EMMANUEL KIHAKO VS CHAMA CHA WALIMU NEW

IN THE HIGH COURT OFTANZANIA (MAIN REGISTRY)

AT DODOMA MISCELLANEOUS CIVIL CAUSE N077109/2024 EMMANUELA.KIHAKO 1st APPLICANT MATUKU M. MUGETA 2nd APPLICANT

VERSUS

CHAMA CHAWAALIMU RESPONDENT

RULING 22ndApril, & 9th May, 2024 Kagomba, 1 This is a ruling on a preliminary objection raised by the respondent against the applicants' application for leave to apply for orders of certiorari and mandamus. The applicants' ultimate desire is to challenge the meeting, agenda, proceedings and resolutions of the national council of the respondent held in Dodoma between 15th and 17th February, 2024. They are not happy with the deliberations on’ the question of leave without pay of the then respondent's General Secretary, one Maganga M. Japhet. They are also not happy with.the respondent's:resolutiontereview=some^previous resolutions of the said council. The applicants are also desirous to challenge the decision of the respondent's natiOnal council passed on 18th June, 2023. To the applicants' mind, the addition of the above agenda in the impugned meetinq was done in_ contravention of the constitution and regulations of the respondent, and violated the principles of natural justice. The specific - concerns that-prompted the applicants to file their application for leave are; denial of right to be heard on part of the said General Secretary; denying the respondent's national council an opportunity to prepare and propose the agenda which were added during the meeting; the chairperson turning herself into a judge of her own cause; bias on part of the chairperson; illegalities

pertaining to the conduct of the impugned meeting as well as ultra i///*esacts regarding the same. However, as intimated~above, before “the~leave~ application can be heard, the court is confronted with five points of law,1n~this preliminary objecti on,tothe effect thatT 1. The applicants have no locus standi to pursue this application. 2 :I - n*his"application- is: bad inr.law;=for. being :filed-prem aturelyibefore ‘exhaustinginternahrem edies^heneesthiS'+lonourableG ourt'laeks: jurisdictionto try J tr 3 .-iF h e a p p lic a tio m d o e s n o t- d is c I o s e ith e ic a u s e - G f a c tio n -a g a in s t th e re sp o n d e n t. -As lh^state09enfeis=bad“indawifor^eontainii3f=a^defeGti«ea/erifi€a1jGn clause. 5 ~ r AffidavitSEinrSuppG rt-of£thezappliG atiG n-are^ defeG tivector c o n ta in in g a rg u m e n ts, c o n clu sio n an d e x tra n e o u s m atte rs. Toargue-the:above-points/:Mr.-George_Vedasto-and-Mr-.Justus-Magezi, both learned advocates represented the respondent, while Mr. Elias Machibya, also a learned advocate, appeared for the applicants. With regard to the first limb of the objection, the contention by Mr. Vedasto is that while the law recognizes that only a person whose rights or interests have been interfered with has locus standi to sue, the applicants have not shown, in their affidavits, possession of such a standing. The decisions of the Court of Appeal in

Chama cha Wafanyakazi Mahotelini na Migahawa Zanzibar vs. Kaimu Mrajis wa Vyama vya Wafanyakazi na Waajiri ZanzibarpGivil.Appeal-No.“300 of -2019 and in Peter Mpalanzi vs. Christina Mbaruka, Civil Appeal No. 153 of 2019, were referred to for definition of locus standi and what it takes to have it. Mr. Vedasto buttressed-his contention=by making-further-reference-to the case of the Gervas Masome Kurwa vs. The Returning Officer & Others [T9'96]T.CR 320. Expounding the first point of objection, Mr. Vedasto itemized the following three aspects of the applicants' discontentment, as can be decerned-from-their-affidavits,-and-how-they-delude-the-applicants-to/s standL Firstly; the advice of-the respondent's national, council, to Mr. Maganga M. Japhet requiring him to submit a letter from his employer showing that he was granted leave without pay, if he were to continue to be recognized as the General Secretary of the respondent. On this point, it is Mr. Vedasto's argument that since the applicants are not the said Maganga M. Japhet, they cannot lawfully claim to have locus standi in the matter that concerned him. Secondly; the- postponement of -the- celebration of the 30th anniversary of the respondent which were to be.held in Mwanza, in 2023 allegedly^donebytherespondent'snationaUcouncilrOntfiisdiscontentment, it is Mr-Vedasto(s contention.:that:the eelebrations:were:postponed‘way

