pumziko philemon hassan said others vs the regional commissioner for ruvuma region another 2023 tzhc 21153 20 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SONGEA MISC. CIVIL APPLICATION NO. 11 OF 2023 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS BETWEEN 1. PUMZIKO PHILEMON HASSAN SAID 2. HASSAN SAID 3. BAKARI A MUSSA 4. SAIDI JOBE 5. HAMIDU JUMA 6. ADAM MUSTAPHA 7. SHABAN GAWAZA 8. CHARLES SWILA 9. MUSSA HASHIM 10. BASILIUS MAPUNDA 11 . SHANI H MAPUNDA 12 . JAMES B MBAWALA 13. HAKIA P KAHABI APPLICANTS 14. MICHAELY B MTITU 15. IDDI P MWASHILIMBE 16. BRASIUS BWABENA 17. SADRO MFYAGISI 18. BENAE ZWOGA 19. WINFRID C MLOWE 20. EMACULATA LWAYO 21. MUHIBU R MUYA 22. AZADI MOYO 23. TWAIBU KOMBA 24. INNOCENT NJAU 25. CHRISPIN KOLUBA 26. MICHAEL MAPUNDA 27. SAMWEL M MWINUKA 28. FRANCE NGONYAJI 29. GRACE MSHANA 30. KALISTA MAPUNDA 31. REHEMEA MHAGAMA 32. IZACK ILOMO 33. AYUBU MGAYA 34. STEVEN NDOMBA 35. JESCA KOMBA 36. JACKSON PONERA 37. MICHAEL KAYOMBO 38. MARRY NOMBO APPLICANTS 39. MUSA AMIDU 40. MICK NDIMBO 41. VERA MOYO 42. KASTORY MBEMBATI 43. GODWIN J KOMBA 44. NIKOLAUS MGENI 45. MSAFIRI THOBIAS 46. DICKSON CHIPETA 2 47. GEOFREY MBISE 48. JUMA MOHAMED 49. ATHUMAN CHEYO 50. SALUMU ISSA 51. BRASIUS MLOWE 52. DOMINICK A MOYO 53. BERMAJUMA 54. DAVID MVULA 55. AHMAD DADI 56. MASHAKA MPUTA 57. ATHMANI LIPOMBA 58. ABDILLAH ABDALLAH 59. BOAZ MSIGWA 60. AHMAD M SIGWA 61. BAKARI HASSAN MAHEKA 62. RASHID K MFAUME 63. SHAFII NGOLYACHI 64. ELIAS FOBA 65. GEORGE NGONYANI 66. RAJABU RASHID 67. RASHIDID YASSIN 68. SANGA MTOTO APPLICANTS 69. JAMES MAKUMBULI 70. HENRY MAKUMBULI 71. DOMINICK ALEX 72. TWALIBU T LUANDA 73. IMAMU NCHIMBI 74. GEOFERY T MAPUNDA 75. HAWA C KAFUKO 3 76. JUMA R PASSI 77. MIRAJI HEBILLA 78. DUA SHASHABANI MAKAU 79. HASSAN ZUBERI 80. SAIDI AMIRI 81. ABDALA KASIMU 82. JUMA 3 MTISHI 83. HASSANI NAMALECHE 84. HASSANI HURUKU 85. MOHAMED MNALI 86. PAULO E KOMBA 87. AFIDU R NGONYANI 88. LEORNARD G KIHIYO 89. STEPHEN TONYA 90. HAMISSI R MWALIMU 91. SELEMANI NAMBILE 92. MAOUD ALLY 93. HAMISI FUNDI 94. HASANISALUMU 95. JOSEPH XAVERY LUENA 96. RAMADHANI HARID 97. MAGRET NDAUKA APPLICANTS 98. GOTFRID KOMBA 99. FADHILI IMANI 100. ELSAMO NJOVU 101. HASSAN NASSORO 102. MKWAWA MKWAWA 103. ABDALLAH NGATUNGA 104. GEOFREY H NJELEKA 4 105. HORACE G MKINGA 106. MOHAMED FURAHA 107. GRACE S NCHIMBIRA 108. SAID SAID ALLY 109. FLORIAN TEMBO 110. ISACK ALEX MOYO 111. HENULICK KINYUNYU 112. JACKSON SWALO 113. ALLY NZOMBI 114. ERASO DAMIAN 115. SHEDRACK CHAULA 116. HAJI HASSANI LICHOLONJO 117. GEORGES STANLEY 118. ERICK LUENA 119. AMANI THABITI 120. SALUM Y NIHUKA 121. FRANCIS A MBAWALA 122. HAMAD R NGALIPA 123. MICHAEL A KOMBA 124. STEPHEN M MWILAPWA 125. SALUM AMAN 126. GODINJOVU 127. JAMES B OLOMY 128. SUGWA M KELUKILWA 129. ALLY I MOHAMED 130. ALLY MOHAMED LIVETA 131. HALIMA A PILLY 132. RASHID KALIMBA 133. OSWARD ZAPARANI 5 134. SAIDI YASINI MATOLA 135. IZACK MNARI 136. HAMRUNI KWEMEYE 137. JENIPHER I LWIVA 138. ROSEMARY SMMEHWA 139. HAMISI S LALI 140. RASHID HABIBU 141. IDRIASA HALFAN BWAWALA 142. ERNEST MALIYATABU 143. YUSUPH DAIMU 144. FRANCIS MPAMBALYOTO 145. ADAM MHORO 146. JOHN 3 MAHUNDI 147. MTEULE MWALA 148. INNOCENTTEMBO 149. MICHAEL NOMBO 150. SAID RING'ORE 151. TIDO KOMBA 152. HAPPINESS CHALE APPLICANTS 153. MOHAMED NANGOMWA 154. SALUM H MKWAMBO 155. SALUM LIHUNDI 156. SALE HE SAM LI 157. BATULOME MBEPERA 158. HASSAN ZUBERI 159. DITRAM MBAWALA 160. FOKASO KOMBA 161. ISSA M LUAMBANO 162. KELVIN MABENA 6 163. KASSIM KASSIM MPATE VERSUS THE REGIONAL COM M ISSIO NER FOR RUVUMA R EG IO N ............................1st RESPONDENT THE ATTO RN EY G EN ER A L..................... 2 nd RESPONDENT RULING Mansoor, J: Date o f R U L IN G - 2 0 / 0 9 / 2 0 2 3 163 applicants herein have applied for Judicial Review seeking for orders of certiorari against the respondents quashing the guidelines issued by the Regional Commissioner for Ruvuma in May 2023 which restricted transportation and sale of sesame, soybean and pigeon peas. They also applied for orders of mandamus compelling the Regional Commissioner for Ruvuma Region to