SYED NAZRE 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM-SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 11007 OF 2024 In The Matter of an Application for the order of prohibition AND IN THE MATTER OF CHALLENGING THE ACT OF THE 1st AND 2nd RESPONDENTS TO RESUME INVESTIGATIONS OVER A MATTER THAT WAS INVESTIGATED AND FINALLY CONCLUDED AND FOR THE 1st AND 2nd RESPONDENTS INTENDING TO INVOKE CRIMINAL PROCESSES PRIOR TO THE EXHAUSTION OF THE REMEDIES AVAILABLE IN CIVIL DOMAIN PENDING BEFORE THE HIGH COURT IN CIVIL CASE NO. 56 OF 2022 BETWEEN SYED NAZRE ABBAS RIZVI............ ....................................... 1st APPLICANT VERSUS DIRECTOR OF CRIMINAL INVESTIGAITON.................... 1st RESPONDENT FINANCILA CRIMES UNIT................................................. 2nd RESPONDENT THE INSPECTOR GENERAL OF POLICE, TANZANIA THE PERMANENT SECRETARY................... 3rd RESPONDENT MINISTRY OF HOME AFFAIRS................. 4th RESPONDENT THE ATTORNEY GENERAL................ 5th RESPONDENT 1 RULING $. M, MAGHIMBI, J. This ruling follows a preliminary objection raised by the respondent to the effect that: - 1. The application is untenable and incompetent in law for contravening Rule 8 of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules G. N. No. 324 of 2014 (herein the Rules). Hearing of the objection ensued by way of written submissions. Before this court the applicant was represented by Mr. Desdery Ndibalema, learned Advocate whereas the respondent enjoyed the legal services of Mr. Stephen Kimaro, learned State Attorney. In support of the objection, Mr. Kimaro submitted that the application is untenable and incompetent in law for contravening Rule 8 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N No. 324 of 2014. He also pointed out that this objection is purely on point of law as stated in the landmark case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] 1 EA 696; where it was principled that: "...a preliminary objection consists of a point of law which has been pleaded, or which arises by dear implication out of pleadings, and 2 which if argued as a preliminary point may dispose of the application. Examples are an objection to the jurisdiction of the court or plea of limitation, or submission that the parties are bound by the contract giving rise to the application to refer the dispute to arbitration." Mr. Kimaro further submitted that, it is trite law that, in order to dispose a preliminary objection then reference must be made to the pleadings and annexures attached thereto as the preliminary objection cannot be taken from an abstract. To support the above position, he placed reliance in the case of Moto Matiko Mabanga vs Ophir Energy Plc and 6 Others, Civil Appeal No. 119 of 2021, at page 14 where the Court cited the case of Ali Shabani and 48 Others vs Tanzania National Roads Agency and The Attorney General, Civil Appeal No. 261 of 2020, when the court was faced with an akin situation, and stated that;- "At any rate, we hold the view that no preliminary objection will be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence" 3 Expounding more his argument, he submitted that with regards to the objection at hand; Rule 8 (1) (a) of the Rules states; (1) Where leave to apply for judicial review has been granted, the application shall be made- (a) by way of chamber summons supported by an affidavit and the statement in respect of which leave was granted; Mr. Kimaro averred that, going through the chamber summons, affidavit and statement in support of the application, the applicant has not complied with the mandatory provision as stated above. This is so because, the applicant was granted leave to apply for judicial review vide Mise. Civil Application No. 6225 of 2024 and the said documents are duly attached as annexure OSG-1 in the Respondents' counter affidavit. That The said documents are substantially at variance with the ones used in support of the application for leave; reference is made to annexure OSG- 1 in the Respondents' counter affidavit. Pointing to the substantial differences which contravened the said Rule, he elaborated that: a) In the leave stage, the Applicant intended to challenge the Act of the 1st Respondent of intending to further conduct criminal investigation on the matters which are before the High Court of Tanzania through Civil Case No. 56 of 2022 while, in the current application, the Applicant is 4 challenging the act of the 1st and 2nd Respondents to resume investigations over a matter that was investigated and finally concluded and for the 1st and 2nd Respondents intending to invoke criminal processes prior to the exhaustion of the remedies available in Civil domain pending before the High Court of Tanzania through Civil Case No. 56 of 2022. This is seen at the title of the Application starting from the phrase "in the matter"; b) In the chamber summons, prayer (a) in the leave stage is substantially different from that of prayer (a) in the present application. For instance, in the leave stage, the Applicant applied for leave to apply for the order of prohibition to prohibit the Respondents through the 1st and 2nd Respondents or any other person acting on their behalf/instructions... while, in the current application, the Applicant is praying for an order of prohibition to prohibit the 3rd and 4th Respondents