MHDINI AHMAD NDOLANGA AND OTHERS v NATIONAL SPORTS COUNCIL AND ANOTHER 1996 TLR 325 (HC)

 

MHDINI AHMAD NDOLANGA AND OTHERS v NATIONAL SPORTS COUNCIL AND ANOTHER 1996 TLR 325 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

B

Misc Civil Case 9 of 1996

7 June 1996

Flynote

Administrative law - Power to act - National Sports Council appointing a screening

committee to C screen applicants for Football Association of Tanzania executive

committee - In absence of rules having been promulgated in terms of s 28 of Act 6 of

1971, screening committees appointed as a matter of practice and had power so to act

Administrative law - Screening committee - Application of rules of natural justice -

Bias on part of D chairman - Chairman ought to have recused himself in view of

previous disagreement

-Headnote

The applicants applied for an order of certiorari to quash the decision of the Screening

Committee of the National Sports Council (the respondent) barring the applicant

from E contesting the election for the Executive Committee of the Football

Association of Tanzania (FAT). The applicants alleged that the Screening Committee

lacked authority to act and the Chairman ought to have recused himself as he was

unable to act without a tint of bias against the first applicant. F

Held:

(i) The National Sports Council was a body corporate established by Act

12 of 1967 and one of its duties was to screen candidates for FAT leadership. The

power to make regulations for the establishment and composition of committees was

contained in s 28(d) of Act 6 of 1971. It appeared that no G regulations had been

made by the Minister in terms of s 28. In the absence of clear guidelines it could not

be said that the committee acted without authority: it was for the applicant to tell the

court what procedure, legal or otherwise, had been flouted by the chairman or the

committee itself. The respondent, in its wisdom, had adopted a practice and in the

absence of a clear breach of a H particular law or regulation pertaining to the

activities of the set up committee the committee's actions could not be held to be

unlawful.

(ii) Although the chairman of the respondent denied the allegations of

having a grudge against the first applicant, it was quite a plausible proposition and the

I chairman ought to have recused himself from chairing the committee when he

knew that the first applicant was one of the candidates.

1996 TLR p326

Case Information

Application upheld. A

Case referred to:

1. Metropolitan Properties Co Ltd v Lennon and another [1969] 1 QB 577

Lyimo and Nyangarika for the applicants. B

Kalolo for the respondents.

[zJDz]Judgment

Bubeshi, J:

The applicants, Muhidin Ahmad Ndolanga, Kassim Kashulwe, Abdul Msimbazi and C

Abdallah Bulembo were amongst members of the Executive Committee of the

Football Association of Tanzania (hereinafter to be called FAT) for the 1993--1995

tenure. The applicants want this court to exercise its discretion and grant the

following orders, namely:

D -- an order to certiorari to quash the decision of the Screening Committee

of the National Sports Council (hereinafter to be called the `respondent') of 29 March

1996 barring the applicants from contesting FAT election.

-- an order of mandamus to compel the respondent to rescind their

purported E decision of scrutinising and barring the current members of the

Executive Committee from contesting the FAT election.

-- an order that the scrutiny of the names of the people who were vying

for various posts in the Executive Committee of FAT was unlawful. F

-- costs of this application

-- any other reliefs that this hon court may deem proper and just to grant;

and

In the alternative: G

-- that there was a failure on the part of the respondent to act judicially

-- that there was a failure of natural justice

-- that their (respondents) acts were unreasonable and unfair. H

The applicants are represented by learned counsels Deogratias Lyimo and Kassim

Nyangarika. They have also filed affidavits to support their application. The

respondents who have strongly contested the applicants were represented by Mr

Kalolo Bundale, I learned counsel and relied upon the affidavits of said Hamad

ElMaamry, the chairman of the respondent, and supplementary affi-

1996 TLR p327

BUBESHI J

davits filed by Michael Wambura and Dr Ramadhan Dau, members of the respondent

A council.

In the pleadings and in course of final submissions it was submitted for the

respondents that the court had no jurisdiction to entertain the application. That in

accordance to art B 53(2)(e) and (f) of the FAT constitution, the application before

this court was premature. I propose to dispose of this matter at this juncture. Under

art 53(2)(e) and (f) appeals from the National Sports Council shall be submitted to the

Minister responsible for sports whose decision shall be final. Likewise the respondent

have invoked art 53 of FIFA C statute on settlement of disputes as barring sports

matters from being referred to courts of law before the laid down machinery thereof

has been exhausted. Similarly, they have cited art 29 of the CAF statute on disputes

where disagreements of like natures have to be referred to arbitration tribunal and

not civil courts. The issue then is whether these D ouster clauses bar this court from

hearing this application.

