19860905 TZHC Dar es Salaam

IN TIE HIGH COUHT O:F T.l:H'!ZANIA at DAR SS SALAAM MI/3CELLAifEOUS CIVIL CAUJE.: NO~ 44 OF· 1986. l. Majid Seif · 2. Jimmy David Ngonya •·• •••-•••••••-·••l'•• .AEPLICANT- viei!stis 1. $aid Hamad El-Maamry (Choirman of the organizing and Displl.n~ry Committee of the Po-otbal Association of Tanzania {F.A~), -.. ·••••••••••~•••••••••.,. R:S5POI1DENT

JUDGEMENT Mfi!'ZiWAS _J .K, ... ,. ln No:vember 1985 the s·ecre.tary General of .· Simba Spo.rts. Club Pv'Vl, registered one, Francis Mwikalo.--to play for the club in 1986. According to the evidence of the Secretary General, Jimmy David Ngonya ( PNl), Francis Mwika.l.,o filled five copies of special ·forms which he also signed signifying that he had on his own free will decided to plcy for Simba Sports Club for 1986..• It was the Secretary General's testimony that after the Football Association of Tanzania (which I will hereinafter·for the sake of brievity be refering as FAT had scrutinized the a_i:prfcation forms of Francis MwikBlo it-(FAT) approved the application on 6/1/86 end accordingly Francis Mwikslo beceme a lawfully registered plc:yer of Simba Sports Clu.b for 1986 super league·~ 2 - The application form of Franch:: Mwik&lo which was approved by FAT was produced as exbi t P2. .1:ilso produced and ~rk.ed as exbit P3 was an identity card issued to Francis Mwikalo by F~T to confirm that the said Francis Mwikalo is one of players of Simba Sports., Club for 1986 super league • Jimmy David Ngonya, (PWl), also testified t11at FAT · also showed Francis Mwikalo as playing for Simba Sports . Club in the list that sho:wed a11 the clu.bs' players "Exbi t F4 11 • The court was told that MwikalD played for Simba on 1/3/86 in Tanga against Coastal Union Football Club in the su.per

l~agua in which Simba won the game by one goal and received two points. It was Ngqnya's evidence that soon after the match he received complaints that Mwikalo was a ragistered player of Muhe·za Shooting Stars end that Muheza Shooting Stars wrote them a letter claiming transfer fees. It was also Ngonya•s .testimony that on 2/4/86 FAT wrote a letter to Simba Sports Club in which a registration card of one, Fura Mwikalo was enclosed and tho.t Simba was asked to explain who was this man Fura Mwikalo before 12 noon the following day - 3/4/86. It was his evidence that the heading of the letter talked of Francis Mwikalo b~t that registration form talked • of Fura ·Mwikalo - P5 and P6 respectively. The Court was told thnt Simba replied that it did not hc.ve a· pla_yer by the name of Fura Mwikalo in their club. Soon ' after . Sim.ba received a communication from FLT th&t the:f had fielded Francis lVIwi1{,Jlo on 1/3/86 against Coastal Union ... /3 3 while the said Francis Mwikalo was a registered player with unothcr club and that their two points won against Coastal Union on 1/3/86 were withdrawn. It was Ngonya's evidence that Simba Sports Club w&s not given a hearing b-r~fore FAT wi thdrci-w the two points from them. It was Ngonya' s testimony that Simba complained to the National Sports Council which refused to hear them and that th'W decided a to come to Court to seek justice as, it

was argued, they had been condemned unheard. The Secretary G9n2ra1 of FAT (mVl), related to the Court the procedure regarding registration of play<J_rs of different team divisions. The court was told that division one teams send· their applications for registration of players to the National Jxecutive Committee of Fi\T in Dar es Salaam. It was his evidence that one of the pla_yers· Sii.nba Sports Club sent for registration in November 1984 v-;2s J?rancis Mwikalo. The court wi.:l.s told thet F.AT found ·~rrwikalo' s application for registration to be in ordar ~r:d registered him as one of Simba' s pl::.-s ers in. 19.36 sus.•er league. Mr. Said ,i;lma&mr.y 1 (D.:l), also told the court thc:t later, on his return from Cairo :1 his secrets:r_y told him that Simba Sports Club had fielded one player wh2n it pl8._yed with Coastal Union Club before completing transfer formalities regarding tha player. On receipt of this report a meeting of the disciplinary committee of Fi\T was convened. According to his evidence the committee scrutinized documents from Co.astal Union Football Club~ Muheza Shooting Stars and Simba Sports Club. . .. /4 ...... r r .i . - 4 - The Court was told that an identity card - exbit Rl showed that Fura Mwikalo played.· for l\iluhez·a Shooting Stars before he . - was registered with Simba for 1986 Super League. The disciplinary committee is also said to have found

