registrar of societies others vs baraza la wanawake tanzania others 2001 tzca 11 25 april 2001

xn ootmw or ^ m u n i a .rri *>1p ■••,:'! f''T/' ’} (c o r a ;-:: ?g3:.:.\-i.-t j .\., r a k .d e a : t , j. ..t.And l o w a , j .a .) CIVIL APP3AJ. NO. 82 OF 1999 BSfr.JSHK THE'RBGISTS;}S..0F_S0pXSTIE3-& *2 OTIT®3 ... APPELLANTS /.I© BAKASi.-s. LA V^NAWAKE TANZANIA " 5 OTHiffiS ,,.,..0,0.. .RESPONDENTS (Appeal from the decision of the High Court of Tanzania & t DftJr ee Salaam) -v-(Katiti, J,, Msoffe, J,, Fube^hi, J.) *""** ”' ■ ■"1 i " -f1 1’V dated 9th June, 1999 in Miscellaneous Civil Cause Not 2? of 1997 : " J U H E H E N T KISANGA, J.A.: A petition was. filed' in the High Court seeking, inter alia, a declaration that the cancellation of the registration of the 1st respondent, Baraza la Wanawake Tanzania (BAWATA) from the Register of Societies was null and void, and for an order that certiorari or an order in the nature thereof issue to quash the said oancellaition, with a mandatory injunction or an order in the nature thereof restoring the registration of BAWATA on the Register of Companies. The petition was brought under Articles 13 (6), 15, 18, 20 (1), 2^, 26 (£) and 30 (4) of the Constitution of the United Republic of Tanzania, 1977* * Sections and 5 of the Basic Rights and Duties Enforcemehl; Act, 199^ and Section 95 of the Civil Procedure Code, 1966* Before the hearing of the petition could take off a ^\>elimino.ry objection to it was filed. It was heard by a panel of i;hre^ judges of the High Court (Katiti, Msoffe and Bubeshi (JJJ.) who oY^rJ'uled » A * it, holding in the process that proceedings for obtaining redress in respect of violations of basic rights guaranteed under the country’s Constitution may be initiated by way of petition r>r originating summons, and that section8 (*f) of the Basic Rights and Duties Enforcement ^ Act 199^ does not prohibit the High Court to issue prerogative orders under that Act to redress human rights violations. It is from that decision that this appeal now arises. Appearing before us in this appeal were Mr. Mwidunda, Principal State Attorney and Mr. Chidowa, State Attorney, for the appellants and Professor Shivji, advocate, for the respondents. Mr. Mwidunda filed amemorandum of appeal containing four grounds but at the hearing he dropped one and argued only the following three grounds:- “1. The learned High Court judges erred in law in ruling against an abjection that a petition not made by an originating sunanons as pres­ cribed is incompetent and incurably jie£e-ct.i.ve, 2. It was not open, necessary and proper in law for the Court to read the w*rd :lor:: into section 5 of the Basic Rights and Duties Enforcement Act 199*+* •3. The learned judges of the High Court erred in holding that under the Basic Rights and Duti4§ Enforcement Act 199^, the High Court has jurisdiction to issue a prerogative order Certiorari.-1 In grounds 1 and 2 which he argued together, Mr. Mwidunda criticised the High Court for holding that the proceedings’could r^ght'ljf be initiated by filing a petition, and for readin'g the wori "oV'1 ^lyto section 5 of the Act to mean that proceedings could bfc c^rtuj^encejJ ■ Ilf If except by using originating summons. If we understood him correctly he was for the view that proceedings could be commenced by using a# petition and originating summons or by using originating summons alone, but never by using a petition alone. He conceded that the procedure of originating summons is not specifically provided for in the laws of Tanzania Mainland but submitted that the situation is taken care of by invoking section 2 (2) of the Judicature and Application of Lav/s Ordinance (Cap. ^53) whifh makes applicable in Tanzania Mainland the law relating to practice and procedure which was obtaining in England at the reception date. Countering that argument, Professor Shivji submitted that the proceedings could be commenced by either petition or originating summons because in his view the two processes were originating pr<|0^sses, and it would be unbecoming to use both of them to commence on© action. It is common ground that Article 30 (3) and (k) of the Constitution of the United Republic ef Tanzania, 1977» conffers on the High Court original jurisdiction over complaints of human rights violations. Section ^ of the Basic Rights and Duties Enforcement Act, 199^ (hereafiw to *as th)e A*0tjk amplification of Article 30 (3) and (if) 0f the Constitution, and section 5 of the Act provides the procedure for making complaints to t^e High Court- As section 5 of the Act is the centre & £ ocxrti'ovei-^' in this appeal, it is necessary to reproduce here its provisions in full. It says;- t!5. An application to the High Court in pursuance of section-i- shall be made by petition to 1}e filed in the appropriate Registry of the High, Court by originating summons.;i ...A ■ ^ ■ According to Mr* Kwidunda the procedure sanctioned by this section is that a complainant of a human rights violation cannot access the High Court for redress except by originating, summons. We finA it- difficult to accept this proposition for a number of reasons. To start with, petition and originating summons are both originating processes. For instance petitions are used in our jurisdiction to commence proceedings in divorce, probate and elections cases. And originating summons has been described as ".