While I agree with the respondent on the ouster clauses, as contained in the relevant

laws cited above, it is now settled and there are authorities abound that an applicant

for the prerogative order of certiorari is not obliged to exhaust the prescribed

administrative E machinery before resorting to a court of law, where the applicant

claims that the decision complained of was reached without jurisdiction or in

contravention of the rules of natural justice, the existence of such a machinery is

irrelevant. In the application before me it is the legality of the committee that is in

issue and if the committee had F such legal basis, that its decision was vitiated by the

breach of the rules of natural justice. These are issues of law which should properly be

formulated and answered by a court of law; and in attempting to answer them, this

court does not in any way impinge G upon the power of the administrative tribunal,

in this instance, the Ministerial powers under art 58(2)(e) and (f), of FAT constitution

if at the end of this ruling there is still a decision standing. In the premises, I am

satisfied that this court has jurisdiction in the H matter and I proceed to consider the

application and I start with the order of certiorari. It may be pertinent at this juncture

therefore to say something on the appeal pending before the Minister. Proceedings

for certiorari are quite different from proceedings by way of appeal, in the latter case

the appellate body is required to hear the case either generally or on particular issues

raised in the appeal and for the purposes of this case all I appeals are directed to the

Minister responsible for sports. In proceedings for certiorari this court is

1996 TLR p328

BUBESHI J

required to exercise its supervisory function to ensure that a particular body acts in A

accordance with the rule of law.

The following salient points are not in dispute. The applicants were amongst the

members of the Executive Committee of Football Association of Tanzania-hereinafter

to be referred as FAT-for the period 1993--1995. That on 28 March 1996 an ad hoc B

screening committee, hereinafter to be called the `Committee' was appointed by the

chairman of the respondent to screen names of all contestant vying for posts in the

FAT leadership. The committee did its job for two consecutive days, 29--30 March

1996, and the result of the exercise was announced at a press conference on 31 March

1996. The C applicants were amongst those disqualified to contest for the election

due to take place in Dodoma on 3 April 1996. That soon after the applicants addressed

an appeal to the Minister responsible for Sports against the decision of the committee

and the appeal D has remained undetermined to date, it is not in dispute that the

ordinary general assembly of FAT was held in Dodoma on 3 April 1996 with the first

applicant presiding and the other applicants were amongst the members of the

assembly and listed on the agenda were 11 items and that by the time the meeting

was suspended by a court E order, there were some five items pending. That as per

FAT constitution, not every special general assembly, that is an Election Assembly is

proceeded by an ordinary general assembly.

The applicants have listed the following as being matters in dispute namely: F

-- whether the chairman of the National Sports Council-hereinafter to be

referred as `NSC' is empowered by law to appoint an ad hoc screening committee

G -- whether the said committee has exclusive powers in law to screen and

disqualify the applicants in the circumstances of the case

-- whether the committee was duly and fairly constituted

-- whether the committee observed the rules of natural justice

H -- whether the applicants were formally notified on the result of their

application to contest the FAT election

-- whether the reasons given by the committee for the disqualification of

the applicants were justified in law in the circumstances of this case

I -- whether applicants were given reasonable opportunity to be heard on

the constitution or composition of the committee

1996 TLR p329

BUBESHI J

A -- whether the applicants appealed to the Minister in time to enable him

to determine the appeal and whether the Minister was justified to leave the appeal

undetermined to date

-- whether the applicants have other remedies other than the courts in

the circumstances of this case

B -- what are the reliefs, the parties are entitled to

And as submitted by the respondent, the issues are:

-- whether the conditions precedent for the issuance of prerogative orders

have been met

-- whether the respondent complied with the rules of natural justice C

-- whether the applicants should meet the expenses for the adjourned

elections.

And as formulated by the court this issues are: D

whether the prerogative orders of certiorari and mandamus can issue in the

circumstances of this case.

The National Sports Council is a body corporate, established by Act 12 of 1967 as

amended by Act 6 of 1971. Amongst its functions are: E

4(1)(a) to develop, promote and control all forms of amateur sports on a

national basis in conjunction with sports association.

