IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)
AT PAR ES SALAAM

MISCELLANEOUS CAUSE NO. 16 OF 2022

HALIMA JAMES MDEE............................................. 1st APPLICANT

GRACE VICTOR TENDEGA....................................... 2nd APPLICANT
ESTHER NICHOLAUS MATIKO.................................3rd APPLICANT
ESTER AMOS BULAYA.............................................4th APPLICANT
AGNESTA LAMBERT KAIZA..................................... 5™ APPLICANT
ANATROPIA THEONEST..........................................6th APPLICANT
ASYA MWADINI MOHAMED.................................... 7™ APPLICANT
CECILIA DANIEL PARESSO..................................... 8™ APPLICANT
CONCHESTA LEONCE RWAMLAZA........................... 9th APPLICANT
FELISTER DEOGRATIUS NJAU.............................. 10th APPLICANT
HAWA S. MWAIFUNGA......................................... 11th APPLICANT
JESCA DAVID KISHOA.......................................... 12™ APPLICANT
KUNTI YUSUPH MAJALA....................................... 13™ APPLICANT
NAGHENJWA LIVINGSTONE KABOYOKA................14™ APPLICANT
NUSRAT SHAABAN HANJE.................................... 15™ APPLICANT
SALOME MAKAMBA.............................................. 16™ APPLICANT
SOPHIA HEBRON MWAKAGENDA..........................17™ APPLICANT
STELLA SIMON FIYAO..........................................18™ APPLICANT
TUNZA ISSA MALAPO........................................... 19™ APPLICANT

VERSUS
THE BOARD OF TRUSTEES OF CHAMA CHA
DEMOKRASIA NA MAENDELEO (CHADEMA)........... ^RESPONDENT
THE NATIONAL ELECTION COMMISSION ........... 2ndRESPONDENT
THE ATTORNEY GENERAL................................. 3rdRESPONDENT

i
 RULING

13 & 22 June 2022

MGETTA, J:

On 12th May, 2022, this application for leave to apply for judicial review

was brought by way of chamber summons supported by affidavits and

accompanied with applicants' joint statement. The application is brought

against the Board of Trustees of Chama cha Demokrasia na Maendeleo

(hereinafter referred interchangeably by its acronym as CHADEMA and or as

the 1st respondent); the National Election Commission (hereinafter referred

interchangeably by its acronym as NEC and or as the 2nd respondent); and,

the Attorney General (the 3rd respondent). If leave is granted, the applicants

intend to apply for prerogative orders of Certiorari and Mandamus against

the whole process and decision passed on 11th May, 2022 by 1st respondent's

General Council for allegedly expelling them from membership of CHADEMA.

In reply, CHADEMA appeared through its advocates equipped with a

set of seven preliminary objections challenging the application that was

brought by the applicants. Thus, in this ruling, I have endeavored to

determine them. For the sake of clarity, I would like to reproduce the seven

preliminary objections as hereunder:

1. That the Application is time barred. It emanates from 1st

Respondent's Central Committee's decision passed on

27/11/2020 which is more than 6 months, vide: Rule 6 of the

Law Reforms (Fatal Accidents and Miscellaneous

provisions) (Judicial Review Procedure and Fees) Rules

of 2014 (henceforth 2014 Rules).

2. That this Court lacks jurisdiction in terms of Article 74 (12) of

the Constitution of the United Republic of Tanzania as

amended from time to time (henceforth the Constitution) to

investigate NEC.

3. That there is no valid Statement to support the application in

terms of Rule 5 (2) (a) of 2014 Rules.

4. That the affidavits are fatally defective for the following reasons:

(i) The verifications are defective as their contents

thereof are not based wholly on belief contrary to

Order XIX Rule 3 of the Civil Procedure Code,

Cap 33 (henceforth Cap.33)

 (ii) The affidavits are signed by applicants' Advocates;

thereby defeating the requirement that they be

deposed and signed by deponents only.

5. That this Court lacks jurisdiction to hear this application against

the 1st respondent because it is not a Public Body or Authority

amenable to judicial review.

6. That the application is frivolous, vexatious and an abuse of court

process.

7. That, the applicants have sued a nonexistent party namely "The

Board of Trustees of Chama cha Demokrasia na Maendeleo

(CHADEMA), instead of the statutory Registered Trustees of

Chama Cha Demokrasia na Maendeleo (CHADEMA).

