IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(MAIN REGISTRY)

AT PAR ES SALAAM

MISCELLANEOUS CAUSE NO. 18 OF 2023

IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI,

MANDAMUS AND PROHIBITION BY JAMES FRANCIS MBATIA
AND
IN THE MATTER OF THE DECISION OF THE NATIONAL CONGRESS OF
THE NATIONAL CONVENTION FOR CONSTRUCTION AND REFORM
MAGEUZI (NCCR-MAGEUZI) EXPELLING THE APPLICANT FROM THE
RESPONDENT.
AND
IN THE MATTER OF THE DECISION OF THE NATIONAL CONGRESS OF
THE NATIONAL CONVENTION FOR CONSTRUCTION AND REFORM
MAGEUZI (NCCR-MAGEUZI) REMOVING THE APPLICANT FROM THE
POSITION OF THE NATIONAL CHAIRPERSON OF THE RESPONDENT

BETWEEN

JAMES FRANCIS MBATIA................................................................ APPLICANT

VERSUS
THE REGISTERED TRUSTEES OF NATIONAL CONVENTION
FOR CONSTRUCTION AND REFORM MAGEUZI
(NCCR-MAGEUZI)........................................................................ RESPONDENT

RULING
23/06/2023 & 27/06/2023

KAGOMBA, J.

This is a ruling on a preliminary objection on points of law raised by

the respondent against the applicant's application for prerogative orders of

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mandamus, certiorari and prohibition. The application being road-blocked is

made under section 17(2) of the Law Reform (Fatal Accidents and

Miscellaneous Provisions) Act, [Cap 310 R.E 2019] (henceforth "Cap 310"),

as well as rule 4 and 8(l)(a) & (b), (2) & (3) of the Law Reform (Fatal

Accidents and Miscellaneous Provisions) (Judicial Review Procedure and

Fees) Rules, 2014 [GN. No. 324 of 2014] (henceforth "the 2014 Rules").

Beside the preliminary objection, the respondent has also filed a counter

affidavit and reply statement to oppose to the application.

The points of law constituting the preliminary objection as per notice

filed by the respondent are;

1. That this matter [the application] contravenes the mandatory provision

of section 17(2) of Cap 310, for which this court has no jurisdiction to

entertain the orders sought.

2. The chamber summons contravenes the mandatory provisions of

section 19(1) of Cap 310 and rule 8 of the 2014 Rules.

3. The applicant has contravened the mandatory provision of order VI

rule 15(2) of the Civil Procedure Code, [Cap 33 R.E 2019] in his

affidavit and the statement.

4. Mr. Emmanuel Joseph Mngwambi has failed to disclose his status

concerning his qualification.

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 Being prompted, the court ordered the hearing of the preliminary

objection to proceed by way of written submissions. Mr. Beati Aishakiye

Mpitabakana, Chairman of the respondent drew and filed the submission in

chief and rejoinder submission for the respondent while Mr. Hardson B.

Mchau, learned advocate did the needful for the applicant.

On the first point of objection, the respondent is faulting the

jurisdiction of this court to entertain the application for a reason that the

applicant was supposed to appeal to the National Congress against the

decision of the National Executive Committee of the respondent dated 21st

May, 2022 as provided under article 22(3)(j) of the Constitution of the NCCR-

Mageuzi. According to the respondent, this application contravenes the

mandatory provision of section 17 of Cap 310.

On the second point of objection, the respondent faults the format of

the chamber summons. She says the chamber summons contravenes the

mandatory provisions of section 19(1) of Cap 310 and rule of the 2014 Rules

for not complying with "form B" prescribed under the said Rules. The

respondent's specific argument here is that, in his chamber summons, the

applicant was supposed to present the orders/reliefs being sought exactly as

sequenced in the said form B, by starting with mandamus, prohibition and

then certiorari. The chamber summons has started with certiorari,

mandamuses then prohibition, hence the respondent finds it to be contrary

to the prescribed mandatory form. She cites the case of Erizerius

Rutakubwa vs Jason Angelo (1983) TLR 365 to make her argument

worthwhile.

On the third point of objection, it is the respondent's contention that

in the applicant's affidavit the verification clause does not disclose the source

of his belief, contrary to order VI rule 15(2) of the Civil Procedure Code, [Cap

33 R.E 2019] ("CPC"). That, the applicant's affidavit also contains some

information not from applicant's knowledge rather from someone else.

Hence, the affidavit is rendered incurable defective and ought to be struck

out with costs. The respondent dropped the fourth point of the preliminary

objection.