The NSC also is charged with the duty to oversee elections of FAT. Article 49 of the

FAT constitution 1995 provides that: F

`Uchambuzi wa majina ya wagombea uongozi wa FAT utafanywa na mabaraza

ya ngazi husika'

Freely translated it reads: G

`Screening of names of aspirants to FAT leadership will be done by the

relevant sports councils.'

And art 51(c) of same constitution provides for election of leadership at national level

to H be supervised by the National Sports Council. The applicants have challenged

the powers of the chairman of the respondent to appoint the committee, the

constitution and composition thereof, the legal powers of the committee and whether

it conducted itself in accordance with the rules of natural justice and without bias. I

The chairman of the respondent who have strongly opposed the

1996 TLR p330

BUBESHI J

application, has deponed in para 5 of his affidavit that the names of the committee

were A approved by him upon proposal by the Secretary-General. That the NSC is

charged with the responsibility to supervise the FAT elections at all levels is not

disputed. Indeed it is one of the functions of the NSC as per arts 49 and 51 of the FAT

constitution. The B power to make regulations for the establishment and

composition of committees is contained in s 28(d) of Act 6 of 1971. The relevant

proviso reads:

Section 28 The Minister may make regulations for the better carrying into

effect the purposes and C provisions of this Act and in particular for

(a) . ..

(b) . . .

(c) . . .

(d) the establishment and composition of committees to which the council

may delegate its D functions.

The question I ask myself is whether the committee set up by the chairman of the

respondent to screen the names of applicants and others was a creature of s 28(d) cited

above. The chairman of the respondent has not submitted that the committee he E

set up in consultation with his secretary-general was in pursuance of regulations

made by the Minister as per s 28 of Act 6 of 1971. The respondent's chairman has

contended that such committees have been appointed as a matter of practice and the

practice and procedure has been in existence since 1995. F

Both counsels have conceded that up to now there are no regulations made by the

Minister in terms of s 28 of Act 6 of 1971. I must remark that, in my considered

opinion the obligation to alert the Minister on the provisions of s 28 of Act 6 of 1971

is squarely on the shoulders of the respondent. They are the ones mostly concerned

and to be G affected and guided by the provisions which has been in existence for

the last 24 years or so. Of course s 28 of Act 6 of 1971 is not mandatory that the

Minister make regulations but I think it is prudent if such legal provisions are taken

into consideration in H the conduct of such matters. It is hoped that the regulations

would be promulgated soon.

Counsels for applicants have submitted that in absence of regulations in terms of s 28

of the committee set up by the respondents' chairman was illegal. Counsels for the

applicants were of the view that it is for the Minister to appoint the committee. With

I respect, I disagree and would be inclined to agree with Mr Kalolo for the

1996 TLR p331

BUBESHI J

respondent that the Minister may make regulations for the establishment and A

composition of such committees to which the council may delegate its functions. The

Minister does not appoint committees. To date these regulations have not been

formed and neither has the law been amended. I take it therefore that the law guiding

the procedure of the council is still Act 12 of 1967. B

The respondent has submitted that in absence of committees established under the

provisions of s 28 of Act 6 of 1971, we then have to resort to practice. What has been

the practice that has operated within the council since 1975?

The applicant has vehemently argued that the whole exercise of the chairman of the

C respondent appointing the committee was an illegality, that the committee had no

legal powers to do the screening. The applicant has submitted that if anything the

screening exercise was to be done by the full council. D

To this the respondent has been quick to counter by the argument that the full

council consists of 30 members and it had been the practice to have such ad hoc

committees screen the aspirants. That the applicants were subjected to a similar

procedure in 1992 and therefore he is estopped from complaining. E

As observed earlier on in my ruling, it is evident therefore that the National Sports

Council has been conducting its business for the last 24 years or so without legally

constituted committees. The respondent has appended to his written submission

names of members in the following committees: F

-- Kamati ya Utendaji na Fedha

-- Kamati ya Utafiti, Mipango na maendeleo

-- Kamati ya Ufundi na Vifaa

-- Kamati ya Rufaa na Nidhamu

-- Kamati ndogo ya Fedha na mali G

I hasten to add that the functions of these committees have not been spelt out, hence

this court is left to speculate whether the ad hoc screening committee was an

independent committee or it was required by practice to submit its findings to one of

the H committees above mentioned.

