19961125 TZHC Dar es Salaam

IN TIIEJ illGH CQuTi.r o:? '?~1'T.~L:'JI;_ AT DAR ES Sitl.:f.1...f\.1:,: BY ALLISON XEROX SILA :FDR ORDERS OF CERrIORARI .AND liJ..Al'll)AhtJS O o o o e o o o o o • o o o o • • o o o o o o e o o o APPLICANT AND m TBE .tuATTER OFT~ DECISION OF TilE BOARD OF DIRECTORS OF 1r.A..liZANIA IIA.RBOUR 1S AUTHORITY TO TiERNllfA'J.1E ALLISON XEROX ......... RESPONilENT VERSUS TA.L"'ifZAJJIA HARBOURS AU.I1TIOJITY., •• • g • • • • ., • • • o. RESPOJIJ"DEiiTr 'BUBESHI 2 Jo Ini course of hea.ri11::; -~ho 8pplication :'.:or leave for the orders I • of certiorari and .m.a.nda,mus, the n.cspondent J:-:as raised some preliminary objection in that the application is contrary to 05. R 2 of the CPC 1966 ahd also that it breaches. the p:rovisions of S.17A (2) of the Law Reforn (Fatal Accide·nts. and Miscellaneous Provisions) Ord~ Cap. 360 lVir. 1•1bunna Counsel for the Respondent sv_bmi·~ted· that the chamber summons filed by the applicant is defective and bad Hhaw as it does not bear signature or seal of the Court - hence contrary to 05 -R(2)..• Mr. 11J.bunna-cited the case o:f KAUR and OTEERS vs• CITY AUCTION NA..'f'W, . L 1967J Eo Ao 1081 a decision followed in the case of CPO INTEIUJATIOHAL INN VS •. ZAIN.AB GRAIH 1•~ILLS - Civil Case lfo. 12L of' 1993 unreported. On the authorities cited counsel 11Jbunna. submitted that the ir~egularity was fatal to the application. Secondly, he argued tlla:i; interms 9f S 17 A of Law Ref'orm(Fatal Aocidents & Misc. Provisions); Cap. 360 as amended b.y Act 27 of 1991, the Attorney General has to be SUJ!1J11011ec1 to appear as the applicant has deponed that iss~es of consti t~1tionality a.re at !,and. Ile ref~rrod the Court to paragraph 10 of the ap1,ilicn~1t I s a:t':!~L~:,vi t ~ where the provisions of .Ax-tic le 13 ( 6) (a) of the Constitution ha'll'e 1:een alleged to have been breached. ,, On this again he sub□i tted tL,-~ sinee it is -S;i9ndatory to enjoin the Attorney General, the applic~:ciou :Je d.isillissed for breaching S 17A of Act 27/91'. / / / -2- ' In: reply Mr. Uyance for the· a~;plicunt conceded that their application bears no signature nor sea.l 1Jtr'v suumi tted that the blame should be shouldered by the Court, not his client~ Oh the issue of joining· the Attorney General his view was that this is not t!:Lc t::;·pe- of ar,plication where the issues o:f constitutionality have be~;.1 :raiBed, and. therefore to warrant joining the attorney General; in otherwords i"l; is not all applications that the Hone Attorney General be joined as a partyo I will start wi tl: the seoond point 1 t.b.at tb.ere has been a non-:- - compliance wi.th the provisi011s o:r section 17, A (2) of the Law Reform ( FataJ. Acci•dents and Miscellaneous_ Provisions) Ordinance Cap., 360 as a.mended by Act" 27. of 1991 o That sub-£ection provides that:- ,, 17,'A(2}. In any proceedirlt,'l'B invol~ the interpretation of the Constituti'on with regara;·.fo the basic freedoras, ·-rights and duties specifiecl in,,Part III of Chapter I of the;··;"·'- Consti tution, n_.o hearil1J' shall be commenced or continue§. unless the Attorney General or his :representative - - - - - - - - is summoned to appear as a partyy - - - ..Jt Th_e issue bef0re r.1e is whethor the application filed by the applicant ··" i_;f.