philip samson chigulu ta philip samson chigulu agent vs judge of the high court of tanzania and others 2021 tzhc 6648 19 october 2021

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM MAIN REGISTRY) AT PAR ES SALAAM. MISCELLANEOUS CIVIL CAUSE NO. 23 OF 2021. IN THE MATTER OF CONSTITUTIONAL 1977 (CAP 2 OF 2008) OF THE UNITED REPUBLIC OF TANZANIA,1977 (AS AMENDED TIME TO TIME TO ARTICLE 13 - (1), (2), (3), (4), (5) (6) (A), 22 - (1), (2),23 - (1), (2), 24 - (1) (2), 26 - (1) (2), 29 - (1) (5)

AND

IN THE MATTER OF THE BASIC RIGHT AND DUTIES ENFORCEMENT ACT, CAP.3 R.E 2019 SECTION 4, 5, AND 6 (a) (b) (c) (d) (e) (f) AND IN THE MATTER OF A PETITION TO CHALLENGE THE 1st RESPONDENT'S RULING IN CIVIL CASE NO. 2 OF 2020 AND MISC. CIVIL APPLICATION N0.14 OF 2020 OF 27™ MAY 2021 AND OTHER RESPONDENT'S ACTIONS FOR OFFENDING: - ORDER XX RULE 4 & 5 OF THE CIVIL PROCEDURE CODE CAP 33 RE 2019 BY THE SAME 1st RESPONDENT l SECTION 14 - (1) OF THE LIMITATION ACT CAP 89 RE 2019 BY THE 1st RESPONDENT ORDER III RULE l, 4 & 5 OF THE CIVIL PROCEDURE CODE CAP 33 R.E. 2019 BY THE 4™ 5th 6th 7th AND 8™ RESPONDENT ORDER X RULE 4 - (1) OF THE CIVIL PROCEDURE CODE CAP 33 R.E. 2019 BY THE 1st AND 8™ RESPONDENT

BEING UNCONSTITUTIONAL EQUAL BASIC RIGHT AND FREEDOM TO

THE PETITIONER BEFORE THE HIGH COURT OF TANZANIA AT SONGEA.

PARTIES

PHILIP SAMSON CHIGULU T/A PHILIP SAMSON CHIGULU AGENT......................... PETITIONER

VERSUS JUDGE OF THE HIGH COURT OF TANZANIA........... 1st RESPONDENT THE ATTORNEY GENERAL.......................................2nd RESPONDENT MARKET INSIGHT LTD ........................................... 3rd RESPONDENT MANAGING DIRECTOR FOR MARKETINSIGHT LTD .4™ RESPONDENT

DIRECTOR FOR OPERATION FOR MARKET INSIGHT LTD ........................................... 5™ RESPONDENT

DIRECTOR FOR ADMINISTRATION AND FINANCIAL FOR MARKET INSIGHT LTD ........ 6th RESPONDENT ADVOCATE ELISHA C. MWINUKA FOR MARKET INSIGHT LTD ....................................7th RESPONDENT ADVOCATE ANGELA M. MASESA FOR MARKET INSIGHT LTD ....................................8™ RESPONDENT Date of Last Oder: 29/09/2021 Date of Ruling: 19/10/2021 RULING. MARUMA, J.: The application for originating summons has been brought under Article 13 - (1), (2), (3), (4), (5) (6) (a), 22 - (1), (2),23 - (1), (2), 24 - (1) (2), 26 - (1) (2), 29 - (1) (5) of the Constitutional of the United Republic of Tanzania 1977 (Cap 2 of 2008), as amended from time to time and the Basic Right and Duties Enforcement Act, Cap.3 R.E 2019 Section 4, 5, And 6 (a) (b) (c) (d) (e) and (f). The petitioner's claims are that his rights under Article 13 - (1), (2), (3), (4), (5) (6) (a), 22 - (1), (2),23 - (1), (2), 24 - (1) (2), 26 - (1) (2), 29 - (1) (5) of the Constitutional of the 3 United Republic of Tanzania of 1977 (Cap 2 of 2008) were violated. Also, he claims that Order III rule 1, 4, & 5, Order X rule 4 (1) and (2), Order XX rule 4 & 5 of the Civil Procedure Code Cap 33 R.E 2019 and Section 14 (1) of the Law of Limitation Act Cap 89 RE 2029 were offended by the respondents. In replying to the petition, the respondents raised five preliminary objections that: 1. The validity of application which is contrary to section 4(5) and section 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019, 2. The petition is contrary to court procedures and the Article 26 the Constitution of the United Republic of Tanzania, 1977 as amended.

