Odero Charles Odero vs National Council for NonGovernmental Organizations Others Misc Civil Cause No 12602 of 2024 2024 TZHC 5492 4 June 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MAIN REGISTRY] AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 12602 OF 2024 IN THE MATTER OF NON-GOVERNMENTAL ORGANIZATIONS7ACT, [CAP.56R.E. 20191 INTHEMATTEROFKANUNIZAUCHAGUZIWABARAZALATAIFALA MASHIRIKA YASIYO YA KISERIKALI [GN NO. 95 OF 2016] IN THE MATTER OF ONGOING ELECTIONS OF THE NATIONAL COUNCIL FOR NON-GOVERNMENTAL ORGANIZATIONS IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS, CERTIORARI AND PROHIBITION BETWEEN ODERO CHARLES ODERO........................................... .......... APPLICANT VERSUS NATIONAL COUNCIL FOR NON-GOVERNMENTAL ORGANIZATIONS ......................... 1st RESPONDENT NON-GOVERNMENTAL ORGANIZATIONS COORDINATION BOARD............................................. 2ND RESPONDENT ATTORNEY GENERAL................................................. .3RDRESPONDENT RULING 03/06/2024 & 04/06/2024 MANYANDA, J.: In this matter Mr. Odero Charles Odero, the Applicant, is applying for leave to lodge an application for judicial review against the Respondents, namely, the National Council for Non-Governmental Organizations, Non-Governmental Page 1 of 9. Organizations Coordination Board and the Attorney General, here after referred to as the 1st, 2nd and ^ Respondents,- respectively. The Applicant-is intending to file a judiciahreview application fo r orders of~Mandamus; Certiorarrand Prohibition-to question^ the legality of- the Second Respondent's mandate- in- supervising;- coordinating and conducting the ongoing elections of the First Respondent through its committee entitled Kamati ya Mpito ya Kuratibu Uchaguzi wa Baraza la Taifa la Mashirika Yasiyo ya Kiserikali. When-the -matter was. called- ori-for necessary orders, on- 03/06/2024, the, Applicant was represented by Mr. John Seka, learned Advocate, and the Respondents-enjoyed^representation services of Messrs Edwin Joshua Webiro and Faki Shaweji, learned State Attorneys. Mr-. Seka^informed"this-Court-that-he~had"seived:the Respondents, andj-gjven the facts about the ongoing election process this application for leave to file an application for judicial review, this application is under certificate of urgency and asked this Court to treat the same as such. He added that usually, an application of this nature proceeds ex-parte in terms of Rule 7(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)(Judicial Review Procedure and Fees) Rules, 2014, GN No. 324 of 2014, hereafter referred to as "the Rules". He was of the view that this Court can grant an application for leave without even hearing the parties. In that context he sought direction from this Court whether to hear ex-parte or inter partes. Page 2 of 9 On his-side, Mr. Webiro, for the -Respondents, admitted=that-they-were served^ with the_:application -as::well :as the notice, of date of . mention,, but; it “was not accompanied'withracertificate“ofurgencyindicating:that this“matter'is'of.urgency: He was^of the view that the-same-be-treated^sTiormal^applicationr Hencefhe asked this Court for a period of seven (7) days to file a counter affidavit and reply statement. With regard to ex-parte hearing, he referred this Court to the provisions of section-18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap. 310 R. E. 2019] and submitted that where leave for application for judicial review is sought against the Government, the Court is required to have the Attorney General to appear as a party, hence the prayer that this application can proceed ex- parte, lacks legal justification. Rejoining Mr._Seka_did not oppose the. prayer by the Respondents to file a counter affidavit but requested for a shorter period. As regard to none filing of a notice of certificate of urgency, he stated that nowadays documents are filed online, hence the requirement of filing a certificate of urgency has been embedded into the Court's system. Moreover, insisting on urgency, he stated that the 1st Respondent is currently undertaking an election process of the 2nd Respondent in a manner that appears to be tainted with illegalities. He was of the view--that if more time is granted this matter may be overtaken by events as very soon the process of election of regional leaders of the 2nd Respondent will be undertaken following completion of the election process of district leaders which was concluded on Friday. Page 3 of 9 Thenphe^made=an=alternative-pfayer-itliatsif--the=time-reqaested-by=the Respondents is granted, an interim