20160310 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA

AT DODOMA CIVIL CASE NO. 10 OF 2011 RICHARD KASOGOTA ................................................ PLAINTIFF

VERSUS , l. PERMANENT SECRETA~.X (P-5➔ TREASU_RY . . 2~ TANZANIA REVENUE A_UTHQRITY (TRA) ............... DEFENDANTS · , "-- ____ Q2/-l-1-/2-0l5--&-l0/03f2()1-6 (,

RULING MAKURU, J. The Attorney Generals' Chambers, Dodoma Regional Office has filed a Preliminary Point oLObj~ction in respect of the 1st defendant that the case .· befbre the court is bad in law for contravening the Governmeni.f..,· Pro"ceedings Act, Cap 5 R.E. 2002.(hereinafter referred to as "the~ Act'_'). On the 2nd day of November, 2015 when this matter was called for hearing of the Preliminary Objection Ms. Magoma submitted that the plaintiff contravened the provisions of section 6 (3) of the Act. She contended that the said provision requires the plaintiff to join the Attorney General as a necessary party where a Government Department or Office is sued. · In the present ·case, she argued that the 1st defendant is the Permanent Secretary Treasury. As the Plaintiff was suing the 1 / Permanent Secretary Treasury, she was of the view that the Attorney General was supposed to be sued as a necessary party. Failure of that, she contended that the suit is incompetent. she prayed that the suit be struck out so that the plaintiff follows the relevant procedure. The plaintiff vehemently objected what was submitted by Ms. Magoma. He was of the view that he could file a suit against his employer, the 1st defendant in this case. He contended that he gave notice of intention to sue but he did not attach it to the plaint. He maintained that there was no need to join the Attorney

General. To support his argument, he cited the case of Thabit Ngaka is Regional Fisheries Officer ( 1973) LRL 24 whereby Mfalila,J., as he then was, held that it was proper to sue the Regional Fisheries Officer without joining the Attorney General. He further argued that the 2nd defendant, Tanzania Revenue Authority (TRA) is a legal entity which can sue and be sued. It was her stand that it was not necessary to join the Attorney General in this case. He concluded by praying that the Prel'iminary Objection be dismissed. I have dispassionately considered the rival contentions and weighed them against the relevant laws. With due respect, I agree with Ms. Magoma that the suit is bad in law for contravening the provisions of section 6 (3) of the Act. Section 6 (3) of the Act provides as hereunder: 2 "All suits against the Government shall, after the expiry of the notice be brought ogainst the Attorney General, and a copy of the plaint sho/1 be served. upon the Government Ministry, Department or Officer that is alleged to have committed the civil wrong an which the civil suit is based." Under Section 2( 1) of the Act "Officer" in relation to the Government includes the President, a Minister and any servant of the Government. In the present case the Officer whom it is alleged to have ,, committed the civil wrong on which this civil suit is based is the Permanent Secretary Treasury. I

am of the considered view that this is a suit against the Government and it is mandatory that after the expiry of a notice to be brought against the Attorney General that is when a suit is commenced. In the present case, the plaintiff admitted to have mentioned the notice is paragraph 17 of the plaint, unfortunately it was not attached to the plaint. As rightly stated by Ms. Magoma, the Attorney General was supposed to be joined as a necessary party ( See the case of Suryakante D. Remji V. Serving Financial Ltd and Others (2002) TLR 121) The plaintiff relied upon the case of Thabit Ngaka V. Regional Fisheries Officer to substantiate his argument that it is not necessary to join · the Attorney General. In Thabit's case (supra) it was held that: - "(3) Suits brought against the government under the Employment Ordinance are exempted from the 3 provtstons of the Government suits Ordinance, Cap. 5, and may be taken as if he government were private employer." The facts of Thabit's case can be distinguished from the facts of the present case. In Thabit's case the plaintiff initiated the proceedings by lodging a complaint with the Regional Labour Officer. In the present case the plaintiff filed a suit in this court. I am of the coAsidered view that the cited case is irrelevant in · the circumstances of this case. For the above stated reasons, the Preliminary Objection is upheld. This case is struck out will costs.

JUDGE 10/03/2016 COURT: Ruling delivered in court this 10th day of March, 2016 in the presence of Ms. Magoma, learned State Attorney and 1n abs~~~:S~ _plaintiff and the 2nd defendant. /,"'·--- 1:./~ .. .··~t0·.:: 't'·-e. . l (C. W. MAKURU) ,.. ,;

JUDGE ,~ /2, ·--' --· --;::..-?.;, 10/03/2016 4