CIVIL CASE NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE N0. 18081 OF 2024 LAWRENCE KIMEA………………………….………………………1ST PLAINTIFF MWINJUMA KONDO ………………………………………….…...2ND PLAINTIFF TWAHA UWESU ……………………………………………….…….3RD PLAINTIFF VERSUS ALLY MUSA KAMTANDE…………………………………………..1ST DEFENDANT THE BOARD OF TRUSTEES OF TEMEKE DISTRICT FOOTBALL ASSOCIATION (TEFA)……………….. 2ND DEFENDANT TEMEKE DISTRICT FOOTBALL ASSOCIATION ELECTORAL COMMITTEE…………….……..…3RD DEFENDANT RULING 05th September & 05th December, 2024 \ BWEGOGE, J.: The plaintiffs herein, the members of Temeke Football Association (henceforth TEFA), commenced civil proceedings against the TEFA’s chairman, Board of Trustees and Electoral Committee, the 1st, 2nd and 3rd defendants herein alleging, among others, that their ascendence to power 1 and all subsequent activities and transactions currently carried out by the defendants are in total breach of TEFA Constitution, regulations and wishes of members. And the plaintiffs sought declaratory relief, among others, that the TEFA election sought to be held on 4th August, 2024 under the new constitution of 2023 was not approved by the review committee, nor passed by the general meeting; hence, invalid and of no legal force. In tandem with filing defence, the defendants raised preliminary objections on points of law thus: 1. That the suit is incompetent and bad in law by contravening the jurisdiction pursuant to articles 66 and 67 of the Tanzania Football Federation (TFF) Constitution (as amended in 2019) read together with Article 71 of the Temeke District Football Association (TEFA) Constitution, 2023. 2. That the plaintiffs lack locus standi to prosecute the case pursuant to Article 7 of the Constitution of Temeke District Football Association (TEFA) 2023. The plaintiffs herein had the services of Mr Silvanus S. Mayenga, learned advocate; and Messrs Charles B. Shipande and George J. Masumbuko, learned advocates, entered appearance for defendants. 2 In substantiating the 1st limb of the objections raised herein, the defence counsel argued that jurisdiction is a creature of statute and as such, it cannot be assumed or exercised. The case of Michael Joachim Tumaini Ngalo vs. Jitesh Jayantilal Ladwa, Civil Case No. 18 of 2021, HC (unreported) was cited to bring the point home. The counsel enlightened this court that the dispute in this case originates from matters pertaining to a specific football association of which has to be resolved in accordance with the constitution of the Tanzania Football Federation (TFF). That members of the association are obliged to abide by the laid procedure to pursue their rights once disputes arise between/ or among the members. The counsel insinuated that the procedure laid in the constitution of the Tanzania Football Federation mentioned above is not nebulous in this land as it is common ground that we have laws which create special forums to preside over specific disputes. Further, in buttressing his point, the counsel referred the mind of this court to articles 66(1) and 67 of the Tanzania Football Federation (TFF) Constitution, 2019: as well as article 71 of Temeke District Football Association (TEFA) which bars whoever, being an individual or legal entity, to pursue his/her infringed rights in ordinary courts of law; as the constitution of the Tanzania Football Federation cater for forum designed 3 to resolve the disputes within the associations. Hence, the plaintiffs instituting this suit before this Court amounts to misuse of the legal forum in pursuing their rights. Respecting the second preliminary objection, the counsel argued that the plaintiffs lack locus standi to prosecute the case pursuant to Article 7 of the Constitution of Temeke District Football Association Constitution, 2023. That in the case at hand, the plaintiffs are natural persons identifying themselves as obedient members of the Temeke District Football Association (henceforth “TEFA”). However, in the current TEFA Constitution, 2023, under article 7, the recognized members of TEFA are not individuals but clubs and authorized associations. Hence, the plaintiffs herein are not members as per the current constitution. Therefore, the same lack locus standi to prosecute this case. The case of The Registered Trustee of SOS Children’s Villages Tanzania vs. Igenge Charles & Others, Civil Application No. 426/08 of 2018, CA (unreported) and Lujuna Shubi Ballonzi Senior vs. Registered Trustees of CCM [1996] TLR 203, among others, were cited to buttress the point. 