poketi kicharoda kambawaida vs district commissioner of tunduru and 4 others 2023 tzhc 20402 28 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 14 OF 2023 N THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR THE PREROGATIVE ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF THE DECISION OF THE TUNDURU DISTRICT COMMISSIONER DATED 11TH JULY, 2023 AT NAMIUNGO, TUNDURU DISTRICT WITHIN RUVUMA REGION BETWEEN POKETI KICHARODA KAMBAWAIDA …………..……………..……... APPLICANT AND DISTRICT COMMISSIONER OF TUNDURU ……………...….. 1ST RESPONDENT DISTRICT EXECUTIVE DIRECTOR FOR TUNDURU DISTRICT COUNCIL ……………………………………………… 2ND RESPONDENT VILLAGE EXECUTIVE OFFICER FOR TANGA VILLAGE………………………………………………...... 3RD RESPONDENT THE WARD EXECUTIVE OFFICER FOR TINGINYA WARD ……………………………..………………….. 4TH RESPONDENT THE HON. ATTORNEY GENERAL …………….…….…..….…… 5TH RESPONDENT RULING 23rd and 28th August, 2023 KISANYA, J.: The applicant, Poketi Kicharoda Kambawaida is a pastoralist based in Tunduru District, Ruvuma Region. He has filed this application under 1 rules 5(1), (2), (3) and 7(5) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (henceforth “the Rules”). The applicant is moving the court to grant him leave to apply for prerogative orders of certiorari and mandamus against the decision of the District Commissioner of Tunduru District (1st respondent) dated 11th July, 2023. The grounds for the prerogative orders are set out in the statement and affidavit of the applicant were filed in support of the chamber summons. What prompted the applicant to file this application is deposed in paragraphs 5 and 6 of the supporting affidavit as follows: 5. That, on 11/07/2023 while at Namiungu village the First Respondent announced to start an operation with no name to evict all Tanzanians working for gain as pastoralists within Tunduru District and in course of that; ordered the Second Respondent to charge unlawful fine to all pastoralists being fine for stray animals. 6. That, following that unlawful order on 20/07/2023 at 05.00 a.m, Respondents’ militia and police officers who did not introduce themselves detained 106 cows which were within Applicant’s kraal (zizi) located on a piece of un surveyed land with 10 acres…he bought from Awasi Musa Awasi on 13th December, 2022 the 2 said cattle were detained on allegation that they are stray animals around village. The above stated facts are also averred in paragraph 3D and E of the statement of the applicant. It is further stated that, upon making follow up of the matter, the applicant was informed by the 1st, 2nd and 3rd respondents that he was required to pay unlawful fine of TZS 5,000,000/= for letting stray animals in the village and to leave Tunduru. The applicant states to have refused to pay the fine or to leave Tunduru because he did not commit any offence. Pursuant to paragraph 24 of the affidavit and paragraph V of the statement, this application for leave to apply for orders of certiorari and mandamus is based on the grounds of unfairness, irrationality and bias which may be rephrased as follows: 1. That the 1st respondent’s decision is unfair and biased because it unreasonably denied the applicant an opportunity to be heard prior to issuance of the eviction order. 2. That the 1st respondent failed to issue a reasonable notice to the applicant to vacate the piece of un-surveyed land he lawful owns as required by the law. 3 3. That the applicant was not compensated for the development on his piece of land. 4. That the pastoralists and villagers were not involved in the 1st respondent’s operation. Although this is an ex-parte application, this Court found it appropriate to order the applicant to serve the respondents. Upon being served, the respondents did not file their respective counter affidavits and statements in reply to contest the same. On the date of hearing, Mr. Faraji Mangula, learned advocate, appeared for the applicant who was also present in person, whilst all respondents were represented by Messrs Emmanuel Bakari, Isaya Msangi and Ibrahim Kabelwa, all learned State Attorneys. At the outset, Mr. Bakari informed the Court that the respondents were not contesting the application. He was of the considered view that the application meets the legal requirement stated in the case of Emma Bayo vs Minister for Labour and Youth Development, Civil Appeal No. 29 of 2019 (unreported). It was also his submission that the legal requirement set forth under rules 5 and 6 of the Rules has been complied with. Thus, the learned State Attorney asked this Court to grant the application with no order as to costs. 4 In view of the response of the respondents’ counsel, Mr. Mangula stated that the application is not contested. He thus, prayed for the application to be granted without costs. Further to this, the applicant’s counsel adopted the chamber summons, affidavit and statement to form part of his submission. Having gone through the chamber summons, supporting statement and affidavit, the issue for determination is whether the application warrants grant. It is settled position in our jurisdiction that, an application for leave is a compulsory step to an application for prerogative orders. This is pursuant to rule 5 of the Rules, which provides that an application for judicial review shall not be made unless the court has granted a leave to file such application. There is also a number of cases on that position of law. One of them is the case of Republic Ex-parte Peter Shirima vs Kamati ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner and the Attorney General [1983] TLR 375, where this Court (Lugakingira, J. as he then was) was