raymond r charles administrator of estate of the late calory rugaiyula gwaishozi v buhangaruti village council and 2 others 2023 tzhc 23342 13 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA LAND CASE NO. 11 OF 2022 RAYMOND R. CHARLES (Administrator of estate of the late CALORY RUGAIYULA GWAISHOZI)................................. PLAINTIFF VERSUS BUHANGARUTI VILLAGE COUNCIL................................. 1st DEFENDANT MISSENYI DISTRICT COUNCIL.............................. 2nd DEFENDANT 3 THE ATTORNEY GENERAL.............................. .................. rd DEFENDANT JUDGMENT 23/11/2023 & J3/12/2023 f. L. NGIGWANA, J On 21st day of July 2022, the plaintiff herein instituted this suit in his representative capacity as the administrator of estate of the late Calory Rugaiyula Gwaishozi who passed away on 19/03/2017. In his plaint, he attached a copy of letters of administration dated 29/08/2018 granted by the primary court of Missenyi District at Gera. Basically, the plaintiff instituted this suit against the defendants herein praying for the following orders:- (a) that the Suitland is part of part of estate of the late Caroly Rugaiyula Gwaishozi, (b.) that i the 1st and 2nd defendants are trespassers to the Suitland, (c) that the 1st and 2nd defendants should stop construction of school buildings in the Suitland, (d.) that the 1st and 2nd defendants should vacate and remove any structure erected in the Suitland, (e) a permanent injunction order restraining the 1st and 2nd defendants from entering and interfering an enjoyment of the Suitland by the legal beneficiaries, (f) costs of the suit and .(g) any other relief as the court may deem proper to grant. The defendants filed a Joint Written Statement of Defence disputing all claims by the plaintiff and prayed for the dismissal of the suit with costs. It is worth noting at this juncture the 3rd defendant was joined in this suit as a necessary party as per the requirement of the law. It is common knowledge that one of the important steps in a civil trial is framing of issues, and it is the duty of the trial Magistrate or Judge to frame issues. It should be noted that, although it is the duty of the judge Magistrate or Judge to frame issues, he/she cannot, without involving the parties or their advocates who have both the duty to assist the court on the process. Framing of issues is very important as it defines and narrows down the scope of the contention and: thereby making the trial more focused and short-lived. See Barclays Bank Tanzania Limited versus Sharaf Shipping Agency (T) Limited and Habibu African Bank Limited vesus Sharaf Shipping Agency (T) Limited and Barclays Bank Tanzania Limited, Consolidated Civil Appeal No.117/16 of 2018 and 199 of 2019, CAT (Unreported). Explaining the importance of framing issues properly, my learned brother, Ismail J as he then was in the case of Letshego Bank (T) LTD versus Sarah Maginga and Another , Civil Appeal No.23 of 2020 HC -Mwanza (Unreported) had this to say; "The noteworthy point is that, trial proceedings in civil matters are guided by the framed issues before commencement of the hearing. Issues help in guiding the parties and the court in identifying areas of contention and resolve them. They also guard the proceedings against going astray and avoid arriving at a conclusion which was not desired" The duty to frame issues is provided for under Rule 40 (1) of Order VII and Rule 1 (5) of Order XIV of the Civil Procedure Code, [Cap 33 R.E 2019]. Rule 1 (5) of Order XIV makes mandatory for the court to frame issues at the first hearing after reading the Plaint and the Written Statement of Defence. The same provides that; the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what materia! proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend". As far as the case at hand is concerned, upon reading the pleadings of the parties; this court, with the assistance of Mr. Josephat Rweyemamu, Senior learned advocate for the plaintiff and Mr. Gerald Njoka, learned State Attorney from the office of the Solicitor General -Bukoba, framed the following issues for determination (i) Who is the lawful owner of the disputed land; (H) Whether the defendants were served with the notice to sue; 4 (Hi) Whether the administrator of the estate of Caroly Rugaiyula Gwaishozi was legally appointed; (iv) Whether the defendants have trespassed on the plaintiff's land; (v) Whether the plaintiff has previously litigated over the disputed land; and (vi) What are the reliefs of the parties entitled? At the hearing of this suitz the plaintiff had the legal services of Mr. Abel Rugambwa, learned advocate from a Law Firm namely Josephat Rweyemamu Advocates, while Mr. Lameck Buntuntu and