IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM SUB-REGISTRY)

AT PAR ES SALAAM
MISCELLANEOUS CIVIL CAUSE NO. 19721 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORI

AND PROHIBITION

AND

IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS

PROVISIONS) ACT [CAP 310 R.E. 2019]

AND

IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS

PROVISIONS) (JUDICIAL REVIEW PROCEDURE AND RULES), GN NO. 324 OF 2014

AND

IN THE MATTER OF SHERIA YA TUME HURU YA UCHAGUZI, 2024

AND

IN THE MATTER OF ELECTIONS OF THE LOCAL GOVERNMENT ELECTIONS IN TANZANIA,

2024

BETWEEN

BOB CHACHA WANGWE.................................................................................................. 1st APPLICANT

BUBELWA KAIZA............................................................................................................... 2"“ APPLICANT

DR. ANANILEA NKYA....................................................................................................... 3*° APPLICANT

VERSUS

THE MINISTER, PRESIDENT S OFFICE REGIONAL ADMINISTRATION

AND LOCAL GOVERNMENT.........................................................................................1st RESPONDENT

THE ATTORNEY GENERAL

OF THE UNITED REPUBLIC OF TANZANIA.......................................................... 2nd RESPONDENT

RULING
2“ & 9tr Sept. 2024

DYANSOBERA, J.:

In this application, the three applicants are seeking leave to apply for prerogative
orders of certiorari and prohibition against the two respondents herein so as to
 2
question the legality and mandate of the lstrespondenl in respect of the
pomulgation of three subsidiary legislations vide Government Notices Numbers
571,572, 573 and 574 all of 12/7/2024 relating to supervising, coordinating and
conducting the Local Government Elections in Tanzania for the year, 2024. The
application, as usual, is supported by the applicants' Statement and Verifying Affidavit.
The respondents have resisted the application by filing their joint counter
affidavit, Reply to the Statement along with a notice of four preliminary objections.
According to the notice filed on 28n August, 2024, the grounds upon which the
preliminary objections are anchored are the following:
1. That, the application is unmaintainable in law as the applicants have
alternative remedy under the Basic Rights and Duties Enforcement Act
and the Constitution of the United Republic of Tanzania of 1977 as
amended from time to time.
2. That, the application is incompetent for being supported with incurable
defective affidavit containing legal arguments, conclusions and opinion;
3. That, the affidavit in support of the application is defective for containing
new facts in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13,15, 16 and 17 which
are not in the statement contrary to rule 5 (2) (a) (b), (c) and (d) of the
Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial
Review Procedure and Rules), G.N. No. 324 of 2014;
4. That, the application is in competent for having been supported by
affidavit which does not verify applicants' Statement
In this ruling, 1 will determine the respondents' four preliminary objections first
and, if need be, embark on the determination of the application for leave. This is
particularly so because the court adopted a two-pronged approach whereby both the
preliminary objections and the leave application were heard simultaneously.
 3
At the time of hearing of both the preliminary objections and the leave
application, the parties' representation was as follows. For the respondents, Messrs.
Mark Mulwambo, Selemani Mtibora and Hang'i Changa (learned Principal State
Attorneys), Ms. Vivian Method (learned Principal State Attorney), Messrs. Masunga
Kamihanda and Kevin Kisayo (learned Senior State Attorneys) and Messrs. Erigh
Rumisha, Ayoub Sanga, Yusuph Mapesa, Ms. Luciana Kikala, all learned State
Attorneys, appeared whereas Messrs. Mpale Kaba Mpoki and Jebra Kambole and Ms.
Maria Mushi, learned Advocates represented the applicants.
On the respondents' preliminary objections, Mr. Erigh Rumisha, learned State
Attorney, submitted in support of the first preliminary objection while the rest three
preliminary objections were canvassed by Mr. Ayubu Sanga, also learned State
Attorney.
With respect to the first preliminary objection, Mr. Erigh Rumisha submitted that
this application is not maintainable as the applicants have an alternative remedy. He
explained that the condition is that the calling into play the judicial review is the last
resort after exhausting other remedies. To buttress his argument, he relied on the
cases of Pavisa Enterprises v. The Minister for the Labour Youth
Development and Sports and Another, Misc. Civil Cause No. 65 of 2003 and
Michael David Nungu v. Institute of Finance Management. Civil Appeal No.
170 of 2020 on the authority that for the court to invoke judicial review, the applicant
must establish that there is no other alternative remedy. In this regard, it was
contended on part of the respondents that the applicants had to first file a
constitutional case in the circumstances whereby the applicants seek the court to
quash the bylaws promulgated by the Minister as there is a statutory provision
empowering the Minister to promulgate such rules. In support of this argument, two
enactments were cited namely, the Local Government (District Authorities) Act (Cap
287] and the Local Government (Urban Authorities) Act (Cap 288J.
 4
Clarifying his argument, learned State Attorney referred this court to various
legal provisions therein including Sections 16 (4), 19(3) and (4) of the Local
Government (Urban Authorities Act) which empower the Minister responsible to stand
as a regulatory authority, Section 7 (1) of the Local Government (Urban Authorities)
Act which gives mandate to the Minister to make Rules. It is rhe further contention of
the State Attorney that the Minister is on the top as the regulatory authority to
supervise the conduct of the local government election even to postpone the election
as well as to declare casual vacancies of seat members as provided by Section 4(1))
of the Local Government (District Authorities) Act. The respondents were of the view
that reading both statutes as a whole, the Minister has powers to supervise and
coordinate elections and has, therefore, a wide discretionary power given to him by
Acts of Parliament even before the advent of the new law, that is the Independent
National Electoral Commission Act, 2024.

Mr. Erigh asserted that the Parliament has mandated the Minister (I5 respondent)
to promulgate the rules. It is the respondents' view that even if the Rules arc quashed
by way of a certiorari order, not only will the parent laws be still subsisting but also,
the respondents fear, the effect might to spark conflicting decisions likely to create

chaos.

Another reason why the respondents think that the applicants' grievances can be
taken care of under the Basic Rights and Duties Enforcement Act, Section 4 in
particular read together with Articles 30 (3), 26 (1) and (2) of the Constitution of the
United Republic of Tanzania, 1977, is the applicants' pleading, that is their affidavit.
According to Mr. Erigh, the applicants seem to be defending their constitutional rights
on usurpation of powers of the newly enacted law and the denial of their rights to
vote. It was stated on part of the respondents that the applicants' argument that the
exclusivity of the Independent National Electoral Commission Act is going to be
 5
usurped and the Constitution is going to be violated implies that the matter should
not be a judicial review one, rather, it should be a constitutional case. Fortifying this
argument, learned State Attorney made references to various paragraphs of the

applicants' joint affidavit.

It was concluded In light of the foregoing submission, that the applicants have
still an alternative remedy to file a constitutional case to challenge those Principal Acts
rather than challenging the promulgation of the Government Notices and the decision
of the Minister leaving the Parent Acts intact.

On the consequences of failure to exhaust alternative remedy, the court was

persuaded to dismiss the application.

As hinted before, the second, third and fourth preliminary objections were
canvassed by Mr. Ayubu Sanga. In tackling these last three preliminary objections,
learned State Attorney argued the second preliminary objection separately and the
third and fourth preliminary objections jointly. The anchor of his argument is that the
applicants' verifying affidavit not only offends the provisions of Order XIX rule 3(1) of
the Civil Procedure Code [Cap. 33 R.E.2019] (’’the Code") and rule 5 (2) of the Law
Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and
Fees) Rules, 2014 ("the Rules") but also the applicants' affidavit contains new facts
which are not in the statement and the same affidavit falls short of verifying the

applicants' Statement.

With respect to the second preliminary objection, it was submitted that Rule 5(4)
of the Rules gives the general procedure of making the application for leave for judicial
review while sub-rule (2) is clear on the statement, affidavit as well as the chamber
summons. According to him, the rule gives two interpretations which is the basis of
the law.
 6
In so far as the first interpretation which is the gist of the second preliminary
objection is concerned, it was argued on part of the respondents that an affidavit
must comply with Order XIX Rule 3 (1) of the Code. In elaboration, Mr. Sanga
contended that not all facts must be contained in an affidavit but only those matters
specified under O. XIX, rule 3(1) of the Code. To fortify the argument, reliance was
placed on the case of Jacqueline Ntuyabhaliwe Mengi and 2 Others v. Abdiel
Reginald Mengi, Civil Application No. 332/01 of 2021, at pages 11,12,13,22,23 and
24 on what an affidavit should be confined to, the meaning of extraneous matters
and what objection, prayer or legal arguments are. It was further submitted that the
consequences of an affidavit containing extraneous matters is shown at pages 23 and
24 of the judgment in the above cited case which Is to expunge the offending
paragraphs or striking out of the whole application.

