chugulu and others vs national examination and others 2005 tzhc 57 9 november 2005

IN THE MATTER OF ANA PPLIATION FOR PREROGATIVE ORDERS OFCERTIORARI AND MANDAMUS BY ADELINA CHUGULU AND 99 OTHERS IN THE MATTER OF REVISION OF THE DECISION OF THE NATIONAL EXAMINATION COUNCIL OF TANZANIA DATED THE 23RD OF MARCH, 2005 THE NATIONAL EXAMINATION} COUNCIL OF TANZANIA } THE ATTORNERY GENERA } RESPONDENTS section 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E. 2002 and section 95 of the Civil Procedure Code, 1966. The chamber summons is for the grant of the order for certiorari quashing the decision of the 1st respondent dated 23rd March, 2005; that the court may be pleased to grant the order for mandamus compelling the 1st respondent to release forthwith all the National form four examinations results of the applicants; costs and any other relief deemed fit. There are two supporting affidavits to the application. That of Felix Niyilema, a School teacher and an academic master of S10Marks Secondary School where all the applicants completed their form four secondary education and that of Lillian Novati Rutenge one of the applicants and a former form four student at S10Marks Secondary School Mbagala. Before the hearing of the chamber summons, the 2nd respondent, that is, the Attorney General filed a notice preliminary objections, which if granted, would lead to the struck out of the application. Those preliminary objections were that:- (1) That the application is misconceived and incompetent for being supported by defective affidavits. (2) That the application is incompetent and bad in law for the same offends Order 1 Rule 8 of Civil Procedure Code, 1966. The 2nd respondent is represented by Mr. Ngwembe, learned senior state attorney while the applicants are represented by MIS Rwechungura, learned advocate. The preliminary objection was urged by way of written submissions. In his submissions, the learned state attorney, after citing the Court of Appeal decision, whereby affidavit was defined to mean: "An affidavit is a written document containing material and relevant facts or statements relating to the matters in question or issue and sworn or "Affirmed and signed by the deponent before a person or officer duly authorized to administer any oath or affirmation or take any affidavit". (See Court of Appeal decision in Civil Application No.53/2002 D.B. Shapriya & co. Ltd. V. Bish International B.V. at page 2) went on to submit that he would center his submissions on the Notaries Public and Commissioner for Oaths Ordinance Cap.12 whereby, section 8 of the ordinance provides that the jurat of attestation must contain the place and date the affidavit was taken or made. He went on to submit that, the jurat in the affidavit of Lillian Novati Rutenge does not contain the date it was made as mandatorily required. On this point, MIS Rwechungura, learned counsel submitted that if the copy of the affidavit served to the 2nd respondent does not bear the date, it was an oversight because the copy filed in court and the one she has are dated. On my perusal to the courts records, I found as a fact that the affidavit deponed by Lillian Novati Rutenge was sworn in Dar es Salaam on 25th June, 20051 Therefore then, going by the documents filed in court, the affidavit of Lillian Novati Rutenge was duty dated and the place where it was deponed was shown as Dar es Salaam. Having ruled that the affidavit of Lillian Novati Rutenge is not defective on point of its jurat, the objection is dismissed. On the second ground of objection, I totally agree with the learned senior state attorney that under the Civil Procedure Code, 1966 any suit which is by way of representative suit leave must first be sought and granted by the High Court under Order I rule 8 of the Civil Procedure Code, 1966 for one or more than one person to represent others having a common interest in a matter. The reasons for that have been clearly elucided in the case ofLujuna Shubi Balonzi Senior v. Registered Trustees of CCM (1996) T.L.R 203 at page 211- 212, whereby Samatta J. as he then was said: "The foundation of Order I rule 8 CPC is to be found in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to be suit. It effects the rights of other persons not present before the court. Hence a duty is cast on the court itself to follow meticulously the procedure prescribed by Order I Rule 8. In view of the far reaching consequences of a decree passed in what is described in law as a representative suit, it is necessary that the relevant provisions must be treated as presentory and mandatory". The learned state attorney then submitted that none of the persons who made the application, it being Felix Niyilema or Lillian Novati Rutenge appears to represent other persons affected by the non disclosure of the examination results nor were they named in the application. Thus, non failure to apply for and a grant to Lillian leave to represent 99 others renders this application effective so that the only way left is to dismiss it with cost as the best award. MIS Rwechungura, learned counsel conceded that the procedure laid down in Order 1 rule 8 of the Civil Procedure Code, 1966 must be followed in all representative suits, but such procedure is only applicable if the suit or matter in issue is under the Civil Procedure Code itself. The learned counsel referred this court to section 2 of the Civil Procedure Code, 1966 which states as follows:- "Subject to the express provisions of any written law, the provisions of this code shall apply to all proceedings in the High Court of the United Republic, courts of resident magistrates and district courts". She went on to say that the applicant's application is for prerogative orders of certiorari and mandamus which are governed by Fatal Accidents and Miscellaneous Provisions Act Cap. 310 R.E. 2002 and not the Civil Procedure Code, 1966. In that Act, there is no express provision which state that when numerous persons having the same interest applying for prerogative orders, such persons are required to obtain leave of the court to be represented by one or more of such persons. She finally submitted that the objection is misconceived and has no merits. The learned state attorney did not reply to those submissions. The crax of the matter here is whether the provisions of the Civil Procedure Code, 1966 applies in applications for prerogative orders, which orders are questioning the already decisions made by public authorities. My answer is no. There is a different procedure applied in applications for prerogative orders from those used in instituting civil proceedings under the Civil Procedure Code. In application for prerogative order a party files a chamber summons supported by an affidavit and a statement for the grant of leave first. It is only after leave has been granted, will the petitioner petition for the orders sought. In the case of ordinary civil suit, then it has to start with the pleadings as per Civil Procedure Code, 1966. On the question of identity to the other 99 persons affected by the decision of the 1st respondent, the learned counsel for the respondent submitted that the 1st respondent knows them by their examination numbers, which are attached to the petition. It is the serial numbers which discloses the names of the students. There has been no reply to that, so I agree with those submissions that the 1st respondent identifies the petitioners by their examination centre numbers and therefore, properly identified in these proceedings. The application by Adelina Chigulu which is supported by the affidavit of Lillian Novati Rutenge is for the prerogative orders of the certiorari, to call and quash the decision of the 1st respondent and to compel the 1st respondent to release the examination results of the 100 students. As I said earlier, the application having its own procedures is not governed by the procedures found under the Civil Procedure Code, 1966. If that is the case, then the preliminary objections are dismissed. The hearing of the j / f I application shall proceed. I / / A.~ JAJI KIONGOZI. For the 15t Respondent - ~afari For the 2nd Respondent - -\bsent Order: Ruling deliv7ed today in the presence of learned Rwechungura and Safari counsels for tht: applicants and 15t Respondent respectively in the absence of the 2nd Responr:ent.