Government Proceedings.docx

8/12/2019 Government Proceedings.docx

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Where the Government is bound by a statutory duty which is binding also upon persons other

than the Government and its officers, then, the Government shall, in respect of a failure to

comply with that duty, be subject to all those liabilities in tort, if any, to which it would be so

subject if it were a private person of full age and capacity.1

That as per section 3(1)2 provides that the Government shall be subject to all proceedings

relating to liabilities in contract, quasi-contract, detinue, tort and in other respects to which it

would be subject if it were a private person of full age and capacity and any claim arising

therefrom may be enforced against the Government; as well as section 43 corroborate by

including the law relating to indemnity and contribution then shall be enforceable by or against

the Government in respect of the liability to which it is so subject as if the Government were a

private person of full age and capacity.

Therefore the power to institute the suit against the government is being provided as per section

6(1)4that; civil proceedings may be instituted against the Government, and not otherwise, that is

to say government cannot commit a crime thus to be criminal liable instead all liabilities shall

follow under civil only.

Having being provided by the by the statute the power to file a suit against the government, there

are special procedure to be followed that any person to be allowed to institute or to file the case

as well the procedures differs from the procedures while instituting the suit against persons; so

the procedures for the government proceedings are provided under section 6(2)5 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.

Notice of intention to sue, as the first procedure to sue the government, a notice of not less than

ninety days of his intention to sue the Government, before commencing proceedings in court,

notice of intention tosueshould be given to the other party, a Final Notice of Claim gives notice

1http://www.ulii.org, accessed on 14 thMay 2014 at 0438 Hrs2The Government Proceedings Act, Cap 5 [R:E 2002]3The Government Proceedings Act, Cap 5 [R:E 2002]4The Government Proceedings Act, Cap 5 [R:E 2002]5The Government Proceedings Act, Cap 5 [R:E 2002]
http://www.lawhandbook.sa.gov.au/go01.php#idp21651680http://www.lawhandbook.sa.gov.au/go01.php#idp21651680http://www.lawhandbook.sa.gov.au/go01.php#idp21651680http://www.lawhandbook.sa.gov.au/go01.php#idp21651680


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to thedefendantof the nature of your claim and that you intend to start an action against them

(see below for information specific to personal injury claims).

Wanumbwa v Muhimbili M edical Center or Muhimbili National Hospital and Others6 he

plaintiff who was an Assistant Accountant was dismissed from his employment on 24 hours

notice on 16th

day of July, 1991. Being aggrieved by the said dismissal he referred his grudges to

the labour Conciliation Board on 24/7/1991. His reference was dismissed on a point of

limitation. It was time barred; he further referred the dispute to the Minister responsible for

labour matters, now the 2nd

defendant. The Minister confirmed the decision of the Conciliation

Board. He did not believe that he had exhausted all the legal machinery opened to him, for an

address of his grudges. He believes that his services were wrongly terminated by dismissing him.

Held; he was required to issue a 90 days notice to the government. Section 6 o f the Government

Proceedings Act, 1967 as amended by Act No.30 of 1994 is relevant. However, the plaintiff did

not comply with that mandatory legal requirement; hence the suit is incompetent and should be

dismissed with costs.

Copy of the claim to the Attorney General, before instituting the claim, and after sending the

intention to sue to the officer/minister concern then, a copy of it must be sent to the Attorney

General about whom the complaint is issued, so that the office of the Attorney General can

prepare for the upcoming suit and to prepare the evidence concerning the claims of an aggrievedperson.

The suit must be opened in the High Court; section 6(4)7 provides that; all suits against the

Government shall be instituted in the High Court by delivering in the Registry of the High Court

within the area where the claim arose. That if other procedures are followed and the suit opened

in other courts then it should be quashed away immediately, again section 78tendered out that no

civil proceedings against the Government may be instituted in any court other than the High

Court.

6Civil case no.181 of 20037The Government Proceedings Act, Cap 5 [R:E 2002]8
http://www.lawhandbook.sa.gov.au/go01.php#idp21150704http://www.lawhandbook.sa.gov.au/go01.php#idp21150704http://www.lawhandbook.sa.gov.au/go01.php#idp21150704http://www.lawhandbook.sa.gov.au/go01.php#idp21150704


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Attorney General may be added as a co-defendant, as per section (5)9 unless another person

ought to be sued, be sued or be joined as a co-defendant, in proceedings against the Government.

Therefore the Attorney General ought to be joined as the second defendant since the suit concern

the government and to an extent Attorney General represents the government.

The consent of the Attorney General must be obtained, if there is no consent of the Attorney

General then the suit lacks of its validity, section 6(3)10

makes it clear that all suits against the

Government shall, after the expiry of the notice be brought against the Attorney General,

Department or Officer that is alleged to have committed the civil wrong on which the civil suit is

based and then If in any case proceedings have been instituted by the Government in a

Magistrate's Court and the defendant satisfies the court that he has a claim against the

Government; and he has obtained consent under section 611

for pursuing his claim against the

Government.

For institution of a suit in normal proceedings, there must be two parties, a subject in dispute,

cause of action and demand of relief. A suit is instituted by the presentation of a plaint to the

court. The plaint should set out the name of the plaintiff, (if there are more than one plaintiff, the

names of every plaintiff) and the name of the defendant (and if there are more than one

defendant, the names of every defendant.12

Therefore, Application of general law of procedure for suing the government found as per

section 813

that, all civil proceedings by or against the Government shall be instituted and

proceeded with in accordance with the procedure applicable in like proceedings between private

persons, so the changes are just found in the procedural matter other things remains like the suits

between private persons.

