HIMID MBAYE v THE BRIGADE COMMANDER 1984 TLR 294 (HC)

HIMID MBAYE v THE BRIGADE COMMANDER 1984 TLR 294 (HC)

Court High Court of Tanzania - Zanzibar

Judge Ramadhani CJ

December 15, 1983

CIVIL CASE 8 OF 1981 C

Flynote

Civil Practice and Procedure - Jurisdiction - One of the parties is a head of a

Department of the Union Government - Whether the High Court for Zanzibar can

hear and determine the suit. D

Civil Practice and Procedure - Institution of Proceedings - One of the parties is a head

of a Department of the Union Government - Procedure before instituting the suit -

Civil Procedure Decree, Cap. 8, s. 60.

Landlord and Tenant - Tenant caused damage to premises - Parties did not agree on

anything regarding E maintenance of the suit premises - Whether damages

recoverable - Rent Restriction Decree, Cap. 98, s. 28(1)(b)(i).

Headnote

The plaintiff filed a suit against the defendant in his official capacity as Commander of

the Nyuki Brigade. F Because the defendant is a Union Government Department the

court had to resolve two preliminary matters. First, whether or not the High Court

for Zanzibar has jurisdiction to entertain such a suit. Second, if the court has such

jurisdiction whether there is any procedure to follow before filing such a suit. G

The plaintiff let his premises to the Brigade Commander. When he was given vacant

possession of the same much damage had been done on the premises. Although there

was no agreement by the parties on anything regarding maintenance of the suit

premises the plaintiff sought to recover damages to put the H house into its former

state.

Held: (i) The Government Proceedings Act, 1967 does not apply in Zanzibar even

though there are I numerous Departments of the Union Government in Zanzibar;

1984 TLR p295

RAMADHANI CJ

A (ii) since there is no law in Zanzibar prohibiting this court from hearing such

suits as this one, it is the duty of this court to hear and adjudicate upon this suit;

(iii) under the laws of Zanzibar a two month's written notice to "the Chief

Secretary to the Zanzibar B Government" is necessary before the court may

entertain a suit against the Government;

(iv) since "the Chief Secretary to the Zanzibar Government" has not been

mentioned in the Existing Laws Decree, 1964, such notice may be given to the

Attorney-General;

C (v) even though section 60 of the Civil Procedure Decree has specifically

mentioned the Zanzibar Government, now that there are two governments in

Zanzibar and in view of the intended effect of the legislation (i.e. to notify it before

filing a suit) the procedure applies to the Union Government as well;

D (vi) section 28 of the Rent Restriction Decree imposes a duty on the tenant to

maintain the premises in the same state, fair wear and tear and damage arising from

irresistible force excepted, as that in which the premises were at the commencement

of the tenancy;

E (vii) in this case most of the damage is not from irresistible force but due to

alterations.

Case Information

Judgment for the plaintiff

Case referred to:

F 1. Abdulhussein Bodalbhoy v Marekwa, 5 Z.L.R. 44

Case Information

Ramadhani, C.J.: In this suit the defendant, the Brigade Commander, is an officer of a

Department of the Government of the United Republic of Tanzania as opposed to the

Revolutionary Government of Zanzibar. G He is sued in his official capacity as the

commander of the Nyuki Brigade.

This suit was filed on 2 April, 1981. Since the defendant is a government department,

I ordered that the provision of Sect. 690 of the Civil Procedure Decree Cap. 8, relating

to suits against the government, to be H followed. The plaintiff was directed vide

our letter Ref. No. 341/81 of 2 June, 1981 to send his claims to the Attorney-General

of Zanzibar. He did so by his letter of the same date. The Honourable, Attorney-

General replied to the plaintiff vide his letter L.D. 21 Vol. IV/217 of 2 July, 1981 that

he should I follow the procedure laid out in the Government Proceedings

Ordinance, Cap. 5. (That law had already been replaced though). The plaintiff

1984 TLR p296

RAMADHANI CJ

wrote to the A-G on 6 July, 1981 complaining that he was being inconvenienced. He

sent a copy of the A letter to me. I responded on 11 July, 1981 that as the Defence

Forces was a department of the Union Government he should follow the advice of the

