Steven Kitale Cleophace vs Tanganyika Law Society & Others (Civil Appeal No. 1459 of 2024) [2026] TZCA 561 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO, J.A., KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 1459 OF 2024 STEVEN KITALE CLEOPHACE.................................................... APPELLANT VERSUS THE TANGANYIKA LAW SOCIETY (TLS) ............................ 1 st RESPONDENT EXECUTIVE DIRECTOR TANGANYIKA LAW SOCIETY ...... 2 nd RESPONDENT THE GOVERNING COUNCIL OF TANGANYIKA LAW SOCIETY................................................................... 3 rd RESPONDENT THE HON. ATTORNEY GENERAL ....................................... 4 th RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Chuma, J.) dated the 3r d day of April, 2025 in Misc. Civil Cause No. 17558 of 2024 JUDGMENT OF THE COURT 30th April & 12m May, 2026 MGONYA, J.A.: The appellant, Steven Kitale Cleophace, is an advocate duly enrolled and a member of the Tanganyika Law Society (the TLS). He previously served as a representative of the Lake Zone in the Governing Council of the TLS. Dissatisfied with the decision of the High Court dismissing his application for judicial review, the appellant has moved this Court to exercise its appellate jurisdiction to set aside the impugned ruling. i

The background to the appeal is to the effect that; In 2024, the Governing Council and the Secretariat of the TLS commenced preparations for the Society's Annual General Meeting (AGM) and the ensuing elections. Against this development the Appellant raised two main grievances. First, that the appointment of members of the Electoral Committee and the Electoral Appeals Committee was effected in disregard of the governing statutory provisions. Second, that there was an irregular and unprocedural increase of the AGM registration fees for physical attendance from TZS. 118,767.00 to TZS. 200,000.00 without the requisite approval of the Council. Aggrieved by the above decisions, the appellant, together with three other members of the Council, made a formal request for access to the relevant minutes, resolutions, and records pertaining to those decisions. The request was addressed to the Executive Director of the Society pursuant to section 28 of the Tanzania Law Society Act, Cap. 307, and Regulations 15(6) and 15(7) of the Tanzania Law Society (Council) Regulations, 2022. According to the Appellant, the request was not honored. Instead, he was advised to channel the matter to the President of the Society. The subsequent approach to the President equally had no response. It is from 2

the foregoing that the appellant instituted Miscellaneous Cause No. 16018 of 2024 in the High Court, seeking leave to file an application for judicial review by way of orders of mandamus and certiorari to redress the said grievances. He further prayed for interim relief in the form of an injunction restraining the holding of the AGM, the election process, and all activities of the two Electoral Committees. On 15th July 2024, Matuma, J. granted the appellant leave to file the judicial review application but declined to grant the interim relief sought. In declining the injunction, the learned Judge reasoned that, on the facts then before the court, it was not an appropriate stage at which to issue such an order, more so because the substantive judicial review application was yet to be filed, the leave having only just been granted. After the grant of leave, the appellant filed Miscellaneous Cause No. 17558 of 2024 which was before Chuma, J. After overruling the points of preliminary objections raised earlier by the respondents, the application was heard on merit on 26th March 2025, where both learned counsel for the respondents unequivocally conceded the application, save for costs. It is alleged that, despite the said concession, the learned High Court Judge, on 3r d April 2025, proceeded to dismiss the application for want of merit. In dismissing the application, the learned Judge held, inter alia, that 3

there was no reviewable decision, that the matter was premature, and that the conditions precedent for the grant of orders of mandamus and certiorari had not been satisfied. Aggrieved by that decision, the appellant has appealed to this Court on two grounds, namely: 1 . That the learned Judge erred in law by denying the appellant a fair hearing, thereby contravening the fundamental principle of audi alteram partem; and 2. That the learned Judge acted unlawfully by proceeding to determine the merits of the application notwithstanding the unequivocal concession of the application by all the respondents, thereby violating the principles governing adversarial proceedings. When the appeal came up for hearing before us on 30th April 2026, the appellant, Mr. Steven Kitale Cleophace appeared in person, representing himself, whereas the 1s t, 2n d , and 3r d respondents were represented by Mr. Leonard Elias Magwayega, learned counsel, while the 4th respondent was represented by Mr. Lameck Merumba, learned Principal State Attorney, assisted by Mr. Allen Mbuya, learned State Attorney. 4

When invited to address the Court on the grounds of appeal, the appellant sought and was granted leave to adopt his written submissions filed earlier in this Court as part of his oral arguments in support of the grounds of appeal. He chose to add nothing further. In his written submissions, the appellant first addressed the ground that he was denied the right to be heard when the High Court determined critical dispositive issues namely, the existence of a decision amenable to judicial review, prematurity of the application, and the thresholds for mandamus without affording him an opportunity to address those points, despite the respondents having conceded the application save as to costs. This, he contended, constituted a clear breach of the audi alteram partem rule, a fundamental and non-derogable principle of natural justice under Tanzanian jurisprudence. The appellant based his argument on Mbeya-Rukwa Auto Parts &Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251 and Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy [1998] T.L.R. 80. He submitted that, no judicial decision should be founded upon matters that were not canvassed before the parties and that any such breach vitiates the decision. 5