remove the restrictions and barriers relating to transportation and sale of sesame, soybeans and pigeon peas. The Application is by way of chamber summons supported by the affidavit sworn and verified by Pumziko Philemon Mlelwa for himself and on behalf of the other 162 applicants. In the first paragraph of the affidavit Pumziko Philemon Mlelwa says: 7 "that I am the 1st applicant in th is application and th at I have been authorised by m y core 162 applicants to sw ear th is a ffid avit because o f our num erousness and hence conversant with a ll facts I am about to depose herein below ." Against the application, the respondent took two objections on points of law. The first was that the application was filed beyond the time granted by the court. In their written submissions, the respondents' states that before this application was filed in court, the applicants herein had filed the similar application which was Misc. Civil Application No. 10 of 2023, this application was withdrawn by the applicants but the court had granted them leave to refile it, and the court also had granted them five days to file the fresh application. The five days were to be counted from 20th June 2023. The respondents argue that the applicants filed their application on 28th June 2023, which is 8 days from the date the order of the court was issued, hence time barred. In support of their arguments, the respondents relied on the case of Tanzania Breweries Limited vs Edson Dhobe and 19 others. Misc. Civil Application No. 96 of 2000 read together with the case 8 of Buruhani Omari vs Victoria Revelian (Misc. Land Case No. 90 of 2020, and the case of Micky Gilead Ndetura vs Exim Bank f~n Limited. Comm Case No. 4 of 2014, in which it was insisted that co u rts' orders m ust be strictly com plied with and m ust be respected., and that the courts should alw ays exercise firm control over the proceedings. The Counsels for the respondents also said, the law of limitations knows no sympathy or equity, and since there was a delay of three days in filing the application, they urge the court to dismiss the application. To buttress their arguments, the counsels for the respondents relied on the case of Erasto Mwahaleqa vs Elisante Munuo and 4 others. Land Revision No. 2 of 2021 (HC1 On Electronic filing of cases, the counsels argue that the date of filing is reckoned to be the date of payment of fees and not the date submitting the application online, they rely on the case of Rex Investment Limited vs Mkombozi Commercial Bank. Comm Ref No. 8 of 2023. where Hon Mbagwa J said that the date of filing 9 is the date of payment of fees, and that the applicants paid the fees on 28th June, 2023, 8th day after the court order, thus time barred. The respondents also argued that they are aware that there exist conflicting decisions regarding the date of filing of documents electronically, but they say the court is bound by the decision of the fellow judge of the High Court provided that it is the most recent decision, and that the most recent decision prevails. They derive this position from the holding in the case of Ardhi University vs Kiundo Enterprises T Limited, Civil Appeal No. 58 of 2018, where the Court of Appeal said "where the Court is faced with conflicting decisions o f its own the better practice is to follow m ore recent o f its conflicting decisions...." Before I proceed on deciding on the merits of the first limb of the objection, I would like to say a little about the doctrine of stare decisis. Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means "to stand b y things decided' in Latin. 10 When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision. The beauty in the stare decisis doctrine is that the High Court Judge is not bound by the decision of the High Court previously passed. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. Again, stare decisis is not an "inexorable command.", in developing the law, and before the same court, a judge may be persuaded by the decision of a fellow Judge, or he may have a different opinion altogether, and both could be correct. Now, having said that the decision cited is only persuasive, the core issue to be decided under the e-filing system introduced by the courts, is what would be the date of filing of a document in court. The applicants say they submitted their application on line, and this was received by the court on 26 June 2023 at 13:27:34 hrs. The order of the Court was issued on 20th June 2023, which was a Tuesday. The order of the court expired on 25th June, 2023, which was a Sunday. Definitely to calculate the filing deadline, if the last day of the period u is a Saturday, Sunday, or holiday, the period continues to run until the next day that is not a Saturday, Sunday, or a holiday. The due date fell on a Sunday, 25th June 2023, then the filing date was on Monday, 26th June 2023. Now, the Applicant's Counsel says they submitted the application on line on Monday 26th June 2023 at 13: 27 hrs., and this is in compliance with Regulations 21 of the Judicature and Application of Laws (Electronic Filing) Rules 2018, GN No. 148 of 2018, which reads: "A docum ent sh a ll be considered to have been file d if it is subm itted through the electronic filin g system before m idnight, East A frican time, on the date it is subm itted, unless a sp ecific tim e is se t by the Court o r it is rejected." Under the Judicature and Application of Laws (Electronic Filing) Rules 2018, GN. No. 148 of 2018 ("the Electronic Filing Rules") at Page 4 of 11 Rule 21(1) of these rules provides that, a docum ent is taken to have been file d if subm itted before the m idnight according to East African Times, this means that a document is filed once submitted electronically unless it is rejected unless there is a specific time given by the court, the rule does not talk about date of payment of fees, and 12 the court did not reject the application or did not give a specific time for filing it. This Court in a number of cases including the case of Mohamed Hashil v. National Microfinance Bank Ltd (NMB^ Revision No. 106 of 2020. High Court of Tanzania, Labour Division (unreported) and Kitumbo Security Company Limited v Vimaio & Sons Limited, Civil Appeal No. 12 of 2020, High Court of Tanzania at Tabora (Unreported), the court has insisted that the date of filing the document is the date of submission of the document on line, and the time expires before midnight of the date. Upon filing the documents online, the Court is deemed to have received the document on the date it is submitted on line and the date of presenting the document for filing in court is the date the document is submitted on line, and if there is non-attendance of the document by the court staff or court registry, for any reasons whatsoever, be it the network problems, or that the system was down, that will not be the concern of the litigant. The electronic filing system rules do not have a requirement to submit hard copies of the pleadings after filing them electronically, but this is a mere practice of the court. Once the document is submitted on line, the electronic control number is issued, 13 and this would suppose that it would be issued on the same date, and thus filing fees would be effected or paid on the same day, and if at all there is a delay in issuing the control number, or a delay of checking the JSDS2 system by the staff so as to attend to the submitted document, that misnomer would definitely, not be the faulty of the person who submitted it, and it would be unfair to dismiss such application on reasons of limitations. Again, as held in the case of National Microfinance Limited vs Levison Yohana Kiula, Reference No. 3 of 2021 (HC), where the Late Judge Utamwa held that, the objection as to the date of filing requires proof by production of evidence such as receipts and affidavits, as such, the objection disqualifies to be treated as a preliminary objection. I subscribe fully to that position, the Judge in the Case said, and I quote: "Regarding the first lim b o f the PO, I am o f the view that, it is d ear in th is m atter a t hand that, the parties do not dispute on the