RULING The Attorney General vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 000012614 OF 2024 (Originating from the Resident Magistrates Court of Songea at Songea in Civil Case No. 06 of 2016) THE ATTORNEY GENERAL ………..………………………….…………. APPLICANT

VERSUS ABEL MATABWA …..….……….………………….…..…………... 1ST RESPONDENT ERASTO FARAX SWAI .………………………...…...…………... 2ND RESPONDENT PATTY INTERPLAN LIMITED ….…………...….……..………... 3RD RESPONDENT MBINGA DISTRICT COUNCIL …………….………….………... 4TH RESPONDENT

RULING 1st & 18th November, 2024. KAWISHE, J.: In this application the applicant approached this court seeking an order for extension of time to file an application for revision of the decision made by Resident Magistrates Court of Songea at Songea in Civil Case No. 06 of 2016. The application is encountered by a point of 1 preliminary objection raised by the first respondent to the effect that, the application is an abuse of the court process. When the matter was called for hearing of the preliminary objection, the applicant was represented by Ms. Mariam Matovolwa, learned Senior State Attorney, Ms. Happiness Venance Mwolo, learned State Attorney appeared for the fourth respondent and the first respondent had the legal services of Mr. Eliseus Ndunguru, learned advocate. The matter was heard ex parte against the second and third respondents who failed to enter appearance even after serving them through substituted service by way of publishing the summons in Mwananchi Newspaper dated 24th August, 2024. The hearing of the preliminary objection was conducted orally. When invited to submit on the objection, Mr. Ndunguru argued that, the application is an abuse of the court process. He referred to the provisions of section 16(1) of the Government Proceedings Act (Cap. 5, R.E 2019) stating that the execution of a decree against the government is complete where a proper officer of the

court issues a certificate to the decree holder showing that the decree holder is entitled to a certain amount and must be paid. That, in accordance to the provisions of section 16(2) of the Government Proceedings Act (supra), after the issuance of the certificate, the judgment debtor’s officer is required to 2 pay the decree holder and the decree is deemed to be executed. He argued that, the decree shall not be executed only if the court’s order is made while there is a pending appeal or revision. Mr. Ndunguru contended that, in this application, the decision intended to be challenged by way of revision the certificate has been issued to the fourth respondent as admitted by the fourth respondent in her counter affidavit. He argued that, according to section 6 of the Government Proceedings Act (supra), once the certificate is issued the government paying authority has to pay accordingly. He added that an application which is pending before the trial court is for the request of the Director of Mbinga District Council, the paying officer, to show cause as to why he has not paid the decreed amount. He argued that, praying for extension of time to file an application for revision for a matter whose execution is complete is an abuse of the court process. He amplified that, the abuse of court process is the act of filing a case in the court while knowing that the same is

impracticable. Moreover, Mr. Ndunguru argued that, the application at hand, in which the Attorney General is the applicant, originates from Civil Case No. 06 of 2016 where the judgment was issued ex parte against the second, third and fourth respondents. That, the applicant has preferred this application as a chief legal advisor of the fourth respondent. That 3 the applicant as the chief legal advisor to the fourth respondent cannot go against the instructions of his client and sue the fourth respondent on a reason that they are one and the same legal personnel. He went on submitting that, the records show that the fourth respondent once filed Miscellaneous Civil Application No. 16 of 2017 trying to set aside the ex parte judgment but the application was dismissed. That, the fourth respondent never bothered to appeal against the decision in Miscellaneous Civil Application No. 16 of 2017 until the filing of this application by the applicant which is an abuse of court process. Furthermore, Mr. Ndunguru averred that, in both the supporting affidavit filed by the applicant and the counter affidavit filed by the fourth respondent there is nowhere showing that the fourth respondent refused to pay the money. That the fourth respondent at paragraph four of the counter affidavit states that, after receiving the certificate she notified the applicant who is the legal advisor. He argued

