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IN THE COURT OF APPEAL OF TANZANIAAT DARE S SALAAMMISC. CIVIL CLAUSE NO. 27 OF 1997BARAZA LA WANAWAKE TANZANIA ………………. APPLICANTSVersusREGISTRAR OF SOCIETIES ………………RESPONDENTSRULLINGSUBJECTS: Applications;(i) For vacating the exparte, interim Injuction order and dismissal of application,for temporary Injuction.(ii) Application for temporary Injuction.KATITI, J.The practitioners -1- BARAZA LA WANAWAKE TANZANIA (BAWATA), -2- PROF.ANNA KAJUMULO TIBAIJUKA, -3-SHRBAMU NASSER KABISA, -4- ROSETEMU MUSHI, -5- MARY CHONJO MAREALLE, and -6- SAINA KHATIN KAULI,hence to be collectively called the petitioners applicants a constitutional petition, againstthe -1- REGISTRA OF SOCIETEIS, -2- HON. ALI AMEIR MOHAMED – Minister forHome Affairs and -3- HON. ATTORNEY GENERAL, hence to be called therespondents, under articles 13(6), 18, 20 (1), 24, 26 (2) and 30 (4), of the ConstitutionUnited Republic of Tanzania, and sections 4 and 5 of the Basic, Rights and Duties Act,1994, and section 95 of the Civil procedure code, 1996. Pending the hearing andfinalization of the petition the petitioner/applicants Society BAWATA, till the applicationfor temporary Injuction, is heard inter parties, and finally the hearing and finalization ofthe petition. On the 17/7/1997, my learned brother CHIPETA, J issued an exparte interimInjuction order, restraining he respondents from the cancellation of theapplicants/petitioners society – BAWATA, Dutifully, Mr. Werema learned councilrepresenting the respondents, filed an application supported by affidavit, seeking thevation of the exparte interim Injuction order, and dismissal of the current application fortemporary Injuction, for reasons he dutifully gave, and reasons that will herein be visited,each at opportune time.An understand of the antecedents, or genesis of it all will probably illuminate our way,and possibly highlight and spotlight the issues involved. After the gestational and concept92
ional crystallization, of the idea of forming a women’s non-partisan society for theirwomen-folk development, that involved other national women celebrities, BAWATAwas born, and so legally born and registered, under the society ordinance Cap. 337, henceto be called the ordinance, its birth certificate, Certificate of Registration, being dated16/5/1995. No. SO 8408, the second to 6 th petitioners/applicants, being the office bearers,it is defying controversy, that, BAWATA almost immediately after birth, peeped intodoomsday, for it did not stand, the test and taste of time in its activities, as seen form thepedestal of Government, for its activities were suspended by 17/9/1996, and conditionsimposed, that BAWATA’s constitution be amended, and by 5/6/1997, the Registrar ofsocieties, acting under section 12 of the ordinance, required BAWATA to show causewhy its registration should not be cancelled and when why and further particulars sought,had not been given, or supplied, the said Registrar of societies, issued a notice ofcancellation, of the registration of BAWATA, on the 30/6/1997, advising thepetitioners/applicants, of their statutory right to appeal to the Minister for home Affairs,within twenty one days, under section 13 of the Ordinance. Although thePetitioner/applicants, put in motion, the process of appeal, and sought extension ofappellate period, for reasons give, see- BWATA’s letter dated 1/7/1997 Ref. No. BWT.B57 ADMIN.SEN/97/09 –to the ministry, no response eminated there from, and hencethe petition, and this applications culminating therefrom. These are the facts, that defychallenge, that are not susceptible to caprice, and facts that are not betraying the truth.With the above antecedents, straight and clear, we shall now be more relevant by movingform the periphery, to the relevant amplifications. Those applications are supported andbased on affidavits, and written submissions, the letter inherently thereby importing adisadvantage of counsel to counsel, counsel to judge oral link, and possibility ofopportune oral clarifications, on pertinent matters. But having on my part, dutifullyexamined, and rationalized, the pro and cons submissions, as pertinently touch the subjectmatter, it is my humble view, that the legal controversy revolve and revolve around:(i)(ii)(iii)(iv)(v)(vi)Joinder parties – whether these were “Civil Proceedings as envisaged undersection 9 of the Government Proceedings Act 1967, and whether it was notwrong to implead the minister for Home Affairs Hon. Ameir Mohamed, when theHon. Attorney General, was the one by such law to sue or, be sued, on behalf ofthe Government.Whether the source of power for the High Court to grant injections inConstitutional Proceedings, is ORDER XXXVII of the Civil Procedure code.Whether an Injuction could be issued against the Government?Whether BAWATA was already dead i.e an illegal society when the applicationsfor exparte Interim and Temporary injunctions were filed.Whether the petitioners/applicants, before resorting to the petition, and or currentapplication, should have first exhausted the statutory appellant remedy providedby section 13 for the ordinance.What are the principles, or pre-conditions, fro the grant of a temporary Injuction.I shall, I hope, treat exhaustively the above seriatim. Mr. Werema did gallantly, in so faras joinder of the Minister of Home Affairs as a party is concerned, contend, that93
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A COMPILATION OF CASES OF JUDICIAL
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4.3 Assistant Imports controller v
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appropriate respondent, i.e, if in
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the individual complaining of breac
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of the Constitution that there shou
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y one judge of the High Court. Desp
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Question(1) Their Lordship can deal
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ights and freedoms to satisfy the r
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The contravention was in the past;
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is entitled. The respondent must pa
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independence, as the result of nego
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emedy, but only by consent of the C
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policy justifies these distinctions
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compulsorily on payment of .compens
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have already touched on this. I do
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‘s favour would have been a right
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in cases of judicial misbehavior, a
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of course, is not in the ordinary s
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of these provisions is to ensure th
Page 41 and 42: which he appealed by special leave.