«* that mode of commencing an action by summAns which is nAw allowed instead of 4f commencing it by a writ*'* See In Re W. Holloway (a Solicitor), Ex parte Pallister /TSS^ty7 2 QB 163 at p, 166. We agree that the procedure of originating summons is made available in Tanzania Mainland by virtue of the reception clause under section 2 (2) of the Judicature and Application #f Laws Ordinance (Cap* ^53)* But the pertinent question which arises is: What is the necessity, or even the logic, of requiring the use of boffh processes simultaneously to commence one action in this type of cases'? In the second place, the current approach to human rights matters is that cotnplaixiAnfcs. of ’ or-aa^hes or yioLations- of fundamental or basic rights and freedoms should be given unimpeded access to the courts to seek redress. Deliberate efforts should be made to facilitate that access rather than to frustrate it. Oti*e agb.in * we pose the question: Does Mr. Mwidunda’s view of section 5 of the Act accord with this approach' It seems plain to us ^h&t to require the complainant, as Mr. Kwidunda insists, to use parallel processes to commence a single ac-tion cannot be skid to facilitate his access to the court; rather it complicates iV. » m j) m Again, the procedure of originating summons involves adducing evidence by affidavit and counter-affidavit and, if necessary, reply to counter-affidavit. This would be in addition to adducing c*ral evidence by the plaintiff and defence sides at the trial of the petition. Obviously this cannot be said to be in keeping with the current approach requiring that access to court in matters of human rights violations be made easier and faater. Furthermore, as stated before, the procedure of originating summons is not specifically provided for in the laws of Tanzania Mainland. And although it is available by virtue of the reception clause in terms of section 2 (2) of the Judicature and Application of Laws Ordinance (Cap. ^53) it is nevertheless not used in practice. Does it really facilitate access to court or does it make that access easier for a complainant of human rights violations to require him to use originating summons, a procedure which is available only indirectly by importation from England, and which in practice is not used here0 Lastly where originating surrmons is available, for instance, in England it is generally used for actions where there is no great £* dispute on the facts,, see 'Craig Qsb«r»v Civil Litigation, Londotj: Blackstone 1993 p. 11^. But it is well known that allegations -abaut human rights violations, are highly contentious matters, and why Mr. Mwidunda should insist on using originating s,umajoju>r ta cocraenc^ highly contentious litigation is far from clear. The answer to the question posed therefore, is that Mwidunda's construction of section 5 of the Act does hot a4col*cl with the current approach which emphasises on the need to affor^ easy access to court for complainants of human rights violati*rtik * e t/6 His construction, if anything, tends to make that access less simple, prolonged and, indeed cumbersome. In the light of the foregoing we are inclined to agree with Professor Shivji that the two procedures of petition and originating summons provided under section 5 of the Act are to be used as alternative processes for commencing proceedings of human rights violations. A complainant may move the High Court by filing either a petition or originating summons. The High Court rightly came to that conclusion. Professor Shivji went on to say that section 5 of the Act was drafted inelegantly and that in order to try to overcome that problem we should read into the section the word 'or- as indeed did the High Court, so as to amend it to the effect that a complainant should move the High Court by petition or by originating summons. In support of that view he cited the case of Joseph Warioba v. Stephen Wassira and Another /l997/r TLR 272 (C.A.). We find merit in this submission. In Warioba's case, suiwa,. the Court read into section 11*t