20130624 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. YASSIN JOSEPH MROTWA 6. KIRUNGI AMIR KIRUNGI . . . . . . PLAINTIFFS 7. DONI WAZIRI MNYAMANI 8. MOHAMED FAKI ALBADAWI 9. TAMIM OMAR! TAMIM 10. NANJASE HAJI HANJASE 11. MOHAMED MASSAGA V. THE REGISTERED TRUSTEES OF THE CIVIC UNITED FRONT (CUF)-CHAMA CHA WANANCHI). . . . . . . . . . . . DEFENDANT Date of last order- 25/4/2013 Date of Ruling-24/6/2013 RULING Shangwa, J. On 2 nd February, 2012, learned counsel for the defendant Mr. I<erario presented for filing his written statement of defence in which he raised two points of 2 preliminary objection against the suit between the parties namely:- (a) That the plaintiffs have no cause of action against the defendant. (b) That the suit is frivolous and vexatious and an abuse of the Court process. Mr. Kerario prayed the court to dismiss the suit in its entirety with costs for lack of cause of action. On 28 th February, 2013, I ordered that the above listed points of preliminary objection should be argued by way of written submissions and counsel on both sides did so as ordered and scheduled by this court. In his written submissions, Mr. Kerario did not argue the 2 nd point of preliminary objection which means that he decided to abandon it. As such, I will not deal with it. Mr. 3 Kerario proceeded to give a description of what a cause of action means by saying that it means "a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed." Learned counsel for the plaintiffs M/S G.F. Law Chambers, Advocates did not refute the description of what a cause of action means as given by Mr. Kerario for the defendant. They even cited the case of John Byombarilwa Vs. Agency Maritime International (TZ) Ltd ( 1983) TLR 1 in which the Court of Appeal of Tanzania stated as to what a cause of action refers by holding inter-alia that it refers entirely to the grounds set forth in the plaint. Mr. Kerario's maJor ground for saying that the plaintiffs have no cause of action against the defendant is that the plaint was filed on 2 nd January, 2012 when no cause of action had arisen as the decision to expel the plaintiffs from the defendant's party membership was made 4 on 4 th January, 2012. He submitted that there is no where in the plaint are the plaintiffs challenging the decision of expelling them from the defendant's party membership which was made on 4 th January, 2012 by the National Governing Council of the defendant's party. On the other side, counsel for the plaintiffs M/S G.F. Law Chambers, Advocates submitted that the plaintiffs have a cause of action against the defendant as they are alleging in the plaint that the defendant has violated the provision of the Constitution of their party on the formation of the National Disciplinary and Ethics Committee and on the appointment of members of the said Committee. In order to determine as to whether or not the plaintiffs have a cause of action against the defendant, I have examined the plaint and found that it contains essential facts that the plaintiffs will be required to prove in order to succeed. For instance, paragraphs 3, 9 and 10 of ' . 5 the plaint respectively contain a bundle of such facts. These facts are as follows:- That the formation of the National Disciplinary and Ethics Committee of the defendant violated the Constitution of the defendant's party. That the appointment of the members of the National Disciplinary and Ethics Committee violated the defendant's Constitution. That the process and proceedings which are conducted by the National Disciplinary and Ethics Committee are null and void. That the act of the Committee to summon the plaintiffs before it to answer allegations violates the fundamental principle of natural justice as the committee is a complainant and a decision maker at the same time. That Mr. Hamis Hassan who is the Chairman of the National Disciplinary and Ethics Committee had sent an electronic mail dated 6 th December, 2011 to Prof. Ibrahim Lipumba who is the Chairman of the defendant party informing him about the status of the plaintiffs' party membership. That another 6 electronic_ mail dated 14 th December, 2011 was sent by Maalim Seif Shariff Hamad who is a Secretary General of the defendant party to Prof. Ibrahim Lipumba showing intentions to expel the plaintiffs from being members of the defendant's party. Unlike counsel for the defendant Mr. Kerario, I am of the view that when the plaint was lodged on 2 nd January, 2012, the cause of action had· arisen as the plaintiffs were grumbling about the violation of the defendant's Party Constitution in the formation of the National Disciplinary and Ethics Committee and the appointment of its members. At the same time, the plaintiffs were challenging the authority of the aforesaid committee for summoning them to answer allegations of misconduct. The defendant's decision to expel them from party membership which was given on 4 th January, 2012 at the meeting of the defendant's National Governing Council ' .. 7 which took place at Mazsons Hotel in Zanzibar is linked to the conclusion which had been reached by the National Disciplinary and Ethics Committee of whose constitutionality the plaintiffs are questioning. For these reasons, I hold that the plaintiffs have a cause of action against the defendant and the plaint does disclose their cause of action. The refore, I dismiss the defendant's first point of preliminary objection against the suit but for the time being, I remain silent as to costs. 24/6/2013 8 Delivered in open court this 24 th day of June, 2013 in the presence of Miss Thabita for Mr. Kusalika for the plaintiffs and Mr. Rwegasira for Mr. Kerario for the defendant.