SALIM ALLY MUHANDO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND CASE NO. 167553 OF 2024 SALIM ALLY MUHANDO (An Administrator of the late Ally Amri Mhando)......................................... PLAINTIFF VERSUS TANZANIA BUILDING AGENCY......................................................................... 1stDEFENDAN TANZANIA NATIONAL ROADS AGENCY........................................................... 2ndDEFENDAN THE ATTORNEY GENERAL.................................................................................. 3rdDEFENDAN RULING Date of Last Order: 29 /10/2024 Date of Ruling: 15/11/2024 MASABO, J.:- I The plaintiff, an administrator of the estate of the late Ally Amri Mhando, is suing the defendants for unlawful demolition of house No. 85/B located at Singida Municipality, the property of the late Ally Amri Mhando and he is claiming from them jointly and severally a sum of TZS 200,000,000/= in compensation, general damages and costs of the suit. Upon being served with the plaint the defendants filed a joint written submission of defence I accompanied by a two-limbed notice of preliminary objection to thei effect i that; one, the plaintiff's administration is out of the prescribed statutory time contrary to section 107(1) and (2) of the Probate and Administration Page 1 of 7 of Estate Act suit and two, the suit is bad in law for contravening section 6(2) of the Government Proceedings Act. The preliminary objection was disposed of by way of written submissions. The submission in chief was drawn and filed by Mr. Erasto Stephen Baluwa, learned State Attorney whereas the reply submission was drawn and filed by Mr. Mandela Nuhu Kisawani, learned advocate. Addressing the court on the merit of the first limb of the preliminary objection, Mr. Baluwa submitted that the administrator of the estate is mandatorily required by section 107 (1) (2) of the Probate an Administration of Estate Act, Cap 352 R.E 2019 to exhibit and inventory containing a full and true statement of all properties of the estate within six months of his appointment as executor or administrator and to file the account of the estate within one year. It was, therefore, important for the i plaintiff herein to indicate that the suit property was among the assets of i the estate of the deceased but nothing in the plaint shows that the suit property was indeed the property of the late Ally Amri Mhando. Submitting in support of the second limb of the objection, Mr. Baluwa argued that as per section 6(2) of the Government Proceedings Act Cap. 5, suits against the Government must be presided by a 90-day notice of the intention to sue the Government. The copy of the notice is to be served to the Attorney General and Solicitor General. In the present suit, there is no proof that the notice which was appended to the plaint as annexure SA-5 was served and received. The provision above has therefore been offended. In fortification, he cited the case of Mashaka Abdallah and Another vs Page 2 of 7 Bariadi Township Council and Two Others, Land Case No. 3 of 2020[2021] TZHC 6534 TanzLII. In conclusion, he prayed that the suit be struck out for failure to serve 90 days' notice. For the plaintiff, Mr. Kisawani, before submitting on the merits of preliminary objections, drew the attention of this court to the defendant's default in filing the written submission. He argued that, as per the court schedule, the defendants had to file their submission in chief on or before 8th October 2024. The reply was to be filed on or before 22nd October 2024 and a rejoinder if any on 29th October 2024. Inversely, the submission in chief was not filed on 8th October 2024. It was filed on 10th October 2024. Relying in the case of Famari Investment (T) Ltd vs Abdallah Selemani Komba, Misc. Civil Application No. 41 of 2018 and the case of P3525 LTCOL Idahya Mganga Gregory vs The Judge Advocate General, Court Martial Criminal Appeal No. 2 of 2002, he argued that the failure to file the submission on the scheduled date was a fatal omission with serious consequences tantamount to the consequences for non- appearance when the matter is scheduled for hearing and he invited the court to invoke such consequences. On the merit of the preliminary objection, he submitted that the first limb of the preliminary objection is misplaced as the case at hand is a land case and not a probate/administration cause. Thus, the inventory and the; final account have no place. He submitted further that, in a suit for recovery of the land of the deceased, the administrator of his estate should be taken to claim as if there had been no interval of time between the death of the i deceased and the grant of the letter of administration/the probate. Thus Page 3 of 7 the plaintiff being the administrator of the estate of Ally Amri Mhando has the right to claim and continue to collect the deceased's estate and he is rightly doing so under 35 of the Law of Limitation Act Cap 89 R.E. 2019. He