CIVIL APPEAL NO 165 OF 2021 ONESMO OLE NGURUMWA VS THE HONOURABLE ATTORNEY GENERAL

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A.. RUMANYIKA. J.A. And MLACHA, J.A.^t CIVIL APPEAL NO. 165 OF 2021 ONESMO OLE NGURUMWA...,............ ........................ ............... APPELLANT VERSUS THE HONOURABLE ATTORNEY GENERAL................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Main Registry at Dar es Salaam) (Mlyambina. J.^ dated the 21st day of October, 2020 in Miscellaneous Civil Cause No. 36 of 2019 JUDGMENT OF THE COURT 9th July & 29th July, 2024 MLACHA, J.A.: This is an appeal against the decision of the High Court of Tanzania Main Registry (The High Court), made in Miscellaneous Civil Cause No. 36 of 2019. The appellant, Onesmo Ole Ngurumwa was the petitioner. The Honourable Attorney General was the respondent. The appellant was challenging the constitutionality of provisions of the Criminal Procedure Act, Cap 20 R. E. 2002 (now R. E. 2019) (the CPA), which provide for the requirement of conducting preliminary inquiry and committal proceedings at the subordinate court before a case is tried by the High Court. The petition was dismissed at the preliminary stage hence the appeal. i To understand the dispute properly, brief facts germane to this Constitutional litigation are reproduced as follows: The appellant, a renowned human rights activist in Tanzania and elsewhere, by originating summons made under Article 26(2) of the Constitution of the United Republic of Tanzania 1977, Cap 2 R.E. 2002 as amended (the Constitution of the United Republic of Tanzania) and sections 4 and 5 of the Basic Rights and Duties Enforcement Act, Cap 2 R. E. 2002 (the BRADEA) and rule 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014, GN No. 304 of 2014 (BRADEA Rules) filed a petition for; i) a declaratory order that the Government (Executive, Judiciary and Parliament) has a constitutional duty and mandate to observe, protect and preserve the rights and freedoms guaranteed, entrenched and protected by the provisions of the Constitution of the United Republic of Tanzania; ii) a declaratory order that sections 178, 243, 244, 245, 246, 247, 248, 249, 250, 256, 257, 258 and 259 of the CPA are unconstitutional, null and void for which he sought for an order to expunge them from the statute book. It was alleged that these provisions delay the hearing of cases contrary to Article 13(6)(a), discriminate and violate Article 13(1) and violate principles of fair trial contained in Article 13(6) of the Constitution of the United republic of Tanzania. It was alleged further that; i) there is no legitimate purpose or mischief for which they were intended to save or cure; ii) they are not served by any limitations imposed under Article 30 (2) of the Constitution of the United Republic of Tanzania; iii) the preliminary hearing conducted by the High Court under section 192 of the CPA may be an alternative and substitute for preliminary inquiry and committal proceedings; iv) the safeguard against abuse, misuse of law and abuse of powers is removed by allowing and encouraging prolonged and arbitrary detentions and long imprisonments without trial particularly on non - bailable offences; v) long imprisonments, confinements and detentions of accused persons awaiting investigations, committal proceedings and preliminary inquiries violates the right to presumption of innocence and defeats the purpose of trial by punishing suspects and accused persons by imprisoning them before they are tried. The originating summons was accompanied by an affidavit sworn by the appellant giving supportive facts. The relevant paragraph of the affidavit is number 7. It carries the message; that the provisions are discriminatory and violate the right of fair trial and hearing because an accused person cannot plead to the charge or to state anything in relation to the charge before the commencement of committal proceedings; they do not give room to the accused person to apply for bail; the committal court is not allowed to determine whether a case has been established 3 against the accused person; they violate the a right to be heard which is one of the pillars of the right to access to justice and to courts of law; they do not provide for time limit of committal proceedings giving a room to abuse; there is no legitimate purpose or the mischief for which the impugned provisions were intended to save or cure as a result they are doing more harm than good. The preliminary hearing conducted by the High Court can be an effective, alternative and substitute of committal proceedings; they do not provide for safe guard against misuse of law and abuse of power by allowing and encouraging prolonged detentions and long imprisonments without trial; and long imprisonments, confinements and detentions of accused persons violates the right to presumption of innocence. When service of the petition was effected to the respondent, he filed a Reply Petition, appearing at page 23 of the record of appeal, accompanied by a counter affidavit sworn by Cecilia Sebastian Shelly, senior State Attorney. The Reply Petition has 4 preliminary points of objection which read thus: 1, That the affidavit in support o f the application is incurably defective and bad in law for containing a defective verification contrary to order VI rule 15 (3) o f the C ivil Procedure Code Act, Cap 33, R. E 2002 (now R. E 2019) (the CPC). 