lujuna shubi ballonzi vs registered trustees of chama cha mapinduzi 1995 tzhc 731 9 may 1995

IK THE HIGH COURT OF TANZANIA., ► AT PAR ES SALAAM CIVIL CASE NO.214 OF 1992 LUJUNA SHUBI BALLONZI, S E N I O R . ........... PLAINTIFF . VERSUS THE REGISTERED TRUSTEES OF CHAMA CHA M A P I N D U Z I .. DEFENDANTS R .U -» -mr— L.... I N—.— G SAMATTA. J . K : One of the principal questions I' have to decide in tfcis » ^ matter is whether the Plaintiff (now the ‘respondent) , Mr. Lujuna Shubi B a l l o n z i , Senior,, has locus standi dr standing to bring the action which is now before this Court.. In - his p»laint the respondent has sued the Registered Trustees . of Chama Cha Mapinduzi (hereinafter referred to by its acronym; CCM*) , praying for the f o l l o w i n g .r e l i e f s , among others; (1) a declaration that C.CM is not a political party; (2) an order that the defendants be dissolved and liquidated; (3) a declaration that the defendants ha\*e no rights to » movable and immovable properties which they have "purported" to acquire by using subventions from the Consolidated Fund; (4) an order that the defendants pay all external debts amounting to not less than seven billion dollars "incurred on behalf of Tanzanians"; and (5) a permanent injunction restraining the defendants from using and/or alienating properties in their z pOSijGGblOli. in the plaint the respondent avers, inter alia* "3. That the Defendants on or about the 5th clay of February, 1977, took all assets of the Tanganyika National African Union of Tanganyika and the Afro Shiraz Party of Zanzibar ("The Founder Parti es’1). 4, That the Founder Parties were, without authority and mandate of the people, receiving subventions from the Consolidated Fund of Tanzania and compulsory contributions from people residing in Tanzania and others doing business with Tanzania and used those moneys to acquire movable and immovable properties which were then registered in their respective names, ALTERNATIVELY the founder parties should have used those funds prudently for the benefit of all Tanzanians. 5, The Defendants without the authority and mandate of the people of Tanzania constituted themselves a state party on or about the 5th day of February, 1977, and continues to receive and use funds from the Consolidated Fund and compulsory contributions aforesaid in the same manner as the Founder Parties until the 30th day of June, 1922. 6, That the Defendants are continuing to coerce the business community to contribute to them, funds by using their position as a de facto Government. These funds can only be received for and on behalf of ail Tanzanians. That the D e f e n d a n t s , without the authority and mandate of Tanzanians., transferred to themselves assets that they had acquired from the Founder Parties and registered them in their names and further acquired other properties from the subventions referred to in paragraph 5 herein and registered them in their n a m e s , That the Defendants haveno right to the D r o pe rf ies referred to in para ? herein because these properties were purchased, acquired and/or constructed from funds which belonged to the peoples of Tanzania the overwhelming majority of whom are not members of the Defendants and therefore can hold such properties as trustees of the people of Tanzania and not as Trustees of CCM The Plaintiff has never been a member of the Founder Parties and CCM but has contributed to the funding of the Consolidated Fund through payment of taxes and- has been forced, on several occasions to contribute towards CCM which moneys have found their way in the coffers of the Defendants. It is estimated that the Defendants have accumulated properties worth shillings seven hundred and eighty billion 4 (T .s h s .780,000,000,000/=) from state funds and h av e used one t r i l 1 ion s h i i 1 ing s ( T s h s . 