IN THE HIGH COURT FOR ZANZIBAR

HOLDEN AT VUGA
CIVIL CASE NO. 35 OF 2017

1. NASSOR KHAMIS NASSOR … … PLAINTIFFS

2. KHAMIS RASHID ALI
3. JUMA HAJI JUMA
4. SHABANI RAJAB
5. NASSOR HASSAN NASSOR
6. NASSOR MOHAMED
7. RAJAB JUMA ALI
8. MASOUD HAJI USI
9. AMOUR SALEH SIMBA
10. HAMADI MBAROUK HAMADI
11. ALI HAMAD OMAR
12. MOHAMMED SAID ABDALLAH
13. HAJI BAKA ALI
14. SEIF KHALID MASOUD
15. AMEIR HAJI AMEIR
16. KHERI NASIBU KHERI
17. KHAMIS MOHAMMED KHAMIS

VERSUS
THE ATTORNEY GENERAL, ZANZIBAR … DEFENDANT

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RULING

DATE OF RULING: 18.12.2017

BEFORE: ISSA, A. A. J

This ruling arises out of the preliminary objections on the point of law raised by the
Respondent. The Background to the case is that on 16.8.2017 the Minister of
Agriculture, Natural resources, Livestock and Fisheries issued an order over ZBC

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Radio forbidding the use of chainsaws and requires those who possess chainsaws to
surrender the same or they will be seized and confiscated by the Ministry. The
announcement follows the banning of the chainsaw which was done by Banning of
Chainsaw Regulations 2015. The Regulations were made under section 100(1)(j) of
the Forest Resources Management and Conservation Act, No. 10 of 1996.

The Applicants are the owners of the chainsaws and were aggrieved by that
announcement. Hence, they instituted Civil Case No. 35 of 2017. The Respondent on
her side filed a Written Statement of Defence in which she raised the following
preliminary objections on the point of law:

1. The plaint is bad in law for not being properly signed.

2. The Plaintiffs have no cause of action against the Defendant since the
surrendering of the chainsaw is the requirement of the law.

During the hearing of these preliminary objections the Plaintiffs were represented by
learned advocate, Mr. Ramadhan Bakari and the Respondent was represented by
learned State Attorneys Ms. Salama Rama.

Ms. Salama started with the first p.o. and submitted that the Plaintiffs failed to follow
the procedure laid down in Order VI Rule 14 of the Civil Procedure Decree, Cap. 8 of
the Laws of Zanzibar. The plaint was not signed by the advocate. She added that the
said provision is mandatory and has used the word “shall”.

Mr. Ramadhan, on the other hand, submitted that the plaint was properly signed and
they complied with Order VI Rule 14. He said there is a proviso to that Order, and the
advocate is required to sign when the Plaintiff is absent. In this case the Plaintiffs are
present and they signed the plaint. Mr. Ramadhan added that the advocate normally
signs the document as the drawer of the document. He prayed for the dismissal of this
p.o.

This p.o. talks about the compliance of Order VI Rule 14; this Order provides:

“14. Every pleading shall be signed by the party and his advocate or wakyl
(if any):

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 Provided that where a party pleading is, by reason of absence or for other
good cause, unable to sign the pleading, it may be signed by any person
duly authorised by him to sign the same or to sue or defend on his behalf”.

The wording of this rule is very clear and the rule has been couched in mandatory
terms. If when the pleading was filed a party had the service of an advocate then the
pleading must be signed by the party and an advocate. Failure of an advocate to sign
the pleading is a non-compliance with this rule. In this case when the plaint was filed
the Plaintiffs had the service of Mr. Ramadhan Bakari and he is the one who drew the
plaint. Therefore, he was required by Order VI Rule 14 to sign the plaint; a thing which
he failed to do.

Mr. Ramadhan argued that he was only required to sign at the end as the drawer of
the plaint. It is true that he is also required to sign at the end of the document as the
drawer of the document. But this requirement is not a requirement of CPD, it is a
requirement of the Legal Practitioners Decree, Cap. 28 of the Laws of Zanzibar.
Section 4 of this Decree provides:

“Every document drawn or prepared by a legal practitioner shall be indorsed

with the name of the legal practitioner by whom such document shall have
been drawn up or prepared”.

Therefore, the advocate preparing a plaint is required to comply with both provisions;
he should sign the plaint as required by Order VI Rule 14 and should indorse the plaint
as required by section 4. Now, what is the effect of this defect in the plaint. C.K.
Takwani on Civil Procedure, 3rd edn, pg 114 commenting on similar provision said:

“A defect in the matter of signing and verification of pleading is merely an

irregularity and can be corrected at a later state of the suit with the leave of the
court and a suit cannot be dismissed nor an order passed against a party on
the ground of defect or irregularity in signing or verification of plaint or written
statement”.

