19990609 TZHC Dar es Salaam

19990609 TZHC Dar es Salaam

Section 5 of the Basic Rights and Duties Enforcement Act provides for both petition and originating summons as avenues for instituting proceedings. The use of 'shall' in the section is directory, not mandatory. Procedural technicalities should not defeat the right to redress guaranteed by the Constitution. The absence of originating summons does not render the petition defective. Section 8(4) of the Act does not bar the issuance of prerogative orders in constitutional cases but prevents duplicative avenues for the same relief.

Citation
19990609 TZHC Dar es Salaam
Parties
Applicants: Baraza la Wanawake Tanzania and Others; Respondents: Registrar of Societies and Others
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
9 June 1999
Procedural Posture
Miscellaneous Civil Cause / Ruling on Preliminary Objections
Outcome
Preliminary objections overruled with costs
Legal Topics
Human Rights Enforcement, Procedural Technicalities, Interpretation of Statutes
Source Language
English
Constitutional Law Civil Procedure Human Rights Enforcement Procedural Technicalities Interpretation of Statutes

Case Brief

Summary, issues, holding and outcome

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Parties

Baraza la Wanawake Tanzania and Others

Applicants

Registrar of Societies and Others

Respondents

Procedural Posture

Miscellaneous Civil Cause / Ruling on Preliminary Objections

Legal Issues

  1. 1 Whether failure to use Originating Summons as prescribed by section 5 of the Basic Rights and Duties Enforcement Act renders the petition incompetent
  2. 2 Whether clause 30(b)(1) of the Petition contravenes section 8(4) of the Basic Rights and Duties Enforcement Act

Ratio Decidendi

Section 5 of the Basic Rights and Duties Enforcement Act provides for both petition and originating summons as avenues for instituting proceedings. The use of 'shall' in the section is directory, not mandatory. Procedural technicalities should not defeat the right to redress guaranteed by the Constitution. The absence of originating summons does not render the petition defective. Section 8(4) of the Act does not bar the issuance of prerogative orders in constitutional cases but prevents duplicative avenues for the same relief.

Court Disposition

Preliminary objections overruled with costs

Orders

  • The preliminary objections are dismissed.
  • The petition is not defective for failure to use originating summons.