4 The counsel concluded that the plaintiffs herein lack locus standi to institute the case against the defendants; likewise, this Court lacks jurisdiction to determine the matter herein for reasons aforestated. The counsel prayed this case to be dismissed with costs. In reply to the 1st limb of the objections, Mr Mayenga contended that the objection is misconceived on the following grounds: One, this court has presided over both the main suit herein and the application for an injunction. That the injunction proceedings were conceded by the defendants herein; hence, the injunction order sought was duly granted by this court. Therefore, it is an abuse to this court for the defendants having submitted under the jurisdiction of this court to be heard lamenting that this court has no jurisdiction to preside over this case. Two, the provisions of articles 66 (1) and 67 of the Tanzania Football Federation (TFF) do not provide a clear remedy. That the jurisdiction of the tribunal needs to be express; not by assumption. That be that as it may, the word used is “may” which suggests the remedy provided is optional, not mandatory; hence the individuals may opt to pursue the remedy provided forth by the classical court as demonstrated by the plaintiffs herein. Three, in essence, the above-mentioned provision of the Tanzania Football Federation (TFF) provides for an arbitration process which is not 5 effective and, or exhaustive. And do not provide for the procedure to handle disputes of like nature. That the redress sought in this court cannot be accessed through the mechanism provided in the respective constitution. Otherwise, the counsel reiterated that the relevant provision of the constitution doesn’t oust the jurisdiction of this court. Four, the institution of this suit in this court cannot be taken to have contravened the provision of article 7 of the TEFA Draft Constitution for the reason that the same constitution is under scrutiny in this case; hence, cannot be cited to invalidate the proceedings herein. Five, the counsel contended that there are numerous cases decided by this court respecting the dispute between the TFF and its members related to sports matters. The counsel reproduced a lengthy list of cases presided by the High Court of like nature. On the above premises, the counsel prayed the 1st limb of the objection to be overruled. Pertaining to the 2nd limb of the objection, the counsel reiterated that the defendant cannot be heard alleging that the plaintiffs lack locus standi to prosecute the case pursuant to Article 7 of the Constitution of Temeke District Football Association 2023 whereas the same constitution is the subject of this litigation. To reinforce the point, the case of Hon. Mbwana Salum Kibanda (Treasurer) & Another vs. Hon. Abdallah 6 Mohamed Khamis (Vice chairman) & Another (Misc. Civil Application no.128 of 2022) [2024] TZHC 9022 were cited. The counsel concluded that as the validity respective of the constitution is under probe in this very court, the objection herein lacks ground to stand. On the above grounds, the counsel prayed this court to find the 2nd limb of the objection without substance as well. In rejoinder, the respondents reiterated their submission in chief which I find it needless to replicate herein. Now, I proceed to delve into the above-mentioned objections commencing with the second limb. In substance, the argument made by the defence counsel in support of the second objection is that the plaintiffs lack Locus standi to prosecute the case pursuant to Article 7 of the Temeke District Football Association Constitution, 2023. The substance of this argument is that while the plaintiffs are identified as the natural persons and obedient members of Temeke District Football Association; the provision of article 7 of the amended Constitution recognizes the clubs and authorized associations as its members, not individuals. Hence, the plaintiffs herein are not members in terms of the relevant provision of the 7 constitution now in force. Therefore, the plaintiffs lack locus standi to prosecute this case. The argument above need not detain me. I would not tarry to subscribe to the assertion made by Mr Mayengo in that the objection is patently misconceived for the reason that the respective provision being part of the impugned amendments of the respective constitution sought to be challenged; and the same being subject to the proceedings herein, cannot be invoked to deny the plaintiffs' locus stand to sue. Suffice it to say that as the validity of the respective amended constitution is under probe in this suit, the second objection herein lacks ground to stand. Hence, I find the objection without substance; and I hereby overrule the same. I would now address the first objection. The respective objection bears the allegation that the suit herein is incompetent and bad in law by contravening articles 66 and 67 of the Tanzania Football Federation Constitution (as amended in 2019) read together with Article 71 of the Temeke District Football Association (TEFA) Constitution, 2023. The relevant provisions provide for forums with jurisdiction to preside over disputes between the members of TFF, leagues, members of leagues, clubs, members of clubs, players and officials. In substance, the provision 8 of Article 66 purports to provide for the exclusive jurisdiction of internal channels within TFF in presiding over internal disputes among the