HON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 128 OF 2022 BETWEEN HON. MBWANA SALUM KIBANDA (TREASURER)....................... 1Fr APPLICANT HON. RAMADHANI ALLY ABDALLAH (VICE TREASURER) ......... 2ND APPLICANT VERSUS HON. ABDALLAH MOHAMED KHAMIS (VICE CHAIRMAN) .... IST RESPONDENT HON. HAMAD MOHAMED IBRAHIM (SECRETARY GENERAL) .................................................. 2ND RESPONDENT RULING Date of Last Order: 24th September, 2024 Date of Ruling: 29th October, 2024 NGUNYALE, J. The petitioners MBWANA SALUM KIBANDA and RAMADHANI ALLY ABDALLAH filed a petition in this court claiming against the respondents for contravening the provisions of the United Peoples Democratic Party (hereinafter be named as UPDP) constitution by one, convening a meeting of the executive committee on 01/12/2019 without following the constitution two, allowing Mr. Twalib lbrahimu Kadege to appear in the general assembly of the executive committee while he was not a delegate of the national executive committee, three, expelling members of the executive committee and general assembly of the UPDP without following the principles of natural justice, four, convening the general assembly on 20/07/2020 with illegal members and five appointing Mr. Twalib Ibrahim Kadege to be presidential candidate of UPDP in the general election of 2020 against the constitution. The petitioners are praying for judgement and decree against the respondents as follows; 1. That, the court may be pleased to declare that the respondents have breached the United Peoples Democratic Party (UPDP) Constitution and they are supposed to vacate their position forthwith. 2. That, the court may be pleased to order the respondents to conduct assembly of Central committee, National Executive Committee and General Assembly of the UPDR 3. Costs of the case. Upon being served with the amended petition, the respondents jointly filed their reply to the amended petition together with a notice of preliminary objections. The objections were: 1. This petition is bad in law for non joinder of party 2. Petition is untenable under the law for suing wrong persons. As a matter of practice, once preliminary objections are raised they should first be determined, the matter was set for hearing of the objections and the parties chose the form of written submissions which they all adhered to the scheduling order. The Petitioners were represented by Mr. Dominicus Nkwera, advocate while the Respondents enjoyed the service of Mr. Desidery Ndibalema, Advocate. Submitting in support of the raised objections, Mr. Ndibalema started with the first point of objection that the petition is bad in law for non joinder of necessary party, on the grounds that respondents are mere leaders of the UPDP and the complains by the petitioners is about the decisions made in the complained meetings which were not made by the respondents in their individual capacity but was as per the constitution of the UPDP, the decisions which were later confirmed by the Registrar of Political Parties. Therefore, whoever wants to challenge the decision he must involve the Board of trustees of UPDP which is formed under section 21(1) of the Political Parties. The Board of Trustees of UPDP is the proper party to be sued or to be joined as a necessary party. He emphasized that the board of Trustees of UPDP which is regulated by the Trustees Incorporation Act has the mandate to sue or be sued on behalf of the party. He cited the case of Leonard Peter versus Joseph Mabao and two others, Land Case No. 04 of 2020 which elaborates the consequences for failure to join necessary party. On the second objection that the Petition is in untenable under the law for suing wrong persons. He submitted that as the respondents cannot be sued in their own capacity as senior leaders of UPDP, that means; whatever they do is because of their duties under the UPDP Constitution and any decision passed by the meetings of the party are later confirmed by the Registrar of Political Parties. The decision passed becomes the party’s decision hence any challenge should not be against some of the leaders but the same should be against the party. Consequently, they are of the Board of Trustees stipulated under Clause Na. 20.1 of the party constitution. It was his prayer that following the foregone submissions the petition be struck out with costs. On his reply submissions regarding the objections raised, Mr. Nkwera submitted that the respondents are legally sued as they are leaders of UPDP as vice chairman and Secretary General rAespectively and that the Mr petitioners cannot sue the board of trustees of the UPDP because it is non existing after its term had expired. According to the UPDP constitution under Article 20(2)d since the trustee was registered five years and has elapsed without appointment of other members or renewal of the