SCANNED 2269 OF 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 2269 OF 2024 TWAHA SAID MPENDU............................................. PLAINTIFF

VERSUS HAMIS SAID NGWERE.............................................................. 1stDEFENDANT MWASHABANI JUMA LIUTIKE................................................ 2ndDEFENDANT ISIHAKA JUMA MGOMI......................................3rd DEFENDANT HAMAD MKUNYULIA.......................................... 4th DEFENDANT AYUBU RAMADHANI SULE.......................................................5thDEFENDANT JAMAL JUMBULELE.................................................................. 6thDEFENDANT BAKARI MATIMBWA................................................................ 7thDEFENDANT WILLIAM LAIZER......................................................................8thDEFENDANT MOHAMED SAID NGAYONGA................................................... 9thDEFENDANT ELIAS WAZIR QWARAY........................................................... 10™DEFENDANT PATRICK SYLVANO..................................................................11™DEFENDANT SHABANI MKWANYWE........................................................... 12™DEFENDANT MOHAMED ALLY NYANGWABA............................................... 13™DEFENDANT DOMINIC VALERI KUSANYA.................................................. 14™DEFENDANT RUFIJI DISTRICT COUNCIL................................................... 15™DEFENDANT MGOMBA VILLAGE COUNCIL.................................................. 16™DEFENDANT ATTORNEY GENERAL.............................................................. 17™DEFENDANT

RULING 25/7/2024 & 30/9/2024 A.MSAFIRI.J A , i 1 The Plaintiff have instituted the suit against defendants herein seeking for the following orders: - 1. A declaratory order that the Plaintiff is the lawful owner of un­ surveyed land estimated of 2 acres situated at Ikwiriri Village Mgomba North Ward, Rufiji District Coast Region.

2. A declaratory order that the 1st to 13th Defendants are trespassers over the suit land lawfully owned by the plaintiff.

3. An order the 1st to 13th Defendants to give vacant possession or demolish their structures built over the suit land.

4. The Defendants to pay the Plaintiff general damages for 50,000,000/= (Fifty Milion Shillings) only.

5. Interest at 30% from the date of accrual of the cause of action.

6. Costs of the suit.

7. Any other or further reliefs as the Hon. Court may deem fit. Upon being served with the plaint, the 15th, 16th and 17th defendants filed a joint written statement of defence and raised the preliminary points of law as fol lows:- i. The suit is bad in law for contravening the mandatory requirement of Section 6 (2) of the Government Proceedings Act Cap 5 R.E 2019 and Section 190 (1) (a) (b) of the Local Government (District Authorities) Act R.E 2002 as amended by Section 31 of the Written Laws (Miscellaneous Amendment) Act No. 1 of2020. ii. The Honourable Court has no jurisdiction to entertain this suit. 2 Hi. The suit is incompetent and bad in law for failure to describe the suit land properly contrary to Order VII Rule 3 of the Civil Procedure Code [Cap 33 R. E 2019] iv. The suit is incompetent and bad in law for suing wrong party contrary to Section 26 of the Local Government (District Authorities) Act Cap 287 R.E2002. On 27/8/2024 when the matter came for hearing, the court ordered the points of preliminary objections raised by the 15th,16th, and 17th defendants be disposed of by way of written submissions and the schedule order of the court has been complied with. MrJuma Nassoro, learned advocate represented the plaintiff and Ms. Lightness Godwin Msuya, Senior State Attorney represented the 15th, 16th, and 17th defendants. Submitting on the first point of preliminary

objection, Ms. Msuya stated that, the suit is bad in law for contravening the mandatory requirement of Section 6 (2) of the Government Proceedings Act Cap 5 R.E 2019 and Section 190 (1) (a) (b) of the Local Government (District Authorities) Act R.E 2002 as amended by Section 31 of the Written Laws Miscellaneous Amendment Act No. 1 of 2020. She argued that the plaintiff had failed to comply with the mandatory requirement of serving ninety days' notice to 15th and 16th defendants as per the requirement of law. JM/ 3 She argued further that the notice annexed on the Plaint was never served to either Rufiji District Council or Mgomba Village Council. To support her argument, she referred to the case of Jamila Hussein Almansa versus The Kigamboni Municipal Council and others, Misc. Application No. 516 of 2023 at page 6 and 7. She stated that the suit before this Court is incompetent. In respect of the second point of preliminary objection, Ms. Msuya stated that the court has no jurisdiction to entertain this suit because the plaintiff filed a fresh suit without leave to refile. That, this is in contravention of Order XXIII (3) of the Civil Procedure Code Cap 33 R.E 2019. (the CPC). That, the plaintiff instituted Land Application No. 23 of 2018 before the District Land and Housing Tribunal of Mkuranga at Mkuranga and that the suit was withdrawn and thus the plaintiff was precluded

