19981204 TZHC Dar es Salaam 1

. IN THE IDGH COURT OF TANZANIA. AT DAR ES SALAAM CIVIL CASE NO. 185 OF 1998 " NAII.iA JIDDAWL••••••••••••••••••••••••••••••••••••••••••••••••••••PLAIN'TIBF Versus 1. REGISTERED TRUSTEES OF THE} CIVIC UNITED FRONT (CUF) } .............RESPONDENTS 2. SECRETARY GENERAL, (CUF) } RULING KALEGEYA 2 J. Following her expulsion from CUF Party membership and consequently dismissal from leadership in all posts she held in the said party, the Respondent/Plaintiff, Naila Jiddawi, sued the Applicants/Defendants (Registered Trustees of the Civic United Front - CUF, and Secretary General, CUF), praying, before the Court, for a "declaration that the purported dismissal of the if,,- ,- Plaintiff from membership ..... and from various posts held ....... is unlawful and therefore null and void." Retaliating in defence, apart from insisting that the actions taken were proper, the Defendants raised preliminary objections that, (1) .... the suit is premature (2) .... the plaint discloses no cause of action against the 2nd defendant, and prayed for dismissal of the suit in its entirety. fu reply to the written statement of defence, the plaintiff counter objected by arguing that the said written statement of defence was "bad in law as it was not prepared in accordance with applicable rules of pleadings". Parties were ordered to argue the objections by way of written . · submissions. The Defendants who were to start were required to submit their written submissions by 31/8/98 which order they did not comply with, for, they filed the same on 1/9/98. All the same, subsequent submissions and replies were duly filed hence the present ruling. 2 The Defendant's failure to file their submissions in time triggered on yet another objection from plaintiffs who resisted it by insisting, "The written submissions by the Defendants is time-barred the same having been filed on 1. 9. 98 instead of 31. 8. 98 as ordered." In reply thereto the Defendant conceded to the obvious but tried to wiggle around it by saying, "The reason for not filling the said submissions on 31st August, 1998 was due to failure of power supply in the South Law Chambers Advocate' s office that made processing of the said written statement of Defence(?) to be delayed until the court was closed on that day. We pray for the indulgence of the court on this failure as this was beyond the Defendant's advocates• powers." (emphasis mine) From the above it is nakedly clear that the defendant's submission is not properly before this court as rightly submitted by the plaintiffs. Having been late in filing the same the proper procedure was for the Defendants to apply for extension of time and then, filing if any, would only have been made if leave was granted. I have asked myself about proper course to take - strike it out as argued by plaintiff or grant leave retrospectively? After due consideration I have opted for the latter course, and for only two simple reasons, first, because the Court Registry has a • share in the blame. As I said earlier on, the relevant document should not have been accepted in the registry without leave for extension of time after the ordered filing date had expired. Unfortunately, there we are - it was accepted, fees paid and duly filed! Secondly, even if I were to strike it out the defendants would legally still have a right to apply for extension of time within which to apply for extension of time for the filing of the same. The court would be bowid to hear them though not necessarily positively. Normally however, such procedural flaws, if applications are made, are accommodated unless senseless execuses or reasons are advanced. In the case at hand the defendants have alleged failure of power supply, which if true can easily be verified thus constituting a reasonably good cause, although, I must confess, this does not reflect well on the firm concerned for they ought to be aware that last minute steps are always risky as exemplified here. It is my considered view that encouraging and inviting multiple application whose results would bring us back to where we are 3 now, where we would still be faced with same task, is a wastage of time and unnecessary delay in the due process. On these basis, I grant leave for the filing of the submissions in controversy, retrospectively, up to 1/2/98 when it was filed. That settled let us go into the substance of the main submissions. In support of the 1st preliminary objection the Defendants argue that the plaintiff/Respondent should not have come to court without first exhausting the appeal ladder prescribed under the Party's Constitution. They relied on Article 6.5 of the CUF constitution which provides that each member has a right to be heard before any party organ which intends to take disciplinary action