jigana zengo others vs the district commissioner of namtumbo district another 2023 tzhc 15810 27 february 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 2 OF 2023 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS/PROHIBITION/CERTIORARI IN THE MATTER OF AN APPLICATION FOR COMPULSORY ORDER OF THE DISTRICT COMMISSIONER OF NAMTUMBO TO ACT WITHIN CONFINES OF THE LAW BY SEIZURE AND DETAIN 936 ANIMALS AND ORDERING FORCEFULLY EVICTION OF PASTORALISTS WITHIN NAMTUMBO DISTRICT CONTRARY TO THE LAW. AND IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA, 1977 (AS AMMENDED TIME TO TIME) AND IN THE MATTER OF ANIMAL WELFARE ACT, 2008 AND IN THE MATTER OF THE ANIMAL WELFARE (IMPOUNDED ANIMAL) REGULATIONS, 2020 GN No. 724 OF 2020 BETWEEN JIGANGA ZENGO 1st APPLICANT MONGO SENIDASE 2nd APPLICANT SALUMU SHIJA 3rd APPLICANT JINOGOLOLO MHELA .4™ APPLICANT MADUKA 31LASA ,5th APPLICANT VERSUS THE DISTRICT COMMISSIONER OF NAMTUMBO DISTRICT 1st RESPONDENT THE ATTORNEY GENERAL 2nd RESPONDENT RULING 23/02/2023 & 27/02/2023 E. B. LUVANDA, J l The Respondents raised preliminary objections via a notice filed on 22/02/2023 grounding that: One, the application is bad in law as it misuses of the court process, Two, the application is bad in law as it has been overtaken by events; Three, the application is bad in law as the Applicants have no locus standi. At the hearing, Mr. Emmanuel Bakari learned State Attorney for Respondents abandoned the first preliminary objection and argued in respect of the second and third point. Arguing for the second point, the learned State Attorney submitted that the cause of action brought by the Applicants have already been overtaken and determined, as the real owner of detained animals have been charged, convicted and paid fine in Criminal Case No. 9/ 2023 and 10/2023, the accused persons were Juma Lupunyo, Lugodeja Maduka, Nega Jinokololo, Simon Lucas and Jinokololo Mbepela. He submitted that at the moment, they are awaiting other process of taking their animals as per the judgment. The learned State Attorney submitted that this court to entertain this matter is like doing forum shopping as the cause of action has been overtaken by event, the relief sought have been overtaken by event as cannot be executed by this court. In response, Mr. Alex Nyoni learned Counsel for Applicants submitted that it is true that those who were charged in Criminal Case No. 9 and 10 of 2023 have been found guilty and have already paid fine in lieu of jail as per the judgment delivered on 20/02/2023. He submitted that up to the day before these submissions, animals were yet to be released. That even at the time of filling a counter affidavit on 22/02/2023, animals were yet to be released. He dispelled an argument that the matter had been overtaken by event, on the explanation that those animals are still under the control of the Respondents. That there is no proof of release tendered by the Respondent. He submitted that reliefs sought by the Applicants should not be interfered under technical grounds. On rejoinder, the learned State Attorney submitted that it is true that the accused persons have paid fine and animals are still on the First Respondent because there are procedures to follow to release those animals considering they are too many including to make sure that they will be safe to the destination where they are heading to. There is no dispute that the herd of animals pleaded in the chamber summons to wit 916 cattle, 12 ships, 5 goats and 3 donkeys, were subject for a charges in Criminal Cases No. 9 and 10 of 2023 determined and decided before Namtumbo District Court. According to a copy of Judgment of Criminal Case No. 9/2023, the accused person therein is Juma Luponya @ Masunga, and a subject matter therein were cattle and donkeys. In Criminal Case No. 10/2023, the subject matter was cattle, sheep, the accused persons are Lugojedja Maduka (First Accused), Nega Jinokololo (Second Accused), Simon Lucas (Third Accused) and Jinokololo Mbe'hela (Fourth Accused, who is the Fourth Applicant herein). The rest accused persons, were said to be either siblings or agents of the Applicants herein. At the end of a trial, it was ordered for herd of cattle to be returned to the owners. Herein, reliefs sought by the Applicants is for an order for release of 936 animals. To my view, a proposal for an order for release of seized animals is long overdue. As per the verdict or orders of the Namtumbo District Court in the judgment of Criminal Case No. 9 and 10 of 2023, the cause of action herein has surely been long overtaken by events and time. The argument that the actual release has not taken place, cannot be a ground for this court to embark on entertaining on a cause of action whose subject matter was already adjudged as aforesaid. To my view, an actual release and physical handover pertain to the follow up procedure for execution. It is the rule of practice that every court is bound to execute its orders unless where the law provide or dictate otherwise. But this court is not a proper forum for mounting or buffingup execution of orders issued by the subordinate court. As much orders for release and handing over of livestocks issuedby the Namtumbo District Court, are still valid, thereis nothingmore to be entertained by this Court over the same subject matter. As this point alone suffices to dispose the whole matter, I will not dwell on discussing the other point. The second preliminary objection is sustained. The application is dismissed. However, considering the stance of the matter, I make no order for cost