3. The petition is fatally defective for contravening the provision of section 4(6) (e) and 8(2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019, as amended as the petitioner has alternative means of redress.

4. The petition is untenable for being frivolous, vexatious and abuse of the court process 5. The affidavit in support of the petition is incurably defective for contravening order XIX Rule 3 of the Civil Procedure Code, Cap.33. R. E 2019. Before examining the raised preliminary objections. It is important to look briefly the context from which this application arose. The petitioner instituted a Civil case No. 2 of 2020 at the High Court of Songea against the 1st respondent and four others. The case was dismissed on 27th May 2021 for non-appearance of the plaintiff (the Petitioner herein). Also, the petitioner had also filed a Miscellaneous Civil Application No. 14 of 2020 in relation to the main Civil Case No. 2 of 2020. The same was also struck out on the same date of 27th May 2021 following dismissal of the main case. Being dissatisfied with the court orders, the petitioner filed this petition against the orders and unprofessional conducts of the respondents which omit and offend the provisions stated in paragraph one. On the hearing of the raised preliminary objections the petitioner, Philip Samson Chigulu represented himself while the 1st and 2nd respondents were presented by Mr. Stanley Kalokola, Principal State Attorney. The 3rd to 8th respondents had the service of Mr. Lugiso Ndelwa 5 the learned advocate assisted by Mr. Innocent Mwelelwa and Mr. Mombeki Kabeyemelwa

both learned Advocates. Starting with the first preliminary point of objection on the validity of the petition before this court. The learned State Attorney for the 1st and 2nd respondents submitted that, the application is contrary to section 4(5) and section 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019. This goes together with the 3rd point of objection raised by the counsels for 3rd to 8th respondents that the application is defective as it contravenes the provision of section 4 (6) (e) and 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019. Addressing the court on this point, the learned State Attorney for the 1st and 2nd respondents submitted that, to apply section 4 of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019, requires a petitioner prior to seek relief under this Act to exhaust all reliefs available by the law. He argued that so long the petitioner did not exhaust all remedies under other laws before coming to this court, his petition cannot be redressed by this court as per limitation provided by section 8 (2) of the Act, (Supra). He further argued that, the petition centres around three aspects, first it is against the decision of the high Court which dismissed petitioner's case for non-appearance. Second, is against unprofessional 6 practices of the Judge and the third

is against unprofessional conducts of advocates in the respective matter. According to him there are reliefs available under the other laws. He pointed out that, the first relief is when the matter is dismissed for non - appearance whereby the Civil Procedure Code Cap. 33 of 2019 provides the remedy under order IX rule 3 for a case dismissed for non- appearance. He pointed the plaintiff subject to the law of limitation may restore or apply to set aside dismiss order. He therefore reasoned that, if the petitioner was not satisfied with the dismissal order, he could apply either of the two mentioned options. This argument was also supported by Mr. Ndelwa for the 3rd to 8th respondents. On the second aspect of unprofessional practices of a judge. The learned State Attorney submitted that, there is a remedy under the Judiciary Administration Act No. 4 of 2011 through the established Judicial ethics Committees under section 36 which deals with ethics of the Judges. Thus, the petitioner as a person who has an interest in the matter as provided under section 40(1) (e) of the Act, could opt to exhaust this remedy to address his complaint against the unprofessional Judge's acts. The Learned State Attorney submitted that, the same applies to the advocates. The remedy available for the petitioner was to apply section 4 7 of the Advocate Act Cap. 341 of 2019 which establishes

