the board of the registred trustee of lawate fuka water supply trust vsruwasa siha district and 2 others 2021 tzhc 7582 17 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOSHI AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 27 OF 2021 THE BOARD OF THE REGISTRED TRUSTEE OF LAWATE FUKA WATER SUPPLY TRUST.......................... ............. .....APPLICANT VERSUS 1. RUWASA SIHA DISTRICT... .1st RESPONDENT 2. CRDB BANK SIHA BRANCH 2nd RESPONDENT 3. HON. ATTORNEY GENERAL 3rd RESPONDENT RULING 20/ 10/2021, 17/ 11/2021 MWENEMPAZI, J. The applicant has made this application under the provisions of section 2(1) and 2(3) of the Judicature and Application o f Laws A ct [Cap. 358 R.E.2019]praying for the orders, as follows: - 1. That, this Honourable Court be pleased to issue interim orders restraining the 1st Respondent from dissolving the board of the applicant and from discharging day today activities on behalf of the board including but not limited from operating the applicant's bank accounts. 2. That, this court be pleased to restrain the 2ndrespondent from allowing the 1st Respondent to operate the applicant's bank account and an order restraining the board members into their positions till final determination of the review filed to the 1st respondent. 3. Any other order(s) and or refief(s) this court may deem fit and just to grant. The application is supported with an affidavit sworn by Yohana Laizer, who is the Chairman of the applicant. In it, the deponent has averred that the applicant is a registered Board of trustee for the purpose of supplying Water and collecting water bills from the community of twenty-seven villages. The said villages have been mentioned under paragraph 5 of the affidavit. The deponent has averred in the affidavit that applicant was registered by Adm inistrator-General of Trustees under the Trustees' Incorporation Act, [Cap. 318 RLE. 2002] on the 4th March, 2004. In that account, a certificate of incorporation has been annexed which reads to be Certificate of Incorporation No. 2809. It is also averred that the applicant made an application to be registered with the District Executive Director of Siha District in the year 2016 for the purpose of services of community water distribution and paid all necessary fees and in the year 2018 via a letter with reference No. LFWS/GC/025/2018, she reminded the District Executive Director for the applicant to be granted with a certificate. The effort proved futile. In general, it is clear the registration before District Executive Director was never achieved. The applicant has averred that the activities by her are, according to its registered constitution, which has been blessed and passed by the General meeting and duly registered by the Administrator General. Her activities are to manage, operate and maintain public taps and water works as well as providing an adequate and safe supply of water to its village consumers, charge consumers for the water supplied from public taps and or water works. In paragraphs 9-15 of the affidavit, the deponent has averred that the applicant had to comply with the new law, the Water Supply and Sanitation Act, No. 5 of 2019, and the Water Supply and Sanitation (Registration and Operation of Community Based Water Supply) Organization, G. N. 829 of 2019. Thus, she made an application for registering its constitution with RITA as was done earlier, however the application with the District Executive Director could not bear fruits. As a result, of course after reminding the Manager of RUWASA in the office of the District Executive Director, the Manager of RUWASA wrote a letter notifying the applicant that the Board of Trustee of LAWATE FUKA has ceased to be functional due to failure to re-register according to the new law. In this regard, a letter by the applicant dated 20th May, 2021 with reference No. LFWS/GC/06/2021 addressed to Meneja wa RUWASA(W) and a letter by Meneja wa RUWASA(W)- Siha dated 19th July, 2021 with reference No. 3 LB.26/116/03/45 which was addressed to the applicant. Paragraph 4 of the letter starting from the second sentence, it reads: "...kutokana na kushindwa kutekeieza matakwa ya sheria ya Maji-na Usafi wa Mazingira No. 5 ya Mwaka 19 ndani ya muda uliowekwa nakutaarifu kuwa Bodi ya Wadhamini iiiyopo madarakanf imefikia ukomo wake na hivyo hairuhusiwi kuendeiea kusimamia shughuii za Bodi tangia tarehe ya barua hii. Pia majukumu yoyote ya/iyokuwa yakitekeiezwa na Bodi ikiwa rii Pamoja na kupitisha maiipo hayaruhusiwi kuendelea mpaka Bodi nyingine itakapoundwa." According to the affidavit, the 1st Respondent did order the 2nd Respondent to close the applicant's account and stopped the applicant from operating the same and that the 1st respondent reported the applicant to the police that she is conducting her businesses by supplying water to its community without being registered. The applicant's manager on the 23rd July, 2021 received a letter from the 1st respondent informing him of the new list of board members. That means the board has been appointed and is in operation. It is also an averment by the applicant that the orders of the 1st respondent invite conflicts which has an effect to the society which is being served by the applicant. In effect, the deponent has averred that the 1st and 2nd respondent's orders and actions affect directly and substantially water bill collection and applicants is fearing the possibility of having irreparable loss. It is against this background the applicant prays for the orders sought as shown above. 