Peter Michael Malebo & Others vs The Registered Trustees of The Civil United Front (cuf-chama Cha Wananchi) & Others (Civil Application No. 343 of 2018) [2018] TZCA 352 (24 December 2018)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPlICATIO'N Nd~' 343/01 Cj'j-:"2018 PETER MICHAEL MALEBO AND 8"OTHERS •...•.............•.....•.•••.••• APPLICANTS VERSUS

1. THE REGISTERED TRUSTEES OF THE CIVIL ..•.••.•• RESPONDENTS UNITED FRONT (CUF - CHAMA CHA WANANCHI) _
2. THE REGISTRAR OF POLITICAL PARTIES
3. THE HONOURABLE ATTORNEY GENERAL (Application for revision of the decision of the High Court of Tanzania (Main Registry), at Dar es Salaam) (Dyansobera, J.) dated the zs" day of May, 2018 in Misc. Civil Application No. 80 of 2017 RULING OF THE COURT 31st October & 24th December, 2018 MUSSA, J.A.: The applicants seek to move the Court to call for and examine the ." ,,:;.' ,.J:<~ .:J. .1r~r .•) .;,I_t,' • record of the High c6urt, Dares Salaam Main Registry, so as, to satlsfv " I. . .. itself as to the J..ega{ity, correctness and propriety of the decision made by the High Court (Dyansobera, J.) in Miscellaneous Civil Application No. 80 of .' 2017 on the 29 th May, 2018.

The application is by a Notice of Motion which has been taken out under section 4 (3) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Lawsjthe ~stJas well as Rule 65 (l}ang (4) of ttlY,.;Janzania Court of Appeal Rules, 2009 (the Rules). The same is supported by a joint affidavit of the applicants. In the referred High Court Miscellaneous Civil Application No. 80 of 2017, the first respondent herein had sought a temporary injunction to restrain the second and third respondents herein from disbursing the party's subventions from the Government pending the hearing inter partes and the determination of a Misc-eUaneous Cause No. 68 of 2017. It is noteworthy that none of the applicants herein were parties to the application which is sought to be impugned. At the height of the. proceeding, the application was granted. As we have hinted upon, a little later, on the 13 th June, 2018 {he applicants preferred the matter at hand which, as it turns out, has been gr.eet€d with a notice of preliminary points of objection raised by he first r-espondentto the following effect.- " . "1. The application is incompetent as it seeks the r-"",, ,.-I- 1-..... '_'/"OI/;'" 'ntertoa fl-vny deasion contrerv to CUUI L LU , C:vl;:;'C: ",{':CII ccu: Ul-L./.:;)/ II '-' '/L/ (.1/ Y v section 5 ~ (2) (d) of the Appel/ate Jurisdiction Act 2

Cap 141 R.E 2002 as amended by Act No. 25 of 2002. 2.. .Thc applicatiqp,.,. is incompetent as" . .ttie . applicants had appropriate remedy of applying to the Court which granted the injunction to var~ discharge or set it aside. 3. The application is incompetent for failure to include in the Record of Revision the following documents which were lodged in the High Court contrary to section 4 (3) of the Appellate Jurisdiction .-4ct Cap 141 R.E. 2002; a) Counter affidavit for the 1 st and :f1d respondents herein filed on Ogh October, 2017 in Miscellaneous Civil Application No. 80 of 2017. b) Reply to counter affidavit filed by the i" .,Respondent herein on [Jgh. November; ... -.2017 in .... MiscellaneousCivil Application No. 80 of 2017. c) Proceedings in MiscellaneousApplication No. 22 of ..,n -18 :17 the Hlah rr.··,, L.UJ. I ill '::til cou) t.. ~ '.~. .,- ., J

d) The Ruling and Drawn Order dated 2g17 Mav, 2018 , , made in MiscellaneousApplication No. 22 of 2018. .,,>.c e·,.· e) Counter Affidavit for 1 st and ;Z'd-Respondentsherein filed on 08 17 September, 2017. in Miscellaneous Cause No. 68 of 2017. f) Reply to Counter Affidavit for the 1 st respondent herein filed on 13 17 September. 2017 in Miscellaneous Cause No. 68 of 2017. g) Written Submissions by the i" respondent herein filed on 1;t17 June/ 2018 in support of Application in h) Reply Submissions by the 1 st and :f1d respondents herein filed on 2;(1d June/ 2018 in Miscellaneous Cause No. 68 of 2017. " 'To fortify the foregoing contentions, the first respondent has filed '4., written submissions to. which several authorities are appended. On their part, the applicants have similarly lodged written submissions in opposition. , .. .,,__. When the application was placed before us for hearing, the applicants were represented by Mr. Mashaka Ngole, learned advocate, 4

