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SUITS AGAINST GOVERNMENT, A NEED FOR NEW MINDSETS?

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 SUITS AGAINST GOVERNMENT, A NEED FOR NEW MINDSETS?

Erigh Rumisha1

Disclaimer: This paper represents the opinions of the author. Facts and opinion are
solely the personal statements of the author. It is not meant to represent the position or
opinions of his employer and any errors are the fault of the author.

Abstract

It is of the iota of doubt that, the current government of Tanzania is now making a
conscious and serious efforts to improve regulations and laws, so as to promote best
business practices and enhance the quality of investors environment, which ultimately
will lead to the strengthening of investor confidence to invest in Tanzania . New
comprehensive approaches in attracting investments have been advanced so as to
address many challenges and improve the investment climate in the country. However, it
is of significance to state that, the strengthening of investors’ confidence relies largely on
an acceptable amount of certainty and just laws that promising investor’s rights and
protection hence stable business environment will persist in the future. However, in all
fairness, Investors, foreign and domestic, are less likely to inject capital into economies
where risk of investment on protection of their interests are high. There can be little or no
question that perceptions of excessive levels on cases against the government before
the court for a particular country can serious deter many potential investors. As a
country, we have made a serious comprehensive investment reforms especially during
the current government of Tanzania , but there is a need to have a proactive
mechanisms in resolving any claims against government before the same to have
matured to be a suit. This paper, tries to analysis the legal gaps in as far as the
procedures for suits against government.

1
He is a Litigant for Civil and Commercial Cases, an independent researcher and holder of
LLB from Mzumbe University-Morogoro Campus and Masters of Laws in Corporate and
Commercial Laws-UDSM. The writer is working as a State Attorney in the office of Solicitor
General of Tanzania.
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The procedures for suits against Government.
Basically, under section 6(2) of the Government Proceeding Act, [Cap.5 R.E.2019]
provides the procedure for suing the Government, it requires the person who intends to
sue a Government first to issue a statutory notice to the relevant Government officer or
institution and copy of the said notice to the Attorney General and Solicitor General.
Furthermore, section 6(4) of the Government Proceedings Act 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. Furthermore, section 7 of the Government Proceedings Act
provides in unequivocal terms that: Notwithstanding any other written law,
no civil proceedings against the Government may be instituted in any
court other than the High Court

Indeed, a careful examination of the above provision reproduced above, reveals

mandatory procedure for suing the Government, Government Minister, Department or
officer concerned that, it requires the person who intends to sue a Government, first to
issue a statutory notice to the relevant Government officer or institution and copy of the
said notice to the Attorney General and Solicitor General. However, the Government
Proceedings Act and its amendment doesn’t define what is the suit, but the Court of
Appeal of Tanzania seating at Dodoma in the case of Tanzania Motor Service Ltd and
another Vs Mehar Sight t/a Thaker Sign Civil Appeal No. 115 of 2005 Nsekela,JA (as he
then was) at page 8 sought guidance from the law Lexicon, The Encyclopaedic &
Commercial' Dictionary, 2002 (Reprint) at page 1831 where it is stated:

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 The term "suit" is a very comprehensive one and is said to apply to any proceeding in a
Court of Justice 'by which an individual pursues a remedy which the law affords
him .The modes proceedings may be' various; but if the right is litigated between the
parties in the Court of Justice the proceeding in is a suit"

It is from this view, one may safely arrive that; currently all suits include land, civil, etc
have to be instituted before the High Court regardless its pecuniary effects and before
the same to be instituted, it has to be proceeded with the 90 days’ notice.

Purpose of the 90days Notices suit against the Government

The Government Proceedings Act doesn’t provides neither the purpose of the said
notice nor the need of sending a copy to the Attorney-General and the Solicitor General.
However, it is without gain saying that since the Attorney General is chief legal advisor to
the Government, guardian and custodian of the Government and public properties and
since by virtue of Office of the Solicitor-General (Establishment) Order, 2018,GN 50/2018
which provides that Office of Solicitor General its primary function is to take and conduct
all civil litigation and arbitration on behalf of the Government. In that regards, sending a
copy of the said notice to the Attorney-General and the Solicitor General before filing a
suit gives the Government the opportunity to settle the claim before a lawsuit is filed and
to investigate the claim so that it can properly asses and advice the relevant government
department, local government authority, executive agency, public corporation, parasternal
organization or public company that was alleged to have committed the civil wrong to use
other alternative ways of resolving dispute so as to avoid costs to the parties to the case
including the Government for handling cases, ultimately that help to reduce the backlogs
of many cases before the Courts . Indeed that helps the parties of the case to be engaged
in other economic activities for building this nation instead of wasting precious time of
the Court and parties.