In his reply submissions, starting with the first objection, the counsel

for the applicant found no correlation between the preliminary objection on

jurisdiction of the court and the cited section 17(2) of Cap 310 R.E 2019,

and no reason was cited to outs the jurisdiction of the court. He also

dismissed the cited provisions of the constitution of NCCR - Mageuzi for being

irrelevant as far as jurisdiction of the court to determine this application is

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concerned. He argues that even if the provisions of the said constitution

were relevant, such an argument I s not raised in the notice of preliminary

objection.

On the other hand, it's the applicant view that the first objection is not

on a pure point of law in purview of Mukisa Biscuit Manufacturing Co.

Ltd vs West End Distributors Ltd [1969] EA 696. He argues that the

respondent's contention that the applicant was supposed to challenge the

decision of the National Executive Committee cannot be termed a point of

law.

With regard to the second point of objection, the counsel for the

applicant argued that a party has an option to rearrange the reliefs

depending on the nature and circumstance of the application. That, in this

matter it was imperative to start with the order of certiorari fax the court to

quash the decision of the respondent which expelled him from his position

and then mandamus to compel the respondent to comply with the law and

thereafter the order of prohibition.

The learned counsel further argued that the second point of

preliminary objection does not serve the purpose of a preliminary objection

illustrated in case of Eusto Ntagalinda vs Tanzania Fish Process Ltd,

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Civil Application No.8 of 2011, CAT at Mwanza, which is to save time of the

court and parties by not going into merits of the matter for there being a

point of law that disposes the matter summarily.

As for the third point of objection, the counsel for the applicant

dismisses it for being unfounded, arguing that Order VI Rule 15(2) of the

CPC is inapplicable to affidavits and secondly, the offensive paragraphs have

not been pointed out. It was the applicant's further argument that since all

the facts deponed in the affidavit are from his own knowledge, he had no

reason to disclose the other source of such facts. He cited the case of Salima

Vuai Foum vs Registrar of Cooperative Societies & 3 Others, (1995)

TLR 75 on this contention. Basing on these arguments, the applicant prayed

the court to dismiss all the three points of preliminary objection for want of

merit, with costs.

Rejoining, the respondent reiterated her submission in chief and urged

the court to sustain her preliminary objection with costs.

The above rival submissions set up one main issue for determination,

which is; whether the preliminary objection raised by the respondent has

merits. There are also specific questions to be determined under each limb

of the objection.

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 The first point of the preliminary objection that challenges the

jurisdiction of the court is the court's first concern. The specific question is;

does the court lack jurisdiction to entertain the application for contravening

section 17(2) of Cap 310? The answer is to be found in the very provision of

the law as well as in the arguments put forth by the parties. Section 17(2)

of Cap 310 provides;

"17(2) In any case where the High Court would but for
subsection (1) have had jurisdiction to order the issue of
a writ of mandamus requiring any act to be done or a writ
of prohibition prohibiting any proceedings or matter, or a
writ of certiorari removing any proceedings or matter into
the High Court for any purpose, the Court may make an
order requiring the act to be done or prohibiting or
removing the proceedings or matter, as the case may be."

Basically, the cited section is an enabling provision empowering this

court to exercise jurisdiction when orders of mandamus, certiorari and

prohibition are being sought. The respondent contends that the application

before the court contravenes this provision of the law but doesn't show how.

Primarily, all the respondent has done is to argue that the applicant has not

appealed to the National Congress of the respondent against the decision to

suspend him from the position of National Chairperson. The respondent's

submission on the first limb of her objection does not show what is
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mandatory about section 17(2) of Cap 310, and how the section is

contravened. At the very bottom line the submission does not state clearly

how the court lacks jurisdiction to entertain the application.

As to whether the court's jurisdiction, I agree with the submission by

the counsel for the applicant that section 7(2) of Cap 310 confers such a

jurisdiction to this court. And once jurisdiction is conferred by statute, the

same cannot be ousted except by statute and in explicit terms. (See the

holding of the Court of Appeal in Scova Engineering S. p. A and Another

vs Mtibwa Sugar Estates Limited and Others, Civil Appeal No. 133 of

2017, CAT, Dar es salaam).

From the filed submissions, the respondent appears to argue that the

applicant had not exhausted the local remedies available within the

respondent's constitution. This is the line of argument the respondent has

submitted on the first objection. However, the respondent notified this court

and the opposite party that she shall move this court on the contravention

of section 17(2) of Cap 310 and court's lack of jurisdiction as the first limb

of her objection. Apparently, the respondent didn't focus on this point. What

we have in the notice has not been argued and what has been argued is not

constituted in the notice of preliminary objection raised. The court will be

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making up a tall tale if it were to say that the first objection has been

successfully argued by the respondent. The fact is that it has not.

