sebastian abdallah msola vs njombe regional manager tanroads 2014 tzhc 2305 16 april 2014

IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO. 3 OF 2014 SEBASTIAN ABDALLAH M S O L A ------------PLAINTIFF VERSUS THE NJOMBE R E G IO N A L -------------- DEFENDANT MANAGER, TANROADS 27/03/2015 & 16/04/2015 RULING K I H W E L O, J. There is a suit before me which arose out o f the defendant and/or his em ployees cum agents im pounding the P lain tiffs vehicle on the alleged pretex that it had over passed the weighbridge at Makambako on 7th February, 2013. Against the suit the Defendant has raised a notice of preliminary objection, to wit; 4 (i) That the suit is incompetent fo r suing Defendant (sic) with no suable legal capacity in contravention o f Section 3(6) (b) o f the Executive Agencies Act, No. 30 o f 1997 (Cap 245 RE 2002) as amended by the Finance Act No. 18 o f 2002. (ii) That the suit is incompetent fo r lack o f 90 days notice to sue the Government. The prelim inary objections were argued in writing, and the present is the ruling on the said prelim inary objection. It was submitted by Mr. Ntinangi, learned counsel for the Defendant, that the present suit has been brought against the Njombe Regional Manager who is not the proper party with legal capacity to be sued directly on his capacity as a mere manager of TANROADS a semi - automous Government Agency. Mr. Ntinangi reiterated that it is the agency (TANROADS) itself that has legal capacity to sue and being sued in its own name and that capacity is limited to contracts only. He referred to this court Section 3(6) (b) of the Executive Agencies Act Cap 245 RE 2002 as well as Rule 2(1) (b) of its Establishment Order Governm ent Notice Number 293 of 2000. I » Mr. Ntinangi forcefully argued that the above provisions require that whoever wishes to sue then he/she should sue the agency in its own name and that the legal capacity is limited to contracts only and not beyond. The Defendant cited the case of Total Tanzania Limited V TANROADS, Land Case No. 31 of 2006, High Court of Tanzania (Land Division) at Dar es Salaam (unreported) to bring home the proposition that the agency (TANROADS) cannot be sued in its own name for a matter which is not based on contract. Mr. Ntinangi further cited the case o f South Reight’s and Export Co. Ltd V The Branch Manager CRDB, Tanga Branch, Civil Case No. 5 of 2002, High Court of Tanzania at Tanga (unreported) as well as the case of Habili and Com pany Limited V TANROADS Equipm ent Pool Manager, Commercial Case No. 12 of 2012 as authorities for the proposition that no suit can stand for suing a non - existing legal entity in the eyes of the law. Mr. Ntinangi finally submitted that the Plaintiff has not complied to the m andatory requirem ent of Section 6(2) of the Government Proceedings Act, Cap 5 RE 2002 which requires a 90 days notice prior to suing the Government and he cited the case of 3 i Alyos Lyenga V Inspector General of Police and Another [1997] TLR 101 to cem ent his argument. On the other hand, Mr. Rwezaula, learned counsel for the Plaintiff submitted that the Njombe Regional Manager of TANROADS is a legal representative of TANROADS that was established under the Executive Agencies Act Cap 245 RE 2002 hence properly sued. To illustrate his argum ent the learned counsel cited a letter dated 9th April, 2013 directed to the Plaintiff as well as the Notice o f Sale Published on 7th March, 2014 both of which orchestrated by the Regional Manager. Mr. Rwezaula further sought the court to dispense justice without being tied up with technicalities and he invited this court to refer to Article 107A (2) (e) of the Constitution of United Republic of Tanzania of 1977. Let me begin with the first objection, which is whether the present suit has been brought against a non - existing legal entity. The Defendant’s view is that it is the agency itself (TANROADS) which has the capacity to sue or being sued in contract pursuant to Section 3(6) (b) of Cap 245 RE 2002 as well as GN No. 293 of 2000. The Plaintiffs submission is that the Njom be Regional Manager of TANROADS is a legal representative of TANROAD hence cannot exonerate him self from the liability by virtue of Cap 245 RE 2002. I have no doubt that Section 3(6) (b) of the Executive Agencies Act Cap 245 RE 2002 applies to capacity of Executive Agencies to sue and being sued as it reads; “3(6) Notwithstanding any other law an Executive Agency shall:- (a ) -------------------- (b) Be capable o f suing and being sued in its own name only in contract and in that respect all laws applicable to legal proceedings other than the Government Proceedings Act, /967 shall apply to legal proca 'd m gs to which the Agency is a party.M In the present case the Plaintiff has sued the Njombe Regional Manager, TANROADS who does not exist hence by any stretch of imagination one cannot sue a defendant who does not exist in the eyes of the law and this is a plain fact which cannot seriously be disputed by any legal mind. In the circum stances above I respectfully agree with Mr. Ntinangi and uphold the first limb of the preliminary objection. Hence the Plaint is defective for being brought against a non - existing legal entity. I will next examine the second prelim inary objection in which the court is urged to hold that the present suit is incompetent for lack of 90 days notice to sue the Government. The Defendant thinks that since the dispute is non - contractual as clearly stipulated under Section 3(6) (b) of Cap 245 RE 2002 then compliance to the mandatory requirem ent of Section 6(2) of the Government Proceedings Act, Cap 5 RE 2002 was a necessity. On his party the Plaintiff claimed that notice was served upon the defendant on 26/06/2014 and copied upon the Attorney General. However, it is surprising to notice that neither such notice was attached to the Plaint nor was the Attorney General made a party to this suit hence making the Plaintiffs claims baseless with no legs to stand. I entirely agree with the proposition made by the counsel for the defendant and the holding in Alyos Lyenga V Inspector General o f Police and Another (supra) that a prior issue of notice to the Government Institution or Officer and the Attorney General is a mandatory pre-requisite condition before one sues the Government. The second preliminary objection is also upheld in that the Plaintiff failed to comply with mandatory requirement of the provision of Section 6(2) of the Government Proceeding Act Cap 5 RE 2002 hence the suit is incompetent. In fine, I find that all the preliminary objections have substance as such the suit cannot stand so it is struck out with costs. The Plaintiff is at liberty to file a fresh suit subject to the law of limitation. It is accordingly ordered. — . «*— c/ V. W k lH W E 12LO i i • 5 I 'll |X\ . /JUDGE