Advocate committees mandated with powers to entertain any unprofessional conducts of the Advocate. This was also supported by Mr. Ndelwa submitting that a prayer for removal of advocates from the roll, the petitioner could opt to invoke section 13 (1) (b) of the Advocate Act as well as section 22(1) which gives power to Chief Justice and any High Court Judge to deal with conduct of any advocate. He also pointed that there is other organ the ethics committee established with Tanganyika Law Society Act of 2017 which gives power to regulate the affairs of the advocates. The issue of legality of the petition was also submitted by Mr. Ndelwa for the 3rd to 8th respondents. He submitted that the petition is total defective as it contravenes section 4 (6) (e) and 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019 for entertaining the matter that which is premature and have alternatives under the other respective laws. He argued doing that is to contravene with section 8 (2) which gives power to the court not to entertain the matter which has other means of redress. Supporting this the counsels for the respondents made reference to the case of PAUL REVOCATUS KAUNDA VS THE SPEAKER OF THE NATIONAL ASSEMBLY & TWO OTHERS, Misc Cause No. 10 of 2020. At page 36 where it was stated that constitutional proceedings are not expected to be pursued as alternatives to

ordinary proceedings. They are preferable as a matter of necessity and where the law does not provide for the avenues. The learned State Attorney also to support the interpretation of section 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019. He cited the case of TANZANIAN CIGARETTE COMPANY VS FAIR COMPETITION COMMISSION & ATTORNEY GENERAL, Misc. Cause No.31 of 2010 whereb/ at page 22 it was stated that sub section (2) of section 8 provides that the jurisdiction of High Court is not to be exercised if the High Court is satisfied that adequate means of redress are or have been available to the person concerned the focus is that no room of coming to the Constitutional Court before exhausting other remedies under respective laws. Also, the Court of Appeal case of one ELIZABETH STEVEN & ANOTHER VS THE ATTORNEY GENERAL, Misc. Civil Cause No. 82 of 2005 TLR, at page 8 the Court gives the definition of section 8(2) by referring section 4 of the Act. They also referred this court to the case of SP. CHRISTOPHER VS ATTORNEY GENERAL, Miscellaneous Civil Cause No. 1 of 2021. At page 14 the last paragraph it is stated that, "Despite the functions of the constitutional court provided by the foregoing sections, still there are limitations which are stipulated by the law when the constitutional court exercises its powers conferred to it: One, the court cannot

exercise powers when there are other means of redress provided by other law(s) or if the application is merely frivolous or vexations". According to their submissions was that the gist raised from the Civil Case No.2 of 2020 which was dismissed for non- appearance and Misc Civil Application No. 14 of 2020 which struck out. Hence in relation to these two cases there are other remedies available as under order IX rule 3 of the CPC that subject to the law of limitation, the petitioner may either applied two options either to restore or set aside dismissal order. This was also supported by Mr. Kabyemerwa, Advocate referring to the case of Mwangai Vs Miugamba & Others, 2003 No. 2 EAC 471 & 481. The court held that, a petition is said to be frivolous when it is without substance or groundless of fanciful and vexatious when it lacks bona fide cause, and it is hopeless or offensive and tends to cause the opposite unnecessary anxiety trouble and expenses as in the case of Ado (Supra). The counsels infolded the first preliminary objection that the petitioner 10 has other remedies under respective laws before coming to this court. They prayed to this court that his petition be dismissed with costs. Coming on the second point of objection that, the petition is contrary to court procedures and the Article 26 the Constitution of the United Republic of Tanzania, 1977 as raised by the learned

State Attorney. This goes together with point no. 4 raised by the counsels for the other respondents. Submitting on this point of objection, the learned State Attorney argued whether the petitioner has abided with the procedures as required by Article 26 of the Constitution of the United Republic of Tanzania. His submissions were that, the article protects right of individual for protecting their right however, the same should be in accordance with the procedure provided by the law of the land. He related the article in line with section 4 (5) and 8 (2) of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E of 2019 which provides the consequences for failure to exercise the remedies available as the complaint will be deemed frivolous and vexatious. According to him is that the application is frivolous as it is not in compliance with procedures of constitutional matters and the petitioner did not exhaust all available remedies under the respective laws. Supporting this the learned State Attorney made reference to the case of TANZANIAN CIGARETTE COMPANY {Supra) at page 30 paragraph 2 and the case of ADO SHAIBU VS. THE HONOURABLE ATTORNEY GENERAL & 2 OTHERS, Misc. Civil Cause No.29 of 2018 at page 32 paragraph 3 discussed the issue of frivolous and vexatious as defined under section 4 (5) and 8 (2) of the of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E of 2019. This

