20161228 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 17 OF 2016 DR. MUZZAMMIL MUSSA KALOKOLA ......................... APPLICANT VERSUS 1. THE MINISTER FOR JUSTICE AND; CONSTITUTIONAL AFFAIRS ................. RESPONDENTS 2. THE HON. ATTORNEY GENERAL RULING MKASIMONGWA, J Dr. Muzzammil Mussa Kalokola (Applicant) came to this court and petitioned it for Declaratory Orders against the MINISTER FOR JUSTICE AND CONSTITUITIONAL AFFAIRS AND THE ATTORNEY GENERAL. In the matter (Civil Application No. 2 of 2016) the Respondents came up with a Preliminary Objection based on eight (8) points of law. The Court after hearing the objections determined the matter at the preliminary stage l on being satisfied that two points of the law among eight forming the basis of the preliminary objection have merit. The two points were: 1. That the petition is fatally defective for contravening Section 6 (e) of the Basic Rights and Duties Enforcement Act (Cap 3 R. E 2002) (2 nd ground) 2. That the affidavit in support of the Chamber Summons is incurably defective for containing extraneous matters by way of legal argument, evidence, citation of the law, opinions and conclusions contrary to order XIX Rule 3 (1) of the Civil Procedure Code (Cap 33 R. E 2002) (3 rd ground). 1 It is also important to note here that in the 8th limb of the preliminary objection the respondents asserted that:- "The petition is vague, embarrassing, frivolous and vexatious" In its decision in this regard, the Court stated as follows:- "In is apparent that in subhead 3 ... of the Petitioner's Originating Summons the petitioner has set out what he termed particulars of facts relied on. It is clear that in some of the items under subhead 3 of the Petitioner's Originating Summons ... sets out evidence to prove the facts .... No doubt, the said items under subhead 3 of the Petitioner's Originating Summons which set out evidence to prove the facts, contravene the provisions of Section 6 ( e) of the Basic Rights and Duties Enforcement Act (Cap 3 R. E 2002)." The court went further stating that:- "The petitioner's affidavit in support of the Originating Summons clearly shows that it contains opinions and conclusions in paragraphs 3, S, 7, 8, 9, 13, 15, 19, 21 and 22. It is further clear that the affidavit contains legal arguments in paragraphs 4, 6, 10, 12, 14, 16, 17, 18, 20, 21, 23, and 28". Based on the above findings the court concluded by stating as follows:- "As the affidavit in support of the Originating Summons contains opinions, conclusions and legal arguments as so incurably defective, it renders the petitions incompetent. Furthermore, the petition is defective for contravening section 6 ( e) of the Basic Rights and Duties Enforcement Act, Cap 3 R.E 2002 ... 2 For the reasons stated above the preliminary objection is sustained the petition is accordingly struck out with costs". The Applicant is aggrieved by that decision reached in the matter and since the same was made by a single judge he has come to the court and filed a Chamber Summons under the provisions of Rule 9 (2) of the Basis Rights and Duties Enforcement (Practice and Procedure) Rules 2014. He did so with a view to referring the decision to a panel of the Judges. In the Chamber Summons which is supported by the Applicant's own affidavit the application prays for orders inter alia that declares the applicant's application was properly brought to the court and it should therefore be allowed to proceed for hearing and determination on merit. ,· Upon being served with the Chamber Summons the Respondent opposed to it. They filed a Counter Affidavit along with a Notice of Preliminary Objection under which he raised two grounds which are: 1. That the application is incompetent for offending the provisions of Rule 9 (2) of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014. 2. That the application is incompetent because the court has not been properly moved. This ruling is in respect of the preliminary objection raised by the Respondents. On the date the matter came for hearing before me, there appeared Mr. Abubakar Mrisho, the Learned Senior State Attorney acting for the Respondents and the applicant in person. When was invited to argue the preliminary objection, Mr. Abubakar submitted in respect of all two grounds of the preliminary objection. In respect of the 1st ground, the learned Senior State Attorney contended that Rule 9 (2) of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules 2014, under which the Court is moved by the applicant to make orders sought requires that when a single judge decides that the petition is vexatious or frivolous, any party aggrieved by that decision may refer the matter to a panel of three judges. In this matter, instead of referring the decision to the panel of three judges, the applicant filed a new application 3 and that application was registered as "Appellations No. 17 of 2016" this is in contravention with Rule 9 (2) of the Rules above. Mr. Abubakar also submitted that in the contested decision, Hon. Justice Kihio, only determined the matter as he did, upon being satisfied that the application contravened the provisions of Section 6 ( e) of the Basic Rights and Duties Enforcement Act and that the affidavit filed in support of the application was incurably defective. This decision does not entitle the applicant to make this application. These like applications are only made where the matter has been decided in terms of Rule 9 (2) of the Rules. As the application is brought in contravention of the provisions of Rule 9 (2) of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules 2014, that is to say, it is not a reference matter and that the decision contested does not entitle the applicant to make this