through the services of the 1st and 2nd Respondents or any other person (s) acting on their behalf/instructions or any other public/Government agency; 5 c) In the leave stage, the affidavit has 13 paragraphs while in the instant application, the affidavit has 23 paragraphs having new 10 additional paragraphs which consist new averments and facts not featured in the leave stage. Mr. Kimaro argued that, they are alive that an application for leave is supposed to be made in conformity with FORM A while an application for judicial review is subject to FORM B. That being the case, he maintained that, an application for judicial review cannot be a copy and paste of the chamber summons, affidavit and statement used in the application for leave to apply for judicial review. However, he argued, an application for judicial review has to be substantially the same with the documents used in the application for leave as per the dictates of Rule 8 (1) (a) of the Rules. He further argued that the departure made by the Applicant is tantamount to bringing an application for judicial review which did not go through the screening stage (application for leave). Mr. Kimaro stressed that the contravened law is crystal clear and in unambiguous terms that application for judicial review shall be made by way of chamber summons supported by an affidavit and its statement in respect of which leave was granted. In furtherance, it is a canon law that, where the words of the statute are clear and unambiguous then the function of the court is to enforce the said provision. To buttress his 6 stance, he cited the case of M/S Regimanuel Gray T. Ltd vs Mrs. Mwajabu Mrisho Kitundu & Others (Civil Appeal No.152 of 2021) [2023] TZCA 17287 (31 May 2023) where the Court echoed that: "It is elementary that the meaning of a statutory provision must, in the first instance, be sought in the language in which the statute is framed, and if that is plain the function of the courts is to enforce it according to its terms". Mr. Kimaro avowed that, the phrase in respect of which leave was granted is plain and this court should apply the principle stated by the Court of Appeal of Tanzania in the above precedent. That being the case, the context of the Rule in question is that an Applicant for Judicial Review should make his case relating to what was stated in the chamber summons; affidavit and statement made during leave application and should not advance new matters. He then argued that it should be considered in mind that, during leave stage the court has to see whether there is a fit case for judicial review and filter frivolous and vexatious applications. This position was celebrated in the case of Emma Bayo vs the Minister for Labour and Youths Development and 2 Others, Civil Appeal No. 79 of 2012, CAT at Arusha (Unreported, accessed on tanzlii). At page 8 of the Judgment the Court pronounced that; 7 "It is at this stage of leave where the High Court satisfies itself that the Applicant for leave has made out any arguable case justify the filing of the main application". Emphasizing more on the objection, the Respondent's Counsel claimed that this court was faced with an akin situation in the case of Pere Muganda vs The Chief Secretary and 2 Others (Miscellaneous Cause No. 49 of 2023) [2023] TZHC 23052 (30 November 2023), TanzLII. In that case, he enunciated that, the Applicant, after being granted leave by the court to file an application for Judicial Review went on to file the application including new prayers and facts which were not stated during the leave stage. This court ruled out that, the application for judicial review was filed contrary to the leave granted by introducing new prayers and facts. He referred to page 11-12 where the court held that; "In my view, the law requires the applicant to build his case for judicial review based on the facts and grounds substantially the same as what was averred during leave application, without introducing newly unscreened substance. This is the import of rule 8 (I) (a) of GN No. 324 of 2014 which the applicant has failed to adhere to, and for which the preliminary objection raised picks its merits." 8 At the end, he prayed that the application be struck out with costs. In reply, Mr. Ndibalema first pointed out that the Respondent had once raised the same preliminary objection in, Mise. Cause No. 49 of 2023 before this court. He then contended that the law does not oblige an application for leave to file for judicial review to use the same chamber summons, affidavit and statement in both leave and judicial review. Thus, the applications for leave and judicial review cannot be a replica of each other as the same are made under different provisions of the law, carrying different prayers, and each has its own format as stated by my learned friend. It was Mr. Ndibalema's view that the law requires the applicant to build his case for judicial review based on the facts and grounds substantially the same as what was averred during the application for leave, without introducing newly unscreened substance. He pointed to the provisions of Rule 8(1 )(a) of the Rules. Therefore, the court sustained the preliminary objection only on the ground that the application for judicial review contained more prayers than which were screened at the leave stage, and not otherwise. That the court