ST.

AUGUSTINE UNIVERSITY OF TANZANIA

SCHOOL OF LAW
ASSIGNMENT TYPE : GROUP ASSIGNMENT
COURSE CODE : SLW 321
COURSE INSTRUCTOR : MR. SUNGA
COURSE TITTLE : ADMINISTRATIVE LAW II
DATE OF SUBMISSION : 13th APRIL 2019
SUBMITTED BY : GROUP NO. 17
MEMBERS:
NAMES REGISTRATION SIGNATURE
NUMBERS
1. MWALISU SYLVIA LLB 57694
2. SALUM SHAIDA LLB 56613
3.MANOTI REBECCA .N. LLB 56204
4. BWISO SARAFINA .S. LLB 57551
5. MINJA REGINALD .E. LLB 56670
6. PETER RESTITUTOR LLB 58520
7. RAPHAEL CLEMENT LLB 56570
TIENG’O
8. MATHIAS STELLA LLB 57530
9. STEVEN LEBA LLB 57983
10. STEVEN IBAYA LLB 56442
11. SAMIRA SELEMANI LLB 56369
12. MARTIN SARAH .M. LLB 57155
13. GODWIN MINJA LLB 57290
14. GODFREY JULIUS YUNZU LLB 57260
15. NYUMBA SALMA .M. LLB 56401 NOT PARTICIPARTRED
16. SAMWEL MNZAVA LLB 57232 NOT PARTICIPARTRED
17. MWABUPE REBECCA LLB 56118
18. SALMA HAMZA LLB 56446 NOT PARTICIPARTRED
19. SUKU MAINA KAIRUKI NOT PARTICIPARTRED
QUESTIONS;
1. (A.) write the case note on the case of JOSHUA NASSARI
(B.) What are the developed principle on the case.
 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT DODOMA

MISC CIVIL CASE NO: ______OF 2019

JOSHUA SAMWELI NASSARI……………………………………………………

APPLICANT

VERSUS

THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF

TANZANIA ………………………………………………………1ST RESPONDENT

AND

THE HON. ATTORNEY GENERAL ………………………………….2ND RESPONDENT

FACTS:

JOSHUA SAMWELI NASARI (APPLICANT) filled an application against the ATTONEY

GENERAL and THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED

REPUBLIC OF TANZANIA (RESPONDENTS), The Applicant is being unseated as a

member of the National Assembly of Arumeru East Constituency due to his inability to

attending the 12th,13th and 14th meetings of the National Assembly from 4th September to 14th

September 2018, 6th November to 16th November 2018, 29th January to 9th February 2019

respectively. However, the Applicant claims that on the 12 th meeting he participated in the

sitting of the standing committee of the Land Natural Resources, and that he has travelled to

the United States of America due to his wife’s health issues of which the said APPLICANT
had notified The Speaker of the National Assembly’s office via email and there was no

response.

RISING ISSUES:

 WHETHER THE DECISION OF THE RESPONDENT WAS UNLAWFUL.

 WHETHER THE APPLICANT HAS LOCUST TO APPLY FOR JUDICIAL

REVIEW.

 WHETHER THE APPLICANT FAILED TO DISCLOSE THE CAUSE OF

ACTION.

 WHAT RELIEFS THE APPLICANT IS ENTITTLED TO.

 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT DODOMA

MISC CIVIL CASE NO: ______OF 2019

JOSHUA SAMWELI NASSARI……………………………………………………

APPLICANT

VERSUS

THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE UNITED REPUBLIC OF

TANZANIA ………………………………………………………1ST RESPONDENT

AND

THE HON. ATTORNEY GENERAL ………………………………….2ND RESPONDENT

DATE OF LAST ORDER 29/03/2019

DATE OF JUDGEMENT 12/04/2019

JUDGEMENT

MANSOOR.J.

The Applicant filled a suit against THE SPEAKER OF THE NATIONAL ASSEMBLY OF

THE UNITED REPUBLIC OF TANZANIA. Alleging to unseat as a Member of the National

Assembly of Arumeru East Constituency. As consequences the Applicant is claiming for

costs and any other order of this honorable court. The Respondents made an Application of
expart, however the court did not determine and allowed the tile counter affidavit which is

accompanied with statement in reply at some stage and ordered for hearing inter-parties

before the grant of leave.

