19960607 TZHC Dar es Salaam

." . --,_~-i,;.;: .... 4 •• ~ ·'I''··' • 1 ·• J. . ..,. . , - . . .,. ,, ...., .,,~ , . ·• \ . !'~l '" IN THE HIGH\CCURT dr TANZANIA AT DAR ES SAIAAM. MISC. CIVIL CASE N0~~1 ••• OF 1996 (1) MHIDINI AHMAD NDOIANGA) ( 2) KASSIM KA$HULWE ) .,. r . (:;) ABDUL MSIMBAZI ) ... •·• ••• APPLICANTS ( 4} Af.3DALLAH BULEMBO ). VERSUS l. NATIONAL SF()RTS COUNCIL•••••••••••RESPONDENT 2. ATTORNEY GENERAL•••o•••••••••••••~PNDffi~ BUBESHI •. J. , ---~ RlT:J:;.'TG. ..... . . . . .... · The applicants, Muhidin Ahmad Ndolanga, Kassim Ka:shulwe, Abdul Msimbazi , . . . . . ~ Abdallah Bulembo 'were amongst members of the Executive Cami,tee ot the . . i -., • Football Association of Tanzania(hereinafter to be called. FAT)toP tha 199.3 • 1991 tenure. The appl~can~s want this court to exercise its discretion and grant thif f~llowing orders, nameiy:- t • an order of certiorari to_ quash the decision of.the Screening Committee of the National Sports Cbncil <hereinafter to be called the "r~spondent"I ot 29/3/96 barring the applicants from contesting FAT election • an order of mandamus to compel the Respondent to rescind their purported (JI decision of scrutinizing and barring the current members of the Executive· .... . Committee from contesting the FAT election • An order that the Scrutincy of the names of ·people who weit~ for . various posts in:the Executive Conm1ittee of fAT was unlawful • Costs of this application - any·other reliefs that this hon court may deem proper and juat.to_ grant; And ~- /· In the alternativei • that there was a failure onthe part cf the Respondent tooot jpdicially • that there was a failure of natural justive ....• • that their ( respondents) Aets were unreasonable and 'udN.l'• . .,. ,,, .... 2 ... . -The applicants are re:-resented:by · learned COW\!llif OaO.gratias Lyimo and Kassim Nyangarika. They have alGf f,led affidavits to support th~ir application. The re.apondtJ\'5 who have· stongly contested the applicants were ret,efen;ed by ?'Jr4 Kaloio Burtdale learned counsel and relied -lJpOJ;. ;' the affida~its of Said 0 amad Elmaamty the ChaiNDan e,t-t~ Respondent, and supt•limentary affidavits filed by Michael Wambura·and or. Ramadhan Dau members of the respondent council. ~n the pleadings and in course ef final atibmis,sioq . it was submitted for_ the respondents that the court had ·no jurisdiction to entertain the application. That in accordance to Article 53 (2) (e) and (f) of the FAT eort!titution, the application be!ore this coutt was . prematur~. I propose to dis9ose of this matter at this juncture. Unde~ Article 53 (2)(e) and (f) app~al1 torm the 4~ational Sports Couno;\.'t shall be submitted to th.I Minister respohs.ible !or sports -~hose <i.ecision shall 'oO final•· Likew~~e the Respondent have invoked Article I!, of FIFA statute on settlement ~f _disputea as barring · sports matters from being re!e~red to courts of \aw ~Ottlf thereof has been exhausted. the laid down .. machinery - Similarly, they have Ci te_d · Article 29 of the CAF onn Disputes where disagreements o! like natures have st~~,- to be referred :to arbi tra.tion tricu1:1a.i. and, not c.1vj,l, courts. The issue then i:s whether these ouster olau,es bar this eourt from hearing this application. While I. agree with the respondent on t.he ouster cla~ftf, efl coatained in the relevant laws cited above, it i; now settled ahd there are authorities abound that an appl,;ani for the prerogative order o! certiorari is not obliged to exhaust the prescribed administrative machinery bef11n _reaorting to a court o! law, where the appliQant claim, that the deoisio~ complained oi was reached without jur"~tion or in contravention of the rules of natural justice, tho '·>' . • existence of such a machinery is irrelevant. In the application before me it is the_Agality o.t: the eomminee that is in issue and if the committee had such le1al basis,that its decision was vitiated by the breach of the rules of natural· justice. These are issues of law whioh •••• /3 - 3 - should properly be fornn.1lat2d and answered ?Ya eourt of f law; and in attempting to anS1,•1er them, this court., does not in any way impinge upon the power of the administrative tribunal, in this instance, the Ministerial powers unde~ Article 58 (2){e) and {f), of FAT constitution if at the end of this ruling there is still a decision standi~g, In the premises, I am satisfied that this court has jurisdiction in the matter and I proceed to consider the application and I start with the order of certioraJ1. It may be pertinant at this juncture therefore to say something on the appeal pending before the Ministez:-. Proceed,i.ngs for certiorari are quite different from ppc,c.eedings by way of appeal, m the latter case the appellate 1,ody is required to hea~ the case ~ither; generally or on particular issues raised in the appeal and for the pu-po1es of this case all appeals a~e directed to the Minister responsible for sports.