Ruling Red Cross Society

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO.63 OF 2022 JOHN MATHIAS BUSUNGU ………..……………………….………….… PLAINTIFF VERSUS TANZANIA RED CROSS SOCIETY ………………….…………….…. DEFENDANT RULING 6th & 12th of Aug. 2024. KIREKIANO J. On the 30th day of March 2002, the defendant convened a meeting of the National Executive Committee (NEC) which among others suspended the plaintiff from membership and from participating in the defendant’s day-to-day activities. The plaintiff who is a member filed a case against the said decision on the following reliefs. i) An order for declaration that, the National Executive Committee (NEC) meeting called and convened on the 30th March 2022 as a result of three resolutions affecting the plaintiff and consequently, suspending membership of the plaintiff and other member, barring the plaintiff from participation in defendant’s activities and giving other members a stern warning was illegal and nullity as was in fundamental violation of the Constitution of the defendant. 1 ii) A declaration order that, the decision made on 30th March 2022 was arrived at without affording the plaintiff a right to be heard. iii) A declaratory order that, all the consequential decision including that of 30th March 2022 made involving fate and rights of members before and after the institution of this suit be declared a nullity as were unconstitutional; iv) An order compelling the defendant through its National Executive Committee (NEC) to implement the functions of the National Conflict Resolution Committee machinery annexed to the Constitutional to be operational in the structure of the defendant’s National Conflict Committee which is the final appellate organ for conflict resolution, forthwith; v) An order compelling the defendant’s National Executive Committee to discharge its constitutional duties and develop Rules to be applied by the National Conflict Resolution Committee. vi) An order compelling the defendant’s National Executive Committee to discharge its constitutional duties and develop Regulation to run the affairs of the defendant as required by the defendant’s constitutional vii) Any other relief(s) as this Honourable Court may deem fit and equitable to grant and 2 viii) An order for the defendant to pay the costs of this suit. The defendant raised a Notice of Preliminary objection on points of law challenging the competence of the suit to the effect that: - 1. That, this Honourable Court is not properly moved to grant the prayers sought by the plaintiff, as it contravenes the provisions of Section 17(1) of the Law Reform (Fatal Accidents and Miscellaneous) Act, Cap 310 R.E 2019. 2. That this Honourable court does not have jurisdiction to grant the orders sought on reasons that the suit has been filed without obtaining leave of the court. The preliminary objection was heard orally. Mr. Antipas Lakam, Mr. Mukago, Miss Amina Malela, and Mr. Richard Mganywa, Learned Advocates, appeared for the defendant, while Douglas Mmari and Mr. Alex Balomi, Learned Advocates, appeared for the plaintiff. Submitting in support of the preliminary objection, Mr. Mukago argued that this court cannot grant the orders as sought by the plaintiff. He cited Section 17(1) Of the Law Reform Misc. Amendment Act, Cap 310 RE 2019, that as the relief prayed under paragraphs (a) (b) (c) and (d) are like prerogative orders, the same should be obtained by leave. He argued that in view of paragraph 2 of the plaint, the defendant is a public 3 entity, thus the plaintiff ought to have applied the writ under public law. To fortify his stance, he referred to the case of Halima James Mdee & Others vs Registered Trustees of Chama Cha Demokrasia Na Maendeleo (CHADEMA) & Others (Misc. Cause 27 of 2022) [2022] TZHC 10475 (8 July 2022) pg. 29. Mr. Mukago added that the orders prayed are not certain, and there is no leave to warrant this Court to grant the orders of mandamus and prohibition. In this, he cited the case of Stephano Abel Sapi & 7others Vs Tanzania Red Cross Society (Civil Appeal 236 of 2022) [2023] TZHC 18120 (16 June 2023), where the prayers sought were found rerogative in disguise and strike out as the plaintiff did not obtain leave. Regarding whether the defendant's action was public in nature, he argued that the framework of the society is the constitution which regulates the matters of the society and the public in general. He submitted that he is aware of the decision in the case of Laurent Rugambwa vs Tanzania Red Cross Society and Another (Misc. Civil Cause 3 of 2013) [2014] TZHC 2183 (26 March 2014), which this court ruled that the complaints on membership in the defendant society was private in nature. 4 In his reply submission, Mr. Balomi argued that the argument that the defendant is the public body is misconceived as per the amendment of Section 3 of the Written laws Misc. Amendment Act No. 2019, which provides that the society shall be a corporate body capable of being sued. He distinguished the case of Stephen Sapi and others from the prayers in the instant case. It was his submission that the prayers are on the establishment and implementation of defendants. He argued that the same are not subjected to the application of CAP 310. He made reference to the case of Cotwu (T) OTTU Union and Another vs. Hon. Iddi Simba, Minister of Industries and Trade and 7 Others (Civil Application 40 of 2000) [2000] TZCA 14 (30 June 2000). He argued that the suit was duly filed before this court as per Section 2(1) of JALA, Article 108 of the Constitution of the URT, and Section 13 of the CPC. He added that the issue of leave does not arise in the absence of facts. He distinguished the case of