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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 20176 OF 2024 1 .MICHAEL CHANZO 2 .PAUL MHANGATE MWIKWABE ........... PLAINTIFFS 3 .MUHSIN MWINJAA MINTANGA 4.FELCHISMO FREDRICK FURIA &197 OTHERS - VERSUS MINISTRY OF DEFENCE AND NATIONAL SERVICES............ 1st DEFENDANT MINISTRY OF LANDS, HOUSING & HUMAN SETTLEMENT DEVELOPMENTS............................................ 2nd DEFENDANT COMMISSIONER FOR LANDS.............................................. 3rd DEFENDANT REGISTRAR OF TITLES........................................................ 4™ DEFENDANT KIGAMBONI MUNICIPAL COUNCIL.................................... 5th DEFENDANT ATTORNEY GENERAL........................................................... 6th DEFENDANT RULING 18/02/2025 & 26/02/2025 k. MSAFIRI, J. This is the ruling of the court following the two legal concerns raised by the defendants through their counsel. Initially, the plaintiffs instituted the instant suit against the defendants, claiming to be the lawful owners of the landed property (unsurveyed parcels of land / surveyed plots) located i at Shina No. 1&5 of Kijaka Street, Shina No. 2&3 of Golani and Madege Streets respectively and Shina No. 1 and 2 of Ngobanya and Amani Gomvu Streets respectively, at Kimbiji, Somangila and Kisarawe Ward in Kigamboni Municipality. The plaintiffs claim that the 1st defendants agents (the military officers) did demolish some of the plaintiffs' houses and evicted majority of them without due law procedure. The plaintiffs issued a 90 days' notice to the defendants and after expiry of the said notice, the four plaintiffs instituted Misc. Application No. 17794 of 2024 for leave to file representative suit and the same was granted by this court, hence the plaintiffs were able to file the instant suit. On 18/02/2025 when the matter was scheduled for First Pre-Trial Conference, the plaintiffs were being represented by Mr Daniel Odour, learned Advocate while the defendants were represented by Mr Francis Wisdom, State Attorney. As pointed earlier, Mr Wisdom raised two legal concerns. First concern was on the list of the names of the plaintiffs annexed as Annexure APP-1 and Annexure APP-4 collectively. He submitted that there is a difference of the total number of the plaintiffs in the two lists whereby Annexure APP-1 has 201 names, but in Annexure APP-4 collectively, there are two 2 lists; the first one has 139 names and the second list has 59 names but one name has been deleted hence they are 58 names. Mr Wisdom stated that the total number of the names of the plaintiffs in the 90 days' notice is 197 instead of 201 names. He was of the view that, the difference of the number of the plaintiffs makes the 90 days notice defective since some of the plaintiff did not issue 90 days notice as per the law. He pointed that, since this is a representative suit it cannot proceed as it is. The second concern raised by the counsel for the defendants is on the annexure APP-5. This is a drawn order of this court issued in Misc. Application No. 17794 of 2024, an application for leave to file representative suit. That, the applicants were ordered to publish a notification in Mwananchi Newspaper to notify all persons who were said to have authorized the applicants to represent them. That the order was issued pursuant to Order 1 Rule 8(1) of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC). Mr Wisdom averred that the plaintiffs have not complied with the court’s order and it is fatal. Basing on the two concerns, he prayed that this suit be struck out so that the plaintiffs can make the necessary amendments. J+/ 3 Mr Odour responding on the first concern about the difference in the list of names on annexures APP-1 and APP-4, he moved the court to count manually on the documents filed online. He said that the total number of names should be 201. That if they are less and the court decide to struck out the suit, he prayed that the same to be with no order for the costs considering the nature, circumstances and the kind of the people the plaintiffs are. On the second concern, Mr Odour admitted that the plaintiffs have not published the notification as ordered by the court but added quickly that since the order stated that it should be published after filing the suit, the plaintiffs were preparing to publish anytime soon considering the nature of the plaintiffs. He was of the view that this omission cannot make a suit a nullity. Mr Wisdom, reiterated his submission in chief and added that, in case the matter shall be struck out, the defendants will not press for the costs. On the second issue, he pointed that the order of the court states that the publication should be done upon filing. That, this matter has been in court for several days and months but the plaintiffs have never even sought for the extension of