Learned State Attorney also reproduced rhe paragraphs complained of which

state:

7. That, the 1st respondent, being a political leader in charge of the Ministry
responsible for Regional Administration and Local Government and a
member of a ruling party, is conflicted in the whole process of
supervising, coordinating and conducting the Local Government
Elections.
9. That, the Local Government Election is about to be conducted contrary
to the new law, which became effective on the 12th April, 2024 upon
being assented to by the President and gazetted.
10. That the 1st respondent has no mandate to conduct, coordinate or
supervise these government elections. This attempt is an apparent
usurpation of powers and thus illegal and unconstitutional.
 7
11. That, the new law empowers the Independent National
Electoral Commission to coordinate and supervise the Local Government
and Village Government election conducted by the First Respondent.
12. That, despite the change of the law and the previous prejudices
experienced, the government intends to have the 2024 local government

election conducted by the 1“ Respondent.

15. That, allowing the 1st respondent to conduct, supervise, or
coordinate the local government election undermines the credibility of
the electoral process and defeats the purpose of mandating the
Independent National Electoral Commission to manage and conduct the
local government elections.
18. That, the intended plans to have the election conducted Dy the 1st
respondent retracts the principles of democracy, which require state
authorities to abide by the principles of democracy. One of the basic
pillars of democracy is having elections conducted by an independent
electoral machinery, thus the Independent National Electoral Commission
in our context, free from any bias, favouritism, and injustices of all forms
in the electoral processes.
19. That, given the facts and trends demonstrated and pleaded here, if
the I51 respondent is allowed to conduct or manage the local government
elections, the applicants will suffer irreparably as no credible election will
bo conducted. As responsible citizens, they will have no redress
thereafter.

The learned State Attorney elaborated that, on paragraph 7 the applicants give
their personal opinions and conclusions, paragraph 10 contains "words such as
''illegal'' which is a conclusion instead of facts, paragraph 12 contains opinions of the
 8
applicants while undei paragraph 17 the words "overt abrogation" are conclusion
and opinions.

He further made reference to the case of Halima James Mdee & 18 others
v. The Board of Trustees of Chama cha Demokrasia na Maendeleo, Misc. Gvil
Cause No. 16 of 2023, pages 14, 15 to 16, in particular.

In his view, the mentioned paragraphs having offended the provisions of 0. XIX
rule 3 (1) of the Civil Procedure Code and the principles staled by the Court of Appeal,
they should be expunged and that if they are expunged then the application will
remain unsupported hence liable to be struck out.

Arguing the third and fourth preliminary objections jointly, the learned State
Attorney submitted that the said objections relate to the second interpretation and
touches the import of Rule 5(2)(a)(b) and (c) of the Rules. It is his contention that
under Rules 5(2)(d) there has to be attached an affidavit which is verifying affidavit.
He argues that the essence of having a verifying affidavit in such a case is to change
facts into evidence. According to him, whatever is on the affidavit (facts) must come
from the Statement in the court, in that, the facts relied on are found on the
Statement.

In his attempt to impress the court that the jurisprudence of judicial review is not
like a normal case, learned State Attorney stated that the facts change into evidence
so as to support the prayers in the chamber summons. If the facts arc in the
Statement but not verified in the affidavit and vice versa, learned State Attorney
stressed, the court cannot act on them. He relied on the case of Cheavo Juma
Mshana vs. Board of Trustee of Tanzania National Parks and Two Others,
Misc. Civil Cause No. 7 of 2020 making reference to paragraphs 2,3 and 4 together
with the already mentioned paragraphs that is up to paragraph 17. He contended that
 9
those paragraphs do not feature in the statement before the court especially at
paragraph 6 of the applicants’ Statement. This court was also referred to the English
case of Re-Hirji Transport Services [ 19611 All ER 88.

On the applicants' verifying affidavit, learned State Attorney contended that the
averments in the affidavit are not contained in the applicants' Statement. He made
comparison of the averments in the affidavit and the contents of the Statement and
implied that reference to paragraph 4 are not contained in the Statement. It was
complained for the respondents that most of the contents in the Statement were not
verified by the averments in the affidavit. This court was referred to the cases of
Quality Inspection Services Inc. Japan v. Public Procurement Appeals
Authority, Misc. Cause No. 45 Of 2020, and M/s Dezo Civil Contractors Co. Ltd
and another v. PPA and 3others, Misc. Cause No. 48 of 2023 as authorities on the
importance and the role of the affidavit.

On whether the defects can be cured by the applicants' rejoinder statement

and rejoinder affidavit, the learned State Attorney's view wa s that it is not possible to
cure that defect. To fortify this argument, reliance was placed on the decision of the
Court of Appeal in the case of Mary John Michael v. Sylvester Magembe Cheo
and Others, Civil Application No. 161 of 2008 on barring the other party to pre­
empty the preliminary objection interpreting that action as an admission of the
preliminary objection.

In this respect, it was contended that the paragraphs 2 to 17 should be

expunged as they are violative of the law; which expunging will lead the application
to have no leg to stand on. The court was urged to strike out the application.
 10
Opposing the respondents' preliminary objections, Mr. Mpale Kaba
Mpoki undertook to respond lo the first and 2nd preliminary objections generally while
Mr. Kambole responded specifically the second, third and fourth preliminari-
objections.

With regard to the leave application, Mr. Jebra K.amboie first submitted and Mr.
Mpoki took over.

Submitting on the respondents' preliminary objections, Mr. Mpoki, citing the

case of Mukisa Biscuit Manufacturing Company Ltd v. Wend End Distributors
Ltd and another, [1969] EA, 696, reviewed the meaning of the preliminary objection
and what it entails. According to him, the preliminary objection has two components.
One, is a point of law in that the respondents must complain that a certain provision
has been violated or flouted. Two, the preliminary objection must be specific. To
reinforce the argument, learned Advocate placed reliance on the case of James
Burchard Rugemalila v. Harbinder Seth Singh, Criminal Application No. 59/10
of 2017 officially cited as Burchard James Rugemalira v, R, Criminal Application
No. 59 of 2017 [2018] TZCA 386 (10* April, 2018) on the authority' that the notice of
a preliminary objection must be specific and go straight to a point of law. In that
regard, it was argued that the respondents’ notice dated the 28:n August, 2024 does
not satisfy the requirements started by the Court of Appeal.

In response to the first preliminary objection on the exhaustion of alternabve

remedy, Mr. Mpoki sought to impress the court that the phrase alternative remedy
connotes "mbadala" meaning that it is a choice between two things and that this
explains why the respondents have failed to state which law bars the applicants
from filing this application. Counsel further argued that the second preliminary
objection suggests that the affidavit, presumably, violates O. XIX rule 3(1) of the
Cede. On the third and fourth preliminary objections, which seem to suggest that
 11
the provision of rule 5(2)(d) of the Rules was violated counsel was quick to point
out that there is no legal provision which supports the proposition taken by the
respondents. Counsel submitted that the applicants have chosen to pursue their
rights by way of judicial review and explained how judicial review came into being
in our judicial system and pointed out that Rules were not intended to defeat
substantial justice pressing that both the law, that is Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act and the Rules are silent on alternative remedy.
Counsel was under the impression that inasmuch there is no law providing for
specific remedy while instituting the application like the present then, obviously,
the respondents' argument that the applicants have failed to exhaust alternative
remedy is misconceived.

In his endeavour to distinguish the application of the Basic Rights and Duties
Enforcement Act and the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act, Mr. Mpoki maintained that in the current application the applicants
are seeking court's leave to apply for certiorari and prohibition whereby they are
questioning the respondent's legality of supervising, coordinating and
conducting local government elections particularly the Is’ respondent's powers to
promulgate the impugned Government Notices, the rights provided for under the
latter Act while the former Act deals with violations of Articles 12 to 29 of the
Constitution of the United Republic, 1977 as amended. Calling in aid to Section 4
of the Basic Rights and Duties Enforcement Act, Counsel pointed out that the
applicants are not asserting the violation of Articles 12 to 29 of the Constitution,
whereby this Court is empowered to exercise its power and original jurisdiction
under Section 8 of the said Act. According to him, sub-section (4) of Section 8 of
the Act is clear on the disapplicalion of Part VII of the Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act. In that regard, counsel for the applicants placed
 12
reliance on rhe decision of this court in Meczedeck Maganya v. Minister of
State, President's Office, Regional Administration and Local Government
and 4 others, Misc. Civil Cause No. 10 of 2023 in which it was stated that if there
are prayers for prerogative writs recourse is to the Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act but that if Articles 12 to 29 of the Constitution
arc alleged to be breached then the BRADEA applies.

