IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANIOUS CIVIL APPLICATION NO. 43 OF 2017 MANSOR AND

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1 (... \...' IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISCELLANIOUS CIVIL APPLICATION NO. 43 OF 2017 IN THE MATTER OF AN APPLICATION MANSOR BY NASSORO SLEYUM AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AGAINST THE ACT OF DETAINING MOTOR VEHICLE BY THE KAMANDA WA POLISI KIKOSI CHA BANDARI BETWEEN NASSOR SLEYUM MANSOR APPLICANT VERSUS KAMANDA WA POLISI KIKOSI CHA BANDARI 1 S'T RESPONDENT THE ATTORNEY GENERAL ND RESPONDENT 16 TH JUNE & 6 TH JULY, 2017 RULING seeking WAMBALI, JK The applicant Nassar Sleyum Mansoor has approached the court to be granted leave to apply for judicial review against the act of -, the first respondent, Kamanda wa Kikosi cha Bandari, of detaining his 1

2 l) motor vehicle. The Attorney General has been joined as a second respondent in view of the requirement of the law. The application is brought by the chamber summons supported by the affidavit and statement signed by the applicant. He is represented by Ms. Rehema Mzinga advocate from Unbiased Law Chambers. The respondents through the service of the office of the Attorney General lodged counter affidavit and a reply to the statement. The respondents also lodged a notice of preliminary objection comprising three points of law as outlined below. "i. That the application is unmaintainable and bad in law for being vague, frivolous and vexatious ii. The affidavit in support of the Application is defective for containing a defective jurat. iii. The Affidavit in support of the Application is defective for contravening the Provision of Order XIX Rule 3( 1) of the Civil Procedure Code [Cap. 33 R.E. 2002]." 2

3 C) At the hearing of the preliminary objections, Ms Grace l.upando learned State Attorney appeared for the respondents while Ms. Rehema Mzinga learned advocate appeared for the applicant. The learned state attorney for the respondents submitted with respect to the first preliminary point that the application lodged by the applicant is not clear on the exact order which he seeks to be granted leave to apply for prerogative orders. She argued that the law empowers the High Court to grant prerogative orders namely certiorari, mandamus and prohibition. She nevertheless stated that the applicant in his chamber summons indicates that he applies for leave to apply for judicial review without specifying the orders which he seeks to be granted by the court. She thus submitted that failure to refer to a specific prerogative order is contrary to the previsions of section 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 318 and Rules 3 and 5(6) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, (GN No. 324 of 2014). She therefore concluded that the application is uncertain, vague, frivolous and vexatious. 3

4 Ms Lupondo observed further that the applicant has also not met the condition set out under section 19(3) of Cap 318. She urged the court to sustain the objection on this point and strike out the application with costs. In her reply Ms Mzinga learned advocate for the applicant firmly stated that in the statement which supports the chamber summons as required by Rule 5(2) of GN No. 324 of 2014 the applicant states clearly that he prays for the order of mandamus. She argued that the applicant complied with the requirement of the law and specifically section 19(3) of Cap 318 as the main prayer of the applicant is for the court to compel the first respondent to act. She also submitted that the applicant has fulfilled all the conditions for the grant of orders of mandamus set out by the court in the case of John Mwombeki Byombalirwa v. The Regional Commissioner and, Regional Police Commander, Bukoba [1986] TLR 73. The learned advocate for the applicant firmly concluded that the application is not vague, frivolous and vexatious and thus the preliminary objection should be overruled with costs. 4

5 /- There is no dispute that the chamber summons before the court does not refer specifically to an order against which leave is sought to be granted. The applicant simply states that he applies for leave to apply for judicial review. Nevertheless the advocate for the applicant argues that it is sufficient to state the said order in the statement which supports the chamber summons. It is important to state that Rule 3 of GN No. 324 of 2014 referred above define judicial review for the purpose of the rules to mean --application for prerogative orders of mandamus or prohibition or certiorari. It follows that the general reference to judicial review by the applicant in the chamber summons may entail that he prays for one or all orders within the meaning referred under Rule 3. On the other hand, Rule 5(3) provides that an application for leave shall be substantially in conformity with Form A set out in the First Schedule to the Rules. There is no doubt in my view that the chamber summons lodged by the applicant does not substantially comply with Form A which requires the applicant to specify the kind of order(s) against which leave is sought. 5

6 It is noted that the applicant states in the chamber summons that: "This Honourable court may be pleased to grant leave to the Applicant to apply for the Judicial Review against the act of detaining motor vehicle with registration number T. 898 BXG Scania Tipper by the Kamanda wa Polisi Kikosi cha Bandari." It is acknowledged that the applicant under paragraph 8 of the statement which accompany the chamber summons states that the relief he seeks is an order of mandamus. Nevertheless, it must be noted that the statement supports the chamber summons. Therefore a reference to the order of mandamus in the statement cannot support what is not stated or mentioned in the chamber summons. One cannot expect a general reference to judicial review in the chamber summons to be reference to an order of mandamus in the statement as this is even contrary to the requirement of Form A which requires specific mention of the order sought. In the circumstance the application is incompetent. It is also my considered view that the reference by the advocate for the applicant to the 6

7 decision of the High Court in the John Mwombeki Byombalirwa's case (supra) is untenable as at this stage the court is not concerned with the fulfilment of the conditions for the grant of the order of mandamus but is called upon to grant leave upon which to apply for the order of mandamus. In the event, in view of the discussion above, I do not wish to deal with the remaining preliminary points of.law raised by the respondents as the first one is sufficient to dispose of the matter. In the circumstances, the first preliminary objection is sustained with the effect that the application which is incompetent is struck out with costs. It is so ordered. F.L.K. Wambali JAJI KIONGOZI 6/7/2017 7