4 The respondent is opposing the application and have as well filed a Counter affidavit, The counter affidavit is sworn by one Emmy George who is the District Manager of the 1st Respondent who administers water supply and sanitation in Siha District. In it she has deposed that the applicant in her application for registration went to the wrong authority. She was not supposed to apply to the District Executive Director. Instead of applying there she ought to have applied to the Manager of RUWASA for the District wo is the Registrar by virtue of regulation 12(1) of the Water Supply and Sanitation (Registration and Operations of Community Based Water Supply Sanitations) Regulations,2019. This by virtue of paragraph 3 of the counter affidavit Siha District Executive Director by then wrote back to the Applicant advising the applicant to lodge their application for registration with the Registrar of the Community Owned Water Organizations by then Gabriel Sa'si. In the counter affidavit the deponent has averred that after the repeal of the law under which the applicant was registered, the applicant has not taken any rational and meaningful effort to comply with the saving provisions of the repealing law neither has complied with the current law which repealed the 2009 law. The only thing in record which is related to the applicant's compliance to the new laws is the Applicants letter dated 15thOctober, 2018 with reference number LFWS/GC/025/2018 addressed to Siha District Executive Director and the incompetent application addressed to Registrar of the 1st Respondent whose determination has brought this dispute. In general, the wrangle between the applicant and the respondents is that the applicant believes he has complied to the legal requirements and was supposed to be registered but the respondent has the opinion that the applicant has not been able to comply with the required conditions that is why she has not been legally registered with the 1st Respondent to qualify her to provide services within the area she is working. At the hearing Mr. Engelbart Boniphace, Advocate appeared for the applicant and Mr. Yohana Marco, State Attorney was for the Respondents. They agreed and sought leave to present their cases by way of written submission . Leave was granted and they duly complied to the scheduling order of the court. In the submission by the counsel for the applicant, he has commenced by first submitting on the general complaining and also praying not to submit on the preliminary objection raised by the counsel for the respondent. He has instead prayed a schedule of filing main application be adhered to leaving that for the preliminary objection. The counsel for the applicant has also complained that that the respondent's counter affidavit contains false statements regarding communications between the applicant and the 1st respondent, In this regard, he has referred to paragraph 6 and 9 of the counter-affidavit and also that the application for registration made to the District Executive Director is incompetent. He also submitted that the communication was directed to the District Executive Director because that is the line of communication by virtue of the provisions of S. B.7(i) of the Standing Orders for the Public Service 2009, Third Edition. Basing on the submission he submitted that the whole respondent's counter affidavit is rendered incompetent and prayed this court to strike it out relying on the Robert S. Lova and Another Versus Ministry o f Natural Resources and Tourism and another. Revision No. 742 of 2018, High Court of Tanzania, Labour Division at Dar es salaam(unreported) where it was held that: - "An affidavit being a substitute for oral evidence, should only contain true statements of facts and circumstances which the witness deposes o f own persona! knowledge or from information believed to be true. The fact that the 1st applicant's affidavit contains untrue statement means it is not trustworthy. Further, affidavit being a statement o f evidence taken under oath cannot be amended. Therefore, I find the affidavit is incurably defective and I strike it ou t" In submitting on the main application, the applicant prayed that the chamber summons and affidavit together with the annexures thereto be adopted to form part of the submission. He also reminded the court that the matter is brought under the provisions of section 2(1) and 2(3) of the Judicature and Application of Laws Act, [Cap. 358 R.E.2019J. The applicant is seeking an interim order from this Honourable Court, first by restraining the 1st Respondent from dissolving the board of the Applicant and from discharging day to day activities on behalf of the board including but not limited to operating the Applicant's bank account; Second, this court be pleased to restrain the 2nd Respondent from allowing the 2nd Respondent to operate the bank account and an order reinstating the board members into their positions till final determination of the review filed to the 1st respondent. The counsel has submitted that the order being sought is Mareva Injunction, as extracted from the cited provisions may be issued basing