:back in 2023/-and"the~said^national~council-only==approved' the report .on_the postponement;-He wondered~howsuch anapprovakotpostponement-was a concern to the applicants, so as-to assume locus standiover-thenriatter. Thirdly, that some of the respondent's members who had disciplinary penalties were already pardoned,' but the- impugned meeting resolved to review.such an amnesty^On-this discontentment,-Mr.iVedasto'sargument-is -that-.the. appliGants^affidavit-fell-short- of-showing^how that-resolution breached;theicrights^nd:interestsiforithemitoihave^bci/5-5Za/7£7iC He wound up his submission on this first limb of the objection by praying the court to dismiss the application, with costs, for applicants' failure to establish their locus standi in this matter. On the second ground of the objection concerning prematurity of the application and non-exhaustion of internal remedies, two arguments were raised by Mr. Yedasto. Firstly, that since the dispute involves the respondent who is-a-registered organization, and concerns non-compliance with its constitution, it is the Labour Court which has jurisdiction to entertain such a matter;underseetion;53(l):ofethe Employment and Labour-Relations Act, 2004 (ELRA)rAnd:secondly,-according to the provision ofsection:53(2) of ELRA, before the :Labour Court can hear an application of this nature, it shall satisfy itself-_that the-organization’s

:internaU procedures have been exhausted. According to Mr. Vedasto, the affidavits in support of the application do not show that the applicants exhausted the respondent's internal procedures before filing their application. The decisions of this Court in Joram Meagie Lukumay vs. Minister of Constitution and Legal Affairs&-Hon.AttorneyGeneral,Misc.-GivilCause No.—24 ofr202l7 and Parin A.A Jaffer and Another vs. Abdulrasul Ahmed Jaffer and Two Others [1996] T.L.R 110 were referred to in this regard. It was Mr. Vedasto's further argument that according to article 22.1 (a) of theTespondent'siconstitutionrthe.generalTneeting is the-top decision' making organ:of:the:respondent,~~and :aecording'to:article:7'.l“(c)of the-said constitution, every-member has a right:to~challengeTadecision in therhigher committee of-therespondent-Basing-on such-provisions,-and-upon revisiting the averments in paragraph 25 and 26 of Mr. Japhet's affidavit where he depones that:he;intended:to:challenge;the~decision ofthenational couneiHn the general-assembly,~Mr.~Vedasto-s -view .is .twofold,"-one;- since the impugned-decision~was~made-by^the-respondent's~national council, =the applicants could:Still challenge the samerat the general assembly. Two; the aggrievedperson,who3isrMr^|Vlaganga"Mrdaphet>knows?clearlyiwhere-tb challengeithelimpugned decision, hence there is still a room to settle the matter within

the respondent's dispute settlement mechanism. -;It:is=IVIr^Vedastors-conclusion,-on. this .point, that-- the.application's :been filed-in~a wrong Court and prematurely, hence this Court is denied ijurisdictionnTosupporthisxontention^hecitedanotherdecisionofthisCourt in Suleiman M. Komba v. Chama cha Waalimu Tanzania, Misc. Application No. 118 of 2022. Turning to the third point of the objection concerning non-disclosure of a cause of action, Mr. Vedasto contends that no facts have been deponed by the applicants to establish their cause of action against the respondent, as they have not shown anywhere how the applicants have been affected by the actions -of—the-respondent. Giting-the case -of -John-Mwombeki Byombalirwa vs Agence Maritime International (Tanzania) Ltd. [1983]-vT;L:.R^L,. as to: what causeofactiomentails^Mr. Vedasto prays the Court to:strikeout-the;applieation^based=onrthis-ground. Mr. Justus Magezi, submitted on the remaining two points of objections for the respondent. Before doing that, he had some addition to make to bolster the submission made by his colleague on applicants' lack of cause of .aetionr According to him, paragraphs 22 and 24 of the affidavit of the Mr. Emmanuel A. Kihako, and paragraph 23 and 25 of the affidavit of Mr. Matuku M. Mugeta, reveal that the two applicants have been moved by a threat of loss of their membership in the respondent

