THE outcome of application by opposition leader Tundu Lissu seeking to challenge the move unseating him as Member of Parliament (MP) for Singida East constituency under Chadema ticket will be known today when the High Court gives its ruling.
Judge Sirilius Matupa will deliver his verdict on the matter after going through competing submissions presented before him by counsel for the parties on some preliminary points of law presented by the Speaker of the National Assembly and the Attorney General (AG).
Lissu, through his advocates Peter Kibatala, Jeremiah Ntobesya and John Malya, among others, has applied for leave of the court to allow him to apply for prerogative orders against the Speaker and the AG and an order to stay the swearing of the elect MP by the Speaker for the constituency.
The ousted MP, on prerogative orders, is applying orders of Mandamus against the Speaker for him to transmit to the court for inspection the declaration for his disqualification as member of parliament and declare the seat vacant.
He is also requesting for permission to file for orders or Certiorari for calling for the bringing up of the declaration made by the Speaker for the applicant to cease to MP, for the purpose of quashing and setting it aside on its removal into the court.
Nevertheless, the Solicitor General Dr Clement Mashamba, accompanied by 13 other lawyers of the state, has presented eight grounds of objection, requesting the Court to dismiss with costs the application in question for being incompetent.
They forcefully submitted that the constituted attorney to the application, Mr Alute Mughwai, the elder brother to the applicant, has no locus standi to file the case on Lissu’s behalf as his appointment is based upon a defective Power of Attorney.
The state lawyers submitted that the application is incompetent and unmaintainable for falling short of the conditions preceded for seeking leave to apply the prerogative orders of certiorari and mandamus.
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, they contain extraneous issues such as prayers, legal matters and speculations. They submitted that there are matters, which have been stated without having disclosed the sources.
The lawyers of state 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, is unmaintainable as it is not one of the remedies amenable to redress by way of prerogative orders and being directed to a stranger to the application.
Furthermore, the lawyers submitted, the application is incompetent for the applicant has 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 had several others chances he ought to have resorted to during the election process starting the appointment of the elect MP and thereafter before filing the application in question.
However, in his response to the submissions, Mr Kibatala told the court that most of the grounds of objections by the state lawyers were not pure points of law, thus, they should be overruled to enable the hearing of his client’s application to be determined on merits.
The advocates submitted that the affidavit filed to support the application has not any defects that could render the same defective and subsequently making the application incompetent.
According to him, if there were any defective paragraphs, they could just be removed and leave the affidavit intact.