2. The petition is incompetent and bad in law for being res subjudice. 3. The petition is incompetent and bad in iaw for contravening section 3 and 4 o f the Basic rights and Duties Enforcement Act, Cap 3 R. E. 2002. 4. The prayers contained in the petition are untenable in iaw. When pleadings were complete, the petition was placed before a panel of three judges (Masoud, Mlyambina and Magoiga, JJ.) on 18/03/2020 for hearing. The petition could not be heard on that day. When it appeared again before the panel on 16/06/2020, as appearing at page 463 of the record of appeal, Ms. Method, State Attorney, prayed the matter to be placed before a single Judge to determine the preliminary objections. Mr. Daimu who appeared for the appellant conceded. The panel then made the following order: "i) The m atter to be mentioned before Hon. Miyambina today a t 14:40 pm with a view to determine the prelim inary objections. ii) The application to join the DPP as a party is marked withdrawn 16/06/2020 S ig n ed B.S. M asoud Judge S ig n ed Y.J. M lyam bina Judge M agoiga Judge. 16/06/2020" The parties appeared before Mlyambina J later in the day and agreed that the preliminary objection be argued by written submissions. Mlyambina J then made the following order: "ORDER 1. By consent the prelim inary objection be argued by way o f written submissions. 2. The respondents to file by 30/06/2020. 3. Reply by 14/07/2020. 4. Rejoinder (if) by 21/07/2020. 5. Mention 22/07/2020 at 14 hours. S ig n e d Y J. M lyam bina Ju d g e " The parties complied with the schedule of filing the written submissions which were duly considered by the learned Judge. The Judge upheld the preliminary objection and dismissed the petition prompting the filing of the present appeal. The appellant has two grounds of appeal which read thus: 1. The High Court erred in law when it held that the petition is res judicata and dismissed it with costs. 2. The High Court erred in law when the case was first assigned to three judges instead of a single Judge as required by the law and subsequently the three judges further assigned the case to a single judge to hear and determine the preliminary objections. At the hearing before us, Mr. Mpale Kappa Mpoki assisted by Mr. Dai mu Halfan, both learned advocates, appeared for the appellant whereas Ms. Narindwa Sekimanga, learned Senior State Attorney, assisted by Mr. Leyani Mbise, learned State Attorney, appeared for the respondent. Mr. Mpoki adopted the contents of written submission earlier on filed in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) as part of his oral submissions. He submitted at length on ground one while leaving ground two to be determined based on the written submissions. Ms. Sekimanga had no written submissions. She replied the submissions oraliy in terms of rule 106 (10) (b) of the Rules. We had ample time to consider the submissions We plan to start with ground two. The complaint on ground two is that the High Court did not have jurisdiction to hear the case due to defects in the assignment process. Mr. Mpoki contended that, jurisdiction and procedure of dealing with preliminary matters and the petition in a constitutional case is provided under section 10 (1) of BRADEA and rules 7(1)(2), 9 (2) and 15 (2) of BRADEA Rules. That, after the constitutional petition is filed, it must be assigned to a single Judge of the High Court to determine preliminary matters of law relating to the petition such as determination of the question whether the petition is frivolous, vexatious or otherwise and see whether it is fit for hearing. He contended that assignment of the case to a single Judge is done irrespective of whether the respondent has raised a preliminary objection or not. This is the rationale of enacting rule 7 (2) which authorize a single Judge of the High Court to determine preliminary objections. Counsel submitted further that, the reply to the petition and other relevant pleadings, including any preliminary objections, have to be filed and determined by a single Judge of