· In proceedings for certiorari this court is required to exet•cise .i td -supervisory . function to ensure that a pa~ticular body acts in acoordante with the flu1e of taw. The following salient points are not in dispute. The applicants were amongst the members of the Executive Committee of Ebetball Association of Tanzania - hereinafter to be referred as FAT .. for the period 1993 • 1995. That on 28th March 1996 an adho? scre~ning coIIUrJittee, herein after to b--a called the r.committee" was appointed by the Chairman of the "'espondent to scl'een names of all contestants vyin~ for post in the FAT leadership. The Committee did its job for t-wo consecutive days 29th - 30th March 1996; and the result of the exercise was announced at_ a press conference on 31/3/96. The applicants were amongst. those disqualified to contest for the election due to ~ake place in Dodoma on 3/4/96. That soon after the applicants addressed an appeal '.to the Minister responsible for Sports against the declsion of the committee and the appeal has remained underterm1ned to date, It is not in dispute that the Ordinary General Assembly of FAT was held in Dodoma on 3/4/96 with the 1st applicant presiding and thG other applicants we~e amongst the members of the assembly and . listed on the a~enda 4 were 11 items-and.that by the time the meeting was suspended by_a court order, there were some five items'pending. That as per FAT constitution, not every Special General Assembly, that is an Election Assembly is proa'eded by an Ordinary General Assembly. The applicants .have listed the following as being matters in dispute namely: whether the Chairr.:e.n ol the National Sports Council - hereinafter -tc be referred as HNSC 11 is empowered by.law to appoint an ad.hoc screening committee - whether the said committee,has exclusive powers in law to screen and disqualify the applicants in the circumstan~es of ~he case whether the committee was duly· and fairly constituted _whether the comrrdttee observed the rules of natural justice ~ whether the applicants were formally notified of the result of their application to contest the FAT election. - whether the reasons Given by the committee fo~ the disqualification of~:the applicants were justified in la,;, in -the circumstances of this case whether applicants were given reasonable opportunity to be heard on the constitution or composition of the- cornmi ttee - whether 'the applicants appealed to the Minister in time to enable him to determine the appeal and whether the Minister was justified to leave the appeal undeterminad to date whether the applicants have other remedies other than the courts in the circumstances of ·.... . /5 7 ,, 5 this ease what are the reliefs, the parties are entitled to And as subml·tted bay the :~es-pond~, the~itrsu.eS1.-ar.EH: ·-~ .. - whether the conditions precedent for the issuance of prerogative ore.rs have been met whether the respondent complied with the rules of natural justice whether the applicants should meet the expenses for the adjourned elections! ~,J'Z"al..!:, •. :,;- • And as formul..uted by the court this ussues are: whether the prorogative orders of certiorari and mandamus can issue in the circumstances of thie case : The National Sports Council is a body corporate, established byAet 12 of 1967 as amended by Act 6 of 1971. Amongest its functions are: . 4 (l)(a) to develop, promote and control all .forms of amateuro sports o~ a national basis in conjunction with sports association. The NSC also is charged with the duty to oversee elections of FAT •. Article 49 of the FAT Constitution 1995 provides ·· that: nuchambuzi wa majina ya wagombea uongozi wa FAT utafanywa na maba!a.!7.a ya ngazi husika" jFreely translated it reads: Screaning of names of aspirants to FAT leadership 11 wi11 be done by the relevant sports councils" And Article 51(c) of same constitution provides for eleotion of leadership at national level to be supervised by the National•Sports Council. The a:i,.;plicants "have challenged the powers of the chairman of the respondeht to aippoint the commit~ee, _the constitution and composition thereof, the legal powers of the committee and whether it conducted itself in accordance with the rules of natural justice arul without bias •. 6 The Chairman of the respondent who have strongly opposed the application, has deponed in paragraph 5 of his affidavit that the names of the Committee were appr·oved by him upon proposal by the Secretary General. That the NSC is cha.rged with the • · -. · . re·sponsibility toaupervise the FAT elections at all levels is not disputed. Indeed it is one of the functions of the NSC as per Articles 49 and 51 of the FAT constituti0n. The power to rnalte regulations for the establishfdt1t and composition of - committees is contained in Section 2alof Act 6 of 1971. The relevant proviso reads: . Section 28 The Mini:::ter may make regulations for the better carrying into effect the pu:rposea anc;i provisions of this Act and in particular fo~ (a) • • • • • • • • • • • • • • • • • • (b) .. . . . . . ... .. . . •.. . .. . .. .. . . . ... ... . (c) ~ (~) the establishn~nt and composition of committees to which the council may delegate its functions. The question I ask myself is whether the committee set up by the Chairman of the Resp~ndent to screen th d3ames of applicantt 1 and others was a creature of section 2a7c1ted above. The ehairman of the