RULING Leleshi Ratu vs

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS CIVIL CAUSE NO. 20169 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS

OF PROHIBITION

IN THE MATTER OF TUNDURU DISTRICT COUNCIL TO CEASE OR

CONSIFICATE THE LIVESTOCK OF LELESHI RATU

IN THE MATTER OF FINE IMPOSED TO THE APPLICANT BY TUNDURU

DISTRICT COUNCIL IN THE MATTER OF TUNDURU DISTRICT COUNCIL, GN. NO. 31 OF 2005

BETWEEN LELESHI RATU ………….…….……….…..............….……....………… APPLICANT AND TUNDURU DISTRICT COUNCIL ..............................…..…… 1ST RESPONDENT THE ATTORNEY GENERAL .......................…..…….........….. 2ND RESPONDENT

RULING Last Order: 29th August, 2024 Ruling: 5th September, 2024 KAWISHE, J.: In this application, the applicant, one Leleshi Ratu is seeking for the leave of this court to file an application for prohibition of the first 1 respondent from the acts of seizing the applicant’s livestock and imposing fines. The application is made under sections 17 (2) and 19(2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap 310, R. E. 2019), Rule 5(1), (2)(a), (b), (c), (d) and 7(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees), Rules, 2014 (GN. No. 324 of 2014). The application has been supported by an affidavit deponed by the applicant and it is vehemently opposed by the respondents who filed a joint counter affidavit sworn by Egidy Mkolwe, the learned State Attorney. From the affidavit filed in support of the application, the applicant has averred that he is a pastoralist residing both at Mkowela Village, Namakambale Ward and Liwangula Village in Mindu Ward within Tunduru District. That in each village he owns heads of cattle which are grazed in his own land. He deponed further that, sometimes on 7th August, 2024 at around 4.00 o’clock, a police officer being accompanied with other people introducing themselves to be the workers from Tunduru District Council arrived at his premise where he used to

keep his cattle and took them to Ngalije Primary School football pitch without 2 any lawful justification. While at the school football ground they were demanded to pay a fine of TZS. 23,500 per each head of cow and for 144 heads of cow he was ordered to pay TZS. 3,384,000.00. He deponed that, the operation forcibly seizing cattle and imposing fines has been occurring every year from August to October and it has been significantly affecting pastoralists including himself who owns his own land for grazing. When the application was called for the first time on 29th August, 2024, the applicant was represented by Mr. Benedict Pius, learned advocate while, Mr. Egidy Mkolwe and Mr. Ibrahim Kabelwa, learned State Attorneys appeared for the respondents. The applicant’s learned counsel had two prayers before the court that; One, the applicant be allowed to file supplementary affidavit since there are some vital facts which required to be deponed to support this application. Two, that this application for leave has not been heard, and the operation of arresting animals and fining the people is still going on, this court be pleased to issue an order to suspend the operation which is being carried out by the 1st respondent pending the hearing of this application. In the first prayer, Mr. Benedict argued that, Rule 7(1)(b) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)

(Judicial 3 Review Procedure and Fees), Rules, 2014 (supra) allow the court to order for the amendment. In the second prayer he argued that, where an application for leave to file an application of prohibition prayed for, the court can suspend or stop an operation or acts undertaken by the respondent. He referred this court to the recent order of this court made in Isaya Olepose vs. The Minister President’s Office Regional Administration and Local Government, Miscellaneous Civil Cause No. 20592 of 2024, in which the court issued an order of amendment of the demarcation of administrative areas in various districts in our country. Responding to the submission made by the applicant’s counsel, Mr. Mkolwe submitted that, this application is for leave, praying to suspend an operation conducted by the first respondent is not proper. He submitted further that, the applicant’s counsel prayer for suspension order is premature as he has prayed for an order to file a supplementary affidavit and before that order is granted to see what is added in the affidavit, he has come with another prayer which is not a correct approach. He added that, the second prayer is inhibited by the first prayer to file a supplementary affidavit. 4 Mr. Mkolwe keep on submitting that, the prayer for suspending the operation is not among the prayers made in this application. That, under paragraph 5 of the

affidavit sworn in support of the application the applicant is claiming that his 144 herds of cattle were seized, ordered to pay fine and there is no fact on the affidavit in respect to the second prayer. Lastly, he conceded for the first prayer of filing supplementary affidavit and vehemently resisted the second prayer for been prematurely raised and misplaced. In a short rejoinder, Mr. Benedict submitted that, it is the practice of the court that where an application of this nature is filed a stop order is issued for the interest of justice and prayed for the second prayer to be granted. As already stated above, the first prayer was conceded by the respondents and the applicant was ordered to file supplementary affidavit and this was in accordance to the provision of rule 7(3)(a) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees), Rules, 2014 (supra); which provides that: “The Judge may, on the hearing of the application for leave, allow- a) the statement to be amended; and 5 b) further affidavits to be used if they deal with new matters arising out of the affidavits of any other party to the application”. Therefore, this ruling is in respect to the second prayer for an order of this court to stop the first respondent from continuing with the operation of seizing the livestock and imposing fines to pastoralists. Having

considered the submissions from both sides, I find the main issue in this application is whether a stop order may be issued in this application. It is important to note that, this application is for leave to file an application for this court to prohibit the first respondent from seizing and imposing fines to pastoralists. As aforementioned, the application is made under section 17 (2) and 19(2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap 310, R. E 2019), rule 5(1), (2)(a), (b), (c), (d) and 7(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees), Rules, 2014 (GN. No. 324 of 2014). The applicant has filed this application for leave to file an application for prohibition order against the acts committed by the first respondent. Section 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (supra) allows this court to issue a writ of 6 prohibition prohibiting any proceedings or matter done by the respondent. Also, section 19(1) the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (supra) requires an application for a writ made under the Act to be guided by the procedures set in the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees), Rules, 2014 (supra). Rule 5(1) of the Law Reform (Fatal Accidents and Miscellaneous

Provisions) (Judicial Review Procedure and Fees), Rules, 2014 (supra) states that: “5. (1) An application for judicial review shall not be made unless a leave to file such application has been granted by the court in accordance with these Rules”. It is clear that, this application was filed in compliance to the above rule. But before the application is heard and fully determined the applicant’s advocate prayed for an order to stop the first respondent from the act of seizing the livestock of the pastoralists and imposing fines, of which, in my view is the main aim of the application. I have read the decision referred by the applicant’s counsel in the case Isaya Olepose vs. The Minister President’s Office Regional Administration and Local Government (supra) and find that, it is not relevant to the current application. 7 In my view, that is the main case in this matter, upon which, its determination depends on the order for leave from this court. In such circumstances, ordering the first respondent to stop from her conduct is not proper at this stage. Doing so, will make this court to put the cart before the horse. Once an order is granted there will be no any need of continuing with the application in which this court has ordered for the applicant to file a supplementary affidavit. Granting the applicant’s counsel prayer of stopping the first respondent from seizing herds

of cattle and imposing fine amounts to an abortion. The court will be pre- emptying itself. An order which later on will be nagging to the court in the main application. In the final event, I dismiss the applicant’s prayer of ordering the first respondent to stop from seizing the livestock of the pastoralists and fining them. I order for the continuation of the hearing of the application for leave. It is so ordered. DATED and DELIVERED at SONGEA this 5th day of September, 2024. E. L. KAWISHE

JUDGE 8 Court: Ruling delivered in the presence of Mr. Ibrahim Kabelwa, learned State Attorney and in the presence of Mr. Lazaro Simba, learned counsel for the applicant. E. L. KAWISHE

JUDGE 05/09/2024 9