omary shaaban nyambu vs permanent secretary ministry of defence and others 2020 tzhc 354 31 march 2020

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY^

AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 29 OF 2019 OMARY SHAABAN NYAMBU.................................. APPLICANT

VERSUS

PERMANENT SECRETARY MINISTRY OF DEFENCE................................... 1st RESPONDENT CHIEF OF THE DEFENCE FORCE........................ 2nd RESPONDENT HONOURABLE ATTORNEY GENERAL................ 3rd RESPONDENT

RULING 26/03/2020 & 31/03/2020 Masoud, J. The application by the applicant is for leave to appeal to the Court of Appeal of Tanzania against the decision of this court sitting as a Constitutional Court in Misc. Civil Cause No. 15 of 2013 as per Lila J.K., Mziray, J., and Kaduri J. (as they then were). The application is made under section 5(l)(c) of the Appellate Jurisdiction Act, cap. 141 and rule 45(a) of the Tanzania Court of Appeal Rules, 2009 GN. No. 368 of 2009 and supported by the affidavit of the applicant. i Before making any further progress, it is not without significance to note that the applicant had earlier lodged notice of appeal and filed an appeal to the Court of Appeal (i.e Civil Appeal No. 105 of 2015). The documents relating to such appeal inclusive of the memorandum of appeal were annexed to the affidavit. The appeal was eventually struck out by the Court of Appeal for defects that the applicant was not responsible for. The defect were in the certificate of delay, the ruling and its drawn order. As the applicant was to start all over again, he had to file the present application for leave to appeal. This background is apparent in the affidavit supporting the application and it is essentially not disputed by the respondents. Supported by an affidavit of the applicant, the application was opposed by the respondents who jointly filed a counter-affidavit

through Abubakar Mrisha, learned Senior State Attorney. With the leave of this court, the application was disposed of by way of filing written submissions. Both parties filed their respective written submissions expounding on their respective affidavit and counter-affidavit. The thrust of the applicants submissions filed by Mr Mohammed Tibanyendera, learned counsel, is founded on the following. One, there are matters of law in particular in paragraph 14, 15 and 16 of the affidavit which need the attention of the Court of Appeal in determining the right of the applicant. Two, the above matters are disturbing and need to be corrected by the Court of Appeal. They include matters relating to access to information, access to justice, limitation of time for judicial review in relation to the way they were resolved. And three, that the order of the court which is sought to be challenged concerns interpretation of the law in relation to constitutionality of the respondent's conducts. It was also pointed out that section 5(1) of the Appellate Jurisdiction Act makes it mandatory for an appeal on a constitutional matter to lie to the Court of Appeal. In the submission in against the application, the following arguments were brought to the attention of the court. One, it was disputed that paragraph 14, 15, and 16 of the applicant's affidavit contained illegality and matters of law which

needed the attention of the court. Two, paragraph 14 and 16 of the affidavit had been expunged from the affidavit by the ruling of this court of as per Mutungi J. Three, there was no prima facie grounds meriting granting of the leave. 3 Strengthening the argument, the respondents' State Attorney cited the case of Rev. Saddock Yakobo Mlongecha versus Registered Trustees of Pefa Kigoma, Civil Application No. 12 of 2016 (CA, page 2.) which insisted that there should be a prima facie grounds meriting an appeal before a leave to appeal is granted. I had a thorough look at the 17 paragraph affidavit of the respondent. I was satisfied that the applicant has already taken necessary steps toward appealing including obtaining extension of time to file the present application. I compared the affidavit with the ruling on the preliminary objection. I was settled that the ruling only considered and expunged paragraph 14 and 16 of the affidavit of the applicant. The remaining 15 paragraphs of the affidavit of the applicant were left intact. Of the remaining paragraphs of the affidavit, paragraphs 13 and 15 are worth noting. Paragraph 13 states that "there are material errors on the record of the High Court which need to be addressed by the Court of Appeal." Paragraph 15 states the reasons why the applicant sought to challenge the conduct of the first respondent by a constitutional

petition. It is from the submission in chief of the applicant that the applicant stated that the errors concerned access to information, access to justice, limitation of time for judicial review, and interpretation of law in respect of the petition challenging constitutionality of the respondents' conducts. It is instructive that the applicant invited the court to rely on section 7 of the Appellate Jurisdiction Act, cap 141 which relate to appeal to the Court of Appeal on constitutional matters like the present. The provision states that "An appeal shall lie to the Court o f Appeal on any question relating to the interpretation o f the Constitution." Further from the remaining paragraphs of the affidavit, it is clear that the decision sought to be appealed against was on a constitutional petition in which the applicant's claim against the respondents was for breach and infringement of his basic human rights. The court dismissed the petition on a preliminary point of objection that the petition was bad in law for contravening section 8(2) of the Basic Rights and Duties Enforcement Act, cap.3. The court was satisfied that the petition was filed in violation of section 8(2). The ruling of the court was annexed to the applicant's affidavit. At page 7 and 8 of its ruling, the court stated and I quote: 5 Section 8(2) o f the Basic Rights and Duties Enforcement Act prohibits litigants

from jumping from one statutory forum for redress to another statutory forum for redress and where a petitioner had adequate means o f statutory redress and opts to file a constitutional petition the resulting petition becomes frivolous or vexatious.....The truth is that the Applicant failed to exhaust other available remedies as pointed herein above before coming to this court with a constitutional petition. I was invited by Mr Mrisha, learned, Senior State Attorney to find that there were no prima facie ground meriting the granting of the sought leave, and that there was no evidence shown in relation to allegation of infringement of the right to access to information, justice and denial of constitutional rights. With respect, I do not think the applicant was required to produce evidence as opposed showing that there were issues that merit the attention of the Court of Appeal. The question is whether the remaining paragraphs can support the application for leave to appeal. And whether in the circumstances, the application has shown that there is a fit case for the Court of Appeal's attention. It is instructive that in an application of this nature, all that the court needs to be addressed on, is whether or not the issues raised are contentious and disclose a prima facie case warranting this court to grant the leave and not whether or not the grounds reflected on the issues are

meritorious. Since the decision sought to be appealed against originates from a constitutional petition relating to constitutionality of the respondents' conducts alleged to have infringed the applicants rights, this fact must also be taken into account in considering whether this court should grant the leave. I have painstakingly considered the issues emerging from the remaining paragraphs of the affidavit and their respective annexures along with the rival submissions of both counsel. In so doing, I was mindful that it is within the discretion of this court to grant or refuse leave, although the discretion must be judiciously exercised on materials before the court; BBC v Eric Sikujua Ng'imaryo Civil Application No. 133 of 2004 (unreported). Considering the arguments raised and the fact that the intended appeal is against a decision of a constitutional matter, I cannot say that they do not raise prima facie and contentious questions of law and fact that call for the intervention of the Court of Appeal. I am mindful that it is not my duty to determine the issues at this stage. I am therefore satisfied that the applicant has demonstrated not only prima facie arguable case, but also reasons deserving the Court of Appeal intervention. In the result and for the foregoing reasons, I would grant the application as I hereby do. Costs in the cause. It is so ordered. lenhajj S. Masoud Judge 31/03/2020 Court Ruling delivered on 31/03/2020 in the presence of the applicant and Ms Angelina Ruhumbika, State for Attorney assisted by Capt Katula. 8