This Court in Tourvest Holdings Proprietary Ltd t/a Africa Hotels & Adventure V.
Jambo Lodge Company Ltd t/a Azanzi Beach Hotel, Civil Case No. 38 of 2016 and
in Mwanakheri Narugwegwe and 4 Others V. Maruzuku Mussa Maruzuku,
Revisional Application No. 1 of 2018 adopted this view and takes the matter as an

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irregularity which can be corrected by the party with the leave of the Court. Therefore,
this p.o. fails to meet the Mukisa Biscuit test (Mukisa Biscuit Manufacturing Co. Ltd
V. West End Distributors Ltd (1969) EA 696) as it does not lead to the dismissal of
the case. Hence, the first p.o is dismissed.

With respect to the second p.o. Ms Salama submitted that there is no cause of action
as the issue of surrendering of chainsaw is the requirement of law. She cited regulation
3(1),(2) and (3) which requires any person who possess the chainsaw to surrender the
chainsaw to the Department of Forestry. Further, she said the Plaintiffs were required
to follow the Regulations and not to come to Court. She cited the case of J.B.Shirima
& Others Express Bus Service V. Humphrey Meena t/a Comfort Bus Service
[1992] TLR 290 where the High Court of Tanzania said when there is no cause of
action, there are two measures: to allow amendment or dismiss the case. Ms. Salama
prayed for the dismissal of the case with cost.

Mr. Ramadhan, on the other hand, submitted that there is a cause of action as the
Plaintiffs were required to surrender the chainsaw. He said the word “cause of action”
has been explained in many cases. He cited the case of Stanbic Finance Tanzania
Ltd V. Giuseppe Trupia and Chiara Malavasi [2002] TLR 217 where the term cause
of action has been explained and in what circumstances it may arise. He also cited the
case of Mashado Game Fishing Lodge and 2 Others V. Board of Trustees of
TANAPA, [2002] TLR 319 where it was held that a cause of action arises when a
person has a right and another person infringes that right and that person with a right
suffered substantial material loss. He also cited the case of Ramani Consultancy Ltd
V. Board of Trustee of NSSF Commercial Case No. 52 of 2002 (Unrep.) where it was
held that cause of action is determined by looking at the claim; the plaint. Also he cited
the case of B.M.Mbasa V. Attorney General Civil Appeal No. 40 of 2003 (CAT) which
referred to the case of John M. Byombalirwa V. Agency Marine International
(Tanzania) Ltd [1983] TLR 1 where the Court held when there is no cause of action
the remedy is that the Court rejects the plaint and it does not dismiss it.

Mr. Ramadhan added that in the grievances brought in Court the Plaintiffs have a right
to approach the Court. He referred to section 12 (1) of the Constitution which give that
right to the Plaintiffs. He said the Regulations were made after the Plaintiffs were in
possession of the chainsaw. It was lawful to possess the chainsaw. Further, he said

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Regulation 3 (2) (d) gives a right to continue to possess the chainsaw after getting
permit. The Plaintiffs, therefore, have the right to continue to possess the chainsaw.
He added that this also goes against the right to own property as provided by section
17(c) of the Constitution. He said the act of the Defendant to confiscate the chainsaw
was against the Constitution and the aggrieved party has to be compensated. Mr.
Ramadhan added that also section 25(A) of the Constitution allows a person who is
aggrieved to file a suit in Court.

Lastly, Mr. Ramadhan said the Banning of Chainsaw Regulations 2005 is not
enforceable as he failed to see the signature of the Minister. He submitted that the p.o.
raised failed to meet the requirement set in the case of Msanganandwa V. Chief
Japhet Wanzwagi [2006] TLR 351 which explain what is a p.o. He prayed that the
p.o. should be expunged and the case be heard on merit.

Ms Salama on her response submitted that the Regulations have been signed by the
Minister and published in the official gazette. The original is kept in the Attorney
General’s Office and which has the signature of the Minister. The Regulations have
also been gazetted. She added that before the Regulations were made people were
in possession of the chainsaw but the Government discovered the misuse and banned
its use. The Plaintiff were required to surrender the chainsaw and then follow the
procedure set in the Regulations. A permit will be issued for the use of the chainsaw,
but the Plaintiffs did not follow the procedure.

With respect to this issue the Court will start with the concern raised by the advocate
of the Plaintiffs that the Regulations have no signature of the Minister. The learned
State Attorney has clearly explained the situation that the original which contained the
signature is kept with the Attorney General’s Office. The issue whether this Regulation
is in force or not has been explained in Regulation 1 as follows:

“1. These Regulations may be cited as Banning of the Chainsaw Regulations,

2015 and shall come into operation immediately upon being signed by the
Minister and published in the Official Gazette”.