Mr. Cleophace emphasized that, although a court in public law proceedings retains its supervisory jurisdiction and is not strictly bound by the concessions of the parties where it intends to depart from the consensus reached by the parties or to determine the matter on dispositive grounds not addressed at the hearing on the merits, it is duty-bound to alert the parties and invite their submissions thereon. In the instant case, this was not done. Instead, the learned High Court Judge proceeded to dismiss the application on the grand that: (a) had not been argued on the merits precisely because of the respondents' concession and (b) had earlier been determined otherwise at the interlocutory stage by Matuma, J. The appellant humbly contended that the High Court's decision to raise and determine these dispositive issues suo mottu, particularly where doing so had the effect of reversing its own prior interlocutory holdings, without hearing the appellant, amounted to a serious violation of the rules of natural justice and occasioned a miscarriage of justice. He therefore prayed that the decision of the High Court be set aside on this ground. On the second ground of appeal, the appellant submitted that the High Court erred in law when it proceeded to determine and dismiss the application on the merits, notwithstanding the concession by the 6

Respondents, without first distinguishing the case from the ordinary adversarial model or affording the parties an opportunity to address the court on that departure. He argued that, once the respondents had conceded the substance of the judicial review application, the live controversy between the parties was substantially narrowed or resolved. In conclusion, the appellant prayed this Court to allow the appeal, set aside the 3r d April 2025 High Court ruling and orders emanating from it and grant the reliefs sought in the judicial review application. Responding to the grounds of appeal, Mr. Magwayega, learned counsel for the 1s t, 2n d and 3r d respondents, submitted on the first ground of appeal that, the appellant was afforded a full opportunity to be heard. He contended that, notwithstanding the concession by the parties, the learned High Court Judge was entitled, and indeed duty-bound, to satisfy himself on the applicable law before determining the application. As regards the second ground, the learned counsel argued that, even where parties have reached a concession, a Judge retains the inherent jurisdiction and responsibility to interrogate the law and satisfy himself that the orders sought are legally sustainable. Parties cannot, therefore, fault the Judge for proceeding to analyze the application on its legal merits. 7

For the 4th respondent, Mr. Merumba was brief. He associated himself with the submissions of the 1s t to 3r d respondents and submitted that, the learned Judge acted correctly in acknowledging the concession yet proceeding to determine the application on its merits. He emphasized that, in view of the existence of affidavits and counter-affidavits on record, the Judge was perfectly entitled to evaluate the application in the light of the relevant legal principles and statutory provisions. In rejoinder, the appellant reiterated his earlier submissions. Before delving into the determination of the grounds of appeal, we find it necessary to observe that the two grounds raised by the appellant essentially crystallize into a single fundamental issue: Whether the learned High Court Judge erred in dismissing the appellant's application despite the concession by the parties. This issue is more captured in the second ground of appeal, which shall therefore constitute our primary focus. In the course of resolving the second ground, the complaint raised in the first ground shall, of necessity, be addressed. It is common ground that during the hearing of Miscellaneous Cause No. 17558 of 2024 before Hon. Chuma, J., the parties had consented to the application and, in particular, to the prayers sought therein. Be that as it may, we have carefully perused the record of appeal. It is evident

that the 1st, 2n d and 3r d respondents had filed a counter-affidavit in opposition to the application on 26th July, 2024. As the title suggests, a counter-affidavit is, by its nature, a document of opposition. In this regard, paragraph 19 of the said counter-affidavit is particularly instructive and clearly demonstrates that the said respondents were contesting the grant of the orders sought by the appellant. The same states: 'That the contents o f paragraphs 22, 23 and 24 of the applicants affidavit with regard to the demand letter by the Applicant to the J d respondent are denied and the respondents are dutiful to state that there was no specification o f particular documents claimed by the applicant thus the letters stood to be irrelevant and that, with regard to paragraph 23 o f the affidavit ; the respondents firmly state that the Governing Council o f the Tanganyika Law Society herein referred to as the J d respondent is not the final decision maker o f the 1st respondent In that, if follows therefore now, that the applicant did not exhaust the internal remedies available at the Tanganyika Law Society. He would have opted for the Tanganyika Law Society Annual General Meeting (AGM)." From the record, it is clear that prior to their concession, the 1s t, 2n d and 3r d respondents were, in principle, opposing the application. However, 9

in the course of the proceedings, they elected to concede to the application notwithstanding the grounds advanced in their counter affidavit. Be that as it may, the mere concession by a party, especially one unsupported by reasoned explanation, does not ipso facto entitle the applicant to the orders sought as of right in the light of the Court's decision in Dominic Yohana v. Salma Mshite (Civil Application 120 of 2020) [2021] T7CA 216. See also the case of Tanzania Breweries Ltd v. Leo Kobelo (Civil Application No. 64 of 2020) [2021] TZCA 71, where this Court stated: "This application was not contested. However, it is the practice o f this Court that the mere fact that an application has not been contested by a respondent does not give an applicant the right to be granted the extension sought - see: M.B. Business Limited v. Amos David Kasanda and Two Others, Civil Application No. 66 o f 2014 (unreported). That is the reason why I retreated to compose this ruling despite the concession by the respondent" With profound respect, it is a well-established principle of law that the concession or consent of a party to an application does not entitle the applicant to the relief sought. The court retains its solemn judicial duty to subject the application to careful scrutiny, to exercise its discretion where 10