the High Court. It was contended further that when the case is assigned to a single Judge, the respondent may raise another preliminary objection which may be determined together with other objections filed earlier. Mr. Mpoki went on to contend that a person aggrieved by the decision of a single Judge on preliminary matters of law may make a reference to three judges of the High court for decision. Further grievances may be referred to this Court by way of appeal. That, After the single Judge has disposed the preliminary matter of law and established that the High Court has jurisdiction to hear the case, then the s Principle Judge (JK) or the Judge - In charge, as the case be, may assign the petition to a panel of three judges for determination. It was contended that there was a fault of procedure in this case. That, the case was assigned to the panel of three judges of the High Court before preliminary matters of law were determined by a single Judge of the High Court. It moved to the single Judge on an assignment of three Judges not the JK or Judge In - charge. The Court was urged to find that there was a fault of procedure in the assignment which touched the jurisdiction of the High Court rendering the proceedings and the ruling of Mlyambina J., illegal, null and void. The Court was invited to nullify the proceedings and vacate the ruling. In response to ground two, Ms. Sekimanga, leaned Senior State attorney, agreed that rules 7 (1)(2), 9 (2) and 15 (1) of BRADEA Rules are the relevant provisions on assignment of cases to Judges of the High Court in constitutional petitions but was in disagreement with counsel for the appellant on how it is done and the competence of the proceedings. She contended that the case has to go to the panel of three judges first before shifting to the single Judge who can only be engaged where there are preliminary matters of law to be resolved. She contended further that, in whatever case, the assignment of the case to the pane! and later to a single Judge did not prejudice the appellant; neither did it affect the proceedings and ruling of Mlyambina J. He urged the Court to dismiss the ground of appeal. In rejoinder, Mr. Mpoki submitted that there is no indication that BRADEA Rules allow a Judge to assign a case to another Judge. He reiterated his earlier stance that assignment of cases is an exclusive domain of the JK or the Judge In - charge. He argued that a panel of three judges had no power to assign the case to one of them. He contended that, if anything, the panel was supposed to return the petition to the JK for assignment, not otherwise, because the law does not provide for delegation. He urged the Court to make a direction that constitutional cases should not be assigned to the panel unless all preliminary matters have been resolved. We had time to examine the record and consider the submissions made on this ground. We think we should start with the law. As correctly pointed out by counsel for the appellant in his submission, the relevant law is section 10(1) of BRADEA and rules 7(1) and (2), 9(2) and 15(1) of BRADEA Rules. We reproduce them in full as under: "10 - (1) For the purpose o f hearing and determ ination o f any petition made under this Act including a reference made to it under section 9, the High Court s h a ll be com posed o f th ree Ju d g e s o f th e H igh C ourt; save that the 10 determ ination whether an application is frivofous, vexatious or otherwise fit for hearing•, may be made by a sin g le Ju d g e o f th e H igh Court. (Emphasis added). "7 - (1) The respondent who intends to challenge the Court'sjurisdiction to hear the petition shall file the notice o f prelim inary objection w hen filin g th e re p ly to th e p e titio n . (2) The prelim inary objection by the respondent ch a lle n g in g the co u rt's ju ris d ic tio n s h a ll be h eard b y a sin g le Judge. 9 - (2) Where the Judge decides that the petition is vexatious or frivolous, any party aggrieved by the decision m ay re fe r the m a tte r to a p a n e l o f th ree Judges. 