mamu yasson mamu ta best cleankuku bora food processors vs hussein togolo and 3 others 2021 tzhclandd 6702 11 october 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 125 OF 2020 MAMU YASSON MAMU T/A <^x BEST CLEAN KUKU BORA FOOD PROCESSORS PLAINTIFF VERSUS X''\ K. V 4, \\ , HUSSEIN TOGOLO l^T DEFENDANT TATU NYAMONGA .....2'^'' DEFENDANT RAMADHANI MAPUNDA 3^° DEFENDANT VODP COOPERATIVE SOCIETY iV» 4™ DEFENDANT Date ofLast 0rder:3/9f2021 Date ofRuling:11/10/20^1 RULING MANGO,J. The Plaintiff^^Cd keeping and slaughtering business at Chanika area, Zingiziwa Ward, Ilala Dar es salaam. She instituted this case against the defendants alleging that the first, second and third defendants are illegally trespassing into the suit premises with intent to evict the Plaintiff, demolish the premises and consequently alienating the plaintiff's trading properties and infrastructure. She prayed for the following orders: - i. Permanent and perpetual injunction restraining the Defendants, assignees, workmen, their tenants or their agents from interfering with the plaintiff's peaceful enjoyment of the suit premises; ii. Payment of Tshs 320,000,000/- being specific damages for the amount incurred for building and renovation for the poultry industry equipment; ill. Payment of the mesne profit for unlawfully occupying the demised premises leased by the Plaintiff business at the rate of Tshs. 600,000/- per month from the date of demolition to the final disposal of the suit; iv. Payment of Tshs. 63,070,000/- being the value of machineries, stock, documents destroyed and confiscated from the Plaintiff; V. Payment of loss of Gross profit to the Plaintiff at the rate of projected profit of Tshs 0 day from the date of demolition to the date of final determination of the suit. vi. Costs of the suit; and vii. Payment of General damages. In their written statement of defence the first, second and third defendant denied most of the Plaintiff's claims and raised a preliminary objection on point of law containing the following points: i. That the Plaintiff has no cause of action against the first, second and third defendants for want of suing the proper party; ii. The suit is in competent for contravening the mandatory provisions of section 33(l)(a) of the Local Government (Urban Authorities) Act No. 1 of 2020[Cap. 288 R. E. 2002]. iii. The suit is incompetent for contravening section 25(a) of the Written laws(Miscellaneous Amendments Act), 2020. iv. That the suit is an abuse of Court Process; V. That the suit violates the mandatory provi^ons of Order VII ''s \ X. ■ V Rulel(f) of the Civil Procedure Code;(Cap 33 R.^E. 2019). \\ ' ' ■ -v. The Preliminary objection was heard ex-parte follovyihgmon^-ajDpearance of \^\ \'N "'N, the Plaintiff and his advocates for two,consecutive^dates when the matter was scheduled for hearing. During he&ring>the'^Defehdants' counsel Mr. Joseph Sang'udi dropped ,.t^ \fourth, fifth_.and sixth points of objection. He submitted ohl^on the fifet'and second points of objection. \ I / \ \:K Submitting on the first \ pbiht,of-6bjectipn,-the y:'N learned advocate argued that, 'the Plaint / does \ hotvdisclose any,cause -.y of action against the first, second and third Def^ndaht^HHe referred this Court to paragraph 5, 6, 7 and 8,of^be Plamf which^contain^facts constituting the cause of action and argued; that the/sartie ^do not disclose any cause of action against the defendants V V He explained'that I I paragraph 5 of the Plaint concerns a notice of demolition^oL-the structures constructed in the suit land. The notice indicates that it^as issued by the Ward Executive Officer of Zingiziwa ward and not the defendants. Paragraph 6 indicates that the Plaintiff's demand notice was addressed to Ilala Municipal Counsel. Paragraph 10 of the plaint indicates that the defendants are employees of the Ilala Municipal Council and they were implementing the work assigned to them by their employer. He argued further that, any destructions alleged to have caused by the Defendants were caused in the course of implementation of the duties assigned to the Defendants by their employer. Thus, the Plaintiff has no cause of action against the defendants, his cause of action, if any, should be