1,0 0 0 , 0 0 0 , 0 0 0 , 0 0 0 / = ) to acti vi tie s unrelated to welfare of Tanzanians and have through mismanagements, outright theft and autocracy incurred an external debt of dollars seven billion (7,000,000,000, ) ostensibly on behalf of Tanzanians but without the authority and mandate of the people, 11 , That on the 1st day of July,. 1992, the Defendants have in an autocratic manner constituted themselves as a political party and continue to cling on properties referred to in para 7 herein as theirs and. have shown no intention to return them, to the Government of the United Republic of Tanzania, despite demand. 12 , . . 1.3 , . , 14, For purposes of jurisdiction and court fees the value of the subject matter of the suit is in excess of fou r t r i 11 ion shillinas (4,000,000,000,000/= ) ," I have decided to quote the averments m the d ! aint in extenso because of the unusual character of the case . The Defendants (now the applicants) have filed, under Order VI. rule 16 and S. 9 5 of the Civil Procedure Code (the Code) and s , 2 ( 2) of the Judicature and App 1 icatj. on of Laws Ordinance . Can. 4^-3 an r application in which they prav that the plaint be struck cut on one or more of the following g r o u n d s : I1 ) it discloses no reasonable cause of action: (2) it is scandalous, frivolous and vexatious; and (3) it is an abuse of the p r o c e s s of the C o u r t . The application was heard ex parte because, although he was duly served with notice of hearing, the respondent, who was not legally represented, did not appear at the hearing. Mr . Uzanda (who was assisted by Ambassador Rutakyamirwa and Miss M u j a s i r i ) strenuously a tta c k e d , from several f r o n t s , the respondent's right m law to bring his action against the applicants. The learned advocate contended that the suit is incompetent for not disclosing a cause of action and for being scandalous, frivolous and vexztious and an abuse of the process of this Court, He advanced four grounds in support of that contention, Those grounds may, without doing any injustice to the very skilful manner in which the learned advocate put forward his arguments, be summarised as f o l l o w s ;- (1) The purported repre sentative__suit_ is_ incompetent because the ma n d atory p r o v isions of Order 1 r u le 8 of_the _Cpde have not been complied w i t h , (2) The„suit is incompetent in__law because no cause of act ion on tr ust, has been disclosed by the p l aint , (3) A s s u m ing__ that the respondent has (properlv^ pleaded _ a trust, the non-compliance with the _jgrovisions of s .67_of the Code is fatal to the suit . (4 ) Since the case is__based on averment s_ that the_applicants were receiving su bv en tions from the Consolidated F u n d , the suit should have been, instituted against the Government, and__not_ against _t he app 1 icants .__ In any ca s e , the pay m en t of those funds, is not a ju s t i ciable issue or o n e which is subject, to r e v i ew _ by the_c o urts , In this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court: see H a l s b u r y 1s Laws of England,. 4th e d , para 49 at p. 52. Courts do not have power to determine issues of general interest : see Re I .G .Fa r b e n i ndustrie A.G , A g r eem e nt [1943] 2 All E .P.. 525. They can only accord protection to interests which are regarded as being entitled to legal recognition. They will thus not make any deter mination of any issue that is academic, hypothetical, premature or dead. Because a court of law is a court of justice and not an academy of law,, to maintain an action before it a litigant must assert interference with or deprivation of, or threat of interference w it h or deprivation of, a right or interest which the law takes cognizance o f . Since courts will protect only enforceable