19971021 TZHC Dar es Salaam

1 IN THE IDGH COURT OF TANZANIA , ATDARESSALAAM ✓ MISC. CAUSE NO. 22 OF 1997, • C "1. IBRAHIM HAMISI CHUA 4; , ... 2. SHABAN MBWANA MKASI . r.o VERSUS 1. THE DAR ES SALAAM REGION SPORTS COUNCIL. 2. DAR ES SALAAM REGIONAL COMMISSIONER 3. THE-ATTORNEY GENERAL RULING MACKAJA,J. p .-- This is an application for leave to file an' application for the prerogative orders of certidrari, ffl;~ndamus and prohibition. The application.is supported by the affidavit of Ibrahim Hamisi chua and Sha bani Mbwana Mkasl, the applicants. As usual the application is accompanied by the statement which sets out the ultimate " reliefs sought and the grounds upon which they are based. The affida~it evidence shows that the applicants were until 13th April, 1997 ,. () among the elected members of the Dar es Salaam Regional Football Association -·i . . ,-.. (DRFA). On that day elections were held and new office bearers were returned. The applicants swear that that election was irregular on a number of grounds. 0 ·• • Firstly, it ~as not organizecl and supervised by the National Sports·Council (NSC). Secondly although the applicants were among the' contestants they were dropped . {~ ~ from the race by the alleged illegal and unilateral decision of the Regional () . Commissioner, the second respondent. Thira, 'that the dates for the election were C •, ., changed from 17th or 18th Apr~ 1997 from as set by the NSC to 13th April, 1997. 0 . The applicants swear, therefore, that the election was illegal because ' the second ' 0 respondent has no power to undo what the NSC had decided, that is the dates on :.-hich the elections were to be held. According to tlie affidavit evidence only the ,, Minister for the time being responsible for sports had power to do so. The change of L ♦ 2 the election dates and the conduct of the election was therefore according to application illegal. Finally, the applicants beleave that their application for the prerogative orders has overwhelming chances of success if the present application is allowed. So the applicants, in terms of the statement, will apply for the order of certiorari to quash the first respondent's order by which the elections were conducted in contravention of NSC's directive, and an order for mandamus to compel the first respondent to include the applicants in the race for the Dar es Salaam Regional Football Assodation (DRFA) elections. A declaration I suppose, that the impugned elections were illegal is the purpose of the third relief in the statement. The order of prohibition has been abandoned. I will therefore conf"me myself the two prayers as contained in the statement. The respondents oppose this application. Lt. Col. Ally Hassan Mwanakatwe, !he Secretary General of the DRFA has sworn that his Association does operate as a subordinate body of the DRSC which is only an affiliate of the NSC. So the NSC has , no power to direct how DRSC shou_ld conduct its affairs. According to him the expunged elections were conducted according to the agreed procedure. According to that procedure there was conducted a pre- qualification exercise. The applicants were dropped during that exercise. Ms. Salome Thadei Sijaona, the Chairperson of the Dar es Salaam Region c:1I Sports Council, made a more in-depth oath. She covered more ground than Lt. Col. Mwanakatwe. A part from saying that the elections were properly conducted, like Lt. CoL Mwanakatwe, she also swore that the DRSC received no complaint from those who were dropped during the pre-qualification exercise. She went on to swear 1 that there is the procedure of appeals for those who were aggrieved. Ms. Salome Thadei Sijaona swears that their forum was the DRSC, not the NSC. As to whether the NSC had authority to stop the elections she states that such a course of action was unreasonable because the NSC had nothing to do with the elections which were held and were conducted according to DRSC constitution; that the NSC acted on oral complaints; and that intervention of the Chairman of the NCS was i =-· r -,.. 3 unreasonable. So the decision of the NSC on 26th April, 1997 that they did not recognize the DRFC elections was made without jurisdiction. H Mr. Saidi El- l ,Maamry, the Chairman of the NSC, has sowrn that the DRSA was bound the decision of the NSC, anyway. However, he does not state where he derives the powers of the NSC to order a re-shedding of the impugned elections "... so that it can have time to hear and determine the appeal from the applicants as it did in the circumstances of this case for the interests justice. On his part Mr. Leonard Thadeo swore that only the NSC, of which he is the Registrar, was the only authority to hear the appeals from the applicants. He also does not go on to disclose how the NSC acquired that jurisdiction. As we all know, a • statutory tribunal or body will derive its authority from the law that creates it. 'f--,.) There is no other way. lddi Aballah Chaurembo deepens that he is the Secretary to the Dar es Salaam Region Sports CounciL It can be discerned from his affidavit that he was the one holding that position at the time of the impugned elections. He still believes that he is the rightful holder of that office so that he has taken steps to ensure that the management of the sports affairs in his area of jurisdiction remains under his authority. Otherwise there is nothing much else in his affidavit. Now, from the above affidavit evidence, the decision whether or not to allow tflis application depends on whether the respondents' decisions to call and conduct the disputed elections they acted intra vires their powers. This decision will entail an examination of the National Sports Council Act, No.12 of 1967, as emended by the National Sports Council of Tanzania (Amendment) Act, No.6 of 1971 under which the NSC and DRSC are constituted. An examination of that Act shows that the • functions of the NSC are enumarated in section 4, namely:- (1) ••• (a) to develop, promote and control all ammeter sports on a national basis with sports associations by providing:- (i) training and other staff; (ii) grants-in-aid to sports associations; (iii) staid, playing fields and other facilities; 4 (iv) sports equipment and other sports items as may be necessary for the accelerated development of sports; (b) to encourage and facilitate co-operation among the various sports associations; (c) to approve national and international competitions and festivals organized by sports associations; (d) to organize, in consultation with sports associations, national, international and other sports competitions and festivals as a means of exchanging experience and fastering friendly relations with other nations; (e) to stimulate general interest in all sports by their organization at all levels; and (2) The Council may:- award, in consultation with sports associations, medals, diplomas, -..:c...