that Mu.h.ez,a Shooting stars h&d complained to Si!l!ba tha't it (Simba} .h.ad registe:red Francis Mwikalo as their player fQr 1986 su.pel' league without first coi:nply ing with transfer procedures by paying transfer fees to Muheza Shooting stars - • 3xbi t R~ 1• ~ T.he Court was also told that the disciplinary c.ommittee received registration form from Regwnal F.ilT (Tanga) showing that Francis Mwikalo was registered player with Muheza Shooting stare - Exbi t R3. It 'Na s 3lmaamry • s evidence that after studying these documents h3 1 as Secretary General of FAT ordered th8t Simba Sports Club '.Je asked what it hc..d to say about the revelations regarding Mwikalo's Status. ii letter "exbit R5 11 9 was sent to Simba Sports Club asl{ing it to defend its elf about the irregu.lari ties alleged against it regarding registration of Fr:::ncis Mvvikalo as their player for 1986; Simba replied the letter as shown in exbit RIV. Mr, Elmaamry told the cou.rt that Mr. Ngonya, ( P'Nl), did not ask for audiance before the disciplinary committee to argue its case about what had emerged regarding F_rancis 1'!Ivvikalo. It was Zlnaamry' s testimony that after scrt1tinizing all the documents before it, including Simba • s letter in defence the di,ciplin&ry committee of Fi1T came to the conclusion that Francis Mwikalo was unlawfully registered by Simba Sports Club, the respondent 9 as their lawful

player for 1986 Division one Super League and that the two points •... /5 .) 5 earned by Simba on 1/3/86 in their match against Coastal Union had to be withdrawn. salehe zimbwe (DN2) toll the court that he was a commissar in the last 1986 Super League an,i that he is also a member of FAT technicF-.l co1:-;...:1ittee. It was his eviience that in complience with h~s duties as a commissar he, on 1/3/86 1 assembled both teams - Simba Sports Club and Coastal Union and the referee before the match started. He said that both Ngonya and Bwawezir officials of Simba and Coastal respectively were present. According to his evidence _Bwawazir coinplaineJ. that one of ·:,.~e players in the Simba team was l<.1vdu.lly registered <fvi tn 11/Iuheza Shooting Stars ana thBt if the pl&yer was fiel':i)d b,y Simba he would lodge a complaint. Th8 witness said -~~·.c:i.t Si::iba fielded the player and thc:t after the match Bwawazir lodged a complaint to him against Simba and th£t he, in turn. forwarded Ooastal Union's complaint to FAT in Dare:: Salaam. On being cross-examined by Mr. :Mwaka j inga, iearned counsel for the applicant, the vvi tness told the court that the player allegeu. to h&ve bs-:=;n unlawfully f iel6.ed by Simba was Francis Mwikalo, Hassani Bwawazir, (DW3), S~cretary General of Coastsl Union tol,'l. the Court that on 1/3/86 before his team played with Simba Sports Clu.b thGre was a

meeting chaired by Zirnbv;c- 7 -:Jd2), in which h: saii he compla.ined thst Francis J::I-nika.lo who 'NAs being :''.iel-:led by Simba was a registered pls,s- er of Muheza S.i:.2ot j_t:.g Stars. It . +. ffi88vlng and that he (DW3) 7 :lir:Jct:.: l.l . . compl.s,i.::-;_·_. ·to 'Jgon,y-a, ..( 6 The court was told tl1- t after the match in which Mwikalo was fielded by Simba he immediately wrote to the Secretary General of FAT and complained - exbit R.5. It was his testimony when cross-examined by Mr, Mwakajinga, learned counsel for the applicant 9 that if they had won th,9 match he would not have written the letter of complaint R5 to / the Secretary General of F~T. The Chairman of Muheza Shooting stars (DW4) testified to the Court thE-t the said Francis Mwikalo 9 hSs been playing for his team since 1983~ The witness told the Court that Francis sometimes shortens his name with the name Fu.:."a. As far as he knew Fura Mwikalo is one and the same person as Francis Mwikalo. It was his evidence t_hat Muheza Shooting Stars had registered Francis Mwikalo for both 1983/84 and 1984/1985. The Court also hear evidence from one, Hassani Juma Kasere, (DW5)f Scretary General of Muheza Shooting stars. Like the chairman of Muheza Shooting Stars, (DiV4), this witness. also said that Francis Mwikslo .hEs been their registered player since 1983; and that he was also registered to play for the same