The Following issues were Framed.

 WHETHER THE DECISION OF THE RESPONDENT WAS UNLAWFUL.

 WHETHER THE APPLICANT HAS LOCUST TO APPLY FOR JUDICIAL

REVIEW.

 WHETHER THE APPLICANT FAILED TO DISCLOSE THE CAUSE OF

ACTION.

 WHAT RELIEFS THE APPLICANT IS ENTITTLED TO.

The Applicant is represented by advocates, Mr. Hekima Mwaisapu, Jonathan Wilfred Mndem

and Fred Kalonga as shown in the coram and the actual hearing, the Respondent is

representing by Miss Alesia Mbuya the principle State Attorney and learned assisted by Mr.

Masunga Kimahanda the State Attorney and Mr. Pius Mboya as Principle Attorney in the

office of the solicitor General filled a Notice of Preliminary Objection against the Applicant

that

The application has violated the virtue of section 7 of Notaries Public Commissioner for Oath

by the applicant’s advocate, failed to show the reason for disappearance and withdraw from

representing the applicant while he clearly shows in the Affidavit of the applicant, Mr.

Jonathan Wilfred is the one who verified the statement on the said date on 17 th March 2019

and thus it was recommended by the State Attorney that the person that has the authority

regarding Cap 12 is the person who is empowered to administer for oath receive solemnly

affirmation the Affidavit used in the proceeding before the court are banned to represent the
party in such suit and hence the application on the side of the applicant is said to be pre

mature.

In the case of WENGERET –WINDROSE SAFARI (T) LIMITED AND ANOTHER

VERSUS BIGUDA COMPANY LIMITED AND HILARI.J. BIGUDA T.L.R 2000 the court

held that the affidavit did not state at what place the oath or affidavit has taken place or made

and therefore it was naturally defective. Thus in the instant case the purported application

which lead to this appeal is incompetent and should have struck out.

Apart from the above learned state Attorney have invited the court intention to the decision

rendered by the court of appeal in the case of VIP ENGENEERING AND MARKETING

LIMITED VERSUS SOCIETE GENEREL DE SURVEILANCE S.A AND TANZANIA

SUPERTENDENCE COMPANY LIMITED T.L.R 2006 (KAJ.J. A) held that the amended

affidavit is totally defective by mentioning the wrong date in the jurat and therefore the

motion by valid affidavit as required by rule 46 (1) of court rule and also is said to be the

Notaries and Public commissioners for Oath Act is unequivocal and codegenical banned the

commissioner for Oath who administered the Oath in case of Affidavit in any purpose of

proceedings in court to represent part in the proceeding as provided under section 7

Coming back to the applicant learned consul Mr. Hekima mwaisap and Fredi Kalonga

vehemently challenge the arguments presented by the State Attorney.

That the Affidavit the applicant Mr. Joshua Samwel Nasari notarized by Advocate Mndeme

as the commissioner for oath is for the purpose of the present proceedings before the High

Court.

Under affidavit is a voluntarily declaration and statements of facts in writing relating to

matter in question or at issue, sworn and signed by a deponent before a person or an officer
authorized to administer such affidavit and also an affidavit constitute evidence where so

provided or agreed.

So for that matter, the court is required to determine this present application and making

orders on the affidavit of Mr. Joshua Samwel Nasari, which attested by his advocate Mndeme

and denied the argument in favor of the respondent. Because Section 7 does not impose a

Bann on an advocate in respect of all proceedings past, present and future. In which he will or

was served as an advocate. And thus the affidavit in which the applicant, Advocate Mndeme

attested will be used as evidence in presence of the application before the eye of the law.

So far the Advocate for the respondent pointed on the case of WENGERET-WINDROSE

SAFARI, to make the reference of section 7which creates a Bann to advocate who acted as

commissioner of oath to represent an applicant. Similarly, in this case in the affidavit of the

applicant which is said violates section 7 of the Notaries Public and Commissioner for Oath

CAP 12 RE 2002, also violates Rule 5 (2) of the law Reform (Fatal accidents and

miscellaneous provisions) Act CAP 310, Which requires an application for leave to be

accompanied by affidavit verifying the fact to be relied on.

