james francis mbatia vs the registered trustees of national convention for construction and reform mageuzi nccr mageuzi 2023 tzhc 18862 13 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISCELLANEOUS CAUSE NO. 18 OF 2023 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION BY JAMES FRANCIS MBATIA AND IN THE MATTER OF THE DECISION OF THE NATIONAL CONGRESS OF THE NATIONAL CONVENTION FOR CONSTRUCTION AND REFORM MAGEUZI (NCCR-MAGEUZI) EXPELLING THE APPLICANT FROM THE RESPONDENT. AND IN THE MATTER OF THE DECISION OF THE NATIONAL CONGRESS OF THE NATIONAL CONVENTION FOR CONSTRUCTION AND REFORM MAGEUZI (NCCR-MAGEUZI) REMOVING THE APPLICANT FROM THE POSITION OF THE NATIONAL CHAIRPERSON OF THE RESPONDENT BETWEEN JAMES FRANCIS MBATIA................................................................ APPLICANT VERSUS THE REGISTERED TRUSTEES OF NATIONAL CONVENTION FOR CONSTRUCTION AND REFORM MAGEUZI (NCCR-MAGEUZI)........................................................................ RESPONDENT RULING 11/07/2023 & 13/07/2023 KAGOMBA, J. On 11th July, 2023 when this matter come for hearing of the applicant's application for judicial review, Mr. Hassan Ruhwanya, counsel for the i respondent, prayed the court not to proceed with hearing for a reason that he had already filed Civil application No. 512 of 2023 at the Court of Appeal of Tanzania (Hereinafter the "CAT") seeking order of the CAT to appeal, by way of second bite, against the Ruling of this court dated 21st May, 2023 by Hon. Mgonya,J (as she then was) which granted leave to the applicant to file this application for judicial review. Mr. Ruhwanya cited the decision of this court in the case of Legal and Human Right Centre Vs. The Minister for Finance and Planning & Others, Misc. Civil Case No. 28 of 2021, High Court, Main Registry at DSM, (Hereinafter the "LHRC Case"). Reacting to the above prayer, Mr. Hardson Mchau, counsel for the applicant, who was ready to proceed with hearing, heavily lamented on the behaviour of his learned colleague, Mr. Hassan Ruhwanya. Mr. Mchau saw nothing in Mr. Ruhwanya's prayer but antics aimed at delaying the hearing of the application which, to him, amounted to professional misconduct. He therefore urged the court to take disciplinary action against Mr. Ruhwanya for professional misconduct by invoking the provision of section 22(2) (b) of the Advocates Act [Cap. 341 R.E 2019]. He also prayed for the hearing to proceed as ordered by this court on 10th July, 2023. 2 The main reason for Mr. Mchau's prayers is that Mr. Ruhwanya made an exactly similar prayer as Mr. Faustin Sungura, the Acting Secretary General of the respondent had unsuccessfully made to the court on 10th July, 2023. It was Mr. Mchau's contention that since this court had already ordered the hearing to proceed, owing to the fact that Mr. Sungura did not submit any proof of filing of the said Civil Application No. 512 of 2023 to the CAT, and since Mr. Ruhwanya has also not submitted any such proof for the court to determine if the matter in contention before the CAT has any bearing to the matter pending before this court, Mr. Ruhwanya's prayer was rendered res judicata. Mr. Mchau also accused Mr. Ruhwanya for cheating the court in his submission that the LHRC Case was about an application for leave to appeal as a second bite while it was for judicial review as per page 1 of the ruling of the court. On his side, Mr. Ruhwanya rejoined firstly by expressing, though reservedly, his displeasure on the attack leveled against him by his learned colleague, adding that Mr. Mchau knew the appropriate forum for dealing with allegation of professional misconduct if he wished to pursue that course. 3 He also rejoined that the procedure to apply for leave to the CAT by way of second bite is known to our legal system and that by applying that procedure he cannot be accused of professional misconduct. He explained that the unsuccessful application to this court for leave to appeal against the decision by Hon. Mgonya,J (as she then was) vide Misc. Application No. 17 of 2023 was the first bite. That, the respondent still believes that there are legal issues to be determined by the CAT, a reason why he pursues leave to appeal, by way of the second bite. Regarding the order of this court made on 10th July 2023 which set the application for hearing on 11th July 2023, Mr. Ruhwanya rejoined that the same was based on the fact that the respondent had not served this court with a copy of the Civil Application No. 512 of 2023 filed in the CAT. He added that the respondent had already furnished the same to the court on 10th July, 2023 and that the said document was in public domain. As regard the allegation ofcheating the court, Mr. Ruhwanya rejoined that page 2 of the typed Ruling of the LHRC Case shows clearly that the case was about a notice of appeal to the CAT, by way of second bite, as is the case in the instant matter, and therefore he had not lied to this court. 