martha john mushi administratix of the estate of the late john stephen mushi vsruth i mjema and 2 others 2020 tzhclandd 2224 21 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE No. 136 OF 2019 MARTHA JOHN MUSHI (Administratix of the estate of the late John Stephen Mushi)........... . .......... APPLICANT VERSUS RUTH I. MJEMA........................................................................ 1stDEFENDANT COMMISIONER FOR LANDS................................................... 2ndDEFENDANT ATTORNEY GENERAL.............................................................. 3rdDEFENDANT Date of Last Order: 30.07.2020 Date of Ruling: 21.09.2020 RULING V.L. MAKANI, J This ruling is in respect of preliminary objections on points of law raised by the 1st defendant as follows: 1. That this court lacks pecuniaryjurisdiction to entertain and determine this suit. 2. That the suit is incompetent and bad in law for want of statutory notice. With leave of the court the preliminary objections were argued by way of written submissions. The submissions on behalf of the 1st defendant were drawn and filed by Mr.Ngassa Ganja Mboje, Advocate. Submissions on behalf of the plaintiff were drawn and filed by Patrick Seuya, Advocate. Arguing the 1st preliminary objection, Mr. Mboje said that the question of jurisdiction is of fundamental aspect since it goes to the root of the suit and its competence before the court. He said that section 13 of the Civil Procedure Code, RE 2019 (the CPC) requires the suit to be filed in courts of the lowest grade competent to try them. Similarly, Order VII, Rule 1(f) of the CPC requires the plaintiff to plead facts showing that the court has jurisdiction to determine the matter. He said that the plaintiff pleaded that the pecuniary jurisdiction is TZS 50,000,000/=. He said according to section 33 of the Land Disputes Courts Act as it was amended by written Laws (Miscellaneous Amendment) (No.4) Act of 2017 the pecuniary jurisdiction of landed disputes for the District Land and Housing Tribunal was increased from TZS 50,000,000/= to TZS 300,000,000/=, and basing on this the jurisdiction of this court on matters relating to landed property is above TZS 300,000,000/=. He was therefore of the view that this court has no jurisdiction to entertain matters which are within the pecuniary jurisdiction of the subordinate courts. On the second point of objection, Mr. Mboje said that the plaintiff sued three defendants and thus the presence of the Commissioner for Lands and Attorney General as the 2nd defendant and 3rd Defendant respectively makes this suit to qualify as a suit against the government. That the suit is incompetent for failure to comply with section 6(1) and (2) of the Government Proceedings Act, CAP 5 RE 2019 which provides that no suit against the government shall be instituted and heard unless the claimant previously submits to the government minister, department or officer concerned a notice of not less than ninety days of his intention to sue the government specifying the basis of his claim against the government and he shall send a copy of his claim to the Attorney General. He said that the plaintiff has not pleaded in his plaint to demonstrate that he has complied with the statutory requirement of issuing and serving 90 days notice prior to the commencement of this suit. He supported his argument with the case of Aloyce Chacha Kengaya vs. Mwita Chacha Wambura, The Attorney General & Commissioner of Mines Musoma, Civil Case No. 07 of 2019 (HC-Mwanza) (unreported). He prayed for the suit to be struct out with costs. In reply Mr. Seuya for the plaintiff said that, learned Advocate for the 1st defendant overlooked the matter of pecuniary jurisdiction. He said that section 6(4) of the Government Proceedings Act provides that all suits against the government shall be instituted in the High Court by delivering in the registry of the High Court within the area where the claim arose. Further he cited section 7 of the Government Proceedings Act which provides civil suits against the government to be instituted in the High Court. He insisted that all civil proceedings against the government should be instituted in the High Court and therefore this court is proper forum and not any subordinate court. On the second point of preliminary objection, Mr. Seuya said that the plaintiff pleaded explicitly in paragraph 10 of his plaint that he has issued 90 days' notice (Annexure Al) before the commencement of the suit. He prayed for the preliminary objections to be dismissed with costs. Having considered submissions from both sides, the issue for determination is whether the preliminary objections raised by the 1st defendant have merit. The applicant's claim is for ownership of the Plot No.263, Block E, Tegeta Kinondoni Dar es Salaam valued at TZS 50,000,000/=. Indeed, as contended by Mr.Mboje the pecuniary jurisdiction of this court is above TZS 300,000,000/=. However, as submitted by Mr. Seuya, all civil suits against the government are supposed to be instituted in the High Court as per section 7 of the Government Proceedings Act. Going through the case file the 2nd defendant is the Commissioner for Lands and the 3rd defendant is the Attorney General. These parties are government agents in which the claims against them must be brought in accordance with section 7 of the Government Proceedings Act. The proper forum for the plaintiff is therefore the High Court irrespective that the value of the suit property is TZS 50,000,000/=.The first point of preliminary objection is therefore devoid of merit. On the 2nd point of objection Mr. Mboje claimed that the plaintiff has not submitted the 90 days notice as required by section 6(1) and (2) Mr. Mboje. However, perusal of the file reflects that a 90 days' notice was issued and it is attached to the plaint as Annexure Al. The notice was issued on 04/08/2014. The case at hand was filed on October 2019, that is five years after the notice was issued to the government. Now, is the notice of intention to sue issued to the government five years before the institution of the case still valid? The law governing the issuance of the notice, which is the Government Proceedings Act is silent on the life span of the notice. There is therefore no time limit for suing the government after the expiry of the 90 days' notice. It is my considered view that the notice that was issued in 2014 is still valid. The second point of preliminary objection therefore has no merit. In the end result, the preliminary objections by the 1st defendant are dismissed for want of merit. Costs shall be in the cause. It is so ordered. V.L. MAKANI JUDGE 21/09/2020