With regard to cited cases of Pavisa and Nungu, Mr. Mpoki sought to have
them distinguished. On Pavisa case, Mr. Mpoki contended that the same had no
ratio decidendi or orbiter dicta which this court should follow in the circumstances
of the case. He stated rhat it was a quotation from an Indian Book for which the
procedure in India is not similar to ours.

Regarding Nungu case, counsel stated that it was in respect of a situation in

which a person asked judicial review where there was a right of appeal given by
that Act and that is why the Court of Appeal stated that there was an alternative
avenue to appeal, a situation which is quite different from the present case where

there is no alternative remedy provided by the law.

Counsel for the applicants implored the court when considering this first
preliminary objection, to take into account the preambles to both the BRADEA
which is on the procedure for enforcement of Constitutional basic rights and related
matters while the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act
is an Act to effect miscellaneous reforms in the law relating to civil actions and for
related matters; the two enactments covering two different realms.

Making reference to section 25 (1) of the Interpretation of Laws Act [Cap. I

R.E.2019] which provides that the preamble to a written law forms part of
the written law and shall be construed as a part thereof intended to assist in
 13
explaining its purport and object, learned counsel maintained that the applicants
have not pleaded that the constitutional rights have been violated that they want
to enforce them and, therefore, there Is no way they can resort to BRA DEA for
prerogative orders.

He urged the court to dismiss the respondents' first preliminary objection on

account that it lacks any merit.

With regard to the second preliminary objection, Mr. Mpoki referring this court
to O. XIX rule 3(1) of Code, strenuously contended that there is no where it is stated
that conclusions, prayers or legal arguments are barred. According to him, the test
here under O.XIX rule 3(1) of Code is whether the deponent can prove it. On what
facts are, counsel called in aid to Black's Law Dictionary 8th, Second Print 2007,
whereby at p.628, a fact is defined as something that actually exist, an aspect of
reality and ....". He said that facts include a state of mind such as intentions and
opinions. He stated that if the deponent can prove his opinion, that is a fact.

As to the case of Ex-parte Matovu, counsel for the applicants expressed his
dismay that the case is not read as a whole. He pointed out that at p. 520 there is a
definition which is not always considered. He clarified that the case is clear that the
affidavit must not contain extraneous matters that is matters outside or not related
to matters in court.

It was the contention of Mr. Mpoki that looking at the applicants’ affidavit vis a
vis, the case of Jacqueline, it is clear that the facts in this case are not extraneous
matters by way of objection, prayer, legal arguments or conclusions. He was of the
view that the impugned paragraphs are not extraneous matters but matters which
are directly related to the matters in question. He argued that in the cited case, there
 14
were no facts but sentiments but that in the case under consideration, the
statement that the Minister has promulgated those Government Notices, is a fact.

It was further submitted on part of the applicants that the respondents

managed to mention and clarify five paragraphs which all do not contain extraneous
matters as the applicants are able to prove all of them. Mr. Mpoki was not in
agreement that if they arc expunged, the application would be rendered invalid.

On his part, Mr. Jebra Kambole undertook to be brief and focused in his
submission. With regard to the Impugned paragraphs, that is 7,9,10,11,12,15,17,18
and 19, he submitted that during the expounding those paragraphs, the respondents
did not state what defects paragraphs 9,11, 18 and 19 contain. He was of the view
that the said paragraphs are correct and have no any defect and urged the court to

so find.

He further discountenanced that any of the paragraphs in the applicants' affidavit

contains extraneous matters and responded to the impugned paragraphs pointing out
that if any, that issue will be taken aboard at a substantive hearing, in case leave is
granted. Mr. Kambole warned that the applicants' affidavit must be read as a whole
making assurance that the impugned affidavit is legal and has to be interpreted
according to its contents. He contended that in view of the fact that there is no law
governing the affidavit, the court should be guided by Rule 5(2) of the Rules of which
requirements, the applicants have complied with.

Regarding the third preliminary objection that the applicants' affidavit contains
new facts, counsel contended that the respondents have not specified which new
facts are contained therein; otherwise, the contents are in compliance with what the
law dictates, rule 5(2) (c)(d), in particular. Counsel for the applicants was of the view
that the law does not require the averments in the affidavit to verify the contents in
 15
the Statement insisting that the facts relied on by the applicants have been
verified by their joint affidavit. He sought to impress the court that the provision of
Rule 5(2) (d) docs not provide for lite repetition of the same facts in the affidavit to
be reflected in the statement.

Counsel further submitted that the Statement is not evidence and that is why
the affidavit must contain the truth. He maintained that the affidavit verifies the facts
as required by law. The court was urged to find the respondents' third preliminary
objection lacking In merit on account that the law has been wrongly interpreted.

On the fourth preliminary objection, counsel was of the view that it is vague,
unclear and with no legal backing. According to him, it docs not qualify as a
preliminary objection and that the argument that the affidavit docs not verify the
statement is the respondents' own making.

On the cited case, Mr. Kambole urged the court to look at it with the third eye
before being entrapped. He argued that the Cheave Juma Mshana case talks about
the prima facie case which has nothing to do with the affidavit and also this court is
not bound by it. The same applies to Quality Inspection and Dezo as well as other
cases which are also the High Court decisions as they are not binding on this Court.
Counsel implored the court to make interpretation according to the context of the
case. Insisting on the import of rule 5(2) (c) of the Rules, counsel for the applicants
was of the view that the word "and" should be taken to mean that the affidavit is not
related to the Statement and maintained that wording used is "affidavit verifying the
facts relied on" and not verifying the statement.

Mr. Kambole beseeched the court to find the preliminary objections meritless
and allow the application for leave to be heard.
 16
On the application for leave. In support of the application, Mr. Mpoki, re
iterating the prayers in the chamber summons, adopted the applicants' joint affidavit,
the statement, the rejoinder to the reply and the reply to the counter affidavit to form
part of their submissions.

It was his contention that what the court is supposed to do at this stage was
well explained by the Court of Appeal in Emma Bayo v. The Minister for Labour
and Youths Development, Civil Appeal No. 79 of 2012 specifically at p.8, last
paragraph which is on conditions Hie applicants are to satisfy. Counsel mentioned
them to be that the application for leave has made out any arguable case to justify
the filing of main application, whether the application has been made within six
months after the date of proceedings, act or omission to which the application for
leave relates and whether the applicants have shown to have sufficient interest to be
allowed to bring the main application.

On the condition of time limitation, counsel argued that it should not take time
of this court and maintained that the application were filed within the prescribed time
after the impugned Government Notices were published on 12th July, 2024.

In relation to the arguable case, counsel for the applicants contended that for the
court to determine this aspect, it has to look at the applicant's pleadings, that is the
chamber summons, affidavit and the Statement with assumption that if that condition
is proved, it can warrant the court to grant the prerogative orders being sought. To
support this stance, Mr. Mpoki relied on the cases of Legal and Human Rights
Centre v. Minister for Finance and Planning & Others, Misc. Cause No. 11 of
2021 (HC) aL p.5 and Ndalamia Partareto Taiwap & 4 Others v. The Minister
of Natural Resource and Tourism and Another, Misc. Civil Cause No. 9 of 2022
at pp. 8&9. He pointed out that, according to the pleadings, there are allegations and
counter allegations on some important facts. For instance, while the applicants allege
 17
that the power of the 1st respondent was exercised in contravention of the law, the
respondents are of the different view. Likewise, the applicants allege that the power
was unreasonable but the respondents dispute this fact. Furthermore, the applicants
allege that the exercise of the respondents' powers was biased and conflicted, the
respondents hold a different view. The other allegations by the applicants which are
vehemently disputed by the respondents are the applicants' claim that the 1st
respondent did not observe the rules of natural justice, the respondent committed an
illegality of power usurpation as the power was excessively vested in the Independent
Election Commission and not the Minister but the respondents would not agree and
argue that there are valid enactments which empower the Minister to be promulgate
such government notices. This clash of facts, Mr. Mpoki stressed, indicates the
presence of an arguable case. He beseeched the court to open the door to the
applicants so that these arguments can be well addressed during the substantive
hearing and reiterated the warning by the Court of Appeal in Emma Bayo of delving
into substantive arguments in an application for leave which arguments have to wait
at the hearing of Che main application.