tean in 1983/84 and 1984/85 sessions. It was his testLnony that later the.y heard th&t Sirnba Sports Club_ had registered. Mwikalo for 1984/85 Su.per League; and that he wrote & letter of complaL~t to Simba that their registration of Francis Il'Iwikalo as ,their player for 1984/85 was invalid as they had not p8id transfer fees to Muheza Shooting Stars before t.'.2.ey registering him as their player. This is an & r,.plication by Majid :Jeif an~ Jimm.y David Ngonya who are cho irrnan snd secretary general respectively of Simba Sports Club for an order of certiorari to quash the decision of the Secr8tar.Y General of FAT, Said Hamad El- Maamry, who chaired the organiz'ing and discipliJ.1.ary committee ... /7 .7 of FAT on 3/4/86 which declared Cosstal Union of Tanga the winner of the.match played between it and Simba Sports Club the ground th~t . . .. . .. ·. . on/.. unlawfully fielded one, Francis l'.Iwikalo, a registered . pla}er of MuhGza Shooting Stars without compJ.y ing with regulat~ens regarding transfer of plD.~·ers from another team, Appa~ently · in this rnatch Simba Sports Club had won the game by one goal. IVIr. Ngonya told the Court in his testimony that Simba Sports Club was not given an ol)portunity to be heard ·bEifor8 the decieion to deprive them of their victory was reached.: It was argu.ad that Simba S~orts Club was c.ondamnad unheard which,· it was submitted, wes

contrary to rules of natural justice, Basicall9 the appliof.ints craved for a pro_per hearing. The question this Court h~s to decide is whethet the . .. ',:,:'( a,p~l~Qants• team, Si,nba Sports Club, was condemned unheard. If the cU.soiplinsry ·committee of FAT heard and determined th~ dispute betwa~n Co~stal Union and Simba Sports Club without giving Simba an opfortu.nity to_preeent its defence then . tha decision of tha di~ciplinar.v oommi ttea will have t·o be · found to be oontrary to rulee of natural justice and therefore invalid. _ :·.'During the hearing it was shown that Mt.µieza Shooting · Stare had written a lettar of complaint to Simba Sports Club .,- to the effect that Simoa had registered Francis Ivlwikalo as thair pla.ver without compl.y ing .with transfer regulst ions as it had not ~i(i tronsfer f eea to -Ml.1.haza Shooting stars :- Th~s . letter was apparently copied td FAT.- 'RegionaLheadquertkrs· · •• • 1: and to F.ttT - Dar as· Salaam. The letter was produced as exbi t · Rll, In this letter Francis Mwikalo is also referred to· as Fu.ra. Francis Mwikalo'.s photograph mounted in his ... registration card - Rl was also sent to the Secretary Gen.eral of Simba Sports Club. ... 8 - Ngonya (HYl) argued in his evidence that he did 1iot know Francis Mwik&.lo was also known as Fura Mwikalo ~ It may very well be true that initially i:igon,ya did not kno\Ai that Francis

was also written in short as Fure - Indeed in his te;stimony Ngo.nya told the court that Fura and Francis were two diffetent people, And Mr. Mwal{ajine;ap learned counsel for the applicants, vigorously supported T.f eony:1s testimony. On the oth'.3'.':'.' hand there was the evidence of both the choir,nan and the scfcretary general of Muheza Shootin,g Stars in whose team Francis Mwikalo was registered which was to the effect that Fura Mwikelo and Francis Mwikalo is one end the same person, The applicants would have m;;de this cou.rt' s work much easier regarding the identity of Francis Mwik£,.lo if they had called him as a witness, If he was called as a witness t.he court wou.ld have had the opportun'ity to put to him the pertinent qu.estion whether he was also known as Fu.ra Mwikalo. As Francis Mwik.::ilo is presentl,y playing with Simb0 1 the failure of the applicants to call him as a witness entitles the court to draw an adverse inference against them under section 122 of the .Evidence Act and find thc:t if Francis Mwikalo was called as a witness he would hove given unfavou.rable evidence to the applicant's e case. It is clear from the Rules and Regu.lations ( exbit Pl) that it is the responsibility of every secretary general of a football-club to ascertain the identity of every one of his players before fielding him in his team. From the evidence of Salehe Zimbwe (DW2), who

