Baraza La Wanawake Tanzannia and Others vs Registrar of Societies and Others (Misc. Civil Cause No. 27 of 1997) [1999] TZHC 72 (9 June 1999)

I I I t ·, I 1 I·. I • t '· IN THE HIGH COIJR1' OF TANZJ\NIA AT DJ\H 3 ::iALAJ\M --···--·- MISC. CIVIL CAUSE N0.27 OF 1997 B.ARiLZA L'\ -IANAWAIG!: TAH'J\IHA AND OTHERS .......... APPLICANI'S Versus REGISTRAR OF' SOC:U."'I'IES AND OTHERS .......... RZBfOl'iDEt.rrS SUBJECT: Preliminary objections RULING ____ _.....,. KATIT!i J" MSOFFE, J. and BUBE~III, J. In obedience, to the order for filinr,, a reply to the Petition, such reply, objectio~~,. •,:·· ,.: (1) wa::5 accordingly filed, but stringed to it, were preliminary that are as follow::;:- :! : ' iricurrubly That the petition, is incompetent and defective, for contravening, section 5 of the Baaic Rights and Duties Enforcement J\ct flo.13/199 1 •, • in that the Petition, is not made by Ori6inating Summons, ae presc.ribed. (2) That the Petition, is misconcievcd and incompetent, in that the Peti+-ioners, were suppcsed to c:ppeal, to the Minister for Home Affairs. (3) That the prayers, in the Petition, are untenable, in Law .in terms of Section 13(2) of the Basic and Rights and. Duti1:.e Enforcement Act, 1994. (4) (5) That clause 3Q(b)(1) of the Petition contravenes Section 8(4) of the Basic i<iehts arid Dutieo Enforcement Act, 1994. ; -:- That paras 25,· 26 ond 27 of. the Pctitirn, .should be struck out, as being bnsetl on unrensonc\ble and erroneous apprehensions. 10 20 30 I i , . ) l ,. I r I ( I. l I. I, '

• At the commencement of heoring of objections, the learned State Attorney, withdrew objections Nos. 2, 3 and 5. We shall have henceto deal with objections Hos. 1 and 4, only. As is consistent with the practice, of this Court, the preliminary objections, have to be disposed of firot, co thnt where possible, points, whether of fact, or law, whose deterr:iination, may preclude the necessity of determining othero, are ef.1rly determin-::d. This exercic;e 1 we shall hereunder do • . }/.) In respect of objection (1) th•e· learned :tntci Counsel, for the respondents did both in notice of Preliminnry ohj(!ction, and his learned 10 submissions, question, the competence of t,he petition, that wno not made by way of Originating Summons, aG prescrib 1 1d by [iection 5 of the Basic Rights and Duties Enforcement Act, 199t1, hereinafter to be called the Act, and understanding the learned Sl:.<\tc Attorney, nc; we tlo, he seekc; thereby, to have the petition thrown out, for reasons thereof. The learned State Attorney Mr. Hwidunda, dutifully submitted, that .section 5 of the Act, was the crux of the matter. It promulgates, that for the pursuo.nce of human rights redress, an application b the l!ir,h Court, IJlwuld be made by petition filed in the appropriate Registry, of the High Cowt, by Originating Summons. The learned State Attorney further submitted, thnt the use of th word 20 11 Shall;' in the Section, shows that t~,e use of GriGinating Summons was mandatory:. He conceded however, that under section 15 of the Act, the Hon. Chief Justice, should have made the rufos of procedure to follow, and that since he •has not, we have to l'all back to the lnglfrh 3upreme Court rules, on Originating Summons, nnd their advantages, under the reception Clause. ; . He stated, that as such Orir,:innting SummoJiG were not ,used an mandatory . i should hr.ive beEJn the case, the petition should be thrown out, for failure to abide ti te procedure. On the other hand, the learned Pr0f. Shiv.ji ,,igorously resic;ted the objection. · He submitted, .. that 'Article 30(4), of the Constitution; 30 ··· hence to_ be called the Constitution, was the mother of Act, put in place for regulnting procedure for pursuit of human rir,hts, so to even facilitate the attainment of human rights. Prof. Shivji maintained, that Section 5, was inelec;;antly drafted, but all thE: same, its contruction inevitably provide, three avenues as action originating processes, namely: 1. application, 2. petition, anrl 3. Originating Summons. He insistingly added thnt, as, ·'applications;• were procedurally : I I I ' j Ii