members of TFF, leagues, members of leagues, clubs, members of clubs, players and officials, the highest forum being CAS in Lausanne Switzerland which is final in the hierarch. Likewise, the provision of article 67 of the relevant Constitution provides to the effect that TFF shall have jurisdiction on internal national disputes (disputes between parties belonging or affiliated to TFF). Thus, the defence counsel contended that the provisions of the constitution of the TFF (read together with the constitution of TEFA aforementioned) bars an individual or legal entity, to pursue his/her infringed rights in classical courts of law. In particular, the Constitution of the Tanzania Football Federation caters for the forum designed to resolve the disputes arising within the associations affiliated with TFF. Hence, the plaintiffs' counsel insinuated that this court lacks jurisdiction to preside over the matter herein. Foremost, I find it pertinent, at this juncture, to respond to the assertion made by the defence counsel in that this court lacks jurisdiction to preside over the matter herein owing to the jurisdiction clause embodied under the Constitution of Tanzania Football Federation and associations affiliated with it. It is trite law in this land that the jurisdiction clause be it in the constitution of the particular association or agreement to that effect is 9 only the means for the parties to choose a forum apart from the competent courts to determine their disputes. Therefore, the jurisdiction clause does not oust the jurisdiction of the competent courts not chosen as the forum. The rationale of the principle being that since the jurisdiction of the High Court of Tanzania is conferred by statute/law, it can only be ousted by a statute/law in explicit terms. Thus, the High Court’s jurisdiction is not capable of being ousted or conferred by an agreement of the parties. And it is apprehended that the rationale behind the jurisdiction clause is to highlight the parties’ choice of the specific forum for the resolution of disputes arising under their contract only and not to oust or confer jurisdiction on a forum which does not have powers to entertain their dispute. See in this respect the cases: Sunshine Furniture Co. Ltd vs Maersk China Shipping Co. Ltd & Another (Civil Appeal 98 of 2016) [2020] TZCA 1934; Salim O. Kabora vs TANESCO Ltd & Others (Civil Appeal No. 55 of 2014) [2020] TZCA 1812; and Tanzania Revenue Authority vs Tango Transport Company Ltd (Civil Appeal No. 84 of 2009) [2016] TZCA 84. The validity of the assertion made herein is based on the High Court’s jurisdiction provided forth under Article 108(2) of the Constitution of the United Republic of Tanzania, 1977, as amended, and read together with 10 the provision of section 2(1) of the Judicature and Application of Laws Act, Cap. 358 R.E 2002, (JALA) which proclaims the unlimited jurisdiction of the Court. Hence, the jurisdiction of this court having been vested by law, parties to the case can neither agree to vest nor oust the respective jurisdiction. That said, I revert to determine the substance of the first objection. As aforesaid, the first objection is premised on the provisions of articles 66 and 67 of the Constitution of the Tanzania Football Federation. Specifically, the provision of Article 67 of the relevant Constitution provides thus: “TFF shall have jurisdiction on internal national disputes, i.e., disputes between parties belonging or affiliated to TFF.” The provision revisited above vests the Tanzania Football Federation (TFF) with jurisdiction to preside over internal national disputes between parties affiliated to it; and provides for the local remedy for any member affiliated to the federation to institute a dispute thereto. Based on the wording of the TFF Constitution reproduced above, I apprehend that the defence counsel, in substance, contends that the plaintiffs have failed to comply with the jurisdiction clause provided forth 11 by the very constitution of the association they are affiliated with. The plaintiff's counsel, among others, insinuated that the compliance with jurisdiction clause in the TFF Constitution is optional. Primarily, it is common ground that the constitution of an association binds its members by defining the relationship between the association and its members. It establishes the association's legal identity, which is separate from its members. The nexus between the association and its members is appositely explained as follows: “The relationship between a voluntary association and its members inter se is regarded as consensual in nature, and the constitution of each particular association governs the relationship between the parties.” See the article titled “Voluntary associations and the Constitution: Eastern Province Athletics Association v Association of Athletics SA” [the Journal for Juridical Science 2008: 33(1)]. Given the above amplification, I would opine that, upon the individual subscribing to