time to publish the notification. He reiterated his prayers that the suit be struck out. ■ 4 I have considered the submissions by both rival parties and the issue for my determination is whether the raised legal concerns by the defendants are as fatal as to render the whole suit a nullity. The first concern is on the defectiveness or otherwise of the 90 days' notice served by the plaintiffs to the defendants. The service of 90 days' notice to the Government institutions is mandatory whenever a party whether an individual or a company/institution intends to sue the Government or its institutions. This is a legal requirement under the provisions of Section 6 of the Government Proceedings Act, Cap 5 R.E 2019 which provides thus; "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 and Solicitor General."(emphasis added). Under the above provisions, it is the claimant who has first to issue 90 days' notice to the Government institutions concerned. In the present suit, there is 201 plaintiffs. Being a representative suit, before the institutions of the suit, all the plaintiffs should have issued a 90 days' notice i.e the 5 90 days7 notice issued to the defendants should have contained 201 names of the intended plaintiffs. I have read the 90 days' notice which is attached with the plaint as annexure APP-4 collectively. I have counted the names manually on the documents filed online as tasked by the counsel for the plaintiffs Mr Odour. Annexure APP-4 collectively includes two documents. The first one is 90 days' notice dated 19/3/2025 issued to the defendants. It contains 139 names as claimants who intends to sue the defendants upon expiry of the said 90 days. There is also a second document which is a list of additional names of the claimants which was said to form part of the 90 days demand notice which was issued on 19/3/2024. This additional list of names is dated 17/4/2024. This additional list has 59 names but one name which is number 48 of one Richard George Werema has been deleted. Therefore, counting the names manually, the first document has 139 names and the second list has 58 names which total the claimants who issued the 90 days' notice to the defendants to be 197 instead of the required 201. It is unknown who has issued the notice and who has not. This being representative suit, and considering the mandatory requirement of the provisions of the Government Proceedings Act, the 6 omission make the whole suit defective for the plaintiffs' failure to issue properly the 90 days required notice. I find merit in the first legal concern. On the second legal concern about the order of this court in Misc. Application No. 17794 of 2024,1 have to go back and read the ruling and the drawn order of the said application. The said application was instituted by the hereinabove four plaintiffs, seeking leave to file a representative suit on behalf of the other 197 plaintiffs. The application was granted and in addition, the court issued the following order; "Applicants are ordered to file their representative suit within 21 days. Upon filing it, the applicants to publish in Mwananchi Newspaper to notify all persons said to have authorized the applicants to institute a representative suit pursuant to Order 1 Rule 8(1) of the CPC. It is so ordered" (emphasis is added). This order of the court was issued pursuant to the requirement of Order 1 Rule 8 (1) of the CPC and for the easy of reference, I will reproduce the said provision herein below: - 8-(l) Where there are numerous person having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend in such suit, on behalf of or for the benefit of all persons so interested; but the court shall in such case give, at the plaintiffs expense, notice of the institution of the suit 7 to all such persons either by persona! service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct (emphasis is added). Basing on the above guidance, this court ordered that the notification of the people being represented be published in Mwananchi Newspaper. The order was issued on 31/07/2024. The Notice was to be published upon the filing of the instant suit. This instant suit was filed online on 19/08/2024. However, until todate, the notice of the institution of the case has not been issued as per the court order. Mr Odour, counsel for the plaintiffs have admitted to this fact that they have not published the said notice as per the requirements of Order 1 Rule8(l) of the CPC and have also failed to comply with this court's order of 31/7/2024. I also find the second legal concern to have merit and I sustain it. From the foregoing reasons, I find the suit to be incompetent before this court and I hereby struck it. I issue no order as to the costs since the defendants have expressly informed the court that they do not wish to press for costs. It is so ordered. 8 A. MSAFIRI JUDGE 26/02/2025