trustee registration. Other three board members out of four are dead. He added that the UPDP constitution is silent on who can sue or be sued on behalf of the Party, hence, since the petitioners are valid members of the UPDP have the right to choose who to sue and it is the courts discretionary to join anyone in the case if it thinks fit. He cited the case of Mohamed Masoud Abdallah & others versus Tanzania Road Haulage (1980) Ltd, Consolidated Civil Appeal No. 150 & 158 of 2019 Court of Appeal of Tanzania which sets the domain of the petitioner to choose who to sue or not On the other hand, he submitted that the issue of joining the board of trustees of the UPDP is prematurely raised and it need evidence hence it falls short of being a pure point of law as they are mixed with matters of facts and law which need evidence. Cited the case of Soitsambu Village Council versus Tanzania Breweries Limited and another, Civil ;Mf ' Appeal No. 105 of 2011 Court of Appeal of Tanzania, which described as to what amounts to a pure point of law. On his rejoinder, counsel for the respondents reiterated his submissions in chief and insisted that the raised objections are on pure point of law. He added that the contention that the Board of Trustees of UPDP does not exist is an assumption which is not based on law but also the submissions that four of the board members are dead there is no any proof of that. And that the purpose of the Board of Trustees is to keep in custody all the properties of the party including to sue and be sued on behalf of the Party as a registered entity. It is not always that the constitution should categorically state but mere registration of the Board of Trustees is automatically vested with the power to sue or be sued on behalf of the party as per the provisions of section 8(1) of the Trustees Incorporation Act (Cap 318 R.E 2019). Appreciating the submissions from both parties, this court is invited to determine the merits of the raised objections. In this ruling, I will start to determine as to whether the raised objection are the pure points of law because the parties in the course of submitting '@ on the merits of the objection raised had rival submissions on the matter. As to what suffice to be a preliminary point of objection it was well expounded in the landmark case Mukisa Biscuit Manufacturing Co, Ltd versus West End Distributors Ltd [1969] E. A. 696, at page 100 where the court had this to say: "A preliminary objection is in the nature of what used to be a demurren It raises a pure point of law which is argued on assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion," The above position was more discussed by the Court of Appeal the case of Shose Sinare versus Stanbic Bank Tanzania Ltd, Civil Appeal No. 89 of 2020 (CAT-unreported) when referred to the case of the Soitsambu Village Council versus Tanzania Breweries Ltd and Another, Civil Appeal No. 105 of 2011 (unreported), where it was stated that: "A preliminary objection must be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate such facts, such an issue cannot be raised as a preliminary objection on a point of law. The court must therefore insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as a preliminary objection only @d those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence." That being the position of the law, I have scanned the two raised objection and the submissions of both parties, the raised objections aimed to challenge suing the respondents in their own capacity for the actions or decision done in the meetings of the UPDP and non joinder of necessary party. Taking the position of the cited cases above, I am in a settled position that the raised objections are purely on of point of law since they do not need ascertainment of facts, they do not inquire any evidence to prove them as the counsel for the petition wanted this court to believe but also if uphold, they are capable of disposing the matter. See the case of Cowtu (T) Otto Union & another versus Hon. Idd Simba, Minister of Industries & Trade & 7 others, Civil Application No. 40 of 2000. After being certain that the raised objections are on pure point of law, the court is invited to determine whether they have merit or not. In so doing, I will determine them jointly because they are interrelated. From the pleadings there is no doubt that the gist of the petition is the outcome of the meetings of the UPDP which sat on 1/12/2019 and the meeting of 20/07/2020 where among the participants of the meetings are the responctents herein. AS UPDP IS a poIItIcal party wnlcn IS reglsterea unc]er the Political Parties Act, Cap 258 R.E 2019; section 21 of the Act provides that: "(1) Every political party which has obtained a certificate of full registration shall appoint a board of trustees to manage the properties and any business or investment of the