respondent has not submitted that the commitiee he set u~ in consultation with his secretary general was in pursuance of regulations made by the Minister as per section 28 of Act 6 of 19971. The respo::dent's chairman ha~ <tontellded that such committees have been appointed· as a matter o! pra;tiwe and the practice and procedure ~1&s been in existe~ce ,~ince 197s. Both counsets have conceded that up to now there are no regulations made by the Minister in terms of Section COot Act 6 of 1971. I must remark that, in my considered opinion the obligati'on to a;l.ert the r11inister on the, provisions of Section 28 of Act 6 of 1971 is squarely on the sholders of the Respondent_. They are the ones mostly concerned and to be affe(;ted and guided by the provisionw~ich has been in existence.for the. last 24 years or SO.• ~· .. . /7 - 7 Of course section 28 of A~t 6/71 is not mandatory that the Minister make regulations but I think it is Prudent it sueh legal provisio_ns are taken into consideration in the conduyt of such matters. It is hoped that the regulations would be promulgated soon. Counsels for applicants nave submitted that in absence of of regulations interms of Section 28 the committee set up by the respondent's Chairman was illegal. Counsels for the applicants were of theview that it is for the Minister to appoint the committee. With respect, I disagree and would be inclined to agree with Mr. Kalolo £or the respondent that the Minister may make regulations for the establishment and composition of such committees to which the council may delegate its .functions. The r•1inister d9es not appoint committees To date th~se regulations have not been formed and neither has the law been amendect.· I take i·c therefore that the law guiding the procedure of the council is still Act 12 of 1967, _The respondent has submitted that in absence of committees established under the provisions of Section 28 of Act No.S of 1971, we then have to resors1JRiRractice.. What has been the practice that has opera:tedw /_ the council since 1975? The applicant has vehamently argued that.the whole exercise of the Chairrt.an of the respondent appointing the committee was an illegality, that the committee had no legal powers to do the ·screening. The applicant has submitted that if anything the screening exercise was to be done by the tu.11 council. To this the respondent has been quick to co~nter by the argument that the full council consist of 30 members and it had. been the practice to have such ad hoc committees screen the aspirants. That the ap1:>licants were subjected to a similar proce.dulYin 1992, and -t;~1erefore he is estopped from complaining.• -. \ i. ... 8 As observed earlier on in ~Y ruling, it is evident therefore th.at the National Sports Council,has been cond~cting ita business for the last 24 years or so without legally eonstituted committees.· The Respondent-has appended to his ~ttten submiaoion names of members in the following committees;' - .- ~amati ya Utendaji na F~dha Kama.ti ya Utafiti, Mipango na maendeleo Kamati ya ufundi na Vifaa Kamati ya Rufaa na Nidhamu - Kamati rtdogo ya Fedha na tnali. I hatsten to add that the .functions o! these committee$ have not been spelt out, hence this court is left to speeulete ·whether the ad hor screening committee was an independent committee or it was required by practlce to submit its tind:tngl to one of the cetmni ttees above ,...mentioned. . . In the absence. of clear gui:delines so established it cannot be said that the committee act?.d without autho~ity~ It was for the applicant to te-:i.1 this court what procedure - legal or otherwise has been fl,'.Juted by the chairman or the committee.itself. The NSC in its wisdom has adopted this p~\iee and in·the absence-of clear breach of a particular law or regulation pertaining to the activi tieg o! the set up comm~:tt11,, · I would decline to hold that committee's actions were unlawful. It would have been different i ! there had been cleu !unctions earmarked for each commi ~tee of the council. . I hold therefore that the Chairman had powers in terms of the Schedule to Act 12 of 1963 - Section 3 (2) therst >:·io appoint the cotnmittee to transact the screening business on behalf the council as· it was do.ne ih February ,1993, Now thet I have found the committee to have the mel\date to transact business on behalf of the council,, _the.next equally important issue is whether the said committee conducted itself in accordance with the rules o.f natural justice and fair play. .. •. ../9 ... - 9 ... The applicants have averred vide paragraphs i, 7 and 8 ot the afficavit. deponed to oy . the 1st applicant that. there was a denial of natural justice in that:- ( a) the Chairrr;an of the cornmi ttee could not have acted without a tint of bias as they had exchanged words over the C~ membership. {b) ·there'were rumours abound that the 1st applicant• s name would not be· clear~'d due to. that misunderstanding. {c) they were not given opportllnity to challenge the ·composition-of.the , committee, (d) tbey were not officially notified of the reasons - paragraph 12 of the 1st applicant's affidavit, {e) their appeal to ·the Jviinister has