Halima Mdee and others from this and prayed this Court to invoke Section 3 of the CPC and dismiss the objection with cost. In his rejoinder submission, Mr. Mukago reiterated what he submitted in chief and added that Section 2(1) of JALA does not override 5 the applicability of other rules or laws. He rejoined that the decision of Lohay Akonay is not applicable in this case and reiterated that Stephano Sapi's decision is current and valid. Having heard the rival submissions by the learned counsels, the issue for determination by this court is whether the Preliminary objections raised by the counsel for the defendant has merits. As the preliminary objections raised are based on judicial review, I wish first to discuss what the judicial review means and the principles governing the same. Judicial review is the common law remedy that can only be exercised when the wrong is done by the administrative body and there are no other means to get legal relief. See James Gwagilo vs Attorney General (1994) TLR 73 at page, Mwalusanya J With regards to the 1st point of preliminary objection that the prayers sought by the plaintiff contravenes the provisions of Section 17(1) of the Law Reform (Fatal Accidents and Miscellaneous) Act, Cap 310 R.E 2019. The Section reads: - 17(1) “The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari” 6 The prayers which the counsel for the defendant claims to be of prerogative writs are contained under paragraphs (a)(b)(c) and (d) which are hereby reproduced hereunder: - (a) An order for declaration that, the National Executive Committee (NEC) meeting called and convened on the 30th March 2022 as a result of three resolutions affecting the plaintiff and consequently, suspending membership of the plaintiff and other member, barring the plaintiff from participation in defendant’s activities and giving other members a stern warning was illegal and nullity as was in fundamental violation of the Constitution of the defendant. (b) A declaration order that, the decision made on 30th March 2022 was arrived at without affording the plaintiff a right to be heard. (c) A declaratory order that, all the consequential decision including that of 30th March 2022 made involving fate and rights of members before and after the institution of this suit be declared a nullity as were unconstitutional; (d) An order compelling the defendant through its National Executive Committee (NEC) to implement the functions of the National Conflict Resolution Committee machinery annexed to the Constitutional to be operational in the structure of the defendant’s 7 National Conflict Committee which is the final appellate organ for conflict resolution, forthwith; The main issue here is whether the prayers above fall within the judicial review. The counsel for the defendant argued that the reliefs are prerogative orders, which must be obtained by leave of the Court. It was his view that the defendant is a public entity. While the counsel for the plaintiff disputed the same and said that they are not subject to CAP 310. In the cited cases of Stephen Sapi and others and that of Laurent Rugambwa this Court came up with two, different positions. It is to be noted that the question whether the defendant is a public body or otherwise was deliberated by this court in AbdaHah Likanoga & Others v Dar es Salaam Regional Management Committee of the Tanzania Red Cross Society, Misc. Civil Cause No. 37 of 1996. In that case Mapogano J held the society was not a public body but a private one. I am persuaded by this decision, I have as such considered the decision in Haima Mdee and others on the function of the entity. In my opinion this decision is distinguished here because in that case than applicants were elected members of the parliament whose issued of membership would affect their public representation. In this case the plaintiff membership in the society has no direct impact to the public. 8 In Laurent Rugambwa, this court considered whether the issue of membership in the society, was a public issue it was held that since the matter was relating to election conducted within Tanzania Red Cross, it was a private arrangement between the members, it is neither a government functions nor a matter of public law consequences, therefore the prerogative remedied were not available in such situation. The same applies in this case, as the issue of suspending the plaintiff from membership and from participation in the defendant’s day-to-day activities, is a private one and does not affect the public at large. I have also considered the decision in Stephano Abel Sapi & 7 others having given it thought and its deserved weight, I am alive that this court will not as a matter of principle of stare decisis is depart easily from its position, however, I am unable to take the view taken in Stephane Sapi, this is because, one the same did not appreciate the decision in AbdaHah Likanoga that the defendant is a private entity. Two, the same did not take note of the decision in Rugambwa which was the position already taken by this court. It is my opinion that the matters prayed by the plaintiff does not affect the republic in general seeks but for individual redress. Therefore, they are not in the sphere of public law but rather a private law. That 9 being the case, the prerogative orders as a public law remedy are not the subject in this suit. Having said so, the preliminary objections raised have no merits, the same is overruled, no order for cost for now. A. J. KIREKIANO. JUDGE 12.08.2024 COURT: Ruling delivered in chamber in the presence of Mr. Douglas Mmari for the plaintiff and in absence of the defendants. A. J. KIREKIANO. JUDGE 12.08.2024 10