Automated Summary
Key Facts
The case involved a preliminary objection by the Deposit Insurance Board (DIB) in its capacity as a government institution under the Government Proceedings Act. The plaintiff, Konyagi Shop Express Limited, failed to issue a 90-day notice to the government and did not join the Attorney General as a necessary party. The court sustained the objection, ruling the suit prematurely instituted and striking it out with costs.
Issues
- The first preliminary objection argued that the suit was invalid for failing to issue a 90-day notice to the government and send a copy to the Attorney General under Section 6(2) of the Government Proceedings Act. The plaintiff claimed the defendant was sued in its capacity as a liquidator of FBME, not as a government entity. The court found merit in this objection, ruling the plaint incompetent as it clearly named the Deposit Insurance Board (a government institution) without compliance.
- The second objection contended the suit was invalid for omitting the Attorney General as a required party under Sections 6(3) and (4). The plaintiff argued the defendant’s role as a liquidator made this unnecessary, but the court sustained the objection, noting the plaint explicitly referenced the Deposit Insurance Board (a government institution) and thus required the Attorney General’s inclusion.
Holdings
- The second preliminary objection was sustained because the plaintiff did not join the Attorney General as a necessary party under Section 6(3) and (4) of the amended Government Proceedings Act. The suit is against a government institution, making the Attorney General's inclusion mandatory.
- The court sustained the first preliminary objection, finding the suit incompetent due to failure to issue a 90-day notice to the government as required by Section 6(2) of the Government Proceedings Act. The plaintiff's request to amend the plaint was denied as it would pre-empt the objection.
Remedies
The preliminary objection was sustained, and the suit was struck out with costs for being prematurely instituted. The court determined that the plaintiff failed to comply with the Government Proceedings Act by not issuing a 90-day notice and not joining the Attorney General as a necessary party.
Legal Principles
The court applied the requirement under Section 6(2) of the Government Proceedings Act that a 90-day notice must be issued to the government before suing a government institution, and Section 6(3)/(4) mandating the Attorney General must be joined as a necessary party. It also emphasized that amendments cannot cure procedural defects like failure to issue notice or join required parties, citing cases against pre-empting preliminary objections.
Precedent Name
- Aloyce Chacha Kangaya vs Mwita Chacha Wambura and 2 Others
- FBME Bank Tanzania Ltd (Under Liquidation) vs Cristal Resort Limited
- Method Kimomogoro vs Board of Trustees Tanapa
Cited Statute
- Government Proceedings Act, Cap 5 R.E 2019 as amended by Act No. 1 of 2020
- Banking and Financial Institution Act No. 5 of 2006
- Code of Civil Procedure
Judge Name
Mwaseba, J.
Passage Text
- For the foregoing reasons, the preliminary objection raised by the learned state attorney for the respondent is hereby sustained. The suit is hereby struck out with costs for being prematurely instituted. It is so ordered.
- That being the legal position, the plaint is clear that the defendant is DIB who is a government institution. The prayer for effecting amendment to the plaint to rectify the name of the defendant will amount to pre-empting the preliminary objection. So, this court finds merit on the 1st point of preliminary objection.
- Regarding the prayer of the counsel for the plaintiff to be allowed to amend the pleadings to change the name of the defendant, it has been decided in several cases that a party is not allowed to pre-empt a preliminary objection to cure anomalies raised by the other party.