SMALL SIMBA SPORTS CLUB v MIEMBENI SPORTS CLUB 1988 TLR 1 (CA)
Court Court of Appeal of Tanzania - Zanzibar
Judge Makame JJA, Kisanga JJA and Omar JJA
6th January, 1988 B
Flynote
Administrative Law - Jurisdiction - Members of Zanzibar Sports Council whose
tenure had lapsed - Whether competent to make effective decisions.
Civil Practice and Procedure - Procedure in High Court of Zanzibar - Party proceeded
by C chamber summons - Whether permissible.
-Headnote
Appellants, Small Simba Sports Club, were alleged to have illegally fielded a player in
a match against the respondents, Miembeni Sports Club. The respondents filed a
complaint with the Zanzibar Football Association (ZFA) which declared the
respondents winners D . Aggrieved, appellants appealed to the Zanzibar Sports
Council (ZSC) which reversed the decision by ZFA. Undaunted, respondents appealed
to the High Court of Zanzibar which quashed the decision on the ground that when
ZSC purported to make its E decision, ZSC itself was non-existent. Counsel for
appellants argued, on appeal to the Court of Appeal of Tanzania, inter alia, that the
matter was not properly before the High Court for adjudication as respondents should
have sought to have the matter removed into the High Court by way of originating
summons and obtain leave to apply for an order of certiorari. They should not have
gone to the High Court by way of chamber F summons.
Held: (i) Under s. 3(1) of the High Court Act, 1985, the High Court of Zanzibar has
unlimited jurisdiction and hence can entertain cases brought to it by using various G
procedures at the disposal of the parties.
(ii) ZSC members, their tenure having come to an end, had no jurisdiction to
determine the dispute, hence their decision was null and void. H
(iii) there can be no appeal directly from ZFA to the High Court since such
appeal lies to a properly constituted ZSC.
Case Information
Appeal dismissed. I
1988 TLR p2
MAKAME JJA, KISANGA JJA AND OMAR JJA
A Case referred to:
1. Hemedi Marijani v Festo Ngowi [1975] LRT n. 66.
[zJDz]Judgment
Makame, Kisanga and Omar, JJ.A.: This eventful appeal is about football. Public B
interest in it was conspicuously evident and the urgency with which the appeal had
to be disposed of was impressed upon us in court. It was heard during the court
vacation and when two members of the court were on their annual leave.
The parties are two sports clubs in Zanzibar. For facility of brevity they will
hereinafter be C referred to simply as Small Simba and Miembeni, respectively.
During the 1987 League Football season in Zanzibar they were matched against each
other twice, in accordance with the rules. The first match was won by Miembeni and
this was on 11th April 1987. On 23rd June 1987 when the two teams clashed again
the tables were turned. Small Simba won that match and Miembeni filed a complaint
with Zanzibar Football D Association, hereinafter referred to as Z.F.A., the body
charged with the duty of superintending the game of football in Zanzibar. Among
other things, Miembeni alleged that Small Simba had illegally fielded a player called
Shaaban Mussa whom they had E acquired from Simba Football Club in Dar es
Salaam without complying with the necessary transfer formalities obtaining in
Zanzibar. ZFA found substance in the allegation and therefore declared Miembeni the
winners of that controverted match. In turn Small Simba, being dissatisfied with that
decision, appealed to the Zanzibar Sports Council, F also known as Baraza la
Michezo Zanzibar, or BMZ for short, created by the Zanzibar Sports Council Act, Act
No. 8 of 1983. BMZ reversed the decision made by ZFA and declared Small Simba,
who had won the match on the field, the winners of that game. The present appeal
before us is by Small Simba, now from the decision of the High G Court of Zanzibar,
wherein Ramadhani C.J., on appeal by Miembeni, quashed the decision by BMZ,
making a number of findings, one of them being that at the material time when the
BMZ decision was purportedly made, the said BMZ was itself non-existent. This
seems to us the crux of the matter.
H Before us Small Simba were represented by Mr. Maira, learned advocate, while
Miembeni were advocated for by Mr. Muccadam, learned counsel. Both learned
advocates fervently and strenously argued the appeal and we are thankful to them for
their useful assistance. We wish also to place on record our grateful thanks to both I
Counsel for putting at our disposal the various documents they deemed useful for our
consideration.
1988 TLR p3
MAKAME JJA, KISANGA JJA AND OMAR JJA
Mr. Maira for the appellants advanced five grounds against the learned Chief Justice's
A decision and these may be grouped into three:
1. That the matter was not properly before the High Court for
adjudication as it was not preceeded by certain formalities of procedure. B
We incidentally note here, with satisfaction, that learned Counsel did
not pursue the stand adopted by BMZ in the High Court that in any event the C
High Court was devoid of power to hear the matter because it was provided that BMZ
decisions are final. The learned Chief Justice correctly construed Regulation 17 of GN
155 of 1985 to mean that such decisions can only be final within certain limits and
limitations, beyond which the High Court's D power to enquire into such decisions
is not ousted.
