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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND CASE NO. 5242 OF 2024 MILIKALI DAILON YAWANGA (The Administrator of Estate of the Late DAILON YUSUPH YAWANGA)..…………………………………….PLAINTIFF VERSUS MARIETHA KULWA MAHOLA…..….……..…………………………….1ST DEFENDANT SEME MAHOLO………………………………………………….…………2ND DEFENDANT MIZA NANDALA…………………………………………..……………….3RD DEFENDANT JUKE TUNDU…………………………………………..…………………..4TH DEFENDANT CHAMBI JILOMA……………………………………………….…………5TH DEFENDANT LATA MAHOLA…………………………………..…………………………6TH DEFENDANT DOI MAHOLA……………………………………………………………….7TH DEFENDANT MSOLA MAHOLA…………………………………………………………..8TH DEFENDANT KWEJI NUNGWA…………………………………………………………..9TH DEFENDANT MAGADULA MAHOLA…………………………………………………..10TH DEFENDANT OGESA MAHOLA……………………………………….………………..11TH DEFENDANT WILE WEJA……………………………………………….………………12TH DEFENDANT SALI MAHOLA…………………………………………………………….13TH DEFENDANT SAI SAKUMI………………………………..………….…………………14TH DEFENDANT RIONGO SALULA………………………………………………………..15TH DEFENDANT SAIDA MAHOLA…………………………………………….……………16TH DEFENDANT MAHOLA SAGANDA……………………………..………………………17TH DEFENDANT CHIKU MAHOLA……………………………………………….…………18TH DEFENDANT CHAMBI JILALA………………………………………………………….19TH DEFENDANT 1 IYALA VILLAGE COUNCIL………………………………..……………20TH DEFENDANT DISTRICT EXECUTIVE DIRECTOR OF MBARALI…………………21ST DEFENDANT THE ATTORNEY GENERAL…………………………………..…….…22ND DEFENDANT RULING Date: 4 September 2024 & 25 October 2024 SINDA, J.: The plaintiff herein by way of plaint, brought his claim of trespass jointly and severally against the first to nineteenth defendants for unlawful entering into the land of the late Daimon Yusuph Milikali (the Deceased) which the plaintiff administers. The land is measured 60 acres and located at Mtakuja harmlet, Iyala Village, Ruhanga Ward in Chimala within the District of Mbarali, Mbeya region (the Disputed Land). The Disputed Land was allegedly sold to the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleven, twelfth, thirteen, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and the nineteenth defendants by the twentieth defendant. The plaintiff prayed for Judgment and Decree against the defendants as follows; i. The Declaration of the court that the plaintiff as the administrator is the lawful person to administer the deceased property. 2 ii. The Declaration that the Plaintiff’s deceased father owned the said land for long time and was properly allocated by the Village Land Allocation Committee after paying the required fees. iii. The Defendants to be ordered to stop from disturbing the Plaintiff. iv. The Defendant to be ordered to pay Cost of this suit. v. Such other Orders and reliefs this Honourable Courts deems just, equitable and convenient to grant. The first to the nineteenth defendants filed their Written Statements of Defence (the WSD) and disputed most of the contents in the plaint, but also raised a preliminary objection (the P.O). The first to nineteenth defendants raised the P.O: 1. That, this suit is hopelessly for contravening section 6 (2) of the Government Proceeding Act, Cap 5 RE 2019, and section 190(1)(a) and (b) of the Local Government (District Authorities) Cap 287 RE 2019 as amended by Written Law Miscellaneous Amendment No. 1 of 2020. Likewise, the twentieth to the twenty third defendants raised the P.O to the effect that: 3 1. That, this is incompetent and bad in law as for contravening section 6 (2) of the Government Proceedings Act [CAP. 5 R.E 2019]. The hearing of the P.O was by way of written submissions. The plaintiff was represented by Mr. Lugano Mwalubunju, learned counsel. The first to the nineteenth defendants were represented by Mr. Felix Kapinga, learned counsel. Whereas, the twentieth to twenty third defendants were represented by Mr. Michael Fyumagwa, learned State Attorney. Mr. Fyumagwa submitting in support of the P.O, argued that the plaintiff did not submit a 90 days’ notice of his intention to sue the government (the Notice), to the twentieth, twenty first, twenty second and twenty third defendants. The State Attorney challenged the competence of the suit for contravening of section 6 (2) of the Government Proceedings Act, Cap 5 R.E 2019) (the GPA) read together with section 31 of the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020 which amended section 190 of the Local Government (District Authorities) Act. He added that the plaintiff claimed that he sent the Notice to the twentieth, twenty first, twenty second and twenty third defendants. Mr. Fyumagwa noted that the plaintiff did not serve the copy of the Notice to Iyala Village Council, Executive Director of Mbarali District Council, Mbarali District Court, 4 Attorney General and Solicitor General as required by the law. There is no proof of service to the said defendants. That, the service could have been proved by name of the recipient, rubber stamp or anything to prove the respondents were served with the Notice. In support, Mr. Fyumagwa cited the case Raphael Ologi Andrea vs. Musoma Urban Water Supply & Sanitation Authority, Civil Appeal 468 of 2020. Mr. Fyumagwa further continued that due to the violation of such requirement, the case is premature and incompetent before this court and should be struck out with cost. He cited the case of Gwabo Mwansasu & Others vs. Tanzania National Roads Agency & Attorney General, Land Case No. 8 of 2020 TZHC at Mbeya and that of Arusha Municipal Council vs. Lyamuya Construction Company Limited [1998] T.L.R 13. In his submission in chief, Mr. Kapinga stated that, it is a mandatory requirement under the GPA, that a person intending to sue the government including local government should issue the Notice of his intention to sue. Additionally, he argued that, the Notice issued by the plaintiff on 10 March 2023 does not depict that the Village Council, the Attorney General and Solicitor General were served pursuant to the law. That the Notice bears only the stamp of the plaintiff’s counsel and is silent on service to the defendants. 