The Regulations have been published in the Legal Supplement (Part II) to the Zanzibar
Government Gazette Vol. CXXIV No. 6569 of 12th June, 2015. Further, section 37 of

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the Interpretation of Laws and General Provisions Act No. 7 of 1984 provided as
follows:

“37. Any subsidiary legislation published in the Gazette shall come into force on
the date of such publication or, if it is provided either in the subsidiary
legislation or in the Act that subsidiary legislation or any provision thereof shall
come into force on some other date, such subsidiary legislation or, as the case
may be, such provisions thereof shall, subject to section 38 come into force
on such other date”.

Therefore, according to section 37 of the Interpretation of Laws and General

Provisions Act the Regulations are enforceable from 12th June 2015.

Now, coming to the issue of cause of action, the learned advocate for Plaintiffs have
cited numerous cases about what is cause of action and what should be looked into
when determining if there is a cause of action or not. The word “cause of action” has
not been defined in the CPD, but there are plethora of case laws explaining what is a
cause of action. In John M. Byombalirwa V. Agency Marine International
(Tanzania) Ltd [1983] TLR 1 the Court of Appeal in simple terms stated that the cause
of action is the essential fact which is necessary to prove before the Plaintiff can
succeed in the suit. Therefore, it suffices to state that a cause of action arises when
facts exist which give rise or occasion to a party to make a demand or seek redress
from another. Further, for purposes of deciding whether or not the plaint discloses
cause of action the plaint and not the reply to the written statement of defence should
be looked at.

Now if we look at paragraph 3 of the plaint it reads as follows:

“3. That the cause of action of this suit arose from the action done by the
Minister for Agriculture, Natural Resources, Livestock and Fisheries over
ZBC Radio on the 16th day of August 2017 of issuing an order in relation to
affecting the confiscation and seizure of the Plaintiffs’ Misumeno ya moto
(Chainsaw) “the said property” at whatever costs if the Plaintiffs did not return
them voluntarily.”

Further, on paragraph 9 of the plaint the Plaintiffs have alleged that the acts of the
Defendant is unlawful and interference with the Plaintiffs’ proprietary rights, and in

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paragraph 10 they have alleged that the acts of the Defendants are not only
unconstitutional but also malafide. Therefore, among others the Plaintiffs are claiming
for general damages for wrongful confiscation and or seizure of the chainsaws.

From the explanation above there are two issues. First, whether the suit has been filed
prematurely and whether there is a cause of action. The Plaintiffs are complaining of
the intended confiscation or seizure of the chainsaw. The Ministry just issued an
announcement requiring the chainsaw owner to surrender the same to the Department
of Forestry. There is no issue of confiscation or seizure; the acts which the Plaintiffs
are complaining about has not yet been committed and they are not sure that they will
be committed at all. The Ministry just issued an announcement requiring the chainsaw
owners to surrender them. The announcement was in accordance with Regulation 3
(1) of the Banning of Chainsaw Regulations. Regulation 3 provides:

“3(1) A person who own or possess chainsaw prior to the commencement of

these Regulations shall be required to surrender the chainsaw to the Forest
Authority, immediate after the application of these Regulations.

(2) A person shall not be allowed to import, store, possess or use chainsaw
for any purpose whatsoever unless under the following circumstances:

(a) emergence;

(b) rescue;

(c) public telecommunication, electricity supply services; or

(d) any other service authorised by Forest Administrator.

(3) Subject to the provisions of sub-regulation (2) of this Regulation, a person

who intends to import, possess or use chainsaw shall apply for permit to the
Forest Administrator as provided under the First Schedule of these
Regulations.”

This Regulation is very clear; its purpose is to regulate the use of chainsaw and any
person who intends to own, possess, or use the chainsaw is required to apply for the
permit. It seems the learned advocate for the Plaintiff when he filed the suit he was not
aware of these Regulations, particularly regulation 3 which requires the Plaintiffs to

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apply for the permit after surrendering the chainsaw. Therefore, the suit has been
prematurely filed and there is no cause of action.

The second issue concerns the violation of constitutional rights like right to property
and right to work as alleged by the advocate for the Plaintiffs. It is true that section
24(2) of the Zanzibar Constitution allows any person to approach the High Court when
he sees that his fundamental rights under Part Three of the Constitution have been
violated or are violated or are about to be violated. But the person who comes to court
alleging violation of constitutional rights does not come to Court with a civil suit, he
files a constitutional petition before the High Court challenging the act which has been
committed or challenging the law which has been enacted. In this case the learned
advocate erred, if he was aggrieved by the Regulations which also violates the
Plaintiffs constitutional rights the proper way is to file a constitutional petition.

In the upshot, this Court is of the view that this case has been prematurely filed and
there is no cause of action. Therefore, the plaint is rejected under Order VII Rule 12
(a) of the Civil Procedure Decree, Cap. 8 of the Laws of Zanzibar.

It is so ordered.