20010425 TZHC Dar es Salaam

CIVIL ,\::-P:st.:c NO. 82 OF 1999 THE REGISTR:\R o:r socr~TIE;J & 2 OT}F:.:RS. 0 0 • APPELJ_,_lJ,'.TS AND r: 5 OTH1:GRs " [\ o ,, o o o o o • o • o D .o o • ~ Q «: o o • o C O • 0 G • I{r;~srol'IlJENTs (Appeol from the decision of the High Court of Tnnzo.nin n.t Dar es &>.ln.am) dated 9th June, 1999 in Miscell~neous Civil Cause Ne. 27 of 1997 JUDGE ME N.T A petition wns filed in the High Court seeking~ inter alin, n decl:.J.rc1tion th~t the c::.nceJl2.tion r-f the registration of the 1st · respondent, Bnrc12n 1~ Wc\Dc"lw.:1.ke Tanzanfo. (BAW1\TA) from the Register of Societies was null nnd void 1 n.nd for ru1 order that certiorm-i.or rui order· in the natur& :.thereo.f iss-u.e t.o qunsh i:h.e said -c::..ncellation, with a mand.atory injunction or an order in the nc.tu.re thereof restoring the registration of BkidATh nn the Register of P.mpanies. · Tpe J>Ctitian was brought lL'lder lirticles 13 (6), 15, 18, 20 (1), 24, 26 (~) and 30 (l+) of the Constitution of the Uniteu Republic of Tanzania, ".977, Sections 4 and 5 of the Basic Rights and Duties Enforcemeh\ Act, 1994 and Section 95 of the Civil Procedure Code, 1966. Before the hearing of the petit_ion could take off a ~~i{ll-j.nary objection to it was filed. It was heard by n. panel of thre+, j\l~es of the High Court (Katiti, Msoffe and Bubeshi (JJJ.) who cfr~rt\tled - _~ / / it, holding in the process that proceedings for obtaining redress in ·,r( : respect of violations of basic. rights guaranteed under the country' S.; Constitution may be initia.ted by way of petition r.-r originating summons, and that .section I: (4) of the Basic Rights and Duties Enforcement .::. Act 1994 does not prohibit the High Court to issue prerogative orders under that Act to redress human rights violations. It is from the.t decision that this appeal now arises. Appearing before us in this appeal were Mr. Mwidunda, Principal State Attorney and Mr. Chidowa, Sta.to Attorney, for the appellants and Professor Shivji, advocate, for the respondents. Mr. Mwidunda file·d a memorandum 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 irt ruling against an Abjection that a petition - not made by an originating summons as pres- cribed is incompetent and incur.a.bJ.y .de:£.&ctive~ 2. It was not open, necessa~y and proper in law for the Court . to read the \•l•r.d :;or:)_ into section 5 of the Basic Rights and Duties Enforcement Act 1994. The learn.ed judges of the High Court erred ill holding th.at under the Basic Rights and Duti,~•. EnfeJ:-9ement Act 1994, the High Court has jurisdiction to issue a prerogative order\-,{ \.• Certiorari;• In grounds 1 and 2 which he argued together, Mr. Mwidu!.da <:~Hicised the High Court for holding that the proceedings could ~ght~ · ;t;ie · : _ initiated by filing a petition, and for reading the wori Hori; ,lltQ section 5 of the Act to mean that pr~ceedings could b~ cij~ncet _. ':: - ~ t 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 sunnnons 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 Laws Ordinance (Cap. 453) whieh makes applicabll"I in Tanzania Mainland the law relating to practice and procedure which was obtaining in England ,,t the -reception date. Countering that argument, Professor Shivji submitted that the proceedines could be commenced by either petition ·or originating suramons because in his view the two proce.sses were originating jlr4",\cosses 1 and it would be unbecoming to use both of them to com.'llence one action. It is corn.rnon ground that Article 30. (3) and (4) of the Constitution of the United. Republic et: Tanzania, 1977, conf~rs on the High Court original jurisdiction over complaints of human rights violations. Section 4 of the Basic Rights and Duties Enfortement Act, 1994 (heree.ft.er re.ferret\ to .as the Act} i&.an amplifi.c.ation of Article 30 (3) and (4) of the Constituti-,n, and section .5 of the Act provides. the prorndure for making complaints to the High Court. As section 5 of the Ac~ is the centre .D.f. contro~~?:cy in this appeal, it is necessary t-a reproduce here its prov1si~s in full. It says:- "5. An application to the High Court in pursua.p¢e of section 4 shall be made by petition to ~e filed in the appropriate Registry of the Big~ Court by originating summons.' 1 •-0·1r/4 \ • it II According to Mr. Mwidunda the procedure sanc:fioried by this section r.. ( is that a.complainant of a human rights violO:tion cannot access the r - High Court for redress except by originating\ s,:ummons. ':le find 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 pro~eedings in divorce, probate and elections cases. And originating summons has been described as '' ••• that mode of commencing an action by summ,ns which is n,w allowed instead of connnencing it by a writ.~ 1 See In Re H. Hollow~y (a Soli<:__itor), ~- ~!te .