With regard to the third condition on sufficient interest, it was submitted for the
applicants that they have sufficient interest as shown under the first paragraph of the
Statement and paragraphs 2,3,4 and L4 of the joint affidavits. According to learned

counsel, the applicants are citizens of the United Republic of Tanzania, have age of
majority to participate in the Local Government Elections, time for registration to vote
is not ripe and when the time becomes due the applicants will get registered. Counsel
further contended that the applicants have attached their Voters' Registration Cards.

Placing reliance on Misc. Civil No. 61 of 2022 between Tanzania Women

Lawyers v. Minister of Constitution and Legal Affairs, & Another at p.ll third
paragraph, Mr. Mpoki contended that it would be improper if a spirited individual was
 IK
prevented by outdated technical rules ot locus standi from bringing the matter to
the attention of the court to vindicate the rule of and get the unlawful action stopped.
He argued that it would be absurd to think that no Tanzanian can bring this matter
in court and insisted that the applicants need to be encouraged by proper
interpretation of the law and not to be discouraged by narrow interpretation of the
law on the question of locus standi. He urged the court to open the door to the
applicants on account that all the conditions for the grant of leave have been met.

In the submission for the applicants in support of the leave application, Mr. Mpoki
went a step further ahead. He submitted that if leave wiil be granted, the court should
be pleased to stop the carrying out (utekelezaji) of the impugned Government
Notices. His submission was anchored under the provision of sub-rule (6) of rule 5 of
the Rules. Mr. Mpoki clarified that on 15.8.2024, the Is* respondent issued a Tangazo
la Uchaguzi wa Serikali za Mitaa wa Mwaka 2024 (Ann. G) showing the process of the
election which started on 15.8.2024 and is to come on end November, 2024. It is his

argument that by now, the process is already underway. He markedly argued that
election is process and if allowed to proceed, an injustice is likely to be caused to the
applicants. To bolster his argument, he relied on the cases of Kera Komeyo
Makeseni & 8 Others v. Kilimanjaro Regional Commissioner & Another, Misc
Civil Cause No. 01 of 2023 at p. 9 first paragraph, Latan'gamwaki Ndwati & 7
Others v. Attorney General, Misc. Civil Application No. 178 of 2022 and Chalinze
Cement Co. Ltd v. Fair Competition Commission, Misc. Civil Cause No. 591 of
2022 whereby at p.5 para 2, the court discussed on the conditions for interim
injunctions and Hon. Kamuzora, J., ordered stay of operations of the declaration
awardable. The other cited case is Chalinze Cement Co. Ltd v. Fair Competition
Commission, Misc. Civil Cause No. 591 of 2022 at p.5 para 2, in which the court
discussed on the conditions for interim injunctions.
 19
It was the further submitted by Mr. Mpoki that this court has discretion to stay
the process as there is an arguable case and this is not a novel terrain. He contended
that in using discretion, the court should consider three matters; arguable case,
balance of convenience that in case this stay is not granted the applicants are likely
to suffer. There is also general public behind the three applicants and, lastly, is the
importance of upholding the law. He further submitted that there is a doctrine of
implied repeal whereby the respective authority in the process of enacting die law, Is

aware of the old law.

Concluding his submission, Counsel reiterated the applicants' prayer for the
grant of leave and order the stay of the implementation of the said Government
Notices. He pressed no costs as this is a public litigation.

On their part, the respondents adopted the following approach. Mr. Erigh
Rumisha submitted on the rejoinder to the reply to the preliminary objections and, at
the same time, responded to the issue whether the applicants have established a
prime faciezw^ arguable case. Mr. Kelvin submitted on whether or not the applicants
have sufficient interest in the matter while Mr Ayubu Sanga canvassed the interim
order and Mark Mulwambo gave summation.

Responding to the appellants' argument that the case is not fit for BRADEA as
it is not a constitutional case, Mr. Erigh Rumisha submitted that the legal position is
that parties are bound by own pleading as the pleadings are their vehicle. Making
reference to paragraphs 6.1.a & 5.2 of the applicants' Statement, learned State
Attorney contended that the pleadings show that the applicants are defending their
basic rights found under Articles 12 to 29 of the Constitution and that the matter can
be challenged under Article 108(2) of the Constitution. He discountenanced the
applicants' argument that the alternative remedy has not been provided by the law.
 20
According to him, under the precedents and case laws, it is the
conditional precedent for exhausting alternative remedies before resorting to judicial
review. To him, in the presence of judicial pronouncements, common law cannot
come into play.

On the Nungu case, Mr. Erigh argued that the case is clear at paragraph 14 that
a special forum has to be exhausted first. He was emphatic that even if the order of
certiorari \s issued against the by- laws, still the Principal Act will be there.

On judicial review vis- a vis constitutional petition, Mr. Erigh submitted that the
respondents' stand is that if there is a parent Act giving mandate to the Minister to
promulgate those Government Notices, the quashing the Government Notices will not
assist the applicants as the Parent Act will still be valid.

With respect to the case of Rugemalila, learned State Attorney submitted that
the court in that case was interpreting rule 107 of the Court of Appeal Rules, 2009 as
amended where, normally, a party is asked if he is ready to proceed; which is not the
case in this matter as the applicants had notice and readily conceded to proceed.

On the basis of the preliminary objection, the learned State Attorney was of the
view that in the present case there is a law that bars the applicants to resort to judicial
review before exhausting the remedy under BRADEA.

Rejoining to the second preliminary objection, Mr. Ayubu Sanga argued that the
applicants have not contested it. He pointed out that the second preliminary objection
is a pure point of law and the Rugemalira case concerns the jurisprudence of the
Court of Appeal under Rule 107 of the Court of Appeal Rules, 2009 as amended. He
reiterated what was decided in the case of Jacqueline Mengi (supra). Agreeing on
rhe definition of facts in Black's Law Dictionary, he quickly pointed out lhat it has been
wrongly placed. He likened the approach as eating pork in the Mosque.
 21
In regard to the alleged offensive paragraphs under 7,9. 10, 11, 15,17, 18
□nd 19, Mr. Erigh asservated that they all contain legal arguments opinions and
conclusions and that the paragraphs he mentioned were only few examples and asked
rhe court to take judicial notice of other paragraphs that he did not mention. That, he
also made reference to the case of Jacqueline Mengi in which the Ex parte
Matovu case was referred to.

Mr. Erigh further contended that the interpretation of extraneous matters

assigned to by Mpoki has been misplaced in that the Jacqueline Mengi case is clear
on what extraneous matters are. Learned State Attorney castigated the approach
adopted by Mr. Jebra on comparing the paragraphs they were making reference to
with the averments in the counter affidavit.

Rejoining on the 3^ and 4m preliminary objections, learned State Attorney

informed the court that the respondents have no quarrel with the statement but their
argument is that the affidavit must verify what is stated in the statement.

On the pitfalls on the 20014 rules, it was submitted on part of the respondents
that the Rules arc not conflicting and that if the applicants think that there is a
confusion, then they have cither to follow the Rules or else file a constitutional case
to challenge them.

Learned State Attorney refuted the argument that the interpretation they
assigned to the meaning of extraneous matters was their own invention pointing out
that an affidavit In use in court is evidence; the only point of departure is what it
should contain.

He prayed that the doctrine of stare decisis should be maintained in the cited
cases.
 22
In response to the applicants' submission in support of the application;
Mr. Mulwambo adopted the counter affidavit and respondents reply to applicants'
statement to be part of his submission. According to him, the respondents are not in
dispute that this application has been timeously filed. The respondents, however,
strongly dispute the rest prerequisites.

With regard to the establishment of an arguable case, it was submitted on part

of the respondents that the applicants have no arguable case. Learned Pnncipal State
Attorney contended that the leave stage is a filter/screening stage, the essence being
prevention of busy bodies. In sustaining the argument, the case of Sunlodges (T)
Ltd v. Minister for Lands, Housing and Human Settlement Development,
Misc. Land Cause No. 6 of 2011 at p.9 on the duty of the applicants to sufficiently
establish an arguable case prima facie wrfh't scrutiny by the court at the second
stage. The other case is referred to is Alfred v. Town Director Arusha 119801
TRL 327 in which the conditions were enumerated including exhausting the available
remedy, in good faith.