What is a legal gap in relation to rules over 90days notice?

The period of 90days is equivalent to a quarter of the year, that entails that, any person
having a claim against the government, before filing a case has to give 90 days notice to
the government at first , so as the Government can assess and analysis the legality of
the claim, that is a sufficient time for the relevant government department, local
government authority, executive agency, public corporation, parasternal organization or
public company that was alleged to have committed the civil wrong to use other
alternative ways of resolving dispute so as to avoid costs to the Government for handling
cases with no any substantial evidence , but also this encourage timely justice instead of
litigation.

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 However, the question is, in the absence of the legal obligation on party of the
government, will be any implementation and effectiveness on those notice? In my view,
while section 6(2) of the Government Proceeding Act, [Cap.5 R.E.2019] is coached in
the mandatory terms requiring the claimant to issue the same, but that section doesn’t
provide any responsibility on party of relevant government department, local government
authority, executive agency, public corporation, parasternal organization or public
company that was alleged to have committed the civil after has been issued with the said
notice.

In all fairness, the law doesn’t provide any mandatory obligation on party of the
Government to work or to act upon on the said notice, nor doesn’t impose any statutory
obligations on government department, local government authority, executive
agency, public corporation, parasternal organization to have a workable plan so as to
have an action plan on implementing on those notice by making all means including
using negotiations, mediation other alternatives disputes resolution to settle the claims
against the Government before the same have been matured to be the suit.

If there was statutory obligation, various claims, including investments disputes,

commercial disputes could have been handled early hence reducing backlogs and
accumulation of cases before the court hence to push the business wheel to further
progress and prosperity in Tanzania.

Court interpretation over section 6(2) of the Government Proceeding Act, [Cap.5
R.E.2019]

As I have stated early that, the provided requirements for issuing 90 days’ notice is not a
matter of choice but a mandatory requirement to be done as the wording of the provision
used the word "shall" which is defined under the provisions of section 53(2) of the
interpretation of laws Act [Cap 1 RE 2002] to mean that the function so conferred must
be performed. The court have insisted severally on the requirement of issuing the same
as stated in the case of Arusha Municipal Council versus Lyamuya Construction
Company Limited TLR (1998) 13 and the court has emphasizing that, the filing of a
suit against the government without issuing a statutory notice is fatal. Furthermore, in the
case of Joshua Mhagama and 6 others Vs. Tanesco and Another, Land Case No. 42 of
2022 the court while providing the rationale of the said notice and proceeded to strike out
the suit filed without notice, but the court didn’t impose any obligation on party of the
Government so as to implement the said notice, perhaps this is a lacuna

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Roles of preemptive and anticipatory mechanism for investment disputes
settlements.
One of the conditionalities advanced by the capital exporting state during the
negotiation for the international investment agreement has been for the capital importing
state to in place a pro-active effective legal measures to ensure that disputes arising from
international investment and commercial relations are handled before resorts to
international Courts. Basically, the law governing investment in Tanzania is the Tanzania
Investment Act (here after the Tanzania Investment Act) 2 has provided for the provisions
regarding settling of the investment disputes which have international character between
a foreign investor and the government under section 23 of the Act.

But the law, doesn’t provide clearly the steps to be taken by the relevant government
department, local government authority, executive agency, public corporation,
parasternal organization or public company that was alleged to have committed the civil
wrong against the investor. The law governing investment in Tanzania is the Tanzania
Investment Act (here after the Tanzania Investment Act) 3 provides for the provisions
regarding settling of the investment disputes which have international character between
a foreign investor and the government under section 23 of the Act. However in my view,
such law is not exhaustive on the role of the any government institution on handling
claims against investors. This is because handling investment claims before maturing to
disputes needs urgent resolutions and technical skills for that matter a lot have to be
done to provide comprehensive responsibilities of institution receiving any claim against
the investor and the need of involving the office of Attorney General on handling
investment disputes prior and before maturing to cases.