interests, nebulous or shadowy interests do not suffice for the purpose of suina or making an application. Of course, provided the interest is recognised by law, the smallness of it is immaterial. It must also be distinctly understood,. I think,, that not every damage or loss can be the o law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has m England. It will flourish indeed but it needs careful tending. So with the common law- It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far off lands the people must have a law which they understand and which they will resDect. The common law cannot fulfil tnis role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a are at task. I trust that they will not fail therein", In this country, is there any logical basis for modifying tne common law rule of locus standi? In India the Supreme Court has wid e n e d that rule.The new approach there is described by Mr. Justice P .N .Baghwati . a former Chief Justice of that c o u n t r y , in his article . F j M M e n t a L X i g h t s .in„t h e i r _ E c o n o m i ^ „ S ^ . i a l _ a n d C u ltural, C o n text published in DEVELOPING HUMAN RiGHTS JURISPRUDENCE,. V o l .2 at. p. 83, in the following t e r m s : ". . , there was difficulty in enf orc ing the human rights of the poor and the disadvantaged, because they are not aware of their r i g h t s , they lack the capacity to assert those rights arid they do not have the material resources to approach the courts in cases other than criminal As a result of a large range of human rights remain unenforced. We therefore developed the strategy of public interest litigation. We held in a seminal decision that the ordinary rule of Anglo-Saxon jurisprudence is that an action can be brought only by a person to whom legal injury is caused. However, this rule must be departed from in the cases of poor and disadvantaged classes of people where legal injury is caused to a person or class of persons w h o , by reason of poverty or disability or socially or economically disadvantaged position, cannot approach the courts for judicial redress. Thus we held that any member of the p u b l i c , or social action groups acting bona fide, can approach the court seeking judicial redress for the legal injury caused to such person or class of persons, and that in such a case the court will not insist on a regular petition being filed by the public spirited individual or social action group espousing their cause and will readily respond - even if its jurisdiction is invoked merely by means of a letter addressed to it , as can happen in the case of habeas corpus actions. This widening of the rule of locus standi introduced a new 10 dimension in the judicial process and opened a new vista of a totally different kind of litigation for enforcing the basic human rights of poor and underprivileged sections of the community, and ensuring basic human rights dignity. Much of the human rights jurisprudence in India has been built up by the courts as a result of public interest litigation. The Courts have been enforcing basic- human rights of the deprived and vulnerable sections of the society in cases under trial as well as convicted prisoners, women in distress, children in jails and juvenile institutions, bonded and migrant workmen., unorganised labour "untouchables" and "scheduled tubes", landless agricultural labourers who are denied minimum wages or who are victims of faulty mechanisation, slum and pavement dwellers and victims of extra-judicial executions and many more", If I may respectfully say so, there is, I think, some justification for extending the rule of locus standi in the direction taken by the Supreme Court of India. The provisions of s ,26 (2 ) of the Consi it.ut ion of the United Republic of Tanzania (the Constitution) do not seem to