razaki omari 12 others v buseresere village council 6 others 2023 tzhc 23788 10 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA

AT MWANZA LAND CASE NO. 12 OF 2022 1. RAZA KI OMARI 2. FIKIRI B. MAGADULA 3. ARISTACUS MATHIAS KARUMUNA 4. ATHUMANI MAZEMULE 5. ANTHONY GAMBA 6. FREDRICK RAPHAEL MKOPI 7. TAWA CHARLES PLAINTIFFS 8. MASHAKA KITENDE 9. NYAMIZI MWALULI SHAGA 10. PILI SAREHE 11. MARCO KATUNDA 12. CRISPIINE BENNY KAGOMA 13. ROSE JACKSON MASUNGA (Administratrix of the estate of the late Obadia Madini Mulokozi)

VERSUS 1. BUSERESERE VILLAGE COUNCIL 2. DEUS MSIBA 3. MASUMBUKO ELIAS 4. DAUD RUSETURA DEFENDANTS 5. PAULO ODEMBA 6. CHATO DISTRICT COUNCIL 7. THE ATTORNEY GENERAL 1

RULING 4/9/2023 & 10/10/2023 ROBERT, J:- This matter came before the Court on a Preliminary Objection raised by the 1st, 6th, and 7th Defendants (hereinafter collectively referred to as "the Defendants") challenging the competence of the Plaintiffs' suit. The primary ground of objection was the alleged failure by the Plaintiffs to serve a 90-days' notice to the Defendants and the Solicitor General as required by law. The Defendants contended that the Plaintiffs' failure to comply with the statutory notice provisions, as stipulated in Section 6(2) of the Government Proceedings Act Cap 5 R.E 2019 and Section 190(1) of The Local Government (District Authorities) Act cap 287 as amended by the Written Laws (Miscellaneous Amendment) Act No. 01 of 2020, rendered the suit incompetent. Section 6(2) of the Government Proceedings Act Cap 5 R.E 2019 mandates that no suit against the Government shall be instituted unless the 2 claimant serves a notice of not less than ninety days of their intention to sue the Government, specifying the basis of the claim, and provides a copy to the Attorney-General and the Solicitor General. Similarly, Section 190(l)(a) of the Local Government (District Authorities) Act, (CAP. 287) as amended by Section 31 of The Written Laws (Miscellaneous Amendment) Act No. 01 of 2020, stipulates that no suit shall be commenced against a local government authority unless

a ninety days' notice of intention to sue has been served upon the local government authority, with a copy to the Attorney General and the Solicitor General. The Defendants argued that the Plaintiffs did not serve the required 90- days1 notice on the 1st, 6th, and 7th Defendants, and the Solicitor General. They emphasized the absence of proper documentation, such as the lack of stamps and signatures from the 1st, 6th, and Solicitor General on the notice annexed by the Plaintiffs. In response, the Plaintiffs objected to the characterization of the Defendants' submissions as a proper Preliminary Objection. They argued that the objection required the Court to delve into factual matters, contrary to 3 the nature of a preliminary objection, which should be based on points of law. The Plaintiffs contended that the presentation of evidence, including the 90-days' notice, was premature at this stage. They asserted that such evidence could be tendered during the hearing stage, as per the provisions of Order XIII Rule (1) of the Civil Procedure Code (Cap 33 R.E.2019). Upon careful consideration of the submissions made by both parties, this Court finds that the preliminary objection raised by the Defendants is meritorious. The statutory provisions cited by the Defendants are clear and unambiguous in their requirement for a 90-days' notice before instituting a suit against the Government

or a local government authority. The Plaintiffs' assertion that the objection requires delving into factual matters is unfounded. The objection is founded on a pure point of law - the failure to adhere to a statutory prerequisite. The statutory provisions cited by the Defendants are clear and unambiguous in their requirement for a 90-days' notice before instituting a suit against the Government or a local government authority. The omission 4 of the Solicitor General in the list of the served institutions as noted in paragraph 13 of the Plaint and failure to serve the 1st and 6th Defendants as noted on the notice annexed to the Plaint, contravenes the statutory prerequisites. The Court acknowledges the Defendants' reliance on precedents, particularly HC Civil Case No. 28 of 2021, Audacity Intercon (T) Limited v. Bukombe District Council and The Attorney General, and HC Case No. 4 of 2021, Msafiri Makindi Mtigandi v. Mwanza City Council and 3 others. These cases emphasize the mandatory nature of the 90-days' notice requirement, and the failure to establish compliance renders the case incompetent. The Plaintiffs' reliance on Order XIII Rule (1) of the Civil Procedure Code to establish proof of service is misplaced as this rule pertains to the production of evidence during the hearing stage, not the fulfillment of mandatory statutory requirements at the stage of filing the case

against the Government. This Court stated in Msafiri Makindi Mtigandi (supra) that the requirement of providing a 90-day notice is a precondition to commencing legal action against the Government and its fulfilment must be demonstrated at the time of initiating the suit. 5 In light of the above, this Court sustains the preliminary objection raised by the Defendants. The Plaintiffs' failure to serve the mandatory 90-days' notice on the 1st and 6th Defendants, and the Solicitor General, renders the suit incompetent. Accordingly, the Plaintiffs' suit is hereby struck out. Considering the circumstances of this matter, each party shall bear its own cost. 6