5 That, the Notice attached to the plaint was also used in the land case No. 17 of 2023 which was struck out by this Honourable court. Therefore, the notice used in case No. 17 of 2023 is inoperative in this case. The counsel cited the case of Uvinza Heifer Farm Limited & 2 Others vs. Wengert Windrose Safari (T) Ltd & 2 Others, Civil Case No. 2 of 2015 (HC) (Unreported). In his reply submission, Mr. Mwalubunju argued that the Notice was served upon the relevant government authorities and was acknowledged by signature on 10 March 2023, affirming receipt. The counsel proceeded to annex a copy of the first page of the said notice in his reply to the submission in chief. Moreover, the learned counsel disputed the case of Uvinza Heifer Farm Limited & 2 Others vs. Wengert Windrose Safari Ltd & 2 others, Civil Case No. 2 of 2015 cited by Mr. Kapinga. He argued the case is not binding to this court as it is from a court with equal jurisdiction. Also, he termed the case distinguishable to the matter at hand. That, contrary to the cited case, the present case was withdrawn with a remedy of re-filing. Therefore, the Notice is still operative, since it is identical to the Notice previously employed in Civil Case No. 17 of 2023. 6 Furthermore, Mr. Mwalubunju argued that the Civil Case No. 17 of 2023 was struck out with leave to refile and not dismissed by an order of this Honourable Court following the P.O raised that the plaint did not disclose boundaries of the subject matter. Hence, the Notice remains valid and operative in the present matter. The counsel also pointed out the distinction between legal consequences of striking out a case and dismissal. He cited the case of Cyprian Mamboleo Hizza vs. Kioso & Another, Civil Application No. 3 of 2010 (Unreported). The learned counsel also disputed the cases of Raphael Oligi Andrea vs. Musoma Urban Water Supply and Sanitation Authority (Supra) and Arusha Municipal Council vs. Lyamuya Construction Company Limited (Supra) cited by Mr. Fyumagwa, since the cited case dealt with non- service of notice while in the present case, the service was effectively rendered on 10 March 2023. Mr. Mwalubunju further insisted, that the Notice served in Civil Case No. 17 of 2023 remains legally valid for the current suit, as the previous matter was not adjudicated to its finality. In his short rejoinder, Mr. Kapinga reiterated what he submitted in his submission in chief with emphasis on the case of Uvinza Heifer Farm 7 Limited & 2 Others (supra). The counsel further rejoined that the plaintiff annexed a document in his reply submission contrary to what was decided by the Court of Appeal in the case of Rosemary Stella Chambe Jairo vs. David Kitundu Jairo, Civil Reference No. 6 of 2018. Mr. Kapinga prayed that the document annexed to be ignored. Having carefully gone through the submissions by both parties, statutes and case laws referred to, I will now discuss the preliminary objection on a point of law put before me. In a nutshell, the defendants herein claim that the plaintiff did not serve a statutory notice of his intention to sue the government to the twentieth, twenty first, twenty second and twenty third defendants. The plaintiff disputed those allegations by arguing that he had already served the said Notice to the respective defendants in Land Case No. 17 of 2023, which was struck out with leave to refile. He added that Land Case No. 17 of 2023 was not decided to its finality, as such the Notice is still operative in the present case. I do not agree with the contention by Mr. Mwalubunju that the notice served in the previous case is still effective in the present case. According to his 8 submission, Mr. Mwalubunju explained the matter was struck out with leave to refile due to a P.O raised. In my understanding, a statutory notice provides most if not all details of the claim. Therefore, if the matter was struck out and then refiled. The respondents had the right to be served with another notice. Mainly to see whether there are any changes or variations to the claim before the matter is filed again. Additionally, after the matter has been struck out. A fresh statutory notice also serves the purpose of informing the defendants that the plaintiff intends to further pursue the matter. That being the case, I am of the opinion that no statutory notice was served to the twentieth, twenty first, twenty second and twenty third defendants with regard to the present suit. Thus goes contrary to the provision of Section 6(2) of the GPA, to wit: “6(2) 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 the Solicitor General.” The above provision should be read together with Section 190 (1) (a) and (b) of Cap 287 RE 2019. 9 In the case of Arusha Municipal Council vs. Lyamuya Construction Company Limited (supra) the Court of Appeal of Tanzania held that failure to issue the statutory notice before institution of the suit against the government makes the suit unmaintainable. I proceed to hold this matter to be incompetent and prematurely instituted before this court. Consequently, it is hereby struck out. The plaintiff if he wishes to pursue the matter further, could do so by following the procedure as provided under the law. It is so ordered. DATED at MBEYA on this 25 day of October 2024. A. A. SINDA JUDGE 10