from instituting a fresh case without leave to refile as per the requirement of Order XXIII Rule 3 of CPC. To cement her points the counsel cited the case of Kuringe Real Estate Co. Limited vs Bank of Africa (T) Limited, Misc. Commercial Application No. 18 of 2020. She prayed that the suit be dismissed with cost for want of jurisdiction. In submitting the third point of preliminary objection, Ms Msuya stated that the suit is incompetent and bad in law for failure to describe the suit land properly contrary to Order VII Rule 3 of the CPC. She argued that 4 paragraph 2 of the plaint states that the plaintiff is the lawful owner of surveyed land estimated 2 acres situated at Ikwiriri Village Mgomba North Ward Rufiji District Cost Region without specifying the boundaries thereto and failure to describe the boundaries of the property in dispute is fatal and in contravention of the law. She cited the case of Olorubare Nginyu versus Kilempu Kinoka Laizer Civil Appeal No. 416 of 2021 on pages 22-21 where the Court nullified trial court proceedings as the failure to describe boundaries of dispute property. She therefore argued that this suit deserved to be dismissed with costs In the fourth point of preliminary objection, MS Msuya argued that the suit is incompetent and bad in law for suing the wrong party contrary to Section 26 of the Local Government (District Authorities) Act Cap 287

R.E 2002, which provides that when the village council is registered and Certificate of Incorporation is issued, then the Village Council shall be capable of being sued or suing on its corporate names. She stated that there is no village in Tanzania registered as Mgomba Village Council rather Mgomba North Village Council. That, Mgomba Village Council sued by the Plaintiff is the wrong party. Ms Msuya submitted that this Court has discretion under Order I Rule 10(2) of the CPC to order the withdraw of a party wrongly joined and order the proper party to be joined to the suit then this position of law 5 does not favour the plaintiff and cannot be applied because when suing the Village Council there is a mandatory requirement of issuing ninety days' notice as per Section 31 of the (Written Miscellaneous Amendment) Act No. 1 of 2020 which require the Plaintiff to issue statutory notice on intention to sue to the village intended. In reply, Mr Juma submitted that the first point of preliminary objection is not on pure point of law as per the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distribution Ltd (1969) EA Page 696 and thus deserved to be dismissed with costs. On the second point of preliminary objection, Mr Juma argued that this court has jurisdiction to entertain the suit because in the District Land and Housing Tribunal, the suit was withdrawn with the leave to

refile and the applicant withdrew the matter in order to join the 17th defendant in the suit as per requirement of law. He stated that the case of Kuringe Real Estate Co. Limited Versus Bank of Africa (T) Limited(supra) is distinguishable from the instant matter. On the third preliminary objection, the plaintiff's counsel argued that the suit land is properly described as per Order VIII Rule 3 of the CPC in paragraph 5 and Annexure A of the plaint. L. 6 On the fourth point of preliminary objection, Mr Juma argued that suing the wrong party does not render the suit incompetent, that the court have the power to add or remove the party under Order 1 Rule 10 of Civil Procedure Code, he pray for the court to add the word ''North" in the word of 16th defendant. He concluded praying the court to dismiss the preliminary objection. The issue for determination is whether the preliminary objection on the point of law have merits. I will start to determine the first preliminary objection which is based on the suit being bad in law for failure to serve 90 days' notice to sue the 15th and 16th defendants under Section 6 (2) of the Government Proceedings Act, Cap 5 R.E 2019. Indeed, Section 6(2) of the Government Proceedings Act, is illustrative of the notice requirement. The said provision is couched on mandatory terms as follows: 6(2) -No suit against the Government shall be instituted,

and heard unless the claimant previously submits to the Government Minister, Department or officer 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 and the Solicitor General." Jf n 7 Section 31 of the (Written Miscellaneous Amendment) Act No. 1 of 2020 with amended Section 190 (1) (a) (b) of the Local Government (District Authorities) Act R.E 2002 provides as follows; " The principal Act is amended in section 190, by deleting subsection (1) and substituting for it the following: ” (1) No suit shall be commenced against a local government authority- (a) unless a ninety days' notice of intention to sue has been served upon the local government authority and a copy thereof to the Attorney General and the Solicitor General; and (b) upon the lapse of the ninety days'period for which the notice of intention to sue relates....". It is settled law that such notice is a mandatory requirement of the law. The parties are not at qualms regarding the failure to serve mandatory notice to the Government prior to the institution of the case against the Government. Refer the case of Gamba Nyakibai Matimu versus Mwenyekiti wa Seri kali ya Mtaa wa Nyasaka and Others (Land Case 10 of 2022) (2023 TZHC 17051(4 May 2023) (TANZLII), at page 6,

the High Court (Hon Dyansobera, J) and Jamila Hussein Almansa versus The Kigamboni Municipal Council and others(sz/£w?). After the amendment of the law, any suit by or against 8 such legal entities is treated like Government suits and the procedure for the institution of such proceedings must conform to the provisions of the Government Proceedings Act regardless of the nature of the claim. Under the current procedure, before suing a public corporation, parastatal organization, executive agency or local government authority the plaintiff has to serve 90 days notice. It is duty of the Plaintiff to indicate categorically in the Plaint that a notice was served to the 15th and 16th Defendants and copy were sent and served to the 17th defendant. According to the annexures, the notice of intention to sue was served to the 17th defendant on 17/03/2022, there was no proof that the notice was also served to 15th and 16th defendants. The absence of the notice makes this suit incompetent and thus it is hereby struck out. I will not determine the other points of objection since this ground suffices to dispose of the suit. I issue no order as to the costs. It is so ordered. 9