that, it is clear that, under section 6A(1) of the Government Proceedings Act (supra), the applicant through the office of the Solicitor General can intervene a matter instituted against the government and its institutions or departments but in this application since the execution is complete there is no chance of intervening. He submitted that, it is a cardinal principle 4 that, litigations must come to an end and one of the ways of making litigations to come into an end is for the court to be well guided against the abuse of the court process. He prayed for this application to be struck out. On her party, Ms. Mwolo the 4th respondent’s learned State Attorney submitted that, it is a cardinal principle that courts have to uphold justice. She responded to the submission made by the first respondent’s learned counsel that, the fourth respondent and the applicant are not the same legal entity. That they are established under different laws and their duties and responsibilities are distinct. She added that, it is not correct that the matter has been executed rather, it is pending before the trial court for execution. She submitted that, when the certificate was issued forcing the fourth respondent to pay the decreed amount, the fourth respondent informed the applicant, as a result this application was filed. She went on submitting that, a preliminary objection must be on points of

law. The case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] 1 EA 696 was referred to cement her argument. She contended that, the first respondent’s learned counsel in his submission stated facts instead of law. That he has been quoting paragraphs in the fourth respondent’s counter affidavit instead 5 of submitting on how the application abuses the court’s process. She prayed for the point of preliminary objection to be dismissed and the application be heard on merit for the interest of justice. Ms. Matovolwa, in her submission contested the preliminary objection. She argued that, it is baseless for being on points of facts and not law. Moreover, she refuted the first respondent’s counsel stance that in accordance to the provisions of section 16(2) of the Government Proceedings Act (supra), execution has been carried out. She contended that, there is no certificate which has been issued by this court to bar the applicant from bringing this application. She contended further that, there is no certificate rather an application for execution which is pending before the trial court. She went on submitting that, the trial court and this court are two distinct courts with different jurisdiction and their proceedings are quite different. She added that, the certificate stated by the first respondent’s advocate must be issued by the High Court and not any

other court. With regard to the legal personality of the applicant and fourth respondent, that they are one and the same legal person, Ms. Matovolwa contended that, the first respondent’s advocate has misconceived the law. That, according to section 6(5) of the 6 Government Proceedings Act (supra), the Attorney General can be sued or joined as a co-defendant in suits against the government institutions. Also, under section 6A (1) of the Government Proceedings Act (supra), the Attorney General can intervene in any suit or matter instituted by or against the ministries, Local Government Authorities or any other government institutions as in this application. That since the applicant was not a party in Civil Case No. 06 of 2016, it would have been improper for the Attorney General to appeal or make an application to set aside the ex parte judgment and the only remedy provided by the law is to make an application for revision in accordance to the provision of section 31(2) of the Magistrates Courts Act (Cap. 11, R.E 2019). She maintained that, the application before this court is properly made and the preliminary objection raised by the first respondent is baseless for being not backed up by any law or court decision. She prayed for preliminary objection to be dismissed with costs. In his rejoinder submission, Mr. Ndunguru stated that, it is true that, the applicant and the fourth

respondent are two distinct legal persons but one is the advisor of the other as provided under section 8 of the Attorney General’s Discharge of Duties Act (Cap. 168, R.E 2019). He maintained that, the applicant has abused the court process by suing 7 the fourth respondent which is not proper in law. He also averred that, this application has connection with the application pending before the trial court and it derives its origin in Civil Case No. 06 of 2016. In respect to the certificate of payment, that the certificate issued under section 16 of the Government Proceedings Act (supra) must be issued by the High Court and not the subordinate courts, he was of the view that, the suit was filed and tried before the Resident Magistrate Court in 2016 when the law allowed subordinate courts to hear and determine matters against the government and its institutions, it can be applied retrospectively since the Government Proceedings Act (supra) is a procedural law and not a substantive law. That it can be used retrospectively to apply to the procedures taken by subordinate court under this application. Lastly, he averred that, there is no pending application for execution before the trial court since once the certificate has been issued the decree is deemed to be fully executed. He insisted that, in this application the fourth respondent has admitted on that aspect at paragraph four of