relief in terms of Rule 7(5) of the Rules be granted staying the electoral process temporarily until the application for leave is heard inter- parties. Seeing new issues raised' by MrTSeka in rejoinder^ this Court invited Mr. _webiro:to;replyp«hc£stated:that;theyrare:not:in-a3position:to-access;the documents in the Court's system and that is why the applicant is duty bound to serve the Respondents^with hard-copies-.of the documentsrafter filing them online. That, if the notice of urgency was lodged in the system online as alleged, then, the Applicant had a duty of serving'them with the notice in^the same manneras he=did for other documents. With regard to the alternative relief under Rule 7(5) he submitted that the prayer was misplaced because it was not raised in the Chamber Summons and in the affidavit, there are no facts supporting the interim relief sought, He was of the view that the alternative prayer was a mere statement from the bar, as such this Court cannot act on it. -Tffbolsterhisipoint on.this position of law, he referred this Court to the^case' of Resomary Stella Chambe Jairo vs. David Kitundu Jairo, Civil Reference No. 06 of 2018;-[2021]-TZCA-442~(2 September 2021) and reiterate his prayers that this Court do decline from granting interim relief and have the matter heard inter parties after filing of the counter affidavit and reply statement. Mr. Seka was given another chance to rejoin as far as the case cited by Mr. Webiro. He distinguished the case on grounds that in that case there were no facts Page 4 of 9 bearing-eirGumstanGes-for-issuanGe;of^mterinnorderswhile-in=theJnstant-:-matter-the: circumstances.are:contained:in_the:affidavit. As gleanable from the records, this matter was filed as an ex- parte application for leave to file an application for judicial review. As rightly argued by Mr. Seka, for the Applicant, and supported by the Mr. Webiro, for the Respondents, this Court is empowered to grant an application for leave even without hearing the applicant, or, hear him or her ex-parte; provided, it is satisfied that the application meets^theconditions-fotissuanceofJeave. Equally, as also rightly argued by Mr. Webiro, where leave sought in an application involves the Government, the law requires summoning of the Attorney General, before the same is granted unless he defaults entering appearance. Section 18(1) reads as^follows: "18(1) Where leave for application for an order o f mandamus, prohibition or certiorari is sought in any civil matter against the Government, the court shall order that the Attorney-General be summoned to appear as a party to those proceedings; save that if the Attorney- General does not appear before the court on the date specified in the summons, the court.may direct that the application be heard ex parte." (emphasis added) The'totality of all of these is that, where, in an application fort leave to lodge application fonorders of certiorari,\prohibitiomand:mandamus;finjjudioiabreview>Tthe---- Government is involved, the Attorney General must be summoned as a party; regardless whether the application is to be heard ex-parte or inter-partes. Page 5 of 9 In-my-view,-the-Attorney-GeneralHn^circumstances-of--such- applications, becomes entitled J:orbe"-heardrhence, this Court on 31/05/2024^ordered summonses to be issued_to- both_parties~to appear_before_it_onr03/06/20247-in_the-spirit of according opportunity-tothe-Respondents:to~be heard; In order to utilize the afforded opportunity of being heard, the State Attorney asked for a period of time of seven (7) days to file a counter affidavit and reply statement. Which in essence, Mr. Seka did not object other than praying for a shorter period of time. In alternative, in case a longer period is preferred, Mr. Seka asked for an interim order staying the election process be granted. The reason been that the application is under urgency. This was vehemently opposed by Mr. Webiro on reason that there is no sign that this application is under certificate of urgency as no notice to that effect was filed. Mr. Seka replied that the notice is embedded in the system. As it can be seen, the counsel are at the position that the Respondents be given time to file a counter affidavit and reply statement. However, they lock horns on the length of time for the Respondents to do so. Mr. Seka's view is that if the time of seven days requested is granted, it is too long such that this application might be overtaken by events because the ongoing election process will be concluded in the course of hearing or else a temporary stay order be issued. The first question