existence o f the JSD S system and the electronic filin g system currently applying in our courts. They do n ot a/so dispute on the guidance under rule 21(1) o f the GN and the decisions in the Moham ed Hash/I Case (supra) and the Kitum bo Case (cited 14 earlier). I therefore fin d that, indeed, the law as supported by these two precedents guides that, a docum ent is deem ed to have been file d in court if subm itted electronically before the m idnight as correctly contended by the applicant's counsel. I t follow s thus, that, under the circum stances o f the m atter a t hand, to argue th at the docum ent a t issue was file d on the date shown in the court's rubber-stam p (on the top o f the hardcopy o f the cham ber sum m ons file d in court) needs evidence to disprove the allegation by the applicant's counsel that it was file d electronically before the date shown on the rubber-stam p. Evidence w ill a/so be needed to disprove the p o ssib ility that the sam e was file d electronically before the date shown in the rubber-stam p. This fa ct alone, therefore, d isq ualifies the concern raised by the respondent from being a fit PO in law. This view is based on the landm ark cases o f M ukisa B iscuits M anufacturing Com pany Lim ited v. W est End D istributors [1969] E.A.701 and decisions by the CAT in Karata Ernest and others v. Attorney General, TCA C iv il Revision No. 10 o f 2010, a t D ar es Salaam , 15 (unreported) and COTWU (T) OTTU Union and another v. The Hon Id d i Sim ba and others [2002] TLR. 88. Apart from the fact that the issues raised by the respondent requires proof by production of evidence, thus disqualifies to be treated or determined at the preliminary stages, the law under Regulation 21 of the Judicature and Application (Electronic Filing) Rules, is clear that the document is filed in court once submitted electronically. The first objection is therefore overruled. The 2nd objection was abandoned, and arguing on the third objection that the application contravenes the provisions of Rule 8 (4) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Judicial Review Procedure and Fees) Rules, 2014, the respondents argue that the application is supported by the affidavit of the 1st applicant, one Pumziko Philemon MEelwa who swore the affidavit on behalf of himself and 162 others. The respondents' states that this is contrary to Rule 8 (4) of the above cited Rules, and that the applicant who swore the affidavit on behalf of the rests of the applicants ought to 16 have given reasons as to why the other 162 applicants could not swear the affidavit. The requirement of giving reasons as required in Rule 8 (4) of the Rules is essential and failure to comply is fatal. The respondent however says in their submissions that the applicant who swore the affidavit gave the reasons, hence in compliance of the Rule, they argue however that the reason given, that of numerous number of the applicants is not sufficient reasons as there is no harm for all the 163 applicants each to swear his own affidavit. The Counsel for the applicants said in his submissions that he has complied with the requirements of Rule 8(4) of the Rules as the apiicant has given the reasons, and the reasons of numerous number of the applicants is sufficient for the affidavit in support of the application to be sworn in and verified by only one applicant representing himself, and the rests of the applicants. The Counsel for the applicants also states that the 2nd objection does not qualify to be decided as the preliminary point of law as it is not a pure point of law. I heave heard and considered the arguments of both counsels representing the parties herein, the provisions of Rule 8(4) provides as follows: 17 Rule 8(4) Where the applicant is unable to make the affidavit, the affidavit may be made by another person on the applicant's behalf, and it shall state why the applicant is unable to make the affidavit. I agree that an affidavit is a sworn statement in writing made under oath or on affirmation before an authorised officer or Magistrate as defined in