whereas the first respondent had the services of Messrs Juma Nassoro and Daimu Halfan, also learned Advocates. The second and third respondents "Wefe,represe8 J 2ed"'by Mr. David Kakwaya, 'learned Principal.State Attorney, who, was being assisted by Ms. Rehema Mtulya r learned St.ate Attorney. Mr. Halfan, who stood up for the first respondent, fully adopted the written submissions in support of the preliminary points of objection, without more. Mr. Kakwaya just as well supported the points raised in the notice of preliminary objection and, prayed that the application be struck out for incompetence. for the applicants, Mr. Ngole also similarly adopted the written submissions in opposition to the raised preliminary paints of objection. To him, the pr·elimlnary points of objection are wholly bereft of substance. Addressing the first preliminary paints of objection in the written submissions, Messrs Nassoro and Halfan sought to rely on section 5 {2) {d) of the Act which goes thus:- against or be made in respect of any preliminary or ;. '.' -, interlocutory decision "or"order of the High Court ..4', ,_; "'.';." •. ,";-' ,', T'I unless such decision or order has the effect of finally determining the criminal charge or suit // 5

Counsel submissions are to the effect that inasmuch as Miscellaneous' Civil Application No. 80 of 2017 has not dealt with and determined the;:: , dispute ,_. between ,; the., .. parties which is the . subject, of:;'!'. tM'8,'",pending Miscellaneous Cause -No, .. ~68,of 2017; the application at hand.Js. ba!:r€d_by.. the provisions of the Act and, for that matter, incompetent. To buttress their contention, Messrs Nassoro and Halfan sought to rely on the definition of "interlocutory proceeding" as propounded in the case of University of Dar es Salaam vs Silvester Cyprian and 210 Others [1998] TLR 175. Coming to the second point of preliminary objection, the learned have preferred the application at hand much as they had an appropriate remedy under Order XXXVII rule 5 of the Civil Procedure Code, Chapter 33 of the Laws which provides:- '~ny order for an injunction may be dischsrqed, varied, or set .esid«: bv"the; court-on application made thereto by any party dissatisfied with such order.Fr 6

In support of their contention: the learned counsel for the. first .. respondent referred us the English case of WEA Records ltd vs Visions challenge an order .of .. injunction "must, not appeal but applyto .the ,;coY..rt.. " " .' '.' # which issued the injunction to have it set aside. As regards the third point of objection, the first respondent contends that the applicants have omitted to include in the record of revision the listed documents without which the court cannot be said to have been properly moved to exercise ,its revisionary jurisdiction. To buttress the contention, we were referred to two decisions - viz - Mabalaganya vs sanca fL7(lvf'v'S'J 1 .•.. F 1'1 ')~n' ;::mrl ri\lil Llnnlir:::ltinn Nn 1 R4 of .7014 - Rilm;tni --- ._,- - - _II . '-VI ".0411'-4 '-"IYII , 't"'t"'II""' .•...••... '."""' •• ",-,1 _. _. . "' _ ConsultantsLtd vs The Board of Trustees of the NSSFand Another (unreported). As was expected, the learned Principal State Attorney for the second and third respondents went along with the submissions of the first respondent with regard to the preliminary points of 'Objection. " -: : }:l {9P!'/"the, applicants strenuously :3rqel" ,!,it8,rBspect to the first preliminary point of objection, that the decision sought-to be impugned is not interlocutory. ' In this regard, they .souqht re1iance in the unreported , decision of this Court in Civil Application No. 151 of 2008 - Chama cha Walimu Tanzania vs The Attorney General. More particularly, the '7 I

