IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO. 166 OF 2019

DAUDI MFINANGA (as administrator of the

estate of the late Habibu Hamadi Hamisi) .............................. PLAINTIFF
VERSUS
THE ATTORNEY GENERAL.......................................... RESPONDENT

RULING

13/04/2022 & 6/5/2022

MASABO, J.:-

The subject of this ruling is a preliminary objection premised on four limbs,

that is, the suit is untenable for being hopelessly time barred; the suit is

premature and untenable for not issuing the mandatory 90 days’ notice of

intention to sue the government; the plaintiff has neither a cause of action

against the defendant nor a locus standi to institute this suit.

The facts of the suit as averred in the plaint which is being contested by the

defendant is that, the suit emanated from an accident occasioned by one

Mujibu Bahati Mwege, an employee of the Occupational Health and Safety

Authority (OSHA) who on 6th October 2017 while driving a motor vehicle

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owned by OSHA, along Mivinjeni road in Dar es Salaam knocked dead one

Habibu Hamadi Hamisi (the deceased). The driver was charged and

convicted of negligence driving. The plaintiff herein being an administrator

of the estate of the deceased has come to this court claiming from the

defendant a sum of Tshs 2,000,000 being funeral expenses for the deceased;

Tshs 100,000,000/= for loss of income, love, company and for mental torture

and shock he suffered as result of the deceased’s brutal death.

Hearing of the preliminary objection proceeded in writing. Both parties had

representation. Ms. Grace Lupondo, learned State Attorney appeared for the

Defendant and the plaintiff was represented by Mr. Richard Mbuli, learned

counsel.

In support of the first limb of the preliminary objection it was argued that

the suit is for compensation and as per item 1 of Part I of the Schedule to

the Law of Limitation Act [Cap 89 RE 2019] the time limitation within which

to institute it in court is one year. Thus, this suit ought to have been filed

within one year reckoned from 22/11/2017 when the driver was convicted

for negligent driving. In support, the counsel cited the case of Stanbic

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Finance Tanzania Ltd v Giuseppe Trupia and China Malavasi [2002]

TLR 221 which defines the cause of action. Based on this authority and the

provision of section 5 of the Law of limitation Act, he invited this court to

invoke the provision of section 3(1) of the same Act which states that a time

barred suit should is unmaintainable.

On the second limb of the preliminary objection, he submitted that the suit

offends the provision of section 6(2) of the Government Proceedings Act

[Cap 5 RE 2019] which imposes a mandatory requirement for a 90 days’

notice of intention to sue Government, which has to be served upon the

Government institution being sued and the Attorney General. He proceeded

that, much as the plaintiff issued the notice but he did not comply with the

mandatory requirement of the law as the notice was only served upon the

Attorney General and not OSHA whose driver is the alleged wrong doer. The

failure to notify OSHA, is tantamount to the taking it by surprise something

which the law sought to address. Buttressing the submission, he cited

Arusha Municipal Council v Lyamuya Construction Limited [1998]

TLR 13, where the suit was adjudged incompetent for failure to issue the

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statutory notice. He conclusively argued that this point be upheld and the

suit be dismissed.

On the last limb of the preliminary objection, he argued that the plaintiff has

no cause of action against the defendant as the plaint does not any how

implicate the Attorney General. The offender as appearing in the plaint is

OSHA who is for no good reason not sued. The omission to implead OSHA is

wrong and has rendered the suit incompetent and should be struck out.

Mr. Mbuli sternly rebutted. Much as he did not dispute the definition of the

cause of action and its accrual, he argued that Ms. Lupondo’s submission in

support of the first limb of the preliminary objection is misconceived and a

lucid misdirection as the cause of action in the instant suit is negligent driving

which caused the untimely death of Habibu Hamadi Hamis. Hence, it is a

tortious liability whose time limitation, as per item 6 of part I of the Schedule

to the Law of Limitation Act of the Law of Limitation Act, is three years and

not one year.