2. That the learned Chief Justice applied inappropriate Football
Regulations and was wrong to sustain the ZFA decision, and
3. That the learned Chief Justice should have directed that the matter be
heard by a properly constituted BMZ. E
For the purpose of determining this appeal we think there was a good deal of chaff
from which we must separate the grain. The two really relevant and important issues
we have to consider and decide upon are whether the matter was properly before the
High Court, in terms of procedure that is, as already indicated; and secondly, whether
or not we can F sustain the learned Chief Justice's holding that "Hivyo ninakubaliana
kabisa na uamuzi wa Z.F.A. na nitatofautiana na ule wa Baraza AMBALO KWA
KWELI HALIKUWA LA HALALI." (Capital Letters employed for the sake of
emphasis). G
Mr. Muccadam urged that the procedure adopted to reach the High Court was quite
proper in the circumstances and further submitted that the learned Chief Justice's
finding that there was not in existence a BMZ to which Small Simba could have
appealed was quite justified. H
According to Mr. Maira the respondents should have sought to have the matter
removed into the High Court by way of originating summons and obtain leave to
apply for an order of certiorari: They should not have come by way of Chamber
Summons and proceeded the way they did. During the learned exchanges in court,
however, Mr. Maira conceded I that certiorari was not the only remedy in such
1988 TLR p4
MAKAME JJA, KISANGA JJA AND OMAR JJA
A a situation. Instead of obtaining leave to apply for that order a party could reach
High Court, for example by way of review or by way of a suit. Under section 3(1) of
the High Court Act, 1985, the High Court of Zanzibar has unlimited jurisdiction and
we do not agree with Mr. Maira's suggestion that Miembeni could only have gone
there by way of B originating summons. This was in effect a suit brought in
substantial compliance with the Civil Procedure Decree.
On the second vital issue the learned Chief Justice had this to say:
C Ni dhahiri kwangu pia kuwa muda wa miaka miwili wa hawa wajumbe
umekwisha. Kwa niaba ya Miembeni imeelezewa kuwa Baraza lilianza kazi tarehe 1
Julai 1984. Tarehe hiyo haikukanushwa kwa niaba ya Baraza na wala haikutolewa
tarehe yeyote. Hivyo nachukulia D kuwa tarehe ni hiyo ya Julai 1, 1984.
Computing two years from July 1, 1984 we find that the life span of the BMZ ended
on 30th June, 1986. The purported BMZ decision was made on 28th July 1987. We do
not E wish to spend argument on the position of ex officio members in the BMZ,
how many of these were on the Executive Committee which made the purported
BMZ decision etc., because these matters would be relevant only if we were satisfied
that there was at the material time a BMZ in existence. The evidence available
establishes that the learned Chief Justice was correct in holding that BMZ was nonexistent
at the material time. If F there was any doubt over this, and we are satisfied
there was none, it was removed by a Government Press Release made available one
day after the High Court judgment was delivered. The High Court judgment was
delivered on 19/8/87, the Press Release was on the morrow. According to the Press
Release, a now BMZ was consituted on that day, G 19/8/87, to take over from the
previous one which had lapsed the previous February 12th, that is 12/2/87. So that
even by this reckoning there was now BMZ in existence when the purported BMZ
decision was made on 28th July, 1987. If, as Mr. Maira says, H the old BMZ was
filling a vacuum before the new appointment, we only wish to say that however wellmeaning
they might have been they were incapax, they simply had no authority to
stand in for an institution which had ceased to exist. Mr. Maira conceeded that to
extend the life span of BMZ is not one of the powers conferred on the Minister I
responsible for Sports and, in any event, the Minister did not pretend to have such
powers. As
1988 TLR p5
there was no BMZ in existence, Mr. Maira cannot rely on the authority of Hemedi A
Marijani v Festo Ngowi [1975] LRT No. 66 for the proposition that Ramadhani Chief
Justice should have remitted the matter back to a properly constituted BMZ. There
was none in existence at the material time and the learned Chief Justice had of course
no B powers to order the formation of a BMZ. It would have been futile for the High
Court to make orders it had no power to follow up. In Marijani v Ngowi there was
already the Rent Tribunal in existence.
The position is now therefore that because there was no BMZ in existence at the
material C time there was no BMZ decision. The so-called BMZ decision upsetting
the ZFA decision declaring Miembeni the winners is therefore null and void. The
ZFA decision therefore stands. There can be no appeal directly from ZFA to the High
Court. Appeal from a ZFA decision lies to a properly constituted BMZ. D
This appeal by Small Simba is without merit and is hereby dismissed with costs.
By way of postscript and hopefully without stepping on anybody's toes, we wish to
associate ourselves with the suggestion made by the learned Chief Justice that BMZ E
would do well to avail itself of legal guidance. We wish to add that we were
practically bewildered by the labyrinth of almost perennial crops of Regulations and
Addenda issuing from ZFA which is an institution under BMZ.
Appeal dismissed. F
1988 TLR p5
G
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