Mwalimu Paul John Mhozya v Attorney General (No. 1) 1996 TLR 130 (HC)

MWALIMU PAUL JOHN MHOZYA v ATTORNEY GENERAL (No. 1) 1996 TLR 130 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK

CIVIL CASE No. 206 of 1993

25 April 1994 F

Flynote

Constitutional law -- Separation of Powers -- Purpose and function of the doctrine of

separation of powers.

Constitutional Law -- Removal or suspension of the President from office -- Whether the President G may be removed or suspended from office by the High Court -- Sections 42(1) and 46A of the Constitution of Tanzania

-Headnote

In this application the applicant sought an interlocutory injunction restraining the President of the United Republic of Tanzania from discharging his functions pending determination of the main cae in which the applicant sought orders of declaration that: (a)the Constitution of the United Republic had been violated; (b) the President was guilty of having allowed or enabled the said violation; and (c) the continued exercise of presidential powers by President Ali Hassan Mwinyi was unconstitutional and a potential I danger to the well being of the country and its citizens. The Attorney General raised a preliminary objection against the application on the grounds that the affidavit in support of the application was fatally defective, and that the Court had no jurisdiction to make the orders sought:

Held:

(i) The concern of the Court is substance rather than form and its function is to get to the bottom of the dispute and determine the real issues in it and; for that B purpose, the Court may allow steps to be taken to cure any defects in a pleading or an affidavit provided that the other party is not prejudiced thereby;

(ii) The affidavit in this application did not strictly comply with the provisions of the Civil Procedure Code 1966, but the Court could grant leave to the applicant to cure the defects in the affidavit; C

(iii) The principle that the functions of one branch of government should not encroach on the functions of another branch is an important one to ensure that the governing of a state is executed smoothly and peacefully;

(iv) As s 42(3)(d) of the Constitution states that the President shall be in office until D he ceases to hold office `in accordance with the provisions of' the Constitution, and s 46A of the Constitution lays down the procedure by which the legislature may remove or suspend the President from office, any attempt to remove or suspend the President in a manner other than that laid down in the Constitution would not be legal; E

(v) No provision of the Constitution or any other law authorises the High Court to hold that the President can be removed or suspended from office by a body other than that which the Constitution specifically provides for;

(vi) This Court has no jurisdiction to issue the order of injunction sought against the President. F

Case Information

Application for temporary injunction rejected

Cases referred to:

1. Hornal v Neyberger Products Ltd [1956] 3 All ER 970

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

3 re: Coles and Ravenshear [1970] 1 KB 1

[zJDz]Judgment

Samatta JK: This is an application for an interlocutory injunction restraining His Excellency Ali Hassan Mwinyi, the President of the United Republic, from discharging presidential functions pending the determination of Civil Case No 206 of 1993, filed in this Court, in which the applicant seeks, inter alia, the following declarations:

I (1) The Constitution of the United Republic of Tanzania (herein-

A after referred to as the Constitution) was violated by Zanzibar joining an organisation known as Islamic Conference Organisation.

(2) The President is guilty of allowing or enabling that violation to take place and is therefore personally answerable for the violation. B

(3) His Excellency Ali Hassan Mwinyi's continued exercise of presidential powers is unconstitutional as well as a potential danger to the well-being of the United Republic and its citizens.

The application has been strenuously opposed by Mr Salula, Senior State Attorney, on C behalf of the respondent. Although he is a teacher by profession, the applicant, who appeared in person at the hearing, has argued the application, including legal issues, with much confidence.

At the hearing Mr Salula raised a preliminary objection to the application. He based the D objection on three principal grounds. These are:

1. The application is incompetent because the affidavit sworn and filed by the E applicant in support of it is fatally defective in that it does not comply with the provisions of Order 19 Rule 3(1) of the Civil Procedure Code.

2. The application contravenes s 46A of the Constitution in that it attempts to move the court to do an act in respect of which Parliament has provided a special and entirely different procedure. In other words, this Court does not have jurisdiction to make the order sought by the applicant.