pursued against Ilala Municipal Council. On the second limb of objection, the Defendants Counsel argued that, the Plaintiff has contravened section 33(1) of the Local Government (Urban Authorities Act) No. 1 of 2021 which requires the Plaintiff to issue 90 days' notice of intention to sue an urban Authority. IdaBrgued^ that, the notice needs to be served to the releyant authority.rand the Attorney General. To support his argumente^. he cited the case of ABDALLAH OMARl NDOGONDOGO AND.OTH|RS yERSUS SOAP AND ALLIED INDUSTRY AND OTHERS^ Land Case; No. 2020 in which my brother, Hon. Mgeta, J. held that suing a Local Government authority without joining the Attorney General is fatal. The Defendants counsel prayed that the preliminary objection be Sustained with costs. I agree with the counsel for the first, second and third defendants that, before instituting a suit against Governmen authorities, the Plaintiff need to issue a 90 days statutory notice to the relevant authority and serve the same the Attorney ,General and the Solicitor General. And that, the Attorney General must be included as a necessary party to all civil suits against Government institutions. Such conditions for instituting a suit against a government institution are expressly provided under section 6(2) and 6(3) of the Governments Proceedings Act, [Cap. 5 R.E 2019]. However, I find the second limb of objection to be irrelevant to this case as the suit before me does not include any government institution and there is no prayer that has been made to include any government institution in this suit. On the first point of objection that the Plaint does not disclose any cause of action against the first, second and third defendant I agree with the Defendant's advocate that, the law. Order VII Rule 5 of the Civil Procedure Code,[33 R.E 2019] requires the Plaint to show that-the defendant is liable to be called upon to answer the Plaintiffs demands in other words to show cause of action. The term cause of action has been defined in a nunjber of cases including the case of STANBIG, FINANCE- TANZANIA LTD VERSUS GIUSEPPE TRUPIA AND CHlAl^ MALAVASI [2002] TLR 221 where cause of action was defined to mean facts which gives a person a right to judicial redress or relief against another as found in the Plaint and its annexures. Applying the legal requirements to the facts in this suit, I find the Plaint to have failed tOyestablished any cause of action against the first, secondhand third befendan|s,- In holding so, I considered all paragraphs of the Plaint that contains f^cts establishing the cause of action in this suit^As mentioned by the defendant's counsel, under paragraph 5 of the plaint, the Plaintiff alleges that he was served with a public notice. The Public notice which js attached to the plaint as Annexure VI indicates that it was issued by the.Zingiziwa Ward Executive Officer. Although the name of the second defendant appears as the person who signed the Public notice, she did not sign the same in her personal capacity but as the Zingiziwa Ward Executive Officer. In such circumstances, the Plaintiff cannot allege to have a cause of action against the second Defendant in this case. If the Plaintiff has any concern on the public notice he ought to pursue the same against the authority which issued the notice and not the officer who signed the notice on behalf of the authority named therein. In addition, the Plaintiff acknowledged in paragraph 6 and 7 of the Plaint that she issued a demand notice and wrote a letter to the first, second and third defendants' Employer Ilala Municipal Council concerning the demolition of the suit premises allegedly effected by the mentioned defendants. This establishes that, the alleged demolition,was not effected by the defendants in their personal capacities. Such facts establisl;!, that the Plaintiff has no cause of action against the Defendants ipi their personal capacities. If he has any cause of action, it should be against the authorities that were involved in the alleged denriojition of the suit premises. ■' . For that reason, I hereby! struck, out the Plaint for failure to disclose a cause against the defendantsjn this ca|e. H Z. D. MAN<30 % JUDGE s H % 11/10/2021