In the absence of clear guidelines so established it cannot be said that the committee

acted without authority. It was for the applicant to tell this court what procedure

legal or otherwise has been flouted by the chairman or the committee itself. The NSC

in its I wisdom has adopted this practice and in the absence of clear breach of a

parti-

1996 TLR p332

BUBESHI J

cular law or regulation pertaining to the activities of the set up committee, I would

decline A to hold that committee's actions were unlawful. It would have been

different if there had been clear functions earmarked for each committee of the

council. I hold therefore that the chairman had powers in terms of the schedule to

Act 12 of 1963 -- s 3(2) B thereto, to appoint the committee to transact the screening

business on behalf of the council as it was done in February 1993.

Now that I have found the committee to have the mandate to transact business on

behalf of the council, the next equally important issue is whether the said committee

conducted C itself in accordance with the rules of natural justice and fair play.

The applicants have averred vide paras 6, 7 and 8 of the affidavit deponed to by the

first applicant that there was a denial of natural justice in that: D

(a) the chairman of the committee could not have acted without a tint of

bias as they had exchanged words over the CAF membership.

(b) there were rumours abound that the first applicant's name would not

be cleared due to that misunderstanding. E

(c) they were not given opportunity to challenge the composition of the

committee.

(d) they were not officially notified of the reasons -- para 12 of the first

applicant's affidavit.

F (e) their appeal to the Minister has remained undetermined to date.

The respondent have strongly denied the allegations. On the CAF membership saga,

the chairman of the respondent has submitted that he holds no grudge against the

first G applicant, although he was disappointed by his lies. He submits further that

he has never been biased towards the first applicant and that there were eight

members on the committee where the chairman's influence was not proved. That if

anything, the applicants had all the time to object to the committees composition if

they thought they would not be fairly treated. H

The chairman of the respondent has submitted that all the aspirants were invited to a

press conference on 31 March 199 and hence there was no need to officially inform

the applicants. As to the appeal to the Minister the respondent have submitted that as

the I issue had already been referred to a court of law, it became sub judice.

1996 TLR p333

BUBESHI J

It is trite to remark that an administrative body exercising functions that impinge

directly A on legally recognised interests, owes it as a duty to act judicially in

accordance with rules of natural justice which basically means the adoption of fair

procedure, which fundamentally demands freedom from interest and bias on the part

of the administrative body and the right to a fair hearing for those who are

immediately effected by its B decision.

That the first applicant and the chairman of the respondent have exchanged words

over the CAF membership issue is common ground. I have read submissions by

counsels on this point. However I am inclined to the views expressed by the first

applicant that the C respondent chairman may be harbouring a grudge over that

issue. It is quite a plausible proposition.

The respondent chairman has submitted that the applicants were equally free to reject

the committee membership, the chairman included and since they did not do so they

are estopped from complaining. That the applicants and in particular the first

applicant could D have objected to be screened by the committee is not an

unreasonable proposition, the short notice notwithstanding. However, in my view it

was also the duty of the chairman of the respondent to recuse himself from chairing

the committee especially so E when he knew that the first applicant was one of the

aspirants. That the chairman of the respondent chaired the screening exercise where

the applicants were disqualified could not exonerate him from a tint of bias. I am

indeed fortified in this view by the persuasive authority cited by the applicants:

Metropolitan Properties Co Ltd v Lennon F and Another (1), where at 599 the

distinguished jurist Lord Denning remarked that:

`. . . justice must be rooted in confidence and confidence is destroyed when

right minded people go away thinking that the judge was biased ...' G

Equally true today is the time old adage that justice must not be done, but must also

be manifestly seen to be done. In the event, it may not be necessary at this juncture to

deal with the other complaints raised by the applicants. H

In the final event, I find that the chairman of the National Sports Council had the

mandate to set up the committee as per the practice of the council. Likewise I hold

that the committee had the mandate in the absence of clear breach of any legal

provision or regulation hereto, to conduct business on behalf of the council. However,

the said I committee failed to observe rules of justice and fair play. In the

1996 TLR p334

premises, the application for the order of certiorari is granted. The decision of the A

committee is hereby quashed and the National Sports Council is directed to redo the

exercise of screening aspirants vying for posts in FAT leadership election. The

application succeeds with costs. B

1996 TLR p334

C