Salehe Kasimu Matandiko Meaning of Preliminary Objection

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LAND CASE No 29 OF 2024 BETWEEN SALEHE KASSIMU MATANDIKO PLAINTIFF VERSUS ANDREA LAURENT NAFILISA & 5 OTHERS DEFENDANTS RULING MRUMA J, The Plaintiff instituted this suit against the six Defendants jointly and severally for a declaration that he is a lawful owner of a parcel of unregistered land measuring 60 metres wide and 120 metres long bordered by MIendi river to the North, one Mansuli Kwanga to the West, William Daraja to the East and one Lapu Daraja to the South. The land is located at MIendi neighbourhood of Madibira Village Mtimbira Ward, in Maiinyi District of Morogoro Region, and other consequential reliefs. Upon being served the fifth and sixth defendants filed their joint written statement of defence denying the Plaintiff's claims. Together with their joint written statement of defence, the said defendants raised the following preliminary objections:- 1. That the Plaint is bad in law for not being endorsed by the Plaintiff; 2. That the Plaint is bad in law for containing improper verification; 3. That the suit is pre-maturely filed and bad in law for failure to serve Ninety days statutory Notice to proper parties. The preliminary point of objections were argued by way of written submissions. In his submissions Mr Nzumbe Eliackim Machunda learned State Attorney who represented Defendants dropped preliminary objections number one and two and proceeded to argue ground number three which was to the effect that the suit was prematurely filed and bad in law for failure to serve the 90 days notice to proper parties. The relevant provision of the law in point here is section 6(2) of the Government Proceedings Act [Cap 5 R. E. 2019] which provides that:- ''No suit against the Government shaii be instituted and heard uniess the ciaimant previousiy submits to the Government Minister, Department or Officer concerned a notice of not iess than ninety days of his intention to sue the Government, specifying the basis ofhis ciaim againstthe Governmentandshaii send a copy ofhis claim to the Attorney Generaland the Solicitor General" The Defendants' argument is that the fifth defendant being a local government authority no suit could be instituted against it before the claimant had compiled with mandatory requirement of the law under the above quoted provision of the law. On his part, the Plaintiff challenged the competency of the preliminary objection argued and contended that whether or not the Attorney General was served with the Notice is a fact which need to be ascertained. According to the Plaintiff a preliminary objection cannot be raised if any fact has to be ascertained as it was stated in a landmark case of Mukisa Biscuits Manufacturing Company Ltd Versus West Ends Distributors Limited(1969)E. A.696 where it was held inter alia that:- "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point ofiaw which is argued on the assumption that aiifacts pleaded by the other side are correct.. It cannot be raised if any fact has to be ascertained or what is soughtis the exercise ofjudicial discretion" Basing on the above principle, the plaintiff has argued this court to dismiss the Defendant's preliminary objection. I have carefully considered the argued preliminary objection and the submissions for and against it and it is my considered view that the objection has merits. As I stated recently in Labour Revision No 7 of 2023 between Morogoro International School & Board of Governors of the Morogoro International School Versus Michelle Massey & John Andrew Massey decided on 29^^ September 2024, in interpreting the principle laid down in Mukisa Biscuits case (supra) courts should not end up in reciting what his Lordship Sir Charles Newbold stated on what constitutes a preliminary objection but they should go father to explore what he meant by the term 'a pure point of law'. The observation of Law J.A. who sat in the same panel with Sir Charles Newbold sheds light on this issue. The learned judge stated: "Preliminary objection consists ofa point ofiaw which has been pleaded or which arises by dear implication outofpleadings and which if argued as a preliminary objection may dispose of the suit" The learned judge gave example of lack of jurisdiction and time limitation as pure points of law. From the examples given Law 3, lack of jurisdiction and limitation of time are both points of law but to constitute preliminary objection they must be pleaded or arise by clear implication out of the pleadings. In the present case there can be no dispute that in view of the provisions of section 6(2) of the Government Proceedings Act[Cap 5 R.E. 2019], giving 90 days Statutory Notice is mandatory pre requisites before instituting a case against any government affiliated institution or department. The Plaintiff is suing a Village Council which is a local government authority. It has been pleaded in the pleadings that he did not give the 90 days notice as required. This is a point of law which may dispose of the matter by way of preliminary objection because instituting a suit against the government without giving 90 days notice makes the suit bad in law. I therefore find that this is a pure point of law which has been pleaded in the pleadings of the parties and is clearly arising out of the pleadings and having been argued as a preliminary objection disposes of the suit. Accordingly the preliminary objection No 3 is sustained and Land Case No 2968 of 2024 is struck out for faiiure to issue 90 days statutory notice. Given economic weight of the parties, I make no orders as to the costs. Order accordingiy, Op A. R'/MftUMA O C V e? JUDGE :r: UJ X 3. 10. 2024 "r-