organization. He contends that since such threats came from Mr. Maganga M. Japhet, then the applicants ought to have proceeded against the said Mr. Japhet and not the respondent who had done nothing against their membership. Turning to the fourth point of the preliminary objection, Mr. Magezi submitted-that^the^verification-clause in the^. statement .supporting .the application:is-defective-and:bad"inElaw£on-accountof--beingverified.by three applicants-while, in this application, there are only two applicants. He named the three signatories who verified the said statement as Maganga M. Japhet, 8 Matuku M;.Mugetaiand"Emanuel?Ar Kihakoa/ pointing out“that-the:first one was" not.among:the,-appIieantsr It is Mr. Magezi's contention that since the purpose of a verification clause is to give authenticity to the averments therein, when the same is defective, even what is averred cannot be authentic. He therefore urged this Gourt-strikeout-theTapplicationTzWith-costSi Lastly, on the fifth point of objection, Mr. Magezi submitted that the affidavits in support of the application are defective for containing arguments, conclusions and extraneous matters. Specific words are; "as such" and "since" which, according to Mr. Magezi, connote conclusions. He also blamed the reading: "I request the general meeting to terminate the membership of all members of the national council of the

respondent for violation of the constitution". According to him, that is an opinion. The learned counsel also blamed the statement that: "If the general meeting finds that they violated the constitution, their membership should be terminated", for expressing deponent's opinion, and not a fact. Mr. Magezi further drew Court's attention to paragraphs 7, 8, 10, 15, 16,18, 22 and 23 of Mr. Emmanuel Kihako's affidavit as well as paragraphs 7,9,15^167l7>49>23iand^24sof:the, affidavitnof Mr^Matuku M.-Mugetar, His. contention^isrthat'allrtheserparagraphs:"eontain legal argumentS;condusion, and-extraneoussmatters-contrary-'to-the=provision?ofcOrder:XIX-rule-3(4^rof the Civil:Procedure:Code:(CPC)5[Gap;33-R;ET2029]-andsection 62(1)(a),-(b)- (c) and;(d):of:the:Law of Evidence Act:[Gap 6 R-.E 2022]-. He wound up his submission by citing the famous case of Uganda vs. Commissioner of Prisons, Ex-parte Matovu [1966] E.A 514 for a contention thatoaffidavifeshould .onlyxonstituteifacts deposed on:-one'stown . knowledge^Hezprayedzthezcourtztorfindzmeritsdnztheififthzlimbzofithe: preliminaryobjection,:anddismissthe-:applicationwith-costs. Responding to the above submissions, Mr. Elias Machibya, learned Advocate for the applicants started by alerting the court that most of the arguments made by his counterparts were not on pure points of law. He cited the celebrated^case of-Mukisa Biscuits

Manufacturing Company Ltd. vs.JA/estendDistributorsLtd.[1969] E.A396iforacontentionthat a preliminaryrobjection should“be^based~on pure points of law.:.He'faulted the objection on-locus ste/^/ and-for cause-of action for-bringing up matters which should be considered when determining the.ieave application as per the case of-Halima James Mdee &18 Othersvs.RegisteredTrustees of Chama GhaiDemokrasia:na Maendeleo^Miscr €ivil Cause No. 27 of 2022, High Court Main Registry at DSM. Replying-tothe-specifiG-argument-.thatthe-applicantsdid-notshowhow-' theywereaffected^by^hedeeisiomopadvise^to^Mr^Maganga^Mr^Japhetto submitithe letter granting him leave without pay, Mr. Machibya contended that such a call was tantamount to asking for a proof, which does not arise when arguing points of law. He, nevertheless, added that the affidavits of the applicants clearly showed that they have interests.in this.matter. Clarifying on the above, the learned counsel clung to the facts, as deponed, that the first applicant is a member of the respondent; a leader at the district and regional level who participated in the meeting of the national council of the respondent. According to him, the applicants narrated the flaws committed during the meeting, hence they possess a vast range of interests in the application. Toraugment=his:contention-the:learned:counseI:cited:the-caseofrThe Legal and Human Rights