the relevant association as a member thereto, he binds himself to the constitution of the relevant association he became a member to the same extent as he had signed and sealed to the respective constitution and agreed to be bound by it. Thus, a member of the voluntary association cannot, in my opinion, assert that the dictates in the 12 association’s constitution are optional unless he demonstrates that the wording of the same are permissive and, or otherwise irrational. Apart from the above viewpoint, it is now settled law in our jurisdiction that when parties agree to a forum, they are bound by their agreement unless they agree otherwise. In analogous circumstances, such as in determination of the contractual disputes in which one of the contracting parties has referred the dispute to a court of law contrary to the submission clause under the contract, the court of law enforces and complies with the forum preferred unless the prevailing circumstances commands departure from the chosen forum. Th e p rin cip le m a y a p p e a r u n re a so n a b le b u t it a cce n tu a te s th e sig n ifica n ce o f th e sa n ctity of co n tra ct . See in this respect the cases; Scova Engineering S.P.A & Another vs Mtibwa Estates Ltd & Others (Civil Appeal No. 133 of 2017) [2021] TZCA 74 and Sunshine Furniture Co. Ltd vs Maersk China Shipping Co. Ltd & Another (supra) among others. In the same vein, it is a law that where there are two forums to the litigants, an extra-judicial forum and a judicial one, the best practice is to exhaust the extra-judicial forum before knocking on the door of this court [Parin AA Jaffer vs. Abdulrasul Ahmed Jafer [1996] TLR 110; Salim O. Kabora vs TANESCO Ltd & Others (Civil Appeal No. 55 of 2014) 13 [2020] TZCA 1812; and Tanzania Revenue Authority vs Tango Transport Company Ltd (Civil Appeal No. 84 of 2009) [2016] TZCA 84]. Hence, in such circumstances, a litigant can only knock on the door of the court as a last resort. A litigant who failed to exhaust local remedy and, or extrajudicial machinery has to satisfy the court that no appropriate/effective remedy is available in the local avenue and, or extrajudicial machinery for his legal recourse to prevail the preliminary objection of like nature. See in this respect the cases: Abdiah Salehe vs. Dodoma Wine Co. Ltd [1990] TLR 113; Hon. Attorney General vs Lohay Akonaay and Another (Civil Appeal No. 31 of 1994) [1994] TZCA 92; Tanzania Revenue Authority vs New Musoma Textiles Limited, Civil Appeal NO. 9 of 2009, CA (unreported); and Alli Saidi Kurungu & Others vs Administrator General the Registered Trustees of Masjid Mabox - Mtoni Sokoni & Others (Civil Appeal No. 148 of 2019) [2023] TZCA 17279; among others. In justifying the institution of this suit in this court, the plaintiffs’ counsel asserted that the forum provided forth by the TFF Constitution does not provide an effective remedy in the circumstances of this case. That the redress sought in this court cannot be obtained through the mechanism provided in the respective constitution. I have scrutinized the plaint filed 14 herein. The allegations averred in the plaint, in the interest of brevity are thus: Allegedly, the 1st defendant unlawfully, illegally, and dishonestly, usurped the statutory powers, duties and obligations not vested to him in the operation, management and administration of the Temeke District Football Association [TEFA]. And, the same has breached TEFA Constitution in endorsing the use of the new constitution in the operation, management and administration of TEFA which lacks the approval of the constitution review committee, management committee and the general meeting. In the same vein, it is alleged that even though the 1st defendant who illegally ascended to the position of Chairman of TEFA has overstayed in power as his tenure ended in March, 2024; the same has, in collaboration with the 3rd defendant, approved their fellow individual candidates to contest for election, the process which is not transparent, biased and in total contravention of TEFA Constitution. The intended election was set to be held on 4th August 2024 without management committee blessings. It is likewise alleged by the plaintiffs that the 3rd defendant who has been illegally appointed by the 1st defendant; and whose appointment did not gain general meeting approval, has already illegally initiated the electoral 15 process including nominating of candidates including the 1st defendant for the election set to take place on 4th August 2024 (of which was restrained by the order of this court pending the determination of this suit lest the proceedings herein rendered nugatory). Further, it is alleged that, the 2nd defendant, despite illegal appointment in power by the 1st defendant, the same through has failed to give full details of the association’s incomes on TEFA mega projects vested under her custody. Moreso, the 2nd defendant has in collaboration with the 1st defendant illegally proceeded