint in accordance with the law. 6 Having heard the submission made by the learned State Attorney, which was conceded by the plaintiff’s learned counsel, this court find it to be an academic exercise to labour on the ruling extensively. The learned State Attorney claimed that there is no evidence that the 13th and 14th defendants were served with the statutory notice as required by section 6(2) of the Government Proceedings Act (Cap. 5, R.E 2019). Also, the difference between the notice and the plaint on the size of the disputed land affected the suit significantly. The notice served shows that the claim is for recovery of 299 acres while, the plaint filed in court shows that it is a claim for recovery of 200 acres. As claimed by the learned State attorney, this difference denied the government a golden opportunity to weigh and settle the matter

administratively. Such difference renders the notice incompetent as claimed by the learned State Attorney and conceded by the plaintiff’s learned counsel. Since, the plaintiff failed to meet the statutory requirement in the service the 90 days’ notice and the difference on the subject matter claimed, the notice is incompetent. In the upshot, the notice is incompetent which consequently, affects the plaint. The failure to abide to statutory requirements like the one at hand, its remedy is to struck out the plaint as I hereby struck out the 7 same. The plaintiff’s learned counsel conceded to the objections, and the suit may be refiled afresh. That being the case, I make no orders as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 7th day of October, 2024. E. L. KAWISHE

JUDGE COURT: This ruling is delivered in the presence of Mr. Ibrahim Kabelwa and Mr. Hussein Hamidu learned State Attorneys and in the presence of Mr. Dickson Ndunguru and Mr. Haji Shaban plaintiff’s learned counsel, and in the presence of the plaintiff and in the presence of the 1st, 3rd, 5th, 6th, 7th, 8th and 11th defendants. E. L. KAWISHE

JUDGE 7/10/2024 8 9