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Man loses 350m/- in DNA sample test case

THE High Court has rejected the suit lodged by a Dar es Salaam resident, Godfrey Samson, demanding 350m/- as compensatory damages from the Ministry of Health for allegedly being negligent while testing DNA samples sought to establish paternity of a child.

According to the plaint of the suit, such claimed negligence was alleged to have been committed by the ministry’s employees of the Chief Chemist. Judge Dr Juliana Masabo ruled in favour of Principal Secretary of the Ministry and the Attorney General, the defendants, that the suit was incompetent.

The judge upheld one ground of objection with effect that Samson, the plaintiff, had no cause of action against the ministry’s permanent secretary as he was not a party to agreement between the plaintiff, Kinondoni Municipal Council and Chief Government Chemist, who collected and tested DNA Samples.

“On perusing (some) paragraph (s) of the plaint it is clear that all the facts alleged by the plaintiff are against the Chief Government Chemist, who collected and conducted the DNA,” the judge said.

In law, she said, the plaintiff does not have any claim against the permanent secretary because the Chief Government Chemist works under the Government Chemist Laboratory Authority which is a legal entity capable of suing and being sued in its own name.

“(This is) as stipulated under Section 4(3) of The Government Chemist Laboratory Authority Act No 8 of 2016. This section clearly stipulates that the Authority shall be a body corporate with perpetual succession and shall have a common seal and shall, in its own name, be capable of suing and being sued.

“Order VII Rule 11 (of the Civil Procedure Code) states that a plaint who does not disclose a cause of action shall be rejected. Guided by the principles above I hereby reject the plaint with costs. The Plaintiff is at liberty to file a fresh plaint pursuant to Rule 13 of Order VII,” the judge declared.

According to her, it is a well-established principle in court’s jurisdiction that the plaint must disclose a cause of action against the defendant.  Court cases defined cause of action" as to mean "...essentially fact(s) which is necessary for the plaintiff to prove before he can succeed in the suit."

The judge went on observing that ordinarily, disclosure or non-disclosure of cause of action raises a pure point of law and when this is raised, the court is basically invited to look at the content of the plaint and its annexures to see their compliance to Order VII Rule 1(e) of the Civil Procedure Code.

“If upon comparison of the two the court is satisfied that indeed no cause of action has been advanced, the matter will be rendered incompetent and consequently be rejected,” she said.

In her submissions to support the ground of objection, State Attorney Janeth Makondoo had told the court that in deciding whether the plaint discloses a cause of action the court should look at plaint, not the written statement of defence.

She submitted that the plaint as a whole does not contain facts implicating the permanent secretary. The state attorney proceeded to argue that the claims in the instant suit emanated from an agreement between the plaintiff and Kinondoni Municipal Council promised in a letter to Chief dated June 22, 2018.

In the letter, she states, the Chief Chemist was requested to conduct a DNA test to establish the paternity of the child (name withheld), which was a subject for contestation between the Plaintiff and one Lightness Akyoo.

Ms. Makondoo's argument was that the collection of samples and testing emanated from a directive of Kinondoni Municipal Council which constitutes an agreement between the Council and the Plaintiff.

Therefore, she states, since the Chief Chemist was not a party to that agreement there can be no cause of action against the permanent secretary of the ministry in question.

In celebrating World Patient Safety Day, the Aga ...

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Mwandishi: FAUSTINE KAPAMA

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