·, f comes within the purview of -~he provisions of sect.ion 17i A(2),. above cited• W.iro 111bunna has submi·'./rnc.~ tt.at t~1e application is within Section 17A2, and h~ cited p.aoe1•aph 10 of th'e affidavit filed by the applioan:t as raising issues ol Constitutionality interms of Article 13.6,(a). Pa.ragraph-10 of tL.e applicant's affidavit states: 11 10. The reports of tl.1e Comi:1i ttee were not tabled before the Boa.rd on the date of the interview and certainly were not ava~.led to me and I therefore had no opportunity of contraverting the.ra. · Likewise the grounds for review ordered by the·govemnent .tif_any) were not :revealed to me al1d it would appear that I had no rgght to challenge them and I was therefore denied a very basic natural Law and cons ti tutiona.l right naraely the ·right to heariro 11 ., Can it be s~d, on. reading paxa(:raph 10 above that that application filed involves the interpretation of -~110 g·onsti tut ion with regard t·o the basic :f'reedoms rights a..>J.d duties as Si)ecified in Part III of Chapter 1 of the Constitution? I think not. Even the Respol1Li_ontc l:ave subri1i tted that they are not referring to Article 13(6)(a) of t).1e Constitution. The Court of Appeal eave guidance in the case of }fotiono.,l_ ~Iousinc Corporation vs. Tanzania Show C_o!;]_Jany 0 ,..,3/. - 3 - and 2/J others and the .Attorhoy G-ens1•al -:-.Civil Appeal No~ 48 of 1994. Wh_e:te it held tllat where a caf.:le ;::;8-::,i:;:s to challenge the cons ti tuttiona1i ty of a particular la-w or subsidj.G:i.':J. lJL~islation, the provisions of sub-section 2 would come into pla:,•., In otherwords~ where any applicant has filed an action to chcl.:i..le:1(~8 a particular law as being contrary ' to the. Constitution, that 1-10·,.,:lcl clc:Zinetely cone within S 17A(2), and hence the Attorney General. would hr:i:ve ·;;o appear., I ~zy- reading of parag1•aph 10 of the affi da:vi t filed by the view applicant, does not in my .:1sw reEder ,the interpretation as was accorded by the Col.ll't of Appeal in the 6ivil Appeal No •. 48 of 1994. In order for the provisions of S · 17A(2), of Act Cap., 360.: as a.mended by Act .27 /1991 ·co come into pla,y, a specific legislation has to be challenged as being co1TG1'ary to the Cons ti tut ion. Par~aph sneai::fi c . . 10 of the a.ffidavi t does not poi11t a finger .., to a t::8CJ..1' legis1 ation 1 as being in contravention of the Constitution. I find there:f!ore that what the applicant is coi:.lplaining against is the breach of the rules of natural justice 1 a c1enial of right to be heard, and not the c onsti tutti onali ty of a partioulry-r provision., In the premises ' I would reject the prelit1inary o;J_jection on this point 9 On ground number one that is tbe app~icativn ,-1afl filed contrary to 05 R 2 of the CPCo 1966 Rule 2 o:2 05 rceiu.s as follows g- 11 2- Every su;;mons sh.all be signed. by the Judg·e or the Magistrate or such o:fficex as may be aJ)pointed by the Chief Justice in that belJ.a.lf and shall be sealed with the Seal of the Court o 11 The provisions of this Pcle are mendat~ 0 Mr., Hbima bas subIUitted that the application filed 1Jy ·the applicant was so filed in contravetion of 65 R 2 and since the provisions a:re mendato:ry, the application is .. therefore incurebly defectiveo Tl1e application being cor.1pla:i.ned of was presented ·for filing on 1/0/1996 1 it was signed by sorae-one purporting to act as a registry officer; but it was ne_ii;her sec>.J.ed nor dated by the Registrar or ap,y one acting for him. ]','.fr. Nyange _for tb.e applicant has conceded to this ;:;ut blaJ£les the Court for this •mission. !l'.fr. Nyange further submi ttecl tl"::ad; 05 R ( 2) relates .to :i_ssue of SUJllI,)ons in suits and not application for pre1,of;,_,.