Centre & 2 Others vs. The Honourable Attorney General [2006] T.L.R 240 for a contention that locus standi is ii vested=imievery,;person “whether^individual orcorporate whose interest have__ been violated; Replying "to his counterpart's “arguments in respect of the postponement of the 30^anniversary7 Mr“ Machibya-found no point'ofHaw wortharguing-about^According'to-himrhis-clients^have-indieated-in^their affidavits=the=flam=committed=during^thei-impugned meeting such as introduction of the new agenda items and biasness on part of the chairperson, hence the applicants have locus standi. As.regardsi:o_Mr.i/edasto's arguments. pertaining_to_the_respondent's decision to review its previous decision, it is Mr. Machibya's reply that his clients were not given even an opportunity to speak, hence they have interest in the matter. According to him, the fact that one of the points of objection requires the applicants to exhaust local remedies, implies that the applicants have locus standi. He prayed the Court to dismiss the first point of preliminary objection for being misconceived. Replying to-^the submissionTon^the.=second-point of the-preliminary objection, Mr. Machibya firstly prayed the Court to note that Mr. Vedasto had introduced a new ground of objection when he cited the provision of section 12 53(1) oflELRA^to. argue ithat-:jurisdiction-:onithis-:matten

lies^iruthe.Labour Gourt:.:He -submitted :that this point:was-notrenvisaged: in :.the=noticerof preliminatY^objection“ For.-thisreason7“ he^opted^to=confine-himselfto.the questteofcnon-exhaustion of local, remedies; According to Mr. Machibya, the contention that the applicants had a recoursetOrthe-generakassembly^unde^theErespondenfc'SzGonstitutidEvdid not consider the.fact thatunderthe same constitution,: the power to interpret the constitution is ^vested--in the nationahcouncil and notrthe general assembly. Hence, according to him, that contention is unfounded. He emphasized that his clients came to this Court to seek redress against the conduct of the meeting, which is not appealable, and not the merit of the decision made. For this reason, he distinguished the cases of Joram; Jaffar and Suleiman Komba for being inapplicable to the current situationrHe~also~cited‘the case of Omary Shaban Nyambu vs. Chief of DefenceForces&2 0thers,Misc. Application No, 35 CF 64 of 2023 for a contention-that _a preliminary-objection-7thatTan~appiicationrwas .filed prematurely-was considered-not-a pure point of law-and the Court dismissed that objection. He beseeched the Court to-dismiss the objection with costs. Onthethirdground:of=objeeti6n-that:thie^application;cJoes^nofedisclose a cause‘ 0feaetionpMr77 Machibyazconcededito-the-principle.ofJaw stated-in the-cited case=of Mwombeki (supra),

-but differed with the assertion that his clients' affidavits do not disclose the cause of action. According to him, the deponed facts that the chairperson had interest in the added agenda; the applicants were not allowed to speak, and the secretary of the meeting was arrested in the meeting signify plicants have a cause of action. Thedearned-counsekdoesinot-buy-the. additionaLsubmission by_ Mr; Magezi that the applicants were threatened by Maganga M. Japhet. According to him, that is Mr. Magezi's own opinion. Citing the case of Musanga Ngandwa vs. Chief Joseph Wanzagi & 8 others [2006] T.L.R 351, Mr. Machibya was of the view that since a cause of action is the sum total of those allegations upon which the right to relief claimedrisfounded'hisxlientsidopossessithe same. He prayed the court to dismiss this third ground of objection for lacking merits. As to the fourth ground of the preliminary objection which impugns the statement supporting the application for being bad in law on account of its defectivelattestatiomcIause^Mr^Machibya's^reply^was^firstly,-to criticize the objection for-non-citation of any law allegedly breached. However, he conceded that the verification clause of the said statement-is-signed=by-three-persons,“includingthe-applicants;-Inhis^/iews, since_there?isEnorallegationzthat~the“applieants^didrnot^verify^and=sign^the statement^: theiother. person-who;