3. The provisions of s 11(2) of the Government Proceedings Act, 1967, and those of Order 37 Rule 2 of Civil Procedure Code as amended by the Govt Proceedings (Procedure) Rules, 1968 (Govt Notice No 376 of 1968) prohibit the granting of the kind of injunction sought in this application.

In performing my task in the instant application I must make it perfectly clear that bear in mind, inter alia, the following principles:

1. A court will not be deterred from a conclusion because of regret at its consequences: Hornal v Neuberger Products Ltd (1) at 978.

I 2. It is wrong for a court of law to be anxious or to appear to be anxious to avoid treading on executive toes.

A 3. A constitution is a living instrument which must be construed in the light of present day conditions. The complexities of our society must be taken into account in interpreting it. A workable constitution is a priceless asset to any country.

4. A constitution should be given a generous and purposive construction:Attorney-General of the Gambia v Momodou Jobe (2). Respect must, of course, be paid to the language used in the instrument.

5. The balance of power between the three branches of government, namely, the executive, the legislature and the judiciary, and the relationship of the courts to C the other two branches must be carefully maintained. Any statutory alteration of that balance must be in unmistakable terms. One branch of government should not usurp the powers of another branch.

6. The notion, apparently harboured by some people in this country, that the President of the United Republic is above the law is subversive of the Constitution and the laws. All Government leaders, including the President, are, like the humblest citizen, bound to comply with the laws of this country. The maxim

`The King can do no wrong' has no place in our law even if the word `President' is substituted for the word `King'. Everyone and every institution or E organisation in this country is enjoined to pay respect to the principle of supremacy of the law, see s 26(1) of the Constitution.

7. Flexibility in the application of procedural law is a desirable thing, for it assists to F ensure that at the end of the day justice triumphs. When it comes to the issue of compliance with rules of procedures the instinct for strictness should, where appropriate, be subdued. Substance rather than form should be the courts' primary concern. G

Having stated the above principles, I turn now to consider Mr Salula's preliminary objection. I propose to start with the argument concerning the applicant's affidavit.

As will be recalled, it was the learned Senior State Attorney's contention that the affidavit is defective for non-compliance with the provisions of Order 19 Rule 3(1) of the Civil H Procedure Code. Order 19 Rule 3(1) provides:

`3.-(1) Affidavits shall be confined to such facts as the deponent is able of his knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: I Provided that the grounds thereof are stated'.

It cannot be argued, and the applicant, if I understood him correctly as I believe I did, did A not venture to argue, that the supporting affidavit in this application strictly complied with the above quoted provisions of the Civil Procedure Code. I would not, on that ground alone, however, drive the applicant from the judgment seat in this application. It is the B function of a court of justice to try to get to the bottom of the real dispute and to determine what are the real issues in the matter before it provided, of course, no party can be prejudiced. As already remarked, substance rather than form should be the courts' primary concern. If legal steps can be taken to cure any defects in a pleading or C an affidavit, without substantially prejudicing with the opposite party, a court of justice should grant leave to the party to take these remedial steps, if he so wishes. I would call attention to the elaborated words of Lord Collins MR, in Re Coles and Ravenshear (3)

D `Although a court cannot conduct its business without a code of procedure, the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and the court ought not to be so far bound and tied by the rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case'. E

If I will be satisfied that this court has jurisdiction to grant the relief sought by the applicant, I will be prepared to grant leave to him to take remedial stops. I now turn, therefore, to the question whether this court has that jurisdiction. Mr Salula's submission on this point was that, as the Constitution contains specific provisions governing how and under what circumstances a person holding the office of the President of the United Republic will cease, temporarily or otherwise, to hold that office, the suspension or removal of such a person from office is not by way of judicial G process. In support of that submission the learned Senior State Attorney cited s 42(2) and (3) of the Constitution as read with s 46A of the same legislation.

Countering that argument, the applicant contended, among other things, that s 26(2),30(3) and 108(2) of the Constitution, whether read together or separately, empower this court to grant the H temporary injunction sought. Section 42 (2) and (3) of the Constitution reads as follows:

`42-(1) ... (2) Unless he sooner resigns or dies, a person elected as President shall, subject to subsection (3) I of this section, hold office for a term of five years from the date on which he is elected President.