was also supported by the counsel for the counsels for the 3rd to 8th respondents that the petition is untenable and abuse of the court process as provided under sect 8(2) of the Act as stated in the case of SP. Christopher (Supra). They submitted that all prayers in the petition cannot be entertained by this court instead the petitioner could do so in other courts. The counsel prayed that since this court has no jurisdiction to entertaining frivolous and vexatious matter as defined under section 4 (5) and 8 (2) of the of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E of 2019. This court should dismiss the petitions with costs. Regarding the last point of law raised by the counsels for the 3rd to 8th respondents on the defectiveness of the affidavit. Mr. Ndelwa, Counsel for the 3rd to 8th respondents argued that the affidavit in support of the petition is incurable defective as it contravenes rule 19(3) of the Civil Procedure Code. He pointed out some of defectiveness such as in paragraphs 1,2,3,4,5,6,7,8,9,10 and 11,13,48-48 as well as 54 which 12 contained legal arguments, opinions and conclusions. Supporting his argument, he referred this court to the case of Uganda Vs. Commissioner of Prisons Ex-parte Matovu (1966) E.A at page 514- 520 where it was held that.... "an affidavit for use in court being a substitute for oral evidence, should only contain statements to

which the witness deposes either of his own personal knowledge or... such an affidavit should not contain extraneous matters by way of objection or prayer or legal argument or conclusion". This was also referred in the case of Annandumi Alex alias Kipaa Vs Zahara Adamu Munisi & Another, Commercial Case No.81 of 2008. It was their prayer that for the above defects and anomalies, the instant petition be dismissed with costs to the respondents. Replying to the point of objections, the petitioner has not much to address in respect to the arguments raised on the points of objections. Instead, the petitioner was questioning the validity of the point of objections and directed into the main issues of the petition despite of several court guidance to focus on the points of objections. I find no reason to analyse for the same as the court cannot entertain at this stage. In their rejoinder, the counsels for the respondents briefly submitted and prayed that the petitioner's submission should be regarded to pre­ 13 empt the point of objection raised and referred the court to the case of ALMAS IDDI VS NATIONAL BANK OF COMMERCE TLR 2001 at page 85 and also the Civil Application No.222 of 2006 reported atTanzill dated 2nd August 2021 where the court directed on that. They recapped their submissions in chief and cemented their prayers that, the petitioner did not challenge the legal point of

objections raised, thus the petition be dismissed for being frivolous and vexatious as defined under section 4 (5) and 8 (2) of the of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E of 2019. Having considered the submissions by the respective parties for and against the preliminary points of objections on the competence of the petition. Without touching the gist of the application, the focus will only be on the main issues to determine on whether the petition is proper before this court. The law is very clear that, the petitioner has the right to file this constitutional matter before this as provided under section 4 of the Basic Right and Duties Enforcement Act, Cap.3 R.E 2019 as correctly pointed by the petitioner in his Originating Summons. However, to access such right there are preconditions and limitations as provided under section 8 (2) of the Act as the relevant contents produced hereunder; 14 I " The High Court shall not exercise its powers under this section if it is satisfied that adequate means o f redress for the contravention alleged are or have been available to the person concerned under any other law..... " The limitation is also stated in the case of SP. CHRISTOPHER VS ATTORNEY GENERAL, Miscellaneous Civil Cause No. 1 of 2021. At page 14 last paragraph where it is stated that, "Despite the functions of the constitutional court provided by the