Page 43 and 44: does not exclude the application of
Page 45 and 46: “………no person should be pun
Page 47 and 48: state. By section 19 (2) of the Cro
Page 49 and 50: tot for anything done by Maharaj J.
Page 51 and 52: of this section ;and (b)to determin
Page 53 and 54: this was a finding that the judge,
Page 55 and 56: February 27. The judgment of the ma
Page 57 and 58: It was a state act performed by the
Page 59 and 60: A defendant is always entitled to k
Page 61 and 62: to come before the House of Lord’
Page 63 and 64: The key word here is “inseparable
Page 65 and 66: Assuming that “commonwealth” wa
Page 67 and 68: the High Court within a limited tim
Page 69 and 70: Ouster clauses which take effect on
Page 71 and 72: jurisdiction if they are disputed b
Page 73 and 74: eviction by NAFCO. The special and
Page 75 and 76: separation of powers enshrined in t
Page 77 and 78: 2. that the Honorable trial judge e
Page 79 and 80: section 2 of land ordinance, 1922 i
Page 81 and 82: statutorily on trust for the benefi
Page 83 and 84: such consent is required only in ca
Page 85 and 86: language of that section precludes
Page 87 and 88: There is merit in this ground of ap
Page 89 and 90: section 4 and would undoubtedly hav
Page 91: Clearly this section in unconstitut
Page 95 and 96: That, the exparte application for t
Page 97 and 98: espect, after all is said, and writ
Page 99 and 100: to BAWATA’s Secretary General who
Page 101 and 102: From the above persuasive cases, I
Page 103 and 104: opinion, that where the Court used
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Page 107 and 108: the charge had already been entered
Page 109 and 110: was violative of her basic right as
Page 111 and 112: in that court, and in the course of
Page 113 and 114: In the result the appeal by the Dir
Page 115 and 116: that the proceedings before the Tri
Page 117 and 118: Prof. Shivji urged that when the ma
Page 119 and 120: Administered by inferior tribunals
Page 121 and 122: was found to be a nullity for irrat
Page 123 and 124: Those who espouse the narrow approa
Page 125 and 126: 31. (1985) At p. 3532. One of the p
Page 127 and 128: Application on merits. Mandamus iss
Page 129 and 130: Those who exist above the people mu
Page 131 and 132: November 1986 they made a market su
Page 133 and 134: In the case at hand of course the a
Page 135 and 136: of each case, but it a fundamental
Page 137 and 138: I note that in the Advisory Committ
Page 139 and 140: The complaint is not that a person
Page 141 and 142: The applicants. Who were bidding in
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A paradigm,but not the only case of
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claims not to contain legal rules,
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743. All these cases show that it i
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as conclusive of the absence of a c
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The code is therefore framed in non
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“In my view to allow English citi
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eceive a further ⅔ per cent based
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alternative and that, reading the u
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On the morning of 25 November 1986
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The issue is thus whether the histo
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The Criminal Injuries Compensation
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part of decision - makers and for b
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Nothing that I have said can fetter
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underestimating the extent tot whic
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egulation” may be misleading. The
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More recently, in Reg. v. British B
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NICHOLLS L.J. I entirely agree with
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The code also contains some detaile
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appellant was tried on a count char
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founder parties should have used th
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(4) Since the case is based on aver
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Thus we held that any member of the
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procedure prescribed by Order 1, ru
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It is settled in our constitutional
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of judicial innovation to say that
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It follows from the foregoing that
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will not succeed. The court cannot
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The petition originally raised very
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disclosed in that context. He maint
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of the legislation and that there i
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…the restriction imposed at commo
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This provision, in my view, caters
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I agree and can not wish to add any
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It is contended by the petitioner t
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It extends to modification of those
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These amendments were, therefore, v
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courts in respect of the stay of su
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namely, an assembly or procession n
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of law and order. I provision like
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Until the Legislature makes appropr
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his representatives; the right to r
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in the Constitution? In that case t
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to appoint persons to offices in th
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I hereby certify that this is a tru
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It is sworn further that in the cou
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applicants. And if I may say now, a
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A part from the applicants obligati
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It seems that this issue once decid
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Finally, Mr. Werema made an alterna
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to find a case which shows there is
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Delivered.Dr. Lamwai for the Applic
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However, he pointed out that it is
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IN THE COURT OF APPEAL OF TANZANIAA
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anything, he was simply answering w
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appellants the opportunities of bei
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For these reasons we are satisfied
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jurisdiction to go wrong. Neither a
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Essentially these grounds are alleg
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in agreement. However, the advocate
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Attorney General was duly summoned,
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Once we hold as indeed we do, that
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surfaced from the very beginning. I
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of Dodoma Zone Mr. Mwambe duly inst
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26 Act No. 16 of 198427 Chapter 360
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the case of Attorney-General v. Les
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1991on the Democratic system in Tan
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efusal in short the decisions were
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public interest should not be too b
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operation was “thoroughly outdate
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In the final analysis, I find that
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J. dated the 24 th day of October,
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though we felt that the learned Sta
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(a). that every persons shall, when
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The more difficult question is whet
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Turning now to the requirement that
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The appeal is allowed with cast, an
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6. Tanzania Air service ltd v minis
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A company (Cyanamid) register a pat
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506 All England Law Reports (1975)