against him, and, that also has a right of appeal to a superior organ where he is dissatisfied with the decision reached (the latter part is as read together with Regulation 3, of the CUF Party Regulations). Countering, the plaintiffs have vigorously, challenged, saying that Art.6.5 of the Constitution and Reg. 3 of the Regulations made there under are merely permissive. They insist that the :framers of CUF constitution were aware of Article 13 (3) of the United Republic of Tanzania Constitution, 1977, which prescribes as a fundamental right of every citizen, the right to be heard by Court of law or appropriate state organ where his rights, duties or interest are at issue. They go further to say that the CUF constitution does not oust this right; that jurisdiction of courts cannot be ousted by implication but expressly and that even where it has been so expressed no ouster clause has survived the inherent powers of the Court. Further support is sought in Art. I 08 (2) of the Constitution of the United Republic of Tanzania. Under that article, they insist, the High Court has power to "hear every matter which the Constitution or any other law does not expressly provide that it shall first be heard by a court specified for that purpose." The other argument that a declaratory judgment is permissible under the law, the same having been lightly touched by the defendants should not detain us here, for, in fact this seems to have been covered under the first argument, of failure to pursue the appeal. In reply, the defendant reiterated their stand, strongly saying that even now the plaintiff can still appeal to the National Congress of the party. On this first objectio_n I can only briefly observe that it cannot be sustained. While it is true that the CUF Constitution provides a machinery 4 through which conflicts should be resolved, including challenging a dismissal of a member by NEC, it would indeed tantamount to ousting courts jurisdiction if we are to hold that until that machinery is exhausted no aggrieved party can knock at the courts' door for redress. The CUF Constitution and Regulations made there under are CUF's internal matters to which members can adhere in redressing their grievances if their fundamental rights are infringed but this is different from saying that the provisions thereto bar any person (member) aggrieved from channelling his complaints through the courts of law. As rightly stated by plaintiff there is no clause therein which excludes courts in case of conflict; and not only that, even if there was, that would be contrary to the main law of the land, the Constitution of the United Republic of Tanzania. In the circumstances I hold that the plaintiffs avenue is two pronged - she could challenge NEC's decision through the prescribed procedure under their constitution or through courts of law as she has done. The first preliminary objection falls. The 2nd objection can best be put by quoting part of defendants submission in support thereof, which states, "Therefore, any person who is aggrieved by any act of a Political Party, such as the case at hand, can only proceed against the board of trustees. The office of the Secretary General of a political party can not sue or be sued in its own name, for lack of legal capacity. Furthermore even where this court is of the view that the office of the Secretary General can be sued the plaint does not mention any act or conduct that amounts to a cause of action done by the office of the Secretary General of the CUF Party against the plaintiff We therefore pray that this court exercise its powers under 0.1, Rule 10(2) and order to strike out the 2nd defendant with costs .. " In response to this, the plaintiff argued that the objection is misconceived because the Secretary General is the principal officer of the party who manages the affairs of the party as opposed to the Trustees who manage the properties and any business or investment of the party. This 2nd objection falls as well. In fact the defendants should have challenged the misjoinder of the 1st Defendant, the Board of Trustees, for which the plaintiff is the chairperson, because the issue at hand being not related to the proprietary interests of the party they obviously have no 5 locus standi either to sue or be sued. The status of the Board of Trustees as regards suing or being sued was discussed at length by this court (Sam~ JK, as he then was) in Misc. Cause No. l 7/97, The Registered Trustees of the National Convention for Construction and Reform - Mageuzi (NCCR - Mageuzi and Augustine Lyatonga Mrema (DSM Registry, unreported) in which the Applicants (Board of Trustees) were among others, praying for temporary injunction restraining Respondents from entering the party's head office and carrying out