held that: "The practice of seeking leave to apply for prerogative orders has become part of our procedural law by reason of long user..." 5 The law is further settled, the stage of leave serves the screening purposes. It ensures that the courts are not loaded with matters which are not meritorious or justifiable for prerogative orders. At this stage, the courts consider whether the application has been filed within the time specified by the law and whether applicant has sufficient interest or has established a prima facie case warranting the grant of leave to apply for the prerogative orders. I am fortified, among others, by the case of Attorney General Vs Wilfred Onyango @ Dadii and 11 Others, Criminal Appeal No. 276 of 2008 (unreported) wherein the Court of Appeal cited with approval paragraph 570 of Halsbury's Laws of England, 14 Edition, which states: “When dealing with an application for leave to apply for judicial review, the first and foremost consideration which the court must determine is whether the applicant has shown that he has sufficient interest in the matter to which the application relates." The above stated position was emphasized in the case of Emma Bayo v. Minister for Labour & Youth Development & 2 Others (supra) which was referred to this Court by the learned counsel for both parties. In that case, the Court of Appeal held as follows: 6 “We respectfully agree with both Mr. Materu and Mr. Chavula that the stage of leave serves several important screening purposes. It is at the stage of leave where the High Court satisfies itself that the application for leave has made out any arguable case to justify the filing of the main application. At the stage of leave the High Court is required to consider whether the applicant is within the six months limitation period within which to seek a judicial review of the decision of a tribunal subordinate to the High Court. At the leave stage is where the applicant shows that he or she has sufficient interest to be allowed to bring the main application. " Being guided by the foregoing principle, this Court may only exercise its judicial discretion to grant leave upon being satisfied that the above conditions have been met. The said principle applies even if the application is uncontested, as in the case at hand. Starting with the issue of time limitation, the applicant deposed that the decision or act subject to the intended application for prerogative orders was made by the 1st respondent on 11th July, 2023. Given that this application was lodged on 17th August, 2023, I am satisfied that it was brought within the six months period specified by rule 6 of the Rules. 7 Next for consideration is whether the applicant has sufficient interest or has established a prima facie case warranting the grant. According to Black’s Law Dictionary, 8th Edition, page 1228, the term prima facie is defined to mean: “A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favour”. Flowing from the above definition, the question whether the applicant has established a prima facie case is answered by considering whether the facts in support of the application raise a fair question or triable issue capable of being determined in the applicant’s favour. It is worth noting here that, the rights to fair hearing, equality before the law, free movement, right to property and fair compensation are enshrined under the Constitution of the United Republic of Tanzania, 1977 (as amended). I am also alive to the position that the said rights are not absolute and that they are exercised in accordance with the provisions of the written laws. In this matter, the applicant is a pastoralist who has deposed to have been keeping and grazing his cows on his land situated at Nakapanya suburb, Tanga Village, Tinginya Ward within Tunduru 8 District. As stated earlier on, the applicant contends that, on 11th July, 2023, the 1st respondent announced to start an operation of evicting all pastoralists from Tunduru District and charging them with a fine of keeping stray animals. It is alleged that the 1st respondent’s decision or order was duly implemented by other respondents, whereby 106 cows were taken from his kraal and detained by the respondents on allegation that they were astray animals around the village. Indeed, the 4th respondent’s public notice dated 20/07/2023 shows that 106 cows had been detained for being astray animals. From the foregoing, I hold the view that the applicant has established to have sufficient interest to bring the main application. I also find that the applicant has demonstrated that he will be adversely affected by the 1st respondent’s acts of evicting him from Tunduru District and charging him with fine. The issue whether the 1st respondent’s decision or act, if any, was unlawful, unfair, irrational, biased or otherwise may be considered if the application is granted. Thus, the applicant has met the requisites conditions for application for leave to file an application for judicial review. In the upshot of above reasons, I hereby allow this application. Accordingly, leave is granted to the applicant to file an application for 9 prerogative orders of mandamus and certiorari. The applicant is advised to ensure that the said orders and their respective grounds are specifically stated, but in accordance with the law. Cost to follow the event in the intended application. DATED at SONGEA this 28th day of August, 2023. S.E. KISANYA JUDGE 28/08/2023 Ruling delivered this 28th day of August, 2023 in the presence of the applicant and Mr. Ibrahim Kabelwa, learned State Attorney for the respondent. S.E. KISANYA JUDGE 28/08/2023 10