On the argument that the respondents have no power to promulgate die by -

laws and rhe usurpation of the powers of the Independent National Election
Commission, it was submitted that the applicants have failed to capture that there
must be a law governing the election conferring the power to the Minister. According
to the respondents, the 2024 newly enacted Act is clear that there has to be a law. It
is argued that despite that undertaking, the said law is yet to be enacted which means
that the current laws which empower the Minister to handle the election are still there.
In the respondents’ view, the T' respondent has committed no wrong and is protected
by Article 13(b) (c) of the Constitution of th United Republic of Tanzania which
prevents punishing a person who has acted according to law.
 23
Insisting that the applicants have no any case that can go to trial, the
respondents submitted that the power of the Is respondent to supervise the local
government elections is still there. Reference was made to the two legislations, that
is Caps. 287 and 288 whereby the Minister is also empowered to act as Regulatory
Authority and promulgate the by-laws, the power learned Principal Sate Attorney
takes to be a wide discretion to the Minister as he is even empowered to suspend the
election.

On the notion of an implied repeal, the respondents argued that it is unfounded.

Reference was made to the case of Barclays Bank (T) Ltd v. Phylisiah Hussein
Incheni, Civil Appeal No. 19 of 2016 at p.14 on the legislature's knowledge of existing
law. I he respondents also, though the learned State Attorney, called in aid to the
cases of Mufindi Paper Mulls & Another v. TUICO (O.B.O ) Thomas Mashaka
and 760 others & 2others, Civil Appeal No. 81 of 2009 at P. 21, Bestcom
Company Ltd v. Jacob Mtalitinya t/a IT Farm, Civil Case No. 2012.

It was further submitted that the enforceability of the decision that is intended to
be giving is also a prerequisite to be taken into account at this stage.

As to the question of sufficiency of interest, Mr. Kelvin submitted that this is one
of the ingredients and a legal requirement under rule 4 of the Rules. On how to test
it, learned State Attorney mentions two approaches. One, is the law and two, the
facts of the case. On the latter, that is when one will determine if the applicant has
an interest. Making clarification, he argued that going by the pleadings, nowhere have
the applicants shown to have sufficient interest. He went further to argue that as far
as local government election is concerned, there is nothing in the pleadings and
submission showing that the applicants have sufficient interest. Reliance was placed
on the what is provided under rule 13 in Government Notices number 574, 573, 572
and 571 on the qualification of being registered. He argued that since the registration
 26
is yet to commence, one cannot come and claim to have an interest. In fine, it was
argued on part of the respondents that the applicants have no prerequisite legal
qualifications and that this disqualifies them to have sufficient interest in the matter.

Mr. Sanga submitted in reply to the application under rule 5 (6) of the Rules
whereby rhe applicants are praying the court to order stay of the implementation of
the by-laws. According to him, the request is anchored on the following grounds: one,
that the court has discretion to issue such and order. Two, it was submitted (not point
of pleadings) that the applicants have prima facie case and if not granted they will
suffer irreparable loss. Further, that on balance of convenience, the applicants
believe that they will suffer more than the respondents if the stay order will not be
granted.

Strongly opposing the grant of stay order, learned Stale Attorney submitted that
there is no material for the court to exercise its powers under rule 5 (6) of the Rules.
He asserted that the rule gives the discretion to grant such application but the exercise
should be judicially by taking into account the equality and benefits. He insisted that
the court has to make sure that the conditions set in Atilio v. Mbowe case are met,
that is a prima lacie case, irreparable loss and balance of convenience. He explained
that these conditions were recognised in Abdi Ali Saleher v. Asad Care Unit Ltd
& Others, Civil Revision No. 3 of 2021 [2013] TZCA 179 (30July 2013).

With respect to the prima fade case, it was contended on oart of the respondents
that the argument is a statement from the bar and not part of evidence to be acted
upon. He stressed that even the orders they are seeking is not pleaded. In judicial
review, an affidavit acts as evidence. The prayer has not been in the applicants'
affidavit A case in point Said Sultan Ngalema v. Isack Boaz & 4 Others, Civil
Application No. 362/17 of 2021 CAT 2022 at p.8 last paragraph from the 6th line.
 25
On the irreparable loss, learned State Attorney argued that this is also a
statement from the bar not sufficient facts to support the fact that if the order is not
granted, they will suffer irreparable loss. The applicants rely on Ann. B- This notice is
on election which is a process. Nothing shows the applicants will be adversely
affected. It was his argument that the election is expected to lake place on
27.11.2024 and the application can be heard before lhe election takes off. The
applicants have no irreparably loss to suffer as what is being done is education and
coordinating the election and that theirs is a speculation or presumption on the loss
only that it is the respondents who arc likely to suffer if the respondents are stopped.

On the applicants' argument that they are here also an behalf of other people,
it was contended for the respondents that this country, in the last election, had not
less the 29 million registered voters; in the coming election there will be not less than
34 mil and all the rest are going on getting the services of education and coordination.
According to the respondents, our country follows representative democracy and that
it is believed the Members of Parliament are representatives of the citizens and the
same citizens through the Parliament enacted the law empowering the Minister to do
what he is doing. If the order of slay is given lhe applicants will suffer less than the
respondents, learned Slate Attorney maintained.

This court was referred io the cases of Mwabukusi v. TLS (Misc. Civil
Application No. 165000 of 2024 TZHC 6559 f 17 July 2024] faced such a predicament
on the prayer under rule 5(6) of the Rules made by these advocates, at pp. 7,6 & 9
refused the application of stay directing rhat the application had to be placed before
the Judge hearing the application lest it overstep the boundaries.

The other cited cases are Alhaj Nurdin A. Ndolanga & Another v.
Registrar of Sports & 2 Others, Civil Application No. 54 of 2000 at pp. 8 & 9; in
which the court refused to issue a restraining order on matters involving public
interest. It was further submitted for the respondents that voting and its process
involves not only public interest but more than that. Reference was also made to
Article 5 of the Constitution of the United Republic of Tanzania.

Learned State Attorney distinguished the Chalinze Cement Co. Ltd case in
that what was in dispute was status quo. On Kera Koweyo v. Kilimanjaro case, it
was argued on part of the respondents that it was not related to a matter of public
interest. Besides at p.3, the case was removing the applicants and there were
sufficient facts while in the case under consideration, there is no evidence on
irreparable loss and no material to decide upon has been laid. The respondents arc
distinguished the Latan'gamwaki case on account that it is inapplicable to the
circumstances of this case. Learned State Attorney concluded that all the cited cases
were decided by the High Court which are not binding on me.

This court was told that die legal position is that where there are conflicting
decisions, then the recent decision is followed. This is dear in the case of Ardhi
University v. Kiundo Enterprises Tz Ltd, [Civil Appeal No. 58 of 2018 (2021)
TZCA., 545 (21 September, 2021) at p.7 last paragraph. It was argued that the cited
decisions dale back to 2022 and 2023 but the cases of Boniphace A. K. Mwabukusi
(17.7.2024) and Steven Kitale are decisions of 15.7.2024 which are recent. It was
insisted that the Court of Appeal decisions should be considered

In summation, Mr. Mulwambo prayed the following orders:

1. There is an alternative remedy and this application ought not to have brought
the way it was brought.
2. That the affidavit violates the law relating to affidavits.
3. The offending paragraphs be struck off, and make a finding that the application
has no leg to stand and should be dismissed.
 27
4. There were facts which were not supported by the affidavit.
5. The court find that there is no fit case for further determination.
6. The court should consider that the parties arc agreed that election is a

democratic matter and involves people.

The learned Principal State Attorney maintained that the applicants have the right
but the respondents part with applicants on how that right should be exercised and
further that the new law has not yet taken away from the I® respondent the mandate
to exercise those powers. The respondents insisted that the mandate to promulgate
the by-laws to conduct the election Is still in the power of the 1st respondent and that
as per section 10 of the now Act, no such law has been enacted.

On an order of stay, the respondents admit what was stated in the cited cases
but they do not support their application in this matter.

It was contended on part of the respondents that if there is a person who is

likely to suffer loss is the democracy itself at the cost of the three applicants, o end
my final submissions, we pray the court to consider that the application must be made
in good faith by looking at the timing of the bringing this application.

Replying, Mr. Kambole asserted that the fact that much time has been used to do
deliberation signifies that there is an arguable case. He pointed out that since the
respondents believe some facts which the applicants disbelieve, then the only way is
to have the matter heard substantively, that is in the main application.