on three conditions which must exist. These are, one that the civil procedure isn not exhaustive; two, that the High Court has jurisdiction to grant interim injunction pending institution of a suit in the circumstances not covered by Order XXXVII Rule 1 of the Civil Procedure Code; Three, the High Court has jurisdiction to apply relevant rules of common law statutes of general application in force in England on the 22ndJuly 1920 where the code is silent. These conditions were discussed in the case of Abdallah M. Malik & Others Vs. Attorney General & Another, Misc. Land Application No. 119 of2017[unreported) the same having been extracted from the case of Edward Epimark Laswav, T/A Laswav Truck & 3 others versus Natinai Bank of Commerce & 2 others. Misc. Commercial Application No. 08 of 2020, in the High Court of Tanzania (CommercialDivision) at Dar es Safaam{unreported). The cou nsel has proceeded to discuss the three grounds in details that Mareva Injunction is not covered by the provisions of the Civil Procedure Code, Cap. 33 R. E.2019 and the only way the applicant has to attain it is by invoking the provisions of section 2(1) and (3) o f the Judicature and Application of Laws [Cap. 358 R.E.2019]. That means the Civil Procedure Code, Cap. 33 is not exhaustive. The second requirement is that the High Court has jurisdiction to grant interim injunction pending institution of a suit in the circumstances not covered by order XXXVII Rule 1 of CPC. Mareva injunction is not at all covered by the Civil Procedure Code in our jurisdiction as the same applies where there is no pending suit in the court. In his submission he has also compared the Mareva Injunction with the ordinary temporary injunction under the provisions of Order XXXVII Rule 1 of the Civil Procedure Code, Cap. 33 R.E.2019. The third requirement the court has to consider for the grant of the orders of Mareva Injunction, that it has jurisdiction to apply relevant rules of common law statutes of general application in force in England on the 22nd July, 1920 where the Code is silent; section 2(3) of the Judicature and Application of Laws Act, Cap. 358 R.E.2019 confers jurisdiction to grant the sought orders by the applicant. In the submission by the applicant's counsel, the essence of the application lies in the acts by the 1st Respondent whereby the applicant allege the 1st Respondent exercised powers which are not vested to her, because according to section 43(2)(a) -(m) of the Water Supply and Sanitation Act, NO. 5 of 2019 there is no function of the 1st Respondent which allows her to dissolve the Board of the applicant. Thus, her actions were contrary to the law. Also, the 1st Respondent went far to order the 2nd Respondent to close the Applicant's bank account and all the transactions whatsoever of any kind to be authorized authorized by the 1st Respondent. He has referred to paragraph 4 of the letter annexure LF-F of the applicant's affidavit, which reads: - "Mpaka sasa Bodi ya Wadhamini Lawate Fuka haijafanya mabadiliko hayo. Kutokana na kushindwa kutekeieza matakwa ya sheriaya M aji na Usafi wa Mazingira Na. 5 ya Mwaka 2019 ndani ya muda uliwekwa nakutaarifu kuwa Bodi ya Wadhamini i/iyopo madarakani imefikia ukomo wake na hivyo hairuhusiwi kuendeiea kusimamia shughuiiza Bodi tangia tarehe ya barua hii. Pia majukumu yoyote yaiiyokukwa yakitekeiezwa na Bodi ikiwa ni Pamoja na kupitisha maiipo hayaruhusiwi kuendeiea mpaka Bodi nyingine itakapoundwa." The counsel concluded by stating that the 1st Respondent acted ultra vires as no law requires her to act in such a way as she did so and as far as Section 43 of the Act NO. 5 of 2019 is concerned. I believe, the above summarized account of the events and submission by the counsel for the applicant is the basis of this application. The rest of the submission is an explanation as to why the applicant believes the 1st Respondent erroneously interpreted the law and thus, I won't refer to the submission on the reasons which will be apparent in the following pages. The respondent also has submitted on the issue of interpretation of the law as submitted by the applicant. However, despite of the importance of the tools stated I will also skip the technical justification on the tools for interpretation and jump straight into the main concern of application, which is the application for an order of mareva injunction. 10 He has also submitted that the applicant brought this application, particularly prayer (b) pending determination of the review by filed by the applicant. The final determination of the said review was delivered on the 3rd August, 2021 and the applicant was again dissatisfied and appealed to the Director General of RUWASA whose determination was done on 20th September, thus there is no any review which is pending. Therefore, prayer (b) is rendered redundant and the same should be dismissed. The decisions of the 1st Respondent and Director General of RUWASA were annexed in the submission. At paragraph 5 of the submission by the counsel for the respondents he has submitted that they agree with the Applicant's counsel that Mareva injunction, being a common law principle, applies to our jurisdiction by virtue of section 2(3) of the Judicature and Application o f the Laws Act (Supra) as was stressed in the case of Calvary Assemblies o f God Vs. Tanzania Steel