of the Elections Act, 1995 the words -corrupt o r 1 in, order to make the section complete and thereby give effect to the clear intention which Parliament had shown of restoring the o£fen<*.e of corrupt practice to the Elections Act, 1995 hut had inadvertently omitted to do so in section 11*t of that Act. Reading section without those words made that section :uacajnplefc.e-, leading to absurdity, in that under the section the offence of illegal practice was to be certified to the Director of Elections for sanctitjn^, while no such consequences were visited upon the offence bf Agrrup^; practice which was equally, if not more, serious. A similAj? situation arises in the present case. Literal interpretatibt; o.f section 5 of the Act is that a complainant of a human rights m f m violation should petition the High Court using or by means of originating summons. With that interpretation, however, the section does not make sense at all. Petition and originating summons as originating processes are mutually exclusive. One cannot be used as a means of invoking or complementing the other to commence litigation. Using both processes in one application or action not only would be superfluous, but is impracticable; it is a procedure which is unknown to the lav;. An action is commenced by either petition or originating summons. Thus literal construction of the section renders that provision meaningless or leads to a meaning which at least borders on absurdity. If this had been brought to the attention of Parliament we feel confident that appropriate steps would have been taken to avert the situation. To make the section meaningful* therefore, v/e find it necessary to read the word ■•or'1 ' into it to mean that an aggrieved person should move the High Court by either petition or originating summons, Vie agree with Mr. Mwidunda that the use of the word '■'shall'* in the context of section 5 of the Act connotes a mandatory require­ ment, but we are firmly of the view that commencing the action by a petition alone is -a sufficient compliance- with the sectiofl. I.: Ground 1 of appeal therefore, fails. And so does ground 2. For having found that it is necessary to read the word ■orw into section 5 of the Afct we are prepared to hold, as indeed we have done, that petition and originating summons are prescribed uniter section 5 «-s modes of initiating proceedings and that a «£mpl§.jjiant may use either process for the purpose. Turning now to ground 3 of appeal, Mr. Mwidunda submitted that the High Court has no power to issue orders of certiorari ±h the ..>6 ni ft m proceedings brought tinder the Act because section 8 (4) of the Act forbids or excludes the exercise of such power. He contended that the High Court has such power only under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap, 360). Learned counsel, therefore, urged that the clause in the Petition seeking -an order of certiorari be struck out. Professor Shivji vigorously resisted the submission. He stated that the source of the court's jurisdiction to issue prerogative orders is the Judicature and Application of Lav/s Ordinance (Cap. *+53) which empowered the High Court to issue prerogative writs (now pre­ rogative orders) which the High Court in England had power to issue. Our High Court now exercises the power to issue prerogative orders upon an application for judicial review under the Law Reform Ordinance (Cap. 360). However, he contended that the power of the High Court to issue such, orders is not limited to applications brought under the Law Reform Ordinance (Cap. 360) only. He submitted that the High Court has such power under the Basic Rights and Duties Enforcement Act, and that, in fact, under section 8 (*f) of the Act the procedure of accessing the High Court to obi>ain su*h remedy is made easier. The CQutro-v^rsy in this ground of ar-ound sub­ section (k) of section 8 of the Act, but for a better appre-ciation of the arguments it seems necessary to reproduce herein below the whole of section 8. It says:- 7 tJ8. - ("l) The High Court shall have and may exercise -original jurisdict ion - (a) to hear and determine any application made by any person in pursuance of section *f; o../9 (b) to determine any question arising in the course of the trial of any case which is referred to it in pursuance of section 6, and may make such orders and give directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions of sections 12 to 29 of the Constitution, to the protection of which the person concerned is entitled. (2) The High Court shall not exercise its powers under this section if it is satisfied that adequate means of redress for the contraven­ tion alleged are or have been available to the