A-G. I also advised him to try to settle the matter out-of-court by corresponding with

the Defence Forces Headquarters, Dar es Salaam. The plaintiff B complied with the

advice. He wrote to the Chief of Defence Forces (C.D.F.) On 20th July, 1981. I also

wrote to the Director of Legal services on 28th July, 1981 (Ref. A/JM/9/81/84) giving

support to the plaintiff's letter. An exchange of letters ensued between the Defence

Forces, the plaintiff and myself. I do C not think it is necessary to mention all of

them. The plaintiff also wrote to the Minister of Justice of Tanzania seeking her fiat

as provided under the Government Proceedings Act. The plaintiff was told by the

Attorney-General of Tanzania that as Justice is a non-union matter, the Minister of

Justice of Tanzania has no jurisdiction in Zanzibar (J/C. 20/30/8 of 15 September,

1981). D

Eventually the suit came for hearing before Msumi, J. on 10th November, 1983. The

Army Officer who came on behalf of the defendant had not been given any

instructions. The case was adjourned to 22nd November, 1983 and neither of the

parties turned-up. However, the defendant sent a letter Ref. No. 301 E KV/1295 - 1

of 19th November, 1983, enclosing a copy of the letter Ref. MMJ/1152 - 1 of October,

1983 from the C.D.F. to the A-G (T). These claims were sent to the A-G so that he

could deal with them under the Government Proceedings Act, 1967. I instructed the

Registrar of the High Court to write to the A-G (T) to F brief him and indicate to

him that more likely that the C.D.F. was unaware of what had transpired. The

Registrar did so vide his letter Ref. No. 915/83 of 25th November, 1983. It was also

stated that the case was up for mentioned on 24th January, 1984 and that a date for

hearing will be fixed then. A reply came to the G effect that the applicable law on

the Mainland is the Government Proceedings Act, 1967 as amended by Act No. 40 of

1984. The letter, Ref. 3/C.60/4/1136/8 of 23rd December, 1983, concluded: "The case

must be finalised in accordance with the laws and procedure of Zanzibar." H

The case was up on 24th January, 1984 both parties were absent. On 24th February

only the plaintiff appeared. The case was heard ex-parte under O XI R 6 (1) (a). I am

fully satisfied that the defendant was aware that the case was up for a last mention on

24th January and that the hearing was to be on 24th February. I

1984 TLR p297

RAMADHANI CJ

A Apart from my being so satisfied Law, C.J. had said in Abdulhussein Bodalbhoy v

Marekwa 5 Z.L.R. 44 that:

In my opinion, apart from the Official notice in the 'Gazette' referred to, it is

the duty of parties to keep themselves B informed as to when their cases will be

tried.

In that case the plaintiff was absent. However, his lordship by using the plural

"parties", I have no doubt that he would have arrived at the same opinion had the

defendant been absent. I might just add that the C opinion was given taking into

account O IX of the Civil Procedure Decree, Cap 4 which is in pari materia with O XI

of the present Cap. 8.

The defendant is the Brigade Commander of the Nyuki Brigade which is in Zanzibar.

This is one of the D Brigades of the Tanzania Peoples Defence Forces which have

been constituted under Article 89 (2) of the Katiba ya Jamhuri ya Muungano wa

Tanzania, 1977 and also under Section 4 of the National Defence Act, 1966 (Act NO.

24 of 1966). It is quite evident that under the said Article 89 of the Constitution the

Defence E Forces is a Government Department and actually a Department of the

Union Government. Apart from that Article, national defence (ulinzi) is a union

matter under item 3 of the Second Schedule to the Constitution of the United

Republic of Tanzania. Again Section 2 of the National Defence Act, 1966 extends the

application of that law to Zanzibar as well. Hence the defendant is a Head of a

Department of F the Union Government.

Under the Government Proceedings Act, 1967 (Act No. 16 of 1967 of the United

Republic) a Department of the Union Government cannot be sued without first

obtaining a written permission to do so from the G Minister of Justice (Section 6).

As the defendant is the Head of a Department of the Union Government he is covered

by this provision. The defendant cannot be sued unless such permission is first

obtained. However, the Government Proceedings Act, 1967 does not apply in

Zanzibar even though there are numerous Departments of the Union Government in

Zanzibar. Therefore I have to look at the relevant law H in Zanzibar concerning

suits against Government Departments and officials.