0 which case the applicants want to take to the substantive hearing, Mr. Kambole
prayed the court to give them leave and the respondents will see the case the
applicants have. Counsel re-iterated the matters specified by Mr. Mpoki in the
submission in chief. On the application of the cases cited, it was contended for the
applicants that those arsenals should be kept to be used by the respondents at the
 28
main hearing stressing that the court should not indulge itself in discussing the
merits of the application as this exercise is barred by Ema Bayo.case at p. 10.

Distinguishing the case of On Alfred v. Director of Arusha from the matter under
consideration, learned counsel asserted that in the cited case the conditions were not
only on the main application and not at the leave stage but also were not stipulated
by the Court of Appeal in Ema Bayo case and maintained the applicants have no "
bad faith" in filing this application and further that it is not reflected in the counter
affidavit but a statement from the bar. According to him, whether the principle of
implied repeai exists or not is still pre- mature as it has to oe resolved in the
substantive application.

On the establishment of interest, learned counsel reiterated what the applicants

have particularised under paragraphs 2, 3, 4 and 14 ol the joint affidavit and
paragraph 1 of the Statement. With respect to rule 13 in the impugned Government
Notices, counsel pointed out that it is on qualifications of die voter and not the locus
stondi of the applicants. The applicants believe that they have sufficient interest in
the matter and contended that since the Voters' Registration Cards have all required
details, it would be absurd to require more details than what has been provided by
the applicants.

On the application of the conditions on temporary in Mbowe case, Mr. Mpoki

contended a distinction has to be made between public law and private rights and
that Rule 5(6) of the Rules which bestows discretion to a trial judge to make a stay
order and that the wording, "if the Judge so directs" means that there is no
requirement of making an application. He further contended that the Statement is
clear at paragraph 19 as well as paragraph well as para 5:3 on the stay order having
been pleaded.
 29
On the cited cases by the respondents, the applicants maintained
that the three applicants are vindicating the law which is public law and the prima
fade case, balance of convenience and sanctity of upholding the law have been

shown.

It was also contended on part ol the applicants that balance of convenience lies
more on the part of the applicants who arc vindicating their rights of voting and the
result will touch the public at large and that beneficiaries are those expecting to vote
and vie for the election. On the second point in Mr. Mulwambo's summation, it was
the contention of the learned counsel that there are two institutions mandated to
oversee the local government elections. One, under the section 10 of the new and
the other under the two legislations that is Caps.287 and 288.

On who is going to be a beneficiary, it was contended on part of the applicants

that if the leave is granted and the main application is determined in favour of the
applicants, the public at targe will be beneficiaries and that democracy, if stifled,

engenders untold consequences.

Learned counsel concluded that there is a great need for the court to remedy the
situation and the only way Is to grant leave so that the arguments are heard and the
problem resolved.

The foregoing is, in a nutshell, the submissions in support of and opposition to

the preliminary' objections and leave application.

As intimated before, 1 shall determine the four preliminary objections first and in
cases they are not sustained, I shall embark on determination of the leave application.

As far as the preliminary objections are concerned, I have considered the

arguments in support and in opposition of the preliminary objection. I have also
considered the case laws referred to me. The question I ask. myself is whether this is
 30
3 preliminary objection properly so called. My view is that it is not. The I*
preliminary objection raised by the respondents is net a proper and point of law. It is
trite that that to be sustained as a preliminary objection, the point taken must be true
and pure point of law predicated on ascertained and undisputed fact. Indeed, the
Court of Appeal in Hezron M. Nyachiya v. Tanzania Union of Industrial and
Commercial Workers and another, Civil Appeal No.79 of 2001 citing the words of
Sit Charles Newbold P. in the case uf Mukisa Biscuit Manufacturing Co. Ltd v.
West End Distributors Ltd (1969) EA 696 observed that,
"A preliminary objection is in the nature of what used to be a demurrer. It raises
a pure point of law which is argued on the assumption that all the facts pleaded by
the other side are correct. It cannot be raised if any fact has to be ascertained or if
what is sought is the exercise of judicial discretion".
In the case under consideration, apart from the fact that the exhaustion of
available remedies is not a statutory requirement under either the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Ad [Cap.310 R.E.2019J or its Rules.

Indeed, the course the applicants have taken to vindicate the law is dearly
stipulated under rule 4 of the Rules which provides: -

'A person whose interests have been or believes will be adversely affected
by any act or omission, proceeding or matter, may apply for judicial review.'

According to the respondents, the calling into play the judicial review is the last
resort after exhausting other remedies. The alternative suggested by the respondents
was to file a constitutional case under the Basic Rights and Duties Enforcement Act
[Cap. 3 R.E.2019]. The applicants argued that resorting to filing a constitutional case
was not their proper avenue as they were not challenging any Act of Parliament. I
 31
think the respondents have gone off tangent. There is no dispute that the
applicants are seeking leave to apply for judicial review of prerogative orders of
certiorari and prohibition. This is clear from their pleading that, is the chamber
summons, Joint affidavit and the statement. The applicants have therefore Invoked
the provisions stipulated under Part VII of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Act on mandamus, prohibition and certiorari. In that
respect, both the applicants and this court are strictly barred from resorting to the
Basic Rights and Duties Enforcement Act. This bar is clear from the wording of sub­
section (4) of Section 8 of the said Act which provides that:'(4) For the avoidance of
doubt, the provisions of Part VII of the Law Reform (Fatal Accidentsand Miscellaneous
Provisions) Act, which relate to the procedure for and power of the High Court to
issue prerogative orders, shall not apply for purposes of obtaining redress in respect
of matters covered by this Act’. Besides, the nature of the relief the applicants are
seeking does not suggest that the invocation of the so-called alternative remedy
would be proper. According to the Chamber Summons, the applicants are intending
to apply for prerogative orders of r^rf/^/rand prohibition and to question the legality
and mandate of the 1st respondent in respect of the promulgation of three subsidiary
legislations vide Government Notices Numbers 571, 572, 573 and 574 all of 12/7/2024
relating to supervising, coordinating and conducting the Local Government Elections
in Tanzania for the year, 2024. For what purpose is the orders of certiorari and
prohibition sought is clearly demonstrated by the applicants in their Statement. The
joint affidavit is also indicating what grievances are aimed against the respondents
and these claims have been disputed by the respondents. These issues do not
encapsulate precise true and pure points of law predicated on ascertained facts;
rather, they are facts which require substantive arguments.
 32
As observed in by the Court of Appeal in Shahida Abdul Hassanali Kasam v.
Mahed Mohamed Gulamali Kanji, Civil Appeal No. 42 of 1999 (unreported),
"The aim of a preliminary objection is to save the time of the court and
of the parties by not going into the merits of an application because there
is a point of law that will dispose of the matter summary".
Even if, for the sake of argument, the 1st preliminary objection was a pure point
of law, the position has been that the existence or availability of alternative remedy
cannot be a bar to the applicants to access this High Court by way of judicial review.
This position has been echoed in various cases. For instance, in Bin Johar General
Trading LLC v. the Commissioner General, Tanzania Revenue Authority and
2 others, Misc. Commercial Case No. 24 of 2006, in an application for leave to apply
for prerogative orders, it was observed that: -
Tn obvious cases the court may also examine whether the Applicant has
exhausted particularly alternative statutory remedies. But it has frequently
been held by this court that the availability of alternative remedies per se,
would not bar access to the application for prerogative orders.'
The same position was adopted by Hon. Lugakingira, J (as he then was) in the
case of R. Exparte Peter Shirima vs Kamati ya Ulinzi na Usalama Wilaya ya
Singida [1983| TLR 375 that: -
'.... from the totality of these authorities, that the existence of the right
of appeal and even the existence of an appeal itself, is not necessarily a bar
to die issue of prerogative orders . The matter is one of the judicial
discretions to be exercised by the court in the light of the circumstances of
each particular case. Where an Appeal has proved an ineffective and the
requisite grounds exist, the aggrieved party may seek and court would
entitle grant relief by way of prerogative orders.
 33
Accordingly, it is the legal position expounded by courts that lhe failure by
the applicants to exhaust available remedies neither outs court's jurisdiction nor
fetters the court's discretion from entertaining an application for judicial review, leave
alone an application for leave to apply for judicial review.

On the cited authorities. Starting with Pavisa Enterprises case (supra), what
the learned State Attorney relied on was not the reasons for the decision (ratio
decidendi) but the quotation by my brother, Hon. Mlay J (as he then was) at p. 8
from the book titled "JUDICIAL REMEDIES IN PUBLIC LAW, Second Edition by Clievc
Lewis at p. 263. The ratio decidendi^ that case is found at p. 10 when he observed:

"In the intended application for the order of certiorari as shown in the
grounds stated in the statement, the applicant will want this court to review
the evidence and reach a different decision from that reached by the
Conciliation Board and by the Minister for Labour. This can be done by this
court in an appeal and not while exercising powers of judicial review.
Judicial review is not an alternative to an appeal.

