zeno clemence matanda vs gloria alfayo lema 3 others 2022 tzhclandd 164 29 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 157 OF 2021 ZENO CLEMENCE MATANDA....................................... PLAINTIFF

VERSUS GLORIA ALFAYO LEMA................................................... 1stDEFENDANT GLORIA ALFAYO LEMA (As the Personal Legal Representative of ALFAYO NGAYA)............................................................ 2ndDEFENDANT COMMISSIONER FOR LANDS......................................... 3rdDEFENDANT THE HON. ATTORNEY GENERAL....... ................ 4thDEFENDANT

RULING Date of Last Order: 02/03/2022 Date of Ruting: 29/03/2022 A. MSAFIRI, J This Ruling pertains to the preliminary objection raised by the 3rd and 4tn defendants to the effect that; 1. The suit is bad in law for contravening Section 6(2) of the Government Proceedings Act, (Cap 5 R.E. 2019). The preliminary objection was raised in objection to a Land Case No. 157 of 2021 whereby Zeno Clemence Matanda (the plaintiff) has sued the defendants claiming that he is a lawful owner of land and house standing on Plot No. 169 Block J Mbezi, Kinondoni, Dar es Salaam (suit property). That the 3rd defendant has offered the suit land to the 1st defendant while i the Title of ownership of the plaintiff still exists. In the suit, among other claims, the plaintiff seeks for the declaration that he is the lawful owner of the suit property. The preliminary objection was argued orally whereby Ms. Kimario State Attorney for the 3rd & 4th defendants contended that the suit was not maintainable as the plaintiff did not issue a proper ninety days' Notice as per mandatory provisions of the Government Proceedings Act (supra). That, the letter attached as annexure "ZM9", addressed to the Commissioner for Lands does not constitute 90 days' Notice of Intention to sue. Ms. Kimario argued that there is nowhere in the said letter which specifically states that it is a 90 days' Notice of intention to

sue. Ms. Kimario argued further that in the said letter the plaintiff stated that, he will sue if one Alfayo Ngaya will be granted a Certificate of Title. That in the matter, the Title was not granted to Alfayo Ngaya but to Gloria Alfayo Lerna, who is the 1st defendant. In her opinion, the said letter has ambiguity which has denied the Government the right to settle the matter. To cement her argument, she cited the case of Seif Wanumbwa vs. Muhimbili Medical Centre & 2 others, Civil Case No. 181 of 2003, High Court Dar es Salaam Registry (unreported). On reply, Ms. Shayo, advocate of plaintiff argued that as per paragraph 10 of the Plaint and paragraph 1 of the plaintiff's reply to the 3rd and 4th defendant's Written Statement of Defence, the plaintiff has complied with the requirement of the law as he has served the said Notice to the 3rd and 4th defendants. A..M L 2 She argued further that, the State Attorney for the 3rd & 4th defendants has admitted that her clients received the purported letter from the plaintiff, but it is not a 90 days' Notice. That, the argument that the Notice is not sufficient is inviting evidence which disqualifies the preliminary objection from one basing on a point of law. She concluded that the plaintiff has not contravened Section 6 of the Proceedings Act as the Notice served is sufficient. Ms. Kimario reiterated her submission in chief. The

objection raised by the counsel for the 3rd & 4th defendants is based on pure point of law as it is mandatory that the provisions of Section 6 of the Government Proceedings Act be adhered when one is intending to sue the Government and or her institutions. The issue for determination is whether the 90 days' Notice of Intention to sue was issued by the plaintiff to the 3rd & 4th defendants as per requirement of law. In ensuring this, first it is important to look at the stated mandatory provisions of Section 6 of the Government Proceedings Act (supra), as herein below quoted; Section 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 sent a copy of his claim to the Attorney General and the Solicitor General." (emphasis mine). 3 Ms. Shayo has argued that, the plaintiff has served a Notice as required by the law. She has referred the letter marked Annexure ZM-9 attached to the Reply to the 3rd and 4th defendant's Written Statement of Defence as a sufficient Notice. I have read the sale letter addressed to the Commissioner for Land. Paragraph 8 of the said letter states that; "Mwisho tunatoa taarifa kuwa iwapo Ofisi

yako itaendelea kuandaa Hati na kumpa Bw, ALFAYO NGAYA, basi Bwana ZENO C. MATANDA ataishitaki Serikali pamoja na huyo ALFAYO NGAYA Hi haki itendeke". From the contents of the said letter, I am constrained to say that it does not constitute a 90 days' Notice of Intention to sue. There might be no format of the Notice of Intention to sue the Government, but in my view, the said Notice should be of not less than ninety days as expressed in the provisions quoted herein above. The letter of the plaintiff does not express the time limit of the intention to sue but it only gives warning that, the plaintiff will sue only if the office of the Commissioner for Land will continue to prepare and issue a Certificate of Title to Bw. Alfayo Ngaya. From this content, the process of issuing a Certificate of Title to Alfayo Ngaya could have taken two weeks, one month, six months or even a year, and that is only when the plaintiff will sue the Government. I find that the letter does not constitute a 90 days' Notice of Intention to sue as provided under Section 6 of the Government Proceedings Act^ 4 (supra), but rather it is a warning that the plaintiff will sue if the Title will be given to Alfayo Ngaya. Basing on the above findings, I find that the preliminary objection raised by the 3rd and 4th defendants has merit and I sustain it. The Land Case No. 157 of 2021 is hereby struck out with no order as to costs. It is so ordered. A. MSAFIRI

JUDGE 29/03/2022 5