the case of OTTU v. AG and Others. Misc. Civil Application No. 15 of 1997 HC at Par es Salaam (unreported). Affidavits are governed by Order XIX, Rule 3 (1) of the CPC which provides that: "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted: Provided that, the grounds there of are stated. "(Emphasis supplied). Thus, an affidavit being a sworn written evidence in substitute of oral evidence, it must be confined to such statements as the deponent is able of his own knowledge to prove. See the case decided by the Court 18 of Appeal sitting in Mbeya, the case of Juma Busiga v. Zonal Manager TPC (Mbeya), Civil Application No. 8 of 2004. An affidavit is facts deposed or rather a declaration of facts by the deponent. The facts mentioned in an affidavit must be true to the best knowledge of the deponent. In order to make it valid, it needs to be sworn in under oath before an authorised officer or magistrate or the Commissioner for oaths. However, the law permits other people to swear affidavit of another person provided that the reasons for swearing on behalf of others are given. As long as the reasons are given there shall be no need to adjudge on whether the reasons given are sufficient or not, there is no such requirements under the law governing affidavits, the only restrictions are that the facts deposed in the affidavit must be true to the best of the knowledge of the deponent, and if the facts deposed in the affidavit are from a different source other than the deponent the source of the information must be stated in the verification clause of the affidavit. 19 The law, for example allows an advocate to swear affidavit in the proceedings in which he appears for his client, provided that he deposes on matters which are in the advocate's personal knowledge only. This principle was settled in the case of Tanzania Breweries Limited v. Herman Bildad Minia, Civil Application No. 11/18 of 2019 CAT at Par es Salaam (unreportedV the court held as follows: "From the above, an advocate can sw ear and file an affid avit in proceedings in which he appears fo r h is clie n t but on m atters which are w ithin h is personal knowledge. These are the only lim its which an advocate can make an a ffid avit in proceedings on b eh alf o f h is clie n t." When an affidavit is taken on behalf of others, the reasons for doing so must be stated, and if an affidavit mentions another person or persons that other persons must also swear affidavits but the affidavit of such other person will only be needed if the information of such other person is material evidence because without his affidavit his evidence would be treated as hearsay evidence. This is stated in the 20 case of Benedict Kimwaaa vs Principal Secretary. Ministry of Health. Civil Application No. 31 of 2000, Court of Appeal of Tanzania at Dar Es Salaam (unreported), that: "If an a ffid a vit m entions another person, then th at other person has to sw ear an affidavit. However, I w ould add th at that is so where the inform ation o f that other person is m aterial evidence because w ithout the other a ffid avit it w ould be hearsay. Where the inform ation is unnecessary, as is the case here, o r where it can be expunged, then there is no need to have the other affid avit o r a ffid a vits." In the case at hand, since the applicants are many, about 163 applicants , and since the facts are known and within the knowledge of the 1st applicant who swore the affidavit on behalf of himself and the rests of the applicant, and again since Rule 8 (4) permits a person to swear the affidavits on behalf of another, and the reasons for doing so have been stated, I find that the objections taken by the respondents are frivolous as the applicants are in strict compliance of 21 Rule 8 (4) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Judicial Review Procedure and Fees) Rules, 2014. Consequently, the objection raised by the respondents are overruled for lacking merits, with costs. DATED and DELIVERED at DAR ES SALAAM by Video conferencing this 20th day of SEPTEMBER, 2023 JUDGE 20th SEPTEMBER 2023 22