the law so requires, to make the necessary findings of fact and law, and to arrive at an independent determination guided solely by the interests of justice. It should be noted that, the courts are not a mere rubber stamps for the agreements or concessions of the parties. Even where consent is forthcoming, the presiding Judge must satisfy himself that the relief prayed for is justified. In that regard, the court may, notwithstanding the concession of the opposing party, refuse the application if granting it would be improper, contrary to public interest, prejudicial to third parties, or unsupported by sufficient material before the court. This position upholds the independence and integrity of the court as the ultimate arbiter of disputes. It guards against possible collusion, improvident concessions, or decisions that might undermine the administration of justice. Consent, however solemnly given, does not oust the court's discretion or absolve it from its duty to evaluate the matter judicially and reach its own conclusion. While parties are at liberty to agree on terms, the court may still review such agreements for propriety, particularly where public interest considerations arise. Factual admissions by a party may bind that party as judicial admissions, yet they do not automatically dictate the legal 11

outcome or compel the granting of a relief. The Court must still assess the overall merit of the application. Even in applications for leave to apply for judicial review like the one at hand or other similar leave applications, the court is obliged to consider agreeability and any discretionary bars independently, irrespective of any concession by the respondents. In this appeal, it is our considered view that the Judge was entitled and indeed duty-bound to record the concession and proceed to examine the substance of the application. This includes an analysis of the court's jurisdiction, the merits of the relief sought, the question of prejudice, and any other overriding considerations that may affect the exercise of judicial discretion before arriving at a just determination. On the complaint that the parties were denied the right to be heard after the Judge's departure to their concession, we are fully cognizant that it is a well-established principle of natural justice, hallowed by time and authority, that no person shall be condemned unheard. Before any decision affecting the rights or interests of any party is reached, both sides must be accorded a fair and adequate opportunity to be heard, save where the law expressly provides otherwise. This cardinal principle is enshrined in Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, thus: 12

"To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties o f any person are being determined by the court or any other agency that person shall be entitled to a fair hearing and to the right o f appeal or other legal remedy against the decision o f the court or o f the other agency concerned...” [Emphasis is added.] In the case of Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma (supra), this Court re-affirmed that the right to be heard is both a constitutional and fundamental right. It is a well-settled principle of law that any decision reached in violation of this sacred right cannot be allowed to stand, even where it is demonstrated that the same decision would inevitably have been reached had the affected party been accorded an opportunity to be heard. This principle has been consistently upheld by this Court in several authorities, including The Director of Public Prosecutions v. Sabini Inyasi Tesha & Another [1993] T.L.R. 237, National Housing Corporation v. Tanzania Shoe Company Limited & Others [1995] T.L.R. 251, and Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy 13

(supra), among others. In the latter case, the Court eloquently observed as follows: "The right o f a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f natural justice ." In the instant appeal, it Is not in dispute that the court recorded a concession by the respondents. As rightly pointed out, the applicant filed a supporting affidavit in compliance with the rules of procedure, while the respondents filed a counter-affidavit in opposition thereto. The learned Judge meticulously considered and analyzed the application on the basis of the rival affidavits and the applicable law. In the circumstances, it cannot be seriously contended that the parties, or any of them, were not accorded an opportunity to be heard. The learned Judge duly applied the relevant documentary evidence and legal principles to the facts and rendered a well-reasoned ruling. This is evident at page 262 of the record 14

of appeal where, after a thorough analysis, he arrived at the following conclusion: "Even if we are to assume that it was a decision, my critical review reveals that the applicant has failed to demonstrate how the authority (Director) acted without jurisdiction or failed to comply with the rules o f naturaljustice. In addition ; there is no evidence from the applicant establishing that the action taken by Director was unreasonable. All o f this considered together leads to only one conclusion that this application was prematurely preferred. In the spirit o f the foregoing reasons, I dismiss the application for want o f merit." In our considered view, it is beyond doubt that the parties to Misc. Cause No. 17558 of 2024 were duly heard. Their respective pleadings were placed before the court and subjected to careful analysis, notwithstanding the fact that they had conceded to the application. The contention that the parties were denied the right to be heard is therefore a clear misconception both in fact and in law and cannot be sustained. We thus dismiss both grounds of appeal. 15

Consequently, we are firmly of the view that this appeal is devoid of any merit. It is accordingly dismissed in its entirety with no order as to costs. DATED at MWANZA this 12th day of May, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered virtually this 12th day of May, 2026 in the presence of the appellant in person unrepresented, Mr. Leonard Elias Magwayega, learned advocate for the 1st, 2n d and 3r d respondents, M r. Allen Mbuya, learned State Attorney for the 4th respondent and M r. John Banene, Court Clerk; is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 16