signed^therstatement7whiie notTa=party, be ignoredrintwhichxase^:he:statementiwill“be val!d, He cited:theidecision of this Court in Kiganga & Associate vs Universal Gold NL [2000] T.L.R 24, for a contention that a defective-verification clause-can-be-eured by amendment vide the overriding principle. He, therefore, deems this objection misconceived, as the error spotted is not fatal. Replying in respect to the fifth and last ground of objection, Mr. Machibya found no faults in the three affidavits filed by the applicants. In his view, the;same :contain’ non:onclusion; opinions'or extraneous, matters, as alleged~He:argues thaHn:ordento:get the context of a statement, one has to read the entire lot and not to isolate some words. According to him, words alleged to connote conclusion, were facts, and what is alleged to be an opinion is an action the deponent determined to take. He^alsoopposedtheassertion-thatiparagraphs^S, 10^15,16,18/22 :and 23 of'Emmanuel-Kihako!sraffidavifeand=paragraphs"7v'9^-15^rl6r-17;'19, '227 and -24^ o£ Mugeta'srrraffidavit—contained- arguments^ conclusions-and extraneous matters;-He criticized:his counterpart-for not showing how these cited paragraphs are bad in law. -TheElearned-counselrfoundfsolaceiin Geraas Shayo=8£Another v. Muhimbili:Universityof>lea(t(randrAllied:SC!ences:[20133TT.L:R-230 where an^affidaviticontainingrarguments-was^held-'to-be-proper

in law, hence the^Gase^of^Ex-parte MatovuLwas^inappiicabler He wound-up by-submitting that the allegations in this ground are misconceived. In his rejoinder, Mr. Vedasto-by and large-reiterated his submission in chief with regard to locus standi. To him, there is no dispute that the applicants were members and leaders in the respondent organization and who attended-.the.impugned:meeting;:but:they:have.not:demonstrated how they were7affected:in:order=toget:redress:from'the:Courtr The learned counsel concurred with the principle of law stated in vase of the Legal and Human Rights Centre case but rhymed that the applicants had not demonstrated how their interest were violated. ±6 Concerning non-attachment ofuthe decisionwhich,the:applicants-want the court to-quashrand-setaside/MrrVedasto was emphatie-that that-was:a very-importanbdocument-to=be^attachedH:o-the-leave-applicationrand-the opportunity to do so was-now;- Mr. Vedasto was also critical of the argument that the applicants had locus standi merely because they were notallowed to speak at the impugned meeting. To him, this argument is incorrect as they ought to demonstrate how the decision;reached:without their opinionzhave affecteditheitinterests. Concerning Mr. Machibya abstaining from responding to the new point of objection concerning the jurisdiction of the Labour Court in this matter, Mr. Vedasto's rejoinder is that

non-reply does not change the law or make the Court blind on the provision of the law. On the contention that the final organ of the respondent to interpret the constitution is the national council of the respondent, Mr. Vedasto's rejoinder is thafethe essence of.-this-disputerisnotondnterpretation. of the respondent's constitution but addition of the agenda and conduct of the impugned meeting. He was emphatic that the application was filed prematurely. !? ■ Mr. -Vedastcx refuted =the allegatidn-that.the chairman.had interestJn the newly7added:agenda,-arguing;that-the:applicantsLaffidavits do not show which are those interests. While-conceding=thafcthe-affidavits=contain~facts^of-whatvtranspired during the meeting, the: same; do: not show :how the: applicants were affected^ccordingEtoiiyir^Vedasto,=ithe!samezSilenGe^in-the:affidavitSiCan:be observed with:regards to-the:arrest of-the:General Secretary,. hence:no cause ofaction:was:disclosedr On his part, Mr. Magezi was emphatic that the 1st, 2nd and 3rd points of objection are pure points of law, because they are from the facts pleaded by the applicants. He reiterated his submission in chief with regards to the third point of objection, adding that the applicants did not complain anywhere until when Mr. Maganga M. Japhet threatened them to request termination of their membership. Again,, the learned counsel reiterated his

submission in chief with regard to the 4th point of objection. He explained that verification in the statement has been done by non-existing party or parties who are not the 18 applicants. Thatthe:statemenbisverified by.Mn.iMaganga; M.Japhet.who is referred-to-as:the:first:applieant-in the verificationidause, but-was:in fact not a party. Also,-heclarified further thatthe.statement is^verified by Emmanuel Kihako-who=is:identified as^a^third applicantwhile in-this case there is no a third applicant; The learned=counseliwas-emphatic-rthafeverifieati00ioffpleadings=isia” _ matter of-iaw; the verificationdause is defective and=the3pplication isinvalid- for such defect is;not curable: Regarding the fifth point of objection, he aiso maintained his submission in chief and prayed the Court to find merit in all the five points of objections, and proceed to dismiss-the application with costs. The above represent the depth of the rival submissions whereby five main issues emerge for determination as follows: - 1.- Whether—the-appiicants --have no -lo cu s standi to pursue this application.

