mselem ali mselem others vs attorney general 2018 tzhc 111 17 august 2018

mselem ali mselem others vs attorney general 2018 tzhc 111 17 august 2018

The petition was incompetent because it was filed by petition rather than by originating summons as required by Rule 4 of the Basic Rights and Duties Enforcement (Rules and Procedure) Rules, 2014, which is consistent with section 5 of Cap 3. The Rules, promulgated after the BAWATA decision, clarify the procedure and must be followed. The doctrine of stare decisis does not apply where a new rule has been promulgated.

Citation
mselem ali mselem others vs attorney general 2018 tzhc 111 17 august 2018
Parties
Petitioner: Mselem Ali Mselem; Petitioner: Jamal Nordin Swalehe; Petitioner: Nassor Hamad Abdallah; Petitioner: Hassan Bakari Suleiman; Petitioner: Anthanari Humud Ahmed; Petitioner: Mohamed Isihaka Sussuph; Petitioner: Abdallah Hassan @ Jibaba; Petitioner: Hussein Mohamed Ally; Petitioner: Juma Sadal Juma; Petitioner: Said Kassim Ally; Petitioner: Hamis Amour Salum; Petitioner: Said Amour Salum; Petitioner: Abu Bakar Abdallah Mngodo; Petitioner: Salum Ali Salum; Petitioner: Salum Amour Salum; Petitioner: Alawi Othman Amir; Petitioner: Rashid Ali Nyange @ Mapala; Petitioner: Amir Hamis Juma; Petitioner: Kassim Salum Nassoro; Petitioner: Said Shehe Sharifu; Petitioner: Farid Hadi Ahmed; Petitioner: Abdallah Said Ali @ Mdawa; Respondent: The Honourable Attorney General
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
17 August 2018
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Outcome
petition struck out as incompetent
Legal Topics
Procedure for Enforcement of Basic Rights, Constitutionality of Statutory Provisions, Subsidiary Legislation Vs Parent Act, Originating Process Requirements
Source Language
English
Constitutional Law Civil Procedure Procedure for Enforcement of Basic Rights Constitutionality of Statutory Provisions Subsidiary Legislation Vs Parent Act Originating Process Requirements

Case Brief

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Parties

Mselem Ali Mselem

Petitioner

Jamal Nordin Swalehe

Petitioner

Nassor Hamad Abdallah

Petitioner

Hassan Bakari Suleiman

Petitioner

Anthanari Humud Ahmed

Petitioner

Mohamed Isihaka Sussuph

Petitioner

Abdallah Hassan @ Jibaba

Petitioner

Hussein Mohamed Ally

Petitioner

Juma Sadal Juma

Petitioner

Said Kassim Ally

Petitioner

Hamis Amour Salum

Petitioner

Said Amour Salum

Petitioner

Abu Bakar Abdallah Mngodo

Petitioner

Salum Ali Salum

Petitioner

Salum Amour Salum

Petitioner

Alawi Othman Amir

Petitioner

Rashid Ali Nyange @ Mapala

Petitioner

Amir Hamis Juma

Petitioner

Kassim Salum Nassoro

Petitioner

Said Shehe Sharifu

Petitioner

Farid Hadi Ahmed

Petitioner

Abdallah Said Ali @ Mdawa

Petitioner

The Honourable Attorney General

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the petition is incompetent for not being filed by originating summons as required by Rule 4 of the Basic Rights and Duties Enforcement (Rules and Procedure) Rules, 2014
  2. 2 Whether Rule 4 of the Rules is in conflict with section 5 of the Basic Rights and Duties Enforcement Act, Cap 3
  3. 3 Whether the doctrine of stare decisis applies in light of the new Rules

Ratio Decidendi

The petition was incompetent because it was filed by petition rather than by originating summons as required by Rule 4 of the Basic Rights and Duties Enforcement (Rules and Procedure) Rules, 2014, which is consistent with section 5 of Cap 3. The Rules, promulgated after the BAWATA decision, clarify the procedure and must be followed. The doctrine of stare decisis does not apply where a new rule has been promulgated.

Court Disposition

petition struck out as incompetent

Orders

  • Petition struck out for being incompetent for not being filed by originating summons as required by Rule 4 of the 2014 Rules.
  • No order as to costs.