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• 3 - and orinarily interlocutory in use, unler;s you have a Writ Jurisdiction at issue, it was not applicable here, the rcmaininc avenues for access to Court being either, 1. OriGinating .Summons, or 2. Petition. He maintained that Originating Summonr, 1 could bG resorted to, under the receipt ion clause under Cap.453, if the matters were not contimtious, demonstrably citing, CRAIG OSOOHNS - Civil Lit i£.T.!_tion P .1,1 L1. It war; hie forceful submission, that it was ,.,b::mrd to havl' t-.,o avenues for the same matter, by the same _parties, in the sam0. Court. Therefore, he proposed that ord 11 or 11 in the section, •to make it optionally appear providing, that the party, deper.ding on 'the circumstanc,es of his complaint, 10 should, either go by Originatinr; Summons, or by way of Petition, should be read in the section. The leHrnE""d St,,te Attorn<?y Mr. Mwitlunda, was hardly condenscending on this mat.tcr, maintr.ininp; th,'.\t by importini:; the word 11 or 11 into the section, the Court, would be usurping, the 1eislative function. We have had ample time, to consider the prot, and conn of the submissions, on the matter. We unanimously conce<lr: 1 thot there is no doubt, that this is a Constitution,'..ll matter, and that, t!K right to institute legal proceedings, for redress, where one's rights are transgressed or threatened, is Consitutionally proviclecl by Article 30(3) of the Constitution, defies controversy. It should b.e common ground, th:-i.t the muchinery for 20 regulating the procedure for inutilution of pt·oce,:dine-u, in plnce: in the above cited Act, has constitutionally been ordafrod, by Article _30(4) of the Constitution. We are thcrofore seriously convinced, that the Constitutional substance, for institutinG proceedings, is already in place, and what is tearine; the parties apart now, iG tha matter of procedure. We shall now delve into the r.iatter of procedure. ' While the State Attorney maintain'?d~ that the Originating Summons were mandv.tory, Prof. l:ihivji maintained that Originating Summons, one ,,an onG of th(• action originating pr.ocesses, for access to Court. In our judicial thinldnr;, we think that, for solutton the construction of Section 5 1 is very significant. We 30 submit: that first there was, over capitalisation, by the learned State Attorney ·of the word, 11 ohall 11 as meaninc mandatory, or oblieatory, and originating- summons being made to appeor to be the only course open. We ours:~ves ar'? reluctl:'.nt, to be one wny trnf~~ic ~hinkinr;, _nnd jump to conclusi;n, that where ,ever the word, ; 1 shanr• i's us,ed, it automatically mean_s mandatory, or obligatory. '.-le are not fore;ettinf,, that it is well settled, th .. \t the ur,e of the word 11 shnll' 1 doet:: not. ;;lways mean, that, the enactment is obligatory I or mandatory,' - it chould depend ·on the context 1