In Michael David Nungu v. Institute of Finance Management (supra), the

appellant was employed by the respondent as a lecturer. He was summarily
dismissed. He complained to the Labour Commissioner. The latter referred the labour
dispute to Lhe defunct Industrial Court of Tanzania which dismissed the matter. The
appellant then unsuccessfully pursued revision to the some Industrial Court of
Tanzania. Aggrieved, he lodged an application for judicial review to the High Court.
The High Court dismissed the application on the grounds that the grounds found the
application prompted a review and evaluation of evidence, a task not envisaged in
judicial review but in appeals and that there was another remedy available for the
applicant to pursue, that of an appeal ro the full bench of the High Court and not the
undertaken judicial review.
 34
On appeal, the Court of Appeal observed at p. 14 of the typed judgment
that:

'We are of the view that the process of judicial review, though open for
anyone feeling aggrieved, one has to properly consider pursuing the remedy
especially where there arc other available avenues for judicial recourse, such
as an appeal'

The same Court further observed at the same page that, 'in the instant appeal,
being aggrieved by the decisions of the Industrial Court as stated above, the appellant
failed to show us why an appeal which is an avenue provided for and a first instance
remedy available for him under section 27 (1C) of the Act was not pursued’.

However, in the application in question, the appeal is neither an avenue provided

for nor is it a first instance remedy available for the applicants, rather, rule 4 of th
Rules as indicated above, specifically provides a judicial review not only as a sole
statutory avenue but also as the instant remedy available to the applicants.

The first limb of the preliminary objection fails.

Respecting the second, third and fourth preliminary objections, the respondents
seem to question the competence of the application on account that it is being
supported by a defective affidavit. This is a general imputation of the affidavit that it
is wholly defective. It is inconceivable that all averments in the applicants' affidavit
can be said to be defective in the way the respondents present them. My course is
clear. Generally, affidavits are filed for different purposes. However, to some extent,
their forms and contents differ according to the facts of the case, the issues involved
and the nature of the proceeding. Consequentially, there is room for variations of
techniques and style.
 35
I have read and understood the affidavit of the applicants. In setting out
the facts and circumstances of the application were expected to depose to the same
either from their personal knowledge or from the grounds of their belief. It should be
noted that in stating the facts and circumstances in their affidavit, in some paragraphs
the applicants have laid down the facts giving rise to their claims and their pursuance
for redress with the 1st respondent. In outlining the facts and circumstances in their
joint affidavit verifying the application with regard to the grievances with the
promulgation of Government Notices Numbers 571, 572, 573 and 574 all of
12/7/2024, the applicants could only do this by highlighting the factual position of the
law and circumstances giving rise to their claims. By doing so, the applicants would
not be advancing legal arguments, conclusions or opinions and conclusions provided
they did so from their own personal knowledge, or from information that they believed
to be true and the source of information was disclosed.

Besides, although it is trite that affidavits are sworn or affirmed as to rhe

knowledge, or from information received provided the source of information is
disclosed or as to what the deponent believes to be true provided the grounds for
such belief are stated, sometimes, some averments in an affidavit can purely be
matters of facts and the manner in which the deponent has presented them can only
be called into question as points of fact, hence not pure points of law.

Even still, the position of this court on that specific issue is settled. Biron J. in
General Marketing Company Ltd v. A.A. Sharif [1980] Tl R 61 at p. 65 had the
following to observe:

'If that is the case, could it in the name ol justice, be said that advancing
arguments in an affidavit is so offensive as to cause an application to be
struck out thereby deny this court of justice an opportunity to determine
 36
the matter on merits. Forms and procedures are handmaids of
justice and should not be used to defeat justice'.

Admittedly, a matter is argumentative when it contains, in addition to a in

statement of fact, reasoning or comment on how those facts bear on I he disputed
facts. With regard to opinions, the Ex parte Matovu case is clear that ..'.such
affidavit should not contain extraneous matters by way of objection or prayer or legal
arguments or conclusion'. The word opinion' was not included in the list.

Even then, a person may give evidence of their opinion where they are an expert
on a matter which falls outside the range of an ordinary person's experience. Expert
evidence may include the testimony of doctors, scientists or other specialized
professionals. These kinds of people have appropriate qualifications in the area of
interest. Besides, a person's opinion will be admissible where it relates to a matter
within a person's usual experience. For instance, a deponent will be able to depone
to the facts in relation to the time an event occurred, the weather or the general state
or condition of an object.

Now on the second preliminary objection. After carefully perusing the paragraphs
of the impugned applicants'joint affidavit and on authority of the case nt Jacqueline
Ntuyabhaliwe Mengi where at p. 13, the Court stated that:

"It is well settled that affidavits are to be confined in faacts and have
to be free from the extraneous matters- (See Iqnazio Messina v. Willow
Investment SPRL, Civil Application No. 21 of 2001 unreported) where the
remedy to the affidavit which contains such extraneous matters is to
expunge such offensive paragraphs or disregard them to allow the court to
proceed with the hearing and determination of the application basing on
the remaining paragraph’.
 37
I am in no doubt that all paragraphs excluding paragraphs 10, 15,
17 and 19 are material facts. These are facts which contain statements of
facts and circumstances which are within the knowledge of the deponents.

The respondents' preliminary objections succeed only to the extent that the
applicants' joint affidavit is defective in paragraphs 10,15, 17 and 19 and offends the
provision of Order XIX rule 3 (1) of the Civil Procedure Code. The defects, however,
do not defeat the whole affidavit because paragraphs 10, 15,17 and 19 are severable
from the rest of the paragraphs.

Paragraphs 10, 15,17 and 19 of the applicant's joint affidavit are, thus, expunged
from the record.

Since the expunged paragraphs arc not backbone of this application, the
remaining paragraphs which I take to be substantive, are capable of supporting the
application. I hold that this application is sustainable.
The second preliminary objection is overruled and dismissed.
With regard to the third and fourth preliminary objections, the respondents'
contention is that the affidavit objection, the applicants' defective for containing new
facts in the impugned paragraphs which are not contained in the Statement and that
the application is incompetent for having been supported by an affidavit which does
not verify the applicants' Statement. It was submitted on part of the respondents that
the essence of having a verifying affidavit in such a case is to change facts into
evidence.
With unfeigned respect, that is not the position of the law. According to rule 5(2)
(d), an application for leave under sub-rule (1) shall be made ex parte to a judge in
chambers and be accompanied by-
(d) affidavits verifying the facts relied on.
 38
As rightly submitted by Mr. Jcbra Kambole, the wording used is "affidavit
verifying the facts relied on" and not verifying the statement. Indeed, the position of
the above provision was confirmed by the court in In Re-Hirji Transport Services
v. A.A. Sharif (1961) EA 88, the Court observed that:

'The ground must at its face value be based on the facts as averred
by the applicant in the verifying affidavit and must prove not only
that the applicant has sufficient interest in the matter but also, he has an
arguable case for grant of leave'

(underlining supplied for emphasis)

Had the law wanted to have all the contents in the Statement verified by the
affidavit as the respondents suggests, It could have stated so. In that respect, the
cases cited on part of the respondents are distinguishable as the have confined to
their peculiar facts and circumstances.

All things considered, there is no dispute that if the preliminary objections were
allowed as the respondents counsel suggest, it may dispose of the entire matter
without giving parties the opportunity of being heard. This, from my perspective, has
to be done with great caution because the court has a duty to hear the parties and
determine the dispute on merit. Correspondingly, this court has a duty to guard itself
against the abuse of its process.

In conclusion, all the four preliminary objections are hereby dismissed. This paves
the way for determination of the leave application.