to call for the election of all clubs established under TEFA in total violations of respective clubs' regulations. Lastly, it is alleged that the plaintiffs, as members of TEFA, have requested the extraordinary general meeting of which has been denied. Hence, based on the above allegations averred in the plaint filed herein, the plaintiffs sought declaratory and restraint orders, among others, as follows: i. The declaration that the 1st defendant’s re-election into the position of the chairman of Temeke District Football Association [TEFA] in the 16 intended election which was set to be conducted on 4th August 2024 or any other subsequent date, is illegal and repugnant to the provisions of the Constitution of Temeke District Football Association [TEFA] and its regulations. ii. The declaration that the appointment of the 2nd defendant’s members as board of trustees of Temeke District Football Association [TEFA] and appointment of the 3rd defendant’s members to the electoral committee of Temeke District Football Association [TEFA] without the approval of the management committee and TEFA general meeting are unlawful, illegal and in total contravention of TEFA Constitution and its regulations. iii. The payment of proceeds derived from TEFA members' contributions and other TEFA projects which are currently mismanaged by the 1st defendant. iv. A declaration that the 3rd defendant’s committee functions of conducting elections including the nomination of candidates vying for various posts in the coming election set to be held on 4,th August, 2024 are null and void and with no legal effects. v. The declaration that the act of misappropriating and squandering of funds belonging to the Temeke District Football Association [TEFA] is ill conduct and unjustifiable. vi. The declaration that all subsequent activities and transactions currently carried out by the defendants are in total breach of TEFA Constitutional regulations and the wishes of members. 17 Having scrutinized the allegations made in the plaint revisited above, and the reliefs sought herein, I am unable to purchase the argument made by the plaintiff’s counsel in that the remedy sought cannot be accessed in the forum provided in the TFF Constitution. I am of the settled view that the alleged contravention of the association’s constitution and regulations, usurp of power and mismanagement generally, would be better attended by the mechanism provided forth by the TFF Constitution. Hence, I am of the settled view that the litigants herein should have exhausted the local remedy available to them of which, in my opinion, based on the circumstances of the case, it was convenient to preside over the dispute before knocking the doors of this court as a last resort. I expected the plaintiffs’ counsel to tell this court the predicament he faced in utilizing the mechanism provided which rendered the forum dispensable. His submission and pleadings filed herein are silent in this fact. I would reiterate that taking into consideration the nature of the matter herein, the allegation made against the defendants for contravening the constitution and the reliefs sought herein, I am of the considered opinion that the dispute would have been appropriately determined by the TFF. 18 In passing, I find it pertinent to address one matter. It was forcefully contended by the plaintiff’s counsel that there are numerous cases decided by this court respecting the dispute between the TFF and its members related to sports matters. Thus, the defendant cannot be heard in that this court has no jurisdiction and, or the plaintiff has to exhaust local remedies before approaching this court. The counsel reproduced a lengthy list of cases presided by the High Court of like nature. While purchasing wholesale the assertion that the jurisdiction clause in the TFF Constitution doesn’t out the jurisdiction of this court; I refuse to purchase the assertion that this court having presided over suits of like nature before, cannot today conceded that the plaintiff has a local remedy as provided in the constitution of the very association they are affiliated with. My reservation is based on the fact that the plaintiff’s counsel has not brought to the attention of this court any case of like nature in which the issue of non-exhaustion of local remedy was raised and determined in the negative. Besides, based on the wording of the submission clause in the TFF Constitution reproduced above, I am at a loss respecting the basis upon which the counsel arrived to the conclusion that the remedy provided forth is optional. 19 In fine, I find the 1st preliminary objection on point of law meritorious. The objection is hereby sustained. Accordingly, the matter herein is hereby struck out for being filed prematurely in this court. Taking into consideration the circumstances of this case, I find it prudent not to enter an order for costs. So ordered. DATED at DAR ES SALAAM this 05th December, 2024. O. F. BWEGOGE JUDGE 20