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 12th 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.