person concerncd under any other lav/, or that the application is merely frivolous or vexatious. (3) The High Court shall dismiss every application brought under this Act which it is satisfied is brought only on the grounds that the provisions of section 12 to 29 of the Constitution are likely to be contravened by reason of proposals contained in any Bill which, at the date of the application, has not become a law. u (k) For the avoidance of doubt, the provisions of Part VII of the Fatal Accidents Cap 360 (Law Reform and Miscellaneous Provisions) Act, which relate to the procedure for and the power of the High Court to issue pre­ rogative orders, shall not apply for the purposes of obtaining redress in respect of matters covered by this Act:?. According to the marginal note this section is dealing with jurisdic­ tion, and sub-section (1) confers on the High Court as a 4ourt of first instance broad powers to hear and determine -oaaee- -inveJjruag. human rights violations. Sub-section (2) qualifies or restricts that power by excluding its application to cases where adequate means of redress are or have been available to the complainant under any other lav/. Sub-section (3) imposes further limitation on the court's jurisdiction by requiring the court to dismiss or not to entertain complaints arising from alleged violations of any Bill which has not yet become law. Sub-section (**•) seems to us to be the last of this series of qualifications or limitations placed on the broad jurisdiction conferred on the court by sub-section (l), V'e could not readily find any other provision or provisions of the Act which this sub-section logically seeks to qualify or to be connected to. And our understanding of the sub-section is that a complainant of human rights violations who moves the court under ^ of the Act should not in the process invoke the procedure or ask for prerogative orders available under the Law Reform Ordinance (Cap. 360). The idea behind such prohibition seems to arise from the need to avoid possible confusion which might result from a mix up in the application to one set of proceedings of the provisions of two different laws. We therefore agree with Kr. Mwidunda that section 8 (*f) of the Act excludes the power of the High Court to grant certi6rari to a petitioner seeking redress for human rights violations unde^ the Act, Therefore the High Court, with great respect, erred in holding to the contrary. It seems that if such a complainant specifically seeks remedy by way of a prerogative order, he has to opt for the procedure under the Law Reform Ordinance. (Ca]3. 360)4 However, this is not to say that the petitioners in the present »• 1 1 m if they succeed, would be without remedy. The court has wide powers under section 13 (1) and (3 ) rjf the Act to give redress. That provision says:- ”13, - (1) Subject to this section, in making decisions xn any suit, if the High Court com^s to the conclusion that the basic rights, freedoms and duties concerned have been unlawfully denied or that grounds exist for their protection by an order, it shall have power to make all such orders as shall be necessary and appropriate to secure the applicant the enjoyment of the basic rights, freedoms and duties con­ ferred or imposed on him under the provisions of sections M 2 to 29 of the Const it utioru (2) Not applicable. (3) The power of the High Court under this Act sha?l include the power to make all such orders as shall be necessary and appropriate to secure the enjoyment by the applicant of the basic rights, freedoms and duties under the pro­ visions of sections 12 to 29 the ConsLlo^Lior. rhould the Court come to the conclusion that such basic rights, freedoms or duties have been unlawfully denied or violated or that grounds exist for their protection by an order. We think that if the petition proceeds to trial as a suit and the petitioners succeed, the court has vast powers under the section to give appropriate remedy. .,*/l2 m 1d m In the result, although we have held that the High Court has no power to grant certiorari under the Act, we-nevertheless direct that the High Court should proceed to hear the petition with or without amendment as to the reliefs sought. If no amendment is made then if the petition succeeds the court should exercise the wide powers it has under section 13 (1) and (3) of the Act to give appropriate remedy. The appeal is therefore partly allowed. The parties have each to bear their own costs. DATED at DAE ES SALAAM this 25th day of April, 2001. R. H. KISAlfeA JUSTICE OF APPEAL A.S.L. RAMADHANI JUSTICE OF APPEAL D. Z. LUBUVA JUSTICE OF APPEAL I certify that this is a true copy of the original ( F.L.K. WAMBALI ) DEPUTY REGISTRAR