RULING ON P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA (CORAM: MATUMA, MANYANDA AND KAGOMBA, JJJ.) MISCELLANEOUS CAUSE NO. 000026438 OF 2023 (CASE REFERENCE NO. 20231129000026438) TANGANYIKA LAW SOCIETY................................................ PETITIONER VERSUS THE OFFICE OF ATTORNEY GENERAL.................................RESPONDENT RULING 23/07/2024 & 22/08/2024 MANYANDA, J.: This ruling is in respect of a legal issue raised by the counsel for the respondents in a form of in lim ine iitis to the hearing of this petition on a ground stated as follows: - "If it pleases you, we pray this Court to satisfy itse lf whether the Petitioner was allow ed by the Governing Council o f the Tanganyika Law Society to institute this application. We pray so because the Tanganyika Law Society has come to the public and issued a statem ent on some cases instituted in Court which shall be discussed in their annual general m eeting." Page 1 of 16 In summary, the counsel for the respondents is questioning locus standi of the petitioner in filing of this case on argument whether the governing board sanctioned filing of this petition. When the Petitioner's counsel was called on to respond, opposed the legal issues on grounds which will be discussed in this ruling. The petitioner named above, hereafter referred to by its acronym "TLS", a Bar Association of Tanzania Mainland established under the Tanganyika Law Societies Act, [Cap. 307 R. E. 2019] is moving this Court under Articles 26(2) and 30(3) of the Constitution of the United Republic of Tanzania of 1977 [Cap. 2 R. E. 2019] as and Sections 4 and 5 of the Basic Rights and Duties Enforcement Act, [Cap. 3 R. E. 2019], hereinafter referred to as "the BRADEA" read with Rule 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014 [G.N. No. 304 of 2014] for the following declaratory orders that: - 1. section 16(1) o f the Tax Revenue Appeals Act, [Cap. 408 R. E 2019] as amended contravene A rticle 24(1), A rticle 24(2), A rticle 13(1), A rticle 13(2), A rticle 13(3) and A rticle 13(6)(a) o f the Constitution o f the United Republic o f Tanzania o f1977, [Cap. 2 R. E 2002] for narrowing down the jurisdiction o f the Tax Revenue Appeals Board to tax appeals arising from objection decision only Page 2 of 16 and lim iting the jurisdiction o f the Tax Revenue Appeals Board to determine tax appeals emanating from other decisions made by the Comm issioner General (TRA) hence rendering Section 53(1) o f the Tax Adm inistration Act, [Cap. 483 R. E 2019] and Section 7 o f the Tax Revenue Appeals Act, [Cap. 408 R. E 2019] superfluous; and 2. the provision o f Section 67(2) read together with Section 67(3)(b) o f the Tax Adm inistration Act, [Cap. 438 R. E 2019] is unconstitutional for its failure to indicate the tim e within which the third-party debtor should com ply with the notice given by the Comm issioner General o f the Tanzania Revenue Authority under Section 67(1) o f the Tax Adm inistration Act, [Cap. 438 R. E 2019] which as a consequence contradicts with the tim eline provided for under Section 68(4) o f the Tax Adm inistration Act, [Cap. 438 R. E 2019] thereby violating the provisions o f A rticle 13(1), A rticle 13(2), A rticle 24(1) and A rticle 24(2) o f the Constitution. When this case was called on to hearing on 07/02/2024, this Court granted leave to the parties to argue it by way of written submissions. The parties complied with the schedule by filing their respective submissions in time. Page 3 of 16 The submissions for the petitioner were jointly drawn and filed by Messrs. Stephen Axwesso and Wilson Mukebezi, learned Advocates. from B & E Ako Law, Plot No. 30, House No. 7, Ursino Street - Regent Estate, P. 0. Box 71748, Dar es Salaam and in cooperation with Mr. Daimu Halfani, learned Advocate, from Misnak Law Chambers, Holland House, 3rd Floor, APPT No. 311, Ohio Street/Samora Avenue, P. 0. Box 515, Dar Es Salaam. The submissions for the respondents were drawn and filed by Mr. Stanley Kalokola, learned State Attorney, from the Office of the Solicitor General, 10 Kivukoni Front, P.O. Box 71554 Dar Es Salaam. When the case came for necessary orders on 23/04/2024, Mr. Kalokola raised a legal issue, subject of this ruling. On 03/07/2024, this Court invited the counsel for the parties to address it on the said legal issue. Mr. Axwesso, addressed us on behalf of the petitioner and Mr. Francis Wisdom. Learned State Attorney from the Office of the Solicitor General, did so for the respondents. Mr. Axwesso, took the floor and submitted in negative on the issue whether the governing board sanctioned the filing of this petition arguing that they didn't attach the