When the application was called on for hearing of the raised

preliminary objections, six learned advocates namely Mr. Aliko

Mwamanenge, Edson Kilatu, Panya Ipilinga, Ferdinand Makole, Emanuel

Ukashu and Matinde Waisaku appeared for all applicants; while, three

learned advocates namely Peter Kibatala, Jeremia Mtobesya and Dickson

Matata, appeared and represented the 1st respondent; and, the 2nd and 3rd

respondents enjoyed a legal service of the Solicitor General, Mr. Gabriel

Malata, assisted by three learned State Attorneys namely Stanley Kalokola,

Ayoub Sanga and Debora Mcharo.

Before hearing has began, after a short engagement with me, counsel

for the 1st respondent dropped the 1st preliminary objection from the list of

the above-stated preliminary objections. Through their respective counsel,

parties therefore addressed me with regard to the remaining six preliminary

objections as hereunder.

In regard to the 2nd Preliminary objection, it was a complaint by Mr.

Mtobesya, the learned advocate for the 1st respondent that this court lacks

jurisdiction to investigate NEC pursuant to article 74 (12) of the

Constitution. He supported his argument with the decision in the case of

Miza Bakari Haji and 9 Others Versus The Registered Trustees of

the Civic United Front (CUF) & 14 Others; Misc. Civil Application No.

479 of 2017 (HC) (DSM) (unreported) in which NEC was one of the

respondents.

Responding to the above submission, Mr. Aliko submitted that article

74 (12) of the Constitution presupposes that NEC has already performed

public duties. If NEC had already acted in pursuant to the provision of article

78 (3) & (4) of the Constitution, obviously, it could not be interfered or

investigated by the court. After all, the applicants do not ask for inquiry of

what NEC had done. He said further that the case of Miza Bakari Haji

(supra) is distinguishable from the present application because it was stated

at page 3 of the decision that NEC had already chosen the Members of

Parliament, but in the present application NEC has not yet done anything.

Hence, he asked me to overrule this preliminary.

First and foremost, I wish to emphasize that the case of Miza Bakari

Case (supra) cited by Mr. Mtobesya is inapplicable here as in the said case

the 2nd respondent was executing his Constitutional mandate conferred by

article 74(6) (b) of the Constitution. Further in that case the 2nd

respondent had already acted (pronounced the 6th -13th respondents in that

case as Members of the Parliament). But in the present case, no act has

been made by the 2nd respondent.

However, while understanding that judicial review is not for

contemplative actions, at this stage of application for leave, I consider this

issue as not a pure point of law. It need more explanation or evidence from

the applicants first why they lodged complaints against NEC and then the

respondent will reply, before the court decide to determine it. I thus find this

preliminary objection without merit. It is accordingly overruled.

 I now move to the 3rd preliminary objection. Mr. Kibatala, the learned

advocate for the 1st respondent complained that there is no valid statement

in support of the application. He said one of the important documents to

accompany the application for leave is a valid statement. The joint statement

accompanying the application is not valid because, one it is signed by each

applicant as well two applicants' advocates; two, it contained verifications

of 19 applicants who purport to verify affidavits and not their joint statement.

As a result, there is a misconnection between the joint statement and the

verifications. Three, the statement does not give the description of the

applicants contrary to rule 5 (2) (a) of 2014 Rules. To cement his

argument, he referred this court to the decision in the case of Emmanuel

S. Stephen Versus The President of the United Republic of Tanzania

and Four Others; Misc Civil Application No. 12 of 2019 (HC) (Mbeya)

(unreported).

Responding to Mr. Kibatala's submission, Mr. Aliko the learned

advocate for applicants said that they complied with rule 5 (2) (a) of the

2014 Rules, by providing the names and description of the applicants who

are natural persons. He cited paragraph 3 of their joint statement which

shows the descriptions of the applicants that they are Members of Parliament
of the United Republic of Tanzania sponsored by CHADEMA. He added that

since that requirement was met, then the joint statement is valid.

In line with Mr. Aliko's submission, Mr. Panya the learned advocate for

applicants admitted that it is true that the applicants verified "affidavits" and

not the joint statement, but that would not invalidate the entire statement.

To him that is a mere defect which requires rectification.

In his reply, Mr. Kibatala reiterated his submission in chief and added

that there is no dispute that the statement is signed by the applicants'

advocates and that the applicants counsel just made clarification of what

contained in the joint statement. They did not oppose and or shaken his

submission. He therefore insisted that the joint statement does not comply

with the law. Hence, it is incurably defective. Thus, in order not to open

pandoras box, this court has to strike it out.

