20150316 TZHC Dodoma

"( ~._ . , ~~ ,- I \,' .__/ IN THE HIGH COURT OF TANZANIA AT DODOMA --MISC .. CIVILAPPLICATION N0~_2 OF 2017 ------------ GODFREY SABATO WASONGA .............................. APPLICANT VERSUS ----l.---T-I-IE---lANG.ANYIKA_LAW_SO_CJEJ.Y ...................... . 1st RESPONDENT ---- 2. THE ATTORNEY GENERAL ....................... .......... 2 nd RESPONDENT RULING 15/3/2017 -- - - . & 16/3/2017 -- - A. MOHAMED, J: Before me is an application for orders of certiorari a·nd mandamus sought by Mr. Godfrey Wasonga, the applicant. He prays this court grants him either an interim ex-parte or inter partes order to restrain the 1st respondent from applying the Tanganyika Law Society (Elections) Regulations of 2016 in the 1st respondent's election to be held on 18/3/2017. And he further prays the said election be postponed in order to allow the incumbent Tanganyika Law Society Governing Council to remain in office to rectify an irregularity in the said Regulations. However on 15/3/2017 when the application was called on for hearing, Mr. Wasonga prayed to withdraw his application and be given leave to re-file it under the provisions of Rule 17 of the Law 1 \,t Reform (Fatal Accidents) and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 GN No. 324 of 2014 (hereinafter "the Rules") read together with Order XXIII of the Civil Procedure Code [Cap _33 R.E 2002]. Mr. N_yat>iri, assisted by Ms. Munisi and Mr. Machibya represented the 1st respondent whilst Mr. Mwipopo and Ms. Shio, learned Principal State Attorneys appeared for the 2nd respondent. At the outset, Mr. Wasonga admitted his application was incompetent before this court for non compliance with the provisions of the Rules; inter alia that he did not state it was an ex-parte application, the statement providing for the name and description - - - - - of-the-applica-nt-wa-s missi-n§,-tt=le-Gi-tat-ion-clid-noLcompl.y wLth '~FORM ______ _ A" in the schedule to the Rules, and that he failed to apply for leave of this court. In sum, he maintained the application before this court was incompetent and prayed to withdraw it with leave to re-file the same. In reply, both Mr. Nyabiri for the 1st respondent assisted by Mr. Machibya as well as Mr. Mwipopo, Principal State Attorney submitted that indeed the application was incompetent before this court. They argued it ought to be struck out as it could not be re- filed. In support of their argument, they cited the statement of Nyalali C.J (as he was then) in Burhan Abdul Karim t/a E.A. K Enterprises V. NBC Jamhuru Branch, Civil application No. 7 of 1996, CAT, At Mwanza, (Unreported) where he said; 2 . ) "It is tn}' considered opinion that these defects are so serious tha:t they render the application .incompetent. In other words, \-as already idated in numerous previous decisions of this court,, the incompetency means there is no application before this court which can be ¥1ithdrawn, amended or adjourned. Consequently the application is . ' . . rejected and instead it is hereby ordered that the application be and is struck off the record with costs." In view of the above decision, they urged this cour~ to strike out the appl icat·10""' ,.1-.,i+h ,...oA+, - f 1 ' i :>.? - • l '. I I• • \...., In his rejoinder subrnissions. Mr. Wasonga reiterated that there was an application before this court which is being heard. _He distinguished Burhani Abdul Karim's case by maintaining the applicant therein averred false information whereas there was none in the instant case. Nevertheless, he was of the v 1evv, the principle in that case does not prohibit him to re-file his app;icatiori. Lastly, he submitted that Order XXIII of the Civil Procedure Code allows him to withdraw and re-file his application. After hearing the parties' contentions, the sole question for this court's deterrninction is whether the applicat:o'.1 can be ,,vithdra,Nn and be re-flied as \'v'as prayed for by the applicant. In this interest(ng matter~ air ~he parties-are iri-acco;-d -that the application is incompetent and I need not repeat the, multitude of defects therein as--it-would be an exercise in futility. The parties differ only differ as to the mode of its removal from cpurt. 3 ! " •. • # • ~ ,_\s was conceded by Mr. v\/asonga himself, the application 'Nos. incurably defective and consequently \A/OS incompe·cent before this court. I agree with the respondents' argument that its incornpetence n1eant there was indeed nothing before this court to withdraw or re- file. Bearing in mind the verdict in Burhan Abdul Karim's case and other decis,ions of the Court of Appeal, it is imperative that the application be struck out. I accordingly reject the application and order it be struck off the record with costs. - - - ---~1t-is-so-ordere-el-. ~ ~ ~ - - - - - - - ________ A ..·MOHAMED JUDGE 16/03/2015 4