Mwalimu Paul John Mhozya v. Attorney General Civ no 206 of 1993 (injunctions against Presiden)

Mwalimu Paul John Mhozya v. Attorney General (No.1)

High Court (Samatta, J.K.): April 25, 1993

Civil Case No. 206 0f 1993

Civil Procedure-injunctions-injunctions against President- no injunction lies against President

Civil Procedure-Pleadings-defects-primary concern substance rather than form

Constitutional Law-institution of proceedings-protection of Constitution-right may not be used to grant remedy available only through parliamentary procedure Constitutional Law-removal from office-Union President -jurisdiction- jurisdiction lies with Parliament and not courts under Constitution Ss. 42(2), (3), and 46A 

This was an application for an interlocutory injunction to restrain H.E. President Hassan Mwinyi from discharging presidential functions pending the determination of Civil Case No. 206 of 1993.  The suit sought a declaration that by allowing Zanzibar to join an organization known as Islamic Conference Organization, the President was guilty of allowing or enabling that violation to take place and was therefore personally answerable for the violation.  It also claimed that his continued exercise of presidential powers was unconstitutional as well as a potential danger to the well being of the United Republic and its citizens.

The applicant appeared in person to argue the application. At the hearing, learned Counsel for the State opposed the application.  Firstly, he argued that the application was incompetent as the affidavit sworn in its support was fatally defective for failure to comply with the provisions of Order 19 Rule 3(1) of the Civil Procedure Code.  He further argued that it contravened S. 46A of the Constitution for failure to comply with the special procedure laid down by Parliament for moving the Court.  Lastly, he argued that S. 11(2) of the Government Proceedings Act, 1967, and those of Order 37 Rule 2 of the Civil Procedure Code as amended by the Government Proceedings (Procedure) Rules, 1968 prohibited the granting of the kind of injunction sought in this application. 

Held:

1.   Substance rather than form should be the court’s primary concern. If legal steps can be taken to cure any defects in a pleading or an affidavit, without substantially prejudicing the opposite party, leave should be granted to take the remedial steps, if court has jurisdiction in the matter.

2.   The principle that one branch of government should not encroach on the functions of another is a very important principle.  Removal or suspension from office of the President of the United Republic is the legislature’s exclusive prerogative in accordance with the procedure for removing or suspending a President under S.46Aof the Constitution.

3.   The right granted under A. 26(2) of Constitution to institute proceedings for the protection of the Constitution and legality cannot be used to grant a remedy available only through Parliamentary procedure.

4.   No injunction can lie against the President under A.42 of the Constitution as well as common law.

Application dismissed.

Applicant unrepresented.

Salula for the respondent

Legislation considered:

Civil Procedure Code Order 19 Rule 3(1), Order37 Rule 2

Constitution Ss. 26(2), 30(3), 42(2), 42(3), 46A, 108(2)

Government Proceedings Act, 1967 S. 11(2)

Government Proceedings (Procedure) Rules, 1968

Cases referred to:

1.    Attorney General of the Gambia v. Momodou Jobe [1984] 3 WLR  174

2.    Hornal v. Nueberger Products Ltd. [1956] 3 All ER 970

3.    In re Coles and Ravenshear [1907] 1 KB 1

Other materials considered:

1. Halsbury’s Laws of England 4^th Ed. Para p.161

2. Judicial Review Administrative Action 2^nd Ed. Para 168 pp.461-462

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