For the above reason, the first limb of the preliminary objection falls

short of merit and the same is overruled.

Turning to the second point of objection where the chamber summons

is faulted for contravening section 19(1) of Cap 310 and rule 8 the 2014

Rules, it is irrefutable that the cited rule 8 creates form B, which provides a

format for an application for prerogative orders. Equally so is the fact that

the sequence of prerogative orders which the applicant seeks from this court

as per his chamber summons do differ with what obtains in form B. To

appreciate what the respondent impugns in this limb of her objection, I find

it calling to reproduce that part of the chamber summons. It reads:

"IN THE MA TTER OF AN APPLICA TION FOR ORDERS OF

CERTIORARI, MANDAMUS AND PROHIBITION BY JAMES
FRANCIS MBATIA"

In contrast to the above, the format in form B reads;

"In the Matter of an application for orders(s) of

mandam us/prohibition/certiorari
In the matter of........................ "

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 It is obvious that the two excerpts above differ in the arrangement of

the reliefs as submitted by the respondent. I also agree with the respondent

that the provision of rule 8 of the 2014 Rules has set a mandatory

requirement that an application for judicial review be made in compliance

with form B. Now, how does the law look at this type of differences? An

appropriate guidance is readily available in the holding of the Court of Appeal

in the cases of Atlantic Electric Ltd vs Morogoro Region Cooperative

Union (1984) Ltd (1993) TLR 12 and Arcopar (O. M.) S. A vs Harbert

Marwa and Family Investments Co. Ltd and Others, Civil Application

No. 94 of 2013, CAT, Dar es Salaam.

In Atlantic Electric Ltd (supra), there was a concern that a notice of

appeal therein was written like a letter, with such words as "Dear Sir"

included. It was held that the concern should be on "the substance, the

content and not the form". This is to say that some variation of the standard

format can be tolerable provided the substance is not affected.

In the case of Arcopar (O. M.) S. A (supra), it was stated to the effect

that even where the wording of a rule is couched in mandatory terms by the

use of the word "shall", the provision concerned must be read in the context

of the whole. This is to say that the proper intention of the rule has to be

examined in context and not in isolation.

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 In this matter, the counsel for the applicant has explained the reason

for the applicant to start with the order of certiorari instead of mandamus.

That, the applicant opted to change the formatted sequencing of reliefs so

as to suit the nature and circumstances of his application. As he did, I also

find nothing legally wrong applying the form B mutatis mutandis. The

applicant has indeed changed the formatted sequencing of the reliefs but

not the substance of form B. For argument's sake, it cannot be said that

since Form B is mandatory, one must adopt it as it is, with its font size and

punctuation marks, or even typographical mistakes, if there were any. That

kind of interpretation cannot stand as it will obviously lead to absurdity.

For the above reasons, therefore, the second point of objection is also

overruled for lack of merit.

Finally, on the third point of objection, the respondent contends that

the mandatory provision of order VI rule 15(2) of the CPC has been

contravened. Order VI rule 15(2) of the CPC states:

"15(2) The person verifying shall specify, by reference to

the numbered paragraphs of the pleading, what he
verifies of his own knowledge and what he verified upon
information received and believed to be true."

[Emphasis added]
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 In the first place I agree with the counsel for the applicant that the

cited provision is not applicable in this matter where the respondent is

attacking the affidavit of the applicant. The word "pleading", as defined

under sub-rule 1 of rule 15 of order VI of CPC, does not include affidavits. It

reads:

"15(1) Pleading means a plaint or a written statement of

defence (including a written statement of defence filed by
a third party) and such other subsequent pleadings as
may be presented in accordance with rule 13 of Order
VIII."

As rightly submitted by the counsel for the applicant, affidavits are

governed by order XIX of the CPC, and for this point of objection it is rule

3(1) of order XIX which is relevant, where it provides;

3.-(l) Affidavits shall be confined to such facts as the

deponent is able of his own knowledge to prove, except
on interlocutory applications on which statements of his
belief may be admitted: Provided that, the grounds
thereof are stated.

Once an affidavit is found not to disclose the source of deponent's

information or belief, such affidavit will be defective. The applicant herein is

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not precluded from the requirement of disclosing the source of information

deponed in his affidavit as required by rule 3(1) of order XIX quoted above.