remained underterm.ined to date. l'he respondent have strongly denied the allegations. On the CAF membership saga, the chairman of the respondent has submitted that he holds no grudge against _the 1st applicant,. although·he was disappoihted hrhis lies. He submit~ further that he has never been biased towards the 1st applic~t and that tl1ere were -eight members on the committee where the - chairman's influence was not proved. '.!'hat if anything, the applicants had all the time to objec~ to the committees compo:5i tion if they- thought they would not be .fairly treated. The chairman of the respondent,has .submitted that all the aspirants were invited to a press confer.ence on 31/3/96 and hence there was no need to officially inform the applicants. As to the appeal to the Minister the respondent have submitted that as t~e issue had already been referred to a court ·-of law, it became §Ub .judic.~. \ ./· !, '· ·······llO ... 10 It is trite to remark that an administrative Pody exercising functions that im::;:,inge directly on leg8allY recognised interests, owes it as a duty to act judicially in accordance with rules of n~tural justice which basically means the adoption of fair procedure·, which .fundamentally den-Inds freedom from interest and bias.on the part of the administrative body and the right to a fair hearing for· those who are immediately effected by .its decision. That the 1st ap,_:licant and the chairman of ~he respondent have .exchanged words over the CAF.membership issue is common ground. I have read submissions by cou:r:isels on this point. ·Howe~r I am inclined to the views expressed by the 1st applicant that the re~pondent ·chairman may be harbo~... ing . a grudge over that issue. It is quite a-plausible proJlesitioa.. The respop.dent chairman h._·_a-.~ suhmi tted that the applteant, were equally free to reject the committee membership, the chairman included and since they did not do so they are -es~x,pcd from complaining. That the applicants and in particular the 1st applicant· could have objected to be screened by the committee is not an unreasonable propostion, the short notice not with standing. However, in my view it was also the .duty of the chairman of the respondent to recuse himself from chairi;ng the committee ~specially so when he knew.that the 1st applicant was one of the as:)-1,rants. That the •hairman of the respondent chaired the screenin:~ exercise .where• the ap_,, licants were disqualified could not exenorate h.:ll!l,· from a tint of bias~ I am wndeed fortified in this view by the persuasive authority cited by the ap:;:;licants:- METROPOLITAN PROPERTIES CO LTD VS LENNON A1~D A1'1JOTHER (196g) IQ B 577; where at page 599 the distinguished jurist LORD DENNii\JG remarked that: "justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking ~hat the judge was biased - - - -" •·• • .• /ll .. 11 - Equally true today is the time old adage '!;;hat justice nust· · .not be done, but must also be manifestly seen to be done. In the event, it may not be necessary at this juncture to deal · with the other complaints ~aised by the applicants. In the final event, I find that the chairman of the National- Sports Council had the mendate to set up the committee as per the practice of the council. Likewise I hold that th~ Committee, had·the mendate ~n-the absence of clear breach of any legal provision or regulatioh hereto, to conduct business on behalf of the. council. However the said committee failed to observe rules of justice and fair play~ In the premises, the appli~~tion for the orner of pertiorari is granted. The decision of the committee is hereby quashed and the National Sports Council is direo~ed to redo _the exercise of'screening aspirants vying for posts in FAT leadership election. The application sucoeed with costs. .IP.J~~¾)JJ.J~ .. · A. G. BUBESHI JUDGE 7/6/96 Delivered before Nyangarika for Applicants Kalolo for Respondent / Kalql..9. - Madam Judge I pray for leave to a:pJ:;eal to Court of Appeal R 43-of the Court of Appeal Rules 1979 allows for informal application. The basis upon which this application 1s being made is t-wo fold: . First whether there was a non performance or misperformance of any public duty to bring into play the m2.cl1.:Lne of prero·gative orders. Secondly whether the chairing by Mr.El Maamr.y of the Ad Hoc Screening Committee affected others apent fun the 1st applicant. Muhidin Ahmed Ndolanga. I pray that leave be granted so that these questions of mixed law and fact - 12 be determined by Court of Appeal • ..NYanfiarik{\• Madam Judge, I think my _learned friend should make a formal application to enable us to either challenge or concede •. Also the practice has been that applications for leave are heard by another judge. Let him make a formal application. l<:alplo - Madam Judge-applications for lea.v~ may be made informally~ H. 43 of the Court of Appeal Rules. 1979. And it has to·· be Inade before the same judge who made the decision. Order: Leave is hereby grnnt~d for ·the Respondent -1 to appeal to the court of Appeal on the grounds submitted. Jcu>~nJ~' A.G. BUBESHI t JUDGE 7/6/96 - ! ... 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