IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)
AT DAR ES SALAAM

CIVIL CASE NO. 49/2006

1. PATRICK KILINDI
2. MAJALIWA MVUKIE……………………… PLAINTIFFS

VERSUS

1. REGIONAL POLICE COMMANDER

FOR MOROGORO REGION
2. THE HON. ATTORNEY GENERAL
3. YUSUFU ATHUMANI ALIAS SOSA……. DEFENDANTS

RULING

KALEGEYA, J.:

The 1st and 2nd Defendants have raised a preliminary objection

challenging the filing of the present suit. They urge:
“That this suit is premature and incompetent for contravening the provisions of the
Government Proceedings Act [Cap 5, R.E. 2002]”.

They are supported by the 3rd Defendant who states:

“…....the suit before the Court is improper and premature for lack of the statutory
Notice to the 2nd DEFENDANT”.

Briefly, relying on S.6 (2) of the Government Proceedings Act, the 1st
and 2nd Defendants submitted that as the Plaintiffs did not give the 90 days
notice to the 1st Defendant with a copy to the Attorney General the suit is
incompetent and should be dismissed as this “is a Court of Justice ……… not
a Court of mercy”.
 On his part, the 3rd Defendant represented by Esco Law Chambers
Advocates, while on all fours with the 1st and 2nd Defendant’s submissions
made reference to Kiteria Vincent Menezes and others versus Afra
Engineering Works Ltd and Others, (HC) Civil Case No. 77 of 1998
in which the suit was dismissed for failure of to give a statutory notice to
the Dar es Salaam City Commission.

For undisclosed reasons, the Plaintiffs did not file submissions in

response as ordered. We shall therefore decide the preliminary objection
on the basis of the Defendants’ submissions alone. Legally however, even
where a party proceeds exparte, the burden is still on him to prove his
case. In this case, the burden is on the Defendants.

The Defendants’ complaint is purely a point of law. S.6 (2) of the

Government Proceedings Act, Cap 5, R.E. 2002, relied upon is very clear on
this. It states:
“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”.

Looking at the submissions in light of the pleadings and the law, I am

persuaded that indeed the suit is incompetent for the reason stated by the
Defendants.

Although we did not have the benefit of hearing the Plaintiffs on the
matter, looking at pleadings, I am satisfied that the statutory notice was not
given. Apart from the obvious that the plaint is silent on this, logic would
dictate that if indeed the said notice had been given, the Plaintiffs would not
have kept silent the moment the preliminary objections were raised. In
fact, they responded with a somehow an evasive answer as exemplified by
their reply to the 3rd Defendant’s written statement of Defence wherein
they stated:
“1. That the notice of Preliminary Objection has been noted however it
will be challenged during the hearing of the case”.

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One would have expected the Plaintiff to seize this opportune moment and
indicate the issuance of the notice if at all it was given. Common sense
would undoubtedly conclude that no notice was ever given.

I am satisfied that the preliminary objections raised by the Defendants are

meritorious. They stand upheld. The suit being incompetent is dismissed
accordingly.

L. B. KALEGEYA
JUDGE

WORDS: 553