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IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM MAIN REGISTRY)

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.

The Applicant, Tanganyika Law Society, describes itself as a statutory body


whose objects include the provision of legal services, guidance and advice
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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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Procedure Code shall not contain arguments. We however do not agree


with Mr. Malata on the second limb of his argument that affidavits are not
supposed to contain allegations. Affidavits, being statements of facts, are
by and large allegations, and the law does not disallow them. We think,
with due respect, that Mr. Malatas protestations in this regard are
misplaced.
Mr. Malatas other limb on this point is that paragraphs 16 to 20 of the
affidavit contain arguments. His reasons for saying so are that in the said
paragraphs, the deponent is making statements about things that did not
happen in his presence, and that he did not say how he came to the know
those facts. Mr. Malata concluded by saying that the paragraphs should be
expunged from the affidavit and, with them out of the way, the rest of the
affidavit cannot sustain the application, which should then be struck out.
Counsel relied on the cases of Juma Busiyah v. The Zonal Manager
(South), Tanzania Posts Corporation, Civil Application No. MBY 8 of
2004 (Court of Appeal of Tanzania) and the famous case of Uganda v
Commissioner of Prisons, Ex-parte Matovu [1966] EA 514.
The Applicant was represented at the hearing by three learned counsel:
Mr. Mpale Mpoki, who led the team, Mr. Jesse and Mr. Fulgence Massawe.
Mr. Jesse submitted in opposition to Mr. Malatas arguments on the third
and fourth points. He said that they lack a legal basis. He pointed out that
the contents of all the impugned paragraphs are well-known facts, which
are also known by the deponent himself who said so in his verification
clause, and can be proved by evidence.
Mr. Jesse further argued that even assuming that Mr. Malata is right, the
remedy can also be an order for costs against the defaulting party. He was
however quick to admit, at a prompt from the Court, that that is not the
only remedy. He further argued that in ex parte Matovu (supra), where the
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affidavit in question contained obvious argumentative statements, the


Court stated (at page 521) that bearing in mind a number of
considerations, it could still let the application stand. Counsel pleaded with
us that in the interests of justice, we should likewise let the affidavit stand,
even if we find it argumentative.
We wish to point out, at the outset, that our reading of paragraphs 16, 17,
18 and 19 of the affidavit in support of this application does not show that
the paragraphs are argumentative. In fact, even in his submissions, Mr.
Malata said nothing to support the contention that the paragraphs are
argumentative. He only said that the paragraphs contain statements which,
in his view, were unknown to the deponent and that he (the deponent) did
not say how those facts came to his knowledge.
We have given due consideration to Mr. Malatas submissions. We are
unable to agree with him that simply saying that the statements were
unknown to the deponent constitutes a point of law. If anything, these are
facts that the respondent disputes and questions their truthfulness. Such a
contention cannot make the affidavit argumentative or, for that matter,
constitute a point of law. As Mr. Jesse contended, the objection only gives
rise to a dispute on facts alleged. These are purely matters of fact and the
manner in which the deponent has put them can only be challenged as
points of fact. Indeed, that is what Mr. Malatas own counter affidavit in
response to the contents has done.
We would thus overrule this point of objection in regard to paragraphs 16
to 19 of the affidavit.
We have deliberately left out paragraph 20 in the foregoing discussion.
This is because we would agree with Mr. Malata that the paragraph is

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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.

That, unless restrained by this Court the ongoing Constituent


Assembly will proceed with its business which is in violation [of]
the established intents and spirit of the Constitutional Review
Act, and the power of the citizens to make their own
Constitution thereby making the constitutional making process
in Tanzania meaningless and wastage of resources to the
detriment of the people of Tanzania.

Obviously, the paragraph presents an argument. The deponent is saying


that if this Court does not restrain the Constituent Assembly, it will
continue with what it is now doing, which will, in his view, violate the
Constitutional Review Act and the citizens powers to make their own
Constitution, rendering the constitution-making process meaningless, a
waste of resources and detrimental to Tanzanians. We find these words
argumentative and not factual, and therefore violative of the provisions of
Order XIX rule 3 (1) of the CPC.
Hence, we would partly sustain the third point of preliminary objection in
respect only of paragraph 20 of the affidavit. The remedy, according to the
case of Phantom Modern Transport (1985) Ltd. v. D.T. Dobie
(Tanzania) Ltd., Civil Reference No. 15 of 2001 and No. 3 of 2002, cited
to us by Mr. Jesse, is to strike off the defective paragraph. Doing that
would, in our respectful opinion, leave the rest of the affidavit intact and
capable of supporting the application. Consequently, the affidavit will
remain on record, minus paragraph 20.
Mr. Malata took off on the fourth point of preliminary objection by
reminding the Court that the Applicant is a corporate body. As such, he
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said, it cannot come to Court without a Board resolution, and that