A (3) A person elected President shall hold the office of President until:

(a) the day when his successor in office takes the oath of office; or

(b) the date when he dies in office; or

(c) the day of his resignation from that office; or

(d) he ceases to hold the office of President in accordance with the provisions of this constitution.' B

Section 46A provides as follows:

`46A.-(1) Notwithstanding the provisions of article 46 of this Constitution the National Assembly may C pass a resolution to remove the President from office if a motion to impeach the President is moved and passed in accordance with the provisions of this Article.

(2) Subject to the other provisions of this article, no motion to impeach the President shall be moved save only if it is alleged that the President- D

(a) has committed acts which generally violate the Constitution or the law concerning the ethics of public leaders;

(b) has committed acts which contravene the conditions concerning the registration of political parties specified in article 20(2) of this Constitution; or 

(c) has conducted himself in a manner which lowers the esteem of the office of President of the United Republic, and no such motion shall be moved within twenty months from the time when a similar motion was previously moved and rejected by the National Assembly.

(3) The National assembly shall not pass a motion to impeach the President save only if- F

(a) a written notice signed and supported by not less the twenty per cent of all the member of Parliament is submitted to the Speaker thirty days prior to the sitting at which such motion is intended to be moved in the National Assembly, specifying the wrong committed by the G president and proposing that a Special Committee of Inquiry be constituted to inquire into the charges brought against the President.

(b) at any time after the Speaker receives the notice duly signed by the Member of Parliament and satisfies himself that the provisions of the Constitution for the moving of the motion have been H complied with, to vote on the motion to constitute a Special Committee of Inquiry, and if it is supported by not less than two thirds of all the Members of Parliament, the Speaker shall announce the names of the members of the Special Committee of Inquiry I

(4) The Special Committee of Inquiry for the purpose of this article shall consist of the following members, that is to say-

(a) the Chief Justice of the United Republic who shall be the Chairman of the Committee;

(b) the Chief Justice of Tanzania Zanzibar; and

(c) seven members appointed by the Speaker in accordance with the Standing Orders of the National Assembly and taking into account the proportional representation amongst the B political parties represented in the National Assembly.

(5) In the event that the National Assembly passes the motion to constitute a Special Committee of Inquiry, the President shall be deemed to be out of office, and the duties and functions of the office of president shall be discharged in accordance with the provisions of article 37(3) of this Constitution C until the Speaker shall inform the President about the resolution of the National Assembly in connection with the charges brought against him.

(6) Within seven days after the Special Committee of Inquiry is constituted, it shall sit, inquire into and analyse the charges preferred against the President, including affording the president the opportunity D to be heard in his defence in accordance with the procedure prescribed by the Standing Orders of the National Assembly.

(7) As soon as possible and in any event within a period of not more than ninety days, the Special Committee of Inquiry shall submit its report to the Speaker.

(8) After the Speaker receives the report of the Special Committee of Inquiry, the report shall be tabled before the National Assembly in accordance with the procedure prescribed by the Standing Orders of the National Assembly.

(9) After the report of the Special Committee of Inquiry is submitted pursuant to sub-article (8) the F National Assembly shall discuss the report and shall afford the President the opportunity to be heard, and then by the votes of not less than two thirds majority of all the Members of Parliament, the National Assembly shall pass a resolution either that the charges against the President have been proved and that he is unworthy of continuing to hold the office of President, or that the charges have notbeen proved.

(10) In the event the National Assembly passes a resolution that the charges against the President have been proved and that he is unworthy of continuing to hold the office of President, the Speaker shall inform the President and the Chairman of the Electoral Commission about such resolution of the National Assembly, whereupon the President shall be obliged to resign before the expiry of three days from the day the National Assembly passed the resolution.

(11) In the event the President ceases to hold the office of President by reason of the charges against him being proved he shall not be entitled to receive any payment by way of pension or to receive any benefits or other privileges which he has under the Constitution or any other law enacted by Parliament.'

The sections of the Constitution which were the main-stay of the applicant's contention A that the Court has the jurisdiction to make an injunction order which has the effect of suspending the President of the United Republic from office read as follows:

`26(2)

`Every person is entitled, subject to the procedure provided by the law, to institute proceedings for the protection of the Constitution and legality'.

