19970813 TZHC Dar es Salaam

'j Il'l THE HIGH COURT OF T,".NZ!\.NIA 1\.T DAR .ES .SALMM CIVIL CASE ~·')~ 22 OF 1997 1•.. ·IBRAHIM HAMISI CHUA ~ 2o SHABAN MBWANi', MK!,ZI •••••••••• • o • .,PLAINTif,iFS VERSUS THE D/\.R ES SAL/\./1.M REGION SPORTS COUNCIL & 2 ANOTHER •••••••••••••••RESPONDENT ?ULING Ibrahim Ha:nisi Chua and Shabani Mbwana Mkasi swear in their jo.in.f affidavit that they were among the democratically elected members of the executive committee o'f the Dar es salaam Footbal fisso·eiation (DRFA),~ Another election, the subject of the dispute which has crystalized in these ,, proceedings, was held on 13th April, 1997n The applicants swear further tho.t they were among the aspirants for the DP.:F!i. leadership., According to them those elections were to be conducted by the Dar es salaam Region Sports Council (DRSC) 1 the first respondent as by law provided and in conformity with directives of the Nationc:..l Sports Council of Tanzania, ·NsC. That contrary to a decision of the NSC, the applicants were disqualified from contesting the elections as a result of which their names were omitted from the list of aspirants. They aver, which is no doubt hearsay, that the NSC and the Football Association of Tanzania (FAT) have refused to recognise /the election results and were conducted by the Tirst responaento So it is sworn by the applicants tho.t the tug~ of - war for authority between them and those who were returned to office has created a vaccuum in the. leadership within the DRFA.oAccod.in;5 to the applicants the only prudent course to take is to re-instate them ,, in the Offices they lost at the disputed elections until the application for the prerogative orders ,is finAlly determinedo In order to facilitc,te this relief the applicants have filed an application for a temporary injunction whereby the respondents ., their agents and those who were electe:: at the disputed election would be restrained from conducting, or from doinb anyithing relating to, the activities of the DRFA to maintain the status quo pending the final determination of the application for the prerogative orders. 1\.nd the applicants consider their application such an urgent matter that the respondents should not be heard.; the application should be determined ex ,par~.~- interentially alongside their application for leave,. 2 Mr. Nyangarika, learned counsel who ad,rncates for the applicants, has urged me to accept the view taken by his clients. He submits that the urgency is based on the premise that the &:1plicants believe that there is no legal leade-rship at DRFA. As a result of that vaccuum, he contends, the former leader.ship to \-ih-ich the applicants belong and the one returned to power at the disputed election ii.re ·competing in the dischc:.:c-ge of the functions and duties of the DRFAo It is his contention that this fight for po1ver has paralysed Df,w'.!\ 's activities., Hence the prayer that 'l'he respondentrs ,.~- the application be heard ....ex parte" learned· counsel1 Mro Mwidunda was not heard on the ground that he can only do so if and when the application for leave is all01-1ede Mr Nyangarika has referred me to the decision of this case in Vidyadhar qlr,_i1laralal Cha~a Vo the Director of Immigration· Services & S O"tl:!,ers 1 Misc~Civ.Cause Noo 5 of 1995, which decided that preventive justic·c ·in· the form of injunctive relief can be dispensed to a party whose personal rights and freedom 2re imminently in jeopardy and that there is no other immediate course of action under which such person would be protected. In the Chavi£ case the applicant was served with a deport~tion order whic4 was to take effect immediatelyo If he were deported, then all his rights, including his right to challenge the deportation order would have been brought to noughto Mr. Nyangarika would wish to persuade me to accept the proposition thnt his clientf·s rights are also so jeopardized that an immediate injunctive relief is the only remedy. I have given due consideration to this argument but I am for from being persuaded that there are circumstances in this case which are similar to the Chavda case,, I have formed the firm opinion that there is nothing in the instant case which is comperable to Chavda 1 s caseo Here no right of the applicants will be wasted if the relief they seek will not be granted them until the other side is also heard. On the other hand I find no merit whatever in the application and I therefore propose to dispose of it even without hearing the respond~ntso There are two grounds for this viewa , although the applicants allege in their joint affidnvit thc'1.t the NSC does not recognise elections in which the applicants were unseRted 1 there is no official from that institution who has worn to support that allegation., The allegation is therefore crying for proof. 3 ... .Secondly, the applicants wou._d want this court to bestow unto them power which was wrested from them at an election even before the court has decided, if there is evidence to prove the alleged irregularity, that indeed the disputed elections were illegal and therefore voido This court will not turn itself into the electorate which ui~seated the applicant, its duty is limited to deciding whether or not the a.isputed elections are void .• Upon the foregoing reasons I find no need or the necessity to require the respondents to defend the applica.tion for tho injuctive relief. As I have have se.ici the applica.t ion for e:c parte procedure and ti:'e application for a temporary relief have no meI'it; :~ would dismiss them., In the result the application for a temporary injunction is dismisse,'. with costs. Delivered. J.M. Mackanja JUDGE 13/8/1997 Mr. ·Nyangarik.::-1.: For Applicants Mr. Mwidunda (S.A) For R9snondent A ... Mr. Mwidunda We pray for time within which to file our counter affidavit Mr. Nyar.~garika: . We have no objection Order: Counter affidavit in respect of application for leave to appiy for tnn progative orders. But he should not be given a long time because he wns served a long time ago., Order: Counter 3.ffidavit to be filed on or before 26/8/97.. Mention on 27/3/9? J. M. Mo.ckanja JUDGE 13/8/19q7