Section 60 of the Civil Procedure Decree, Cap. 8 of the Laws of Zanzibar (1958 Series)

provides as follows:

I No suit shall be instituted against the Zanzibar Government, or against a

public officer ... until the expiration of two months

1984 TLR p298

RAMADHANI CJ

next after notice in writing has been delivered to, or left at the office, the

Chief Secretary to the Zanzibar Government A or to the District Commissioner of

the District ...

There are two issues regarding this section. One, the section talks about the Zanzibar

Government but here we have a Department of the Union Government. Now, does

this procedure apply to the Union B Government? I shall deal with this issue

shortly. The second issue is which official of the Zanzibar Government is to be

regarded to have taken the position of "the Chief Secretary to the Zanzibar

Government". C

As for the second issue nowhere has it been stated which official takes the place of

the Chief Secretary. Section 3 of the Existing Laws Decree, 1964 (Decree No. 1 of

1964) provides:

(a) references in any existing law to the former Sultan or Prime Minister

shall be read as references to the D President;

(b) references in any existing law to the Protectorate shall be read as

references to the Republic: E

(c) references in any existing law to the British Resident or to the

Resident-in-Council shall be read as reference to the Minister for the time being

responsible for the matter in question. F

The Chief Secretary has not been mentioned. Hence when the plaint was filed the

plaintiff was advised to send his claims to the Attorney-General of the Revolutionary

Government. This was done in the hope that he could be advised by the Chambers

where he could lodge his claims. He did this as has already been G told. But

secondly, the Attorney-General is the Chief Legal Adviser of the Revolutionary

Government of Zanzibar per Article 18 of the 'Katiba ya Serikali ya Mapinduzi, 1979'.

Likewise in Order XXXI Rule 4 it is provided that: H

The Attorney-General in any court, or such other person as the President may

appoint in this behalf, shall be the agent of the Government for the purpose of

receiving process against the Zanzibar Government issued by such court. I

Hence the Attorney-General is in any case concerned.

1984 TLR p299

RAMADHANI CJ

A But there is still the question whether this procedure applies to the Union

Government. By looking simply at the precise, clear and unambiguous words used

the procedure applies only to the Revolutionary Government of Zanzibar. But at the

time this law was enacted there was only one government in Zanzibar B but now

there are two governments: The Revolutionary Government and for union matters

the Union Government. The two are fused in the same person who is both the

President of Zanzibar and the Vice-President of the United Republic. Hence in order

to give a correct answer to this question I have to C determine what was the

intention of legislating this procedure. I am of the opinion that it was intended that

the government should not be taken unaware and merely receive summons to come

to court. It was intended that the government should at least have a notice of two

months so as to prepare itself before a summons be issued to them or even to settle

the matter out of court for it is unbecoming of a government D to be sued. If so that

intention is for all governments; be it of Zanzibar or of the Union. In this

interpretation I have the support of the Government Proceedings Act, 1967. Though

that law does not extend to Zanzibar but this court recognises it as law of the United

Republic and the fact that government E too has prescribed a procedure for its being

sued.

Thus even though Sect. 60 of the Civil Procedure Decree has specifically mentioned

the Zanzibar Government, now that there are two governments in Zanzibar and in

view of the intended effect of the F legislation I find that the procedure applies to

the Union Government. Hence I answer the question I had posed earlier in the

affirmative.

Under the Laws of Zanzibar all that is required is to give a two months notice. After

the expiration of that G period the court goes on to hear the case. There is no

requirement of securing the written permission of the Minister first.

In the suit before me a notice of over two years, let alone two months, has been given

to both Attorney-Generals: of the Revolutionary Government and of the United

Republic. Therefore I deemed it H proper to continue with the hearing of the case.

However, should I have erred in holding as I have done, which I am convinced I have

not, still this court has jurisdiction to entertain this suit under sub-section (1) of

Section 4 of the Civil Procedure Decree which I provides:

1984 TLR p300

RAMADHANI CJ

The courts shall (subject to the provisions herein contained) have jurisdiction

to try all suits of a civil nature excepting A suits of which their cognisance is either

expressly or impliedly barred.