2. Whether the application is bad in law for being filed prematurely before exhausting internal remedies, hence denying this Court jurisdiction to try it. 19 3. Whether^theivapplication^does ;not:-disclose,:the^cause_of“action againstrtherrespondent; 4. Whether the statem ents bad -in Jaw for containing ,a-defective verification clause.

5. Whether the affidavits in support of the application are defective for containing arguments, conclusion and extraneous matters. A-glance at:the:list:above:reveals that:the:firstrthree-issues touch-on* theTjurisdictioniof;the:Court—It's^myiview-however^hat-determination-of the second issue needs to be prioritized in so far as it directly questions the jurisdiction of this Court. It is trite law that where jurisdiction of the court is put to question, such an issue or issues need be disposed first. The reason is, if the Court reaches a decision without having requisite jurisdiction, the same will be a nullity. The importance of determining jurisdiction as a priority was well-articulated by the Court of Appeal in Fanuel Mantiri Ng'unda vs. Herman M. Ng'unda & others, Civil Appeal No. 8 of 1995, where it stated: "The auestion o fjurisdiction for any court is basic; it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature..., (T)he question o f jurisdiction is so fundamental that courts m ust as a m atter 20 o f practice, on,the faceo fJt be.certain andassured of, their jurisdictional- position at the commencement of- the tria L..It is risky and unsafe for the court to proceed on an assumptidh that~zourt has jurisdiction to adjudicate upon the case" It is also the general position of the law, as stated by this Court in Parin A.A

Jaffar & Another vs. Abdulrasul Ahmed Jaffar and Two Others [1996] T.L.R 110, that: ‘ ''W here~ the ~~iaw provides extra-judicial machinery alongside a ju d icial one for resolving a certain cause, the extra-judiciai machinery should, in general, be exhausted before recourse is had to the ju d icial process. This position was long stated in an English case of R. v. Inland Revenue Commissioner ex p. Preston [1985] A.C 835, at 852 as per Lord Templeman, that judicial review should not be granted where an alternative remedy is available. It is with these established legal principles in mind that I start determining the second issue. When submitting on prematurity of the application and non­ exhaustion of interna! remedies, Mr. Vedasto raised two arguments: Firstly, 21 that it-ris thezLabour^Gourt j/vhich hasjurisdietion, tozdetermine.this matter. He^referredrto-thezprovisiolnVGfrseetionrSSCl^zdfcELRAT-This.-ground-was quickly, attacked by Mr. Machibya.for-being an.alien groundaltogether, as it wasrnofeFaisedsJnsthe-notice-of-preliminany-objeetionr^I-agpee-with^Mr. Machibya'sview^This ground was introduced as a surprise to the applicants/ and the Court cannot condone such a surprise for it would impair the principle of fair hearing. The second argument raised by Mr. Vedasto, was to the effect that the applicants did not demonstrate in their affidavits if they exhausted the internal

dispute-settlement procedures of the respondent organization. In my perusal of the respondent's constitution, which is annexed to the respondent's counter affidavit, I realized that article 38 provides a room for the applicants to engage the national council of the respondent for determination of their grievances. I shall demonstrate hereunder. Reading witlrcleareyes the affidavits filed in support of the application, and while momentarily switching off my mind from considering the objection that they contain arguments, conclusion, extraneous matters and defective attestation clause, I could easily realize that the epicenter of this dispute lies 22 in what was_done~or.-not done-by-the. chairperson .of:the_meeting. of the national councikqfrtherespondent. Ail the three deponents have minced no words on how the said chairperson mishandled the meeting. She Js repeatedly accusednof^being biased against Mr. Maganga M. Japhet; coming with letters-toithe^meeting bearing^:her=own-:agenda;-=all0wing-the addition^ two new agendajjnconstitutionally^allowing^somerof the-members to speak while denying such opportunity to other members including all the deponents; causing chaos in the meeting by showing up her fist in a combatant manner; arranging police to arrest Mr. Maganga and other members opposing her; chairing a session that was deliberating on accusation of postponement of the 30th