resolution of the governing council of the TLS sanctioning the filing of this petition because attachment of Page 4 of 16 board resolution is no longer a requirement when an entity is to file a suit or a petition like this one. That, the current legal position set by the Court of Appeal of Tanzania (CAT) is that the resolution is only required where the dispute between the two parties involves an internal misunderstand between the company membership or the institutional members and not in a situation like the one in this petition. To bolster his point, Mr. Axwesso, cited cases of Simba Paper Converters Ltd. vs Packaging and Stationery Manufacturers Ltd and Another, Civil Appeal No. 280 of 2017 at pages 17 to 18 and Mohans Oyster bay Drinks Ltd vs. British American Tobacco Kenya Ltd Civil Application No. 70/01 of 2022 page 11 to 12. He insisted that the rule requiring board resolution as a necessary condition for filing of cases concerning legal entities is only a requirement in situations where there is an internal conflict. He was of the view that in the circumstances of the instant petition where TLS is seeking reliefs against another entity or entities, a board resolution is not a requirement to validate a petition therefore, its absence does not invalidate it. Mr. Axwesso also referred this Court to its record stating that according to the record of this matter, on 23/11/2023 the Chief Page 5 of 16 Executive Officer of the petitioner filed an affidavit before this court in support of the petition which is enough evidence that TLS blessed filing of this petition. In reply Mr. Francis Wisdom submitted that much as it has been conceded to that the petition was filed without being sanctioned by a resolution of the TLS Governing Council which, according to him, is a requirement under the provision of section 4(2) of the Basic Rights and Duties Enforcement Act, (BRADEA) then this matter is improperly before this Court. He was of the view that for a petition to be properly filed in court, it is a mandatory requirement to be accompanied by an affidavit stating the extent to which the provisions of Articles 12 to 29 of the Constitution have been contravened. He added that the law goes further to require the petitioner to state how the said contravention has affected him or her personally. According to the counsel, for a person to conclude that requirements of section 4(2) of BRADEA have been fully complied with, a board resolution is required to show that the governing council of the petitioner deliberated on the impugned provisions of the laws and resolved that the contravention affects them in their personal capacity as an entity and resolved to challenge the matter in court. He was of the Page 6 of 16 view that without a resolution, it can not be said that the provision of section 4(2) aforesaid has been fully complied with. As regard to the affidavit of TLS's CEO, Mr. Wisdom submitted the same does not state anywhere about meeting the requirements of the provisions of section 4(2) of BRADEA. He argued that in order for the court to believe in any assertion, there must be proof which is missing in the present petition. Moreover, the State Attorney distinguished the two cases arguing that the principles stated therein are not applicable in the present petition because it is a constitutional petition governed by a special law, the BRADEA. That the said cases neither did they address constitutional matters nor provisions of BRADEA. By way of conclusion, Mr. Wisdom stated that under the current position of the law, one cannot petition under BRADEA unless he or she shows that he/she has been personally affected or else it will be hard to condemn the petitioner at the end of the day if she is to face the petition consequences. He prayed this court to hold that this petition has been improperly filed and it strike out for contravening the provision of section 4(2) of BRADEA. Page 7 of 16 Rejoining, Mr. Axwesso basically reiterated his submissions in chief and clarified that there is no where a board resolution is mentioned as a requirement under the provision of section 4(2) of the BRADEA for filing a petition, but rather what is required is for the petitioner to state how he or she has been affected. He opposed the contention by the respondents' counsel that exhibition of the effects is through a board resolution only insisting that the law has not defined that it is only through a board resolution that a petitioner can certify to the court that it has been impacted by the impugned provisions of the law; it can be shown in affidavit as well. The counsel insisted on the authorities he cited arguing that the principles