halima james mdee 18 others vs the registered trustees of chama cha demokrasia na maendeleo others 2023 tzhc 15967 9 march 2023

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CAUSE NO 36 OF 2022 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION BY HALIMA JAMES MDEE AND 18 OTHERS AND IN THE MATTER OF THE DECISION OF CHAMA CHA DEMOKRASIA NA MAENDELEO(CHADEMA)EXPELLING THE APPLICANTS FROM BEING MEMBERS OF CHAMA CHA DEMOKRASIA NA MAENDELEO (CHADEMA) BETWEEN HALIMA JAMES MDEE APPLICANT GRACE VICTOR TENDEGA 2"'' APPLICANT ESTER NICHOLAS MATIKO 3"^^ APPLICANT ESTER AMOS BULAYA 4*"^ APPLICANT AGNESTA LAMBERT KAIZA 5*''APPLICANT ANATROPIA THEONEST 6*'^ APPLICANT ASYA MWADINI MOHAMED ...7''^ APPLICANT CECILIA DANIEL PARESSO 8^'' APPLICANT 1 I Page CONCHESTA LEONCE RWAMLAZA 9'"^ APPLICANT FELISTA DEOGRATIUS NJAU APPLICANT HAWA S. MWAIFUNGA 11"^ APPLICANT 3ESCA DAVID KISHOA 12**' APPLICANT KUNTI YUSUFU MAJALA 13^^ APPLICANT NAGHEN3WA LIVINGSTONE KABOYOKA 14"^ APPLICANT NUSRAT SHAABAN HANJE..... APPLICANT SALOME MAKAMBA 16*'' APPLICANT SOPHIA HEBRON MWAKAGENDA 17*" APPLICANT STELLA SIMONI FIYAO. 18*" APPLICANT TUNZA ISSA MALAPO 19*" APPLICANT AND THE REGISTERED TRUSTEES OF CHAMA CHA DEMOKRASIA NA MAENDELEO(CHADEMA) 1®* RESPONDENT NATIONAL ELECTORAL COMMISSION 2"'* RESPONDENT THE HONOURABLE ATTORNEY GENERAL 3*^^ RESPONDENT Date of Last order; 9"^ March 2023 Date of Ruling:9"^ March 2023 2I Page RULING MKEHA J, In this ruling, the following legal question has to be answered. The question Is whether a party to an application can controvert factual averments contained In an affidavit or counter affidavit served upon him In any other way than filing a counter affidavit or affidavit In reply. The question arose In the following way. When the applicants filed the present application, all the three respondents were served with the application and the accompanying affidavits. Subsequent to the said service, only the respondent filed a counter affidavit. In the said counter affidavit. It Is alleged by the 2"^ and respondents through Mr. Kalokola learned State Attorney that, there Is evidence affecting the Interests of the other two respondents I.e the 2"^^ and 3^^ respondents. Neither did the 2"^ and respondents file any affidavit to controvert the evidence of the respondent against them, which allegedly Is contained In paragraph 8.0 of the respondent's counter affidavit. In the course of hearing of the application, Mr. Panya learned advocate for the applicants asked for leave to cross examine the deponents of the counter affidavit of the respondent. The court granted such leave. 3I Page Subsequently, Mr. Kalokola learned State Attorney rose to make a similar prayer, that the 2"^ and 3'^ respondents be allowed to controvert factual averments contained in the counter affidavit of the respondent by way of cross examination. According to Mr. Kaiokoia learned State Attorney, the two respondents could not have filed anything to counter the respondent's case as Rule 13 of the Judicial Review Procedure Rules of 2014 recognizes filing of a counter affidavit, oniy upon being served with the appiication. According to the learned State Attorney, the Rules are silent on what should be done by one of the respondents who wishes to oppose a counter affidavit of a co-respondent. In his considered view and guided by Ruie 17 of the Judicial Review Procedure Ruies, the two respondents couid achieve the said purpose by way of cross examining the deponents of the counter affidavit of the respondent. Mr. Kibatala learned advocate for the respondent was strongly opposed to the view taken by Mr. Kaiokoia iearned State Attorney. He thus objected prayer for the two respondents being aliowed to cross examine the deponents of the counter affidavit of the respondent. According to Mr. Kibataia iearned advocate, the two respondents having chosen not to file any affidavit to controvert factual presentations made by the l^'^ 4I Page respondent, could only make legal