CIVIL CASE RAMADHANI IBACHIRO MWITA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB- REGISTRY CIVIL CASE NO. 451 OF 2024 REFERENCE NUMBER 20240109000000451 RAMADHAN I BACH I RO MWITA........................................... PLAINTIFF

VERSUS AFISA UVUVI MKOA - MARA............. .. 1st DEFENDANT KAMANDA WA POLISI MKOA - MARA.............................. 2nd DEFENDANT

THE ATTORNEY GENERAL OF TANZANIA C/O SOLICITOR GENERAL ................................................ 3rd DEFENDANT

RULING 04th & 11th November, 2024 M. L. KOMBA. J,; Plaintiff claim over defendants is return of his properties or be paid value of the properties seized TSZ 33,500,000/, loss of business 750,000,000/ and disturbance allowance to the tune of TZS 69,800,000/. The base of the claim was the arrest and seizure of the plaintiff's fishing materials on the ground that he was conducting fishing by using restricted gillnets. He was charged but the criminal case abates in March, 2022. He is now claiming his properties from defendants. Page 1 of 9 When served with plaint, defendants jointly file WSD with preliminary objection on Point of law that, 1. The suit is bad in law for plaintiff to sue wrong party.

2. The suit is bad in law for failure of the plaintiff to join necessary party.

3. The suit is bad in law for being filed premature. fs PO was admitted, parties agreed to argue the preliminary points as raised. All defendants were represented by Ms. Neema Mwaipyana, Senior State Attorney while plaintiff had legal service of Mr. Thomas Manyarna. When given time to argue the registered PO, she started with the 3rd-Point submitted that the suit is premature. She was of the submission that the suit was filed contrary to the law, section 6 (2) of Government Proceedings Act, Cap 5,which requires any person who file a suit against Government has to file notice to responsible office and a copy to Attorney General. She went on submitting that there is no prof in plaint if the copy was served to relevant, offices as per law which make it to be premature and prayed me to struck- out the suit relying on Bwire Nyamwero and Another vs Microfinance. Bank PLC and five others, Land Case No 21 of 2022, Evetha Mosha vs Arusha City Council & Two Others, Civil Case No. 14 of 2021, Page 2 of 9 On the 1st point about suing wrong party, she was of submission that defendants are Fisheries Officer of Mara Region and Regional Police Commander (RPC) Mara Region. She said the Regional Fisheries Officer has no capacity to be sued because the regional Fisheries Officer works under Ministry responsible for Fisheries and therefore, the proper party is Permanent Secretary of the Ministry.

Even if the plaintiff was targeting the Fisheries Officer at the regional level, she submitted, the proper party to be sued is Reginal Administrative Secretary (RAS). She insisted that the case is bad in law as it sued wrong party. Ms. Mwaipyana went on submitting that suing RPC and leave Inspector General of Police (IGP) was not right as RPC has his supervisor who is IGP and that RPC was exercise his duties on behalf of IGP. Further the decision of the suit will affect IGP who is not joined as necessary party and she finds IGP will not have right to be heard before this court make decision. She was aware that under'order i rule 1 failure to join necessary party is not fatal but She submitted that there is various decision which provide exception to the general rule while insisting that each case has to be decided in its owh fact. She went on insisting that non joining cause procedure irregularity and infringe right to be heard. She supplied me with Abdulatif Mohamed Page 3 of 9 Hamis vs Mehboob Yusuph Osman and Another, Civil Revision No. 6 of 2007 CAT which was held that failure to join necessary party render the suit becomes incompetent and the remedy is struck out. She prayed the suit be struck out. On his side Mr. Manyama started with the last about necessary party. It was his submission that this is not point of law as State Attorney failed to cite provision of law that

show it is IGP who must be sued. He went on submitting that if it will be found IGP is important and necessary party, defendants has role also to pray on a party to be joined. He insisted joining a party is the role of both parties to the suit. However, Mr. Manyama registered his position that IGP is not necessary party and is not liable to tortuous liability which plaintiff is claiming. About the remedy he submitted that Order I is to order party be joined. On the second Point of wrong party, he submitted that the Regional Fisheries Officer has capacity to be sued. Responding to State Attorneys submission he said she did not mention any section of law which exonerate reginal fisheries neither section which allow Permanent Secretary to be sued. Proving that Regional Fisheries in not capable to be sued need evidence which will water down the meaning of PO. Page 4 of 9 On pre maturity of the suit Mr. Manyama was of the view that the intention of the notice is to make the other party aware and referred this court to paragraph 11. which show there is attachment of notice. He insisted that Notice was issued and served that is why State Attorney is in court. On a different note, Mr. Manyama submitted that the law state notice must be issued to Attorney General and Solicitor General but not service. He insisted I that the suit is never pre mature and prayed this court to overrule PO