application, Mr. Abubakar prays the court that it strikes it out as the same is not properly in court. On his part the applicant submitted that the respondents admit that the application under contest was decided by a single judge and that any person aggrieved by the decision therein may refer the matter to a panel of three judges. The learned Senior State Attorney, however, misleads the court on the procedure in referring the matter to a panel of the three judges. As there is silence to that effect Rule 19 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014 provides for a rescue. In this matter the Court has to consider whether the matter deserves to be referred to the panel of three judges and as regards to manner of making an application/reference the party should be guided by the provisions of Order XLII Rule 2 of the Civil Procedure Code. As the contested decision was made by a single judge and that the same was based on the competence of the application since he (applicant) is aggrieved by the decision, the provisions of Rule 9 (2) of the Rules apply in referring the matter to a panel of the judges. The applicant stated further that the law does not provide to a party the right to raise the Preliminary Objection on a reference case to a panel of three judges appointed by the Principal Judge. That is why there is no such citation of the law by the respondents. In the absence of such citation the matter is rendered incompetent for 4 failure to properly move the court. As such the raised objection should be overruled and the application should be ordered to proceed. In a short rejoinder Mr. Abubakar reiterated his position that in deciding the matter, Hon. Kihio, J found the same to have contravened Section 6 (e) of the Basic Rights and Duties Enforcement Act. The court (Kihio, J) did not declare the petition frivolous or vexatious which could be the basis for invoking the provisions of Rule 9 (2) of the Rules in referring the matter to a panel of three judges. As to citation of the provision of law under which the Preliminary Objection is brought Mr. Abubakar, submitted that in their notice of the preliminary object they have referred to Rule 9 (2) of the Rules as the basis for the objection. He prays the court for an order striking out the matter. That is all from the parties. Going by the records I find it is not disputed that on 17/6/2016, this Court (Kihio, J) struck out the Applicant's petition brought under the provisions of the Basic Rights and Duties Enforcement challenging violations of Articles 4, 8, 13, 21, 26, 64, (1) and (5) and 98 of the Constitution of the United Republic of Tanzania. In determining the matter Hon. Kihio, J was acting in terms of Rule 7 (2) of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules 2014 in that, he as a single judge was dealing with a Preliminary Objection raised by the respondents challenging the Jurisdiction of the Court. In my view any party aggrieved by the decision of a single judge in Preliminary Objection raised in a petition like that instituted by the applicant has the right to challenge. There are several was by which such a decision can be challenged. Those are: an appeal to the Court of Appeal of Tanzania, Revision of the order again brought from the Court of Appeal, Review or by Reference of the decision to a panel of three judges. When it comes to the reference of the decision to a panel of three judges, that is governed by Rule 9 (2) of the Rules above which reads as follows: "Where the judge decides that the petition is vexatious or frivolous, any party aggrieved by that decision may refer the matter to a panel of three judges." 5 As it was rightly posed as an issue by the Applicant the question to be answered here is whether the applicant's matter deserved to be referred to the panel of three judges. I have considered the provisions of Rule 9 (2) of the Rules reproduced herein above. My humble understanding is that not all decisions made by a single judge determining preliminary matters in an application challenging violations of the Articles of the State Constitution can be referred to a panel of three judges. Rule 9 (2) of the Rules provides for limitations of decisions that can be referred to the panel of three judges. It is only where the judge concludes that the petition is vexatious or frivolous; any party aggrieved by that decision has the right to refer the matter to a panel of three judges. I have shown here in above that among the points of law pleaded by the respondents as the basis for the preliminary objection was that the application was vague, embarrassing, frivolous and vexatious. The court, however, did not decide that the petition was vexatious or frivolous. It decided it on ground that the same was incompetent for being supported by an incurably defective affidavit and for contravening the provisions of Section 6 (e) of the Basic Rights and Duties Enforcement Act. Under such circumstances, although the petitioner/applicant had the rights to challenge the decision he could do that by other ways than by Reference purporting to do so under Rule 9 (2) of the Rules. I will therefore find the objections as raised in favour of the Respondent that this application offends the provisions of Rule 9 (2) of the Rules. As such the same is incompetent and is therefore struck out with costs. Dated at Dar es Salaam this 28th of December, 2016. E.~~~:~a> JUDGE 28/12/2016 6 Date: 28/12/2016 Coram: E. J. Mkasimongwa, J For the Applicant: Present in person For the Respondent: Mr. Abubakar (SSA) CC: Court: Ruling delivered in Chambers this 28 th of December, 2016 in the presence of Mr. Abubakar, SSA for the Respondents and of the Applicant in person. Right of appeal is fully explained. E.Q~. JUDGE 28/12/2016 7