However the case law provided for the procedures to be null and void since it violates some

provions in the Constitution of the United Republic of Tanzania, as it was tendered in the case

of; Kukutia Ole Pumbun v Attorney General14 The plaintiff Magasha was employed by the

9The Government Proceedings Act, Cap 5 [R:E 2002]10The Government Proceedings Act, Cap 5 [R:E 2002]11The Government Proceedings Act, Cap 5 [R:E 2002]12http://www.shareyouressays.com,accessed on 14thMay 2014 at 0343 Hrs13The Government Proceedings Act, Cap 5 [R:E 2002]14[1993] TLR 159 (CA)


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National Pharmaceutical Company but the employment was terminated in 1991. He considered it

wrongful and instituted a trade dispute in the Industrial Court in 1991 at Tabora against the

company. At the conclusion of the proceedings the action was dismissed. He felt aggrieved by

the decision but he was appraised that no appeal could lie against it in view of the legal

impediment expressed in s 27(1C)15

that provides that every award and decision of the Industrial

Court shall be final and not liable to be challenged, reviewed, questioned or called in question in

any court save on the grounds of lack of jurisdiction in which case the matter shall be heard and

determined by a full bench of the High Court.

In his pleadings the plaintiff has averred that this section is at odds with the provision of art

13(6)(a)16

. Which provides that every person shall, when his/her rights and obligations are being

determined, be entitled to a fair hearing by the court of law or other body concerned and be

guaranteed the right of appeal or another legal remedy (whatever that may be) against the

decisions of courts of law and other bodies which decide on his rights or interests founded on

statutory provisions. It may be observed that this constitutional provision was already in place

and force when s 27(1C) was enacted.

Therefore, unlike the learned Judge from whom this appeal arises, the court find that section 617

1974 is unconstitutional for the reasons we have amply demonstrated above. The Republic has

totally failed to show that the said section is saved by the provisions of the Constitution which

allow for derogation from basic human rights. In the circumstances the court have no alternative

but to hold, in terms of article 64(5) of the Constitution of the United Republic of Tanzania that

section 6 of the Government Proceedings Act 1967 is void. It is accordingly struck down for

being unconstitutional

Main procedure to be followed before instituting a suit for private person is by demand letter,

this is just a matter of practice by the Court of law, it is a letter presented to the prospective

defendant by the prospective plaintiff lying down the claims by the prospective plaintiff toprospective defendant and demanding remedy at the threat of being sued to the court, if this

15The Industrial Court of Tanzania Act, 196816

The Constitution of the United Republic of Tanzania, 1977 (as amended)17

The Government Proceedings Act, Cap 5 [R:E 2002]


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procedure is not followed and the defendant did not disturb in paying the relief if that the case

then the defendant will not pay the advocacy fees, the prospective plaintiff shall pay it.

It is supported in the case of Amradha Construction v Sul tani Street Agip18

The defendant owed

the plaintiff Tshs. 56959.85, the defendant was closing his business, the plaintiff out of fear that

the defendant would leave to India without paying his debt petitioned to attach defendant assets

without first making formal request for payment coupled with notice of intention to file a suit, a

condition order for attachment was granted but the file amount of debt was deposited in court

before the schedule hearing for attachment the only thing ho should bear the advocacy fees, It

was held Rule 61 of Advocacy Remuneration of Court Rules, provides that; if the plaintiff in any

action has not given the defendant notice of an intention to sue and the defendant pays the

amount before the first hearing, no advocacy cost will be allowed except of the special order of

the judge, since upon consideration of all the facts the situation was not as urgent as plaintiff

though there was no basis of special order that the plaintiff breach cost of the advocacy.

After presentation of demand letter then institution of the suit to the court if followed; Every suit

shall be instituted by the presentation of a Plaint or in such other manner as may be prescribed;

Every suit is to be instituted by presenting a plaint to the court or to such officer as it appoints in

that behalf, Order IV, Rule.19

Furthermore section 22 and 2320

elaborates that; every suit shall be instituted by the presentation

of a plaint or in such other manner as any be prescribed as well as supported by presentation of

Summons; Where a suit has been duly instituted, a summons may be issued to the defendant to

appear and answer the claim and may be served in the manner prescribed and corroborated by

Order V Rule 521

provides that; where the court requires the personal appearance of the

defendant, a defendant in respect of whom a summons to appear is issued may appear in person,

by an advocate duly instructed and able to answer all material questions relating to the suit; or by

an advocate accompanied by some person able to answer all such question.

18HCD 196719Civil Procedure Code, Cap 33 [R:E 2002]20Civil Procedure Code, Cap 33 [R:E 2002]21Civil Procedure Code, Cap 33 [R:E 2002]


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Thus, those are different position of instituting the suit between private persons and the suits

against the government, however regarding the institution of the government suit or proceedings

still procedures are very cumbersome that the law are not acting fairly since it tends to protect

the interest of the ruling class while the person aggrieved are not being compensated for the fact

that there is no consent from the Attorney General, that hinders the principle of justice should not

only be done but manifestly seen to be done.


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REFFERENCE

CONSTITUTION

The Constitution of the United Republic of Tanzania, 1977 (as amended)

STATUTES

The Government Proceedings Act, Cap 5 [R: E 2002]

Civil Procedure Code, Cap 33 [R: E 2002]

The Industrial Court of Tanzania Act, 1968

ELECTRONIC SOURCES

http://www.ulii.org, accessed on 14thMay 2014 at 0438 Hrs

http://www.shareyouressays.com,accessed on 14th

May 2014 at 0343 Hrs

Documents

Government Proceedings.docx