20090908 TZHC Dar es Salaam

N THE HIGH COURT OF TANZANIA AT DAR ES SALAAM . MISC CIVIL APPLICATION NO. 25 OF 2009. KLEB COMPANY LTD ............................ :........... APPLICANT VERSUS THE EXECUTIVE DIRECTOR KIBAHA DISTRICT COUNCIL ................................... .RESPONDENT Date of last Order 8 / 09 / 09 Date of Ruling 5 / 10 / 09 RULING,· MWARIJA, J. This ruling 1s 1n respect of the· Preliminary objection · ~ - _ raisedJ~y Mr. Kibamha for .the respondent. The objection is·to the effect that the application h~s been· 0rought . i pte'1i~ because the applicant has not complied with S.106 of the 1·".. , '.~) Local Government (Urban Authorities) Act Cap. 288 RE.2002. (3) the provision requires that a one month's notice be issueJ.. before .~ the application is commenced. . Mr.Kibamba submitted that the respondent was only served with a notice of intention - .- ~- ~ to . su/e on 20/5/2009 and the application was filed on 27/5/2009 within a week from the date of notice. .,, • . Responding to the submissions by Mr. · Kibamba, Mr.Msemwa, learned counsel for the applicant submitted ~hat . what has been field in court is an application for review not a I \~ . suit. He said that such an application what is required is that A . the same must be filed within six months from the date when the cause of action arose, the condition which has been complied with. In deciding the preliminary objection, the issue to be answered is whether the application at hand is a suit or not. The nature of an application for orders of certiorari in the present matter is one intended for judicial review of administrative decision or. action. Where the decision or an act compla~ned ·of.is found to have been made illegally, it may· be quashed and an order of mandamus or prohibition may issue to ·require a public official to do or abstain from such act( s). The application has been made under Part VII of the Law Reform (Fatal Accidents and Miscellaneous Previsions) Act. Is the application which has been made under the said Act a suit? 2 There are authorities which decided to the effect that· applications inade under some Acts are suits. In the case of The Hon Attorney General V.Rev Christopher .Mtikila., Civil Appeal No. 20 of 2007 (CA) (DSM) (Unreported)· it was held . that applications made under the Basic Rights and Duties Enforcement Act, Cap. 3 RE. 2002 are suits. The Court held as follows; "Suits are proceedings of a civil nature in a court of law involving. two or more . parties on a dispute or claim which needs to be adjudicated updn to determine or declare the right of the disputing parties". In Tanzania Motor Service's & fi¥ir v.Mehar Sigh t/a Thaker Singh, Civil Appeal No. 115 of 2005, relying inter alia'. ~~~~\:-~ciVl on the defamation of the word "Suit" in the Encyclopedic & Commercial Dictionary, 2002 (reprint) held that a petition under the Arbitration Act is a suit. The definition of a suit at p. 1831 of that dictionary is as follows;: "The term suit is a very comprehensive one and is said to apply to any 3 proceedings in-a court ofjustice 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 . IS o. court of justice the proceeding[s] suit.,; . "' Having considered the submission by the counsel for the ~ parties and above stated authorities,- I decline to agree with "' Mr. :Kibamba that the present application is a suit. From the considered authorities, in a suit the parties litigate over a right . .In an application for certiorari, as"'submitted by Mr.· Msemwa, ... s- the proceeding con~erns a review of a decision which has already been made by a public official or authority. If that decision is found to have been made illegally, the'· same. deserves to be quashed and through an order of mandamus, the officials or authorities may be ordered to do or abstain from doing a certain act. On the basis of the above stated reasons, I find that s.106 of the Local Government (Ur9an Authorities) Act does not apply to applications for certiorari, mandamus and ' 4 prohibitions. · ·. The wording of the said section supports that view, subsection (2)of that provision states as follows; "(2) The notice served under the section C..O'-\..\ S,{L shall state the eou-rse of action the name and place of abode of the intending plaintiff and the reliefs which he claims. ® (Emphasis ad&ed<ad) ". It can be deduced from that subsection that an application for•.,; certiorari, mandamus and prohibition is excluded from requirement of a notice. Similar position was considered in the case of Northern Tanzania Farmers Cooperative Society Ltd v. W.H. Shelukindo {1978) TLR n. 36. Considering whether an application for certiorari is civil proceedings falling under the Government Proceedings Act hence requiring prior consent (J of the Attorney General like in other suits, Mwesiumo, J (as he than was) held as follows; "An application for orders of certiorari against the government officerk decision 0 on matters of administrative law is not 'civil Proceedings' as stipulated [in] the 5 Government Proceedings Act for which prior consent of the Attorney General should. be sought". For the foregoing tl)-erefore I find that the preliminary objection does not have merit. Accordingly the same in hereby overruled. Costs in the cause. ~- . ,."' r__ )! A.G~ARIJA JUDGE 5/10/2009 6