ROBERT MRISHO KANDEGE CIVIL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CIVIL CASE NO. 27622 OF 2023 ROBERT MRISHO KANDEGE (as Administrator of the estate of the late Revocatus Seleman Sungura) ……………………… APPELLANT VERSUS STEVEN JUMA @ LYAYOGA ……..……………………………...……. 1ST DEFENDANT TANZANIA ELECTRIC SUPPLY COMPANY LIMITED …….……… 2ND DEFENDANT NATIONAL INSURANCE CORPORATION OF TANZANIA ……… 3RD DEFENDANT HON ATTORNEY GENERAL …………………………………….……… 4th DEFENDANT RULING MWENEMPAZI, J. The plaintiff herein named has filed a suit against all defendants jointly and severally, claiming for damages to the tune of Tanzania Shillings Three Hundred Million (Tshs. 300,000,000/=) only for the death of Revocatus Seleman Sungura @ Levocatus Sungura as a result of a fatal motor vehicle accident caused by careless driving by the 1st Defendant, an employee of the 2nd defendant. The event occurred on 31st August 2021, when the deceased was on his way home from his business at Mpanda town where he used to work. Upon 1 arrival at Misunkumilo area along Kigoma road, he was knocked by a ladder which was being carried in the motor vehicle belonging to the 2nd defendant with Registration No. SU 44334. At the time it was being driven by the 1 st defendant. After being knocked the victim fell down unconsciously whereby he was rushed to Katavi Regional Hospital for treatment. He did not stay longer, he passed away. According to autopsy he sustained a fracture of the skull. As a mater of process, the body was handed over to the relatives for burial and the driver was charged with traffic offence Traffic Case No. 19 of 2021 whereby he was found guilty and convicted. The motor vehicle in question, was at the time, insured by National Insurance Corporation of Tanzania. The 2nd Defendant avers that it is the 3rd Defendant who is liable to pay damages to the plaintiff though the deceased is not a party to the insurance contract between the 2nd and 3rd Defendants. The deceased is survived with a widow, children and dependants who were highly depending on him for their daily bread. The plaintiff was appointed administrator of the estate of the late Revocatus Seleman Sungura by the District Delegate of Mpanda vide Probate Cause No. 11 of 2022 and Misc. 2 Civil No. 06 of 2023. It is the averment of the plaintiff that efforts to demand payment of damages by the 2nd defendant has proved futile hence this suit. Upon service of the claims to the 1st, 2nd and 4th defendants, the third defendant has raised a preliminary objection on point of law that: 1. The suit against the third defendant is bad in law for being instituted contrary to section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019]. 2. That the plaintiff has no cause of action against the third defendant. At the hearing of the preliminary objection parties prayed to proceed by way of written submission, which prayer was granted. The plaintiff was being represented by Elias Julius Kifunda of Kifunda and Company Advocates and the Defendants were being represented by Mr. Fortunatus Mwandu, State Attorney for the 1st, 2nd and 4th Defendant and Mr. Christopher Bulendu Advocate for the 3rd defendant and whose brief was being held by Mr. Fortunatus Mwandu, State Attorney. All parties complied to the scheduling order of the court. The counsel for the 3rd defendant has submitted on the first point of objection that section 6(2) of the Government Proceedings Act, [Cap 5 R.E 3 2019] require claimant intending to sue the Government to submit a not less than ninety days’ notice of intention to sue the Government prior to institution of the suit. The third defendant is a public corporation owned by the Government of Tanzania through the treasury Registrar, hence before suing her in this suit, the plaintiff was supposed to comply with the requirement of the law. He has argued that failure to submit the notice of intention to sue the third defendant makes a suit against her bad in law for contravening the requirement of section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2022]. On the second point the 3rd defendant has submitted that the suit against the third defendant is based on the alleged insurance contract between the second and third defendant as alleged in paragraph 12 and 13 of the amended plaint. This means that the plaintiff not being a party to the insurance contract, he has no direct right of action against the insurer (the third defendants). On the other hand, the plaintiff has a right of action against the driver and owner of the motor vehicle alleged to have caused the accident. 