RULING FANUEL ROBERT MAZZE VS CWT

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 16037 OF 2024 CASE REFERENCE NO. 202407071000016037 FANUEL ROBERT MAZZE .......................................................1ST APPLICANT LAURENT SUMUKAGHA MSHANI ..........................................2ND APPLICANT GILBERT BEATUS SANGU .....................................................3RD APPLICANT VERSUS DISTRICT EXECUTIVE DIRECTOR OF MBOZI .....................1ST RESPONDENT CHAMA CHA WALIMU TANZANIA (C.W.T) .........................2ND RESPONDENT THE ATTORNEY GENERAL ..................................................3RD RESPONDENT RULING Date of hearing: 3/9/2024 Date of ruling 8/10/2024 NONGWA, J. The applicant has filed the application for leave for prerogative orders of mandamus and prohibition. It is made under the provision of 1 section 17(2), 18(1) of the Law Reforms (Fatal Accident Miscellaneous Provision Act, Cap. 310 and rule 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014. Orders sought are found in the chamber summons and accompanied by statement and affidavit. The respondents oppose the application through joint statement and counter affidavit. Further, they filed a notice of preliminary objection that; The application is incompetent and bad in law for contravening and rule 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014. As the practice of the court to dispose first preliminary objection once raised, on the hearing date, the applicants appeared in person whereas the respondents had the service from the Office of Solicitor General. The objection was argued by filing written submission. The respondents were brief in their submission, state attorney submitted that the application for judicial review was filed without leave which is a prerequisite condition and contrary to rule 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014 read together with Law Reform (Fatal Accidents Miscellaneous Provision Act, Cap 310. He 2 argued that without obtaining leave to seek for judicial review render the application premature and incompetent before the court. They supported the argument with the case of Cheavo Juma Mshana vs Tanapa and 2 Others, Misc. Civil Cause No. 7 of 2020 [2021] TZHC 2254 (18 February 2021; TanzLII). Armed with the above case, the State Attorney prayed the application be dismissed with costs. Responding to the above, in their reply submission the applicants raised the issue of legality of the state attorney representing the 2 nd respondent which is not the government. Their concerned was based on the provisions of the Office of the Attorney General (Discharge of Duties) Act, [Cap 268 R: E 2029]. Thus prayed the objection of the respondents to be dismissed. On merits of the objection that leave was not sought, the applicants argued the objection to be frivolous, vexation and hopeless intended to frustrate and affect the applicants mentally and time. They submitted that the application before the court is for leave predicated under rule 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014 and reflected in the certificate of urgency, chamber summons, statement and 3 joint affidavit. According to the applicants the objection by the respondent had been prematurely brought. They submitted that their application conforms to rule 5(3) 5(1)(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014 and is in substantially in Form A to the first schedule. They added that application for judicial review has to be in Form B which is not the case here. The applicants insisted that the application was competent before the court and be granted leave to file main application. They further sought to be paid Tsh. 1,500,000/= as general damage and compensation due to frustration, wastage of time and mental disorder caused by the respondents to file hopeless preliminary objection. During rejoinder, the state attorney submitted that the issue of 3rd respondent not being a government which has been raised in reply submission is intended to pre-empt the objection raised by the respondents and sought reliance on the case of Mark H. Mwamwezi & 119 Others vs Ngorongoro Conservation Area Authority & Another, Land Case No. 4192 of 2024 [2024] TZHC 7499 (23 August 2024; TanzLII). It was contended that the applicants had contract with the 2nd respondent who deducts money from the applicants from which 4 the government has control over it. Thus, state attorney was of the view that the government had interest in the matter. On merits of the objection, it was submitted that the application before the court is for judicial remedy and not leave as seen in the prayers sought in the chamber summons. I have considered the objection and rival submission of the parties; I will start with the complaint raised by the applicants that the 2nd respondent is not government thus cannot be represented by the state attorney. In reply it was submitted that the point was intended to pre- empt preliminary objection raised. On my part, I agree with the State Attorney's submission that raising that point at stage of hearing of the preliminary objection lodged by the respondents is tantamount to pre-empting it. Basically, the Court is not permitted to entertain submissions which are intended to pre-empt preliminary objection raised by a party against another at the stage of hearing. In Benita Cassar Torreggian Inc vs Tanzania Tourist Board Another, Civil Appeal No. 523 of 2020 [2024] TZCA 31 (13 February 2024; TanzLII) cited the case of Method Kimomogoro vS The Board of Trustees of TANAPA, Civil Application No. 1 of 2005 (unreported) in which the court stated; 5 "The Court has said in a number of times that it will not tolerate the practice of an Advocate trying to pre-empt a preliminary objection either by raising another objection or trying to rectify the error complained of.’ This is a position in number of court decisions; Dar es Salaam Institute of Technology vs Deusdedit Mugasha, Civil Reference No. 11 of 2016 [2019] TZCA 162 (25 April 2019; TanzLII), Petrina Aloyce vs Christina Leonard Nyumayinzu, Civil Appeal No 138 of 2015 [2017] TZCA 378 (28 September 2017; TanaLII) and Almas Iddle Mwinyi vs NBC [2001] TLR 83 to mention few. At hand, the act complained by the applicants is nothing but a move intended to pre-empt objection by the respondents which question competence of this application, the reason the applicant prayed the objection to be dismissed and grant orders sought. If the applicants had issue with representation of the 2nd respondent, they were supposed to raise after being served with joint statement and counter affidavit and before order of hearing of preliminary objection. In the premises, I reject the complaint by the applicants. Coming to merits of the objection, the respondents have predicated their argument under rule 5(3) 5(1)(2) of the Law Reform (Fatal Accidents 6 and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, GN. No. 324 of 2014. It provides; 5.-(1) An application for judicial review shall not be made unless a leave to file such application has been granted by the court in accordance with these Rules. (2) An application for leave under sub-rule (1) shall be made ex parte to a judge in chambers and be accompanied by- (a) a statement providing for the name and description of the applicant; (b) the relief sought; (c) the grounds on which the relief is sought; and (d) affidavits verifying the facts relied on. Emphasize added. Subsection 5(1) unambiguously requires judicial review to be filed after leave is granted by the court. Here, there is oposing view, while the respondents have submitted that the current application is for judicial review as geared in the prayers sought in the chamber summons, the applicants referred to the title of the application documents. I have considered the above arguments and perused the application documents, I agree with the applicants that in the title it appears that they are applying for leave of prerogative order to compel the district 7 executive director of Mbozi an employer to discharge his legal duties by allowing the applicants to join another trade organization union, however as rightly submitted by the respondents, orders sought in the chamber summons are those of judicial review. It reads; 1. That, this Honorable Court be pleased to grant the applicants a prerogative order of Mandamus against the 1st respondent for; (a) Compelling the 1st respondent to discharge his legal duties by allow the applicants to join another trade organization union named CHAKUHAWATA. (b) Compelling the 1st respondent as employer to direct applicants as employees to be deducted their salaries contribution in trade organization union named CHAKUHAWATA. 2. That, this Honorable Court be pleased to grant the applicants a prerogative order of prohibition against the 2nd respondent Chama Cha WalimuTanzania (CWT) to continue in deduction for applicant’s salaries for monthly contributions of 2%. (a) Prohibition the 2nd respondent to continue in deducting the applicant’s salaries per month because they have resigned and ceased to be member of Chama cha walimu Tanzania(CWT) and joined another trade organization union acronym CHAKUHAWATA. 3. Any other or further reliefs that, this Honorable Court may deem fit to grant for the applicants. 8 In the statement and relief sought, the applicants seek; (a) AN ORDER FOR MANDAMUS (I) Compelling the 1st respondent to discharge his legal duties by allow the applicants to join another trade organization union named CHAKUHAWATA. (II) Compelling the 1st respondent as employer to direct applicants as employees to be deducted their salaries contribution in trade organization union named CHAKUHAWATA. (b) AN ORDER FOR PROHIBITION (I) Prohibition the 2nd respondent to continue in deducting the applicant salary for contribution of 2% (II) Prohibiting the 2nd respondent to do any act which can interfere the right of applicant to a membership of trade organization union named CHAKUHAWATA.’ The above are prayers sought by the applicants, in support of the prayer in the affidavit leaving aside other averments paragraph 11 and 12 have a different story, it reads; 11. That as per the premises above explained this application for leave raises fundamental questions of legal importance as to whether the 1st respondent has discharged his legal duties and whether the 2nd respondent has right to deduct monthly salaries illegally. 9 12. That if the orders for leave of judicial review sought are not granted, the applicants and other members stand to suffer irreparable harm in that respondents would fail to cover the economic loss of the applicants.’ From the incept above, it is clear that there is mismatch between the prayers in the chamber summons and the contents of the supporting affidavit and relief. As the general rule, the court cannot grant what a party did not ask for. The chamber summons and statement are the heart of application for leave where the court obtain powers to grant orders sought. In this case orders in the chamber summons and reliefs claimed are those of judicial review, contrary to what is stated in the affidavit. In short, the affidavit of the applicant does not support the orders and relief the applicants are asking the court to grant. I understand that the law cited by the applicants in moving the court are those for leave to file judicial review, however orders and reliefs sought are not in that respect. As the court looks on prayers and not title of the documents to grant what is sought, I agree with the respondents that the orders sought are those for judicial review and not leave as submitted by the applicants. In the premises, I find merits in the objection and sustain it, in the circumstances of this case as I have tried to demonstrate above, I struck 10 out the application and order that the same be refiled within seven days from the date of this order. It is so ordered. V.M. NONGWA JUDGE 8/10/2024 Dated and Delivered at Mbeya this 8th October, 2024 in presence of the applicants and Mr. Michael Fyumagwa State Attorney for the Respondents. V.M. NONGWA JUDGE 11