APPLICATION NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 12501 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR PREROGATIVE ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF CHALLENGING THE REVOCATION OF INCORPORATION OF THE REGISTERED TRUSTEES OF KAMATI YA MAENDELEO YA UISLAMU BUGARAMA WITH REGISTRATION NUMBER 4631 BETWEEN MUHIDINI IBRAHIM MFWANGAVO ………………………………1ST APPLICANT AHMAD MAGAMBO……………………………………………..……. 2nd APPLICANT VERSUS ADMINISTRATOR GENERAL …………………………………… 1st RESPONDENT ATTORNEY GENERAL …………………………………………… 2nd RESPONDENT REGISTERED TRUSTEES OF BARAZA KUU LA WAISLAMU TANZANIA ……………………………………… 3RD RESPONDENT RULING 08th November, 2024 & 17th February, 2025 BWEGOGE, J.: The applicants aforementioned instituted an application herein praying for grant of leave to file an application for judicial review wherein the applicants intend to move this court for grant of orders namely; certiorari against the decision of the 1st respondent revoking the incorporation of 1 The Registered Trustees of Kamati ya Maendeleo ya Uislamu Bugarama with Registration Number 4631 published in the Government Gazette [General Notice No. 5818] of 29th March, 2024; and prohibition restraining the 1st respondent from executing the detrimental instruction of the 3rd respondent respecting the properties and affairs of the revoked institution. The application herein is brought under section 2(3) of the Judicature and Application of Laws Act [Cap. 358 R.E. 2002]; section 19(1) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap 310 R.E. 2002] and Rule 5(1), (2), (5) and (6) and Rule 7(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 [G.N. NO. 324 of 2014]. And the application is supported by the joint affidavit of the applicants herein. The background of this application as depicted by the depositions made by the applicants in the supporting affidavit entails the following facts: Way back in early 2008, the applicants herein and other Muslims of Bugarama Ward, Kahama District, in Shinyanga Region organized themselves and decided to establish a nursery, primary and secondary schools to provide both religious and secular education for the residents of whole Bugarama Ward and neighbouring areas. Consequent to this 2 endeavour, the organization namely, JUMUIYA YA WAISLAMU WA MTAA WA BUGARAMA which was later featured as KAMATI YA MAENDELEO YA UISLAMU BUGARAMA, commonly referred to by its acronym “KAMATI” was inaugurated. The 1st applicant was its chairperson. Later on, the KAMATI acquired real properties under its name (approximately 17 acres) and in 2009 the construction of envisaged schools commenced having obtained a permit from the respective authority in Kahama District. Through liaising with the 3rd respondent, the KAMATI sought and obtained a government permit to establish a nursery and primary schools vide correspondence with References Nos. JA/259/287/1035/19 dated 06th February, 2012, and JA/259/287/1035/32 dated 17th April, 2014. And the KAMATI was approved as owner of Bugarama Nursery and Primary Schools with registration number SH.03/7/EA.022. Likewise, the incorporation and registration of the trustees were effected on 09th April, 2013. At the first instance, the organization (KAMATI) liaised and acted under the auspice of the 3rd respondent. But later on, it placed itself under the umbrella of The Supreme Council of Islamic Organizations and Institutions of Tanzania (Baraza Kuu la Jumuiya na Taasisi za Kiislamu Tanzania) commonly known by its acronym “BARAZA KUU.” Currently, the 3 organization associates with another Supreme Council of Ansaar Sunna Organizations Tanzania (Baraza Kuu la Sunna Tanzania -BASUTA) established in 2018. Consequent to the above, allegedly, in December, 2021 the 3rd respondent lodged complaints to the 1st respondent objecting to the incorporation of the Registered Trustees of KAMATI alleging breach of agreement. Subsequently, 1st respondent required the KAMATI to respond to the allegation within the specified time. Allegedly, the KAMATI headed by the applicants failed to respond thereto for lacking particulars of the complaint filed by the 3rd respondent. Finally, the 1st respondent revoked the incorporation of The Registered Trustees of KAMATI on the ground that the Registered Trustees of KAMATI contravened the provision of section 23(1)(a) of the Trustees’ Incorporation Act [Cap 318 RE 2002] by obtaining its certificate of incorporation by means of fraud or false representation and notice to that effect was published in the Government Gazette dated 08th September, 2023, Issue Number 36. The deponents (applicants herein) are aggrieved with the decision of the 1st respondent contending that there was no reasonable ground in the actions of the 1st and 3rd respondents. The applicants, being interested 4 in the matter as founders and leaders of the organization (KAMATI) were aggrieved with the alleged revocation. Hence, this application. The applicants herein were represented by Messrs Daimu Halfani and Abdulfattah A. Al-Bakry, learned advocates; Ms. Caroline Lyimo, state attorney entered appearance for the 1st and 2nd respondents herein; And the 3rd respondent was represented by Mr Hassan Fatiu, learned advocate who opted not to contest the application. The application was heard by written submissions. In substantiating the application Messrs Halfani and Al-Bakry submitted that the application herein has been instituted within six months from the date of the decision as required by section 19(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 R.E. 2019] as the impugned revocation of the incorporation of the trustees was affected on 29th March, 2024 and duly gazetted on the same date. And the applicants have sufficient interest in the matter as they had directly participated in organizing and establishing the organization, incorporation of the registered trustees, acquisition of land for construction of the schools and being the members and leaders of the same. The case of Emma Bayo vs. The Minister for Labour and Youths Development & Others, Civil Appeal No. 79 of 2012 [2013] TZCA 190; Nandhra Engineering & 5 Another vs. The Minister of Constitutional and Legal Affairs & Another, Misc. Civil Cause No. 8968 of 2024 [2024] TZHC 5894 and Tanzania Women Lawyers' Association vs. Hon. Minister for Constitutional and Legal Affairs & Another, Misc. Cause No. 61 of 2022 [2023] TZHC 19134, among others, were cited to bolster the point. Further, the counsel argued that the present application discloses an arguable/prima facie case fit for consideration in the main application. That the paragraphs 16, 17, 18, 19, 20, 21 and 23 of the joint affidavit and Clause 3(a), (b), (c), (d), (e) and (f) of the statement discloses