FOURTEEN state lawyers, led by Solicitor General, Dr Clement Mashamba, yesterday presented eight objection grounds, requesting the High Court in Dar es Salaam to dismiss with costs the case lodged by ousted Member of Parliament (MP) Tundu Lissu.
In his court action, Lissu, who was MP for Singida East Constituency (Chadema), seeks leave of the court to allow him to apply for prerogative orders against the Speaker of the National Assembly and the Attorney General (AG).
Through his defence counsel Peter Kibatala, Jeremih Ntobesya and John Malya, among others, the ousted MP applies for orders of mandamus against the Speaker for him to transmit to the court for inspection the declaration for his disqualification as an MP and declare the seat vacant.
He also requests for permission to file the orders of certiorari for bringing the declaration made by the Speaker for the applicant to cease to be MP for the purpose of quashing and setting it aside. Lissu, as the applicant, also pushes for orders for stay of the swearing of the elect MP by the Speaker.
In their submissions, however, state lawyers are strongly opposed to the application by the opposition leader for a number of reasons. The lawyers include Principal State Attorneys Vicenty Tango, Alicia Mbuya, George Mandepo and Lucas Malunde.
Others are Senior State Attorneys Abubakar Mrisha, Grace Lupondo, Jannifer Msanga and State Attorneys Gati Mseti and Mkama Masalama, among others.
They told Judge Sirilius Matupa that the constituted attorney to the application, Mr Alute Mughwai, the elder brother of the applicant, has no locus standi (i.e, the right or capacity to bring an action or to appear in court) to file the case on Lissu’s behalf as his appointment is based upon a defective power of attorney.
Expounding on the matter, the lawyers submitted that the documents show that on July 9, 2019, Lissu while in Belgium, signed the power of attorney to authorise his brother to institute the proceedings showing it was signed and attested in that country.
However, according to the lawyers, defence counsel Safolf Magay, signed and attested the same under the address of Tanzania, while he has not exhibited any permit to allow him to practise in Belgium. As a result, they submitted, the power of attorney by Mr Mughwai becomes defective.
They submitted forcefully that the application was incompetent and unmaintainable for falling short of the conditions preceded for seeking leave to apply the prerogative orders of certiorari and mandamus.
Looking at the application, they submitted, only one condition relating to the timing of filing the application which is within six months, among the seven, has been met. The others, including having a decision to be opposed and the application being brought with good faith have not been fulfilled.
Furthermore, the affidavits in support of the application are fatally defective for contravening Order XIX Rule 3 of the Civil Procedure Code.
Such provision requires the deponent to state statements of facts alone that could be proved at the end of the day. However, they submitted, by looking at the affidavits in support of the application, contain extraneous issues such as prayers, legal matters and speculations. They submitted that there were matters stated without disclosing sources.
The state lawyers also told the court that the relief sought relating to stay of the swearing of the elect MP for Singida East constituency, Mr Miraji Mtaturu, was unmaintainable as it was not one of the remedies amenable to redress by way of prerogative orders and being directed to a stranger to the application.
They submitted that the applicant should have filed a separate court action with different enabling laws to prohibit the Speaker of the National Assembly to perform his duty and join the elect MP so that he is not condemned unheard. In the present application, Mtaturu is not a party and is unrepresented.
Furthermore, the lawyers submitted, the application was incompetent for the applicant had failed to exhaust available remedies and that the chamber summons initiating the application was fatally defective for containing omnibus prayers.
According to them, in terms of Article 83 (3) of the Constitution of the United Republic of Tanzania, the applicant has several other chances to resort to during the election process starting the appointment of the elect MP and thereafter before filing the application in question.
Such remedies, among others, include opposing to the appointment of the elect MP by the National Electoral Commission to stand for the constituency and thereafter challenging his elections as the lawmaker through filing election petition.