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• 4 in which the word 11 shul1 11 uppcur a nnd other circum::;tanccn, - oeo the cnsc of ... . ., ' ... .·.:. ,. ... ·.··· .. ,· . A'J;E OR t-'.ADHYA P}\DESI! vs AZJ\J Bl!Af<i\T FU:ANC:: .co. AIR 1967 Su.P.reme Court sZ§_. He think, the purpose, for which the provision has been made, and its nature, the intention of the Legislature, in m::il:ing the provision, the serious general ~ inconvinience, or the injustice to per::;ons, reaultinr from whether the provisions, is read one w3y, or the other, the relation of the partioular provisions to other considerations, w!-iich may r..rioc on the facts, of the particular case, inc] ;.irling tht' l::tnguagc of the r,rovi::;ions, hDvu all to be taken into account, in arrivinf:'; nt th"' concluGion, •·:hethcr a pr\rticular provisions, is mandatory or dfrcctory, r.C!L' the case- of E.A.. _.l.!!:,Jdli?..£~~ £..0• TD._vs MUNICIPAL BOARJ?.i...!,i.!·11:-1:!B, (1965) of SCA L151. \fo therefore think that, by any known canon of construction, 11orda of width, nm amplitude, ought not generally to be cut do1-m, so :10 to record into th<! language of the Statute, restraints, or conditions, which the lcgislnt1e itself, did not think it proper, or nece:.::sry, to impo:0. i-lc h::-.ve cugivatcd ourselves, to seriously ):>elieve, that considering, the vast powcr,3 given by the Constitution, nnd the significance of humnn rights, to be protected by the Constitution, the Court i:;hould not be taken at ran::;om by the word "shall", as construed as mandatory, or nor nJ-.ould it tr:!kC human rip;htn into captivity, or tho party be forced l;o npply Oricinr\tinr, Summons,· 1hcrc technically the matter is .. fnctunlJ.y contentiour.;, nnd therefore ill-Gui tetl for such Originating Summons. F\1rther, it iG woth Wf\tchinr, Cclrfully, th(; pod tion of the worq. "sh,11.1 1 !t in the sec,tion, nnd r,ccorrlinc to Mr. M:,dduntla 1 s con::;truction therefore.· both the petition and Originating Summons, n:ust manrlatorily be applied, and at the same: timch by the same parties. But orir;inating summons are, : 1 used t ere . ' - for nctions where. s no great diste. on. the facts,. but whi,ch turn maj.nly on a .r_oint of 1~, or construction of documt::nt:.,." - Sec CP.AIG OS30RNE on Civil Litigation. The conbmtG lltcrcof i11cludc Stntc1nent of Quc.stions for detenriiriation 1 or direction by the Court, '.md rcm0tly or, required by the plaintiff. We think, it is not too r.1uch to see, how a petition nnd Originatins Summons could, dependinG on circum::;tanccs, play such different roles, as not to be able, to concurrently work toGcthcr. We think thnt 1·10rd : 1 shall 11 should be understood ns directory, nnd not mnndntory. We have further rcvisi ted tl:e wording of s,.iction 5, nnd related it to the submissions, and we fintl ourselve::; in agrcemnt, with the learned Prof. Shivji, that, the section provides for n r.iuLiplicity of avenues, of access to the High Court; 1. Petition and 2. Oriein<1ting Gummons, having eliminated 11 application 1 11 as inapplicable, ns it is interlocutory in nturo. We think tho.t, that, both lleinc action orir,:inotini; processes, they cannot run to court abreast nnd concurrently, for thf: ::;arne matter, by the same I parties, in the same Court, os. sc.id above. Havin~ appreciated, this as we had done,. we think thir, would be nn nbsurdity, it is therefore, a y

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• 5 - co1spicuous defect. What do we do? 'l'he trend setter, for the nnswer, was Lord Denning in the case of SEA FOOD_ GOUR'!' ES:'c'A'i'BS LTD. vs ;\SHER (..!9 -~~ in which at p.164, b0 mndf: the followin historical . observation: :,When a defect appcnrr:, n Judc;c cannot 3imply hold his hands and blame, the drnftc::m1.1n ••••• !f,:- must set to work, on the conntructive tns~, of findin,~ the intention of Parlinmlnt, ••••• •• then he must supplcmnnt t,he written word, so n:1 to dv force Qnd life to the intentions of le13islaturc •••••• A;jutlr,e should nsk himself, the question how, if th'-' .r/111kcr::; of V10 Act, had tQCli1selves come across thic q1ck ,in tht::! texture of it, they should hnv(' straightncd it out? He must t}11:)n do o.s th,:•y •.,·ould hr.1;·c done. A jutl[;E: muGt not alter the mntcrinl of ,,:hich the 1:1ct is woven, but he can o.nd chould ;,iron out the creases. ;i This statement of principle, wr'.s apprcverl by our Court ·or App<tal, in the case 'of JOSBPH SI:--IDE WAlUOBA vs .STEPHEN MA0.S;1TU WASSIRA AIJD ATTORNEY