anniversary celebration despite being asked to recuse herself, and the list is long. She is simply portrayed as the source of this dispute that has bred resolutions being challenged. Now, upon perusal of the respondent's constitution attached to the respondent's counter affidavit, two things can be observed relevant to the matter at hand..Firstly, there are structured meetings with different levels of authority,_the_topjnost being_the generaLassembly^or"Mkutano Mkuu wa Taifd'. This assembly has powers under article 23.1 (h) of the said constitution, to remove from office leaders found guilty of some misconducts, o f course subject to affording them opportunity to be heard. Secondly; there is a dispute settlement mechanism in case of a dispute involving members or employees of the respondent. This dispute settlement mechanism is vividly provided for under article 38, which reads as follows: - "38. UTATUZIW A M IGOGORO Jkiwa kutakuwepo ha// isiyo ya mae/ewano kati ya m w ajiri na mwanachama/mfanyakazi, w anacham a kw a wanacham a/wafanyakazi. kwa wafanyakazLngazi ya uongozi inayohusika kat/ka eneo la mgogoro itachukua hatua z/nazostahi/i kwa kuzingatia taratibu za kutatua migogoro ambazo zimep/tishwa na Baraza la Taifa kwenye Kanuni za Chama" [Emphasis added]. The above provision can literary be translated thus: I f :there shalharise misunderstanding-betweerr employer

and-a member/employee, am ong-m em bers / employee or between employees and other employees, the leadership level concerned shall take appropriate measures to resolve that dispute by observing procedures for dispute settlem ent approved by 24 nationaLcounciLunder the, Organization'. Regulations. [Emphasis added]. . Since the grievances boilingjn the hearts of the applicants, who have deponecko be members of the respondent^were caused by the chairperson who is also a member constitutionally^nd thetop leader.of the .respondent organization,- ancksince-the general-assembly has- power to remove from office leaders for misconduct, and since the totality of the complaints raised in-this application-are to the effect that the chairperson breached the constitution and-abused her powers/ it looks naturaL-and-mandatory^that- the applicants should haveHrst;pursued their grievances through-internal dispute settlement mechanism established under the respondent's constitution before knocking the doors of this Court for redress. In line with the powers of the general assembly stated above, article 23.2 (h) of the respondent's constitution provides the initial avenue, vide the national council, for those who have grievances against the leaders of the respondent. This article empowers the national council as follows: "(h) kuchukua hatua za kinidhamu dhidi ya viongozi wa kitaifa wanaochaguiiwa

na Mkutano Mkuu, h ii ikiwa n i pamoja na kuonya na kuwasimamisha uongozi wakati ukisubiriwa uamuzi 25 wa MkutanoMkuu waJ'aifa.na kutoa mapendekezo.kwa Mkutano Mkuu wa. Taifa kwa. uamuzi wa mwisho". Theabove provision can literary, be translated .thus; (h) to take disciplinary measures against national leaders appointed by the General Assembly, including to reprimand and to suspend their leadership pending decision o f the General Assem bly and to m ake. recommendation to the Assem bly for final decision" It.can.be garnered from the above-quoted provision that doors were still open for the applicants to channel theiY grievances through mechanism established under the constitution of their organization. Whether they would triumph is a different matter. Under article 7.2 (g) of the same constitution, it is the duty of every member of the respondent to protect, propagate and defend their organization. With the allegation leveled against the chairperson, if supported by evidence, nothing could stand along the way to deny the applicants access to the top most organ of the respondent organization to ensure measures are taken against the alleged culprit. That said, I concur with Mr. Vedasto that this application has been filed prematurely before exhaustion of the internal remedies provided for under 26 the constitution of--the. respondent. As already, .intimated..above,

the exhausting-iocal^remedies-is-ra^legalirequirement"which=setsinmotionthe jurisdiction of this Court. (See the decisions of this Court in Joram Meagie Lukumay vs. Minister of Constitution and Legal Affairs & Hon. Attorney General, Misc. Civil Cause No. 24 of 2021, and Parin A.A Jaffer and Another vs. Abdulrasul Ahmed Jaffer and Two Others [1996] T.L.R 110). As such, the second ground of the preliminary objection is sustained, as"Ianswer the secondlssueln the affirmative. For—the-above- reasonr-this-Court-has-no-jurisdiction to-try- this application. Accordingly, the application is struck out. This determination disposes of the entire application. Considering that the applicants are members of the respondent, in honoring such a relationship, I make no order as to costs. Dated at Dodoma this 9th day of May, 2024.