added that Item 22 of Part I of the Schedule to the Law of Limitation Act prescribes that the time limitation for recovery of land is twelve years from the date when the cause of action accrued. This is irrespective of when the letter of administration was granted as stated in the case of Yusufu Same & Another vs Hadija Yusuf [1996] TLR 347. Since in the present case, the cause of action accrued in 2022, the suit is well within the time prescribed by the law. Regarding the second limb of the preliminary objection, it was argued that it is an afterthought and does not qualify to be a preliminary point of law as per the landmark case of Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Ltd [1969] E.A 696 because it requires evidence of proof of service. He added that the 90 days' notice was served to the Attorney General on 5th April 2024 and the 1st defendant received the notice on 4th April 2024. The case at hand is therefore distinguishable from the cited cases because unlike in those cases, in the instant case, the notice was served and received by the Attorney General. He concluded with a prayer that the preliminary objection be overulled. In rejoinder, on the first limb of objection, Mr. Baluwa reiterated his submission in chief. He also distinguished the cited case of Yusuf Same (supra). On the second iimb of the objection he rejoined that) the submission by the plaintiff's counsel is misconceived in the sense that the first defendant herein is not and has never been an agent of the Principal Page 4 of 7 Secretary of the Ministry of Construction. Even if it was an agent, the law requires the third defendant to be served with the 90 days' notice. The requirement was not met by the plaintiff. On the failure to file the submission on time, Mr. Baluwa submitted that the written submission was ready for filling on 8th October 2024 but could not be filed on that date due to technical problems in the electronic case management system. Hence, it was filed on 10th October 2024. I have considered the submission by the parties. I will first deliberate on the defendants' delayed filing of written submission. As correctly submitted by the plaintiff's counsel, as per the court's schedule, the defendants had to file their submission in chief on or before 8th October 2024. The reply was to be filed on or before 22nd October 2024 and a rejoinder if any on 29th October 2024. Admittedly, the defendants did not file their submission in chief on time. They filed it on 10 October 2024. Mr. Baluwa has submitted that the delay was occasioned by a technical problem in the judiciary's electronic case management system. With respect to the learned State Attorney, this appears to be an afterthought and a lie as the last page of the submission shows that, it was drawn on 10th October 2024 meaning that there was nothing to file on 8th October 2024. I It is now a settled principle of law in our jurisdiction that hearing by way of written submission is equivalent to a viva voce hearing and the failure to file written submission when ordered, is tantamount to the failure to enter an appearance on the date of hearing which renders the application,! suit or appeal ripe for dismissal if the defaulting party is the plaintiff, appellant or applicant. There are plenty of authorities on this. The following two cases Page 5 of 7 sufficiently illustrate this. In the case of Fredrick Mutafungwa vs CRDB 1996 Ltd and Others, Land Case No. 146 of 2004 (unreported) the court held that: Times and out of numbers, thus Court has held that the practice of filing written submissions is tantamount to a hearing and therefore failure to file submission has been linked to a non- appearance for want of prosecution. Cementing this position in the case of National Insurance Cooperation (T) Ltd and Another vs. Shengena Limited Civil Application No. 20 of 2007 (CAT-Unreported), the Court of Appeal held that: "Failure by a party to lodge written submissions after a court has ordered hearing by written submissions is tantamount to being absent without notice on the date of hearing." Thus, by failing to file their written submission in support of the preliminary objection which they have raised, the respondents and their counsel are considered to have defaulted appearance without notice and the consequences stipulated under Order IX of the Civil Procedure Code; Cap 33 must follow. As the defaulting party are the defendants who, in the context of II preliminary objection, have the first right of audience, their default appearance on the date of the hearing attracts consequences similar to the consequence for default appearance by the plaintiff, applicant or appellant which is the dismissal of the matter for want of prosecution. In the foregoing, I find the preliminary objection to have been abandoned and Page 6 of 7 they are consequently dismissed for want of prosecution. Costs on the defendants. DATED at DODOMA this day of 15th November 2024. Page 7 of 7