-•.::::-. . . : : . : : _ ~ - -" - L medals diplomas, certificates, trophies, and other incentives for the encouragement and promotion of sporting activities; (b) sponsor scholarships for the training of coaches and organizers; (c) advise the Minister regarding external relations in the field of sports; (d) arrange with local authorities for the provision of sporting facilities at local levels and endeavor to inculcate a high level of sportmanship and discipline in all sportsmen; !;"' (e) (t) provide sports medical clinic and other such facilities; raise by public appeals or otherwise funds and property of the Council in the furtherance of the council's functions and to hold and invest all ' moneys not applied for such purposes as may be thought fit; (g) consult with other associations, institutions, or persons - upon matters of common interest relating to amateur sports, co-ordinate their views and opinions and make representations, on behalf of or in conjunction with any of them, to the public or otherwise on such matters as aforesaid, and generally do all acts and things, whether alone or in .- - I • 5 co-operation with any other association, institution as person as may be thought fit in the interests of the Council or of any affiliated body, which are considered to be of benefit to sports or physical recreation in the United Republic generally. (3) may, from time to time, advise the Minister on matters relating to registration, cancellation of registration, exemption from registration, rescission of exemption from registration of sports association generally or of any particular sports accusation. All sports association have to be registered under section 11 of the Act. Conditions for registration are set out in sections 11 to 18. The registrar, appointed 3 under S.10, has been given powers to register or to refuse to register any sports ) association as by law provided; to call for audited accounts from the sports association. As it is now obvious, nowhere in the principal regislation has the NSC or the Registrar been given authority to supervise the elections of any sports association that is registered under the Act. In addition to the Act there are the National Sports Council of Tanzania (Effective Implementation of Mandate) Regulations which were published as Government Notice No. 471 of 1990 Regulation 4 repeals the provisions of section 4 of the Act; but the Regulations however, refer to Regional and District sports councils. Regulation 2 pro':7ides that these councils are bodies corporate. Regulation 3 is more relevant; it provides:- "3. (i) There is established a Regional and District Sports Council which shall be affiliated to the National Sports Council of Tanzania. (2) The Council shall - (a) be a body corporate ... Curiously the Regulations do not make provision for the election of members of the Regional or District Sports Council. Regulation 5(1) specifies Government Officials who will constitute the Council at regional or at district level. They are appointed by the Regional Commissioner or the District Commissioner, as the case may be. And nowhere in these Regulations is there provided that the NCS shall conduct and supervise elections to these councils. . 6 Elections are provided for, in this case, in Part V of the constitution of the first respondent, the DRSC which covers paragraphs 23 to 27. Anyone who is a citizen of this country may contest an elective office under that constitution. As else where the NSC does not feature anywhere in this constitution. Upon the evidence available I am satisfied that the second respondent is an autonomous institutions with a mandate to conduct its own affairs, including calling and holding elections for its office bearers. In this behalf the law recognizes only the Regional Commissioner or the District Commissioner, as the case may be, as public .officials who have a say in their respective in their sports associations. As it has been demonstrated, the NSC is charged with the promotion of sports activities and the development and discipline of sportsmen. It may delegate some of these I ) functions to the Regional and District sports councils. Since jurisdiction is a creature of statute, the NSC cannot assume it in order to acquire controller the Regional and District sports Councils. That will be wrong and contrary to Law. Mr. INyangarika, learned counsel for the applicants and Mr.Mwidunda, learned State Attorney for the respondents, have addressed me at length on a number of issues, matters I have discussed and others I now do not consider necessary to determine. I commend learned counsel for their industry and thoroughness in their approach in the preparation of their written submissions. Before I conclude let me say this, that it appears from correspondence originating from the honourable the Attorney General that the applicants have written a letter to register the withdraw of their application. That letter has not reached me. Even if it had been received and formed part of these proceedings, it is not the practice of this court to entertain such applications by way of correspondence letters. It is also curios that while the matter is sub-iudice the Registrar of sports has made public statement in which he recognizes the DRFA leardership that was unseated during to the controversial elections. That course of conduct may amounts to a criminal offence under S.114(I)(d) of the Penal Code. The DP Director of Public Prosecution in the exercise of his discretion, may wish to institute criminal Investigations against the said Registrar. I will say no more. 7 Upon the reasons I have setforth I am satisfied that the applicants' case is a thin one; they have not been able to draw that leave is granted them they will have a prima facie case against the respondents. For while it is claimed that the respondents acted ultra vires their powers and that they usurped the authority of the NSC in conducting the elections, it would appear that it is the NSC that meddled in the lawful discharge of the respondents when it unsuccessfully purported to set down a date on which the first respondent was to hold its elections. Accordingly, the application for leave has no merit whatever. Whereupon it is ordered that the applicants or anyone either acting for them or acting in furtherance of his own interests shall not from the date of this ruling interfere with the administration of the DRFA. From now on DRFA shall be run and be managed by leadership that was elected during the election that were conducted . - by the respondents. ,,. The application for leave is accordingly dismissed with costs. Delivered. J.M. MACKANJA JUDGE 21/10/97 ' \ • (~ Appearances / ,' i Mr. Nyangar~ka: For Applicants Mr. Mwidunda (SA): For Respondents. I CERTIFY THAT IT IS A TRUE COPY OF INAL. 0