4 The third defendant could be joined in this suit by a third party procedure under Order 1 Rule 14 of the Civil Procedure Code, [Cap 33 R.E 2019] by the 2nd defendant, if he believes the motor vehicle alleged to have caused the accident was insured by the third defendant and he is entitled to the indemnity upon being found liable. He has cited the case of Hassan Rashid Vs. The National Insurance Corporation of Tanzania, Civil Appeal No. 39 of 2018. In reply the counsel for the plaintiff has argued as follows: in respect of the first point of objection he has submitted that the third defendant was joined as a necessary party and the law allows any party, even the Government to be joined as a necessary party in a suit. He has cited the provisions of order 1 Rule 10(2) of the Civil Procedure Code, [Cap 33 R.E 2019]. He has submitted further that on the 5th August 2024 the plaintiff made an oral prayer before the court to make an amendment to join the 3rd defendant as the necessary party, which application was granted. He has argued that under the circumstances section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019] does not apply and there is no any provisions of the Government Proceedings Act, which states that the Government should not be joined in a suit as a necessary party without prior 5 notice of ninety (90) days. He insists that ninety (90) days notice is not a requirement when a Government is joined as a necessary party in a suit. As to the 2nd point of objection the counsel for plaintiff has argued that it is not a pure point of law. He has cited the case of Mukisa Biscuits Manufacturing Ltd Vs. West End Distributors Ltd [1969] EA 696 at page 100 and the case of Karata Ernest and Others Versus Attorney General, Civil Revision No. 10/2010. He argues that the question as to whether the plaintiff has a cause of action against the third defendant is a matter to be ascertained during the trial. Because there is a contest between the 2nd defendant and 3rd defendant on who is liable. The 2nd defendant has averred in a written statement of defence that it is the 3rd defendant who is liable. The counsel for the plaintiff has concluded by submitting that both points of preliminary objection raised by the 3rd defendant are devoid of merits. He has prayed that they be dismissed. In rejoinder, the counsel for 3rd defendant has argued that the third defendant was joined in this suit on allegation that she was the insurer of the motor vehicle alleged to have caused the accident. In this aspect, the third defendant could be joined as a third party to suit, by the second 6 defendant, under Order 1 Rule 14 of Civil Procedure Code, [Cap 33 R.E 2019] and not as a necessary party. The party who is joined as a necessary party in this is the 4th defendant only as per section 6(3) of the Government Proceedings Act, [Cap 5 R.E 2019] as amended by section 25(3) of the Written laws (Miscellaneous Amendments) Act, 2020. The plaintiff’s counsel also has further argued that section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019] does not apply in joining the third defendant in the suit as a necessary party. Also, there is no provision in the Government Proceedings Act which provides that the ninety days’ notice shall not apply when the Government is to be joined as a necessary party to the suit. The necessary party in suits involving Government is the Attorney General and the ninety days’ notice requirement applies as well. On the 2nd point of objection the counsel for the third defendant has submitted that since the alleged relationship between the second and third defendant is that of insured and insurer, respectively, then the former, Then the former was the one to join the latter in the suit as a third party by way of third party procedure under Order 1 Rule 14 of the Civil Procedure Code, [Cap 33 R.E 2019]. The third defendant cannot be joined in the suit as a defendant by the plaintiff on the basis of allegations made by the 7 plaintiff. He argues that the second point of preliminary objection on a cause of action is purely on a cause of action is purely a point of law because Order 1 Rule 14 of Civil Procedure Code, [Cap 33 R.E 2019] was not complied with in joining the third defendant to the suit on the basis of her alleged relationship with the second defendant and allegations raised by the latter. The objection raised has two angles of attack of the suit against the government. One, non-compliance to section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019]; two faulting the procedure followed to join the 3rd defendant into the suit by the plaintiff. As to the first point, the question is whether by not first serving notice to the third defendant the plaintiff contravened the law as it has been faulted by the 3rd defendant. Clearly from the submissions made by the counsel for the plaintiff the ninety (90) days notice was not issued to the 3rd defendant before instituting a suit against her or taking her into a suit as one among the defendant. The counsel for the plaintiff has submitted and argued that since there was a prayer to join the 3rd defendant as one of the parties which was granted, then there was no need to comply with section 6(2) of the Government Proceedings Act, [Cap 6 R.E 2019]. 