With regard to the application for leave, Rule 5 (1) and (2) (a), (b), (c), (d), (3)
of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review
Procedure and Fees) Rules, 2014 to which this application relates, provides a guideline
on the grant of leave. According to sub-rule (1) of rule 5, an application for leave shall
 59
not be made unless a leave to file such application has been granted by the court
in accordance with these Rules. By that provision, court's leave is mandatory before
applying for prerogative orders of ce/Wra/7and prohibition. It is trite and parties are
at one that the conditions to be considered by the court before granting leave were
well elucidated by the Court of Appeal in Emma Bayo v. The Minister for Labour
and Youths Development and Another (Supra). The Court of Appeal held at
page 8 that: -
‘It is at the stage of leave where the High Court satisfies itself that the applicant
for leave has made out any arguable case to justify the filing of the main application.
At Lhe stage of leave die High Court is also required to consider whether the
application is within the six months limitation period within which to seek a judicial
review of the decision of a tribunal subordinate to the High Court. At the leave stage
is where the applicant shows that he or she has sufficient interest to be allowed to
bring the main application."
In the case in question, parties are agreed that this application has been timeously
filed, that is within the prescribed period of six months as required under rule 6 of the
Rules.
The point of contention, however, is whether the applicants have satisfied the
rest two conditions. On whether the applicants have established an arguable case and
have sufficient interest in the matter they intend to pursue in lhe main application,
the applicants, through their learned counsel, want the court to answer the issue in
the affirmative while the respondents hold the opposite view. The parties' arguments
for and in opposition are as indicated above.

In Re-Hirji Transport Services v. A.A. Sharif (1961) EA 88, the Court

observed that:
 -in
'The ground must at its face value be based on the facts as
averred by the applicant in the verifying affidavit and must prove
not only dial the applicant has sufficient interest in the matter but also,
he has an arguable case for grant of leave'.

The guiding principles upon which order of certiorari can be issued were laid down
in Lhe case of Sanai Murumbe vs Muhere Chacha [1990] TLR 54 w namely:

i . Taking into account mailers which it ought not to have taken into
account;
ii . ii. Not taking into account matters which it ought to have taken
into account;
iii .iii. Lack or excess of jurisdiction;
iv .iv. Conclusion arrived at, Is so unreasonable that no reasonable
authority could ever come to it;
v . v. Rules of natural justice have been violated; and Page 9 of 17
vi .vi. Illegality' of procedure or decision.

As far as the test of potential arguability is concerned, it is the consideration

whether the materials before the court disclose matters which might, on further
consideration, demonstrate an arguable case for the grant of the relief claimed. It has
sufficiently been demonstrated by Mr Mpoki that all the applicants' allegations against
lhe respondents have been denied and controverted by the latter.

It is trite that at the leave stage, it is not necessary to prove an

arguable case. Besides, arguability cannot be judged in vacuum, that is, without
reference to the nature and gravity of the issue to be argued. It is a test which is
flexible in in its application and normally is proved in the substantive application not
at the leave stage. It should be rioted that this test has been adopted and applied by
 41
our courts in decided cases. For instance, Hon. Kalegeya, J. (as he then
was) in Miscellaneous Civil Cause No. 144 of 1993 (High Court at Dar es Salaam)
between Workers of Tanganyika Textile Industries Ltd v. the Registrar of the
Industrial Court of Tanzania and others, when dealing with an application for
leave for orders of certioran and mandamus, had this to say:

7 should out rightly point that seeking leave to fi/c an application for
prerogative orders requires rhe applicant to merely raise arguable points. He is
not required to prove the alleged errors tor, that proof would only be required,
during hearing of the main application if leave is granted. Regard being had to
the statement and the attached supporting document'.

This position was endorsed by the Court of Appeal in Emma Bayo case
(supra), whereby, speaking through his Lordship Juma, J.A. (as he then was before
he was elevated as a Chief Justice), al p. 9 of the judgment, was emphatic that the
High Court exercising judicial discretion in determining issue of leave, should not
indulge itself in considering the mam application as doing so is to go "beyond what
was expected of the trial court at the stage/step of application for leave'. The Court
described such conduct as "overstepping" on the main application.

Tn this case, I am satisfied that the applicants have managed lo provide the
materials before the court disclosing matters which might, on further consideration
during die substantive application for judicial review, demonstrate an arguable case
for the grant of the relief claimed. This is clearly vivid in the parties' pleadings as
expounded by learned advocates for the applicants.

The other issue is whether applicants have sufficient interest or locus

standi, in the matter. In law the principle of locus standi is settled. It is the right or
 42
competence of a person to initiate proceedings in a court of law for redress
or assertion of legally enforceable rights.

As far as the issue of locus stand) in judicial review is concerned, there must be
considerations which lead the court to treat the applicant as having an interest which
is sufficient to justify his bringing the application before the court. What is to be
regarded as sufficient interest to justify a particular applicant's bringing a particular
application before the court, and thus as conferring standing, depends therefore upon
the context, and in particular upon what will best serve the purposes of Judicial review
in that context. A full consideration is not appropriate at this stage since in judicial
review proceedings, the court's leave precedes the commencement of proceedings.
In Ex Parte Argyll Group [1986] 1 WLR 763 at p. 773, Lord Donaldson MR said:

‘The first stage test, which is applied upon the application for leave, will
lead to refusal he first stage test, which is applied upon lhe application for
leave, will lead to refusal if the applicant has no interest whatsoever and is,
in truth, no more than a meddlesome busybody. If, however, an application
appears otherwise to be arguable and there is no other discretionary bar,
such as dilatoriness on the part of the applicant, the applicant may expect
to gel leave to apply, leaving the test of interest or standing to be re-applied
as a matter of discretion on the hearing of the substantive application. At
this stage the strength of the applicant's interest is one ol the factors to be
weighed in the balance.'

With the material pleaded by the applicants and expounded by their learned
advocates and taking into account the stated legal position, I am satisfied that the
applicants have a standing and qualifies to benefit from rule 4 of the Rules, that is to
apply for judicial review.
 -13
In relation to the applicants’ praycr to stay the implementation of the impugned
Government Notices, it is trite that an injunction is a judicial process whereby a party
is ordered to refrain from doing or to do a particular act or thing. It is a specific order
in a form of equitable relief forbidding the commission of a wrongful course of action
already commenced. It has, therefore, to be adjusted in aid of equity and justice to
the facts of each case according to the facts and circumstances of the case. For
granting the injunction, the applicant has to establish that he has a legal right and
there is invasion of such right.

In this case, as rightly submitted by the respondents, the issue of an

injunction by way of stay was not verified as a fact in the applicants' affidavit.
The argument by the applicants that such application was pleaded in their
Statement is has no substance because it is trite that the affidavit must verify
not the statement by the facts relied on.
Rule 17 of rhe Rules states that where there is any matter not provided
for in these Rules, the practice and procedure applicable in to the High Court
shall apply.
My brother, Hon. Bwana, J. (as he then was) in Commercial Case No.48 of 2000
between Mbarali District Council v. K. J. Motors and 6 others (unreported)
observed at p. 7 as follows:
"Order VI Rule 1 of the CPC defines pleading to mean a plaint or
written statement of defence and such other subsequent pleadings as may
be presented in accordance with rule 13 of Order VIII of the CPC. These
are and include defence to set off or counter claim, or such additional
written statement of defence from any of the parties as may be required
by the court during a pre-trial conference. Two settled principles of law
need mention here although we should not be detained further. The first
 44
one is that parties are bound by their pleadings. The second one is
that parties arc not allowed to introduce new and strange averments
departing from what is contained in the pleadings unless leave of the court
is sought and granted.
Besides, it is trite that when the court is called upon to examine whether applicant
has a prima facie case for the purpose of granting temporary injunction, the court
must, perforce examine the merits of the case. There is no dispute that at the leave
stage, the court cannot examine the merits of the case as there is no sufficient
material upon which I can make the stay order. Furthermore, where die public interest
is involved in a litigation while appreciating the aspect of convenience, the interest of
the public also Is to be considered.
With the foregoing, my considered view is that it is not within the province of this
court nor is it within its competence at this stage to order the stay of implementation
of the impugned Government Notices.
The application for temporary injunction by way of stay order is, accordingly,
declined.
For the foregoing reasons, 1 find the application for leave world-beating and, in
consequence, leave is granted to the applicants to file a substantive application for
judicial review. No order as to costs is made.
 45
This ruling is delivered under my hand and the seal of this Court on this 9th day
of September, 2024 in the presence of all three applicants as well as Mr. Jcbra
Kambolc, Ms. Maria Mushi, Messrs. Zidadi Mikidadi and Dcograbas Mahinylla, both
learned Advocates for the applicants and in the presence of Messrs. Dcodatus Nyoni
and Suleiman Mitibora, learned Principal State Attorneys, Mr. Kelvin Kisayo, learned
Senior State Attorney and Mr. Ayoub SangaJfei>ned State Attorney all representing
the respondents. vlxX--- -

.^uun, W.P. Dyahsobera

judge