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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE No. 29829 OF 2024 OMARY SAID WAZIRI (As Administrator of Estate of the late Kasimu Omary Tomondo) ...............PLAINTIFF VERSUS ILALA MUNICIPAL COUNCIL...................................................... 1STDEFENDANT COMMISSIONER FOR LAND....................................................... 2NDDEFENDANT THE ATTORNEY GENERAL.......................................................... 3RDDEFENDANT RULING Date of last Order: 20/3/2025 Date of Ruling 24/3/2025 LA LTAI KA, J, The Plaintiff herein OMARY SAID WAZIRI (As Administrator of Estate of the late Kasimu Omary Tomondo) instituted this Suit against the above-named Defendants for Judgement and Decreee as follows: 1. A declaration the late Kasimu Omari Tomondo was a lawful allocate of Plot No. 5691 Kitalu H Tabata Segeren, Hala Municipal which is currently untraceable. 2. A declaration that the Defendants being land allocating authorities are the ones who knows the whereabout of the land which was allocated to the father of the plaintiff the allocation which has never revoked, 3. An order against the Defendants to make sure that they recover the land which was designated as plot N 569 Kitalu H Tabata Segerea in Hala Page 1 of 7 4 Municipality and handover the same the Plaintiff or in alternative an order against the Defendants to allocate the plaintiff with a new Land which is equivalent with of Plot No. 569 Kitalu H Tabata Segerea, Hala Municipal, 5. genera! damage as this court may deem fit to grant and the cost of this suit No sooner had the Defendants received copies of the Plaint than they put a preliminary objection challenging the competence of the suit on the following grounds: 1. That the suit is untenable in law for failure to comply with Section 6(2) of the Government Proceedings Act [CAP.5 R.E. 2019], requiring a 90-day statutory notice to the Government and the Solicitor General. 2. That the 1st Defendant, Ilala Municipal Council, is a non-existent legal entity, thereby lacking the legal standing to sue or be sued. 3. That the suit is incompetent for failure to join the Registrar of Tides, who is a necessary party to the proceedings. Parties opted to dispose of the PO by way of written submissions. With a nod of approval of this court, a schedule to that effect was jointly agreed. Whereas the Defendants were represented by Mr. Stephen Kimaro, learned Advocate, the Plaintiff enjoyed the legal services of Mr. Isaack Tasinga, learned Advocate. Mr. Kimaro submitted that the Plaintiff had failed to comply with the mandatory requirement under Section 6(2) of the Government Proceedings Act, [CAP.5 R.E. 2019] which necessitates serving a 90- day notice to the Solicitor General before instituting proceedings against the Government or its departments. He argued that while the Plaintiff Page 2 of 7 relied on paragraph 26 of the Plaint and annexure OM-11, these documents did not establish proper service upon the Solicitor General as required by law. Relying on the case of Mondorosi Village Council & 2 Others vs Tanzania Breweries Ltd & 4 Others and Njake Enterprises Ltd vs Blue Rock Ltd & Another, Civil Appeal No. 69 of 2017 (unreported), he contended that the overriding objective principle cannot cure non-compliance with procedural requirements that are couched in mandatory terms. ■ • * Regarding the second limb, the learned State"Attorney submitted that Hala Municipal Council ceased to exist following the Government Notice No. 212A of 2021, which conferred city status upon Dar es Salaam City Council. As such, he argued that the suit against a non­ existent entity was legally untenable, as reinforced in Singida Sisal Products & General Supply vs Rofal General Trading Ltd & Four Others, Commercial Review No. 17 of 2017 (unreported), where it was held that a non-existent party lacks the capacity to sue or be sued. On the third objection, Mr. Kimaro argued that the Plaintiff's claims revolved around ownership and allocation of registered land, which directly affected the Registrar of Titles. He submitted that the non-joinder of the Registrar of Titles offended the principles of natural justice under Page 3 of 7 Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, and contravened established precedent in Ngerengere Estate Co. Ltd vs Edna William Sitta, Civil Appeal No. 209 of 2016 (unreported), which emphasized that a court cannot issue orders affecting a party without affording them the right to be heard. Mr. Tasinga, on his part, opposed the objections, arguing that substantial compliance with the Government Proceedings Act should suffice and that any defects in the parties or pleadings could be cured under Order I, Rule 10(3) of the Civil Procedure Code [CAP. 33 R.E. 2019]. Having considered the submissions of both parties, I proceed to determine the preliminary objections as follows: On non-compliance with Section 6(2) of the Government Proceedings Act, Section 6(2) of the Government Proceedings Act (supra) explicitly requires that a 90-day statutory notice be served to the Solicitor General prior to instituting a suit against the Government or its departments. This provision is mandatory and failure to comply renders the suit incompetent. In the present case, the Plaintiff relied on paragraph 26 of the Plaint and annexure OM-11 to establish compliance. However, as rightly submitted by the Defendants, the annexure does not show that the notice Page 4 of 7 was duly served upon the Solicitor General as required by law. The Court of Appeal has consistently held that non-compliance with statutory notice requirements vitiates proceedings against the Government The Plaintiff's attempt to invoke the overriding objective principle under Article 102A(e) of the Constitution is misplaced. As held in Mondorosi Village Council & 2 Others vs Tanzania Breweries Ltd & 4 Others (supra), the overriding objective principle cannot be applied to override procedural rules that go to the root of the case. Consequently, this objection is sustained. With Regards to a non-existent legal entity, it is undisputed that Hala Municipal Council was legally dissolved following the Government Notice No. 212A of 2021. Under the Local Government (Urban Authorities) Act, only recognized urban authorities may sue or be sued. The legal standing of a party is fundamental, and a non-existent entity lacks the capacity to institute or defend proceedings. Since Hala Municipal Council no longer exists as a legal entity, the suit against it is fatally defective and cannot stand. This objection is accordingly upheld. Finally, the Plaintiff's claim revolves around registered land ownership, with a specific prayer for reallocation of land and issuance of title documents. These matters directly implicate the Registrar of Titles, who Page 5 of 7 is responsible for land registration and title management under the Land Registration Act [CAP. 334 R.E. 2019]. The law is clear that where a decision affects the rights of a party, such party must be joined to the proceedings to ensure compliance with the right to be heard under Article 13(6)(a) of the Constitution. While Order I, Rule 10(3) of the Civil Procedure Code permits joinder of necessary parties at any stage, this cannot be done where a preliminary objection has already been raised on the issue. For these reasons, the failure to join the Registrar of Titles renders the suit incompetent, and the objection is sustained. In light of the foregoing, I find that the preliminary objections raised by the Defendants have merit. The Plaintiffs failure to comply with Section 6(2) of the Government Proceedings Act, the institution of proceedings against a non-existent entity, and the non-joinder of a necessary party are fatal defects that render the suit incompetent. I am inclined to use a few more minutes as I come to the end of this Ruling that I have noted with concern Mr. Tasinga's complains on inability of the Defendants to serve him with copies of their Written Statement of Defence on time. The fact is, Mr. Tasinga has never entered appearance since this suit was instituted. Worse still, he never tried to ask a fellow Advocate to hold brief for him. His client equally complains that Page 6 of 7 he lives in Gairo and had hoped that: his lawyer would be in Court. I think there is a need to remind Counsel to serve their clients with diligence or not at all. There is nothing in between. In the upshot, the suit is hereby struck out for being incompetent. I make no order as to costs. Court: Ruling delivered this 24th day of March 2025 in the presence of the Plaintiff who has appeared in person, unrepresented and in the absence of the Defendants. Page 7 of 7