foregoing sections, still there are limitations which are stipulated by the law when the constitutional court exercises its powers conferred to it: One, the court cannot exercise powers when there are other means of redress provided by other law(s) or if the application is merely frivolous or vexations" Looking into the redress sought in the petition before this court as clearly pointed out by the counsel for the respondents. The petition is challenging the orders of the court delivered on 27th May 2021 in Civil Case No. 2 of 2020 and Miscellaneous Civil Application No.14 of 2020 at the High Court of Songea as well as unprofessional of the Judge and the advocate on the same matter. The question to be determined on this point is on whether there is other forum where the petitioner could refer the redress for remedies he sought before this court 15 and if the answer is yes, the following question is whether the available remedies have been exhausted? Notably considering the redress sought, starting with the dismissal order of 27th May 2021 in Civil Case No. 2 of 2020 at the High Court of Songea. The case was dismissed for non-appearance of the plaintiff (the Petitioner herein). The position of the law governing the procedure for events like this is well established under order IX rule 3 of the Civil Procedure Code Cap 33 of 2019 where a relief for a case dismissed for non-

appearance is provided. The remedy under this rule is either of the two options, to restore or apply to set aside dismissal order. However, the relief is subject to the law of limitation. This is strongly argued by the counsels for the respondents, that the petitioner not satisfied with the dismissal order, he could opted to apply either of the two mentioned options. The same should also be applied for a Miscellaneous Civil Application No. 14 of 2020 in relation to the main Civil Case No. 2 of 2020 which was also struck out on the same date of 27th May 2021 following dismissal of the main Civil Case No.2 of 2020. This was supported by the authorities cited by the counsels for the respondents in the case of

TANZANIAN CIGARETTE COMPANY VS FAIR COMPETITION COMMISSION & ATTORNEY GENERAL Misc. Cause No.31 of 2010 16 whereby no room is provided for coming to the Constitutional Court before exhausting other remedies under respective laws. Also, the Court of Appeal case of one Elizabeth Steven & Another Vs the Attorney General, Misc. Civil Cause No. 82 of 2005 TLR, at pg. 8 the Court gives the definition of section 8(2) by referring section 4 of the Act. Going through the petition, there is nowhere the petitioner established to access those available options or the reasons for not doing so. Failure of the petitioner to exhaust the available remedies under the CPC renders this court to lack jurisdiction to entertain the petition as the preconditions provided under section 8(2) of the Act quoted above are not complied with. ' V On the aspect of unprofessional practices of a judge and the advocates. This court is also of the view that as pointed out by the respondents' counsels that there are other avenues to address for same. Starting with the remedy under the Judiciary Administration Act No. 4 of 2011. Section 36 of the Act establishes Judicial ethics Committees deals with ethics of the Judges. Under section 38 of the Act, the committee is mandated to investigate among others the misconduct of judicial officer. The petitioner being dissatisfied with the conduct of the judge could

apply this avenue to seek redress against the judge through a complaint under 17 I section 40(1) (e) of the Act. However, the petitioner also opted not to exhaust this available remedy. Further to the alleged misconduct of the Advocates. The remedy available for the petitioner was to apply the section 4 of the Advocate Act Cap. 341 of 2019. This section establishes Advocate committees mandated with powers to entertain any unprofessional conducts of the Advocate. This can be done as well as to the prayer for removal of the Advocates from the roll. The petitioner could opt to invoke remedies under section 13 (1) (b) of the Advocate Act and section 22(1) which gives power to Chief Justice and any High Court Judge to deal with conduct of any advocate. Moreover, the other forum available for the petitioner was through Tanganyika Law Society Regulation Act Cap. 13 of 2017 which also regulates the affairs of the Advocates. All these available remedies stated above were not full exhausted by the petitioner as the law required under section 8 (2) of the Basic / . Rights and Duties Enforcement Act, Cap. 3 Revised Edition 2019. Taking into account the available remedies stated above, the petitioner could not opt to come to this court to seek remedies which are available as stated above. The denial of these avenues makes the matter premature before this court as argued by the counsels for

