isaya joseph chawinga vs commissioner general of immigration services and another 2021 tzhc 5850 25 august 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 6 OF 2021 IN THE MATTER OF APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF THE DECISIONS OF COMMISSIONER GENERAL OF IMMIGRATION SERVICES OF 18th OCTOBER, 2018 AND 24th AUGUST, 2020 BETWEEN ISAYA JOSEPH CHAWINGA.............. APPLICANT AND THE COMMISSIONER GENERAL OF IMMIGRATION SERVICES................ .1st RESPONDENT THE HON. ATTORNEY GENERAL....... 2nd RESPONDENT RULING 5 & 25 August, 2021 MGETTA, J: Upon being granted a leave on 9/2/2021 in Misc. Cause No. 50 of 2021 to apply for an orders of certiorari and mandamus, the applicant Isaya Joseph Chawinga, through a legal service of Mr. Emanuel Anthony, the learned advocate filed a chamber summons made under sections 17(2), 18(1) and 19(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 and Rule 8 of the Law Reform (Fatal Accidents and Miscellanous Provisions) (Judicial Review Procedure and Fees) Rules 2014 (henceforth the 2014 Rules). The chamber summons is supported by verifying affidavit sworn by the applicant. In the chamber summons, the applicant is praying for the order of Certiorari to quash the decision of the 1st respondent, the Commissioner General of Immigration Services issued on 18/10/2018 and 24/8/2020; and, for the order of mandamus to compel the 2nd respondent, the Attorney General, to reinstate him into his public service position without loss of entitlements. Along with filing a joint counter affidavit, the respondents also filed notice of preliminary objection complaining that the application is incompetent for contravening the provisions of rules "8(2)" and 11 of the 2014 Rules. When the matter was called on for hearing, it was ordered that the application and preliminary objections be argued together by way of written submissions. Both parties filed their respective submissions as ordered. In respect of submission relating to the preliminary objection, Ms. Narindwa Sekimanga, the learned state attorney requested rule 8(2) to read rule 8(1) (a) of 2014 Rules as the former citation resulted from clerical error. That was agreed and the error was accordingly corrected. Now, where there is a preliminary objection, as a cardinal principle such objection is resolved first. I therefore begin with whether the application contravenes the provisions of rules 8 (1) (a) and 11 of the 2014 rules; and, if the answer is in the affirmative, then whether it is incompetent before this court. For ease of reference, rules 8(1) (a) & 11 of the 2014 Rules are quoted as hereunder: "8 (1) Where a leave to apply for judicial review has been granted, the application shall be made- (a) by way o f chamber summons supported by an affidavit and the statement in respect o f which leave was granted" (bold supplied) "11. Every party to the proceeding shall supply to all other parties, copies o f all the documents which he proposes to use at the hearing and no grounds shall be relied upon or any relief sought at the hearing o f the application except the grounds and relief set out in the statement 'Bold supplied A glance to the foregoing quotation, I am certain that upon grant of leave to apply for certiorari and mandamus, the mode of coming before this court equipped with application for judicial review is by way of filing chamber summons which must be accompanied by affidavit and statement. The record of this application shows that the affidavit sworn by the applicant was filed to support the chamber summons; and, at page I at the bottom of the chamber summons, it is indicated that "the application......... is supported by the affidavit o f Isaya Joseph Chawinga and the statement in respect o f which leave was granted." Unfortunately, as it appears it is only the affidavit which is attached to the application and not the statement, although mentioned in the chamber summons. It is further on the record that one of copies of documents which the applicant proposes to use at the hearing of the application is a document annexed and marked as "/C7 - 6 af' which is a statement that was used in applying for leave. But I hastily state because that annexture'7C7 - 6 af' was made in pursuant to rule 5 of the 2014 Rules, it could not be used again in the application at hand. The proper rules to use in this application are rule 8(l)(a) read together with rule II of the 2014 Rules which are made to carter for application for Judicial review, while rule 5 for leave to apply for judicial review. As provided by rule 11 read together with rule 8(l)(a) of the 2014 Rules and as correctly submitted by Ms. Narindwa Sekimanga, the learned State Attorney in her written submission, the importance of the statement to be attached to application of this nature is to first, prevent the applicant from bringing at the hearing new grounds and reliefs other than what the leave was granted for. Secondly, in absence of the statement providing for reliefs sought and the grounds on which the reliefs is sought, this court becomes unable to grant what is not sought; for, the reliefs and grounds for that reliefs become unknown to the court in absence of the statement. In the application at hand, there is no statement setting out grounds and reliefs by the applicant apart from the chamber summons and the affidavit verifying applicant's facts. Now one can see without it one cannot move forward to hear application for judicial review. Notwithstanding the foregoing, the provision of rule 8(1) (a) of the 2014 Rules is couched on mandatory word "shall"which under the provision of section 53 (2) of the Interpretation of Laws Act, Cap.l, means and I quote that: "53 (2) Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." It is true that the word shall whenever used does not always mean mandatory, but each and every case is and shall be decided on its own circumstances, vide: Goodluck Kyando V. Republic; [2006] TLR 363. In the circumstances of this application, it goes without saying that the requirement enshrined under the provision of rules 8 (1) (a) and 11 of the 2014 Rules ought to be complied with by the applicant. It is mandatory to have the statement as it carries reliefs sought and grounds for that reliefs. Without it, it is fatal to the application. I therefore find that the raised preliminary objection does meet tests laid down in the famous case of Mukisa Biscuits Manufacturing Co. Ltd V. West End Distributors Ltd [1969] EA 696. Even if the respondents' side could have cited it wrongly in the notice of preliminary objection as they did, or not cited it at all, since attaching a statement is a legal requirement, I could have suo moturaised it as I know it is procedural law that requires that in application for judicial review attachment of the statement in respect of which leave was granted is a must. Failure to do so renders the application incompetent. Without prejudice to the foregoing, one could have urged this court to invoke the overriding objective principle to rescue the situation. I am saying that could have not served the purpose as attaching the statement is a must as clearly discerned in the provisions of rule 8(1) (a) and 11 of the 2014 Rules which are mandatory provisions of procedural law which go to the very foundation of the application. Thus, overriding objective principle could not be successfully invoked. To support this argument, I have the case of Mondorosi Village Council & 2 Others vs. Tanzania Breweries Limited & 4 Others; Civil Appeal No. 66 of 2017 (CA) (Arusha) (unreported), the court of Appeal held inter alia at pages 14 to 15 that: "Regarding the overriding objective principle, we are o f the considered view that, the same cannot be applied blindly against the mandatory provisions of the procedural law which go to the very foundation o f the case." And at page 15, the Court of Appeal observed that when the bill amending and introducing overriding objective principle in our laws, it was considered that the proposed amendments should not be designed to blindly disregard procedural laws or rules that are couched on mandatory terms. With all the foresaid, I sustain the preliminary objection, and the application is found incompetent for non-compliance with the mandatory requirement of the law. Hence, the incompetent application is accordingly struck out. No order as to costs. Accordingly ordered. Dated at Dar es Salaam this 25th day of August, 2018. presence of Ms. Rehema Mtulya, the learned state attorney assisted by Mr. Salum Othman, legal officer, both for the respondents and in the presence of the applicant in person. J.S. MGETTA JUDGE 25/ 8/2021