Ms. Seraphina Rwegasira, learned State Attorneys appeared for the defendants. I would like to start with the third issue followed by the 2nd issue. Locus standi is essentially the legal capacity or competency to bring an action or to appear in court. See Lujuna Shubi Balonzi v. The Registered Trustees of Chama Cha Mapinduzi [1990] T.L.R 203. It follows therefore that, for a person to institute a suit, he/she must have locus standi Generally speaking; whoever wants to sue 5 on behalf of the deceased should first be appointed an executor/ executrix or administrator/ administratrix of the deceased's estate. In the case at hand, the plaintiff (PW1) managed to prove that before the Primary Court of Missenyi District at Gera, vide Probate and Administration Cause No. 14 of 2018, he successfully petitioned for letters: of administration of the estate of the late Caroly Rugaiyula Gwaishozi. The copy of the judgment of Gera primary court was admitted as Exhibit Pl, while the copy of Form No. IV was admitted as Exhibit P2. To that extent, the 3rd issue has been resolved in the affirmative. I now move to the 2nd issue. Paragraph 6 of the plaint was coached as follows; "That, on 22nd June 2021 the plaintiff through the service ofJosephat Rweyemamu Advocates issued a Statutory Notice to the 1st and 2* Defendants as well as 3^ Defendant as a necessary party. Despite of several oral and written reminders^ the Attorney General has never responded the notice hence this case as a necessary party. A copy of 6 statutory notices and its reminder are hereby attached herewith as "Annexture RRC2" On the other hand, Paragraph 3 of the Joint Written Statement of Defence reads; "The contents of paragraph 6 of the piaint are disputed subject to proof' Upon reading the 6th paragraph of the plaint and the 3rd paragraph of the Joint Written Statement of Defence, the third issue was framed as.it appears herein above. It is trite law under section 110 (1), (2) and 111 of the Evidence Act, [cap 6 R.E 2022] that he who alleges must prove that a certain fact exists. This stance was emphasized by the Court of Appeal in the case of Joao Oliveira & Another versus IT started in Africa Limited, & Another, Civil Appeal No, 186 of 2020 CAT at Arusha, where the Court had this to say in relation to evidential burden in civil proceedings; "Ordinarily; in civil proceedings a party who alleges anything in his favor also bears the evidential burden and the standard of proof is on 7 the balance of probabilities which means that, the court will sustain and uphold and sustain such evidence which is more credible compared to the other on a particular fact to be proved" In another case of Paulina Samson Ndawavya versus Theresia Thomas Madaha, Civil Appeal No.45 of 2017 CAT (unreported), the Court of Appeal held that; "It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus Iles discharges his and that the burden of proof is not diluted on account of the weaknesses of the opposite party's case" In the case at hand, it is obvious that the burden lies upon the plaintiff to prove that he issued the 90 days' statutory notice and served the 2nd and 3rd defendants according to law. In the exercise of discharging his duty; the plaintiff (PW1) testified that before the institution of this suit, he issued the 90 days' statutory Notice and served the defendants accordingly. Copy of the notice was admitted and marked exhibit P4. 8 The requirement of serving 90 days' notice before suing the government is governed under section 6 (2) of the Government Proceedings Act, [Cap. 5 R. E 2019] which provides that; "No suit against the Government shall be instituted and heard unless the claimant previously submits to 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 Genera! Attorney" Notably, compliance of this section is hot optional but mandatory since its non-compliance renders the suit incompetent for being prematurely filed. It was stated by this court in the case of Thomas Ngawaiya versus Attorney General 3 Others, Civil Case No. 177 of 2013 that; section 6 of the Government Proceedings Act is mandatory. It requires a person intending to sue the Government to issue a notice to the relevant Government Officer or Institution and copy the same to the General Attorney. The word Government as per section 16 (4) of the same Act includes; a Government Ministry, Local Government Authority, Independent Department, Executive 9 Agency, Public Corporation, Parastatal Organization or a Public Company established under any law which the Government is a majority shareholder. The reason behind giving notice to the Government before filing a suit is to give the Government an opportunity to settle the claim before a law suit is filed and to