':lnnlir':lntc souoht (.t-Ji-"I'-'Ul IL'-' .....,..._,':1 .'" refuge in a portion of the decision where the Court observed:- or' .•• ,..:·C~ "':' i,':'ifi'· t'C"I: , ,"We are of the firm Vie;14! that the .otdes-issued. was . not interlocutory. It had tbe.ettect otcondusivety determining the application. The respondent was unreservedly granted what he was seeking in the chamber summons, as the applicant was restrained from "calling for and/or participating in the planned stnke". There was no other issue remaining to be determined by the Labour Court. // /,... •.. "',.,"" •.. r.! c: the second point Of objection thp applicants take ('n" e J-\7::J I eyOI U~ Lli ....oVIIU VII I", I ..ILl '- ,,1 \oJ I I ""'. 1_ ~ ",_'"'" position to the effect that the same is misleading inasmuch as Order XXXVII Rule 5 cannot be called into play by the applicants who were not parties to the High Court proceedings. Coming to the third point of preliminary objection, the applicants refute the existence of a counter affidavit referred to in' .pa'ragraph 3 (a) of ,1. .' .~ the point of objection,': The counter affidavits of the first and second respondents could not be in existence, more particularly, as the first respondent was, in the proceedings below, an applicant, They also claim 8

that there V"las' no ruling and drawn order referred to in paragraph 3 (d) of the objection much" as the referred Miscellaneous Application No. '22 of , , .. paragraphs. (C)7 (e), (f), (9) and (h), the applicants concede that the same have not been included in the record of revision but they quickly rejoin that those documents are not of any material relevancy in the determination of the matter under our consideration. In the premises, the applicants pray that the preliminary points of objection be dismissed with costs. We have earnestly considered the contending arguments on the preliminary points of objection. As regards the first preliminary point of objection I 'v'v'p thlnk ilrl.· Is aoooslte t-,.... cvtY::lrr tho substantive rior+ion f1f thp "'" I """ ., r r '" l..V ......I...I u...... LII'- UU ....11 I ..1 'V '- 'r'''"'' -"'.""' •• ....." "'I'''''' drawn order which went thus:- .. "THIS COURT DOTH HEREBY ORDER THAT The application for temporary injunction is granted by restraining the respondents from disbursing the applicant's parJ.y's·su:byefitiefJsfromthe government •...••..•••••••••• 1. •. H ~ 4> ••• '>:"""':tJ'" ."""lI)J.N"..",,, 'l"irr;;"N ·.J'b .- ~ . -_. .••. ". I ." pending the;' hearing and determination of ... ' ' !. "" #. ' Miscellaneous Civil Cause No. 68 of 2017 '", , . , , ,.-;', -.., . , which is pending In court or until . further of competent legal authority. 9

BY Tl-!E COURT Given under my HAND and SEAL of the court 017 w. ·P. DYANSOBERA JUDGE" [Emphasis added]. As is patently discernible from the extract, unlike the situation in Chama cha Walimu {supra) where there was no other issue remaining to be determined by the Labour court; in the situation at hand, the impugned order was issued, as it were, pending the hearing and determination of Miscellaneous Civil Cause No. 68 of 2017. It was, so to speak, issued pending further action which was to be taken by the issuing court. The ., impugned order, we may add, squarely falls on all the attributes of interlocutory proceedings as defined in the case of the University of Dar es Salaam {supra) in the following words:- "interiocutory proceedings are proceedings that do into decide the rights .of psrtte: but seek to keep r . .' things in status quo pending determination of those ,. - ..,;' '~!-' rights/ or enable the court to give directions as to < " > . how the cease is to be conducted or what is to be !, r+:» ., .. ', 10

done in the progress of the cause so as to enable '...; the court ultimately to decide. "On -the rights of the .,Jr ~ ,t,.;,! ..• ,·!r. •.:lz!" -, •• It " // pa les. ,.- . Having so found; we sustain theflrst pre'liminary point of objection to ..•. " the effect that this application is barred by the provisions of section'S (2) of the Act. This finding will alone suffice to dispose of this application and, for that matter, we need not belabour on the other points which were raised in the notice of preliminary objection. The application is, accordingly, struck out for incompetence with costs to the first respondent. DATED at DAR ES SALAAM this zo" day of December, 2018. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZlRAY JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL .•.• ~ ,·,"',tA'O/I·q,. •..• f!',alt; Pf f' •.'\ .A •••••• J' : ••••....• - a true copy or the ortqina]. r r- F i= 'C<:T '. - "bEPU*V Rk~~TR COURT Oi=~PPEAl \ \ . \ \ \ \ . , 'J ... t; _ • _', J 1 1