19950301 TZHC Dar es Salaam

·• IN THE HIGH COURT OF TANZANIA AT DAR ES SALA.AM CIVIL APPEAL NO. 40 OP. 1993 DISTRICT C01T.JCIL t e f t • - I t O • e O • • t AJ?PLICANT versus PHILIP F. S. HTiiJ\i"DUJI •••••••••• RESPONDENT ·('.'. . The respor/ient Philip Mpanduje was empioyed by the Xilosa Districi Development Corporation as Genera1. Manager &nd·he filed a suit in the district court for teI'minaJ benel'. . _ f'J. is• a.gains t ~he. app.ellant., ..the Kil.oaa Di:a.tri.c.t. Executi:v.e.. · · ·...... '. . 7'r.,9tor. Th'.., district court awarded the respondent a to~et -; _. . of shs.2,294 1 :17/15. This appeal is against the deciaion.d(,' _J the district -~cmr7i ~ · Mr. G., ,J. i'•ibczi learned counsel for the appellant argtted· · · several. grn J.nds of e,;)pea1. I shall deal with the last .grow;_,.d · · ·: · ·.. · ' ·. . . . . . ot a.ppealt JJeai·ned .)ounsel argued that the suit waa ag!\Wf ,' : :-• e. J.otal go,terru:10nt authority 2,nd notic~ should ha_ve been . given, of intention to suer as ;)rovided. by law. No sut.h 1 , , ►.,, ' ( not11e waG given, and .Mr. Mbezi ureed ·!_;he •· . iourt to dismiss •. the suit. Mr. Kaganda, the Se~ior Labour officer who: represented the respondent in the c.istriot court and at· 1;):l.e hearing of -this appealt submitted that the required·_ nci'ijte was given and that _the appellant admitted at. the h'iai that such notice was given. It would seem from the pleadings that the suit was filed against the Kilosa District Councilt and the .Di. s·a·. ·.. Exeeutive Director appeared as an o!ficer of the Distt C~!1l to answer the olaio.s against the Council. '._ · ,- ·•,_ .· The rt,q ..1.iroment for notice is_ provided in section,,. 1 ' ( of thr-: Lc,cal Gc:vernment (District Authorities) J.e1 1 7 o.f 1982 which provides as under: 11 No suit shall be coIDL1enced against a local gove:rnment _autho.ri ty until one r:1onth at least after written Yl:;tice of intention to commence .... : '•. 'tine su:i. t f has 1)ccm s_erved. ui:ion the authority by the intendillg pJ.~intiff or nis agen·t;~!!. 2 It is -manda.tory. for. n.o.tice. to be s_erv_e¢l_ µpon_ a local , . government authority of intention to sue. The respondent in this appeal was the plaintiff and he was required to serve notice on th, Kilosa District Council of his intention to sue, There is 1.0 dispute that a di~trict council is a 101a!. government a1.thority as· defined by section 2 of the · _Lo1a.l Gover?ltlent (: 1istrict Authorities) Act_ which defines_ a lotal governnent ~uthority as a district authority or an urban authority. I. district authority is defined as a d,striet council,,· township authority or a village council. When the Respond.e11 ; sued the appellant, he knew he was suing a local governmer: authority and he was required to give notiee of intentjr~ to sue at least one month before •·- icmmeneement of .: .e suite Although Mr, Kagancla a1legod that the Respondent adUQ,tted being f 1rved with the required nctice, there is no proof of that_ allegation in the record of the proceed- il1gs of the disJrict court. The alleged notice or a copy of it was not t,ndered or annexed to the plaint. I find that notice of intention to sue was not given as required /'. by law. That ,. 3ufficient to dispose of this appeal. The suit was not prope:r:ly before the trial court. The district court ' erred in law :.n hearing the suit while the notice required had not been given. I do not consider it necessary to ·on.sider the ether grounds of appeal. The appe~l is allowed. Tho decision of the district .. ruri is set aside. The reE~:cr.i.dcmt shall have ccsts. W. J. J\'lAINA JUDGE . Al Dar es Salaam ~ Ma.rM1 .995, ·. .A.ppel!a.nt absent Mr, Kaganda for the Respondent. • ...