therein also apply in constitutional petitions because, according to him, a constitutional petition is a suit just like any other. As regard to consequences of the case, the counsel rejoined that since filing of this petition was sanctioned by TLS with a CEO, the one who implements the resolutions of the governing council and absence of evidence, coupled by the fact that TLS, being a legal person can sue or be sued, then worries that TLS will not honour consequential orders of this Court, are not founded. Page 8 of 16 After submissions by the parties, this Court found that the issue raised concern a preliminary legal issue which is determinable under section 10(1) of the BRADEA and rules 7(1)(2), 9(2) and 15(2) of BRADEA Rules by a single judge. Hence, the panel of judges in this case decided to assign the duty to determine the same to one judge of the three panel judges. They assigned Hon. Manyanda, J. This practice of panel judges assigning one of them to dispose of preliminary issues has been practised for long time now, as was clarified by a full bench of this Court in the case of Meczedeck Maganya vs Minister of State Presidents Office Regional Administration and Local Government and Others, Misc. Civil Cause No. 10 of 2023 where it stated as follows: - "We are fu lly aware that the current practice o f the court is that once a petition is file d under the A ct and its Rules, it is assigned to a 3-judge panel and it is the 3- judge panel which is legally empowered to allocate a single Judge o f the High Court within that panel to determine the competence o f the petition. A s parties ' counsel w ill agree with usd, this is the procedure adopted by the court in respect o f the current petition and this accords with the letter and sp irit o f the parent A ct." Page 9 of 16 This position of the law and practice has been abolished by the Court of Appeal in its recent decision in the case of Onesmo Ole Ngurumwa vs. The Honourable Attorney General, Civil Appeal No. 165 of 2021 (unreported) [2024] TZCA 651 (29 July, 2024) where, after quoting the provisions under its consideration in extensio, stated as follows: - "Section 10(1) vests jurisdiction to hear the petition to three Judges o f the High Court. It also gives jurisdiction to a single Judge to determine the competence o f the petition. Rules 7(1)(2) and 9(2) give the m odality o f bringing prelim inary m atters and how to challenge the decision on prelim inary matters. Prelim inary objections are brought a t the time o f i filin g the Reply to the Petition. Like section 10(1) rule 7(2) direct prelim inary m atters to be determ ined by a single Judge o f the High Court. Rule 9 (2) provides fo r an avenue fo r reference o f the decision o f the single Judge to a pane! o f three Judges. How the case comes to the panel is the subject o f rule 15(1). Rules 15(1) carry two scenarios; one, prelim inary m atters m ust be determ ined by a single Judge before the case shifts to the panel o f three Judges; and two, the assignm ent is done by the JK or the Judge In charge. Mr. M poki was thus correct when he subm itted that the case m ust first be assigned to the single Judge before being assigned to the pane. We a lso ag ree w ith h im th a t a s a p ru d en ce, once th e Page 10 of 16 p e titio n h a s been file d , it m u st be p la ce d b e fo re a sin g le Ju d g e to c e rtify i f it is com p eten t a n d p ro p e rly b e fo re th e H ig h C ourt. O nce th a t is done, th e p e titio n w ill th en m ove b a ck to th e J K o r Ju d g e In - ch arg e fo r a ssig n m e n t to th e p a n e l. The la w d oes n o t p ro v id e fo r d e le g a tio n o f p o w e r to th e p a n e l o f th re e Ju d g e s o r a n y Judge. A ssig n m e n t m u st be done b y e ith e r th e J K o r th e Ju d g e In - charge. I t fo llo w s th a t w h a t w as done b y th e p a n e l o f th re e Ju d g es, a ssig n in g th e case to one o f them , to h e a r a n d d eterm in e th e p re lim in a ry o b je ctio n , w as u ltra v ire s . The p ro ce e d in g s a n d th e ru lin g m ade in M isce lla n e o u s Cause N o. 3 6 o f 2 0 1 9 w ere th e re fo re ille g a l, n u ll a n d v o id fo r w a n t o f ju ris d ic tio n ." (emphasis added) The Court of Appeal went on restating the principle of law on effects of non-compliance with the law on case assignment it previously stated in Diamond Trust Bank Tanzania Ltd vs. Idrisa Shehe Mohamed, Civil Appeal No. 262 of 2017, [2018] TZCA 326 (14th December, 2018) as follows: - "Reassignment o f cases m ust also be done in accordance with the law or else the proceedings and the decision w ill suffer the same consequences. I t fo llo w s th a t w h at