party (2) Every board of trustees sha\I be duly incorporated under the Trustees Incorporation Act and ......." (emphasis added) The above provision is couched in mandatory term, the word SHALL imposes a mandatory duty for a registered political party to have a board of trustees which shall be incorporated by the Trustees Incorporation Act cap 318. Now, one may ask what is the purpose of the board of trustee? The effect of incorporating a body corporate under the Trustees Act is provided under section 8 (1) of the Act. That section provides: - "Upon the grant of a certificate under subsection (1) of section 5 the trustee or trustees shall become a body corporate by the name described in the certificate, and shall have: - (a) Perpetual succession and a common seal; (b) Power to sue and be sued in such corporate name; (c) Subject to the conditions and directions contained in the said certificate to hold and acquire, and, by instrument under such common seal, to transfer, convey, assign and demise, any land or any interest therein in such and the like manner, and subject to the like restrictions and provisions, as such trustee or trustees might, without such incorporation, hold or acquire, transfer, convey therein, assign or demise any land or any A7feresf"(Emphasis added) There is no doubt that the UPDP had once registered its board of trustees however, Mr. Nkwera was of the view that the board of trustee has expired for the reason that five years has lapsed since its appointment as per the UPDP constitution but also among the board members there are members who had passed away and there is no any replacement, therefore he could not sue the board of trustee. To me the submission of Mr. Nkwera regarding expiry of the trustee and death of the board members are submissions from the bar, which am not invited to entertain for them not being reflected from the pleading. In the case of Alliance One Tobacco Tanzania Limited & another versus Mwajuma Hamisi (as the administratrix of the estate of PHILEMONI R. KILENYI) & another, Misc. Civil application No. 803 of 2018 the CAT avoided to decide a matter basing on the submissions by an advocate which were not reflected in the pleadings. The court said: "Indeed, the question of illegality was not deported in the supporting affidavit. It will be a grave error for this Court to treat submissions from the bar as supporting evidence." „M/ The question which follows is whether the petitioners were right to sue the respondents herein. With this I agree with Mr. Ndibalema that the petitioner ought to have sued the registered board of trustees of UPDP and not the respondents herein as what was done in the meetings was for and on behalf of the UPDP which is a corporate body. The court of appeal in the case of Ilela Village Council versus Ansaar Muslim Youth Centre & Another, Civil Appeal No. 317 of 2019 quoted with approval, its own decision in Registered Trustees of Chama Cha Mapinduzi versus Mohamed Ibrahim Versi and Sons & Another, Civil Appeal No. 16 of 2008 where in the latter case it was held: "Naibu Katibu Mkuu C.C.M is neither a corporate body possessed of the power to sue or be sued nor are the properties of C.C.M vested in him. If anything, he or she is a different person from the Board of trustees of C.C.M., an incorporated body on whom is vested the power to manage the properties or any business or investment of C.C.M .... The effect of incorporation of the Board of Trustees of C.C.M under the Trustees Incorporation Act, renders it a body corporate by that name (see section 8 (1) and (6). Therefore, in \aw, the Registered Trustees of C.C.M is a separate person with its own legal identity distinct from Naibu Katibu Mt<uu C.C.M." It is from the above positions of the law, I am in a settled view that as what the petitioners are complaining against, the right party to be sued is the registered board of trustee of UPDP and not the respondents on their own capacity taking into consideration that they are merely leaders of the party and the decisions were not their own rather the party’s decision. The consequences of suing a wrong party is to struck out the case as it was held in various cases including the cases of Madam Marry Silvanus Qurro versus Edith Donald Kweka and Another, Civil Appeal No. 102 of 2016 - CAT at Arusha also the case of Lujuna Shubi Balozi versus Registered Trustees of Chama cha Mapinduzi (1996) TLR 203). In the premises and for the afore going, I find the objections raised with merit, they are hereby upheld, the petition is hereby struck out with costs for being incompetent. Order accordingly. Dated at Dar es Salaam this 29th day of October, 2024. i-U :4 IL J %VJnyate JUDGE 12 Ruling delivered this 29th day of October, 2024 in presence of the petitioners represented by Mr. Dominicus Nkwera learned Counsel for the petitioners. D lyale JUDGE 13