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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISCELLANEOUS CIVIL CAUSE NO. 9182 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS/PROHIBITION/CERTIORARI AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AGAINST THE DECISION OF THE UMOJA WA MADEREVA NA WAMILIKA WA BAJAJI JIJI LA MBEYA BETWEEN MWASIMBA FESTO ANDAMILE……………..……………………APPLICANT VERSUS UMOJA WA MADEREVA NA WAMILIKI WA BAJAJI JIJI LA MBEYA…..............................................................RESPONDENT RULING Date: 19 July 2024 & 29 August 2024 SINDA, J.: 1 This is an application for leave for judicial review to apply for orders of certiorari and mandamus made under section 2 (3) of the Judicature and Application of Laws Act, Cap 358 R.E. 2019 (the JALA), section 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E. 2019 (the Law Reform Act) and Rule 5 (1) and Rule 5 (2)(a)(b)(c)(d) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (the Rules). The application is a result of the respondent conducting a general election on 15 December 2023 to elect new leaders. The results were announced and the applicant was aggrieved by the election. He explained the abnormalities of the elections to the respondent and despite numerous numbers of complaints, no action was taken. Hence this application. The applicant is therefore praying to be granted leave to apply for: 1. An order of certiorari to quash and set aside the decision of the respondent to conduct general election and pronounce results of the election unlawfully; and 2. An order of mandamus to compel and direct the respondent to conduct another election according to the constitution of its members. 2 The application is by way of chamber summons supported by the applicant’s statement of facts and affidavit. In reply, the respondent opposed the application and raised a Preliminary Objection (the P.O.) that: 1. This applicant has not exhausted the available remedies as stipulated under Article 13 (5) and (6) of the Constitution of the Association. Hence incompetent and unmaintainable in law. Hearing of the P.O was by way of written submissions. The applicant was represented by Mr. Imani Mbwiga, learned counsel and the respondent was represented by Mr. Mathayo Iredi Mbilinyi, learned counsel. In his submission in chief, Mr. Mbilinyi submitted that this is an internal conflict between the applicant and the respondent. The respondent herein has her own constitution registered in 2022 (the Constitution) which provides for the procedures to follow when one is aggrieved by the decision of the association He referred to articles 13 (5) and (6) of the Constitution. Therefore, the applicant being a member of the association should exhaust internal available remedies before going to court. The counsel referred to the cases See: Pavin AA Jaffer and Another vs. Abdularasul Ahmed Jaffer and Others 1996 110, Suleiman M. Komba vs. Chama cha Walimu Tanzania (CWT) Misc. Application No. 118 of 3 2022, Joshua Samwel Nassari vs. The Speaker of the National Assembly of the United Republic of Tanzania and The Hon. Attorney General Misc. Civil Cause No. 22 of 2019 and the case of Bishop Dkt. Edward Johnson Mwaikali vs. The Registered Trustees of Evangelical Lutheran Church in Tanzania (ELCT) and 28 Others, Misc. Civil Application No. 14 of 2022 to support his argument. In light of the cited cases, Mr. Mbilinyi argued that the applicant has not exhausted the internal available remedy hence the application is brought before this court prematurely. He added that the dispute was on dissatisfaction on election results. Therefore, the applicant was supposed to annex certificates from the internal dispute machinery to certify that they have failed to resolve the matter and not annex letters reporting about the dispute. Since, the applicant has not annexed any letter or certificate from internal mechanism, this constitutes non-exhaustion of local remedies as provided in the respondent’s Constitution which the applicant in bound to adhere to. Hence, the application is unmaintainable and makes this honorable court to lack jurisdiction to entertain the matter. He added that this court has jurisdiction to deal with the matter only after the internal mechanism has been dealt with. Mr. Mbilinyi cited the cases of 4 Mr. Loth Oilevo and 2 Others vs. The Registered Trustees of the Anglican Church of Tanzania (SO 4757) and Another, Civil Case No. 18 of 2022 and that of Rev. Peter Makala and Others vs. Rev. Jacob Mameo Ole Paulo and 3 Others, Civil Case No. 195 of 2019. He further argued that for one to apply for judicial review he has to annex a decision that should be reviewed, and in this case, should be a decision from the internal dispute mechanism. However, the applicant only annexed complaints letter which cannot be reviewed by this court. For emphasis, he cited the case of Rehema Ally Kinyaka vs. Tanzania Institute of Accountancy, Misc. Civil Application No. 21 of 2016. Submitting against the P.O., Mr. Mbwiga argued that indeed article 13 of the Constitution provides for the settlement mechanisms in case of a dispute within the Association. However, he stated that it is not true that the applicant has not exhausted the remedies available under article 13 of the Constitution. He added that the applicant being aggrieved with the election results of December 2023, as per article 13 of the Constitution the applicant wrote a letter to the committee but the same was not dealt with. This shows that the committee failed to settle the dispute. Further, on 21 February 2024, the 5 applicant wrote a letter to the Executive Committee of the Association and it was received by the respondent on the same date but no action was taken. Moreover, after the Executive Committee neglected the complaint, the applicant submitted the dispute to another body stipulated under article 13 of the Constitution. He further wrote a letter to the respondent asking her to convene an emergency meeting so that the complaint can be resolved by members of the meeting. The said letter was received by the respondent on the same date, but no meeting was convened. Mr. Mbwiga further stated that on 26 February 2024 the applicant wrote a letter to the Registrar of Societies