ALOYS LYENGA v INSPECTOR-GENERAL OF POLICE AND ANOTHER1997 TLR 101 (HC) A

 

ALOYS LYENGA v INSPECTOR-GENERAL OF POLICE AND ANOTHER1997 TLR 101 (HC) A

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J

CIVIL CASE 140 OF 1995 B

17 April 1997

Flynote

Torts - Damages - Actions against government - Time bar

Torts - Damages - Actions against government - Requirement of notice C

Civil Practice and Procedure - Verification clause - Requirements

-Headnote

The plaintiff sued the defendant for damages arising from the vandalising of his D

property whilst he was in detention. The plaintiff's claim arose in 1984 when he was

released from detention whereas the suit was filed in May 1995. The defendant raised

three preliminary objections: (a) that the plaintiff had failed to give notice as required

under s 6(2) of the Government Proceedings Act 1967; (b) that the suit was timebarred;

and (c) that the verification clause was fatally defective for failure to disclose

the source of information. E

Held:

(i) As the plaintiff had failed to send a copy of his claim to the Attorney-

General as required by s 6(2) and had not complied with the period prescribed in

paragraph 6 of the First Schedule to the Law of Limitations Act 10 of 1971 (three

years for suits founded on tort) the suit was barred; F

(ii) Order VI Rule 15(2) did not require a verification clause in a plaint or

written statement of defence to disclose the source of information or grounds of belief

of the matter pleaded: what the verifier was required to do was to itemise in the

verification clause matter which were of his personal knowledge and those based on

information or belief. G

Case Information

Order accordingly.

No cases referred to.

Kashumbugu for the plaintiff.

Ngwembe for the respondent. H

[zJDz]Judgment

Msumi, J

This ruling is on the three preliminary legal issues raised by the defendant in their

joint written statement of defence filed in court on 5 February 1995. The two

defendants are Inspector General of I

1997 TLR p102

MSUMI J

A Police and Attorney-General. The suit against them is based on tort. As they

appear in the written statement of defence, the said three preliminary objections are:

(i) That the suit is incompetent and was filed in contravention of s 6(2) of

Government proceedings Act 1967 as amended by Act 30 of 1994. B

(ii) That the suit is time barred.

(iii) That the verification clause is fatally defective for failure to disclose the

source of information. C

On the direction of the court counsel for each party presented written submissions.

Amplifying the first issue, Mr Ngwembe, State Attorney argued that s 6(2) of the

Government Proceedings Act as amended by Act 30 of 1994 provides that any party

who intends to sue the Government must give notice of not less than 90 days of such

intention to the minister or department involved in the suit in D question and a

copy of the same to the Attorney-General.

This is what the section says:

`S 6(2) no suit against the government shall be instituted, and heard unless the

claimant E previously submits to the Government Minister, department or officer

concerned a notice of not less than ninety days (90) of his intention to sue the

government, and he shall send a copy of his claim to the Attorney General.'

F No doubt that from the wording of this section the prior issue of notice to the

government institution or officer concerned and the Attorney-General is a mandatory

pre-requisite condition before one sues the government. It is on this realisation that

in his reply to the written statement of defence, plaintiff tried to G controvert the

defendants contention by submitting that the required notice was in fact issued to the

Inspector General of Police four months before filing of the suit. To substantiate this

claim a copy of the alleged notice was attached as annexure to his reply. But the said

notice is incomplete because a copy of the same was not sent to the Attorney-General.

This shortcoming is among matters raised by counsel for the defendants in his written

submission. H

In his conspiciously short submission, Mr Kashumbugu, counsel for the plaintiff,

conveniently avoided to make any comment on the merits or otherwise of all the

three preliminary issues. Instead he decided to impugn the written statement of

defence for being filed I

1997 TLR p103

MSUMI J

outside the period prescribed by the court. Hence he urged the court to allow the A

plaintiff to prove his case ex-parte under Order 8 Rule 4(1)(b) of the Civil Procedure

Code for defendant's failure to file a defence. With respect I am not persuaded by this

argument. Admittedly defendants were required to file their defence by 16 January

1996 but they did so on 5 February 1996. However, B according to the court file, by

21 March 1996 plaintiff was already served with the alleged belated written statement

of defence and presented his reply to it on 24 April 1996. In his reply plaintiff never

challenged the said defence for being filed outside the prescribed time. On the

contrary Mr Kashumbugu joined with the counsel for the defendants on 29 May 1996

in informing the court that pleadings C were complete and requested for a hearing

date. Under these circumstances the court must be taken to have impliedly allowed

the defendants to file their defence on 5 February 1996 and plaintiff must be

impliedly taken to have had no objection against the filing of the defence on that

date. D

I think it will be an abuse of court process to uphold the plaintiff's contention.

Fairness demands that a party who intends to raise a preliminary issue, should do so at

an earliest opportunity. In the present case plaintiff ought to have raised the issue in

question in his reply to the said defence. He cannot be allowed to do so E now after

a period of about one year since he came aware of the alleged issue. The first

preliminary issue is therefore sustained. Plaintiff failed to comply with the mandatory

provision of s 6(2) of Government Proceedings Act hence the suit is incompetent.

As regards the second issue, plaintiff became aware of the alleged vandalisation F of

his property worth Shs 40,000,000/= on 25 February 1984 after he was released from

detention. It was from that day or thereabout when the cause of action arose.

According to para 6 of the first schedule to the Law of Limitation Act 10 of 1971,

limitation period for suits founded on tort is three years. This suit was G filed

sometimes in May 1995. The second issue is also upheld in that the suit is time barred

as it was filed almost twelve years after the cause of action has arose.

As regards the third issue I am of respectful opinion that the learned counsel for the

defendants has seriously misunderstood the provisions of Order 6 Rule 15(2) H of

the Civil Procedure Code and the comment by Sarkar on the identical provision of

the Indian Code of Civil Procedure. Neither Order 6 Rule 15(2) nor the commentary

of the learned author does it require verification clause in a plaint or written

statement of defence to disclose source of information or grounds of belief of the

matter pleaded. What the verifier is I

1997 TLR p104

MSUMI J

A required to do is to itemise in the verification clause matters which are of his

personal knowledge and those based on information or belief. As I said earlier the

verifier is not bound to state the source of his information or belief. It appears that the

learned counsel is confusing Order 6 Rule 15(2) with Order 19 Rule (1) of the Civil

Procedure Code which deals with affidavit. It is provided in the later provision that:

B

`3 -- (1) Affidavit shall be confined to such facts as the deponent is able of his

own knowledge to prove, except on interlocutory applications, on which statement of

his belief may be admitted. C

Provided that the grounds thereof are stated'.

There is no such statutory disclosure requirement for verification in pleadings which

is defined under Order 6 Rule 1 to mean:

`... plaint or written statement of defence (including a written statement of

defence filed by a D third party) and such other subsequent pleadings as may be

presented in accordance with Rule 13 of Order VIII.'

E From these observations the third preliminary issue is overruled. On the other

hand I respectfully sustain the first and second issue. The suit is incompetent hence

dismissed with costs for non compliance by the plaintiff of s 6(2) of the Government

Proceedings Act and filed outside the statutory limitation period of three years. F

1997 TLR p105