stated as follows at page 10 of the said the Ruling of Pere Muganda's case (supra) that: 9 'Undoubtedly, in screening the leave application to know whether an applicant has made an arguable case, the court will also consider whether the case being so made out and its attendant are fit matters for judicial review or not. Hence, my take from rule 8(l)(a) of GN No. 324 of 2014 is that any matter, averment or prayer which bypasses the filtering process set thereunder contravenes the law and shall not be entertained during judicial review". He went on contending that in the chamber summons filed during the application for leave, the applicant advanced only three substantive reliefs of certiorari, mandamus and prohibition, given that the prayer for 'any other orders' which he also made is discretional. He argued that in the instant application there are five substantive prayers, only two of which are in respect of the leave granted to the applicant and that under such circumstance, the application for judicial review was filed in contravention of rule 8(l)(a) of the Rules. Submitting further, counsel for the Applicant states that the advocate for the Respondent has come up with the same preliminary objection, arguing that the chamber summons, affidavit and the its statement for which leave was granted, are substantially at variance with those used in support of the application for leave as stated under para 2.3.1, 2.3.2, and 2.3.3. His argument was that, this shows the counsel for 10 the Respondents has failed to construe the proper meaning and intention of the legislature as per Rule 8( l)(a) of the Rules as well as he has failed to appreciate the position enunciated in the case of Pere Muganda's (supra) that; "an application for judicial review cannot be a copy and paste of the chamber summons, affidavit and the statement used in the application for leave to apply for judicial review" Mr. Ndibalema went on submitting that the heading, chamber summons, the affidavit and the statement for which leave was granted are substantially the same with those used in support of the application for leave. That going through the outlined differences in page 4 of the Respondents' Submission in Chief, they are not variances but they consist of the details necessary in support of the application for judicial review. Further to that, looking at the heading in the application for leave it was brief but in detailed hence still substantially the same. He asserted that the chamber summons also contains detailed facts necessary for the application for judicial review. To make the records clear, he submitted, during the leave stage the Applicant generalized the Respondents, as such, he prayed for leave to apply for the order of prohibition to prohibit the Respondents through the 1st and 2nd Respondents or any other person acting on their behalf from summoning ii the Applicant for further criminal investigation pending determination of Civil Case No. 56 of 2022. He added that, in application for judicial review, the Applicant also prays for prohibition to prohibit the 3rd and 4th Respondents through the services of the 1st and 2nd Respondents or any other person(s) acting on their behalf/instruction from resuming investigations pending determination of Civil Case 56 of 2022. His argument was that, these prayers/facts are correlating since summoning the Applicant for further criminal investigation and resuming investigation substantially mean the same thing. It was his submission that, in respect of the number of paragraphs in the affidavit, the Applicant just made a breakdown, associating each Respondent and his particular violation. That there is nothing new arguing that the affidavit in support of the application for judicial review is not limited to the affidavit in the leave stage as some few necessary facts in support of the application for judicial review are inevitable. He uttered that the Respondent has failed to show how the affidavit in judicial review deviated substantially from the facts in the affidavit in support of the application for leave if they are not related. He qualified that, from the sequence of events for a better understanding of the quest for prohibition; the leave was sought so as to apply for prohibition and the application at hand applies for the order of prohibition. Therefore, it is his argument, 12 that the linguistic variations are inevitable as the two applications are not a replica of each other, hence, there is no any departure which is tantamount to bringing an application for review which is not screened. Mr. Ndibalema further submitted that the most important factor is that there should not be a departure that goes to the root of the application to make it a new matter altogether or new prayers from what had been screened at the stage of leave. He urged that, the cases of M/S Regimanuel Gray T. Ltd Vs Mrs Mwajabu Mrisho Kitundu & Others, Civil Appeal No. 152 of 2021 and that of Commissioner General, Tanzania Revenue Authority vs. Ecolab East Africa (Tanzania) Limited (Civil Appeal No. 35 of 2020) cited by the counsel for the Respondents are distinguishable in the circumstances. That the applicant has complied squarely with the meaning of the said rule as interpreted in the case of Pere Muganda (supra) as quoted above. He asseverated that the counsel for the Respondents