to be asked in order to resolve the controversy is whether this application is brought under certificate of urgency. It is admitted by both counsel that no hard copy notice was filed online in court and also formerly served to the Respondents. Mr. Seka alleges that the notice is embedded in the Court Page 6 o f 9 system. Mr. Webiro-argues-thatthe,£ourt-file:in:theCourtsystem-is not accessible-to- them, hence~the-Applicant:was duty-bound to~serve them with=hard-copies of-the noticejustas he^did-tootherdocumentsr In my considered view, the answer is found in the Digital Case File of the Electronic Case-Management -System abbreviated-as "e-CMS" -The Digital Case File in the:e5C;MS:hasireplaced:wholesomely:the:then:hardzCopy:file;used:to::keep records- of the^caseJn^court^before.-the -judiciary^going-fulUelectroniCi-ThiS-means,- all documents-used-in-opening-a-case,- the-replies-thereof-and-any subsequent documents-intended-to used-in that have to be filed online-and seen in the Digital File forthe court to-access^and' use^n determining-the concerned caserWhere; ^a- document is missing in the Digital Case File, then such document is assumed, and in my view, I say, it becomes a missing document, as good as non-filed document-. In this case, the documents which Mr. Seka mentioned to have filed are the Chamber Summons, Affidavit and Statement of Facts. There is no document called "Notice of Certificate of Urgency". He relies on an "embedded notice." I have inspected the Digital Case File available in this matter and could not apprehend-any-doGUmentcal[ed--Noticeof:Certificate:of.LJrgenGy--,:I:could-not-also see any^'embeddednotice'^inthe-DigitaUGase:File;-EvenEif-it-is-said-that there-is any- notice, b'ut--hidden,--then"a-question_would-be~whether-suGh::a=standard-notice-can- cater for cireumstances.of-alLthe.cases.-A.question which,.right.away,.is answered.in negative. Page 7 of 9 InJaw,-: the-purpose .of~a -Notice-of~ Certificated-Urgency"-^, not-only/.to inform_:the7.court:the7urgency~nature ofrthe matter before it, but also, to provide materials on which, in the opinion of the party concerned, the Court may exercise its discretion in treating such a matter with extra urgency. It is therefore, expected that a document carrying such a notice to be included in the Digital Case File. It follows therefore; with due: respect to Mr.. Seka; who relies orr arr "embedded^notice", -.which_as I";have^said_above:that, in _this-matter there-MS-no documentGailedr-"Notice;of:Certificate-of Urgency" contained in the Digitaf-Case File, it can safely be held that there is no document telling the reasons for treating this matter as of urgency. I say so because Mr. Seka could not even tell when and where the elections have been-done and concluded at the district level, what was the pace in terms of time spent. Also, when and where the same elections are being carried out at regional level, what is the process immanence in terms of time, whether or not will go beyond the lapse of 14 days fixed under Rule 5(4) of the Rules for disposal of this matter. Mr. Seka-argued also-that the reasons are contained in the affidavit. The answer might be yes, but the same are subject to rebuttal. Moreover, the law requires specificity through a special notice to be issued in order to avoid speculations and its hard copy be served onto the adverse party in the same way other documents are served. Page 8 of 9 I have-read the case of Rosemary-Stella OhambeJairo-(supra) and found, as rightly argued byMr.iSeka,~is:distlnguishable as it dealt withiarguments made byja:counsel:countering'facts:sworn:in"an affidavit without affidavit in reply, in this-matter-,-the~dispute-is~about-exposure of-factors for urgency, which need presence of a notice. Having=found.that-_there:is:no:basis:for;treatingr_this:matter_as:urgent,7l‘ cometo: the direction-requested-by fche^counser.fot AppiicantJ/vhich_r_ dof hereby give as follows: 1) Basing on reasons stated above, a prayer for grant of interim stay, is declined; 2) A prayer for seven (7) days time for the Respondent is partly allowed, pursuant to Rule 5(4) of the Rules, that an application for leave is required to be heard and determined within 14 days from the date the application was made, I grant four days for the Respondent to file their counter affidavit and reply statement, that is, the same to be filed on or before 10/06/2024; and 3) The case to come for necessary order(s) on 10/06/2024 at 11:00 a.m. Dated.at-Dodoma this 04th day JUDGE Delivered at Dodoma this 04th day of June72024 in the presence of the'parties by virtual court.