4 He concluded his rejoinder by emphasizing that Mr. Mchau's prayer on alleged professional misconduct was misconceived. He also reiterated that this matter be struck out with leave to refile pending the decision of the Court of Appeal in Civil Application No. 512 of 2023. Having carefully considered the arguments put forth by the learned counsel for both parties, the main issues for my determination are firstly, whether there are merits in the prayers made by Mr. Mchau, for the court to suspend Mr. Hassan Ruhwanya for professional misconduct and to proceed with the hearing of this application. Secondly, the court shall determine whether to strike this application with leave to refile as prayed by Mr. Ruhwanya or not. I wish to address these issues as hereunder. First and foremost, it is true as submitted by Mr. Mchau, that on 10th July, 2023 when this matter came before me, I ordered the hearing to proceed on 11th July, 2023 having rejected the prayer by Mr. Faustin Singura to strike out this application on account of there being Civil Application No. 512 of 2023 filed by the respondent's advocate in the Court of Appeal. Ostensibly, and as correctly submitted by Mr. Ruhwanya, this order was based on the fact that Mr. Sungura didn't furnish this court with a copy of 5 that application. It was imperative for this court to see a proof of filing and establish what that application was all about so as to consider his prayer. It is also true, however, that before the hearing of this application could proceed on 11th July, 2023 as ordered, the court on 10th July 2023 was furnished with a copy of Civil Application No. 512/01 of 2023 which was filed in the CAT on 16th June,2023 by the respondent against the applicant herein. The same was also lodged in the High Court (Main Registry) at DSM on 20th June, 2023. Having perused the Notice of Motion for Civil Application No. 512/01 of 2023, it is true that the same seeks to move the Court of Appeal, by way of a second bite, to grant leave to the respondent herein to appeal against the decision of this court in Misc. cause No. 4 of 2023. This court has no power to deliberate on the propriety or the merits or otherwise of the grounds stated in that application. The jurisdiction to do so lies in the CAT I from the moment that application was duly lodged there. In Shabir Tayabali Essaji v. Farida Seifuddin Tayabali Essaji, Civil Application No. 206/06 of 2020, CAT at DSM, (Available at 6 www.tanzlii.org.), the CAT stated that a second bite application is not intended to fault the High Court Judge on his refusal of extension of time (in this case refusal to grant leave), nor is it an appeal or revision but completely new battle where the applicant is at liberty to employ new weapons and new means for a 2nd time to bitd'. It follows, therefore, that this court cannot foretell the arguments which will be put forth by the parties during hearing of that application in the CAT. Most significantly, this court cannot control the eventual outcome of that battle. What is obvious is that the filing of the said application has opened up a legal possibility for the respondent to contest the leave to file for judicial review granted to the applicant by this court. It also follows that if, and I mean if, the respondent succeeds in the CAT and the decision to grant leave to the applicant is overturned for whatever good reasons, this application for judicial review will no longer be tenable in law. It is irrefutable that the hearing of this application would not be possible without the applicant obtaining leave of this court as per the dictate of rule 5(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 GN No. 324 of 2014. It is 7 also not disputed that the said leave was granted by Hon. Mgonya, J (as she then was), a decision which the respondent intended to appeal against