has misconceived and intends to mislead this court by his persistent misinterpretation of the phrase 'in respect of which leave was granted' while this court has already given the meaning of that phrase in the Pere Muganda's (supra) that the law does not oblige an applicant for leave to file for judicial review to use the same chamber summons, affidavit and statement in both leave and judicial review as the applications for leave 13 and judicial review are not a replica of each other. He maintained that, they are made under different provisions of the law, carry different prayers, and each has its own format. That the counsel for the Respondents did not submit any appeal against this decision, hence the preliminary objection is devoid of merit, worth to be overruled, with costs. Having dispassionately gone through the rival submissions of the parties, the focal issue which is subject to determination by this court, is whether there is a substantial variation between the prayers sought to be made in this review as compared to the prayers tabled before the court in an application for leave., At the outset, I'm obliged to put forth the essence of leave in relation to the orders sought to be tabled in an application for review. Leave is always granted when the applicant succeeds to convince the court that there is arguable case as well as whether the applicant has an interest in the matter. (See the case of Emma Bayo vs The Minister for Labour and Youths Development & Others (Civil Appeal 79 of 2012) [20131 TZCA 190 (23 March 2013) TanzLII at page 8). Therefore, the orders sought for in an application for leave that are intended to be tabled for review must be the same orders that are actually tabled when leave is granted to pave way for review. There cannot be substantial difference in the orders tabled in convincing the interest of the applicant to the court and those sought in review. 14 With the aforesaid in mind, it is now to see whether in this application, there are substantial variations between the orders tabled when applying for leave and those sought herein. This can be done by first reproducing the orders sought in the two applications. The application for leave in this case was Mise. Civil Application No. 6225 of 2024. In that application, according to the ruling of the court, the applicant was seeking leave to apply for a prohibition order prohibiting the Respondents through the 1st and 2nd Respondents or any other person acting on their behalf/instructions from summoning the Applicant for further criminal investigation under the Summons to Appear with Ref. No. CBE.774/1032/1" G"/91 dated 13/03/2024 in respect of Case File No. CID/HQ/FCU/PE.27/2016 sen/ed by the 1st Respondent to the Applicant on 13/3/2024 and pursuant to the letter with Ref. No. CID/HQ/C.13/900/VOL. XXII/78 dated 25/08/2022 in respect of the same file served to the Applicant in the year 2022. In the current application, the applicant moves this Honorable Court to grant an order of prohibition to prohibit the 3rd and 4th Respondents through the services of the 1st and 2nd Respondents or any other person(s) acting on their behalf/instructions or any other public office/Government agency from resuming investigations in Case File No. 15 CID/HQ/FCU/PE.27/2016 or investigation over similar matters that were subject to previous investigations or over matters that were finally and conclusively investigated and the ease file being closed through a letter with Ref. No. C1D/HQ/C.I3/900/VOL. XXII/78 dated 25/08/2022. The applicant further moved the court to issue an order restricting the Respondents from further proceeding/continuing with investigations as per a letter with Ref. No. CBE.774/IO32/r'G'79l dated 13/03/2024 addressed to the Applicant and in the presence and exhaustion of the remedies available in civil domain, Civil Case No. 56 of 2022 pending before the High Court of Tanzania at Dar cs Salaam Sub-registry between Glenrich Transportation Company Limited versus Syed Nazre Abbas Rizvi(the Applicant herein) and 7 Others where the said Glenrich Transportation Company Limited was the Complainant in CID/HQ/C.13/900/VOL. XXII/78 over the same matters subject to investigation by the 1st and 2nd Respondents as well as the same matters that are now under litigations in Civil Case No. 56 of 2024. He challenged the process of resuming investigations as illegal, irrational and unprocedural impropriety as the investigations over the matter was finally concluded not to be a criminal case but rather a civil matter and in the presence of a civil case pending before the Court. 