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AT DAR ES SALAAM
(CORAM: MWARIJA, MUJULIZI, & TWAIB, J.J.J.)
MISC. CIVIL CAUSE NO. 31 OF 2014
In the matter of an application for leave to apply for the Declaratory Orders
against the on-going Constituent Assembly
And
In the matter of the Constitutional Review Act, No. 8 of 2011 & No. 2 of 2012,
Cap. 83 of the Revised Laws of Tanzania [as amended from time to time]
And
In the matter of the interpretation of section 25 of the Constitutional Review Act,
No. 8 of 2011 and No. 2 of 2012, Cap 83Revised Edition, 2014 of the Laws of
Tanzania [as amended from time to time] on the powers of the Constituent
Assembly
BETWEEN
TANGANYIKA LAW SOCIETY ................................................... APPLICANT
AND
THE ATTORNEY GENERAL ............... RESPONDENT
Dates of Submissions:
Date of Ruling:
15/09/2014
17/09/2014
RULING
Twaib, J.
to Tanzanians on diverse legal and related matters. It has filed the present
application, under a Certificate of Most Extreme Urgency, for leave to
apply for orders or mandamus, prohibition, declaration and injunction. The
prayers are set out in the Applicants chamber summons and statement
filed herein. The application is supported by the affidavit of Mr. Charles
R.B. Rwechungura, Principal Officer of the Applicant.
The Respondent Attorney General resists the application. Together with a
counter-affidavit sworn by Mr. Gabriel Pascal Malata, Principal State
Attorney, the Respondent has also filed two written notices containing a
total of five points of preliminary objection. However, in the course of the
hearing, Mr. Malata, who also appeared before us to argue the preliminary
objection assisted by Ms. Sylvia Matiku, Senior State Attorney, seemed to
have abandoned certain parts of the preliminary points of objection, and
merged some. The points raised can be paraphrased as follows:
1. The application is untenable in law for want of judgment, decision,
order or proceedings to be challenged;
2. The prayer sought by the Applicant is frivolous, vexatious and not
justiciable in law;
3. The application is bad in law for being supported by a defective
affidavit as it contains allegations and arguments contrary to Order
XIX rule 3 (1) of the Civil Procedure Code, [Cap 33, R.E. 2002].
4. The application is untenable in law for want of a resolution
sanctioning the same.
5. The application in fatally defective for merging two different prayers
in one application, contrary to governing principles of law.
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As counsel for both parties have done, we would leave our discussion on
the first and second points for last. We would thus discuss the remaining
points Nos. 3, 4 and 5 in the order set out above before we consider the
first and second points together.
Before we do that, however, we wish to register one important point and
make necessary orders thereon. In the course of the proceedings, Mr.
James Jesse, one of the counsel who represented the Applicant during the
hearing, sought leave of the Court to withdraw the prayer against the
Attorney General of Zanzibar [part of prayer (e) in the chamber summons],
who is, incidentally, not a party to these proceedings.
Mr. Jesses prayer came after the Court had prompted him with questions
as to how he expected to secure the orders and enforce them against a
party his client had chosen not to join in the proceedings and therefore not
in Court. Mr. Malata, on his part, tried to convince the Court on the
importance of retaining that prayer, saying that since the matter concerns
the Constitution, which concerns both parts of the United Republic, it is
necessary that if successful, orders would also have to be directed towards
the Attorney General of Zanzibar.
Having considered submissions from both counsel, we would grant Mr.
Jesses request to withdraw that part of prayer (e) that seeks for orders
against the Attorney General of Zanzibar.
Mr. Malata began his submissions on the third and fourth points of
preliminary objection with an attack on paragraphs 16, 17, 18, 19 and 20
of the affidavit of Mr. Rwechungura, arguing that they contain allegations
and arguments, thereby contravening Order XIX rule 3 (1) of the Civil
Procedure Code, Cap 33 (R.E. 2002) (hereinafter called the CPC). It is not
in dispute that the law is now settled that an affidavit made under the Civil
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indeed couched in argumentative terms, and thus cannot pass the test in
Matovus case. In the said paragraph, Mr. Rwechungura states:
20.
696 at 701. The most relevant case, in our view, that presents a different
position on this point is the decision of the Commercial Division of this
Court (Makaramba J.) in Standard Chartered Bank Tanzania Ltd. v.
Pharmaceutical Investments Ltd. & Others, Commercial Case No. 44
of 2012. In that case, Makaramba J discussed a number of relevant cases.
One such case, also cited to us by Mr. Massawe, is Addax BV Canada
Branch v. Kigamboni Oil Ltd., Commercial Case No. 77 of 2008. In
conclusion, Makaramba J expressed the following opinion:
Law, 7th ed., 2008, at p. 423. In Kenya, the only prerogative reliefs
available are certiorari, mandamus and prohibition: See Peter Kaluma,
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therefore, given the way Mr. Malata has structured his arguments, when
the first two points are combined into one, the same would read thus:
As a general rule the order will not be granted unless the party
complained of has known what it was he was required to do so that
he had the means of considering whether or not he should comply
and it must be shown by evidence that there was a demandand
that that demand was met by a refusal.
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Mr. Mpoki, lead counsel for the Applicant, invited the Court to take a look
at the chamber summons which, he said, does not contain any prayer for
certiorari may bring up for purposes of quashing the same. The orders his
client is seeking in this case do not need anything of the sort. Hence, the
Applicant did not need to annex it.
It was the learned advocates further submissions that all that is required
for the purposes of mandamus is for the Applicant to show that there is a
public duty to be performed, which duty is not being performed.
preliminary points (or any of them) are sustained to the extent that the
matter cannot survive. We will deal with it, if need be, at the end of this
ruling.
We would agree with Mr. Mpoki that the two Indian cases relied upon by
the learned Principal Attorney are premature, in that they can only come
into play at the stage of considering the application on merit. The case of
Karihaiya Lal Sethia v. India must be taken to be confined to its
particular facts: mandamus was sought to compel the Government to
present a bill to include a particular language in a schedule of the Indian
Constitution (it is to be remembered that a schedule is part of a statute).
In the case before us, the order being pursued is to compel the
Respondent to table a Bill in Parliament to amend the Constitutional Review
Act, which is an ordinary statute, not the Constitution.
Thirdly, an application for prerogative orders has two stages: an
application for leave, and the application for prerogative orders itself. We
have not yet even reached the hearing stage for leave, and the preliminary
objections are intended to prevent that. Is this the proper stage to
determine such matters, which obviously require proof by evidence? We do
not think so. We are of the respectful view that the question as to whether
or not the circumstances permit the issuance of leave to file an application
for the orders sought must await hearing on the merits. It may well be that
the Applicant is able to show, when the matter is heard on merit, that its
case falls within the exceptions to the general rule. That is a matter of fact,
and goes to the merits of the application. We do not consider it as
something we can discuss, let alone determine, at this stage of the
proceedings.
Consequently, while we appreciate the force of the arguments advanced by
Mr. Malata on the first two points, we are, with due respect, unable to
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agree with him that the said points raise matters purely of law so as to
qualify as preliminary points, per the principle in Mukisa Biscuits Case.
In the final analysis, we have, in the foregoing, overruled all the points of
preliminary objection raised against the application, except for the order
expunging paragraph 20 of the supporting affidavit. The rest of the
preliminary objections are dismissed. The application shall proceed to
hearing on merit. Costs shall be in the cause.
A.G. MWARIJA
JUDGE
A.K. MUJULIZI
JUDGE
F.A. TWAIB
JUDGE
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