the counter affidavit. He maintained that the application be dismissed for being an abuse court process. 8 I have analytically considered the rival submissions made by the learned counsel respectively. The main issue which this court is required to address is whether this application is an abuse of the court process. Principally, a party is said to be abusing court process where he improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice. It is also termed as abuse of legal process. Black’s Law Dictionary 9th Edition by Bryan A. Garner, defines abuse of process as: “The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope”. An abuse of court or legal process occurs where a party employs legal process for some unlawful object or not for the purpose which is intended by the law. In the Kenyan case of Graham Rioba Sagwe & 2 Others vs. Fina Bank Limited & 2 Others, Petition No. 82 of 2016, from the High Court of Kenya which this court quoted with approval in the case of Oryx Energies Tanzania Limited (Formerly known as Oryx Oil Company Ltd, Miscellaneous Civil Application No. 4015 of 2024 (unreported), it was held that: - "The concept of abuse of court/judicial process is imprecise. It involves circumstances and

situation of infinite variety and conditions. It is recognized that the abuse of process may be in either proper or improper use of the judicial process in litigation. 9 However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents.” From the quoted passage, it is clear that, situations that may give rise to an abuse of court process are indeed inexhaustive. It involves innumerable situations where the process of the court has not been resorted to fairly, properly, honestly to the detriment of the other party. In making determination of the point of preliminary objection in the present application, this court will be guided by the following sub issues. One, whether the applicant and 4th respondent is one entity hence the act of the applicant suing the fourth respondent in this application is not proper. Two, whether the decree which the applicant is intending to challenge by way of revision has been executed. Three, whether the fourth respondent’s failure to challenge the dismissal order in Miscellaneous Application No. 16 of 2017 trying to set aside an ex parte decision bars the applicant to file an application for revision. At the outset, I wish to state categorically that, I will not detain much time discussing on the first issue that the

applicant’s act of suing the fourth respondent in this application is not proper. Ms. Matovolwa and Ms. Mwolo, firmly submitted that, the applicant is a legal body established under article 59 of the Constitution of the United Republic of 10 Tanzania, 1977. On the other hand, the fourth respondent is a legal entity established under the Local Government (District Authorities) Act (Cap. 287 R.E 2019). They are two and distinct legal personnel, though the applicant is the legal advisor to the fourth respondent. Also, the applicant is legally entitled to intervene in any proceedings against the government department, agency or local government authorities. Section 6A of the Government Proceedings Act (supra) provides as follows: “6A.-(1) The Attorney General shall, through the Solicitor General, have the right to intervene in any suit or matter instituted by or against the ministries, local government authorities, independent departments and other government institutions.” The wording of section 6A(1) (supra) mandates the applicant to intervene in any suit. It is my considered view that, the section does not state when to intervene. That being the case and given the fact that, the applicant was not a party to the application/suit giving rise to this application, in my view, I do not see the possibility of the applicant jointly applying together with the fourth respondent in this

application. Had it been that the applicant was a party to the previous application and in the main suit, he could have been adjudged differently for suing the fourth respondent. Altogether, the applicant as well could not sue 11 the respondents in isolation of the 4th respondent. If the 4th respondent was not a party in this application, then the mandate of the applicant to intervene could be ousted as there would be no government institution or a department warranting the applicant’s intervention while showing the interest of the applicant. It is a settled law that every case must be adjudicated in its peculiar circumstances. See the case of Tanzania Zambia Railways Authority vs. Tanzania Revenue Authority (Civil Case 101 of 2001) [2003] TZHC 80 (TanzLII), Bp Tanzania vs. The Commissioner General of The Tanzania Revenue Authority (Civil Appeal 125 of 2015) [2016] TZCA 749 (TanzLII) and Attorney General vs. Tanzania Ports Authority & Another (Civil Application No. 87 of 2016) [2016] TZCA 897 (TanzLII). Thus, the applicant can sue the fourth respondent depending on the circumstance of the case. That said and done, the first issue is answered in the negative. With respect to the first respondent’s counsel contention that the decree which the applicant is intending to challenge by way of revision has been executed, it was challenged by the applicant’s learned State Attorney. I