There is no law in Zanzibar which "expressly or impliedly" bars the Zanzibar courts

to hear any suits B against the Union Government. As I have already stated the

Government Proceedings Act, 1967 does not extend to Zanzibar. Article 77 of

"Katiba ya Serikali ya Mapinduzi, 1979" provides: C

Sheria yeyote iliyotungwa na Bunge la Jamhuri ya Muungano wa Tanzania

haitatumika Zanzibar ila kwa mujibu wa masharti ya aya (h) ya ibara ndogo (2) ya

ibara ya 94 ya Katiba ya Jamhuri ya Muungano ya 1977. D

That paragraph (h) which has been cited provides:

Sheria yeyote iliyotungwa na Bunge kuhusu jambo lolote haitatumika

Tanzania Visiwani ila kwa mujibu wa masharti yafuatayo: E

(i) Sheria hiyo iwe imetamka wazi kwamba itatumika Tanzania Bara na

vile vile Tanzania Visiwani au iwe inabadilisha, kurekebisha au kufuta Sheria

inayotumika Tanzania Visiwani; au F

(ii) Sheria hiyo iwe inabadilisha au kurekebisha au kufuta sheria iliyokuwa

inatumika tangu zamani Tanzania Bara ambayo ilikuwa inatumika pia Tanzania

Visiwani kwa mujibu wa Mapatano ya Muungano wa Tanganyika na Zanzibar, ya

mwaka 1964 au kwa mujibu wa Sheria yoyote ambayo ilitamka wazi kwamba

itatumika G Tanzania Bara na vile vile Tanzania Visiwani; au

(iii) Sheria hiyo iwe inahusu mambo ya Muungano; na kila inapotajwa

Tanzania katika Sheria, ifahamike kuwa Sheria hiyo itatumika nchini Tanzania kwa

mujibu wa ufafanuzi uliotolewa na aya hii." H

Now the Government Proceedings Act, 1967 is not among the laws as provided

above. Judiciary is not a union matter. Thus even that law cannot be taken to

prohibit the Zanzibar courts from hearing suits I against the Union Government.

1984 TLR p301

RAMADHANI CJ

A Section 129 of the Civil Procedure Decree also provides:

Nothing in this Decree shall be deemed to limit or otherwise affect the

inherent power of the court to make such orders B as may be necessary for the end

of justice or to prevent abuse of the process of the court.

Thus so long as the plaintiff has filed his suit, this court cannot dismiss it and be

without authority as to fail to give justice and bring the whole judicial process into

contempt. It is imperative that this court hears C and adjudicate on this suit.

By applying the two provisions of the Civil Procedure Decree, therefore, the situation

is this: since there is no law in Zanzibar prohibiting this court from hearing such suits

as this one it is the duty of this court to hear and adjudicate upon this suit.

D After disposing of the legal issues let me now turn to the claims themselves. The

plaintiff is the owner of a house situated at Kidogobasi in Mwera, Zanzibar. The

plaintiff was requested by the defendant's letter Ref. 1680 - Vol 1 of 24 May, 1968

which was signed by one Ltd. Col. Seif Bakari, to provide E accommodation to

certain army officers. The plaintiff agreed to do so vide his letter of 28 May, 1968.

However, he gave certain conditions. It is better if I quote the relevant portion of

that letter:

Kuhusu upangaji huo naomba kusema hivi:-

F (1) Tutakodisha nyumba tu pamoja na vitu viliomo ndani - yaani vitanda,

makabati, meza, viti etc.

(2) Miti na matunda haimo katika ukodishaji;

(3) Tutakuwa na haki kuingia shambani kwa ajili ya kuchuma matunda na

kutazama hali ya shamba kwa wakati wa desturi;

G (4) Kodi ya nyumba pamoja na vitu vyake ni Shs. 100/= (Shilingi mia moja)

kwa mwezi.

Tungependa kujua jina la mpangaji - yaani, ni maofisa maalumu kwa binafsi;

au inapanga Serikali na kodi tutapokea kwa nani?

H That letter was replied to vide Ref. No. 2143 -1 Vol.II of 3 June 1968 as follows in

the material portions:

I Kodi ya nyumba pamoja na vitu vyote viliomo ndani ya nyumba hiyo gharama

zake zitalipwa na Jeshi.

1984 TLR p302

RAMADHANI CJ

Bill yako itabidi kuletwa kila mwezi Makao Makuu ya Jeshi. A

Kabla ya Ofisa huyo kuhama ni bora mkabidhiyane vyombo vyote viliomo

ndani ya nyumba yako.