when he unsuccessfully sought leave before me in Misc. Application No. 17 of 2023. It is therefore true, as submitted by Mr. Ruhwanya, that the application for leave to appeal to the CAT, which I refused to grant, was the first bite, and with that refusal, the door was opened for the respondent to apply for leave to appeal, as a second bite, to the CAT. The above situation is materially similar to the cited LHRC Case specifically on the fact that in both cases the granting of leave to the respective applicants to apply for judicial review, by way of the first bite, was refused by this court on ground that such granting was an interlocutory order which was not appealable. Also, in both cases, the machinery of the CAT was ignited by the respondents with a view to challenge the said granting of leave to the applicants to file for judicial review. To avert the fear of being overruled by the CAT and thereby creating chaos in the administration of justice, as well as creating conflicting decision or even jeopardizing the respondent, it was decided in LHRC Case that the 8 application should be struck out with leave to refile to give way to the Court of Appeal to determine if the intended appeal was tenable. I am alive to the fact that in the matter before me, the respondent has not filed a notice of appeal rather a notice of motion under Rules 10 and 45A (1) (a) and 48(1) and (2) of the Tanzania Court of Appeal Rules. Probably, by citing the said Rule 10 and 45A (1) (a), the respondent intends to first seek extension of time before seeking an order of leave to appeal. Notwithstanding this difference in the stages at which these two cases came to this court, the fact is that a legal possibility for the respondent to file an appeal has been opened and the risk which this court intended to avert in the LHRC Case is, again, awaiting this instant application, in the shadow. I am also alive to the fact that I am not bound by the decision made in LHRC Case. There is also a firm legal position that each case has to be decided according to its own set of facts, evidence and obtaining circumstances. Having set the above background, I would now turn to determine the issues before me, one at a time, as hereunder. 9 Firstly, as to whether, I should invoke the provision of section 22(2)(b) of the Advocate Act, I don't think that prayer by Mr. Mchau has merit. The above deliberation reveals that no professional misconduct was committed by Mr. Ruhwanya in so far as the right to apply for leave to appeal to the CAT, by way of second bite, is a procedural reality in our judicial system. Also, there is no cheating done by Mr. Ruhwanya in respect to his submission regarding the ruling of this court in LHRC Case since the two cases are similar in most of the material particulars, as I have shown herein above. As to whether the hearing of this application should be left to proceed, I find it logical not to pursue that route for the same reasons as stated in LHRC Case. I think it is proper and fit to borrow a leaf from that decision particularly the reasoning that in the event the CAT proceeds to hear and ultimately grant leave to the respondent as prayed in the filed Civil Application No. 512/01 of 2023, and in the event the appeal is also successfully heard, it will follow that the decision which may be made by this court in this application will be overruled by the CAT. Such a scenario may create unnecessary chaos in the administration of justice, by having conflicting decisions or even jeopardizing the respondent. At this moment, patience is the word to be embraced by the parties and the court alike. 10 As to whether this application should be struck out with leave to refile as prayed by Mr. Ruhwanya, I also have a different opinion. Striking out the application with liberty to refile will subject the applicant to time limitation under the Law of Limitation Act [Cap 89 R.E 2019]. The applicant will also have to incur costs refiling his application. What I consider to be the appropriate and just remedy to both parties under the circumstance of this matter is to stay the hearing of this application pending the determination of the Civil Application No. 512/01 of 2023 lodged in the Court of Appeal by the respondent. Accordingly, it is so decided. Each party to bear own costs. Dated at Dodoma and delivered virtually this 13th day of July, 2023. ABDI S. KAGOMBA JUDGE ii