16 Now, from their submissions, the Respondent argue that the Applicant has faulted by filing an application which they believe to be incompetent. The grounds of objection argued were that the contents of the two applications are substantially different as there are new paragraphs and new facts raised hence making the application incompetent. The Applicant on the other hand is of the position that the application before the court is competent and in conformity with Rule 8 of the Rules. The Applicant explained in his submission that there are no new facts even in presence of more paragraphs as the said paragraphs have just explained more of what was the content in the application for leave and that there are no new facts in the application for Judicial review. On my part, I am convinced by the Respondent's argument that the two applications are substantially different as I shall strive to elaborate. While applying for leave, it would appear that there was an investigation going on of which the Applicant was summoned by the Respondents. Hence, the order sought in the application for leave were to prohibit the Respondents through the 1st and 2nd Respondents or any other person acting on their behalf/instructions from summoning the Applicant for further criminal investigation under the Summons to Appear with Ref. No. CBE.774/1032/1" G"/91 dated 13/03/2024 in respect of Case File No. 17 CID/HQ/FCU/PE.27/2016. In the current application, it appears that the contested investigation during an application for leave was either closed or the circumstances had changed hence the prayer of the applicant in this application to prohibit the 3rd and 4th Respondents through the services of the 1st and 2nd Respondents or any other person(s) from resuming investigations in Case File No. CID/HQ/FCU/PE.27/2016 or investigation over similar matters that were subject to previous investigations or over matters that were finally and conclusively investigated. This phrase means that the investigation that the Applicant had attempted to seek orders to prohibit continuation of what was already closed through a letter with Ref. No. C1D/HQ/C.I3/900/VOL. XXII/78 dated 25/08/2022. It is obvious that what the Applicant was seeking, was the orders of prohibition as the investigation was closed but he wanted this court to prohibit the Respondents from summoning him for further investigation. Now the Applicant cannot use that application and orders sought therein to bring a new case whereby he has moved the court to prohibit the respondents from continuing with the said investigation. Thus, the order prohibiting the Respondents from summoning the Applicant for further investigation is substantially different from the orders prohibiting the Respondents from continuing with investigation meaning that the court 18 will stop the Respondents from proceeding with their investigatory duties. Those are two different things requiring different grounds to decide on whether or not to grant those orders. With respect to the learned Counsel, the phrase "any other order" as used in Chamber Application is only to the extent of the mandate of the court within the parameters of its determination. It is not a carry over and it cannot go beyond the determination of the said application and give a party free riding in orders not sought therein and be employed in any subsequent application. Therefore the argument the additional orders are covered under the phrase "any other order" prayed in the application for leave is dismissed. With regards to the second argument in respect of the application before me on variance of the contents of the affidavit where the Applicant states that there are no new facts raised but only more elaborations to what was submitted during the application for leave. The Respondents' contention is that there are existence of new facts and additional paragraphs which were not featured during the application for leave. I join hands with the Respondent on the position taken in the case of Pere Muganda vs The Chief Secretary and 2 Others (Miscellaneous Cause No. 49 of 2023) [2023] TZHC. The Court took an akin note of the provisions of rule 8(1) (a) of the Rules which I also find to be relevant in this case that where a leave to apply for judicial review has been 19 granted, the application shall be by way of chamber summons supported by an affidavit and the statement in respect of which leave was granted. From the above, it is clear that the application for Judicial Review calls for the affidavit that was in place when leave was granted. Any facts deponed in the affidavit apart from the one that was in respect when leave was granted finds no favors in the eyes of the Law. Although I agree with the Applicant that the facts need not be in a copy and paste manner, however, they should not be so substantially different as to bring a new substance and a different application from the one that leave was granted. Looking at the affidavit before this court in this application for Judicial Review, the same does not appear to be the one in place at the time the applicant sought for leave to file this application as there are new facts supporting the new prayers made in this application in which no leave was granted to seek for. For instance issues of the applicant being in danger to be arrested and charged with economic case was not deponed in the previous affidavit. At that time the applicant was only concerned with being summoned to appear before the 1st respondent for further investigation. That is substantially different from prohibit further investigation that may lead to his arrest. I therefore find the objection raised to-have merits and it is hereby sustained. 20 In the event, having made the above analysis and finding, I find this application to be incompetent as it was filed without leave being granted on its substance. As a result, the same is hereby struck out. Given the nature of the partis herein and the fact that the basis of this application is on criminal matters, I make no order as to costs. Dated Dar es Salaam this 13th day November of 2024. 21