It was also agreed that the garden would remain in the hands of the plaintiff. The

officer who was to occupy the premises was one Lt. Haji Juma. It was requested that

the officer be allowed to move into the B house the same day the letter was written.

This letter was signed by Colonel Yusufu Himid Maftah.

From those letters it is evident that there was a contract of renting this house to the

defendant on the agreed terms. C

On 5 June, 1968 the plaintiff handed over to Lt. Haji Juma in writing the furniture

which was in the suit premises. These pieces of furniture were as follows:

(a) two beds and two mattresses;

(b) one chest of drawers; D

(c) one cupboard;

(d) one bench;

(e) one dining table;

(f) one round table;

(g) one occasional table; E

(h) one mirror;

(i) one platter;

(j) one Bombay chair;

(k) two chairs;

(l) two rugs and one carpet; F

(m) one brass basin and one brass kettle;

(n) one basin;

(o) one brass pot.

The plaintiff has stated that after a short while the suit premises were not occupied by

army officers but by G people he did not know. The plaintiff has also said that he

was receiving rents of Shs. 60/= per month only. He also has complained that the

house has been grossly neglected and as a result it had become dilapidated and all the

pieces of furniture that were in the house had disappeared. H

On 10th February, 1981 the plaintiff gave the defendant a notice to terminate the

contract and hence to vacate the suit premises and to return the missing pieces of

furniture. The defendant did not reply. However, the plaintiff went to the Nyuki

Brigade Headquarters and they came to some understanding. He I was given vacant

possession of the suit premises together with

1984 TLR p303

RAMADHANI CJ

A all arrears of rents. The vacant possession of the premises was rendered on 1 May,

1981 vide letter Ref. No. 5315 (BAO). However, this was after the plaintiff had

already filed this suit on 2 April, 1981.

The plaintiff has three claims. First, he claims rents for four months of January,

February, March and April B of 1981 before vacant possession was tendered. He

thus claims a total of Shs. 240/= at the rate of Shs. 60/= per month. Secondly, he

claims the pieces of furniture and other utensils that he had handed over to Lt. Haji

Juma. He has estimated their value to be Shs. 10,000/=. Finally he seeks

compensation for the C damage to his house amounting to Shs.11,000/=.

As for the arrears of rents the plaintiff produced his letter of 28 June, 1982 to the

defendant which was not replied to. It seems that the parties had come to agree on

the rent of Shs. 60/= per month instead of Shs. D 100/= eventually. Therefore the

arrears of rent to the tune of Shs.240/= has to be paid.

It has been proved that there were certain pieces of furniture which had been handed

over to Lt. Haji Juma on behalf of the defendant. The plaintiff has estimated their

total value to be Shs. 10,000/=. This value is E that of 1968. However, all of the

things would have certainly depreciated by now. Some of them like the two rugs, the

carpet and the two mattresses would have been worn out and fit only to be disposed

of. As the plaintiff did not give the value of every individual item it is extremely hard

to estimate the degree of F depreciation of every one. Even then after almost twelve

years I consider a compensation of a total of Shs. 5,000/= to be reasonable.

Then comes the issue of damage to the house. The parties did not agree on anything

regarding maintenance of the suit premises. However, the Rent Restriction Decree,

Cap. 98 in section 28 outlines the G duties and responsibilities of both the landlord

and tenant regarding maintenance except if they have agreed differently. The

relevant part is sub-paragraph (i) of paragraph (b) of sub-section (1) of section 28

which imposes on the tenant the duty to:

H maintain the premises in the same state, fair wear and tear and damage arising

from irresistible force excepted, as that in which the premises were at the

commencement of the tenancy.

I The plaintiff has stated that the defendant has made certain alterations to the

house. For example the toilet has been sealed and turned into kitchen. Most of the

damage is not from irresistible

1984 TLR p304

force but due to the alterations. He claims that he would need Shs.1,000/= to return

the house into its A former state. Comparing to the present high building costs I do

not think that the amounts claimed are out of proportion in fact it could be lower

than the actual costs. Be as it is the plaintiff has claimed that amount and so I grant

him what he has prayed for. B

I therefore find in favour of the plaintiff a total of Shs. 16,240/= with costs.

Judgment for the plaintiff. C

1984 TLR p304

D