presentations and not factual presentations aimed at challenging the first respondent's case. The other parts of submissions made by the learned counsel for the parties, though relevant, are not determinative to the question that resolves the controversy between the contending parties. That is the reason for not reproducing them in this ruling. Rule 17 of the Judicial Review Procedure Rules of 2014 requires the courts to adopt the obtaining procedures at the High Court where the Procedures are silent on how to approach a particular issue brought under the Rules. In cases pegged on affidavits, the evidence adduced before the court is what is averred in the affidavits before the court. Thus, where a party to an application disagrees with or challenges the contents of an affidavit and has evidence to challenge it, the only way to bring it to the attention of the court is by way of a duly sworn affidavit. The law is therefore settled that, when a party does not believe an averment in an affidavit or counter affidavit the best way to dispute it is to file a counter affidavit or an affidavit in reply as the case may be. That is the obtaining procedure at the High court. See: LUCY THOMAS KIMARO Vs STANBIC BANK (T) LTD & ANOTHER, MISCELLLANEOUS COMMERCIAL APPLICATION NO. 5 I Page 68 OF 2022. See also WATHARDA Vs. ULARARAMU (2014) LPELR 24177(CA) 10. The position hereinabove was also insisted by the Court of Appeai of Tanzania in the case of GILBERT ZEBEDAYO MREMA Vs. MOHAMED ISSA MAKONGORO, CIVIL APPLICATION NO. 369/17 of 2019, CAT (DSM) Whereby the Court cited its earlier decision in MANDAVIN COMPANY LIMITED Vs. GENERAL TYRE (E.A) LTD, CIVIL APPLICATION NO. 47 OF 1998 and held as follows: 'We declined to entertain an appiication for review after being satisfied that the applicant faiied to contradict hy affidavit, the deposition made hy the respondent"We said: "We agree with Mr. Ngaio, that, affidavital deposition is evidence on oath which cannot he contradicted hy statements from the bar. Such evidence iike any other type ofevidence given under oath can only hy controverted on oath. In the instant case, apartfrom the statements from the bar hy Mr. Lugua learned advocate, denying service, there was no evidence to contradict the respondent's evidence." The foregoing quotation as held by his Lordship Nangela, 3(my brother), is an authority to the affect that, in our jurisdiction, one cannot controvert evidence made under oath by other means than by producing under oath 6I Page facts which seek to controvert such other evidence and where such earlier facts are by way of affidavit, then they must be countered or negated in the same way, that is to say, by way of a counter affidavit or affidavit in reply as the case may be. See: LUCY THOMAS KIMARO Vs. STANBIC BANK(T) LTD & ANOTHER(supra) Therefore, the analysis and cited case laws hereinabove support the position taken by Mr. Kibatala learned advocate that, for failure of the 2"^ and 3^^ respondents to file an affidavit controverting the respondent's counter affidavit, they are precluded from challenging matters of fact arising from the counter affidavit of the respondent. They are however permitted to challenge the first respondent's case on matter of law. See: 1. YOKABETI SIMON SANGA Vs. YOHANA SANGA, CIVIL APPLICATION No. 1 OF 2011, CAT (UNREPORTED) 2. FINN WURDEN PETERSEN & MLIMANI FARMERS LIMITED Vs. ARUSHA DISTRICT COUNCIL, CIVIL APPLICATION No. 562 of 2017, CAT (UNREPORTED). From the foregoing, I allow the 2"^ and 3^^ respondents' prayer in the following limited extent: The learned counsel for the 2"^ and 3"^^ respondent is only permitted to cross examine the deponents of the 7I Page counter affidavit of the respondent on matters of law if any. It is so held. Dated at DAR ES SALAAM this 09^^ day ofM^h,2023 C. P. MKEHA ..A' . JUDGE 09/03/2023 Court: Ruling is delivered in open court in the presence of the parties' learned counsel. / c. P. mkIha^ JUDGE 1 vAAA'./ iff 09/03/2023 .-A V 8I Page