Having heard the rival submissions, as the law requires, it is a

mandatory requirement, couched by the mandatory word "shall", that, apart

from being supported by affidavit, the application for leave and application

for judicial review, once leave is granted, must be accompanied by a

statement as provided for under rule 5 (2) (a) of 2014 Rules. For ease of

reference, it is worth to quote rule 5(2) (a) of 2014 Rules as hereunder:

 " (2) An application for leave shall be made exparte to a

judge in chambers and be accompanied by -

(a) a statementproviding for the name and

description o f the applicant."

In view of the aforesaid, it is a common ground that applicants'

application is accompanied by their joint statement, signed by each one and

by their advocates. Its verification clause indicates that the applicants did

verify affidavits and not joint statement. According to the 1st respondent's

counsel, it is that wrongly verified statement and signatures of the applicants'

advocates therein that render the joint statement invalid as a result, there is

a misconnection between the joint statement and the verifications.

To demonstrate what is complained of by the 1st respondent counsel,

I hereunder quote the verification of the 1st applicant which read that:

"Haiima James Mdee, do hereby verify that what is stated

hereinabove in paragraphs..................... o f the

affidavit are true to the best o f own knowledge."

It is clearly and vividly shown in the above quoted verification that in

a place of joint statement, they inserted "affidavit". What was verified

therefore it was not the content of their joint statement, but rather of the

9
affidavit; whereas, the title of the document reads "applicants' joint

statement". As their counsel did not resist, but rather conceded and further

requested me to allow rectification of the errors. Pursuant to the principle of

overriding objective provided under sections 3A and 3B of Cap 33 as

amended by section 6 of the Written Laws (Miscellaneous

Amendments) (No. 3) Act, 2018,1 am constrained to agree with them.

While upholding the 3rd preliminary objection, I do exercise the discretion of

this court and proceed to give the applicants, if they so wish, an opportunity

to rectify such short fall.

On the 1st limb of the 4th preliminary objection, Mr. Kibatala complained

that the affidavits are fatally defective for the reasons that the verifications

are defective in that they contain thereof matters not based wholly on belief

contrary to Order XIX rule 3 of Cap 33. The affidavits contain facts which

are not in the applicants' knowledge. He cited example of paragraphs 16,19

and 24 which contain arguments and opinions. Paragraph 20 contains

opinion. This is repeated in paragraphs 21, 22, 23 and 25. Those paragraphs

should be expunged and the affidavits declared defective. As a result, the

application will remain unsupported. He cited the case of Lalago Cotton

Ginnery and Oil Mills Company Limited Versus Loans and Advance

10
Realization Trust (LART); Civil Application No. 80 of 2020 (CA) (Dar es

Salaam) (unreported) whereby the Court of Appeal discussed a valid affidavit

and matters not allowed to go in the affidavit. If the affidavit contains

opinions, arguments, etc, that affidavit should be declared defective. He also

referred to the case of Anatol Peter Rwebangira Versus The Principal

Secretary Ministry of Defence and National Service and Another;

Civil Application No. 548/04 of 2018 (CA) (Bukoba) (unreported) where the

court of Appeal discussed defective affidavit.

As regard to the 2nd limb of the 4th preliminary objection, Mt. Kibatala

submitted that all the affidavits are signed by the applicants and their two

advocates thereby defeating the requirement that it be deposed and signed

by a deponent only. According to him that was wrong because he who

swears or affirms an affidavit is the applicant who owns the affidavit and not

his advocate who is not a deponent and therefore a stranger to the affidavit.

Advocates' signatures in the affidavits signify or imply that they are also

deponents owning the affidavits. In law such contents of such affidavits

deposed and signed by advocates become hearsay to them as they were not

proper persons ought to sign the affidavits. Thus, he added, the signatures

of the advocates on the affidavits vitiate the validity of the affidavits; and

ii
hence, they became defective. The court should not put them in

consideration as it was stated in the case of Rahel Kazimoto Versus

Mwajabu Yusuf Mtambo; Civil Application No. 10 of 2007 (Court of

Appeal) (Dar es Salaam) (unreported) whereby the Court of Appeal stated

that a defective affidavit cannot be acted upon.

Responding to the foregoing, Mr. Kilatu stated that Mr. Kibatala did not

properly direct himself to the raised preliminary objection. He asserted that

section 10 of the Oaths and statutory Declarations Act, Cap 34

(henceforth Cap 34) prescribe the form how the affidavit should look like.

