RULING MATHER NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISC. CIVIL APPLICATION NO. 21108 OF 2024 In the matter of Application for extension of time to apply for leave to Apply for Orders of Mandamus BETWEEN EX. F. 6673 PC MATHEW ANTHONY MLEWA.......................1st APPLICANT EX. G. 2917 PC DAVID HATSON MWASHAMBWA............... 2nd APPLICANT EX. G. 3731 HAJI SAID MSIRA..........................................3rd APPLICANT VERSUS INSPECTOR GENERAL OF POLICE.....................................1st RESPONDENT THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA.......................................................................2nd RESPONDENT RULING 11.12.2024 & 13.12.2024. U.E. MADEHA. J The 1st, 2nd, and 3rd applicants, namely EX.F.6673 PC Mathew Anthony Mlewa and his colleagues, EX.G.2917 PC David Hatson Mwashambwa and EX.G.3731 Haji Said Msira, seeking an extension of time to file for leave to file an application for an Order of Mandamus to compel the Inspector General of Police to provide the Regional Police Commander decision. i Interestingly, it is noted that, EX.F.6673 PC Mathew Anthony Mlewa had already successfully applied for leave for judicial review and filed the judicial review both at High Court of Tanzania at Dodoma Sub­ registry. However, the outcome of this application lacked merit and was subsequently dismissed. Before the hearing of the application, the respondents, through the State's Attorney, raised a preliminary objection with two key points, that; - 1. The application by the first applicant is untenable, frivolous, vexatious, and an abuse o f court process as the applied writ by the first applicant is already determined by the High Court o f Tanzania, Dodoma District Registry at Dodoma in Miscelleous Cause No. 01. o f 2023 before Honorable Judge Khalfan on 2nd, May2024. 2. The present application by the first application is untenable in law; he is ridding two horses at the same time as there is pending notice of appeal challenging the decision in miscelleous cause No. 01 o f2023. At the hearing of the preliminary objection, the applicant was represented by Ms. Sophia Gabriel, a learned advocate, while the respondent was represented by Jenipher Kaaya, learned Senior State Attorney, who was assisted by Mr. Mkama Msaiama, learned State Attorney. The parties presented their arguments on the preliminary objection orally. Addressing the first ground of objection, which centres on the application by the first applicant being untenable, frivolous, vexatious, and an abuse of court process, Mr. Mkama argued that the first applicant's case for leave and judicial review had already been determined by the High Court of Tanzania, Dodoma Sub-Registry, in Miscellaneous Cause No. 01 of 2023. This decision was delivered on 2nd May, 2024 by Honourable Judge Khalfan. He contended that the current application is invalid and constitutes an abuse of the court's process, as the applicant seeks to revisit a matter that has already been conclusively decided. Mr. Mkama emphasized that returning to court under such circumstances undermines judicial processes and renders the application frivolous and vexatious. He further pointed out that the request for an extension of time contradicts the prior decision and lacks merit. Consequently, he prayed for the court to declare the whole application incompetent and an abuse of its process. Regarding the second objection, Mr. Mkama asserted that the first applicant's application is invalid as he is pursuing parallel proceedings. He argued that once a case is dismissed, the proper remedy is to appeal to the Court of Appeal rather than re-applying to the same court. The first applicant has already filed a notice of appeal, making this application redundant. Citing Hector Sequiraa v. Serengeti Breweries Ltd, civil application number 395 of 2019, he emphasized that a party cannot file similar applications simultaneously in the same court. Additionally, pursuing the same matter in both the Court of Appeal and this court constitutes an abuse of the court process. Referring to Jonson Amiri Galuma v. Attorney General, Appeal number 206 of 2018 he highlighted that a litigant cannot seek an extension of time after a dismissal. Mr. Mkama also pointed out that the affidavit is collectively sworn, further rendering the whole application incompetent. He, therefore, prayed for the application to be struck out due to its procedural irregularities and abuse of process. Ms. Sophia, counsel for the applicant, countered the respondent's submissions by clarifying the legal definition of a preliminary objection as established in the landmark case of Mukisa Biscuit Manufacturing Company v. West End Distributors Limited (1990) E.A. She emphasized that a preliminary objection must be purely a point of law, assumed to accept all pleaded facts as true, without requiring evidence or judicial discretion to ascertain facts. She argued that the respondent's objections lack legal merit, as they fail to specify any law violated and cannot resolve the substantive matter. Ms. Sophia further clarified that the present application differs from the earlier case cited by the respondent, as it involves distinct applicants and seeks orders of mandamus against