Pipes Ltd and 2 others. Misc. Land Case Application No. 677 o f 2019, High Court (Land Division) at Dar es Salaam that: "In England applications o f this nature are known as "Mareva injunctions" having its roots in the famous case o f Mareva Compania Naviera SA vs. International Bulk Carriers SA [1980] 1AH ER 213. The reasoning in this case followed in the case o f Nicholas Lekule(supra) where the court held: ’Since courts in England used to issue injunctions orders before institutions o f the main suit under S. 25(8) o f the Judicature Act,1873, and since that Act was in force in England on 22/7/1920 and would appear to have been o f general application in England at that time, I am satisfied that under s. 2(2) o f the Judicature Application o f Laws Ordinance, Cap. 453, in a proper case this court can grant such an order notwithstanding its peculiar name o f Mareva. Suffice to call it an interim injunction order before institution o f the main s u it" The counsel for the respondent has also submitted on the manner injunction applies in our jurisdiction. He has referred this court to the case of Daud Makwava Mwita Vs. Butiama District Commissioner and Another, Misc. Land Application No. 69 o f 2020, High Court o f Tanzania atMusoma (unreported) wherein at page 3 the court observed: "...a Mareva Injunction cannot be applied or be granted pending a suit It is an application pending obtaining a legal standing to institute a suit A Mareva Injunction may be applied where an applicant cannot institute a law suit because o f an existing legal impedimentfor instance where law requires that a statutory notice be issued before a potentialplaintiff can institute a su it.." 12 It is submitted that Mareva Injunction being an interim order, different from that under Order XXXVII Rule 1 of the Civil Procedure Code[Cap. 33 R.E.2019] on aspect of existing pending suit, must meet requirements which are pertinent to the issue of interim injunctions which are; One, presence of arguable case (whether instituted or not); two, the applicant is likely to suffer irreparable loss, and ; three the balance of convenience that is the applicant is likely to suffer more compared to the applicant as was held in the Case of Atilio vs. Mbowe[1969]. HCD 284. The counsel for the respondent has then argued that the applicant has no intention to sue the respondents. It is dear that to be a valid statement because there has never been issued a statutory notice to sue. As such that also translated that there is no arguable case and the orders sought being interim in nature, has nothing to protect in pendency. Automatically he argues, the two conditions of irreparable loss and balance of inconvenience are redundant because these elements are tested on facts of arguable case. The counsel for the respondent has concluded that the circumstances as they are the respondents stands to suffer more than the Applicant if this application is granted in the manner it is brought. Also, as the applicant have prayed for orders which are interim in nature it means the Respondents shall be restrained indefinitely from enforcing the law, that is the Water Supply and Sanitation Act, No. 5 of 2019 whose loss is unquantifiable and cannot be adequately atoned to by award of damages. He has thus prayed on behalf of the respondents that (i) the application be dismissed in its entirety with costs, and (ii) Any other relief the court may deem fit to grant in favour of the Respondents. I have read the application and the submissions by the parties to the application whereby I am now required to decide whether the prayers made by the applicant in the chamber summons be granted or not. The applicant has tagged the application to the decision of the 1st Respondent and has apprehended possible loss due to an order to stop the activities of the applicant in the areas she was registered to operate. Basically, the applicant has an opinion that the 1st respondent acted ultra vires and they are apprehending a possible loss if the situation will remain without stopping the 1st Respondent from acting the way she has directed and or ordered. Before determination of the application, I would like to first refer to the decisions of the 1st Respondent and the Director General of RUWASA concerning the status of the applicant. In the decision of the review by the 1st Respondent, she has essentially observed that the decision to stop the activities of the applicant are due to lack of a certificate of registration under the Water Supply and Sanitation Act, Act. No. 5 of 2019 which renders the applicant not to be legally recognized by the new law. Also, lack of the certificate under the repealed law, Act No. 12 of 2009 makes it impossible for the applicant to be re-registered for provision of water supply services at the community level under the new law. The directives issued to the manager were for them to cooperate with RUWASA in their activities without affecting provision of water services to the community. The required cooperation, though not explicit is to register the board in compliance to the new law. In the opinion of the Registrar, Manager of RUWASA District of Siha, the applicant has been operating illegally contravening the the provisions of regulation 22 of Water and Sanitation (Registration o f Community Owned Water Supply