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GENERAL Civil Appeal No.5~/1996. Here we por::c, how would the Gentlemen Law makers of this country rcnct, if their nttr.lion, was dr:i.wn to scvGral avenues for one issue, same parties in one court contemplntcd b:r the cE:ction and asked whether it was their intention'/ 'l'hey would obv iounly sny, they never intended such n thi. We too, would arcc with t.llem. But in ironing out· 11 crt:ases," which we s'nould, would we be unsurpinc the.• legislati vci power'/ We think not, for in the proccc.s of ··ironing out cnloreases," we nre not usurping pow<::r, but mal<inr; the stntutc more affectiv,!, ::-,nd buildinr, for our society a system of law, whic!1 is .just, predictable, important elements of a Civiiiscd Society. We maintain that, the- k, about usurpation of power i;roundncss. Lord Dennin/;, was it .'.lGain. in the cnse of NOmU,!1 vs BAiiN1"T, LONDON BOROUGH COUOCIL (1978) 1/LH 220 nt 221: i "The guropean Courts fill in enp::i quite unaslrnmcrlly, without hesictation. They ask simply; hat iG the sensible way of dealing with the nituntion, GCl as to give effect to the presumed purponc of the legiGl.:;;tion? They lay down th lrr.~ c1ccordine.ly •• , ••• To our eye, - shortened by trndi tion; -it is 'legislation, pure arid simple. But to their eyes, it is fulfillinc the true role of the courts. They nre r,ivinr effect to whnt th<:: legislature intends, or may be presumed to h:we intended.'' We therefore just wish to say, that the fear of usurpation of power is not there, it is just shadow apprehension. \o/e thinlc therefore, that the legislature must have meant, that a pnrty for human ri£r,hts redress, depending on the circumstances of the case, cculd optionally h.:ivc nccess to the High Court for redress, either by wny of Pcti tion, or Origin&ting Suml!1ons. We think that we are justified in the circumnt:1ncl•r., to rcod the wo1·d 11 or;' between the words Petition and or Originntine Surnmono. -le think th:1t, in that light,

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• 6 - the petition, is not defective. 'l'herefore, section 5, it seems to us, as part of the Scheme of the Act, is to act like R bridge, for ·the pursuit of the Fundamental rights, ao enshrined in Article 12 - 24 of our Constitution. This Act, rightly given such a role, weiGhty, and touching, the interest of Tanzania masses, by the Hon. Hou.sc of Farliarr.ent, should not he given narrow, rigid and mechanistic, artificial interpretf,tion, it should be interpreted in such a manner, as to enable it, to play ncrentivc and dynamic role, in the expres·sion, and achievement of, or realization of human rights. ·, Even if we are wrong, on the .bove score, w:d we are confidently ·convinced, we are right, it does seem, tlwt the hw;nan rights avalanche, is i not repsector of precedural technicalities, through equally, it is a lover of procedure appropriately in place. 'l'hnt, hurnnn rie,ht, hnve been iJ1ternationa.1isc there is no doubt, anrl we shud,for to think, that we are allegic to such development. We are happy .to say th:,t, the .tremendous constitutional developments we have achieved, ic talking testmony, that we in fact are not. The crussade for the achievement nf, .'.lnrl rer.pect for hum."ln rigr.ta, hns had mementumtous, unprecedented time an::t defect of procedure, has not been so material. •Demostrably, nations, almost universally acting in unison show the trend. In the case of JAUN:JOO vs A'l"l'ORlt!ii Gi!:NERAL - Judgment of the PRIVY COUNCIL, appeal from the Court of Appeal of Guyana (1971) AC 972 at p.483, Lord Diplock observed: "The clear content-ion of the co,wti tub on, i,:; th;.it a person who alleg•B, that hiB dundnMcntaJ rights, are threatened, should have unhindered access to the High Court, is not to be defented by any failure-of Parliament, or the rule making authorit;r, to make specific provisions." Near home, in the Ugandan Constitution'al Court Case, TIMYZUZA vs GENERAL Constitutional Petition, 1 of 1997, 25 April, 1997 (unre!Jorted) Manyindo DCJ, states: ·-"The case before us relates, to the fundamental rights and freedoms of the Individual, like the Petitioner, which are enshrined in, and yrotected by the constitution. In my opinion, it woulrl be highly improper to deny him, a hearint; on technical, procedural grounds.; I would even go further and say, that even where the responqent objects to the petition, as in .thir. car.c, the ntntter should° proceed to trial, on merit' n, .unless it cloeG ;not, discloGe as cause of action at nll. 11 Adding another, not inconsistent voice, i1:1 not without value. In RRV. LONGWE AND ORD vs THZ A'I'l'O?.NEY Gf!:N1HJ,l I i\ND A!bl'E,.ffi 29/1/1993 Misc. Civil App. · No.11 •f 1993 (unreported) 1 the Malawi High Court, on the Constitutionality •f the order, stopping the applicnnt from speal<,inG at meetings, through Tambala, J. the Court said: "The decision, on r;uch application, mu:,t in my view, depend on the substcnces, cl?ld r.icri tr.; of th•~ application, and not on a proc0dural technicality.·'