He referred to the case of Director of Public Prosecutions Versus

Dodoli Kapufi & Another; Criminal Application No. 11 of 2008 (CA) (DSM)

(unreported) whereby the Court of Appeal laid down the essential

ingredients of any valid affidavit to be as hereunder:

(i) the statement or declaration o ffacts,etc, by deponent;

(ii) a verification clause

(Hi) a jurat, and

(iv) the signatures o f the deponent and the person who in

law is authorized either to administer the oath or to

accept the affirmation."

12
 He added that advocates' signatures on the affidavits does not mean

that that advocates own the contents of the affidavits. In his submission he

stated that the applicants did comply with the ingredients of affidavit as

spelled out in the case of Dodoli Kapufi (supra). He also referred this court

to section 9 of Cap 34, which provides that irregularity should not affect

validity of an oath. He asked this court not to be bound by technicalities as

provided for under section 3A of Cap. 33. He also referred this court to

the case of Sanyou Service Station Ltd Versus BP Tanzania Ltd (now

PUMA Energy (T) Ltd); Civil Application No. 185/17 of 2018 (CA) (DSM)

where an affidavit was found defective but His Lordship ordered the

amendment of the affidavit to cure the defect.

In reply, Mr. Kibatala stated that the contents of the affidavit such as

opinions, arguments etc. are not allowed and are against the law governing

affidavit. The applicants counsel did not respond to the paragraphs of the

affidavit which are offensive. Likewise, the advocates were not supposed to

sign the affidavits because they did not own them. The applicants as

deponents and who own the affidavits were the only persons supposed to

sign the affidavits. Signing the affidavits by advocates offended the law

which is very clear on this issue that another person who is not a deponent

13
is not allowed to sign an affidavit. In the present situation, both the

applicants and their advocates did sign on the affidavits. Thus, advocates'

signatures are not curable. The remedy available is to strike out the

affidavits.

It is a trite law that there are matters which are not allowed to go in

the affidavit. As this application is a civil in nature, I would like to invoke the

provisions of Order XIX Rule 3 (1) of Cap 33 which provides for what

should be in the affidavit that:

"3.-(1) Affidavits shall be confined to such facts as the

deponent is able o f his own knowledge to prove, except

on interlocutory applications on which statements o f his

beliefmay be admitted:

Provided that, the grounds thereofare stated."

I have to revisit also what was observed in the case of Uganda

Versus Commissioner of Prisons, exparte Matove [1966] E.A. 514 at

Page 520, which is still a good law on affidavits, that:

.......... as a genera! rule o fpractice andprocedure, an

affidavit for use in court, being a substitute for oral

evidence, should only contain statements o f facts and

14
 circumstances to which the witness deposes either o f his

own personal knowledge or from information which he

believes to be true. Such an affidavit should not contain

extraneous matter by way o f objection or prayer or legal

argument or conclusion."

Therefore, it goes without say that an affidavit which violates those

precepts should be struck out. Likewise, in the case of Anatol Peter

Rwebangira (supra), the Court of Appeal quoted the definition of affidavit

relying on a Taxmann's Law Dictionary, D.P. Mittal at page 138 that

affidavit in law is:

............... a statement in the name o f a person called

deponent, by whom it is voluntary signed or sworn to or

affirmed. It must be confined to such statements as the

deponent is able o f his own knowledge to prove but in

certain cases may contain statements o f information and

belief with grounds thereon"

A quick look at the applicants' affidavit show that paragraph 16

contains words like "the 1st respondent has issued a, malicious, illegal and

15
ultravires..../'. Paragraph 19 contains conclusions by having words like

unfounded, unreasonable; Irrational and unjustified; paragraph 20 contains

words like Bias, ultravires; paragraphs 21 and 22 have words like illegalanti

ultravires; paragraph 23 contains the words like ultravires decision of the

governing council. Thus, paragraphs 16, 19,20,21,22,23 and 24 of the

applicants' affidavits have offended the provision of Order XIX Rule 3 of

Cap 33.

In this regard, I agree with the submission of 1st respondent's counsel

that due to the inclusion of opinions, argumentative, prayers and conclusion

in the affidavits, the affidavits are rendered defective. I thus find, the 1st

limb of the 4th preliminary objection meritorious. Pursuant to the decision in

the case of Mondorose Village Council and Another (supra), I do hereby

expunge those offensive paragraphs from the record.