£~_lister (J891fJ 2 QB 163 at p. 166. We agree that the procedure of originating summons is made a~ailable in Tanzania •; . ~ ' Mainland by v.irtue of the reception clause 1under section 2 (2) of t the Judicature and Applibatio'n pf Laws Ordina.n~e (Cap •. 453). But the pertinent question whic~ arises is: What is the• necessity,. or . . ·even the logic, of requiring the use of both processes simultaneously to commence one action in this type of cases? In the se~nd place, tlie current approach to human riehts matters is that. complain~-s. of br~i.~s' or vio:l.a.t lf:lll,S. -0f f'UXldJi™lr:it.al or·basic rights and•f:r.eedorns should be.given unimpeded ac<:ess to the ~- . '• courts to seek redress. Deliberate efforts· should be tna.de,:to . "''i· • fa,cilit~te that· a~ces·~'}~tl;er tha'.r('tc; :'f~ustr.ate·.lito ·olllf 4~in . ·.. .. . . w~ pose the question: • ' ~:•. "P••.·•' . . . ~~::;_/ the Act accord with this approach".'· u· seems plain to,·us:,;\h~t. .. .. ', to ': require t11e compliiinant ~ ~!3. !1r.•.~...,id:~.~a tn[;,:i.sts, .to \~e l~o : ;, par.allel ·processes t.a commence· a single ac-tion ~not !be sl1d .to -~ . .··• .. f~cilitate his access to the court; rather it complicates i\• • . ' l • Again, the procedure of -riginating summons involves adducing evidence by affidavit and counter-affidavit and, if necessary, 'reply to counter-affidavit. This would be in addition to adducing oral 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 f8ster. 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. 453) it is.nevertheless not used in practice. Does it really facilitate a~cess t~ court or does it make that access easier for a complainant of human rights violations to require him to· use originating surrnnons, a procedure which is available only ind:ire-Otly by importation from England, and which in practice is not used here? Lastly where_ originating sufm!ons is available, for instance, . in England it is generally used for aetions where there is no great disput~ on the fact.s,.. ~ {lraig Q.sb.6r:ft.,_ ,Civil Lit:i.gatio.n, Londo~: Blackstone 1993 p. 114.. But it is well known that allegatio.D,.s. alxwt human rights violations are highly cententious matters, and why l.( .. Mr. Mwidunda shou.ld insist on using originating ~ ~ CQJX'll\enc~ highly contentious litigation is far from clear. The answer ta the question posed therefore., is that-M:r. Mwidu..-ida' s construction cf section 5 of the Act does not a◄cor'1 with the current approach which em~hasises on the need to ~ffo1' easy access to court for complainants of human ri.gh.t.s vi~lat\~_.. ••./6 \ His construction, if anything, tends to make ·that access less simple, prolonged and, indeed cumbersome. In the light of the foregoing we T are inclined to agree with ·:2rofe,5sor Shivji that the two procedures of petition and originating sunnnons 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 ~eph W~ioba v. pte~hen ~ r a and Another /J99[/ TLR 272 (C.A,). We find merit in this submission. --- In Wa.rioba' s case, supra., the Court read into section 114 of the Elections Act, 1995 the words order to make the section complete and thereby give effect to the clear intention· which Pe.rliament had shown of restoring the o!fence of corrupt practice to the Elections.Act, 1995 but had inadvertently omitted to do so in section 114 of that Ac.t. Reading .secti~ 114. ' without those words made that section incoJJJPlet.e, leading to absurdity, in that· under the section the offence of illegal l'l'actice was to be certified to the Director of Elections- for sancti~nA, while no such co~sequences were visited upon the offence. _t)f -~9rrupt._ ii practice which was equally, if not mere, serio~I?• A simil~- •·: \'i•~i~u~t~on _a.;-is~s, ,in,. tl:_l.~. prese~t case •. Literal interpreta~~~- ot section 5 of the Act: is that ·_a complaill3-nt of a human righ~~ . ' : • ·1· •·; - ? - violation should petition the High Court using or by means of origi.."lating summons. \-Jith 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 superflUl')us, but is impracticable; it is a procedure which is unknown to the law. 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 appropriRte steps would have been taken to avert the situation. To make the section meaningful~ therefore, we find it necessary to read the word ;;ortr into it to mean that an aggrieved person should move the High Court by either petition or originating :, : sunnnons. We agree with Mr. Mwidunda that the use of the word :,shall'• in the context of sectior; 5 of th~ Act connotes a mandatory require- ment, but we a.re firmly of the view that commencing the action by a petition alone i& e suffici~.nt. compliance with the se.ot ion. .i Ground 1 of: appeal there-fore, fails. Arid so doeB' ground 2 • For having found that it is necessary to read the word :;ort;· into section· 5 of the A•t we are prepared to hold, as indeed we have done, that petition and originating summons are