15 - (1) Where the petition is found to be competent by a single Judge, th e P rin c ip a l Ju dge o r th e Ju d g e In - charge shall, within 7 days a ssig n th e a p p lica tio n to p a n e l o f th ree Judges. "(Em phasis added) Section 10 (1) vests jurisdiction to hear the petition to three Judges of the High Court. It also gives jurisdiction to a single Judge to determine the competence of the petition. Rules 7(1)(2) and 9 (2) give the modality of bringing preliminary matters and how to challenge the decision on preliminary matters. Preliminary objections are brought at the time of li filing the Reply to the Petition. Like section 10 (1), rule 7 (2) direct preliminary matters to be determined by a single Judge of the High Court. Rule 9 (2) provides for an avenue for reference of the decision of the single Judge to a pane! of three Judges. How the case comes to the panel is the subject of rule 15 (1). Rules 15 (1) carry two scenarios; one, preliminary matters must be determined by a single Judge before the case shifts to the panel of three Judges; and two, the assignment is done by the JK or the Judge In­ charge. Mr. Mpoki was thus correct when he submitted that the case must first be assigned to the single Judge before being assigned to the panel. We also agree with him that as a prudence, once the petition has been filed, it must be placed before a single Judge to certify if it is competent and properly before the High Court. Once that is done, the petition will then move back to the JK or Judge In - charge for assignment to the panel. The law does not provide for delegation of power to the panel of three Judges or any Judge. Assignment must be done by either the JK or the Judge In - charge. The dire need of complying with the procedure for assignment and consequences was discussed by the Court in Diamond Trust Bank Tanzania Ltd V. Idrisa Shehe Mohamed, Civil Appeal No. 262 of 2017 [2018] TZCA 326 (14th December, 2018) TANZLII, where we stated thus: 12 "... a ll cases before the High Court o f Zanzibar are supposed to be assigned to a judge by the Chief Justice and this position is supported by section 13 o f High Court Act, No. 2 o f1985 which provides as follows: - 'The ChiefJustice shall regulate the distribution o f business in the Court and a ll actions and proceedings before the court shall be heard and determ ined by a single judge, unless the Chief Justice otherwise directs or where the law provides otherwise". .... It is a fact that Mkusa, J. was not assigned to deal with the su it by the ChiefJustice and he further adm itted that he was not assigned to hear the main su it as seen at page 144 o f the record o f appeal, ... We wish to point out that, th e C o u rt can n o t n o rm a lly ju s tifia b ly d o se its eyes on a g la rin g ille g a lity in a n y p a rtic u la r case because it h as a d u ty o f en su rin g p ro p e r a p p lica tio n o f th e la w s b y th e su b o rd in ate co u rts, See the case o f Marwa Mahende v. Republic, [1998J T. L. R 249. Also, in the case o f Tryphone Elias @ Ryphones Eiias & Another v. Majaliwa Daudi Mayaya, C ivii Appeal No. 186 o f 2017 CAT (unreported) it was held as follows: ...Ha ving said that th e ille g a lity w hich en su red g o es to th e ju ris d ic tio n o f the cou rt, an d a s 13 th e tr ia l ju d g e determ ined the m ain s u it w ith o u t a n y in stru ctio n from th e C h ie f Ju stice , a s re q u ire d b y th e iaw , w e in vo ke o u r re v isio n a ry po w ers un d er se ctio n 4 (2 ) o f th e A p p e lla te Ju risd ic tio n A ct, Cap. 141, R.E. 2002 an d quash th a t p a rt o f the p ro ceed in g s from 1 5 /0 5 /2 0 1 7 w here M kusa, J. sta rte d h earin g th e m ain s u it to th e end o f tria l, and s e t a sid e th e d e fa u lt ju d g m e n t th e re o f and th e re su lta n t orders. We rem it the record to the High Court with the direction that the triai continues from 15/05/2017 where the main su it was supposed to start, before anotherjudge to be assigned by the ChiefJustice". Reassignment of cases must also be done in accordance with the law or else the proceedings and the decision will suffer the same consequences. It follows that what was done by the panel of three Judges, assigning the case to one of them, to hear and determine the preliminary objection, was ultra vires. The proceedings and the ruling made in Miscellaneous Cause No. 36 of 2019 were therefore illegal, null and void for want of jurisdiction. That done, we see no reason for discussing the first ground. Based on our findings and decision on ground two, the proceedings and ruling 14 of the High Court made in Miscellaneous Cause No. 36 of 2019 are nullified and quashed and the ruling is set aside. The appeal is allowed with a direction that the petition be remitted back to the High Court for assignment to a single Judge to determine the preliminary objections raised in the Reply to Petition and further steps according to the law. This being a public interest litigation we will not make an order for costs. DATED at DAR ES SALAAM this 26th day of July, 2024. A. G. MWARDA JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL Judgment delivered this 29th day of July, 2024 in the presence of the Appellant in person and Ms. Narindwa Sekimanga, Senior State Attorney for the Respondent, is hereby certified as a true copy of the original. 0. H. KINGWELE ffl/ DEPUTY REGISTRAR & // COURT OF APPEAL 15