.., I I ll 7 We therefore hold, thnt a procedural technicality Ghould not be given religious adoration, to defeat lh<.? riht to redress, guaranteed by the Supreme Law of the land - the Constitution. For this reason too, the · objection fails. Further, section 5, which h1s been central is in our vie\•, is a procedural provision. And we think, it is~ trit0 rule of contrution,'that procedurA.l renactments, sh·::iuld' be construed libernlly, and in such manner, as to render the enforcements of :mbrJLanti vc rir,htr.; c~f foct.i ve, ~ r;ce the case N.r Vfil.USWAMI THEWAR RAJA NAIRA 1959 SC 1124. In other ~ords, we hold that: (1) 'l'he purpose and end of all procedur0, i3 to fr.cilitate the ends of Justice, and not be subser,'live to it; therefore, if notwith::;t:rnding, the non-observance of the rule of procedure, t!1c nd i- ;,.ttaincd, then the irregularity, should be condoned, (2) the enactments of procedure t9wards, the realisation of human riGhts, clloul.d be lib,~rully conotrucd, to avoid, short circuiting of the same, on t:rounds of procedural imperfection, or technicality •. It is our view, that the con:,titutionnl p;ates, into th-? house of human rights, should always be open and ajar, for any ne;grieved, to seek shelter and redress thereunder, without ador-2.tion of technicalities. In this case, we·hold therefore that, the nhsence of origim 1 L.i11c; ;urnmonr:., even if a defect, which' we say it is not, ohnll, not lock the petitioner::; out of the ' gates of justice, bolts and nuto. We clcclint t:h,:: i nvitntion. .,:. i ~e' shall now, revert t.o lhe iant objection

No.I+

• ':ihat clause 3Q(b)(1) of the Petition, contravenes Section 8(1+) of the Act, 199'•, nnd should therefore be struck out. 'l'he H,Sl)Ondents,, contention \•13.G that section 8(4) • was an injunction against the issue of prerogativ?. orders for obtaining redress in respect of matters covered by thi:; ttct. However Prof. Shivji maintained, that in fact the proviso, provide for: the contrary by making access to court easier. Since raw: currounrl:::, Liiv conr-l!·uction of this subsection, we wish to reproduce it !ierr:, for ease of reference. It provides thus: . 11 8(4) For avoidance of doubt, the prov1s1ons of Part ·vn of the Fatal Accidents Cap. 3tJ (Law Reform and 1-!isc. Provisions) Act, which relate to proc,~dure for, and the power of the llici, Court, to isGue prcrosative orders, shall not apply for purroscs of obtaining redress, in respect in matter c JVer,)d 1:, tlrn Act. 11 We have invested attendant time, nnd scriouG considcrntion of the above.prov°isions, and the exponent and counter suomi.ssions, and we think, that the prop'er construction is as follows: ( 1) provision.:- of Part VII of Fatal Accident Cap-360 (Law Reform and•Hisc. Provision) Act, (2) that relate I to procedure for, and power of C1e t:i'5h Court, (3) for insuing prerogative crdera (4) shall not apply to snch matters cov,?red by the Act. In short,

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• 8 - what the proviso provides for, ir; that the proceclure for EJ.nd power of the . ' High Court to issue prerogative, ordcro, should not be used where) the Act, had already provided for the avenu8. In other words, there should not be I i two avenues for the same thing, or mi'ittcr. It does ndt say th.::1t, the High Court shall not issue prerogntivc orders in Constitutional Cnse, which was easier to say, if tlv: lcgislnture so int0nclccl, one cannot foil to see the policy behind this, it, avoids mu1liplici.ty of nvnues and attendant, confusions, collisons of decisions, and involved authorities - one under the Constitution· and the: Act, and, R.nothcr under Judicial Review. That means, the Writ Orders can and may be issued in Constitutional cases -r suits, see - KAIJAGi vs ESSO LTD Civil Appeal No.10/82. In the final / result this object~on, also fails. The objections are.over ruled with costs. Delivered this 9th day of June, 1999. E.W. KATITI JUDGE J .H. MSOJ.i'.F.:!: JUDGE A.G. DUBESHI JUDGE , ,. .... ·. I I certify lhat this is a true copy of the . I 1HS"i.'RIC'l' REG!~~ , '