20051020 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL CASE NO. 4 OF 2001 LOIRUK P. ILIMOLLELIAN ............... PLAINTIFF vs THE ATTORNEY GENERAL. ............. DEFENDANT RULING SHEIKH, J. The plaintiff, LOIRUK P. ILMOLLELIAN has brought an action for damages for wrongful suspension against the defendant. It is alleged that the plaintiff was employed as a teacher by the government of the United Republic of Tanzania since 1961, and was regularly promoted. In 1983 he had reached the status of Education Officer. On 8/4/1983 the plaintiff was suspended on half-pay until September, 1991 when he was reinstated. The plaintiff claims that the act of suspending him without charging him was unlawful. The defendant has resisted this suit in its written statement of defence. On 18/6/2002 the plaintiff filed Misc. Civil Application No. 73 of 2002 seeking leave to amend the plaint by adding a specific claim of interest. The defendant/respondent has besides filing a counter affidavit, taken objection to the application aforesaid by filing a Notice of Preliminary Objection, on the following ground:- "That the applicant's application is incompetent in law, for being based on Civil Case No. 4 of 2001 which this Honourable High Court Registry does not have jurisdiction on which to entertain as it contravenes the provision of section 6 (4) of the Government Proceedings Act No. 16 of 1967 as amended from time to time." It is the contention of Mr. Kaishozi, Learned State Attorney, that the suit and/or the application have been lodged in the wrong High Court Registry. Mr. Kaishozi has submitted that both the suit and this application - Misc. Civil Application No. 73 of 2002 ought to have been filed in the District Registry within which the cause of action arose. In his support he cited section 6 ( 4) of the Government proceedings Act No. 16 of 1967 which provides:- "6 ( 4) All suits against the Government shall be instituted in the High Court by delivering a claim in the Registry of the High Court within the area where the claim arose." 2 It was contended that paragraphs 3 and 4 of the plaint disclose that the cause of action arose in Singida Region (where the plaintiff was interdicted) or in Morogoro Region (where the police message informing the plaintiff of his suspension from duty had come from). It was further argued that as in the main suit the plaintiff is claiming damages for unlawful indictment and suspension by the Regional Development Director of Singida who was acting on a "police message" from Morogoro Region, then the cause of action arose either in Singida Region or Morogoro Region and therefore both the main suit and this application were wrongly instituted in the Arusha District Registry of the High Court. According to the Learned State Attorney these proceedings ought to have been instituted either in the District Registry at Dar es Salaam or the District Registry at Dodoma. In his support Mr. Kaishozi cited the case of MACMILLAN S. MNENEY .V. THE ATTORNEY GENERAL AND 2 OTHERS, MISC. CIVIL CAUSE No. 91 of 2001, HCT (DSM). Mr. Mahatane who then acted for the plaintiff responded by embarking on giving what he called "a brief history of the matter". He basically submitted that the plaintiff was stationed at Ulanga District in Morogoro Region, then transferred to Singida Region where he was interdicted. Upon his being reinstated as District Education Officer (after investigation was carried out and the interdiction was lifted) he was transferred to Kiteto District in Arusha Region. It was argued that as it was while the plaintiff was in Arusha 3 / that the defendant informed the plaintiff that it (the defendant) was dealing with his claim for compensation then the cause of action could rightly be said to have arisen in any one of the three regions, that is, Morogoro Singida and Arusha. It was contended on behalf of the plaintiff that as the claims which are the subject matter of the suit were first raised by the defendant while the plaintiff was resident in Arusha region, then for purposes of Rule 7 of the High Court Registries Rules 1984 (G.N. No. 23 of 1983) the cause of action arose in Arusha and the High Court of Arusha is the most fitting place to institute this suit. It was further argued that in any case the cause of action overlapped in several areas, where each may constitute an area where the cause of action arose. He quoted the following provision of Section 18 (c) of the Civil Procedure Code Act 1966. "the suit may be instituted in a court where the " cause of action wholly or in part, arises." I have carefully considered the respective submissions on behalf of the parties. According to the plaint and the annexures thereto the plaintiff was on 5/4/83 served with a police message informing him that he was being interdicted, and then on 8/4/83 suspended on half pay by a letter addressed to him by the Regional Development Director of Singida Region. In the letter the plaintiff was informed that he was being suspended for alleged misconduct while he was stationed in Morogoro Region as Education Officer of Mahenge District. With respect I cannot agree with the position 4 ' ' I / taken by the plaintiff. Clearly the entire dispute and the cause of action arose in Singida where the plaintiff was informed of his suspension on half pay. It cannot be said that the claim arose either in Morogoro (where the alleged misconduct was committed) or Arusha where the defendant allegedly first raised the question of terminal benefits and compensation. So the claim in this matter, to use the specific language in 5.6 (4) of. the Government Proceedings Act, arose at Singida. In the light of the clear and unambiguous provisions of the section being relied on i.e. S. 6 ( 4) of the Government Proceedings Act, I am satisfied that both the main suit - Civil Case No. 4 of 2001 as well as this application were improperly filed in this High Court Registry. Both proceedings ought to have been filed in the Dodoma High Court Registry, as the claim in the suit arose in Singida which is within the area where the cause of action arose. With respect I agree entirely. with the decision of the Macmillan Mneney case (supra) which held-: '"It is beyond all rational controversy that proceedings against the Government must be instituted in the area of the Registry of the High Court where the cause of action arose." The above being the position these proceedings that is both Civil Case No. 4 of 2001 and Misc. Civil Application No. 73 of 2002 have been wrongly instituted in the District Registry at Arusha. This application is accordingly hereby struck out with costs. For the same 5 reason the main suit being itself incompetent is for the avoidance of doubts also hereby struck out with costs. The plaintiff is at liberty if he so desires to pursue his claim by filing it in the High Court District Registry at Dodoma. t-·~-o~- R. SHEIKH JUDGE 13/10/2005 Ruling delivered this 20 th day of October, 2005 in the presence of the plaintiff and in the presence Mr. Hashim Ngole, Learned State Attorney for the respondent, and Mariam Bench Clerk. ""'. -·· ----- ··- . -,. ,·. ... R_ R. SHEIKH JUDGE 20/10/2005 RS/hjm 6