have thoroughly gone through the competing submissions made in this application together with the law relating to execution of court orders. It is the first respondent’s learned advocate’s view that, according to the provision of section 16(1) of the Government 12 Proceedings Act (supra), once the court issues a certificate to the Permanent Secretary to the Treasury or such other Government accounting officer the execution process is deemed to be complete. The decree holder is not entitled to choose for the mode of execution but remain and wait for the payment of the decreed sum. This assertion was challenged by Ms. Matovolwa, learned State Attorney by stating that there is no certificate issued rather an application for execution pending before the trial court. I am of the considered view that, the wording of section 16 of the Government Proceedings Act (supra) which provides for the procedure for execution against the Government does not deny a right to be heard. The procedure provided thereunder intends to protect public interest in the execution of a decree against the Government since the Government properties are for the public at large. It was the first respondent’s learned advocate contention that, after issuance of a certificate that the execution is complete, still the first respondent filed an application which is pending before the trial court requesting the

District Executive Director for Mbinga District to show cause before the trial court. In such circumstance, I find the respondent’s counsel contention that once the certificate is issued the execution is deemed complete is unfounded. If it 13 could be so, he would have not filed an application which is pending before the trial court concerning execution of the decree. The first respondent’s learned advocate submitted further that, once the certificate has been issued then it is deemed to have been executed. Where there is a deeming provision, it requires no binoculars to find it. It has to be stated clearly by the statute. It is my view that, the deeming interpretation is a creation of the learned advocate amounting to personal crafting. If we allow personal crafting of the provisions of the law to fit a certain purpose, we will be misguided as to the intention of the legislature in enacting the law as it is. I am convinced that at this juncture, we have to read and interpret the law as it is and not as it is ought to be. I have gone through section 16(2) of the Government Proceedings Act (supra) several times. I have not managed to see the word “deemed.” Therefore, the interpretation taken by the learned advocate is contrary to the provisions of the cited section. Consequently, since the execution has not been carried out, he has filed an application before the trial court

demanding the District Executive Director for Mbinga District Council to show cause before the trial court. Banking on that, the applicant is entitled to challenge the same as it is yet to be executed. In the event, I find the second issue that the application is an abuse of court process for the reason that 14 execution has been carried out is without merit and the second issue is answered in the negative. On the third issue that the fourth respondent once unsuccessful tried to set aside an ex parte decision and never appealed to the higher court until this application was filed, in my view, I find the first respondent’s counsel has misconceived the law. His argument was in line with what he submitted in the first point that the applicant and the fourth respondent are one and the same legal entity. Therefore, as I have stated herein above, the applicant and the fourth respondent are two distinct legal persons. Thus, the assertion that the fourth respondent once filed an application to set aside the ex parte decision does not hold water. I hold so on the reason that this application is not preferred by the fourth respondent who was a party to Civil Case No. 6 of 2016. This court has been moved by the applicant who was not a party in the civil case aforementioned. Hence, it is the applicant has properly moved this court in this application. The learned counsel, questioned why

the applicant is suing the fourth respondent while they are one entity. The applicant’s learned State Attorney Ms. Matovolwa and the fourth respondent’s learned State Attorney Ms. Mwolo clearly submitted that they are two entities established by different laws. Thus, they are two entities, and the applicant was not part of the decision of 15 the trial court. I am convinced that the applicant could not appeal against the dismissal order as he was not part to the application. Without further delay, I find the third point also lacks merit. In the final analysis, I am constrained to dismiss the point of preliminary objection raised by the first respondent as I hereby do. The learned Senior State Attorney for the applicant prayed for an order for costs. I order for the first respondent to pay the costs. It is so ordered. DATED and DELIVERED at SONGEA this 18th day of November, 2024. E. L. KAWISHE

JUDGE COURT: Ruling is delivered in the presence of Ms. Mariam Matovolwa, the applicant’s learned State Attorney, Ms. Happiness Mwolo, State Attorney for the fourth respondent and Mr. Eliseus Ndunguru, the learned counsel for the first respondent and in the absence of the 2nd and 3rd respondents. E. L. KAWISHE

JUDGE 18/11/2024 16