a different authority. She explained that the two applications address separate decisions from separate authorities, and thus, the claim of procedural abuse is baseless. Conclusively, she maintained that assessing the respondent's objection requires reviewing factual documents, contrary to the principle outlined in Mukisa Biscuit Regarding the second ground, which asserts that the first applicant is attempting to "ride two horses at the same time," it was argued that when there is a pending notice of appeal, there is no such thing as riding two horses simultaneously. What is required is a proceeding and a decision. Even upon reviewing the counter affidavit, there is no paragraph that confirms the police inspector was provided with this information. A notice of appeal is not an appeal itself, and determining it requires proper records. Furthermore, while there is a request to strike out this application, it is being made against the first applicant. It is unusual to strike out the entire application based solely on the first applicant's position. Since the second and third applicants were not parties to the case, the objection should be dismissed with costs. In summary, these objections are not legally valid, and they do not conclude the matter of this application. Ms. Jenipher Kaaya, in her rejoinder submission, referenced the Court of Appeal's ruling in Ally Shabani and 48 others v. Tanroads and another/ Civil Appeal No. 261 of 2020 CAT Tanga, which states that preliminary objections must be .based on facts in the pleadings, not abstract principles. Kaaya emphasized that the applicant's advocate failed to distinguish the preliminary objections raised in the Court of Appeal. She further argued that the unlawful termination matter had already been decided, and the case should be struck out due to its unlawful refiling. Lastly, she requested the application be struck out with costs, as it was intended to waste the court's time. Having heard the rival submissions of the parties on the preliminary objections, the issues at hand is whether the application is untenable, frivolous, vexatious, and an abuse of court process, and whether the applicant is ridding two horses at the same time by filling notice of appeal challenging out the decision in miscellaneous cause number 1 of 2023 and this application at hand. It is a well settled principle that the preliminary objections must meet the test of a famous case of Mukisa Biscuits (supra), which defines what a preliminary objection is and also provides when it can be raised and when it should not be raised. Mukisa Biscuit case has now been part and parcel of jurisprudence of this country that an objection to be termed as real preliminary objection must be on a pure point of law and 6 not of fact. For ease of reference, I quote the position set out in Mukisa Biscuits case as hereunder: "A preliminary objection is in the nature o f what used to be a demurrer. It raises a pure point ofiaw which if argued on the assumption that aii the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."(Emphasis added). Thus, in this ruling, I will be guided by the principles laid down in that Mukisa Biscuits case. In dealing with the 1st preliminary objection, I have first observed that it is not in dispute that before this court the applicants are seeking for extension of time to file leave for judicial review. Mr. Mkama, argued the issued that the first applicant's application was untenable, frivolous, vexatious, and an abuse of the court process. He highlighted that the matter had already been determined by the High Court of Tanzania, Dodoma Sub-Registry, in Miscellaneous Cause No. 01 of 2023, with a decision delivered by Honourable Judge Khalfan on 2nd May, 2024. According to Mr. Mkama, the current application sought to revisit an issue that had been conclusively decided, thereby undermining the judicial process. Consequently, he urged the court to declare the application incompetent. On contrary, Ms. Sophia illuminated that the present application was dissimilar, as it included additional applicants and sought different reliefs against different authorities. She emphasized that the objections failed to demonstrate any violation of law and misrepresented the scope of the current application. Looking at the issue at hand, I concur with Mr. Mkama's position that, once a matter has been conclusively resolved by a court of competent jurisdiction, it is inappropriate to attempt to re-litigate the same issue unless new circumstances or evidence have emerged. This principle aligns with Section 9 of the Civil Procedure Act, Cap. 33 R.E. 2019, which addresses the doctrine of res judicata. Section 9 of the Civil Procedure Code provides as follows: 9." No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any o f them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court" Basically, under this doctrine, the parties are prohibited from re- agitate a matter which has been conclusively determined in a former case. The doctrine, is based on the larger public interest and is founded on two legal limbs. The first limb is the maxim nemo debet bis vexaripro una eteadem causa, which simply means that "No one ought to be tried twice for one and the same cause/ No