In the case of Jamal S. Mkumba and Another vs Attorney

General, Civil Application No. 240/01 of 2019, CAT, Dar es Salaam, the

Court of Appeal had the following to say on verification clause;

'"Basing on the above cited cases, verification clause is one

of the essentia/ ingredients of any valid affidavit which
must show the facts the deponent asserts to be true of
his own knowledge and those based on information or
beliefs."

The verification clause in the applicant's affidavit reads as follows;

"4 JAMES FRANCIS MBA TIA, being the applicant above

named do hereby verify that all stated in paragraphs 1, 2,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 are true to the
best of my own knowledge and belief."

Basing on the foregoing, and after perusal of the entire affidavit

supporting the application, it is clear to my mind that the verification clause

does not state which paragraphs are of the applicant's own knowledge and

which are of his beliefs and is the basis of such belief. The counsel for the

applicant attempted to impress on the court that there was nothing wrong

in not stating the source of the applicant's belief because all what was stated

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by the applicant was of his own knowledge. Respectfully, I don't sail with

him in the same boat. If all the facts deponed by the applicant are of his

own knowledge, the word "belief" wouldn't be installed in the verification

clause.

In Anatol Peter Rwebangira vs the Principal Secretary Ministry

of Defence and National Service and Another, Civil Application No.

548/04 of 2018, CAT, Bukoba, the Court of Appeal stated;

7/7 the present application, according to the

applicant's verification clause which we have

earlier on reproduced, it is not possible to decipher

the facts which are true based on the applicant's

knowledge and those based on his belief... We say

so because one that is against the rule governing the

modus of verification clause in an affidavit; and two,
without the specification, neither the Court nor the
respondents can safely gauge as to which of the deponed
facts are based on the applicant's own knowledge and
what are based on his belief. ’

Similarly, in the matter at hand, it is impossible for the court to gauge

which of the deponed facts are based on the applicant's own knowledge and

what facts are based on belief, and what is the source of that belief.

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Therefore, without hesitancy, I find the applicant's affidavit defective for

having a defective verification.

Having found as above, the guidance as to what should be the remedy

is available in the case of Jamal S. Mkumba(supra) where the Court of

Appeal when faced with similar situation accorded the applicant therein a

chance to insert a proper verification clause according to law for the matter

to be heard on merit, in the interest of substantive justice. In its own words,

the Court of Appeal had the following to say;

"On account of the facts presented to us and for the

interest of justice, we think this is one of those cases
which demands for substantive justice in its
determination. But further to that, we are satisfied that
the respondent will not be prejudiced by an order

of amendment of the affidavit so as to accord a

chance to the applicant to insert a proper

verification clause according to law and parties be

heard on merit."

For the same reason of pursuing substantive justice, I find it

reasonable to allow the applicant amend the affidavit by inserting a proper

verification clause according to law so as to enable the application to be

heard on merit. While taking this course, I am alive to the fact that it was a

practice in our judicial system to struck out an affidavit which is held

15
defective, as it was done by the Court of Appeal, for instance, in Anatol

Peter Rwebangira (supra).

While it would appear that there are conflicting decisions of the Court

of Appeal as to the remedy for a defective affidavit, two principles are there

to guide this court. Firstly, each case has to be decided according to its own

set of facts and obtaining circumstances. And, secondly, where there are

conflicting decisions of the Court of Appeal on the same matter, the court

should follow a more recent decision. With regard to the latter principle, the

Court of Appeal stated in Arcopar (O. M.) S. A (supra) thus;

"Following the most recent decision, in our view, makes a

lot of legal common sense, because it makes the law
predictable and certain and the principle is timeless in the
sense that, if, for instance, a full Bench departs from its
previous recent decision that decision would prevail as the
most recent."

In applying this principle, the decision in the case of Jamal S.

Mkumba (supra) is more recent than the decision in Anatol Peter

Rwebangira (supra). And, in the circumstances of the matter at hand,

which certainly attracts public attention, I find it imperative to conform to

the remedy applied by the Court of Appeal in Jamal S. Mkumba's case.

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 Accordingly, the third point of objection succeedes in a manner stated

above save that the application shall not be struck out as this court was

urged to do by the respondent, instead the applicant shall be allowed to

amend the verification clause of his affidavit in conformity to the law.

In the upshot and for the reasons I have explained above, the first and

the second point of objection are overruled, whereas the third point of

objection is sustained in the manner stated above.

In the result, the applicant is given fourteen (14) days from the date

of this ruling to file an amended affidavit with a proper verification clause

and thereafter the matter shall proceed to hearing on merit. No order as to

costs.

Dated at Dodoma this 27th day of June, 2023.

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