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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI MISCELLANEOUS LAND APPLICATION NO. 25751 OF 2024 NOA MATINDA.................................................................. 1st APPLICANT LOMNYAKI MIKA.............................................................. 2nd APPLICANT NARAMATISHO NAPI........................................................ 3rd APPLICANT BURA URARI BARIYE....................................................... 4th APPLICANT KARINGI NAPI.................................................................. 5th APPLICANT KIPAMBA ALAIBAI............................................................ 6th APPLICANT KUNYAE MAKOYO............................................................. 7th APPLICANT SALIMU WILLIAM............................................................. 8th APPLICANT KIONDOI NGOSIYE........................................................... 9th APPLICANT LEMBURIS LORENGEI......................................................10th APPLICANT LEMALI ROMET................................................................ 11th APPLICANT VERSUS THE TRUSTEE OF TANZANIA NATIONAL PARKS........ 1ST RESPONDENT THE ATTORNEY GENERAL...........................................2nd RESPONDENT RULING 25th & 25th October, 2024 Kahyoza, J.: Noa Matinda, Lomnyaki Mika, Naramatisho Napi, Bura Urari Bariye, Karingi Napi, Kipamba Alaibai, Kunyae Mokoyo, Salimu William, Kiondoi Ngosiye, Lemburis Lorengei and Lemali Romet, (the applicants), are seeking 1 leave of this court to institute a representative suit. Before the Court heard the application, the respondents raised a preliminary objection, that- 1. That, the application is unmaintainable in law for being pre­ maturely instituted without issuing 90 days’ Statutory Notice of Intention to sue the Government to the Respondents contrary to section 6(1), (2) and (3) of the Government Proceedings Act [Cap. 5 R. E. 2019]. Mr Tenges, the learned State Attorney who appeared for the respondents, submitted in support of the preliminary objection that the application was instituted prematurely as the applicants did not issue a 90 days’ notice as per section 6 (1), (2), and (3) of the Government Proceedings Act, [Cap. 5 R.E. 2019] (the GPA). The applicants under paragraph 13, attached a 90 notice of days. The notice shows that it was issued by 11 people who filed the current application but the same does not indicate that it was copied to the Attorney General and the Solicitor General which is against section 6(2) of the GPA. In addition, Mr Tenges, submitted that the notice does not indicate if the 118 people whom the applicants seek to represent gave a notice of their intention to sue the government. The attached notice was issued on 2 12.2.2024 and TANAPA received it on 16.2.2024. The applicants attached the minutes of the meeting, which the applicants and 118 persons held on 5.10.2024 to appoint the applicants to represent them. The meeting to appoint the applicants was convened after the notice of the intention to sue was given. Thus, 118 people did not give a notice of the intention to sue the government as required by law. He contended that parties are bound by their pleadings and cited the cases of Martin Frederick Rajab v Ilemela Municipal Council and Another, Civil Appeal no. 197/2019 and Makoli Wasaga v. Joshua Mwaikambo and Another, [1987] TLR, 88 to support his contention that a party is bound by his pleadings, he can only succeed by what he has averred and proved. He prayed the application to be dismissed with costs. Mr. Lairumbe, the respondent’s advocate opposed the preliminary objection contending that there is no dispute that the applicants issued a notice to sue as the law and that they are the ones applying to institute a representative suit. Thus, the application was competent. He also argued that the preliminary point of law was not a point of law in the eyes of the law and referred this court to the decision of Mukisa Biscuit 3 Manufacturing Company Ltd Vs. West End Distributors Ltd [1969] E.A. He finally prayed the preliminary objection to be overruled. It is beyond dispute that no person may commence a suit against the government including the local government without previously submitting a 90 days’ notice to the government Ministry, department or officer of his intention to sue and a copy given to the Attorney-General and the Solicitor General. Section 6(2) of the provides the GPA that- (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. It is vital to determine whether the current application is a suit, as section 6(2) of the GPA bars a person to sue a government without previously submitting a notice and whether the applicants issued a notice. Is an application seeking leave to institute a representative suit, a suit? 4 As the record bears testimony, eleven applicants have applied to this Court to file a representative suit, that is, the applicants are seeking leave to sue the government on behalf of 118 persons. The issue is whether the application pending before this Court is a suit in terms of section 6(2) of the GPA. The GPA does not define a term suit. The Interpretation of Laws Act [Cap. 1 R.E. 2019] too does not provide for the definition of a term suit. I visited A Dictionary of Law, 5th Ed. Oxford University Press, 2003 which defines suit as follows- “suit is a court claim. The term is commonly used for any court proceedings although originally it denoted a suit in equity as opposed to an action at law.” The Black’s Law Dictionary 4th Ed. defines the term suit as- “A generic term, of comprehensive signification, and applies to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity.” In addition, Black’s Law Dictionary defines a suit against the government or state as follows- “Suit in which relief against the state is sought.” 