political activities. In that case the court detailedly observed that the Board of Trustees of political parties should not be equited to that of other associations, for, its powers are limited by the law - s.17 of The Political Parties Act, 1992, (Act No. 5 of 1992), clearly provides, "17-(1) Every political party which has obtained a certificate of full registration shall appoint a board of trustees to manage the property and any businesses or investment of the party" (emphasis mine). For the benefit of all concerned, I should reiterate what was stated by this court in the above cited case that sections 2(1), 3(1) and 6 of The Trustees' Incorporation Ordinance, Cap 375 as amended by The Registrar- General (Transfer of Duties and Powers) Act, 1967, when it comes to the powers of Trustees of Political parties, must always be read together with s.17 of Act 5 of 1992 for full appreciation of its import, for, by itself, the ordinance (even as amended), to borrow Samatta, JK's words ( as he then was) "does not authorise incorporation of trustees of an association of persons bound together by political ideology or objectives, like a political party .... It would be straining the language of the provisions of subsection (1) of section 2 of the ordinance .... beyond its elasticity to construe the subsection as covering trustees of a political party." Any article in any constitution of a political party which confers powers to the Board of Trustees other than proprietary rights or interests would be ultra vires s.17 of Act 5 of 1992. In concluding that the Board of Trustees in the cited case had no locus standi to sue, the court observed , 6 " ... The proceedings instituted by the Applicants before this court are as a result of misconception with regard to the status, in law, of trustees of a political party in this country. Since a political party is an unincorporated association, save for proprietary rights or interests, which the party's trustees have a right to safe guard by, if necessary, instituting or defending an action in a court of law, it is the party's members (a term I use to include leaders) who have contractual rights which, together or individually, they can assert before a court of law." This clear stand on the law is applicable in the instant case. The prayers in this case are not proprietary in anyway thus there is no legal base which can confer the locus standi on the Board of Trustees to be made 1st Defendant. This is the misjoinder which the defendants should have fought. In my considered view, the proper parties should have been the chairman of CUF and the Secretary - General (2nd Defendant). With these observations the 1st Defendant is struck off and the plaintiff is ordered to effect an amendment to include a proper party. That concluded we come to the plaintiffs objection that the written statement of defence is not in compliance with the applicable rules in pleadings - as it is signed by the vice chairman of the Board of Trustees who is not a party apart from containing an omnibus verification. On this, fortunately, the defendants did not put up much fight apart from praying for leave to amend. Although the plaintiffs pray to this court to hold that there is no written statement of defence at all due to these defects, with respect to plaintiffs counsel, such defects do not attract such consequences. The normal steps and procedure generally taken by courts is to allow the defendants, as I hereby do, to effect the required amendments. However, in view of the finding already made regarding the plaint, the defendants to await the directed amendment to the said plaint. The plaintiff to file the amended plaint by 14th December, 1998 while the Defendants have to file an amended written statement of defence within seven days thereafter. Reply if any, to be filed by 30th Dec. 1998. And, as the suit concerns declaratory prayers hence unsuitable for mediation there is no need of fixing it for mediation. The same to be heard on 30/3/99 which is the earliest date available according to other cases so far scheduled. 7 . In conclusion, save for directions made, the defendants' objections are dismissed while the one by the plaintiff is allowed. As both pleadings had defects in one way or another there is no order as to costs. (Sgd.): L.B. Kalegeya JUDGE. Date: 4/12/98 Coram: Kalegeya, J. Parties: Absent Order: The Ruling to be delivered by the DR-HC at 10.00 a.m. (Sgd.): L.B. Kalegeya JUDGE 4/12/98 Coram: Kalegeya, J. Mr. Mchome: For the Applicant/Plaintiff Dr. Mvungi: (For the 1st Respondent/Defendant (For the 2nd Respondent/Defendant C. C: - Livanga. Ruling delivered this 4th December,1998 in the presence of Mr. Mchome, Counsel for the Applicant and Dr. Mvungi Counsel for the Respondents. (Sgd.): R. Manento DR-HC 4/12/98.