RULING Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MANYARA AT BABATI LAND CASE NO. 22988 OF 2024 YAKOBO SALI SARAGU……..................................................…1ST PLAINTIFF TITO SALIMU MIHAYO………………………………………………..2ND PLAINTIFF JOJI ARAJIGA JOJI…………………………………………………….3RD PLAINTIFF DANIELI A. BANGA…………………………………………………….4TH PLAINTIFF CHRISTINA AMMA SANKA………………………………………..…5TH PLAINTIFF YOHANA GETANOGA NYAQURA……………………………………..6TH PLAINTIFF AND 512 OTHERS VERSUS TANZANIA FOREST SERVICE AGENCY………………….…………1ST RESPONDENT SINGIDA DISTRICT COUNCIL…………………………….………..2ND RESPONDENT HANANG’ DISTRICT COUNCIL………………………….………..…3RD RESPONDENT HON. ATTORNEY GENEARL………………………………………….4TH RESPONDENT RULING 18TH November & 19th December, 2024 Kahyoza, J. Yakobo Sali Saragu, Tito Salimu Mihayo, Joji Arajiga Joji, Danieli A. Banga, Christina Amma Sanka, Yohana Getanoga Nyaqura, (the Plaintiffs) instituted a suit against Tanzania Forest Service 1 Agency, Singida District Council, Hanang’ District Council and the Attorney General (the defendants) claiming among other things, a declaration that they are lawful owners of the suit premises. Before the hearing commenced, the defendants raised three points preliminary objection that- 1. This suit is pre-maturely instituted for failure to submit and serve 90 days’ statutory notice of intention to sue the Government to the Government which is in contravention of section 6(1) and (2) of the Government Proceedings Act [Cap. 5 R. E. 2019] read together with section 190 of the Local Government (District Authorities) Act [Cap. 287 of 1982] as amended by section 31 of the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020. 2. This suit untenable in law for contravention with Order VII Rule 3 of the Civil Procedure Code [Cap. 33 R. E. 2022], which provided that description of disputed property shall be sufficient to identify the same. (The Plaintiff did not sufficient describe the disputed land). 2 3. That, the suit is untenable and bad in law for the Plaintiffs have no cause of action against the 3rd Defendant. The parties argued the preliminary objection by way of written submissions. With due respect to my learned friends, I desist to reproducing the submissions at this stage but I will refer to the submissions while replying to the issues. Was the suit pre-maturely filed? Mr. Mixson N. Tenges, the learned state attorneys who appeared for the defendants, submitted in support of the first point of preliminary objection that the suit was pre-maturely filed as the plaintiffs did not issue and serve a 90 days’ statutory notice of intention to sue to the all defendants. Referring to section 6 (1) and (2) of the Government Proceedings Act, [ Cap. 5 R. E. 2019] and section 190 of the Local Government (District Authorities) Act [Cap 287], the cases of Godfrey Kimbe v. Peter Ngonyani, Civil Appeal No. 41 of 2014 CAT (unreported) and Martin Fredrick Rajab v. Ilemela Municipal Council and another, Civil Appeal No. 197 of 2023 CAT (unreported), Mr. Tenges submitted that it was mandatory for the plaintiffs to issue a 90 days’ notice before instituting the suit. There is no 3 proof that the plaintiffs served the notice of their intention to sue to the first and second defendants, he submitted. He prayed the suit to be struck out. The plaintiffs filed, through Mr. Joseph M. Oleshangay advocate from the Legal and Human Rights Centre, the reply to written submission. They conceded that, it was indeed the legal requirement that before suing the government, a person must adhere to specified procedural requirements including issuance of a statutory notice to the government authority concerned. The plaintiffs cited section 6(2) of the Government Proceedings Act, section 190 of the Local Government (District Authorities) Act, the cases of Julius Inshangoma Francis Ndyamalso v. AG, [2004] TLR and AG v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 to support their contention. They argued that they complied with all legal requirements of suing the government and the local government authorities. They submitted that they issued and serve the notice to all defendants. Indisputably, the plaintiffs were required to issue and serve a 90 days’ notice of intention to sue to all defendants as provided by section 6(1) (2) and (3) of the Government Proceedings Act, and section 190 of the Local 4 Government (District Authorities) Act. For clarity’s sake, I quote section 6(1) and (2) which provides that- “6-(1), Notwithstanding any other provision of this Act, civil proceedings may be instituted against the Government subject to the provisions of this section”, “(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” Section 190 of the Local Government (District Authorities) provides that- “190-(1) No suit shall be commenced against the 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” 5 The plaintiffs’ plaint, which this Court is entitled to examine when determining the preliminary objection, shows that only the Attorney General, and Hanang’ District Council were served. It is beyond dispute that the plaintiffs did not serve Tanzania Forest Services Agency and Singida District Council with the 90 days’ notice of intention to sue. Section 6(3) of the Government Proceedings Act provides for a list of persons who must be served with the notice of intention to sue before suing the government, the local authority, government department or the officer. It also provides the modus of service. It states that- “(3) All suits against the Government shall, after the expiry of the notice be brought against the Attorney General, and a copy of the plaint shall be served upon the Solicitor General, Government Ministry, Department or Officer that is alleged to have committed the civil wrong on which the civil suit is based” From the unambiguous words of subsection (3) of section 6 cited above, the plaintiffs were required to issue the notice to the Attorney General and serve a copy to the Solicitor General, the Government Ministry, Departments or Officer who is alleged to have committed the civil wrong. There is no dispute that the Plaintiffs served the notice to the Attorney 6 General and a copy to the Solicitor General together with Hanang’ District Council. The dispute is whether the Plaintiffs served all the Departments alleged to have committed the civil wrong. There is no evidence in the Plaint to show that the plaintiffs served the Tanzania Forest Service Agency and Singida District Council. Absence of proof service of the notice to Tanzania Forest Service Agency and Singida District Council proved not only proves that, the plaintiffs violated section 6(1) (2) and (3) of the Government Proceedings Act and section 190 of the Local Government (District Authorities) Act, but also that, the suit was filed pre-maturely. I therefore, uphold the first point of preliminary objection that the plaintiffs instituted the suit pre-maturely. The remedy is to strike out the suit so as to give the plaintiffs room to comply with the law. Since the determination of the first point of preliminary objection disposes this matter I will not take trouble to determine the remaining points of preliminary objection. I will simply advice the Plaintiffs that should they intend to re- institute the suit, to carefully consider the two points preliminary objection, the law and make an informed decision. 7 In the end, I uphold the first point of preliminary objection that the suit was filed pre-maturely for failure to serve the 90 days’ notice of intention to sue to Tanzania Forest Service Agency and Singida District Council. Consequently, I strike out the suit. Given the nature of this suit and the fact that the plaintiffs had services of the Legal and Human Rights Centre, I make no orders as to costs. It is ordered accordingly. Dated at Babati this 19th day of December, 2024. John R. Kahyoza Judge Court: Ruling delivered in the presence of Mr. Kuwengwa Ndonjekwa, advocate for Plaintiffs and Mr. Nixon Tenges assisted by Ms. Lela Salum, State Attorneys for the respondents. B/C. Mr. Damas (RMA) present. John R. Kahyoza Judge 19. 12. 2024 8