5 It is obvious that the applicants are seeking no relief against the government or the state. Thus, the pending application is not a suit, for that reason it can be filed before giving a 90 days’ notice to the government. However, it would be a futile exercise to grant the application to institute a representative suit which would not be filed until a 90 days’ notice is served to the government. I will therefore proceed to determine the issue whether the applicants issued a 90 days’ notice. Have the applicants issued a 90 days’ notice? It is undisputed that the eleven applicants issued a 90 days’ notice of their intention to sue the government. The respondents’ state attorney submitted the applicants served the notice to the Trustee of Tanzania National Parks but did not serve the notice to the Attorney General and the Solicitor General. The applicants’ advocate did not strongly contest the submission that he did not serve a copy of the notice to the Attorney General and the Solicitor General. He simply argued that the preliminary objection was not worth the preliminary objection. I will not dwell on this issue because the law, that is section 6(2) of the GPA, is clear that a 90 days’ notice must be served to the Attorney General and the Solicitor General. Thus, if a 90 6 days’ notice is not copied and served to the Attorney General and the Solicitor General, it is short of a notice under section 6(2) of the GPA in law. As to the contention that preliminary objection was not worth a preliminary objection, I will hold that it is preliminary point of law. The case of Mukisa Biscuit Manufacturing Company Ltd Vs. West End Distributors Ltd (supra), which the applicants’ advocate cited held that a preliminary objection must be on a pure point of law. It is raised on the assumption that the facts are not in dispute and no exercise of judicial discretion is involved. It is established principle that pleadings bind parties, thus, the facts a party states in his pleading are true facts and considered as proven against that party. Such facts can be the basis of the preliminary objection against the maker as they do not need to be proved. LAW, J.A. in Mukisa Biscuit Manufacturing Company Ltd Vs. West End Distributors Ltd (supra), put it thus at page 700:- ".....a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued, as a preliminary point may dispose of the suit.” And at page 701, SIR CHARLES NEWBOLD stated:- 7 “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” (Emphasis is mine) I am of the firm view that the preliminary objection raises a pure point of law. I decline the invitation by the applicants’ advocate that it is not worth a preliminary objection. Before I determine whether the 90 days’ notice was served or not served to the Attorney General and the Solicitor General, I find it vital to answer the issue whether the applicants and 118 persons issued a notice at all. Indisputably, the applicants issued a notice. The notice indicated the names of persons who intend to sue the government as Noa Matinda, Lomnyaki Mika, Naramatisho Napi, Bura Urari Bariye, Karingi Napi, Kipamba Alaibai, Kunyae Mokoyo, Salimu William, Kiondoi Ngosiye, Lemburis Lorengei and Lemali Romet. The applicants are applying to represent 118 persons to sue the government. From the application, the intended suit will be between 129 persons against the government, while only 11 persons gave a 90 days’ 8 notice of their intention to sue government. Thus, 118 persons will sue the government without giving a notice as required by section 6(2) of the GPA. Section 6(2) of the GPA does not allow a person to give a notice on behalf of another nor can I read that into the section. It states that no suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, ... a notice of not less than ninety. The intended claimants are 129 persons and not 11 persons who gave the notice of intention to sue the government. I find without hesitation, that only 11 persons gave notice out of 129 persons. Thus, the applicants are seeking leave to represent 118 persons to sue the government, while 118 persons have not previously submitted to the government a notice of their intention to sue. I, therefore, agree with the respondents’ state attorney that the applicants have prematurely filed the application. The applicants have put the cart before the horse, thus, to grant application would be an academic exercise with no legal effect. In the end, I sustain the preliminary objection, that the applicants have pre-maturely filed the application by seeking to represent 118 persons to sue 9 the government before 118 persons have submitted a notice of not less than ninety days to the government. I strike out the application with costs. To avoid unnecessary litigations, I wish to tax the costs under order 44 of the Advocates Remuneration Order, 2015 GN. No. 263/2015 at Tzs. 100,000/=. I have taken into consideration the fact that the respondents’ state attorney has only appeared once. I have awarded him the costs of appearance together with costs for drafting and filing the counter affidavit. I order accordingly. John R. Kahyoza Judge Court: Ruling delivered in the presence of the applicants, Mr. John Lairumbe, the applicants’ advocate and Mr. Tenges, the respondents’ state attorney. John R. Kahyoza Judge 10