arguable case. The case of R. vs Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319 at pg. 329 and Njuguna vs. Ministry of Agriculture |2000] l EA 148 at pg. 186 were cited to bring home the point. In reply, Ms. Lyimo contended that in order for an application for leave for judicial review to be granted the pre-requisite conditions ought to be satisfied as elaborated in the case of Emma Bayo vs Minister for Labour and Youths Development & 2 others (supra). The counsel conceded that the application herein has been instituted within the prescribed time and the applicants herein have sufficient interest in the matter to commence the proceedings herein before this Court. However, 6 the counsel contended that the applicants do not have an arguable case to justify the institution of an application for judicial review. The case of Republic vs. Land Dispute Tribunal Court Central Division and Another [2006] 1 EA 321 was cited to reinforce the point. The counsel expounded that the prayers sought by the applicants are based on the decision that was reasonably reached of which was not tainted with any illegalities, irregularities or irrationality as the applicants were duly notified before the impugned revocation. That the 1st respondent afforded the applicants the right to be heard before the impugned decision was reached. In validating her assertions, the counsel directed the mind of this court to the correspondences issued by the 1st respondent dated 8th December, 2021 (Ref, No. ADG/T. 1/4631/4) and 19th April, 2022 (Ref. No. ADG/T. 1/4631/21) annexed with the complaint made by the 3rd respondent against the incorporation of Trusteeship. The counsel maintained that the impugned revocation was done in accordance with the provisions of the law pertaining to the allegation of breach as alleged by the 3rd respondent. Based on the above arguments, the counsel concluded that the application is devoid of substance; hence, ought to be dismissed. 7 In rejoinder, Mr. Halfani reiterated his earlier stance and insisted that the facts deposed in the affidavit contain an arguable case sufficient to be adjudicated in the main application as it is apparent that the applicants’ right to be heard was denied. It is trite law that the applicant seeking leave to commence proceedings for judicial review ought to satisfy the following conditions: One, that the applicant has an interest in the matter. Two, the application is timely filed. Three, the applicant has established the prima facie/arguable case. See the cases; Attorney General vs. Wilfred Onyango Mganyi @ Dadii and 11 Others, Criminal Appeal No.276 of 2006, CA (unreported); and Emma Bayo vs. The Minister for Labor and Youth Development & 2 Others (supra), among others. The question arising herein is whether the applicants have satisfied the condition precedent for grant of leave to file the main application for judicial review. Foremost, I find it pertinent to highlight the facts that both parties herein are at one respecting the fact that the applicants have interest in the matter herein. Likewise, both parties herein join hands in that the matter herein has been instituted within the prescribed time. The only contention between the parties herein is whether the applicants herein have the arguable case against the respondent. 8 Arguably, at the stage of seeking leave, the court needs to satisfy itself, without examining the matter in depth, whether the appellant has a prima facie case for granting leave and, or whether the reliefs sought might be granted on the hearing of the substantiative application. See the case of Njuguna vs. Ministry of Agriculture (supra). The principle is expounded in the case of Republic vs. Land Dispute Tribunal Court Central Division and Another (supra) thus: “…leave should be granted, if on the material available the court considers without going into the matter in depth that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at an earliest possible time, thus, saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for moths because of pending court action which might turn out to be unmeritorious.” I have taken labour to go through the lengthy depositions made in the joint affidavit of the applicants supporting the application herein. The complaint and, or grounds for the institution of the intended proceedings for the prerogative writs made by the applicants herein are coached under paragraphs 16 to 23 of the joint affidavit. In substance, it is alleged that in December, 2021 the 3rd respondent had lodged a complaint objecting to the incorporation of the Registered Trustees of Kamati ya Maendeleo 9 ya Uislam Bugarama whose contents remain unknown to the applicants. Subsequently, the 1st respondent issued a notice requiring the administration of the respective organisation to respond to the complaint within clear 30 days. The leadership of the organisation requested to be supplied with a copy of the complaint filed by the 3rd respondent to be able to respond thereto. The request was never heeded. Consequently, the leadership of the organisation failed to make their case. Hence, the 1st respondent had revoked the registration of the respective trustee/organisation. Based on the aforementioned account, the applicants contend that the 1st respondent denied them relevant materials upon which they were supposed to make their case; hence, unjustly condemned. And it is alleged by the deponents that there was no ground upon which the impugned revocation would lie. The deponents referred the mind of this court to several correspondences to validate their complaint. Contrariwise, the 1st and 2nd respondents vehemently denounced the allegation maintaining that the applicants were availed with all relevant information prerequisite for making their case. Further, the 1st and 2nd respondents’ counsel contended that the impugned decision was reasonably reached according to the law in place; and not tainted with 10 any illegalities, irregularities or irrationality as the applicants were duly notified and afforded the right to be heard before the impugned decision was reached. As aforesaid, the 3rd respondent herein refrained from filing a counter affidavit neither contested the application herein. Hence, given the foregoing contentions, I apprehend that there is arguable case between the parties herein which warrants the attention of this court. Accordingly, I find that the applicants herein have met the conditions precedent for grant of leave to lodge the main application for prerogative orders. Hence, I hereby grant the application. The applicants are hereby granted leave to file judicial review. No order as for costs. So ordered. DATED at DAR ES SALAAM this 17th February, 2025. O. F. BWEGOGE JUDGE 11