In adherence of the last objection raised by the state attorney representing the respondent that

the applicant has no cause of action against respondents. The court held that the first

respondent, the speaker of the National Assembly of Tanzania is sued for issuing decision to

unseat the applicant as a member of the National Assembly of Arumeru East Constituency

and the state attorney pointed that there was no decision made by the speaker to warrant the

interference of the court by way of Judicial Review. And also according to Article 71(1) C of

the Constitution of the United Republic of Tanzania of 1977 as amended from time to time,

provides that a member elected or nominated are expected to take their seats in the

consecutive meetings of the parliament, but if they are absent due to unreasonable reasons
and for that case if it happens without the permission of the speaker and their absences of

three consecutive meetings the speaker may declare their seats vacant. And for these virtual

provisions of article which provided in the Constitution of the United Republic of Tanzania

read as;

“146(2) Mbunge yeyote atakayeshindwa kuhudhuria mikutano ya bunge mitatu mfululizo

bila ruhusa ya spika iliyotolewa kwa maandishi atapoteza ubunge wake kwa mujibu wa ibara

ya

71(1) C ya katiba, na spika atataarifu tume ya uchaguzi.

An applicant shocked after seeing a public announcement, “Taarifa kwa Umma”, notified the

chairman of the national election commission that the Arumeru East Constituency is vacant

since the speaker was simply complying

with provisions of order 146(2) of parliamentary standing order, by informing the chairman

of the National Electoral Commission that the seat is vacant due to violation of Article 71 of

the Constitution of United Republic of Tanzania of 1977.

And for that matter it is undisputable fact that the applicant did not submit an application for

leave of absence, and automatically lost his membership of the parliament.

So the applicant decided to file an application to the High Court that the decision made by the

speaker can be challenged in court by way of Certiorari. In fact, the applicant is seeking

quash the decision provided by the speaker, annexure to his affidavit communicated by the

office of the speaker to the public by challenging that,

In the application of the applicant the fact he did not attend to three consecutive meetings of

the parliament is not true, but he had sought for permission of his absence and that he had

notified request to leave for his absence via Email on January 31st 2019.
Coming back to the first respondent state that there was no permission by the applicant prior

to the meetings.

And the most substantial point argued by state attorney is that the disqualification of the

applicant is not the decision of the speaker but it is an operation of the supreme law of the

land, The Constitution as provided under Article 71(1) and for that matter the applicant has

come t the wrong forum suing the party which has no cause of action.

The disputable fact is that however the applicant was disqualified under the validity of the

provision of Article 71(1) C of the Constitution, but also the applicant is not given an

opportunity to be heard or a decision and challenge the provision of the constitution, where

the provision is unreasonable and violate the principle of NATURAL JUSTICE.

And also the state attorney pointed that there was no decision made by the speaker because

the applicant failed to comply with what is stipulated under Order 5 Rule 4 of the

parliamentary standing orders and the application is premature.

So the State attorney argue that the applicant has ought to have remedies awarded under

Order 5 Rule 4 of the National Assembly standing orders.

In the circumstance and for the reasons given above, to all preliminary objection raised by the

respondents against the applicant’s application in favor, since the application failed to

disclose the allegations on the respondent and said to be incompetent, thus the suit is

dismissed.

Dated at Dodoma this 12th day of April 2019.

Mansoor, J.
 ……………………………

Judge

12th April 2019

Delivered in the absence of both parties, the applicant’s Advocate Mr. Fred Kalonga being

aware of the date of judgement, This 12th day of April 2019.

………………………………..

Mansoor, J.

12th April 2019.

