By Evarist Baimu Nyaga Mawalla - Home

The appellant, Mecaiana Establishments (Vaduz), is the applicant in Minc. CivilCause No. 156 of 1993 before the High Court of Tanzania at Dar es Salaam and there areseven respondents. The Commissioner of Income Tax, the respondent in this appeal, isthe first respondent in that Misc. Civil Cause while the seventh respondent is theAttorney – General. The other five respondents are individuals.In those proceedings the appellant is seeking five prerogative orders against thepresent respondent to this appeal and four declarations against the Government.As is the case in applications for prerogative orders, the appellant first soughtleave to file application for the orders. The representatives of the Attorney – Generalcategorically stated the the Attorney – General was not representing the Commissioner ofIncome Tax. They appeared for the Attorney – General and the other five respondents.Luckily at the hearing, Mr. Lutainulwa, the then Commissioner of Income Tax, waspersonally present was granted for the application for prerogative orders.The Commissioner of Income Tax, then, filed a Chamber application to strike outthe application of the appellant. The response of the appellant was to file a preliminaryobjection containing three points.The first point is the one relevant in this appeal. The appellant contended that thechamber applicant by the Commissioner of Income Tax is proceedings by theGovernment and so it could only be brought by the Attorney – General.MAPIGANO, J, in agreement with Mr. Salula for the Attorney General, foundthat the chamber application was not proceedings the Government and therefore it wasnot necessary for the application to be brought by the Attorney – General.Before us in the appeal Mr. Mkono, learned Council, appeal on behalf of theappellant. He argued that proceedings for prerogative orders are government proceedings.He pointed out that the statutory basis of granting prerogative order is S. 17A of the LawReform ( Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) asamended by Act No. 27 of 1991. Mr. Mkono pointed out further that sub-section (2) ofthat section required the Attorney – General to be summoned to appeal as a party.To the learned advocate this made proceedings for prerogative orders governmentproceedings which under s. 9(2) of the Government Proceedings Act, 1967 are to beinstituted by the Attorney – General Mr. Mkono submitted that the respondent, theCommissioner of Income Tax, did not file a defense but a separate chamber applicationwhich amounted to instituting a proceeding. That, the learned advocate submitted, therespondent could not do for lack of locus standi.On behalf of the respondent was Mr. Luoga, learned Counsel. He conceded thatso. 17A (1) of the law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinancedemands the Attorney – General to be summoned as a party.244