kleb company ltd vs executive director kibaha district council 2009 tzhc 115 5 october 2009

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 is in respect of the Preliminary objection raised by Mr. Kibamba for the respondent. The objection is to the effect that the application has been brought prel^Eam^y ^ because the applicant has not complied with- S. 106 of the Local Government (Urban Authorities) Act Cap. 288 RE.2002. the provision requires that a one month's notice be issue before the application is commenced. Mr.Kibamba submitted that the respondent was only served with a notice of intention S4-V>-*- to 'Sure 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 that what has been field in court is an application for review not a suit. He said that such an application what is required is that 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 complained 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 made 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 o f a civil nature in a court o f law involving two or more parties on a dispute or claim which needs to be adjudicated upon to determine or declare the right o f the disputing parties”. In Tanzania Motor Services & anr v.Mehar Sigh t/a Thaker Singh, Civil Appeal No. 115 of 2005, relying inter alia \ v on the defauyi^rtion of the word “Suit” in the Encyclopedic & Commercial Dictionaiy, 2002 (reprint) held that a petition A 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 proceedings in a court o f justice by which an individual pursues a remedy which the law' -affords him. The modes of proceedings may he various, but' i f the right is litigated between the parties in the court o f 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, the proceeding concerns 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 (Urban Authorities) Act does not apply to applications for certiorari, mandamus and 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 shall state the course o f action the name and place o f abode o f the intending plaintiff and the reliefs which he claims. (Emphasis acceded) 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 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 officers decision on matters of administrative law is not ‘civil Proceedings’ as stipulated [in] the Government Proceedings Act for which prior consent of the Attorney General should be sought”. For the foregoing therefore I find that the preliminary objection does not have merit. Accordingly the same in hereby overruled. Costs in the cause. JUDGE 5/10/2009 6