IMPACTS

IRRESPONSIBILITY an act of not being accountable in the attainment of the day today
obligations or in other words means lack of proper sense of responsibility. A good leader
understands that leadership is not power, they take responsibility of their actions which
includes both failures and success. Every leader possesses a legal obligation towards their
duties as provided to them by the Principle authority, in this context the Speaker of the
National Assembly and the Constituent member of the National Assembly did not act
responsible as leaders in undertaking their administrative obligations. This includes following
the precise procedural arrangements in the attainment or in fulfilling the duties set forth by an
Administrative body or instrument such as governmental bodies there are different legal
outlines provided for the maintenance of such administration. For example, there are laws
such as The Parliamentary Standing in the parliament Orders, The Constitution of The united
Republic of Tanzania of 1977 As Amended from time to time.

POLITICAL EMORTIONS
As a democratic state possess the characteristics of Multiparty system, the Speaker of the
National Assembly is to act without any sense of bias towards one leader since he is a
product of the opposition party. However, a leader is to act in accordance with the law and
not any other influences as it is evidenced in the Constitution of the United Republic of
Tanzania of 1977 as Amended from time to time under Article 13 of the Constitution
elaborates to the extent that no one is above the law hence everyone is subjected to the law.

1) B. INTRODUCTION

In Adherence of the case provided for the leave to file judicial review. Where by an applicant

file an Application to the court of law to seek. For his right which has been violated and

declare him to unseat as the member of Parliament as to whether the punishment which has

been provided by speaker of National Assembly violate the fundamental principle of

administrative law and it’s against the mother law of the land, Constitution of United

Republic of Tanzania of 1977 as amended time to time. So the following are the principles

brought in this case as follows: -

Principle of Natural Justice Order. The term can be defining as a principle that

intended to insure law with the finance and secure justice and fairness and should vest the

manner of arriving of the decision by judicial process. This case the Judge elaborate that the

application of the Applicant who against section 7 of Notaries Public and commissioner for

oath cap 12.

Where the court derived a principle of Nemo Judex in cause sua means the rules

against bias, that no man can be a Judge of his own cause.

Where the Judge restrict an advocate of applicant one known as Advocate Jonathan

Wilfred Mndeme to stand as an advocate simply because he exercises the power of

commissioner for oath and at the same time representing a party in the same proceeding
which make an Affidavit to be defective. And according to section 7 Of Notaries Public cap

12and section 5(2)d1 of the law reform (Fatal accidents and miscellaneous provision). Act

Cap 310which requires an application for leave to be accompanies by an affidavit verifying

relied upon.

So restricts a person who has interest in case to stand as the representing party on the

proceedings.

Right to be heard, here it was argued that before the establishment of the notice to

unseat an applicant. He should first be heard but it was not done by the speaker as it against

the rules of Natural Justice.

But Judge said that, the decision of the speaker was not worth and should not be

challenged but if so the Applicant wanted to challenge Article 71 of the constitution which

automatically made him to be disqualified as the member of the National Assembly.

So the court concludes that, this should not be challenged by a way of Judicial Review but it

should be challenged by another Forum and then the applicant application is incompetent as

he initiated case pre-maturely.

The principles of Rule of Law. This is the principle that all people and institutions

are subjected to and accountable to law that is fairly applied and enforced, the principle of

government law. Also this is the fundamental constitutional principle which cannot be

changed by any part in the country.

Rule of law is a principle which brought in the case of JOSHUA SAMWEL

NASSARY US. THE SPEAKER OF THE NATIONAL ASSEMBLY OF United

1
Notary Public and Commission for oath Act 12 R.E (2002).
Republic Tanzania AND AG, Under this case the court discussing this principle by

regarding to the Supremacy of the law as provided under Article 71 (1) (c) 2 of the CURT

which have the effect that when members are elected or nominated, they are expected to take

their seats in the meetings of the Parliament and attends its proceedings unless they are

constrained to remain absent due to unavoidable reasons.

Whereby the provision of the constitution provides that if for period of three

consecutive meetings a members of parliament is without permission of the Speaker absent

from three consecutive meetings therefore the Speaker may declare his seat vacant. As well

as Order

States as follows

“Mbunge yeyote atakayeshindwa kuhudhuria mikutano ya Bunge mitatu mfululizo bila

ruhusa ya Spika iliyotolewa kwa maandishi, atapoteza ubunge wake kwa mujibu wa Ibara ya

71 (1) (c) ya katiba na spika ataiarifu tume ya uchaguzi’’.