extend the rule to the degree done by the Supreme Court (of India). Bearing in mind the realities of our society, including the comparable educational backwardness and poverty of the majority of the people, I would respectfully agree with the following observations by Mr, Justice K a y o d e , a former Justice of the Supreme Court of Nigeria, made 11 in his article The Role of The .Judge in Advancing Human .Rights an DEVELOPING HUMAN RIGHTS JURISPRUDENCE , '- J o 1 .3 , at p 100: nTt is submitted that the areat est excuse of tne advocate; ot restraint in l o c u s .standi is that there would be floodgate it everyone is given hearing in (Human Rights cases). No one would advocate floodgate in ordinary cases, but as has been submitted earlier, human rights are special rights and special rights deserve special t re a t m e n t . It tloodgate it e n t a i l s , let there be one , once it is a matter of human rights". An ordinary person is likely to be more conversant with his private law rights than with his public law rights. By necessity the rule of locus standi, in so tar as it relates to human rights litigation, roust be wide, I can see no warrant for making s im i lar extens lo n to the rule as fa r as p r iv ate int e r e s t litigation is concerned, Since I do not think it would be right to consider the respondent*s suit as failing under the purview of human rights Litigation, I proceed, being guided fty, among others . the cases I have cited sup r a , to consider the merits or otherwise of Mr. Uzanda's submissions. Although m the plaint he does not expressly say so, it is as plain as a pikestaff that the respondent has purported to file the suit not onlv on his own behalf but also on behaJ £ of all Tanzanians who are not members of CCM, As already indicated, Mr. Uzanda contends that the suit is incompetent m law on the ground that the provisions of Order 1, rule 8 of the Code have not been i2 complied with. I have no doubt that this contention is unanswerable. Rule 8 or Order 1 r e a d s : "8 - (1) where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, m such suit, on behalf of or for the benefit of all persons so interested, But the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably p r a c t i c a b l e, by public advertisement, as the court m each case may d i r e c t , (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such s u i t " , This rule is almost in pari m a t e r ia with Order 1, rule 8(1), (2) and (3) of the Civil Procedure Code of India Commenting on the latter rule, the learned authors of Sir John Woodroffe and Ameer All's CODE OF CIVIL PROCEDURE, 3rd ed . , Vol.II . state as follows, at p .140 3: "The foundation of Order 1, rule 8 C.P.C. is to be found in a principle which transcends the personal or parochial nature of the combatants who are arrayed as parties to the s u i t . It affects the rights of other persons not present before the Court. Hence a duty 13 is cast on the Court itself to follow met lcul ouslv the procedure prescribed by Order 1, rule 8. In view o t the tar reaching consequences oi a decree passed in wha l is described m law as a r epresentat ive suit . it is necessary that the relevant Provisions rnust be treated as peremptory and mandatory". And at p , 1 405 , the Learned authors state as follows* "A representative suit cannot be said, to have been valid j.y instituted unless and until the mandatory provisions of Order 1 rule of the Civil Procedure Code are complied with. The provision contained m Order 1,. rule 8. C.P.C, .... is mandatory and not merely directory and is an essential pre-condition for the trial of the case as a representative suit. It is imperative that the two conditions provided in rule 8 of Order I , should be complied w i t h , namely , (i ) the permission of the Court should be obtained and (2) the Court should., at the expense of the plaintiffs, issue notice of the institution of the suit to all such persons either by personal service or where from the number of persons, or any other cause such service is not reasonably practicable, by public advertisement, as the Court may direct". In my view, these two passages also accurately state our law. A person cannot seek to advance the claims of a group of persons without adopting the procedure laid down m rule 8 of Order 1 of the C o d e . He cannot., as the respondent in the case now before me has purported to do, institute a representative suit without j.4 first obtainin'? lo ave of the court to hr m o sm o h suit , Whon such, suit is inst it uteri witiioit that icav’'c? it lr-pcf struck out for heino incortvnetent in law, Cornnion interest I i1 igat ion can bo c o i"!clu c t e ct o n iy 1n ^ c c c:r cla n c e w 11 h t h c r>r o v 111 c n s o f 0 r cle r i r u j_e 8 of the Code. As already rernarked, f ai lure to comply with those mandat or v provisions is 1 ? t a i to any such suit or application. This is. in lav;, a s u r f icient ground tor striking out the respondent's Purported representative s u i t . As was very rightly pointed out by Mr. Uzanda in his submission, nowhere in his oiainf h;?s the ''esoondsnt assorted that, as a result of the applicants' alleged inis conduct he has suffered special daniaoe over and a ho vs o r her Ta y i z ? n i snc or millions of Tanzanians who are not members of CCM, it is a principle of the law of this country that pub Iic rights can on 1v be asserted in a civil action by the Attorney General as the nuardian of the public interest Pvr-er>r urhpre sf ^tutnrv provisions provide otherwise, a private person can onl v brine* an ■1 c 1.o n to r e s tr a 1n ?■ t h r,,;i. rjt- p p ri h-. > ^ a r*h o 1 r \ ^ j^ - r hi o - ; 10-1 is based on an 3.1leciat ion that the threatened breach will const itufe an infringement of his nr 3 ts rinnf pr wjj : j n rlict special, damage on him. what , as f ar as cornmo p. lav/ is concerned are authorities tor these Drono?it io n o wm ■■ that rn'pst ] ~n I would cite Attorney — General (on_the re I ation of McWhirtor v. Independent Broadcast me; Authority [19'/3 j 1 All F.E. 589 and Gmii'iet v Union of Po?t Office Workers and Others F1 9 7 7 ] 3 All E R ■ ; 1 t v/’ ’ o f th e c a s e s Mr , Uzano^ red 'ri- ■ r o i^n ih e r* r> n ;r q p ij ;-i r- V, c ' - p. >- u t ^ f' -• r H+' i p P p j 1rxVM - c •••:; j_ p p OO t O O ^ B 1 ~\ 0 IT 1T ■p p. r- 0 c* c: p y - f--•< .-j- .-j, n _ci r h 0± -3 r ‘ t t t ^>■■"■p *c ‘ C^ S 0 0 Ot h 0 3. S 0 £‘ c o n r ' :ivn 0 d tho 0^ 000 ot tin? ooninion J_3o-T ,vf o r o i . r. i D r in c iD lc t n a t a ‘o r i . v 3. t 0 p p> ' ^ o r i c‘ not t'nt j ^ i 1n 13p ro i_ i .1 n o an a c r io n in h is own narno to r tho o o rn o o 0 ot o r 0 ~\r 0 n 1 1 r 0 or 000k j.ro oorruionsot io n to r p u b i 1o ^ r o r a * in tho t o r T! » 0 r rJ3 : i 0 ’ OPP DENNING , M,R ss. 1 d ci r p , 6 9 ' ’* 7 t P r j n v ^ ’T i ' T i p r . r n f ’ P ^ r t iy!‘5i n t Or .3 r-. •*i V, j_ j O n t^ 'O ia ^v tr 3.n ?so r 0 s sas th.0 iavj laid down. bv P ?„r Ixarnsnt , or t" h r O ^ ^ 0 c' 1o t I ^ n o n y - •s s 1 O 3 ’r ■ >'!“! b 0 o r ^ n p p i 1p » 2C ooino to 1 ho court and d r 3w th.0 n13.tt.0 r to it 3 3 t I' P n "1” 1 —0 ',> P^ IP;? V I'1'T>p 0 * j; h o '■ r * ■«•■_'■»■ ’\ .-■)r +* 0 c ^ r? 1>'-7 ^ h.0 hx 0 3ohSo n 3.v t nou<? and s -i or h 0 r s 1 ik 0 111 no ~‘ Is £* f*n 3.HO PVAr,; on-1 O'f' rp^r-:1oh.3Tri':'( f >■o:ri C 0 O C; t^ f hti O O l i r t 5?9 Th.0 i 3.'^ IS o ) 0 3 T tn .