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On the second limb of the preliminary objection, he argued that the plaintiff

complied with the mandatory requirement of the Government Proceedings

Act by issuing the ninety days’ notice to sue the Government and the notice

was served to OSHA. The argument that the plaintiff disregarded this

requirement or offended it is unfounded. In fortification he produced a paper

extract from a dispatch book intended to show that the notice issued to the

Attorney General and OSHA.

Regarding the last limb of the preliminary objection that the plaintiff has

neither a cause of action against the defendant nor a locus standi, he replied

that the plaintiff has a cause of action against the defendant because as the

matter originates from negligent driving by one Mujibu Bahati Mwege, an

employee of OSHA which caused the death of Habibu Hamad Hamis. OSHA

being an employer of the driver and the owner of the motor vehicle which

caused the accident is liable and as per section 10 of the Government

Proceedings Act the Attorney General is liable as OSHA is a government

institution. On locus standi, he cited the case of Lujuna Shubi Balonzi

Senior v Registered Trustees of Chama Cha Mapinduzi [1996] TLR

203 and argued that the plaintiff being an administrator of the estate of the

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late Habib Hamad Hamis, he has locus standi. This limb of the preliminary

objection is therefore lucidly misconceived and without merit.

On my side, I have considered the submission as summarized above and the

pleadings filed in court by the parties. I have done so, guided by the principle

in Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors

Ltd [1969] E.A. 696 which now forms part of our law and which I prefer to

preface my ruling with. In this case, the court held thus:

" A preliminary objection is in the nature of what used to be

a demurrer. It raises a pure point of law which is argued on
the assumption that all the facts pleaded by the other side are
correct. It cannot be raised if any fact has to be ascertained
or if what is sought is the exercise of judicial discretion. Sir
Charles Newbold

It further proceeded that:

“.... a preliminary objection consists of a point of law which

has been pleaded or which arises by clear implication out
of the pleadings, and which, if argued as a preliminary
objection may dispose of the suit. Examples are an objection
to the jurisdiction of the court, or a plea of limitation, or a

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 submission that the parties are bound by the contract giving
to the suit to refer the dispute to arbitration.” Law, J.

With this preface, I now proceed to the three limbs of the preliminary

objection. Starting with the first limb of the preliminary objection, institution

of suits in courts of law are regulated by different laws, the Law of Limitation

Act [Cap 89 RE 2019] being among them. As correctly submitted by Ms.

Lupondo, the time limitation within which to institute a suit for

“compensation for doing or for omitting to do an act alleged to be in

pursuance of any written law” is one year. Also, as correctly submitted by

Mr. Mbuli, item 6 of Part 1 of the Schedule to the same law sets 3 years as

the time limit within which to institute a suit based on tort. The question to

be determined in this limb of the preliminary objection is fundamentally

premised on the nature of the suit. The defendant is of the opinion that, the

suit is for compensation whereas for the plaintiff it has been argued that it

is based on tortious liability hence within the scope of item 6.

I will not allow myself to be detained by this point as the plaint is at odds

with the argument advanced by the learned State Attorney. The pleadings

in the plaint vividly demonstrate that the plaintiff’s suit is premised on the

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doctrine of vicarious liability simply understood as the tortious liability by

which an individual, usually an employer, is held responsible for the wrongs

committed by his employee (see Salmond on Torts, 1st ed. Pg 83). Needless

to say, since 1907 when Sir John Salmond contextualized vicarious liability

into what it is understood today, the doctrine has remained as a cornerstone

of the common law of tort. It is, therefore, crystal clear as a blue sky clear

that time limitation stipulated under Item 1 part I of the Schedule to the Law

of Limitation Act was misapprehended as the applicable law is Item 6 of Part

of the same law which regulated suits premised on tort.