As far as the 2nd limb of the 4th preliminary objection is concerned, with

respect I agree with Mr. Kibatala, that an advocate cannot sign an affidavit

as deponent for his client as he is not owner of the affidavit; on the other

hand, he can swear or affirm an affidavit on matters which are in his personal

knowledge only. But, a glance at the affidavits in support of the application

for leave, I noticed that each applicant and the two applicants' advocates

16
signed immediately under the words "DATED at DAR ES SALAAM on this 12th

day o f May, 2022" To me that is not fatal as they did not sign at the place

the deponent is supposed to sign. It is true that if the applicants and

advocates could have signed affidavits as deponents, that would have

rendered the affidavits incurably defective. That is not a case here. Actually,

each applicant signed at a correct place as a deponent in compliance with

the requirement of the law. Thus, the 2nd limb of the 4th preliminary objection

has no legs to stand and is accordingly dismissed.

Arguing for the 5th preliminary objection, Mr. Mtobesya submitted that

the 1st respondent is not a public body or authority which is not amenable to

judicial review. It is a private body with private arrangement whereby

members of the party agree to meet and prepare or perform their own

private matters. It does not concern with public issues. He however agreed

that judicial review can only lie to the 1st respondent provided that it was

discharging public duties. He argued that the 1st respondent was not

performing public duties when it expelled the applicants from being it

members. To substantiate his arguments, he referred to the decision in the

case of Roychan Abraham Versus State of U.P. & Three Others; Writ
A NO. 63708 of 2014 Allahabad High Court, India. He added that the 1st

respondent was not performing public duties.

The 1st respondent's counsel went further insisting that what is before

this court is a private body without power to deal with public functions. He

referred to the case of Alhaji A J Mungula Versus Baraza Kuu la

Waislam wa Tanzania [1997] TLR 50 where it was said that Bakwata was

not performing public functions. The court warns itself that it should not

interfere with domestic issues. Mr. Mtobesya added that the mandate of the

1st respondent is restricted to section 21 (1) of the Political Parties Act

(henceforth Cap 258), ie to manage the properties etc and not to public

functions.

In response, Mr. Kilatu stated that judicial review primarily was meant

for public bodies. But now, private bodies performing public functions are

also amenable to judicial review; hence, this court has jurisdiction to

entertain this matter. However, he submitted that a political party is not a

private enterprises or entity. He referred to Article 3 (1) of the

Constitution and to the provisions of Cap 258 which he submitted

regulates activities of a political party. Assuming the 1st respondent is a

private entity, Mr. Kilatu referred me to the case of Roychan Abrahim

18
(supra) and added that affairs touching a political party are things that

automatically have public interests. He stated paragraph 30 of the decision

in Roychan Case (supra) talks about private person to be amenable to

judicial review. He insisted that judicial review applies to the 1st respondent.

In a rejoinder, Mr. Mtobesya stated that ordinarily, judicial review is

issued against public bodies. It can be extended to private body which are

performing public functions. Certiorari does not lie to private body. However,

mandamus can lie to a private body. There are circumstances where private

body can be amenable to judicial review in respect of matters enlisted under

section 6 A (5) of Cap 258, but not to domestic relationship of a political

party. Cap 258 does regulate conducts of domestic affairs of a political

party. Referring to Alhaj Mungula case (supra), he urged this court not to

enter into domestic relationship of political party by way of judicial review.

The functions of CHADEMA is not public, but private functions. Those

functions are regulatory. He however added that a member of a political

party is not restricted or barred to come to court if aggrieved, but not by

way of judicial review. He asked this court to uphold the 5th preliminary

objection.

19
 I have very carefully listened the rival submissions of the counsel for

their respective parties and come to the conclusion that this would be one

of the arguable issues. If I may be excused I may say and I am saying that

I will not spend much time on this issue because, as I will demonstrate later

hereinafter, the first respondent has no legal capacity to sue or being sued.

So whether it is public body or private body performing public functions is

not an issue at the present. However, their rival arguments indicate that

there is an argued issue if the applicants are granted with leave; and, that it

will be very well conversed if they will be granted with leave. The 5th

preliminary objection is accordingly overruled.

I now move to the 6th preliminary objection. On this objection, Mr.

Mtobesya complained that the application for leave is frivolous, vexatious

and abuse of the court process because the 1st respondent is not amenable

to judicial review. If the application for leave is granted, the applicants intend

to apply for judicial review against the 1st respondent which is not a public

body. It is a private body which was not performing public functions. The

application was therefore brought without seriousness. To support his

arguments, he referred to the Indian case of Roychan Abraham case

(supra) that the prerogative orders can be issued to the body performing

20
public duties. He also referred to another Indian case of Sri Pradip Dutta

Versus Union of India & Five Others; WP (c) No. 2685 of 2006; Gauhatt

High Court, India; and case of John Mwombeki Byombalirwa Versus

The Regional Commissioner & Another [1986] TLR 73 which provided

for prerequisite conditions to be established before an order of mandamus

is issued. On the strength of his submission, he concluded that the

application for leave is frivolous, vexations and abuse of court process. It

should be struck out.