presaib&d under • section 5 as modes of initiating pro•eedings and that a •ompla.inant may use either process for the pur])0se. Turning now to ground 3of appeal, Mr. Mwidunda submitted that the High Court has no power· to ·issue or<i.ers of certiorari iA the •••/8 • s ,. proceedines brought under 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 Lnw Reform (Fatal Accidents and Miscellaneous Provisions} Ordinance (Cap. 360). Learned counsel, therefore, urged that the clause in the Petition- ~ i n g ~ 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 Laws Ordinance (Cap. 453) 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 prerogatiV'8 cwder& 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 . suc..A .ordc-ro is. net limit&d t-0 .applications brought under the Law·Reform Ordinance (Cap. 36o) only. He submitted that the High Court has such power under the Basic Rights and Duties Enforcement Act, and ~hat, in fact, under ~tion 8 (4) of the Act the procedure of accessing the High Court to obtain su•h remedy is made easier. .1 The cQJ)tr~rzy in this gro.u.no of ~ N'"V'c.,,:r-.s. ar.ound su,b- sect ion (4) of section 8 of the Act, but for a better appreeiatiD,n of the argurnents'it seems necessary to reproduce herein bel~w the whole of section 8. lt says:- ti8. - ( 1) The High Court shall_ have and may exercise I •riginal jurisdictien - (a) to hear and determine any application made.by any person in pursuance of section 4; •.. /9 . ,, . (b) tk determine any question arising in the course of the trial of any ca.se 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 concerned under any other law, 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 ~revisions 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. /' \ ii(4) 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 a,nd the power of the High Court to issue pre- rogative_orders, shall not apply for the purposes of ~ht~ining redreas in respect of matters covered by this Act•~. According to the marginal not-e this section is dealing with jurisdic- tion, and sub-section (1) confers on the High Court as a •ourt of •••/10 first instsnce broad powers- to hear and determine cases involving· 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 law. Sub-section (3) imposes further limitation on the:- court's jnri.sdiction 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 (4) 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 ( 1) • We could not readily find any other provision or provisions of the Act which this sub-section logically seeks to qualify or to be connect.ed to. And our understanding of the sub-section is that a complaim:-.'1t of human rights violations who moves the court under section 5 of the Act should not in the process invoke the procedure or asl~ for prerogatiyo orders available under the Law Refonn Ordinance (Cape 36o). The idea behind such prohibition seems to arise from the need to avoid pospible 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 Mr. Mwidunda that section 8 (4) of the Act excludes the power of the High Court to grant certiorari ( to a petitioner seeJ.d.ng redress for human rights violations unde:r 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 (Cap. 36o), However, this is not to say that the petit1oners in the present iase, ••• /11 ···--· '/4~ ' ,./ "' ,.,,-- if they succeed, would be without remedy. The court has wide " f:· powers under sect ion 13 ( 1) and (3) !"If the Act to give ~dress. That provision s~ys:- "13. - ( 1) Subject to this section, in making decisions in any suit, if the High Court com0s to the conclusion that the ba.si~ rights, freedoms and duties concerned have been unlawfully denied or that grounds exist for their _prohc-ti-::m by a.n order, it -shall have poNer to make a.11 suc!l orders as shall be necessary and appropriate to secure· the applica::1t the enjoyment of the basic rights, freedoms and duties con- ferred or im:rr.sed on him under· the ( :provisionG of RectionsT;t2 to 29 of the Com:;-': it v~. ion._ (2) Net ap:,J i.cable,. (3) The power of the High Court under this Act shall include the power to make all such ord?.rs 13.S 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 to the conclusion that such basic righ~s, freedoms or duties have been unlawfully denied or violated or that grounds exist for their protection by an order. We think that if the petitio:1 p:::-cceed.5 to trial as a suit and the petitioners succeed, the court has vast powers under the section to give appropriate .remedy. • ••/12 / I • 1•. " 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 DAR ,:s SALAAM this 25th day of Ap~il, 2001 • • r R.H. KISANGA JUSTICE OF APPEAL A.S.L. RAMADHANI JUSTICE OF APPEAL D. z. LUBUVA JUSTICE OF APPEAL I certify thcL this is a true copy of the original • .... /:; / ,,-. f ·1-· . . ! -,:-} ....... ~-1..... ../•._,/· --- / ( F.L.K. WAMBALI) DEPUTY REGISTRAR