with costs. In. her rejoinder Ms. Mwaipyana insisted her submission in chief and insisted that it was the duty of the plaintiff to select who to sue and failure to join necessary party is fatal as per cited case law. She went on clarifying that the Reginal Fisheries Officer is guided by Fisheries Act and that Act establishes who is responsible in fisheries activities. About the notice she insisted thete is no proof that Attorney General was served with notice, however she noted the wrong address which is Attorney General should be notified by Solicitor General of which, according to her, is wrong. The issue which am Called upon to decide is whether the PO has merit, in doing so I shall analyse the 3rd point of objection as the 2nd is governed by Page 5 of 9 law and the position is clear that any party may apply to join a party to a suit. The 1st point need proof. State Attorney noted non-compliance of the provision of law which is section 6 (2) of Cap 5. For easy of reference, I reproduce it as follows; No suit against the Government shall be Instituted, and heard unless die 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 Genera! and the Solicitor

General. * I i (Emphasis is mine). As captured from the front page, the plaintiff in this suit is suing the Government Officials in their office capacity as he joined the Attorney General, the third defendant as necessary party as per section 6 (3) of Cap 5. There is no dispute that the notice was issued to 1st defendant and the same notice was addressed to 2nd and 3rd defendants. Further, the plaint in paragraph 11 explained the notice was prepared. The issue now is whether the notice which was prepared was delivered to addressees. Page 6 of 9 The attachments are silent on whether addressees received the said notice as there is no signature or seal of the offices to show they have received the said notice. Reading the above quoted section of law, the section insisted no suit shall be instituted unless Attorney General is served with a notice. In plaint there is no proof that Attorney General was served with notice. Further, Solicitor General is not even in a list of offices to be served with notice. That is contrary to the Law. State Attorney submitted that the suit was filed premature to mean there is uncomplete process. I join hand with the State Attorney that the suit was filed before time, that is, before service to Attorney General and Solicitor General was affected. I peruse the plaint and found the plaintiff annexed the notice which was addressed to Regional Fisheries

Officer, Regional Police Commander and Attorney General and copied to Plaintiff. Solicitor General was not among the list to be served while Attorney General was not served with a copy of notice the fact which is contrary to the above cited law as interpreted by this court in Evetha Mosha vs Arusha City Council & Two Others (supra) that; Page 7 Of 9 '.....the law states dearly that both ttie Attorney General and Solidtor General should be served with the said 90 days’ notice. Had it been that it is not necessary to serve the notice to both, then the legislature would have stated that the 90 days’ notice could be served to either the Solicitor General or Attorney Generai...faiiure to comply with the law mistakenly cannot be an excuse and justification to ignore the same...vioiation of section 6 (2) of the Government Proceedings Acts fatal.' ' ’ > ’ ; - J Having the interpretation, of this court in precedent and in the absence of proof of service by the plaintiff, I shall abide to the position of this court on the subject without any further modification. SeeBwire Nyamwero and Another vs Microfinance Bank PLC and five Others (supra), .Maguye Shanyangi Machota vs Steven Michael & 2 Others (Civil Case No. 458 of 2024) [2024] TZHC 6543 (17 July 2024) and Salome Mwenda, Land Case No. 25 of 2022. Both the Attorney General and Solicitor General must be served with notice and I add, the

proof must be available in plaint. What I can say is that, the Preliminary Objection has merit and is hereby uphold. I proceed to strike out the plaint for want of fulfillment of the Page 8 of 9 requirement of the law as in the indicated statute and precedent. I do so with costs. Right of appeal explained. M. L. KOMBA Judge 11th November, 2024 Ruling delivered in chamber in the presence of Plaintiff and in presence of Mr. Kitia Turoke, Senior State Attorney for Defendants. w M. L. KOMBA Judge 11 November, 2024 Page 9 of 9