Responding to Mr. Mtobesya's submission, Mr. Kilatu first asked himself

what is the yardstick to consider that the application is frivolous, vexatious

and abuse of court process. He referred to the case of Mukisa Biscuits

Manufacturing Ltd. V. West End Distributors Ltd, [1969] 1 EA 696

where it was emphasized that in order a matter to qualify as preliminary

objection that matter must not require evidence to be adduced and assessed

by the court. He also referred to the case of Yoran Lwehabura Bashange

Versus The Chairman of National Electoral Commission & Another;

Misc. Civil Cause No. 19 of 2021 (HC) (DSM Main Registry) (unreported)

where this court dismissed the raised preliminary objection after it was found

21
that it did not involve a pure point of law. Mr. Kilatu at the end requested

this court to dismiss the 6th preliminary objection.

In determining this preliminary objection, I would first wish to know

what the terminologies of frivolous and vexatious are all about. In that

endeavour I came across a persuasive Kenyan case of Kiama Wangai

Versus John N. Mugambi & Anther [2012] eKLR or [2013] 2 EA 474. The

court found that:

"A matter is frivolous if (i) it has no substance; or (ii) it

is fanciful; or (iii) where a party is trifling with the court;

or (iv) when to put up a defence would be wasting

court's time; (v) when it is not capable o f reasoned

argument"

In Kiama Wangai case (supra), the kenyan court also found that a

matter is said to be vexatious when:

”(i) it has no foundation; or (ii) it has no chance o f

succeeding; or (iii) the defence (pleading) is brought

merely for purposes o fannoyance; or (v) it is brought so

that the party's pleading should have some fanciful

advantage; or (v) where it can really lead to no possible

 good; or (vi) it lacks bona fides and is hopeless or

offensive and tends to cause the opposite party

unnecessary anxiety, trouble and expense".

Furthermore, in a Longman Dictionary of Contemporary English;

the Pitman Press, 1st edn, 1979 by Paul Procter (Ed) the word frivolous (adj)

means 1. not serious; silly; useless; 2. unable to take important matters

seriously; liking to spend time in light useless pleasures. While, the word

vexatious (adj) means displeasing; troublesome.

Having all the above in mind, I am of the view that those words should

not be taken casually by courts of law at the expanse of the litigants. As

argued by Mr. Kilatu one could not take the issue of whether this application

is frivolous, vexatious or abuse of court process without having heard the

applicants first. I thus consider this preliminary objection as not pure point

of law. It requires production of evidence and then one could judge whether

the application is frivolous, vexatious or abuse of court process. Once

evidence is required, then such objection becomes not preliminary objection

on point of law and not on facts, to meet the principle that was laid down in

Mukisa Biscuits case which defines what a preliminary objection is and

also provides when it can be raised and when it should not be raised. For

23
ease of reference, I quote the position set out in Mukisa Biscuits case as

hereunder:

"A preliminary objection is in the nature o f what used

to be a demurrer. It raises a pure point o f law which

is argued on the assumption that a ii 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 o fjudicial discretion. "

From the foregoing I am at once in agreement with Mr. Kilatu that the

raised objection has no merit. I do overrule it accordingly.

As regard to the 7th preliminary objection, Mr. Kibatala submitted that

the applicants have sued a nonexistent party namely the Board of Trustees

of Chama cha Demokrasia na Maendeleo (CHADEMA), instead of the

Registered Trustees of Chama cha Demokrasia na Maendeleo (CHADEMA).

He submitted that according to section 21(2) of Cap 258 (henceforth Cap

258), after registration a political party appoints board of trustees which shall

be incorporated under the Trustees' Incorporation Act, Cap 318

(henceforth Cap 318). Section 6(2) of Cap 318 provides that upon board

of Trustee being incorporated, it becomes a body corporate and shall include

24
the words "Registered Trustees". The Word used is "shall" meaning

mandatory. It is the Registered Trustees of a party which has power to sue

and be sued. He referred to the case of Ilela Village Council Versus

Ansaar Muslim Youth Centre and Another; Civil Appeal No. 317 of 2019

(CA) (Iringa) (unreported) where the Court of Appeal insisted that what

should be sued in that case was the Registered Trustees of Ansaar Muslim

Youth Center. He also referred this court to the case of Jung Hwan Kim

and Another Versus Tanzania Presbyterian Church; Civil Case No. 98

of 2019 where my learned brother, Hon E.E. Kakolaki, J uphold the raised

preliminary objection on the ground that to proceed to hear the suit in which

one of its party is non existing would amount to deciding a matter against

no person before the court. He found the suit incompetent and proceeded

to strike it out.