informing him of the abnormalities that happened in the Association’s general election and the inaction of the respondent to act on the same. The complaint was sent to the Registrar through EMS, but unfortunately no action was taken to remedy the situation. To conclude, the counsel argued that the Constitution and the Rules of the Association does not stipulate on how long it takes to deal with a dispute and the manner in which one should lodge the complaint or his appeal. Therefore, the notion by the respondent that these were mere letters and do not warrant the exhaustion of available remedies is misconceived. He added that the respondent has never said she intended to resolve the 6 applicant’s dispute neither has she denied to have received letters. He added the respondent didn’t attach any reply letter to show that after the applicant submitted the complaint the association dealt with the dispute. That’s why the applicant came to this court. He went further by saying that the cases cited by the respondent are not only distinguishable to the case at hand but also are persuasive and not binding. In his rejoinder, Mr. Mbilinyi submitted that the applicant himself in his reply submission said that ‘surprisingly the same was not dealt by the committee’, which goes to show that the dispute has not been dealt internally before being filled in this court. Therefore, goes against the respondent’s Constitution. He further stated that it is true that the Association Constitution does not specify time to be used in settling disputes. He added that the applicant submitted his complaints to various organs in a short span of time. Mr. Mbilinyi further rejoined that the wheels of justice grind slowly and justice hurried is justice buried. Although the constitution does not specify time to be used in settling a dispute but reasonable time should be given, since dispute settlement is not an event but a process and the conducts by the applicant shows he was in a rush and did not intend his complaint to be settled internally. 7 I have carefully gone through the arguments from both sides and will thus deliberate on the P.O based on the submissions, statutes and case laws put before me. From the submission of both parties regarding the P.O., the question to be determined is whether the application for leave was prematurely made by the applicant for failure to exhaust available internal remedies. Rule 4 of the Rules provides that a person whose interest have been or believes will be adversely affected by any act or omission, proceeding or matter, may apply for judicial review. The same has to be made within six months from the date the cause of action arose. To begin, I would like to reproduce the provisions of article 13 (5) and (6) of the Constitution to wit: “Article 13 1 – 4 (N/A) 5. Endapo mgogoro utashindikana kupatiwa ufumbuzi na mkutano maalumu wa kutatua mgogoro, basi mgogoro huu utapelekwa kwa Msajili wa Jumuiya ya Wizara ya Mambo ya Ndani ya Nchi; 6. Endapo Msajili wa Jumuiya atashindwa kupatia ufumbuzi mgogoro huu, basi mgogoro utapelekwa Mahakamani.” Also, see the case of Parin A A Jaffer and another vs. Abdularasul Ahmed Jaffer and 2 others (Supra) where the Court said: 8 “ ..... where the law provides extra judicial machinery alongside a judicial one for resolving a certain cause, the extra judicial machinery should, in general, be exhausted before recourse is made to the judicial process.” Having gone through the records, the applicant being aggrieved by the election results conducted on 15 December 2023, first wrote a letter dated 5 January 2024 to the respondent showing his dissatisfaction towards the results. Further, on 19 February 2024, the applicant wrote a letter to the Disciplinary Committee of the association. After no actions were taken, on 21 February 2024 the applicant wrote a letter to the Executive Committee of the association. Further, on the 23 February 2024 the applicant wrote a letter to the respondent asking her to convene an emergency meeting to discuss his complaints. Finally, having received no response on 26 February 2024 the applicant wrote a complaint to the Registrar of Associations. From the above, the applicant clearly followed all the procedures as provided for under Article 13 of the Constitution. Nevertheless, it was the respondent’s argument that the applicant sent his complaints from one mechanism to another in such a short interval of time, thus did not give an opportunity for the dispute resolution mechanisms to hear the matter and decide on the same. 9 I partially agree with Mr. Mbilinyi, that even though the respondent’s Constitution does not provide a time frame, but indeed the complaints were sent in short intervals and under ordinary circumstances that would be enough reason to return the matter to the respondent so that the applicant could first exhaust internal remedies. However, this application was received in this honorable court on 22 April 2024, that is three months from when the applicant first sent his complaint to the respondent through the internal mechanisms. Given the respondent had received the letters on time and were made aware of the applicant’s complaints, if had so wished, they would have dealt with the matter at the earliest convenience before the matter was brought to this court but such was not done. Failure to deal with the matter in the said months, suggests that the respondent did not intend to resolve the dispute and thus cannot blame the applicant for exercising his Constitution right under Article 13 (6) to wit: “13(6). Endapo Msajili wa Jumuiya atashindwa kupatia ufumbuzi mgogoro huu, basi mgogoro utapelekwa Mahakamani.” Further, the fact that there is no decision of the internal dispute mechanism to be reviewed cannot be used against the applicant at this juncture because 10 he sent his complaints timely and he did not receive any response to resolve the dispute until the matter was brought before this court. This shows if the applicant had not taken a step further, then this matter would have been ignored. Consequently, the P.O. has no merit and it is hereby dismissed. The court will proceed to hear the application for leave to apply for judicial review. DATED at MBEYA on this 29 day of August 2024. A. A. SINDA JUDGE 11