w as done b y th e p a n e l o f th re e Ju d g es, a ssig n in g Page 11 of 16 th e case to one o f them , to h e a r a n d d eterm in e th e p re lim in a ry o b je ctio n , w as u ltra vire s. The proceedings and the ruling made in M iscellaneous Cause No. 36 o f 2019 were therefore illegal, n u ll and void for want o f jurisdiction ." (emphasis added) Back to the matter in hand, the 'assignment' by the panel of judges was made on 07/02/2024, prior to the decision in Onesmo Ole Ngurumwa's case (supra) dated 29/07/2024 In our view, the said Court of Appeal decision is in a form of procedural law which, principally, in civil cases applies retrospectively, unless such retrospectivity is likely to occasion miscarriage of justice. The Court of Appeal discussed in detail the issue of retrospectivity of laws in the case of DPP vs. Iddi Hassani Chumu and Another, Criminal Appeal No. 430 of 2019, TZCA 3540 (23 December, 2021. In that case the DPP on 08/10/2019 appealed against an interlocutory order based on provisions of section 6(2) of the Appellate Jurisdiction Act, [Cap. 141 R. E. 2019] which had been declared unconstitutional on 22/10/2019 by a panel of 3 judges of this Court in a constitutional case of Joseph Steven Gwaza vs. The Attorney General and Another, Misc. Civil Cause No. 27 of 2018, [2019] TZHC 227 (22 October 2019) Page 12 of 16 where it raised the issue of retrospectivity at page 10 in the following words: - "It is im portant to note that follow ing the decision in Joseph Steven Gwaza's case (supra) that provision became inoperative because until to date it is not yet reversed. This leads us to the follow up issue whether or not the change that was pronounced by the Constitutional Court covered the notice o f appeal which was lodged before its pronouncement. In other words, whether or not such change, being procedural had a retrospective effect." The Court of Appeal went on deliberating the issue above by making reference to its various cases on the point the cases of Makorongo vs. Consigilio [2005] 1 EA 247; The Director of Public Prosecutions vs. Jackson Sifael Mtares & Three Others, Criminal Appeal No. 2 of 2018; Jovet Tanzania Limited vs. Bavaria N.V., Civil Application No. 207 of 2018; BIDCO Oil and Soap Ltd vs. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 89 of 2009; and Lala Wino vs. Karatu District Council, Civil Application No. 132/02 of 2018 (all unreported). It also made reference to foreign jurisdiction decisions with approval from Ireland, Seychelles and Kenya, the cases of A vs. The Governor of Arbour Hill Prison [2006] 1 ESC 45 Ireland), Suzarra Page 13 of 16 Jorrede St. Jorre and 4 Others vs. Nacisse Stevenson, Civil Appeal SCA 5 and 6/2015 (consolidated) (Seychelles) and John Gichovi Muturi vs. Republic, Misc Criminal Application No. E 011 of 2021 (Kenya) and stated the principle at page 15 as follows: - "Therefore, guided by the above cited authorities it is clear that ju d icia l decisions like the one under discussion which establish precedents have re tro sp e ctiv e e ffe c t in th e ca se s b e in g d e cid e d a n d o th e r case s w hich a re p e n d in g o r s t ill to com e b e fo re th e co u rt. More importantly, such decisions do not have such effect on the decided cases." (Emphasis added) In this matter, as stated above, the decision to assign this case to a single judge to deliberate on the preliminary issue about locus standi of the petitioner was made on 07/02/2024, prior to the decision in Onesmo Ole Ngurumwa's case (supra) which is dated 29/07/2024. However, in our firm view, this case is fully engulfed by the precedent in Onesmo Ole Ngurumwa's case (supra), because the precedent has been given while this case is still pending determination of a preliminary legal issue, the said precedent acts retrospectively prohibiting the act of assignment by panel judges to a single fellow member judge. Page 14 of 16 Our hands to handle this matter are tied, we lack jurisdiction to entertain it unless assigned by the Hon. Principal Judge in accordance with the law as guided above by the Court of Appeal. As to the way forward, we think it is proper to have this matter placed before the Hon. Principal Judge for his directives. It is so ordered. Dated at Dodoma this 02nd day of September, 2024 ATHUMANI. K. MATUMA JUDGE F. K. MANYANDA JUDGE ABDI KAGOMBA JUDGE Page 15 of 16 Delivered at Dodoma this 02nd day of September, 2024 in the presence of Mr. Stephen Axwesso, Counsel for the Applicant and holding the brief for Mr. Francis Wisdom, State Attorney for the Respondents. Petition to be placed before the Principal Judge for his directives. F. K. MANYANDA JUDGE Page 16 of 16