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;
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;
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
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