NCCR move to block Mbatia application hits snag

THE move by the National Convention for Construction and Reform Mageuzi (NCCR-Mageuzi) to block their former Chairman, Mr James Mbatia from challenging his removal from the post and membership of the opposition political party, has hit a brick wall.

This follows the decision of the High Court, Main Registry, to “strike out” the application by NCCR-Mageuzi, seeking leave to appeal to the Court of Appeal against a decision of the Court, allowing Mr Mbatia, the respondent, to file an application for judicial review over his deletion from the party.

Judge Abdi Kagomba ruled against the registered Trustees of the NCCR-Mageuzi, the applicant, after upholding one ground of objection raised by the respondent with the effect that the application was premature as the order for which a leave was sought is not appealable for being interlocutory.

“(….) this Court finds merit in the first point of preliminary objection raised by the respondent and the same is sustained. Therefore, the application before this Court is premature and the same is struck out for being filed contrary to the provisions of section 5(2)(d) of the Appellate Jurisdiction Act,” he ruled.

The judge was firm in his mind that the order of the Court granting leave to the respondent to file for judicial review, was not conclusive, hence the same falls in the ambit of interlocutory decisions, thus the impugned order was not appealable in terms of section 5(2)(d) of Appellate Jurisdiction Act (AJA).

Counsel for the applicant had implored the Court to refrain itself from obstructing the applicant from enjoying his right to appeal. Though he agreed with his contention, the judge, however, pointed out that despite the fact that an appeal is a constitutional right, the right is not absolute.

“The same must be exercised in accordance with the procedure and boundaries set by the law. One such boundary is the express restriction set under section 5(2)(d) of AJA, that no appeal shall lie against an interlocutory order,” he said.

On April 21, 2023, the High Court granted leave to the respondent to file an application for prerogative order of Certiorari, Mandamus and Prohibition against the applicant to challenge the decision to remove from his post as Chairman and expel him from membership after holding that he has an arguable case.

The court noted that the applicant complained, among others, that before making the decision against him, he was not availed the right to be heard, which is against the principle of natural justice, thus establishing an arguable case as right to be heard is paramount when dealing with rights of an individual.

Furthermore, the court held that there was no doubt that the applicant has solid interest in NCCR-Mageuzi, which its Registered Trustee is the applicant and he has a right to defend them.

The applicant had demonstrated that he was the National Chairman and was a member of NCCR-Mageuzi since July 1, 1992 and in General Election of 1995 and 2015 he became a Member of Parliament in Vunjo Constituency.

Further, the applicant stated in his affidavit, in the year 2012, through Presidential seat appointee he was a Member of Parliament after being appointed by the former President of the United Republic of Tanzania while being in the same Political Party.

On May 21, 2022, the said political party convened a meeting of a National Executive Committee in Dar es Salaam and resolved to suspend the applicant from being a Chairman of the party, pending the approval of its National Congress.

Further, on September 24, 2022, the National Congress of NCCR- Mageuzi convened a meeting and resolved to detach the applicant from his position as the National Chairperson of the said party and expelled him from the membership of the same.

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