The court went far that, the speaker did not make any decision to disqualify the

Applicant from being a member of a Parliament and since his disqualification was automatic

cessation in accordance with the provisions of Article 71 (1) of Constitution of United

Republic Tanzania

Therefore, the Applicant has no cause of action against Respondents since they are made no

decision to disqualify him as a member of the Parliament but his disqualification was a result

of the provision of the constitution.

The principle of judicial review. Judicial review, this is the power of the courts of a

country to examine the actions of the legislative, executive arms of the Government and to

Constitution of United Republic of Tanzania of (1977).

2
determine whether such actions one consistent with the constitution. Actions Judged

inconsistent are declared unconstitutional and therefore, null and void. This is part of the

checks and balances that the three branches of the Government use in order to limit each

other and ensure a balance of power. The power of Judicial review was established in the

1803 case of MARBURY Vs MADSON3 as it was held that section 13 of the Judiciary Act

of 17894 is unconstitutional to the extent it purports to enlarge the original Jurisdiction of the

supreme court beyond that permitted by the constitution. Congress cannot pass laws that are

contrary to the constitution permits.

The Rules or Principles of Judicial Review. With regard to this principle where the

applicant basically made an application for leave to file a Judicial review, for certiorari to

quash and set aside the decision of the speaker of the National Assembly of United Republic

of Tanzania to unseat the applicant as a member of National Assembly for Arumeru East

constituency.

Where it was held that, the prerequisite for filling an application for leave of Judicial

Review have not been met as to reason that he initiated Judicial Review pre-maturely where

it is not comply with Orders 5 Rule 4 of Parliamentary standing Order which provides the

effect that any member of the Parliament who did not satisfied with the decisions of the

speaker he should present his complaints to the clerk of National Assembly, who would have

forwarded his complaints or grievances to the speaker. And it was only done if it was the

decision of the speaker but with regard to the case here in hand the decision was not of

speaker but it through Article 715 ,which automatically made the Applicant disqualified to be

member of Parliament.

3
1QB 1803.
4
Judicial Act of 1789.
5
So the applicants have disrupted the procedures available and applicable within the National

Assembly. So he should first present his claims to the National Assembly and there after

apply for Judicial Review.

And this elaborated by different cases Example;

The case of PARIN A JAFFER and ANOTHER vs. ABDULARASUL AHMED and 2

OTHERS 1996 TLR 1166 . The court said that

“Where the law provides extra Judicial one for resolving a certain cause, the extra

Judicial machinery should, in general be exhausted before recourse to made to Judicial

process”

Also the case of; Brennan.J. W. A.G (of north south worth) vs. ( Quin 1990 )7

So generally, the rule is that the court does not made a review for a case which does not

comply with all the procedures.

CONCLUSION:

Therefore, From the case of JOSHUA SAMWEL MASSARI vs THE

SREAKER OF THE NATIONAL ASSEMBLY OF UNITED REPUBLIC TANZANIA

AND A.G the impacts analyzed are basically positive and negative all-over. The political

emotion of the speaker of National Assembly is the Negative impact, this is because the

speaker of the National Assembly of United Republic Tanzania acted in accordance to his

emotions and not the law. Irresponsibility falls upon both Joshua Samwel Nassari and the

speaker of the National Assembly of United Republic Tanzania. Joshua Samwel Nassari

neglected to report to the displinary committee instead he reported to the court.

6
TLR 1996 page 116.
7
ALLER (1990).
Also un-observed of Administrative procedure by the speaker of Parliament of United

Republic Tanzania, as he did not observe the administrate procedures. The right to be heard

here is argued that before the establishment of the notice to unseat applicant should be first

being heard. But this was not done by the speaker and thus it is against the Rules of Natural

Justice.
BIBLIOGRAPHY:

 Mandi R, Idd. Lecture Notes in Administrative Law

 Carrol A, (2003) Constitutional and Administrative Law 3rd Edition Person: London

 Peter C, (1997), Human Right in Tanzania: Selected Cases & Material.

 T. Chriss (2008) Constitutional and Administrative Law