Noa Matinda and 10 Others v The Trustees of Tanzania National Park and Attorney Genaral

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI MISCELLANEOUS LAND APPLICATION NO 17844 OF 2024 1. NOAMATINDA................................................................. 2. LOMNYAKI MIKA............................................................ 3. NARAMATISHO NAPI.................................................... 4. BURAURARI BARIYE...................................................... 5. KARINGI NAPI.............................................................. 6. KIPAMBA ALAIBAI......................................................... U APPLICANTS 7. KUNYAE MOKOYO........................................................... 8. SALIMU WILLIAM.......................................................... 9. KIONDOI NGOSIYE....................................................... 10. LEMBURIS LORENGEI................................................ 11. LEMALI ROMET........................................................... VERSUS 1. THE TRUSTEES OF TANZANIA NATIONAL PARKS....... .7? RESPONDENT 2. THE ATTORNEY GENERAL.............................................. RULING 24h September, and ?d October, 2024 MIRINDO, J.: Eleven persons, namely, Noa Matinda, Lomnyaki Mika, Naramatisho Napi, Buraurari Bariye, Karingi Napi, Kipamba Alaibai, Kunyae Mokoyo, Salimu William, Kiondoi Ngosiye, Lemburis Lorengei, and Lemali Romet of Kimotorok Village in Simanjiro Village within Manyara Region are seeking leave of the High Court to 1 sue in a representative capacity on behalf of their fellow 100 persons. The suit is in respect of ownership of a disputed land between the eleven persons (applicants) and the hundred persons, on the one hand, and the Tarangire National Park, on the other hand. At the hearing of the application, the applicants were represented by Mr. John Lairumbe and Mr. Joseph Milau Alais, learned advocates. The applicants are seeking to lodge a representative suit against the Trustees of Tanzania National Park and the Attorney General and who are also respondents in this application. Mr. Nickson Tenges, learned State Attorney advocated for the respondents. Mr. Lairumbe, learned advocate, provided detailed arguments in convincing this Court to grant the application. Given the procedural point raised in reply by Mr. Tenges in connection with the non-service to the Trustees of the Tanzania National Park of the statutory notice to sue, I will not consider the arguments in support of the application. This contention, which is stated in the respondents' joint affidavit and reiterated at the hearing of the application, is that non-service is evident from annexure No. 5 to the applicants'joint affidavit and as explained in paragraph 13 of that affidavit. 2 In response, Mr. Lairumbe argued that service of statutory notice to the first respondent is a legal issue which should have been raised by way of preliminary objection. In the alternative, the learned advocate maintained that under section 6 (2) of the Government Proceedings Act [Cap 5 RE 2019], statutory notice to sue must be issued only to the Attorney General and Solicitor General. In demonstrating that the applicants complied with the law, he pointed out that the thirteenth paragraph and annexure No 5 clearly indicates that the Attorney General and Solicitor General were duly served with statutory notice to sue. Mr. Lairumbe noted that even though it is not a legal requirement to issue statutory notice to other parties other than the Attorney General and Solicitor General, the last page of Annexure No. 5 indicates that the statutory notice was received by the first respondent. That this is so is evidenced by the fact that there is a rubber stamp of the first respondent in addition to that of the Attorney General and the Solicitor General. He concluded that the learned State Attorney misdirected himself on the assertion that the first respondent was never issued with statutory notice of intention to sue. In dealing with this argument, I will for the purposes of convenience, reproduce the provisions of section 6 (2) of the Government Proceedings Act: 3 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. One principle that emerges from the provision is that primary service of statutory notice to sue is to the government entity and secondary service is to the Attorney General and the Solicitor General. In both cases, service of statutory notice is a mandatory requirement. Annexure No 5 which is a statutory notice to sue the government was directed to be served upon the Attorney General and the Solicitor General. Nowhere in the annexure is the notice directed to be served on the first respondent, the Trustees of Tanzania National Park which is a government entity. On account of non-service to the Trustees of Tanzania National Park, I am bound to hold that the application has been irregularly filed and is hereby struck off the court record with costs. It is up to the applicants to regularise the process and bring a fresh application subject to law. It is so ordered. DATED at BABATI this 30th day of September, 2024 4 M. MIRINDO JUDGE COURT: Ruling delivered in open court this 2nd day of October, 2024 in open court in the presence of the applicants in person, Mr. Festo Jackson holding brief for the applicants' counsel, Mr. John Lairumbe, and Mr. Joseph Milau Alais, and in the presence of Mr. Nickson Tenges, State Attorney for the respondents. Right of appeal explained. F.M. MIRINDO JUDGE 5