resolution must accompany the documents instituting the case. He relied
on the decisions of this Court in World Jet Travel & Tours Ltd. v.
National Museum of Tanzania, Land Case No. 33 of 2011 (Ngwala J.)
and that of the High Court of Uganda (Youds, J) in Bugerere Coffee
Growers Ltd. v Sebaduka & Another [1970] E.A. 147. He also tried to
convince us to take inspiration from the Tanzania Court of Appeal Rules,
which has a provision [rule 30 (3)] that requires persons who act in
proceedings before it on behalf of corporate bodies to file such a
resolution.
We would, with respect, reject this part of the argument forthwith, as the
Court of Appeal Rules do not apply in this Court (except in specific
instances where the Rules themselves say so, such as in proceedings for
leave to appeal, application for a certificate on point of law, etc). Mr.
Massawe, learned advocate, responded to Mr. Malatas submissions on this
point. He stated that the words used in support of the point meant that the
learned Principal State Attorney was expecting the Applicant to file a Board
Resolution. Being a creature of statute, TLS does not have a Board, and
that it is the TLS Council which, under section 3 of the Tanganyika Law
Society Act, Cap 307 (R.E. 2002) can sue on its behalf.
Hence, Mr. Massawe distinguished the cases that Mr. Malata has relied
upon. However, he played it safe by arguing further that even if the Court
is disposed to hold that a resolution is needed, it is still a matter of fact and
therefore cannot be determined as a preliminary point. He cited the case of
Sugar Board of Tanzania v 21st Century Food & Packaging & 2
Others, Civil Application No. 49 of 2005, where the Court of Appeal of
Tanzania (Nsekela J.A.) applied with approval the Ugandan case of Mukisa
Biscuit Manufacturing Co. Ltd. v West End Distributors (1969) EA
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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:

It is now settled lawthat the question of authority for a body


corporate to institute a case is a matter which requires evidence to
prove it and therefore does not qualify to be a preliminary point of
law
We are thus faced with two opposing views of this Court on the question
posed. With respect, we are disposed to align ourselves with the position
taken by Makaramaba J in Addax BV Canada Ltd. (supra), and hold that
a board resolution (or, for the purposes of this case, a resolution of the
Council of the Applicant) authorizing the commencement of an action is,
unless circumstances require, not a matter of preliminary significance and
therefore cannot be entertained as a preliminary point of law. It can be
disputed in point of fact, which would require proof by evidence. With this
finding, the fourth point of preliminary objection is overruled.
In the fifth point of preliminary objection, Mr. Malata questioned the
tenability of including prayers for injunctive reliefs in an application for
prerogative orders. In prayer (d), the Applicants have prayed for leave to
file an application for the following order:

(d) an injunction to suspend continuation of the meetings of the


Constituent Assembly pending compliance with the proper
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constitution making process with maximum participation,


representation and the wishes of citizens of Tanzania.
In support of this point, Mr. Malata submitted that an injunction is not a
prerogative relief and, therefore, does not need leave to be applied for. For
that reason, it was in the first place wrong for the Applicant to combine it
in the same chamber summons as the other prayers, and secondly, it is
superfluous for the Applicant to seek leave. In response, it was argued by
Mr. Mpoki on behalf of the Applicant that an injunction is a prerogative
relief and that it would have been unwise for the Applicant to bring two
separate applications. He further maintained that the manner in which the
relief is sought in this application gives it a permanent nature and is thus
not interlocutory. He relied on the decision of this Court in Tanzania
Knitwear Ltd. v. Shamshu Ismail [1989] TLR p. 48, where Mapigano J
(as he then was) aptly remarked: Courts of law abhor multiplicity of

proceedings. Learned counsel thus asserted that there is no merit in the


point of objection raised.
Admittedly, Mr. Malata has advanced an interesting argument on this point.
Ordinarily, injunctive orders are filed separately and given separate case
numbers from the main case. It is also true that they require no prior
leave. However, we are inclined to agree with Mr. Mpoki that given the
wording of the relevant prayer, the injunction sought is not interlocutory.
Further, as far as this case in concerned, it seeks a permanent relief which,
if leave is granted, will form part of the actual application for prerogative
orders. We therefore hold that it was proper for the Applicant to include
the payer for injunction in this application.
The remaining question is: can an injunction be taken to be an application
for prerogative reliefs, such that it would require leave before filing? This
question has exercised our minds considerably. In a number of common
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law jurisdictions, it has been accepted, in appropriate circumstances as a


form of prerogative relief.
Tanzanian law with regard to applications for prerogative orders is
statutory. The jurisdiction of this Court to issue such prerogative orders is
derived from what has come to be known as the reception clause
(section 2 (3) of the Judicature and Application of Laws Act, Cap. 358 (R.E.
2002). Under it, this Court is enjoined to exercise its jurisdiction in
conformity with the written laws in force in Tanzania, and subject thereto,
among others:

in conformity with the substance of the common law, the doctrines


of equity and the statutes of general application in force in England
on the twenty-second day of July, 1920
Under the common law of England as it stood on the reception date, the
only prerogative reliefs recognized were certiorari, mandamus, prohibition,
and

habeas corpus. Injunction was not among them. However,

developments in some common law jurisdictions have recognized the


importance of injunction (as is the case for declarations) as an equitable
remedy and its inclusion among prerogative orders has been accepted. Like
declaration, it is flexible enough to fit the justice of the situation, and can
be granted to give effect to another relief, such as mandamus and
declaration, as the Applicants are seeking to do herein.
In some countries, this has been done by way of legislative enactments, as
was the case in England through the Supreme Court Act of 1981. In India,
the powers of the Courts to issue injunctions are provided for by sections
36 to 42 of the Specific Reliefs Act, 1963: See I.P. Massey, Administrative

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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Judicial Review: Law, Procedure and Practice, Law Africa Publishers,


Nairobi, 2009, pp. 102-103.
However, in some common law jurisdictions, superior courts have
embraced a broader and more flexible view as to the availability of
injunction in public law. In Australia, for instance, Gaudron J. in Abebe v
Commonwealth (1999) 197 CLR 510 at paras 104-105, emphasised the
continuing role of equitable remedies in public and administrative law. He
observed:
Given the potential for administrative decisions to impact on existing rights
and interests, and, also, on important and valuable statutory rights to which the
individual might otherwise be entitled, it may well be that an injunction will lie to
prevent an officer of the Commonwealth from giving effect to an administrative
decision based on error, even if that error is not jurisdictional error. ....'

So far, we have had no legislation in Tanzania similar to the ones in


England and India that specifically provide for powers to issue injunctions
in the nature of prerogative orders. However, we can take inspiration from
other countries, such as Australia, where, as we have seen, injunctions
can, in appropriate circumstances, be issued consequential to the grant of
other prerogative reliefs. We therefore think that it would not be proper at
his stage to prevent the Applicant from arguing the merits of the
application for leave to file an application for injunction. That is a question
whose proper stage is during the hearing of the application for leave on
the merits. We would thus overrule this point of preliminary objection.
We will now return to the first and second points of preliminary objection.
At the hearing, Mr. Malata merged these two points, but abandoned, wisely
in our view, though without expressly saying so, the part of the second
point that claims that the application is frivolous and vexatious. Ultimately,

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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:

The application is untenable and not justiciable in law for want of


judgment, decision, order or proceedings to be challenged.
Mr. Malata has advanced two reasons in support of the above point. He
called our attention to the fact that the application has been brought under
section 19 (3) of the Law Reform Fatal Accidents and Miscellaneous
Provisions Act, Cap 310. Under these provisions, he said, there must be
a judgment, order, decree, conviction or other proceeding which must have
refused something. Only then can the petitioner be entitled to institute
proceedings. He referred the Court to the case of Felix Mselle v.
Minister for Labour & Youth & 3 Others (2002) TLR 337 at 446. With
due respect, we have gone through that decision, decided by Kyando J. (as
he then was), but found nothing to support Mr. Malatas proposition.
Mr. Malata further argued that mandamus cannot be invoked to compel the
placement of a bill in Parliament. He relied on two decision of the Indian
Supreme Court. In Karihaiya Lal Sethia v. India AIR [1998] SC 365, it
was held that mandamus cannot lie to compel the Government to present
a bill or support a private members bill seeking to include a particular
language in a schedule of the Indian Constitution. Again, in S.I.
Syndicate v. Union of India AIR (1975) SC 460 and (1975)2 SCC 630, it
was held:

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. Certiorari is the only prayer among prerogative orders which


requires the existence of an order, decision, proceedings, etc., which

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.

Mandamus will then be brought in to require the performance of that duty.


Mr. Mpoki distinguished the two Indian cases cited by the learned Principal
State Attorney, claiming that they are out of context. He maintained that,
while the two Indian cases wanted a whole Bill to be submitted, the
Applicant contends that there is a law, but that the law is wanting. He
distinguished the second case, saying it can only be relevant after leave is
granted, and that bringing it up at this point is premature.
Learned counsel also took the opportunity to remind the Court that it
should keep in mind the nature of the case before it. Rather than being
bogged down by technicalities, he said, the Court should seek to do
substantive justice. He submitted that there is nothing in the points of
objection which, if not sustained, will cause injustice to the parties. He
concluded by saying that if the Court sustains any of the objections, it
should not dismiss the application, but merely strike it out.
Rejoining on this last point, Mr. Malata insisted that the Court should, given
the nature of the points of objection, if it finds merit in any of the
preliminary points of objection, dismiss the application, rather than simply
strike it out. That point will only become relevant, in our view, if the
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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.

DATED at Dar es Salaam this 17th day of September, 2014.

A.G. MWARIJA
JUDGE

A.K. MUJULIZI
JUDGE

F.A. TWAIB
JUDGE

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