AfricaPress-Tanzania: EMBATTLED politician Tundu Lissu has suffered another defeat in his protest against the decision to unseat him as Member of Parliament (MP) for Singida East Constituency.
The High Court has, thus, dismissed the application by the former lawmaker, seeking leave to appeal against an earlier ruling delivered in the same matter.
Judge Yose Mlyambina ruled against Lissu, the applicant, after upholding two grounds of objections presented by State lawyers from the Solicitor General, for the respondents, that the earlier court decision sought to be challenged was interlocutory, meaning, did not determine the dispute into finality.
The respondents in the matter were Speaker of the National Assembly of the United Republic of Tanzania and the Attorney General of the United Republic of Tanzania.
They were represented by Principal State Attorney Alesia Mbuya and State Attorney Arigh Rumisha.
He noted that the orders sought to be challenged were based on lapse or shortfalls and irregularities in pleadings and that is why his Brother Judge Sirilius Matupa struck out the application instead of declining leave altogether.
“The remedy, therefore, is not to appeal to the Court of Appeal. The applicant has to rectify the pleadings anomaly and re-file his application before this court.
The application before this Court is unmaintainable for contravening section 5 (2) (d) of the Appellate Jurisdiction Act,” the judge said.
In his earlier application, Lissu had moved the court to grant him leave to apply for prerogative orders against the Speaker of the National Assembly and Attorney General (AG) following his dismissal as MP for violating some Articles under the Constitution and provision under other laws.
The prerogative orders sought included that of Certiorari for calling for the bringing up of the declaration made by the Speaker for Lissu to cease to be the MP for the purpose of quashing and setting it aside.
Certiorari is a court process to seek judicial review of a decision of a lower court or decisions of administrative bodies. Is a rule of law remedy and supervisory writ, serving to keep all inferior jurisdictions within the bounds of their authority.
In his ruling, however, Judge Matupa decided to “strike out” the application instead of “dismissing” the same having noted some lapses or shortfalls and irregularities in the pleadings, that the chamber summons, statement and supporting affidavits.
He further ruled that if the court was to determine Lissu’s application and rule in his favour, thus assuming his seat, would create a constitutional crisis as there would be two MPs in one constituency, against Article 67 (2) of the Constitution of the United Republic of Tanzania.
“The election of Miraji Mtaturu has not been challenged yet. Therefore, the constituency will have two MPs, as the court would not direct the available new lawmaker to vacate the seat.
The reliefs sought in this case, therefore, cannot be enforced without breaching the Constitution,” Judge Matupa declared.
It was at that point in time when Lissu decided to take the matter on appeal. But the procedure, due to the nature of the dispute, required him to apply first leave of the court to appeal to the Court of Appeal against the High Court decision.
When dismissing Lissu’s second application, Judge Mlyambina noted that the Court has not been addressed on the leave of the court for the applicant to file an application for prerogative orders of Mandamus and Certiorari.
That issue, he said, was still pending before the court upon being properly filed as per the ruling by Judge Matupa. “The appeal procedure preferred by the applicant against the impugned ruling is premature and wrong,” the judge said.
The judge agreed with the submission by Advocate Peter Kibatala, for Lissu, that the impugned decision had an effect of refusal. However, he was quick to point out that the refusal was predicted on form and procedural issue and was not based on substance of the matter.
Referring to some decided cases, Judge Mlyambina noted that an application for leave to apply for orders of certiorari, mandamus and prohibition is an interlocutory proceedings and that an appeal against such decision would offend section 5 (2) (d) of the Appellate Jurisdiction Act.
“In the premises, this Court finds that the ruling and drawn order of Judge Matupa dated August 9, 2019, apart from striking out the application, is an interlocutory in nature and did not have an effect of determining the matter conclusively. The application stands dismissed with costs,” he declared.