Mr. Kibatala further submitted that suing a wrong party is a basic issue

to which the court should not condone. He referred this court to the case of

Martin D. Kumalija & 117 Others Versus Iron and Steel Ltd; Civil

Application No. 70/18 of 2018 (CA) (DSM) (unreported) whereby the Court

of Appeal stated that the principle of overriding objective is there to facilitate

the just, expeditious, proportionate and affordable resolution of disputes;

25
but it will not help a party circumvent the mandatory rules of the court. Mr.

Kibatala insisted that the raised preliminary objection should not be ignored

by the court of law simply because there is overriding objective. The court

should apply the law as it is and not otherwise. He finally referred this court

to the case of Mondorosi Village Council and Two Others Versus

Tanzania Breweries Limited and 4 Others; Civil Appeal No. 66 of 2017

(CA) (Arusha) (unreported) where the Court of Appeal found that the

overriding objective principle cannot be applied blindly against the

mandatory provisions of the procedural law which go to the very foundation

of the case.

In response, Mr. Kilatu submitted that the 1st respondent is a proper

and existing party. He insisted that Mr. Kibatala's submission have no legal

basis as the law have changed. He submitted section 76 of the Written

Laws (Miscellaneous Amendments) (No. 3) Act, 2019 (henceforth Act

No 9 of 2019) does exempt the applicability of the Cap 318 and Cap 258

to the term Trust. Section 1A (f) added to Cap 318 by section 76 of

Act No. 9 of 2019 does exempt a political party with the requirement of

Trustee Incorporation Act. For that purpose, section 6(2) of Cap. 318

have no valid at all. He added that according to section 21 (2) of Cap 258,

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a political Party is required to form a Board of Trustees, and not Registered

Trustees. Hence, it is proper to sue the Board of Trustees which is properly

sued as 1st respondent in this application. That's why the 1st respondent's

counsel has appeared to defend it, otherwise they could not have appeared.

However, at the end the counsel for the applicants admitted that if the

court finds that there is a mistake to sue the Board of Trustees of CHADEMA,

then that mistake is curable as it is not fatal. The applicants be allowed to

make rectification. He referred to the case of Chang Qing International

Investment Limited Versus TOL Gas Limited; Civil Application No. 299

of 2016, (CA) (DSM) (unreported) which, according to Mr. Aliko, have similar

facts with the present application. But when I read it, I found dissimilarities

as the Hon. Justice of Appeal allowed the counsel in that case to correct the

error by properly spelling the name of the respondent. Then, he ordered the

matter to proceed on its merit. However, Mr. Aliko concluded that the words

"Registered Trustees" be inserted as 1st respondent as it pleases this court.

In rejoinder, Mr. Kibatala stated that section 21(2) of Cap 258 and

sections 6 and 8 of Cap 318 have not yet been amended. Those

provisions are still intact. Even if there were amendments, the cases of Ilela

Village Council (supra) was decided after such amendment, but still the

27
Court of Appeal insisted that they must sue in the name of Registered

Trustees. The decision of the Court of Appeal are binding to this court, he

said. However, he added, the advocates for the applicants have not cited

any decision to support their arguments. They just submitted from the bar.

Adding to Mr. kibatala's rejoinder, Mr. Mtobesya said that section 76

of Act No. 9 of 2019 does not remove a political party from having its

board of trustees incorporated. He blended the submission of the applicants'

counsel as totally misleading submissions without legs to stand.

Now, if I would like to take the line of argument of applicants' counsel

into consideration, I may say and I am saying that it is not true that Act no.

9 of 2019 does exempt the applicability of Cap 318 and Cap 258 from

compulsory incorporation of the board of trustees. What the amendment

provided is to add section 1A immediately after section 1 of Cap 318

interpreting the word "Trust" and not otherwise. Thus, Act no 9 of 2019

did not affect in any way the provisions of Cap 318 as regards to compulsory

incorporation. Sections 6(2) and 8 of Cap 318 are still valid as they were

not affected by the enactment of Act No 9 of 2019.

