20120307 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 1 OF 2012 1. HAMAD RASHID MOHAMED 2. SHOKA KHAMIS JUMA 3. DOYO HASSAN DOYO 4. JUMA SAID SANANI 5. Y:ASSIN JOSEPH MROTWA 6. KIRUNGI AMIR KIRUNGI . . . . APPLICANTS 7. DONI WASIRI MNAMANI 8. MOHAMED FAKI ALBADAWI 9. TAMIM OMARI TAMIM 10.NANJASE HAJI NANJASE 11. MOHAMED MASSAGA VERSUS THE REGISTERED TRUSTEES. OF THE CIVIL UNITED FRONT ,. (CUF-CHAMA CHA WANANCHI) . . . . . . . RESPONDENT Date of last order-28/2/2012 Date of Ruling-- 7/3/2012 RULING .. On 3 rd · January, 2012, the Applicants filed an Application for a temporary injunction against the Respondent to refrain from suspending or expelling them 2 from being members of the Respondent's Party pending the determination of the Application interpartes. The Application was divided into two Parts One Exparte, another one interpartes. On 4 th January, 2012, this court issued an ex-parte order requiring the Respondent and or her agent not to suspend or expel .the Applicants pending the hearing of the Application interpartes. Hearing of the Application interpartes was fixed on 13 th February, 2012. On 10 th January, 2012, the Applicants filed an application by way of Chamber Summons requesting the court to order the members of the National Council of the Registered Trustees of the Civic United Front (CUF-Chama Cha W ananchi) to appear in court and show cause as to \\rhy they should not be committed to prison as civil prisoners for disobeying the lawful order dated 4 th January, 2012 which required them to refrain fro1n suspending or expelling the Applicants from being members of the , \ 3 Respondent's party pending the hearing of the Application . interpartes and to declare the Respondent's proceedings and resolutions which were conducted and passed on 4 th January, 2012 after the issuance of this court's order dated 4 th January, 2012 as null and void. The Application was supported by the affidavit of the 1st Applicant Hamad Rashid Mohamed (MP). His affidavit was followed by counter-affidavits of one Mikidadi Ibrahim Nyandula of Dar es Salaam, Selemani Harnadi of Zanzibar and Mize Abubakar Ally of Zanzibar and a reply by Mr. Twaha Issa Taslima of Dar es Salaam. On 27 th January, 2012, learned counsel for the Respondent, Mr. Twaha Issa Taslitna filed a Notice of Prelirninary Objection on a point of law that the affidavit of Hamad Rashid Mohamed is bad in law as it contravenes O.XIX r. 3(1) of the Civil Procedure Code Cap. 33 R.E. 2002. He prayed the Application to be dismissed in its entirety. , \ 4 On 6 th February, 2012, learned counsel for the Applicants Mr. Stola of G.F. Law Cha1n.bers (.Advocates) filed a Notice of cross-preliminary objection that the purported counter-affidavit of Twaha Issa Taslima is bad in law as it contains legal arguments and conclusions, thus, violating the provisions of O.XIX r. 3(1) of the Civil Procedure Code Cap. 33 R.E. 2002 and also that the purported counter-affidavit is bad in law as the verification clause contained therein does not disclose the source of information of its contents in paragraphs 6, 8, 10 and 11. On 13 th February, 2012, I directed that the cross- preliminary objection raised by counsel for the Applicants ,should be argued first before arguing the preliminary objection raised by counsel for the Respondent. Thereafter, I ordered that the cross preliminary objection should be argued by way of written submissions and it was so done. As already mentioned, the cross preliminary objection raised by counsel for the Applicants is that the purported 5 counter affit°,r.·.~:.t.. of Twa.ha Issa Taslima :is bad in la\~r for 'I ·9-, . IJJ -~~ . . : containing lega:1 arguments and conclusions and for bearing a verification clause which does not disclose the source of information of what is contained in paragraphs 6, 8, 10 and 11. The question vvhich arises here is: V/hy do col1nsel for the Applicants have decided to describe it as a purported counter-affidavit and not simply a counter-affidavit. At page 592 of IvIITRA'S Legal and Commercial DICTIONARY Fifth Edition, the word 'purport' is said to have many shades of meaning. It means fictitious or what appears on \ the face of it or is apparent. This is exactly what counsel for the · Applicants meant by describing part of the document filed by Mr. 1\vaha Issa Taslima in reply to the affidavit of Hamad Rashid Mohamed (MP). Indeed, on the face of it, part of the document filed by Mr. Twaha Issa Taslin1a. in reply to the affidavit of I-Ion. :Hamad Rashid Mohamed (MP) is not a counter-affidavit so r 6 to speak even though it appears to be something of that sort. As a whole, the document filed by Mr. Twaha Issa Taslima has two parts namely a Notice of Preliminary objection against the affidavit of the 1 st Applicant Hamad Rashid Mohamed and a Reply to his affidavit which he filed in support of his ·Application for ordering the Respondent and her 1nembers of National Council to appear in court and show cause as to why they should not be condemned to civil prison for disobeying this court's lawful order dated 4 th January, 2012 and to declare the proceedings and resolutions that ,;vere conducted and passed on the said date as null and void. As it can be seen, part of this docun1ent has no heading which identifies it as a counter-affidavit. It seems to me that it was not intended by its draftsman to be a counter-affidavit. In my op1n1on, I deem it to be \Vhat it reads to be. That is a reply to the affidavit of Hamad Rashid Mohamed (MP). ....~ i.,: ,.j::"t 7 Now can a reply to the affidavit in support of an application be subjected to similar standards or legal requirements pertaining to affidavits? For n1.e, I do not think so. For this simple reason, I overrule the cross- preliminary objection raised by counsel for the f\pplicants. I 1nake no order as to costs. ~ A.Shangwa JUDGE 7/3/2012 Delivered in open court in the presence of Mr. Kusalika for the Applicants and Mr. Twaha Issa Taslima for the Respondent this 7 th day of March, 2012. ~ A.Shangwa JUDGE 7/3/2012