^ r p r~- O l ’: 0 O t h (-^{o C3.P br lr a 3. n ? c J-. i o r . ! io r ni r> i f > n ^0 'r ^ c ; fgrpri c' r ' 0 c i 3 i . cU ?.o3. o o o v er and 3 . o o ’ r0 0V 0rvon0 0 l c? 0 That. v/3s sortJ.oo ?.Ij J. K>’j h m a 03^0 ' iv ^Po Y 0 3 ?'' Boo Kx~' rO i 0 >'30 1 3..1 d own IP orr] f o 3Vr>\d O11" it IpllC1TV £ p •"* T i_ n T Vi T- ,'j T" cji )ro Pi p t~ v.»p r n i *- i n f p ^ 'a' o -^.7 ♦‘ r •>• -'p t':% o f t h o 0 0 iro u ro d 1,70 t *5 3 ! l o ’^ ^ d ~ r '- 1' 3 ^ h o u ? ’ ^)" :i i-iol'iT dc* 'r-oi and 1.1. 1 .3t.0con-": id or 00 r.nto Ip roh io iv1 j1 1.g p's p I p_ c k s t p^pt,0 211 h 1 ^ ■''*ori"'r'0 n iz3 r 20 p 1rj * 1. , i~ v o p i r\ hp ^..tnr0 3 o r ! n a d ; o 00 nv • ! ^ 1 o \ \r p u i t 0 b v o . i ’/ i n c f e v e r v nian 3 s o o a r a t o r]c?V »t. n i 3 C t 1 0 1" t o r o n a t rl a r n n i i i 0 s r_ 1 it- m r - o i n r r t O : r> r op 1 v a ?i t h t h o r e cd 01 h i s 1 0 1 l o w - s i !o i e c t o 1 [qn d ai| : j o u tip iH R D 004 s y 1auioo a&u! 41 l a iJ 's n b .4. i\o 1 4 t.1U M Ui^A-:. 4 o . 1 1 1 S A 0 X Cl. [ 0 U .1 0 4 X 0 AuB I O A T 4 U 0 p U 0 cl p U T 4 .J 0 4 ;^'4Ul 4 ^ 0 ^ M *-; 0 -4 ^ P pUfc? A 4 TAT |J O l U O 5 4 d ] dliiOO U 4 L /A 4 0 -i c '; 4 U T O 4 j 0 "> ■O 4 4 U0 S 0 T U & a O 4 A 40 0 S T u I 4 ~L A h? p <d U 4 4O x iJEc 1Ui U Si d) A O O 0 U4 j- O X 0 C|lu 0 lU b S I ^4 of u 1 i O L[ 4 T ■/ 4 06 04UT .j i ("Q'VliJ IO U t LpIU uD 01i ] ST I P I d u c 10 -- A 9 U i O 4 1 V ^4 4 0D J.£[ 46 a T [ CjVtU 9 IT 4 U id jU O j U OTl|M S Si 0 4 4 0 ui U I 4 b?U4 Mi 5 7 "[ P u O T 4 a +T 4 S u O ,3 l i \0 Ui " p ^ T 1 4 c- i S i 4. T : /_ h ^ •-! i| « ' p i t s 0H :io 0 u s 0 a S l ti 4 i i l 7 y j_ 0 u c ? f j —A 0 u .1 o' 4 _ x/ 0 L| 4 fA A I 0.1 c'm4 UC b u O L 4 ’6 / \ I d o d O T R I Q T 3 C[ A .1 *J A u id A b'o A j i t l 4 J. *J 0 O-o c? u A T Lu ]_4 i " 0p0lti 0 Lj IU 0 Vi 4 0 0 A o U4 UI ’ 0 A' E 4 9 Lu X T I I & 0U 4 UT UOI ISdTiJ 9 U 4 P 0 -10 lA S L i 0 0'^ 4. Li O i-i O .J AA f 0 ! 0U 4 a A t ij A -j. U o o fl 4 0 A ; ’•-] 0 u O 0 S <-j T u 11 T h: A 0 .0 1-1-■■A 0 0 X A 4 4 V 0 L[ 4- X1 4 40 l a a u 4 o a 0 a A ba U t p y L| 0 i. T 0 f- i i i 00 A 4A -h. 0 0 lii 0 0 p 0 A e- L „ I D O 0 0 L( 4 J0X^40U A I 5 p I SuC 0 O 4 uO '/ u 9 M L T L{ 4 0 ' [ f J >j 0 U i 4 ^> -i'0 4 S c > | ^4X 1 i(u o T ^ a a o s i p SX 0 JlO I a 0 4 4 1; Id 0 O *' IT '0 A 0 0T STlj 0 A 'i" »,■ ' ApUOp on 't x t m x^aeueo AOtuaviY &'-{-!■ ^eseo U0jo.zd vj 0 uj ’h o t ; : t TO40T 0J 0 a t eair&u s i q 0 sri 04 ^0001 5 u t:;.u ^ .i5 Aq ^0 o t o t t j o x 0 .1014y'L0 - 0UdAiS4tn 04 000 put T 0 JL 0 1 I 0 ; 0 ~ A 0 U J O 4 A V 0 0 T 0 4 C ‘ i-! 04 ' p 0 A 0 T .‘t 6 b " 0 ST OUM O T'TuVtU 0L | 4 4O - l 0 C] U I 0 Tj 0 p 4 TO X ;d 4 !' - i 0 O [ j Ol; ' 9 i K l U j [ 0Ua, ' I T ? s u . t i\ t t t i t : t i 0 a T- 0 0 0 41^00 044 qjTUM ^nq ' 414OTT 0 00T( 0uo era qoTiU A 04 '’ s a i p 0 u i 0 . T A10U O T 40 i j s i p 0 T 0: 0 T 0 U A ; U O T A 0 u fi L U T' UT j.v U O I T 0- .10 [-• \j f i ) U L > \ 0 0 Ai \H O X XD T T q n a & l[ 4 4 ■'J Ul'^Jt.U A l l 0 4 Li' w/ ' i !c=l T Al L-‘ A ”; hr - -..’ O 0 i i | 0 p T C I 5 U T 0 O 0 U O /-IP r TTT ^ A 0 T *5 TT-_>T U ^ ? r m TTII4. ?? a o p i n a 17 interest, ciie Attorney Geutiu^ Lis a special duty m reiii 4 wo :he coil or c^merit ot tre law. Hi:? d uty has been trie r-' rta te d by m e m b e r s> o t t h i s c o u r t who, e a oa m h is tu r n , had h e l l the o i l ic e of A tto r n e y -G e n e r a r In i t 79 ir: A t t o r n e y -G e n e r a l V - G re a t E a s te r R a ilw a y C o . ( 1670 ) 11 Ch D449 at d QO E a g g a ia y L , J . s a id : It is the interest of the public tnat the lav? should in all respects be respected and observed, and if the 1aw is transgressed or threatened to be transgressed , it is +he duty ot the Attortey-General to take the necessary steps to enforce it, nor does ^.t make any difference whether he sues ex officio, at the instance o i relator?1 In 1974 Sir Ernest Pollock MR ..created tnose very words with a p p r o v a l : see A t t o r n e y G e n e r a l V Westminster City Council [1924 ] All ER Hep 1f>2 .T 165 , To these I would add the words of Lord A b m g e r CB who had himself been Attorney - General in Dearejv Attorney-General (lBib) IX & C Ex 197 at 2>>8 • 1 ,.. it has been the practice, which I hope never will be discontinued, tor the officers oi the Crown to throw no difficulty m the way of any proceeding for the purpore ot bringing matter s before a Court of justice, where any real point of difficulty that requires judicial decision nas occurred1" , In Ckniriet’s case supra, LORD WT.LEEREFORCE analysed the common lav/ principle at great length. in the course of his judgment. 1o he s a i d , at p ,80: itj r*gp hg pr'oppr J.V s -3.id to loo i undcini©nt si principle of English Law that private rights can be assarted by individuals, but that public rights can only be asserted by the A t t o rne y- Gen er al as rep res en tin g the public. In terms of constitutional lav/, the rights of the public are ve ste d m the Crown, and tlie A ttorney - General enforces them as an officer of the Crown, and just as the A tt or n e y - General has in general no power to interfere with the assertion of private r ights . so in general no p rivate _p e rson has the i i g h t P i L . rep r;e st ing the ..public in the a ss ertion of public r ight s ... Ifjie tr ies to__.do_so jvis act ion can be str uck out 111 (the emphasis is supplied) And at p . 83 b - c , his Lordship said: "That it is the exclusive right of the At t o r n e y — General to represent the public interest, even where individuaj.s mi o h t be interested m a .]_a r cre r vi©w of the matter is not t e c h n i c a l , not p r o c e d u r a l , not fictional.. It is c onst.itutiona 1 i 1 ao ree w11h Lord West burv LC that it is also v/i ?eH . Do the p r o v i s io n s ot s :2 6 ( 2 ) of t he C o n s t i tut ion entitle the respondent to hr m o the action now be tore this Court? I think not « In the t;?r s t Place, m his plaint the respondent has* not comp la ine d of u nco ns t i t u t i o n a l i t y or i l l e g a l i t y . A lt ho u g h he is a 1 avyer bv pr ot ess ion , he has not c 1 1 ed any prov ision of the C o n s t i t u t i o n or ar.y other lav; whic h has been vi ol ate d by the appiicants This o nisnon ,is m my view, a matter of no surprise. The respondent could not have made such citations hsca u s e u nd0 r t he C o ns tit u 1 1 o n a nd i aw t inen in. iorcG no u neons t it u 1 3.0 n a i 1 r_y o r 1 lie a a lit y c o u 1 d a r 1 s e 1 n t h e ap p 1 1 c a 111 s rece 1 vino from the Goverrunent the moneys they are sa 1 d to have rece iv ed on .behalf of C C M , or m the Go vernment m&kincf those disbursements. I will he forgiven, I hope , tor stating tiie obvious,, name l y , the c o n st it uti ona li ty ot legality of yesterday's actions cannot be t est ed by t o d a y 1s c o n s t i tut io n or law, Secondly, it is my considered view that those provisions were not intended t o , and do not , abolish the application in Tan zan ia of the common law principle that. a. pr 1 vate person cannot assert r xaht s be Ion 01 na to the public. In mv 3 udcfment t.h e y merely reduce the ^ccpp o*: The ru '■e a.c. fa7" orb *i ’ -' nuisance and public char i t a r e concerned, two or more private persons may, under s 66 and ^7 rsf r ^e Code res-nect ivelv br 1 nQf a relator action, But to do so, those persons must obtain the consent of the Attorney- - General: see Tricumdass Muij 1 and_ A n . v - Khimki V u l i a b h d a s s ....and .Other s (1892 ) 16 Bom, 626 and L ut iiu nni ss a Bibi and Othe rs v Nazirun Bibi (1885) 11 Cal 33, The provisions ot those two sect ions are mandat o r v r suit s to which the sections ape 1 v can only ice m s t i t u r e d in accordance with their provisions It cannot be denied that, the instant suit has not been instituted in compliance with the provisions of s .b 7 . It may we II be - and I stress that I say no more than that - that the t r u st.ee s o i a oo 1 1 1 1 ca L r>ar t y c an . x n I a w , see k 1 rom t his Co 11r t some ot the r;?iie!;s the r ^spoy/i'V’.'it etc ted to pi ay tor in the r■s t an t case. Lastly, I h u st deal with Mr.. Uzanda's subnn S2 ion concerning subventions which were beir.j made to the applicants. 