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a. patents in 1953 (Lowe) and 1954
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efore any question of balance of co
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object that I have indicated above
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this. Returning therefore to the in
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MAGNUM AGENCLES COMPANY LIMITED RES
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Without going into his locals stand
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BANK OF TANZANIA MWANZABut the prop
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Similarly the present record does n
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78 TANZANIA LAW REPORTS (1987) T.L.
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Maina ,J This is an application to
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e made informally. But with respect
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82 TANZANIA LAW REPORTS (1987)T.L.R
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Temeke, Dar es salaam, delivered in
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3. that the reference was in any ev
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2. that the application has no righ
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c.c.s.u v, minste for civil service
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communications headquarters (GCHQ)
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)2) of the European Convention on H
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dismiss persons refusing to accept
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matters relating to the dispassion
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extending he requirement of natural
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continue to be enjoyed although mig
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the grounds upon which administrati
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alter right or obligations enforcea
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I agree with your Lordships tat thi
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the appellants employment be termin
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The trial judge dismissed appellant
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the view that the appellant’s ter
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Court did not stop there. It consid
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In English I have been instructed t
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the respondents such order was gran
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to response to the .. of an appell
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Was Annex D.1 made in bad faith? Th
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when questioning the constitutional
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24 th May 1991 informing the appell
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We are therefore of the opinion tha
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him of that decision is in our view
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usurp the function of the High Cour
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MAUGHAM in maritime Elective C. Ltd
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We again agree with the learned jud
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However, the learned judge skipped
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filing of statements could not be s
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even to seem to express an opinion
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As we have already intimated the te
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the removal. But we reject the earl
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the Daily News and Uhuru newspapers
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M.D. BOMANIAg. JUSTICE OF APPEALJ.L
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Both parties are represented by cou
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THE SECUTITY FO EMPLOYMENT ACT 1964
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administrative law as seriously as
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interest are at stake. In any other
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the fundamentals of good administra
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mandamus should be made but it must
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6. EXERCISE OF DISCRETIONARY POWERS
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Mr. Mselem was at a loss to know un
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under s. 3 (3) of Cap. 104 and none
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affidavit and the representations o
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17 th June 1987 requiring him to le
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SongeaMohamed Ally Athumani now 54
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Ally Athumani PW1 had received. He
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Home is cases of ones in search of
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nothing about the subject matter as
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commissioner of Songea District was
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in all details to the one issued to
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approved by village Governments. DW
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forces that are always inconsistent
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under the Business licincing Act No
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applicants these could definitely n
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person against who he intends issue
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dealings. Expedient is not this Rep
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espondent to discharge its function
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(i) an order of certiorari 8 and se
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Mr. Mwaikusa argued that the releva
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that the Government has set on itse
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AT DODOMACIVIL CASE NO. 23 OF 1993J
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for Tabora Region . By a letter dat
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of the Constitution or the law of t
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Another important consideration und
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have been taken into account, wheth
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withstanding the existence of an ou
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arbitrary decision. And it offends
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to the Principal Secretary to the P
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I heard long and interesting arqume
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public interest; second, it is the
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the former the Principal Secretary
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I think I can dispose of this matte
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the whole field of the law relating
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declaration except in a negative so
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itom 108(1) of the First schedule t
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egards the commission’s report, t
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RULLINGSAMATTA, JK:This is an appli
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impugned decision. As expected, I w
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(g) on retirement in circumstances,
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etire otherwise than on disciplinar
Page 489 and 490:
(c) for pupose of facilitating impr
Page 491 and 492:
“Whatever pleases the emperor has
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decision has, I agree with Mr Nasso
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Before I part with this application
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7. REMEDIES1. Ajit Gordhan v Direct
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21. Simeon Manyaki v Executive Comm
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of which was annexed to the affidav
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The above position was enshrined in
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such as damages or on injunction. T
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Should the prayer then be granted i
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No cases referred to.Omar and Musta
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IN THE HIGH COURT OF TANZANIAAT DAR
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alleged circumstance, it is further
Page 515 and 516:
Mr Mallaba has traced the history o
Page 517 and 518:
Mr. Kisusi submits further that sin
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ANDESSO STANDARD TANZANIA LIMITED .