It follows that, since the cause of action in this suit accrued on 6th October

2018 when the life of Habibu Hamad Hamis was untimely terminated as a

result of an accident caused by negligent driving, the time limitation within

which to file the suit expired on 5th October 2021. Therefore, when the

instant suit was instituted in court on 18th September 2019 it was well within

the time as the duration of three years had no lapsed. The first limb of the

preliminary objection, is therefore without merit.

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Coming to the second limb, it is a mandatory legal requirement that a party

who intends to sue the Government must issue a 90 days’ notice expressing

his intention to sue the Government. The requirement is stipulated under

Section 6 (2) of the Government Proceedings Act which states that:

“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. [emphasis added]

A close scrutiny of the above provision indicates that it is couched in

obligatory terms meaning that meaning that issuance of the issuance of the

notice prior to institution of the suit is mandatory and the omission of which

vitiates the proceedings. As held by my learned brother, Ndyasobera, J in

Thomas Ngawaiya v The Attorney General and 3 Others, Civil Case

177 of 2013, HC Dar es Salaam (unreported).

The statutory notice, is in my view, not an empty

formality. It is a measure of public policy; the underlying
purpose being advancement of justice and securing
public good by avoidance of unnecessary litigation. Its

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 intention is to alert the Government and afford it
opportunity to reconsider the matter in the light of the
settled legal position and take appropriate decision in
accordance with the law. The rationale of the statutory
notice is that the Government being the largest institution
with a number of activities for the public good, cannot be
taken into court by surprise.

In scrutiny of the pleadings, I have observed that there is a notice purported

to be issued to the Attorney General and the OSHA. As the copy of the notice

appended to the plaint bears a stamp of the Attorney General Chambers,

there is no doubt that the notice was submitted to the Attorney General as

per the requirement of the law. On the contrary, nothing shows that it was

submitted to the OSHA. Much as the notice contains the address of OSHA in

its addresses list the absence of any proof that it was submitted to OSHA

signifies that there was no compliance to the mandatory requirement of law.

It need not be overemphasized that, as held in the above cited case, the

requirement imposed by section 6(2) is not a mere formality and this evident

in its contents which are precise and entertain no implications or exceptions.

The anomaly is fatal and has rendered this suit unmaintainable.

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Before I pen off, I will briefly address the annexure to the submission in

reply. In his attempt to convince the court that there was compliance to the

law, Mr. Mbuli appended to his reply submission, a paper purportedly

extracted from a dispatch book. I, respectfully, decline the invitation as it

offends the law. The position of law as stated in Tanzania Union of

Industrial and Commercial Workers (TUICO) at Mbeya Cement

Company Ltd v. Mbeya Cement Company Ltd and National

Insurance Corporation (T) Limited [2005] TLR 41, is that, annextures

should not to be appended to the submission save where the said annexture

is an extract of a judicial decision or a text book. If the annexture appended

to the submission is other than an extract of a judicial decision or text book,

it should be expunged from the submission and totally disregarded. In line

with this principle, I hereby expunge the annexture and totally disregard it.

I may also add that, even if such conducts were permissible, in the present

case, it would not have been acceptable as that would offend the law on

preliminary objection. As held in Mukisa Biscuit Manufacturing Co. Ltd.

V West End Distributors Ltd (supra) which demands that preliminary

objections should be determined based on the pleadings filed in court and

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not otherwise. In the foregoing, I find merit in the second limb of the

preliminary objection and I upheld it.

Having found the suit unmaintainable for noncompliance with section 6(2)

of the Government Proceedings Act, I see no need to proceed to the third

limb of the preliminary objection as this finding sufficiently disposes of the

suit.

Accordingly, I strike out the suit. Looking at the circumstances of the case,

and especially the duration is has taken in court for reasons not solely

attributable to the plaintiff, it is fair and just that the costs be shared.

DATED at DAR ES SALAAM this 6th day of May 2022.

X
Signed by: J.L.MASABO

J.L. MASABO
JUDGE

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