1 am not disposed re think that ail the issues raised by thi respondent in. his plaint are not justiciable. Some of those issues can, in ny opinion, be properly examined m courts oi 1 a'.-' provided tney are raised by a part y having locus._s t an di . Whether CCM is a properly registered r o n t i c a t party, icr exarople , is plainly a question ot law.. '-’hose answer mist lie m the Constitution and the Political Parties Act Nevertheless, J. agree !-n.t!) the learned advocate’s submission that the remedy, if any, for any wrong allegedly committed m relation to subventions received by tee applicants does not lie m "he judicial rleld. In general, the s'anagemert ot public funds, like the management of the economy and ioreign po.Licy of the country, is the prerogative of the executive; it is not amendable to n u n o i a l process. In the exercise of its powers in that field the executive is accountable to Parliament. It w o u l d be straining to the utmost the power oi judicial innovation to say that in the exercise of its powers in that area the executive tails under judicial superintendence or scrutiny. Generally speaking, judicial process is unsuitable for determining issues arising trot the exercise of those powers. I imd considerable support for that proposition in the observations made by LORD BIPLOCS. i n Council oi Civil_Service Unions and Others v Minister tor the Civil Service (1985 ) 1 A C . . s7 4 a _i_h 0 xt in a so^ov-hg'1' different oorir oxt A.t p 4.11 tiis L o r dS h 1 r> X -3i.•1 - ■ Th?' r i?a ar-oy’■- tor the xv T 3 'V11*1n C:rl X t . /-\ >* (T- .a ’ O U X S X4 1? a t h er 1 ix 8. XL -5. ixo t h 6 i iy involve fyij c.( t -• r>:'n j- -•» \*'h x C h 1i H X O ’ •■tl<"*r! fh 'X 11 I ' 1a 1 p X Q C 0 S I S Cl Cl d D t O d t O O X O V id e t h e X'XOiXt' 5. H S V / 8 I ! bV Wh XC h I rn 0 a n t Ix a t xh e k xnd o i 0 v .x d 0 1 1 c ~ h^f u n d er xxxriiCLal - r o c ^ d u r ? ? and t ho xx: v/ixxcn i.t has to .be a d d x x x e r'! tend to e x c Luda 1 x o iTf th e a t t e n t i o n of th o c o x 1r t oomr>0 1 1 n n r>o 13 . c v c o n s x d e r a 1 1oixs w h ich i t t hO ^ v P * O \] V X V 0 r; q r- v - t - -i n x X t f' np* v r l p 0 1y 0 v p r r; 3. 3 x r i need to be xeiohod 30 ? ir:c'f one another — ^ .bxLir^inc p x e x r"j.0 x* vxhich '11'd o 0 s hv xbexx' lipHr--; xioi'xc and e x r>0 x X0 H c 0 0 X 0 1..11—oru.a 1 I.110 d t o O p X frix fO M An assort 3.on txnat, th0 &x?rciS 6 oi r--yxx ~J ctovoxnrnenxal x*ovj01" is subject to ji.idi.cxal scrutiny vrould not he a sustainable p r op o s 1.1 1o n t Judging trox v;hat he avers m his plaint . Mr. Ballonzi Senior , iee 1s very stror-qiy about the v/eaknosses of the political system which existed m this country horo'v~e xhe run It ^ —oa rtv s v s t e m w a s a d o p t.0 d a j0v/ v 0 a r s a o c; b u t the ia>? r e crar d s h 1m a s I0.ck.1no status to maintain the o r o c0 0 m o o r> h3 xnst1tut 0^ before this Court . Wnile Xio niav deserve coxxnv'5rLdat 1 r'n for hxs vi ox lance m supoor t 01 de^iocra^y t^e an^-lncant s h^;v^ demonstrated to my sat ist act ion that his xuit. has not been proper Iy trani^d. and xor!i0 of 'n J s oax^s^s X’i acr 1on incontestably bad xn lav-u. The suit vn.li not lie. 22 The application is granted and the suit is, under s . 95 of the Civil Procedure Code, struck out. The applicants will have their costs. B.A. Samatta JAJI KIONGOZI. De li vered this 9th day of May, 1995, in the presence of counsel for the applicants. JAJI KIQWGQ7.T .