one should be tried twice in respect to the same matter.,,)n. Its second limb is a public policy that there ought to be an end to the same litigation. It is, therefore overriding that once a matter has been determined in a former proceeding it should not be open to parties to re-agitate the matter again and again. While dealing with this principle in Peniel Lotta vs Gabriel Tanaki and others Civil Appeal No. 61 of 99 (CAT at Arusha), the Court of Appeal emphatically stated the following with regard to the principle of resjudicata and its rationale: "The doctrine o f res judicata is provided for in S. 9 of the CPC, 1966. Its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a court o f competent jurisdiction in the subject matter o f the suit. " Undeniably, the first applicant's application for leave to apply for judicial review was already granted and also the judicial review was considered and dismissed by the High Court of Tanzania Dodoma sub­ registry in Miscellaneous Cause No. 01 of 2023. No new facts or 9 circumstances have been advanced by the first applicant to justify a re­ opening of the matter. This Court, therefore, finds that the first applicant's current application is indeed an abuse of the court's process and is frivolous. Based on the above and considering that the former suit was determined by High Court of Tanzania, Dodoma Sub-registry which is the Court of competent jurisdiction, I sustain the first preliminary objection for the first applicant application being res judicata to Miscellaneous Cause No. 01 of 2023. The second and third applicants, EX.G.2917 PC David Hatson Mwashambwa and EX.G.3731 Haji Said Msira, are not affected by the issue of resjudicata as it does not pertain to them. Consequently, their application remains valid and will proceed. In addressing the second issue of whether the first applicant rides two horses at the same time by filling Miscellaneous Cause number 1 of 2023 and this application for extension of time within which he can file an application for leave for an order of mandamus to compel the Inspector General of the police Dodoma to supply to him charge sheet, proceedings and Judgement. On the second ground, Ms. Sophia maintained that a notice of appeal does not amount to pursuing parallel remedies. She argued that there was no evidence of substantive proceedings arising from the notice of appeal, and the respondents had 10 failed to establish how this constituted an abuse of process. Ms. Sophia further submitted that dismissing the entire application based on the first applicant's alleged procedural flaws would unjustly prejudice the second and third applicants, who were not parties to the previous case. The Respondent argues that the first applicant is seeking to pursue parallel proceedings, which is impermissible in law. This objection addresses the question of whether a party that has submitted a notice of appeal can also request an extension of time to file an application for judicial review in a case that is already resjudicata. Regarding the complaint that the first applicant is riding two horses at the same time, I wish to point out that the claimed notice of appeal arose from the decision of the High Court in Miscellaneous Cause No. 1 of 2023 which dismissed the application for judicial review for the first applicant. As an aggrieved party, the first applicant has an automatic right to file a notice of appeal against the High Court's decision when exercising its original jurisdiction. This right was lawfully exercised in this case. It is therefore incorrect to equate the exercise of this right with pursuing two conflicting legal actions simultaneously. While the principle of res judicata applies to the matter filed by the first applicant, it does not affect his right to file a notice of appeal. Additionally, there is no risk 11 of double jeopardy for a party exercising his legal right to file notice of appeal as provided by the law. Therefore, it is incorrect to equate the first applicant's case, filed jointly with his colleague, with pursuing conflicting actions, as the matter is clearly resjudicata for him. The respondents' interpretation of the first applicant's actions is thus flawed, as the circumstances are distinguishable. For these reasons, the second preliminary objection lacks merit and is accordingly overruled. Based on the foregoing and given that the first applicant's application is res judicata, I uphold the first preliminary objection and dismiss the application for the first applicant with costs. The second and third applicant they have sworn the same affidavit with the first (1st) applicant whose application is a res-judicator. For the sake of the second and third applicants, I overrule the points of preliminary objection and order that the affidavit be amended so as to cure the defect of swearing the same affidavit and inserting a proper verification clause. However, the cases for the second and third applicants will proceed as they are not affected by resjudicata. It is so ordered DATED “ ' >er, 2024. Delivered at Dodoma in the presence of the Applicant and Mr. Mathew Anthony Mlewa and others, the State Attorney for the Respondents this 13th day of December, 2024. Right of appeal dully explained.