Now what is the statutory position. According to Section 21 (1) of

Cap 258 after it obtains a certificate of full registration, a political party shall

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appoint a board of trustees to manage the properties and any business or

investment of the party. Section 21(2) of Cap 258 provides for mandatory

requirement that a board of trustees of a political party must be

incorporated. For ease of reference, I quote it as hereunder:

"(2) Every board o f trustees shall be duly incorporated

under the Trustees Incorporation Act and every political

party shall not later than sixty days from the date o f full

registration submit to the Registrar-

(a) the names and addresses o f the members o f

the board o f trustees; and

(b) a copy o f the certificate o f incorporation"

It is categorically clear in the above quoted provisions of the law that

the requirement of a political party to have its board of trustees incorporated

under Cap 318 immediately after its full registration as a political party, is

mandatory as couched in mandatory term.

It is therefore a trite law that board of trustees is compulsorily

incorporated under section 6(2) of Cap 318. Upon incorporation, the

board of trustees shall be granted with a certificate of incorporation and shall

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become a body corporate which shall include the words "Registered

Trustees". For ease of reference, section 6(2) of Cap 318 reads:

"(2) The name o f every body corporate created under this

Act shall include the words "Registered Trustees"

By virtual of section 8 (1) of Cap 318, that body corporate shall

have perpetual succession and common seal and shall have also power to

sue and be sued in such corporate name with the words "Registered

Trustees" For ease of reference, section 8 (1) of Cap 318 is quoted

hereunder:

"(1) Upon the grant o f a certificate under subsection (1)

o f section 5 the trustee or trustees shall become a body

corporate by the name described in the certificate, and

shall have -

(a) Perpetual succession and a common seal;

(b) Power to sue and be sued in such corporate name; "

From the above legal analysis, I find that the submissions by Mr.

Kibatala have legal basis because the 1st respondent sued herein has no legal

personality. Likewise, it has no legal capacity to be sued.

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 Assuming, I proceed with the matter against the 1st respondent and

the applicants win the case, I think, it would be difficult if not impossible to

enforce the award. Again, if it refuses to comply with the court order, it

would be legally impossible to compel it.

In view of that observation, I am constrained to state that the

applicants have sued a nonexistent party in law. It is only the Registered

Trustees of CHADEMA which have the capacity and legal personality as well

a proper party to be sued. With due respect, I find the submission by

applicants' counsel on this issue to be totally misleading worthy not

consideration at all. With regard to the findings herein, I proceed to uphold

the 7th preliminary objection; as a result, I do accordingly find the present

application for leave incompetent.

Having so found, the next issue to consider is what the remedy for

incompetent application. The counsel for the applicants said the defect of

not to include the words Registered Trustees is minor that can be cured by

allowing the applicants to insert the words Registered Trustees. To me I find

it to be a serious omission whose available remedy is to strike it out. This

remedy is well spelt in the case of MIC Tanzania Limited Versus Minister

31
for Labour and Youth Development & Another; Civil Appeal No 103 of

2004 (CA) (unreported) where the court of Appeal held that:

"After all, it is now trite law once an appeal or application

is found to be incompetent, the only option is to strike it

out... "

Form the above legal analysis of the matters before me, what I can

conclude is that what have been shown in this application is procedural

irregularities, some are excusable, but some cannot be excusable because

they are serious procedural irregularities as they go to the very root of the

application.

In line with the foregoing findings, I may conclude and I am concluding

that the 2nd, the 2nd limb to the 4th preliminary objection, the 5th and the 6th

preliminary objections are found without merit. I do dismiss them

accordingly. As regards to the 3rd and 7th preliminary objections, I found

them meritorious, and I proceed to uphold them accordingly.

In sum, on the strength of the preliminary objections I found

meritorious, this application for leave to apply for judicial review is

accordingly struck out. Each party has to bear its own costs.

It is so ordered.

32
Dated at Dar ie, 2022.
_ /

— II

\ JUDGE

COURT: This rulihgns^Qelivered today this 22nd day of June, 2022 in the

presence of Mr. Aliko Mwamanenge, Mr. George Mwalali, Mr.

Ipilinga Panya, Mr. Edson Kiiatu, Mr. Emmanuel Ukashu and Ms.

Matinde Waisaka, all the learned advocates for the applicants; in

the presence of Mr. Peter Kibatala, Mr. Dickson Matata, Mr.

Selemani Matauka and Mr. Nashon Nkhungu, all the learned

advocates for the 1st respondent; and, Mr. Stanley Kalokola, Mr.

Eligh Rumisha, Mr. Ayoub Sanga and Ms. Leonia Maneno, all the

learned State Attorneys for the respondents.

(i

J.S. MGETTA
JUDGE
22/ 6/2022

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