AMAN DAVID MLANGA v TIMBER IMPREGNATION LTD 1991 TLR 172 (HC)

 

AMAN DAVID MLANGA v TIMBER IMPREGNATION LTD 1991 TLR 172 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

14 November, 1991

Flynote

F Civil Practice and Procedure - Suits against government - Ministerial fiat -

Whether ought to have been obtained regardless of court order.

Civil Practice and Procedure - Change of advocate - Whether formal withdrawal

needed.

-Headnote

G An order was made by a Judge under 0.1, r.10 (2) and (4) of the Civil Procedure

Code that the Director for Lands be made a co-defendant of the suit. The judge also

directed that the plaint be amended to comply with said order. At the hearing an

objection was raised to the effect that Ministerial fiat had not been sought and given.

H Held: (i) That it was necessary to obtain the consent of the Minister for Legal

Affairs even if the court makes an order to join him as a co-defendant in a suit which

has already been instituted;

I (ii) that an order of the court cannot be operative contrary to statute;

1991 TLR p173

KYANDO J

(iii) Obiter: that the requirement for advocates to formally withdraw from

suits, and before the court, is a A requirement based on practice and courtesy only.

Case Information

Objection affirmed.

Macha for defendant B

Tarimo for plaintiff.

[zJDz]Judgment

Kyando, J.: In this suit on 24/11/85 I ordered, under 0.1 R.10(2) & (4) of the Civil

Procedure Code, 1966, and in view of the issue involved in the case that the Director

for Lands be made a defendant. I directed the plaint to be C amended to comply

with my order and the plaintiff did so.

On 13/9/91 when the suit was called for hearing, Mrs. Macha, who apparently

represented the Director for Lands, raised a preliminary point of objection to the suit,

which was that the Director for Lands, through the Attorney D General, had been

sued without a consent to sue the Government having been obtained first in terms of

the Government Proceedings Act. She contended that the suit was for the reason

incompetent and should, until the E requisite consent is obtained be truck out.

In reply Mr. Tarimo for the plaintiff submitted that the addition of the Director of

Lands, and therefore the Attorney General, was made following an order of this court

i.e. my order referred to above. He said that they themselves did not sue the Attorney

General. He said that the Attorney General came in by an order of the court. Further

Mr. F Tarimo submitted that for over two years the Attorney General has been

appearing in this case without raising any objection. He said it does not take two years

to discover whether any consent was required. He submitted that the Attorney

General, by his conduct, had in fact consented to the proceedings going on. He said at

the relevant time the G Attorney General was also the Minister of Justice, (and it is

the Minister who gives the consents).

Mrs. Macha responded by submitting that the matter had never been heard before.

She said the mere fact of H previous appearances therefore did not restrict the

Attorney General from raising the preliminary point she was now raising. She

submitted further that the Attorney General cannot be said to be estopped from

raising the objection because of his previous conduct of appearing: She said estopped

cannot operate against a statute. Finally, she I contended that even if it was the court

which ordered the joinder of the Director

1991 TLR p174

KYANDO J

A for Lands it does not mean then that the usual procedure for suing the

Government is thereby waived. She said by making the order the court and not

intend that the suit should be brought in violation of the law.

B I am of the view that Mrs. Macha is right in her arguments. It was necessary to

obtain the consent of the minister for Legal Affairs to sue the Director for Lands even

if it was this court which made the order to sue or join him as a defendant. This is

because an order of this court prevail and be complied with. So when the order to

include the C Director for Lands was made what was expected was that the usual

and normal procedure for suing a Government Officer as provided for in the

Government proceedings Act would be followed. It was, as already indicted, not

followed, and the suit is incompetent.

D I would have struck it out for incompetence but as I believe that the plaintiff may

have been, because of my order, under the impression that there was no need to apply

for and obtain a fiat to sue the Director for Lands as usual, I will not order that the

suit be struck out but instead I order that it be stood over for three months from today

and in E the meantime the plaintiff is to obtain the requisite consent under the

Government Proceedings Act. If he will have failed to obtain the consent within that

period, the suit will then be struck out - for the reason I have indicated already.

There was an application, too made by Mr. Nyange and which Mr. Tarimo opposed.

The application was that he, F Mr. Nyange, had just been briefed and instructed to

represent Timber Impregnation Limited, first defendant, and he needed time to

amend the Written Statement of Defence previously filed by Mr. Kapinga.

Mr. Tarimo replied that so long as Kapinga, who had been representing the first

defendant, had not formally G withdraw from the suit Mr. Nyange could not take

over and start making application to amend the written Statement of Defence.

I think the requirement for advocates to formally withdraw from suits and before the

courts is a requirement based H on practice and courtesy only. Mr. Nyange came

with his clients. If the clients will recognize Mr. Kapinga as their advocate they

would have objected to Mr. Nyange appearing on their behalf and from making the

application he made. They did not do so and I take it that Mr. Kapinga no longer

represents the first defendant; Mr. Nyange is the one who now represents them. I

therefore overrule Mr. Tarimo's objection to the application made by Mr. Nyange. I

Mr. Nyange, however, will have to amend the Written Statement of Defence in the

manner he

1991 TLR p175

wants to amend it only after the plaintiff's suit has been consented to by the Minister

for Legal Affairs as indicated A earlier on above.

Ordered accordingly. B

1991 TLR p175

C