Q&A – 25 March 2013

Flying to wrong city

I checked in at the Nyerere airport for a flight to Kilimanjaro. On that day there were flights to many other destinations by the same airline and not having been directed properly, a fellow passenger and I ended up flying in the wrong aircraft to Mtwara. The return flight was full and I had to spend one whole day in Mtwara where I was forced to buy a ticket before I returned to Dar. Can I sue the airline?
RE, Dar

You can surely sue the airline. Your success would depend on the evidence that you will adduce during the trial and you proving the damages you suffered.

Prior to suing, we would recommend you put the airline on notice that you intend to do so and consider settling the matter off Court. We believe you have a good case but are unsure what amounts in damages you will be able to succeed on. Your lawyer can guide further.

Hotel shut down

I have a hotel in Mwanza on the shores of Lake Victoria. About few months ago some environmental officers came to check our premises and have now issued us a notice to shut down our hotel. They have served us with a restoration order. How can they just simply shut me down like this when there are guests occupying the hotel? Some of the restoration demands are so unreasonable that it would entail moving either the hotel from the lake, or the lake from Mwanza, to be able to comply. This is unfair. Please guide me.
BH, Mwanza

Under the Environmental Management Act 2004, the Council established under this Act has very wide powers to shut down areas that are a threat to the environment. Industries and hotels are no exception to this rule.

Section 151 of the Act reads (1) Subject to any other provisions in this Act, the Council may issue, on any person in respect to any mater relating to the management of the environment, an order known as environmental restoration order.
(2) An environmental restoration order shall be issued to: require the person on whom it relates to restore the environment as near as it may be to a state in which it was before the taking of the action which is the subject of the order; (a) require the person on whom it relates to restore the environment as near as it may be to a state in which it was before the taking of the action which is the subject of the order; (b) prevent the person on whom it relates from taking any action which would or is reasonably likely to cause harm to the environment; (c) award compensation to be paid by the person on whom it relates or to other persons whose environment or livelihood has been harmed by the action which is the subject matter of the order; and (d) levy a charge on the person on whom it relates which, in the opinion of the Council, represents a reasonable estimate of the costs of any action taken by an authorized person or organization to restore the environment to a state in which it was before the taking of the action which is the subject matter of the order.

This order will have specific issues identified that you must comply with before it can be lifted. The Act provides further that in exercising the powers under this section the Council shall- (a) be guided by the principles of good environmental management in accordance with the provisions of this Act; and (b) explain to the persons against whom the order relates the right of appeal to specified appellate organs.

The Act provides for an establishment of an environmental appeals tribunal whereby you can appeal the decision of the council. If the restoration order issued to you is impossible to comply with, you can appeal. However prior to doing so, you might want to reread the restoration order as we find it hard to believe that the council would order you to move from the lake. Your lawyers can guide further.

Outstanding debt with Ministry

I supplied a Ministry in Tanzania with some medical equipment and have not been paid despite a dozen promises. My lawyer says that suing the Ministry directly like this is not possible. I cannot understand why? Does the Government normally defend such cases. Please guide me.
ME, Dar

Suing the Government is possible and is subject to the Government Proceedings Act. Section 6 of the Act unambiguously states that notwithstanding any other provision of this Act, civil proceedings may be instituted against the Government subject to the provisions of this section. (2) No suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, Department or officer concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall send a copy of his claim to the Attorney-General. (3) All suits against the Government shall, after the expiry of the notice be brought against the Attorney-General, and a copy of the plaint shall be served upon the Government Ministry, Department or Officer that is alleged to have committed the civil wrong on which the civil suit is based. (4) 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. (5) Notwithstanding the provisions of subsection (3), the Attorney-General may, unless another person ought to be sued, be sued or be joined as a co-defendant, in proceedings against the Government. (6) The provisions of the Public Officers (Recovery of Debts) Act, shall apply to any officer who occasions the Government to incur loss, costs or damages as a result of his failure to obtain legal representation in the suit.

Hence from the above you can see that you need to issue a 90 days notice prior to the institution of the suit.