Rev.

Christopher Mtikila v The Editor, Business Times & Augustine Lyatonga Mrema [1993]
TLR 60 [HC]

This is an appeal from a decision of the High Court (Kyando and Ihema, JJ, Kimaro, J., dissenting)
dismissing a petition filed by the appellant for a declaration that Section 111(2), (3) and (4) of
the Elections Act, 1985 (the Act), is unconstitutional for being violative of Article 13(1), (2) and
6(a) of the Constitution of the United Republic of Tanzania (hereinafter referred to as the
Constitution). Essentially, the appeal is about access to justice.

The background to the appeal may, we think, be stated as follows. In the general election held
in this country in October 2000 the appellant, an advocate by profession, entered into a contest
for the parliamentary seat in Nkenge Constituency. According to the results of the contest
announced by the Returning Officer, the appellant lost the election. He was aggrieved by those
results. As he was entitled under section 111(1) of the Act, he filed an election petition before
the High Court, questioning the validity of the declared victory of one of his opponents in the
election. The Registrar of the Court has not, in compliance with the provisions of Section 111(2)
of the Act, fixed a date for the hearing of the petition. The subsection, as amended by the
Electoral Laws (Miscellaneous Amendments) Act, 2001.

it was stated that no provision of the Government Proceedings Act, 1967 or any other
legislation takes away the common law right to sue a Government servant who commits a tort
in the course of his official duties. This implies that although the Government can be held liable
for torts committed by its servants in official duties yet the servants are not exonerated from
liabilities for such torts committed by them. The right to sue the servant is not affected by the
right to sue the master.
Section 3 [2] of the Act provides that “No proceedings shall lie against the Government in tort in
respect of any act or omission of a agent of the Government unless the act or omission would,
but for the provisions of this Act, have given rise to a cause of action in tort against that servant
or agent or his estate.

This provision connotes that the liability of the Government shall arise where it is only
established that such liability on tort have arisen against the servant or agent or his estate. In all
such circumstances it has to be established that the servant was actually acting in official duty.
The liability in torts cannot be extended to the Government where the servant was acting in the
frolics of his own.

From this case, it considered the issues of VICARIOUS LIABILITY OF THE GOVERNMENT In torts,
the Government can be held vicariously liable for the torts committed by its servants. The
plaintiff is going to sue the servant who committed the particular tort and the Government as
the master if at the entire tort was committed in course of doing official duties.