2
ACT NO.26 OF 1997.
3
ACT NO.26 OF 1997.In case of an investment dispute, first step to take is negotiations for amicable settlement. If
negotiations fail then a dispute can be submitted to arbitration prior to the party’s agreement either in accordance to the
arbitration laws of Tanzania, rules of procedure for arbitration of the ICSID or within any bilateral or multilateral
agreement on investment.
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General Observation and Recommendation

With the above discussion now it’s time for the Government to think on how to make
necessary amendment so as to limit number of cases against by Government to be filed
at High Court taken into consideration on the statistical data of the workload at the High
Court and domesticate the need for taking proactive measures on resolving disputes
before maturing to cases. Also if need arose, a carefully study has to be made to make
a necessary amendment to section 6(2) of the Government Proceeding Act [Cap 5
R.E.2019].

However, it is the observation of the writer that this provision needs amendment as it is
high time for the Government to join hands with judiciary in reducing workload at the
high Court at the same time reducing the cost to the Government by putting effective
legal mechanism s how to handle 90days notice by imposing a mandatory
requirements on part of government to work upon on the said notice . The writer is of
the view that, this section mainly it was intended to act as a filter and encouraging
Alternative Dispute resolution for the claim against the government , for the purpose of
giving the Government and relevant government department, local government
authority, executive agency, public corporation, parasternal organization or public
company an ample time to assess the nature of the claim alleged and come up with the
base of why litigation and not mediation depending the nature of each claims.

In other way to assess the claim before instituting of that cases. The period of 90days is
equivalent to a quarter of the year, that the claimant gives the Government to see if
there is a valid claims and if no valid claims, that also is the time for the relevant
government department, local government authority, executive agency, public
corporation, parasternal organization or public company that was alleged to have
committed the civil wrong to use other alternative ways of resolving dispute so as to
avoid costs to the Government for handling cases with no strong defence which at the
end will result to cost and accrue interest against the Government to the successful
winner in case the government lost the case.

Basically, the law impose obligation to the Claimant but doesn’t impose any duties upon
the government department, local government authority, executive agency, public
corporation, parasternal organization or public company after receiving those notices,
but if at all these 90days Notice are firm diligently statutory handled effectively, their
will be few cases to be litigated by the Government and this will reduce costs to the
Government on running those cases.

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 90days Notice, as I said early is the filter, intending to reduce uncontested and those
cases which are not fit for litigation but since there is no any legal mandate imposed
upon the Government on effectively handling the same, in my view its purpose are
defeated hence increases of large number of cases against the government

Lack of proper guideline and mandatory legal effectives steps on part of government
department, local government authority, executive agency, public corporation,
parasternal organization or public company to be followed by the Government after
receiving 90 day notice, have placed the Government to have poor defenses at the time
when the case are filed before the Court.

On the other hand, waiting Court mediation to resolve cases which were actually
supposed to be handled within 90 days is illogical and an increases of a workload at the
Court unnecessarily taken into consideration that Court’s mediation are having limited
and fixed 30 days to be concluded. Also it is suggested that there is a need of imposing
statutory obligations on the relevant state Attorney serving in relevant legal departs of
government department, local government authority, executive agency, public
corporation, parasternal organization or public company after receiving 90 days notices
to make case analysis and submit the same to Office of the Solicitor General and
Attorney General who will have to certify that there is a need to litigate or not.

CONCLUSION
All in all, the practice tell us that, only section 6(2) of the Government Proceedings Act
are used mostly as a point of law to striking out those cases which are filed without
issues statutory 90 days’ notice but it the view of writer that, the time has come to see
how to put in place statutory safeguards to ensure implementation of the purpose and
intention of the parliament for enacting the said provision. The reason for that is; when
section 6(2) of the Government Proceeding Act [Cap 5 R.E.2019] read together with
section 16 of same Act which provides that execution of Court order against the
Government is by way of certificate only containing the particular of order, it is very clear
that; the legislature didn’t expect the Government to litigate huge number of cases, and
also waiting to defend the Government at the execution stage is difficult and save a little
purpose unless if Judgment creditor prays for other mode of execution contrary to the
law. In that accord, proactive mechanism of preventing cases before institution of cases
is recommended.

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5
See the cases of Thomas Ngawaiya Vs the Attorney General and 3 other Civil Case No
177 of 2013

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