Organizations) Regulations, G.N. 21 o f 2010, That certificate is necessary for the applicant to be recognized and re­ registered under the Water Supply and Sanitation (Registration and Operations of Community Based Water Supply Organizations Regulations, G.N. No. 829 o f 2019. It is in the record that the applicant after the decision of the Registrar delivered on the 2nd August, 2021 was aggrieved and appealed to the Registrar General of RUWASA. The latter, upheld the decision of the decision of the Registrar of RUWASA. Without going into the detailed, I think it will serve to quote the relevant paragraphs in the decision of the Director General of RUWASA dated 20th September, 2021 as hereunder: - 15 "...the Registrar being the Regulator o f rural water supply and sanitation services in S/ha District acted within the powers conferred to her under section 41 o f the Act by taking appropriate measures to stop the operations and access to the bank account for the respective community organization since the respective community organization contravened the legal requirement as pinpointed above. In concluding this matter, and in consideration o f the above stipulated enumerations, and powers conferred to me by Regulation 20(2) o f Water Supply and Sanitation (Registration and Operations o f Community Based Water Supply Organizations) Regulations, 2019 G.N No. 829 o f 2019,1 uphold the decision o f the Registrar in its entirety. Therefore, in order to proceed with operation, you are required to commence registration process in compliance with the Act No. 5 o f 2019 and G. N. No. 829 o f 2019 prior to expiry o f two years grace period as stipulated under G.N. NO. 829 o f 2019. "fEmphasis added) Now, coming to the case at hand, the applicant is seeking the two orders as shown in the introduction. In the decision of the Registrar of RUWASA which was challenged by the applicant, the board was ordered to stop operating due to lack of legal recognition, which is certificate of registration issued by the Registrar of RUWASA until such other board is constituted. If we refer to the provisions of section 32(2) it is not necessary that it is a board but any organization so registered as per categories listed. The decision by the Registrar may thus be understood that the board stops operation for the purpose of community water works (not "dissolved as a board1) until such time another community organization is registered for the purpose of provision of water distribution services. Thus, as explained in the review it is the board which has ceased to be recognized due to lack of certificate by the registrar of RUWASA. Under the circumstances the 1st prayer made by the applicant to restrain the 1st respondent from dissolving the board is rendered impractical On the 2nd prayer, the restraint order is being sought against 2nd respondent so that she does not allow the 1st Respondent to operate the applicant's account and reinstate the board members into their positions until final determination of the review filed to the 1st respondent. The circumstances of this case were that an order was issued to maintain the status quo pending hearing inter-parties and determination of the application. Thus, as of this date the applicants is still operating the activities in the villages as averred in the affidavit. However, given the decisions which have been made by the Registrar and the Director General's confirmation on appeal, the applicant must comply to the law before continuing with the operation in the business of Community Water distribution services. Practically, the order cannot be issued in contravention of the law. Under the circumstances the prayers in the application are not granted as prayed. However, both parties have sought the discretion of this court to issue any other relief the court may deem fit and just to grant. In consideration of the circumstances of the case and approval of the wisdom of the Director General in his decision, I believe it will be fair and just, that the applicants are given a chance to register their organization for the community water distribution. This is because, I believe, the contentions which were in existence would have been avoided if parties would have allowed themselves to be guided and guide according to the rules in place. In the sense that the 1st respondent guides the applicant on the proper way to comply with the law and the applicant proceed to register according to the law and regulations in place instead of opting to await court orders. This is more important given the nature of services provided to the society. Under the circumstances, assuming that had it not been for this application, the applicants would have complied with the guidance by the Director General of RUWASA on appeal, to register their organization according to law, I order that the applicants comply with the requirement to register with Registrar of RUWASA within forty-five (45) days from today if they wish to continue providing services for distribution of water in the communities they registered for. Due to the circumstances, I 18 observed, I have opinion that it will be just and fair again if each party will bear her own costs. It is ordered accordingly. ---- — 1a \ Dated and delivered at Moshi this 17th day of November, 2021 • / / \ J \ > , ' V' a. • \. / T. M. MWENEMPAZI JUDGE 19