8 According to section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019]: ”No suit against the Government shall be instituted, and heard unless the claimants previously submit to the Government minister, department or office 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 General”. In the case of Raymond R. Charles Vs. Buhangaruti Village Council and Others (Land Case No. 11 of 2022) 2023 TZHC 2334 (13 December 2023) it was held that: “Notably, compliance of this section is not optional but mandatory since its non-compliance renders the suit incompetent for being prematurely filed”. In the same referred case it was also held that: “The reason behind giving notice to the Government before filing a suit is to give the government an 9 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”. The effect of not complying to the provisions of section 6(2) of the Government Proceedings Act, [Cap 5 R.E 2019] is to render the suit incompetent before the court (Refer Said Rajab Salum Vs. City Council of Dodoma and two Others (Land Case No. 7 of 2022) TZHC 14673 (4 November 2022). Under the circumstances the order of the court allowing an amendment to join the 3rd defendant cannot be taken to have condoned the requirement to issue notice to the 3rd defendant regard being had that, the third defendant was not served with the notice previously served to other parties (2nd and 4th defendant in the suit). This is necessary given that the ninety days notice is a requirement whenever suing the Government (Government Ministry, local Government Authority, Independent Department, Executive agency, Public Corporation, parastatal organization or public company established under any law which the Government is a majority shareholder). However, the position holds so far as the third 10 defendant is concerned assuming that the plaintiff has a direct cause of action against the 3rd defendant. For the reasons and explanations, the suit against the 3rd defendant is incompetent for want of 90 days notice. On the second point of objection, the 3rd defendant has argued that the plaintiff had no cause of action against the third defendant. A more simple question is whether the plaintiff had a direct claim against the respondent. It has been argued by the 3rd defendant that the relationship between her and the 2nd defendant is that of an insurer and the insured. Thus, the proper way to join the 3rd defendant was to join her as third party third party procedure, since the plaintiff was not privy to the contract between the 2nd defendant and the third defendant. A procedure fit to be utilized therefore is a third party procedure. The counsel has cited the case of Hassan Rashid Vs. National Insurance Corporation of Tanzania (Civil Appeal No. 39 of 2018) TZHC (19TH day of December, 2019) where it was. In the cited case the High Court held that: “The insurer obligation is tied to a judgment being issued against a person insured. As held in Vasudev Mudaliar 11 Vs. Caledonian Insurance Co. and Another AIR 1965 Mad 1594) the contract of motor vehicle insurance is in essence a contract of indemnity and not one of guarantee as contender by the appellant. Being a contract of indemnity, the policy is governed by section 76 and 77 of the law of contract, [Cap 435]. According to these provisions a contract of indemnity, is entitled to recover from the insurer damages and costs which he may be compelled to pay to third parties in respect of legal proceedings over risks subject to the insurance policy applies (see section 77(a) – (c). The case of Kanyanja V. New Indian Assurance Company Ltd 1968] 1EA 295 (CAK) which was cited by the trial magistrate, provides a good authority in determining the issue in question. In this case, it was held that, it is not open for a third party to sue the insurance company, save where he has a statutory right to sue or where he has already obtained a judgment against the insured (the motor vehicle owner)”. 12 With the explanation above, the plaintiff in our case has no cause of action against the 3rd defendant and since he has not yet obtained a judgment against the 1st and 2nd defendant, the suit against the 3rd Defendant is premature. I would also in remark say that the 2nd point of objection is a pure point of law not as suggested by the counsel for the plaintiff. Under the circumstances, I therefore uphold all two point of objection raised and proceed to strike out the suit against the third defendant. Based on the circumstances no order is issued as to costs. It is ordered accordingly. Dated and signed this 13th day of February, 2025. T.M. MWENEMPAZI JUDGE 13