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proceed by way certiorari. He can f
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AT MWANZACORAM: OMAR, J.A. HNZAVAS,
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G.N. 41/92, the second respondent i
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ecause it violates Article 13 of th
Page 529 and 530:
tenants, one enjoying legal protect
Page 531 and 532:
the provisions of the Rent Restrict
Page 533 and 534:
Lastly, in ground 5 the appellants
Page 535 and 536:
R V Income Tax Special Purposes Cou
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had interfered with the administrat
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LORD TEMPLEMAN. Parliament makes th
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LORD GRIFEITHS. My Lords, I have ha
Page 543 and 544:
Because of this, it is normally unn
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students at his school; that he was
Page 547 and 548:
unnaturally took the view that the
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solicitor later at about 12.30 am v
Page 551 and 552:
Mr Baker was arranged for 4 pm that
Page 553 and 554:
counsel with whem a conference took
Page 555 and 556:
easonably benevolent construction o
Page 557 and 558:
Lord Donalsdson MR described Mr Bak
Page 559 and 560:
was made without jurisdiction, then
Page 561 and 562:
Court has been given . If the appli
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in the earlier case may have coused
Page 565 and 566:
As the Sovereign cannot authorize w
Page 567 and 568:
When dismissiong the action Romer I
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the Crown. (In this summary 1 put o
Page 571 and 572:
emedy against theCrown was not conf
Page 573 and 574:
easonable doubt as to the identity
Page 575 and 576:
Section 23 (2) (2) refers to petiti
Page 577 and 578:
Corwn in general, then s 21 (2) wou
Page 579 and 580:
epresenting the Crown, the third th
Page 581 and 582:
obtain an injunction (see also Merr
Page 583 and 584:
A both because there would be an in
Page 585 and 586:
It is interesting to note the comme
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prohivition or certiorari (b) the n
Page 589 and 590:
proceedings as was available to you
Page 591 and 592:
lack of jurisdiction to grant inter
Page 593 and 594:
egarded as being open to challenge
Page 595 and 596:
quite out of accord with practice,
Page 597 and 598:
The validity of the injunction gran
Page 599 and 600:
IN THE HIGH COURT OF TANZANIAAT SON
Page 601 and 602:
October; 1993, the Regional Commiss
Page 603 and 604:
statutory authority for doing so, t
Page 605 and 606:
egulation 10 as read with S. 55 (1)
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(4) In such a case the tribunal, wh
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the penalty demands notwithstanding
Page 611 and 612:
question I have posed and speaking
Page 613 and 614:
first two prayers, to wit, orders o
Page 615 and 616:
and illegally taking then away from
Page 617 and 618:
I conceded that as wrong in view of
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unquestionability upon its decision
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deciding what the decision-maker sh
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ut the judges must observe the cons
Page 625 and 626:
intended to furtmore national polic
Page 627 and 628:
society. That observation applies t
Page 629 and 630:
In the event, the prayer for a decl
Page 631 and 632:
25 th January 1978. However on 5 th
Page 633 and 634:
missing from the trial court record
Page 635 and 636:
One of the conditions set out in th
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(a) that up to the 5 th February, 1
Page 639 and 640:
With regard to this passage of the
Page 641 and 642:
Patman Garments Industries Limited
Page 643 and 644:
dishonoured, or if he had broken th
Page 645 and 646:
Decree of the High Court and declar
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y the Institute during the 1983/84
Page 649 and 650:
obdurate if not- thoroughly uncoope
Page 651 and 652:
examination papers to NBAA for mode
Page 653 and 654:
against him, so that he could effec
Page 655 and 656:
maters as the leakage of examinatio
Page 657 and 658:
Q. Can you tell us anything strange
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IN THE HIGH COURT OF TANZANIA\MAIN
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against a government minister or de
Page 663 and 664:
injunctive relief is sought? Althou
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appears to have done, to hold that
Page 667 and 668:
the applicant leave to apply review
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669
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