was the Commissar of the National Super Leagu.e Ngonye was warned not to field Francis Mwikalo in his team as heJ)(Francis),vvas a registered player of Muheza ... /9 9 - S,b.ooting Stars. There wt:is no sllggestion leave alone evidence that the Commissar had reason to tell li0s against •simba Sports Club. There w·as evidence which evidence was apparently not seriou.sly disi::u:ted by thw applicants that Francis Mwikalo was registered to play for Mllheza Shooting Stars fol' 1984/,1.985. The Hules and RegLtla t ions show that before Simba Sports Cltib registered Francis Mwik~lo as one of their players Simbs was required first to pay transfer fees to Muhaza ShootL1g ~tars. This was apparently not done by Simba ~ Coming to the argument thet Simba Sports Cll.\b was condemned ·wih·aal'd it is ble~r from the evidence that the disc~piinary committee did not hear Simba•s defe.noe ,tally oefore daoiding to withdraw the two points it gained from.the match pla,,y_~d on 1/3/86 with Coastal Union. ihis, it wee submitted by Mr. Mwakajinga, learned couneel for the applicants, was contrary to natural ju.st ice. Mr. Marando learned cou.nsel for the respondent on the other hend argued thst the feet tht,t Simba Sports Club was not given oral hearing did not naoessarily amount to not being heard.. In support of his c1rgwnent the Court was referred to the d. eoision in BOARD OF -n PJJOA'.P.ION 4 ¢_

ti L ..V. RICE and Others (l~ll) MU Appl. oases l 79 Natural justice requires every person charged with the dt.ity of adjudioat ing l.lpon disputes . between, or upon the rights of others to act fairly, in good faith, withou.t bias.and in- a jt.idioi~l temper and to give each p~rty an opportunity of . stating hie oeee. • ••• /10 - 10 - In the present case FAT received a complaint by Coastal Union that Simba Sports Clu.b had fielded Francis Mwikalo · in the said match wi thou.t complying first with transfer formalities under the laid down Ru.les and Regulc.:tions ... (Exbit Pl) Which . ~ ·1 ... required Simba to pa,y trc.nsfer fees to Mu.heza ,Jhooting Stars. in which Francis ~wikalo was registered~ There is evidence that on receipt of the complaint F.AT sent a letter-'iExbit PV'' to Simba asking it to defend itself regarding the allegation. Fi~T also enclosed documents ing support of Coastal Un.1.on:is allegation that Francis Mwikalo was register9d with Muheza Shooting Stars for 1984/85. Simba Sports Club sent a written defence - 11 exbi t RIV" in which the secretary general g (PWl) argued that Francis Mwikalo had assured them that he was not r~gistered with any football club and that because of Mwikalo's assurance Simba registered him as their plc:yer for 1985/86 Sup.er League. In the last paragraph of 1'Exbit RIV'' Il'Ir •.. Ngonye insisted that Francis MwikZllo ,was

lawfull~, registered bJ Simba Sports Clu.b •. T~,king into account exbit Pl and RIV it is amply clear that Simba Sports Club was given an apportunty to defend its elf regording the allegc::.tions levelled ags inst it b.v Coastal Union and, as shown in RIV, Simba Sport:3 Club defended its elf. It was ofter th2 disciplinary committee h2d scrutinized docwnents in support of CoBste.l Union's complaint and. ,3imba • 6 defence that it came to the conclusion that the fielding of on Mwikalo by SimbaLl/3/86 in the match with Coastal Union was irreguler as the said lt,rancis Mwike,110 had not b.een transferred to Simba Sports Club as requ.ired by the Rules and Regulations, It may will be true thet Francis Mwikalo told Ngonya that he was not registered with any other team 8nd Ngonya appareritly readily accepted whst Mwikalo told him. But whether or not Mwikalo deceived Ngonya about his registration does not absolve Ngonya, as Secret&r,y General of Simba Sports Club, •.•• /11 - 11 - from the responsibility of ascertaing that· the ·pla_yer h.e was registering in his team was not· encumbered. From the evidence tendered in·Cou.rt•and the ex9its produ.(?ed from both sides it is clear that the organizing and disciplina~y committee of FAT choired b,y Mr. El-iVIaamry on 3/4/86 acted fairly and in good faith as was requ.ired under the ru.les .of natural justice. From the Ru.les and Regulstion

(F·l) .. 1.e disciplinary committee was not requ.ired to call witnesses 1 All it was requ.ired to do was to obtain information . from both si9-es in f:J.ny wa,y it sought best and giving opportunity the parties involved to state their case. From the evidence this is exactly what the disciplinary .committee did. If the committee had failed in this du.t,y its order against Simba Sports Club wou.ld certainly h&ve been the subject of certiorari and the committee itself wou.ld h~ve been the subject of mandamus. ' I agree with Mr. Marando's su.bmission that principles of nitu.ral justice were fu.lly observed by the orge.nizing and disciplin&:ry committee in its decision on 3/4/86. The application for orders of certir&ri is accordingly d'lsmissed with costs. ;, I; \ '·~- N. S. Mnz.avas

JAJI KIONGOZI Di.res salaam 5/9/86