Fatma Karume vs Attorney general: Who is legally right with regards to stay of execution in Bob Chacha Wangwe's constitutional case?

Matojo Cosatta

JF-Expert Member
Jul 28, 2017
234
390
DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION


It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed”

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987


This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035


Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION


In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com
 
DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION


It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed”

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987


This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035


Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION


In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com

Matojo, as much as you have tried to go forth and back and taking into account the fact that this forum is read by many people who might not be lawyers like yourself and some of us who can understand your submissions, you've failed to conclude directly as to who is right on their positions between the AG and Fatima Karume.

Next time you need to be smart enough!!
 
Matojo, as much as you have tried to go forth and back and taking into account the fact that this forum is read by many people who might not be lawyers like yourself and some of us who can understand your submissions, you've failed to conclude directly as to who is right on their positions between the AG and Fatima Karume.

Next time you need to be smart enough!!


First and foremost, I would like to tender my sincere apology for employing English Language and legal language or technical language in analysing this subject matter of national importance in lieu of Swahili language and in lieu of plain English Language. This work is in legal language because the targeted audience was legal fraternity, this was for consumption of lawyers, however, I find that it is "lesser evil" to share this legal work with members of Jamiiforums than not sharing it at all as at JF there are several lawyers and several intellectuals of Mkiliman caliber who stand in the position to comprehend my submissions.

Read my conclusion carefully, it will tell you by necessary implication who is right and who is wrong. Conclusion need not be express, sometimes we do conclude by necessary implication.
 
With due respect to you my learned Brother. First of all Congratulations for the Efforts you endeavoured to prepare this Article.
I have gone through it and engaged myself with the provison of S.14 of CAP 3. To my opinion. The Central issue is on the two exceptions. Now in your Article expected your argument to rely on the exceptions specifically on whether the breaches alleged by Miss Fatuma Karume, Learned Advocate, does or does not fall within the exeptions. To my opinion that is what is going to be the issue before the Court of Appeal.
And, most importantly, what does the words Continous breach and Person Injuries entails. My be deep exproliation of the exceptions under the abovementioned section would have provided us with a clear picture. Thank you!
 
Such a good read for persons with legal minds (learned friends). Oh how I wish the article would re-written in a layman's language!
DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION


It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed”

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987


This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035


Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION


In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com
 
Mkuu respo, As far as law is concern both Fatma and AG are right to the moment. As far as chemistry is concern that ruling is a catalyst that will dilute the alcohol. My congratulations to AG , well done. I salute, no free lunch.
 
First and foremost, I would like to tender my sincere apology for employing English Language and legal language or technical language in analysing this subject matter of national importance in lieu of Swahili language and in lieu of plain English Language. This work is in legal language because the targeted audience was legal fraternity, this was for consumption of lawyers, however, I find that it is "lesser evil" to share this legal work with members of Jamiiforums than not sharing it at all as at JF there are several lawyers and several intellectuals of Mkiliman caliber who stand in the position to comprehend my submissions.

Read my conclusion carefully, it will tell you by necessary implication who is right and who is wrong. Conclusion need not be express, sometimes we do conclude by necessary implication.


Hello Matojo, I had already put forward my credentials on understanding your submissions but what I wanted is to get straight forward conclusion on who was right and not otherwise and for which I reiterate my earlier position that you need to make a thorough conclusion......!!

Nevertheless, implied conclusions on legal points of law are normally understood by lawyers and not otherwise.

Your apology to use legalese is honored!!

Next time you need to be smart enough.
 
DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION


It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed”

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987


This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035


Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION


In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com
Incomprehensible, pompous and pretentious use of the English language by any standards.
 
Incomprehensible, pompous and pretentious use of the English language by any standards.

You have employed incomprehensible English language in pompous and pretentious manner in your endavour to criticise the purported Incomprehensible, pompous and pretentious use of the English language. You have committed the same sin.

Take notice that the targeted audience of this article initially were members of the legal fraternity (lawyers), intellectual political fraternity and other categories of intellectual cream of this nation in other platforms and initially it was not intended to be shared on this platform, however, I have done so to share knowledge with those who are capable of comprehending the same in this platform, that is, Jamiiforums.

The language employed in my article, to targeted audience, that is, lawyers, it is just ordinary, usual and simple language though it may seem complex and incomprehensible to you.

Above all, I have ready tendered my sincere apology for employing legal language and English Language together with reasons for doing so, be pleased to read my post hereinabove in response to Mkiliman .
 
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