-civs- o:::dGr-s.. It was Mr. Nyange contention that the su.c;.r10113es in sai ts w"lc't t::.os e rtI)})lic~:ble in cha.r.1ber application ]it!, ~~e: ~~~~·:t½:i~ :,at·;i;~~ie:;~~;.;~ft_i)}Kia ~l-!i.\~ - .-,_•~r, l ~--,e•• - • , ••• . - • - · - 1~J~onseS.S' apply/fo,llo1J Coupsei did ~~t\febor.at_~} ~}-\j::_\· ··, P,t __ :-:<~---.. . ,J,ti. 1· ..-. _.· . ·. :::'.·;Did he mean to :hell the court -t,;~!;t s,t4pm_onses issued· i.ri\cH1a;i1ioe,r.;;;;~p ,.,,~a,·fo ., .,....---i:..t-,.v;;~-~.,.J -· -J -··: o:,•'.-~--"7 -~ -~· .tx\il \: 0°~ilJ.d. be 'so issued wi thcut-scaJ. or si~aturcs? , . :_ -.,:~:.1:• <agi~_.~, · Mr 0 11.ibunna for the Respondent has reftirred this Court t9 the cases,: (:,···0:~ ~ , of KAUR and 01:IIBRS vs~ ciTY AUCTION~;~~~~ 1967.J.. .Eo A_o 108·- :_· _ :- -~., , :/7{~ -L ' ,_· :_.·''-:?.~ and CPC INTERNATIONAL VS., ZADiJJ3 GR!i.'.rn .1.•.1.ILIS Civi.1· Case No,. 12-1 of .,1993,,- - .'"':;. ~t (1.ll'lreported) by 1•1waik,,.su, Jo In both oases, the Courts have insisted. _.·'i:::: I :.~ r that notice of Jllotion must be si{;11.ed and se~led. I am particularly, inclined to agree with the - observation made by Jones 5 J in the .. ~ case where at page ·110, he said&- The lavi" lays down that a. document,· such a summons must bear 11 . . the Seal of ~his Court, £or obvious reasons, such as to show that the fees have, been paid and that it is issued under prope:r authority and. out of the proper office. o o. o o o 11 (emphasis mine ) I have had time to checfk tb.e con::.'"G filey it is on record that a sum of Tshs. 6600 was paid by Mro Ny-ang-o as fee for Chamber Sum::ions and a receipt duly issued dated 11/G/199Go But then 1·rhy was it not si{sned? _ Mro Nyange has_ submitted t1::.c1t t:ie cohrt be blamed for this inadvertence~ While I cannot agree with Ivi:r,. Nycinge that suwmonses issued for chamber &l')plicatio~ are different from tI1ose applicable in suits, Pir.,cc view I hold the nG1.f tB.at summons are what the word sa:y they are and cannot be distinguished for purpose of convenience. And on the authorities . -~ cited above I hold that an unscaled and unsigned. sumr.1ons is clea~ly defect: and in this regard the cha.rJber summons filed by the applicant is • . I"'• defective. However haw.ng regal'd to the fact that the requisite fee was ·': . - I duly paid and receipted, I aL1 o1 the view that tho Court take the 11011 /- blame for the non-sealini£ and sic;ning. In the _premises, I direct that ~:re_f: summons to issue. .. !~~-(_ ._;,·.; t,:'.;: ,_,,!-~,i~;\\;y' -'· .• ' ;/ , I:/; •- , , • • . . _y'• •~_;t·-•,. ~ '.. / \;?\...'"\ A,, 'aa BUBE31Il - J'Cl:WE Delivered Before 25/11/1996 Mr. Nya.nge for' Applic-ant Mr 0 .1•1bunna for Respondents. O:rde:rg 1~1ro Ny:1n.ge to file hs C):.c:.\,-ber Surnraons and 11¢.tit~ on. 10/12/1996 :__,,t Ci.;30 ao~o '