`30(4)

`Subject to the other provisions of this Constitution, the High Court shall have and may exercise original jurisdiction to hear and determine any matter brought before it in pursuance of this section; and an Act of Parliament may make provision with respect to-

(a) the procedure regulating the institution of proceedings under this section;

(b) the powers, practice and procedure of the High Court in relation to the hearing of proceedings instituted under this section;

(c) ensuring the more efficient exercise of the powers of the High Court, the protection and enforcement of the basic rights, freedom and duties in accordance with this Constitution.' E

`108(2)

`Where it is not expressly stated in this Constitution or in any other legislation that any specific matter shall be first heard and determined in a certain court, the High Court shall have jurisdiction to hear and determine that matter. In addition, the High Court shall have jurisdiction in respect of any other F matter which, in accordance with legal traditions and conventional practices obtaining is ordinarily to be heard and determined by the High Court; save that, the provisions of this section shall apply subject to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other legislation'. G

I have given careful and earnest consideration to the competing arguments addressed to me on the issue of jurisdiction and in the end I am satisfied that Mr Salula's argument is sound in law. The principle that the functions of one branch of government should not H encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully.

It seems to me to be an incontrovertible proposition of law, having regard to the use of I the words `in accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that removal or suspension from office of the President of the United Republic is the legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal. If Parliament had intended this B Court to exercise concurrent jurisdiction of dealing with politico constitutional offences it could easily have said so when enacting s 46A of the Constitution. The omission to provide such a provision in the constitution would appear to strongly suggest that Parliament did not want judicial process to be used in removing or suspending the C President from office. It is not for this Court to say whether or not that was a wise decision. None of the sections of the Constitution cited by the applicant compels me to hold a different view. 

The right granted by s 26(2) to institute proceedings for the protection of the Constitution and legality cannot, in my considered opinion, be regarded D as providing an authority to this Court to grant a relief which, according to the Constitution itself, is a remedy available only through a parliamentary procedure. As regards s 30(4), the following can be said. The subsection deals with the subject of limitations upon and the enforcement and protection of basic rights and duties. No issue E concerning basic rights arises in the instant application. With regard to enforcement of duties, it can be said without inaccuracy, I think, that that matter does not authorise the court to hold that the President can be removed or suspended from office in a manner other than that which the Constitution has specifically provided for. As for s 108(2), let F me say without ambiguity that I know of no legal traditions or conventional practices which authorise this Court to try alleged politico-constitutional offences, and the applicant cited none in his argument. It may well be (and I say no more than that, because the issue is not before me at this stage of the case) that the court has jurisdiction to give a declaratory judgment as to the commission or otherwise of such offences, but I will, I hope, be forgiven for stating the obvious, namely, that a temporary injunction and a declaratory judgment are two different things. 

But under the common law does this court not have the jurisdiction to grant the injunction sought by the applicant? I can, I think, answer that question very briefly.

Under the common law (the Crown Proceedings Act, 1948, reaffirmed the rule) no injunction can lie against the Crown: see SA de Smith: Judicial Review Administrative Action, 2nd I ed pp 461--462; Halsbury's Laws of England, 4th ed para 168 p 161. It follows from this position that under that law this court could not have jurisdiction to issue an injunction against the President.

In A any case, any rule of common law granting this court such a jurisdiction would, by necessary implication, have been abolished in this country by the provisions of s 42 and 46A of the Constitution.

While paying due respect to the applicant's gallantry, I have, for the reasons I have given, reached a clear conclusion that this Court lacks jurisdiction to grant the relief sought by the applicant in this application. This conclusion renders it unnecessary to decide whether, as was strenuously contended by Mr Salula, the provisions of s 11(2) of the Government Proceedings Act, 1967, and these of Order 37 Rule 2 of the Civil Procedure C Code as amended by the Government Proceedings (Procedure) Rules, 1968, stand in the applicant's path in the instant application.

The point taken in limine succeeds and the application for interlocutory injunction is rejected.

1996 TLR p139

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