investigate the claim so that it can properly defend itself or to correct the conditions or practices that led to the claim. Such a rationale should never be undermined or disregarded. See the decisions of this court in the case of Aloyce Chacha Kenganya versus Mwita Chaha Wambura & 2 others, Civil Case No.07 of 2019 HC-Musoma and Vedastus Rugachwa versus CAMUSAT-Tanzania Ltd &6 others, Civil Case No.37 of 2023. HC- Bukoba. In the case at hand, it goes without saying that the 90 days' notice before filing the suit against the 2nd and 3rd defendants was imperative. It means that serving the notice to the 2nd and 3rd defendants precedes the filing of the suit as filing a suit of that nature is not possible before serving notice. io However, the notice which was attached to the plaint has no receiving stamp of the office of the Attorney General, or Missenyi District Council or Solicitor General. Also the same has no signature of the receiving officer and the date of receipt. I am alive that annextures attached to the plaint or written statement of defence are not evidence until they are tendered and admitted in evidence. See Total Tanzania Ltd versus Samwel Mgonja, Civil Appeal No.70 of 2018 -CAT (unreported). As stated earlier, in his effort to prove that the 2nd and 3rd defendants were served with the 90 days' statutory notice, PW1 tendered the copy of notice (exhibit P4) alleged to have been served to the 2nd and 3rd defendants. Nevertheless, going through Exhibit P4, it is apparent that the same has no receiving stamp of the office of the Attorney General, or Missenyi District Council or Solicitor General. Also the same has no signature of the receiving officers and the date of receipt. It is essential that there must be proof that the notice was served to the concerned Government entity, the Attorney General and the Solicitor General. In the absence of evidence of service, then the notice cannot be taken into consideration. In Emmanuel Titus n Nzunda versus Arusha City Council and Others, Land Case No 28 of 2020 HC-Arusha (Unreported) this Court insisted on the compliance of the requirement of 90 days' notice in these words "The 90 days' notice being a mandatory legal requirement, the same need be complied with before instituting suit or joining the government into any suit, it is upon the Plaintiff to attach a notice showing that the same was duly served and received" Similarly; in the case of Nassor Mbaruku Nassoro {Administrator of the Estate of Kurwa Abdaiah SaiUm} versus Makubi Hamisi Mwinyihija & 2 others, Land Case No.340 of 2022 HCLD Dsm (Unreported) my learned brother Mhina J while addressing compliance of section 6 (2) of the Government Proceedings Act, [Cap. 5 R: E 2019], had this to say; "The plaintiff/ applicant must provide such a notice showing that it was duly served and received. As a standard of service, there must be a signature of a receiving officer, the stamp of the concerned government entity and a date indicating the date of receipt" Indeed, I subscribe to the position taken by this court in the herein above two cases as depicting the correct position of the law in relation to proof of service of 90 days' notice. See also Vedastus Rugachwa versus CAMUSAT-Tanzania Ltd & 6 others (Supra). Since exhibit P4 has no signatures, stamps or the date indicating whether the 2nd and 3rd defendants were served and received the notice, it is obvious that the plaintiff has failed to prove that he duly complied with requirement of section 6 (2) of the Government Proceedings Act,[Cap.5 R.E 2019]. Before I pen off, I would like to state that; any party who seeks to sue the government must; one; prepare a notice of not less than 90 days of intention to sue the government. Two, the notice must specify the basis of the claim. Three; notice must be addressed and served to the concerned Minister, Department or Officer and Four; the Attorney General and the Solicitor General must be duly served with a copy of the notice. That is what section 6 (2.) of the Government Proceedings Act requires. In the upshot, having resolved the 2nd issue in the negative, there is no legal justification to continue resolving the rest of the issues. It is common understanding that where the suit is found to be incompetent, the remedy is to strike it out. That being the position, 13 this suit is hereby struck out on the ground of being incompetent. It is so ordered. Dated at Bukoba this 13th day of December, 2023. e: l ngiqmana JUDGE 13/12/2023 Court: Judgment delivered this 13th day of December in 2023 in the presence of Mr. Abel Rugambwa learned advocate for the plaintiff, Mr. Victor Mhana learned state Attorney for the defendants and Ms. Queen Koba B/C. E.L. NGIGWAWA 13/12/2023 14