the 18 respondents. I agree with the position established in the number of authorities such as the case of PAUL REVOCATUS KAUNDA VS THE SPEAKER OF THE NATIONAL ASSEMBLY & TWO OTHERS, Misc Cause No. 10 of 2020. At page 38, where it was held that the constitutional proceedings are not expected to be pursued as alternatives to ordinary proceedings. They are preferable as a matter of necessity and where the law does not provide for the avenues. For this court to entertain the matter that of premature and have alternatives under the other respective laws is to contravene with section 8 (2) of the Act which gives power to the court not to entertain the matter which has other means of redress. The above position goes together with the second point of objection that, the petition is contrary to court procedures and the Article 26 the Constitution of the United Republic of Tanzania, 1977. Article 26 requires every person to abide by the laws of the country as stipulated here under; "Every person has the duty to observe and to abide by this constitution and the law of the United Republic." This requirement is with no exclusion of either party in this petition. Therefore, the petitioner is also duty bound to adhere with the above article. Failure to do so renders his acts in respect to this petition to abuse 19 the court process as provided under sect 8 (2) of the Act, and renders

the petition frivolous and vexatious as discussed in the case of ADO SHAIBU (Supra) as this petition lacks bona fide cause and tends to cause the opposite party unnecessary anxiety trouble and expenses. On the point of the validity of the affidavit. It is the established general rule of practice and procedure that, the contents of affidavit should contains statements of facts which the witness deposes of his own persona! knowledge to prove as per Order XIX Rule 3 of the Civil Procedure Code,1966 (Cap.33 R.E 2002). In reflection to the contents of the rule and the referred paragraphs of the affidavit at page 13 -14 of this ruling without repeating for the same. All most of the paragraphs do contain legal arguments and conclusions. Also, paragraph 55 which defective verification which do not disclose the identity of the specific person. As the general rule, the law on affidavit should be confined to the facts to suit the purpose. The purpose of an affidavit is stated in the case of JUMASAID & YAHAYA ABDALLAH VS REPUBLIC, Criminal Appeal No.4 of 2010, it was said that, "the purpose of an affidavit is to convey to the court and the other party some facts material to the case from the best sources...... the purpose of the verification clause is to show 20 whether the facts asserted by the deponent are true of his own knowledge or based on information or belief". Notably, the law on

affidavit direct to confine to the facts, the defectiveness therein is to the extent that the amendment cannot be done. As this issue is purely matter of law, I concur with the counsel for the 3rd to 8th respondents that affidavit is incurable defective for containing legal arguments, opinions and conclusions. In lieu of this finding the objection is sustained accordingly. As pointed earlier at page 13 in the last paragraph that the petitioner did not address the points of objections raised. Instead, he was questioning the validity of the point of objections. It is a common principle that a party cannot be allowed to pre-empt preliminary objections by raising another objection. This is decided by the Court of Appeal in the case of STANDARD CHARTERED BANK AND ANOTHER VS VIP ENGINEERING & MARKETING LIMITED AND OTHERS, (Civil Application No. 222 of 2016 [2021] TZCA 344;(02 August 2021) whereby at page 8 paragraph 2 the Court held th a t" It is trite principle that where a party has raised a preliminary objection in a case ,the other party cannot be allowed to rectify the defect complained of by the party who raised the objection because to do so would amount to pre-empting 21 that preliminary objection. In line with this position, what was argued by the petitioner during the hearing despite of the court guidance, is to pre­ empty the raised objections of which I find no reason to

entertain. In view of the findings above, the petition is incompetent as it has no legal bas is to move this court for the redress sought as there are alternative remedies under other laws as to the extent discussed and the findings above. I therefore, uphold the respondent's preliminary points of objection against the petition and the application is accordingly dismissed with costs. Dated at Dar es Salaam this 20th October 2021. Z. A. MARUMA

JUDGE 20/ 10/2021 22 Ruling delivered in Chambers this 20th October 2021 in the presence of the petitioner, Mr. Philip Samson Chigulu and Galus Lupogo, State Attorney for the 1st and 2nd respondents and Mr. Lugiso Ndelwa Mr. Innocent Mwelelwa and Mr. Mombeki Kabeyemelwa learned Advocates for the 3rd to 8th respondents. Z. A. MARUMA

JUDGE 20/ 10/2021 23