ANOTHER attempt by Activist Maria Sarungi Tsehai to oppose some provisions under state laws, pinning down Non Governmental Organisations (NGOs), has once again flopped.
This follows the decision of the High Court’s Commer- cial Division to dismiss with costs the commercial dispute lodged by Change Tanzania Limited, a non-partisan and social media movement company.
Judge Patricia Fikirini ruled against the private com- pany, the petitioner, after upholding some grounds of objections raised by the Busi- ness Registration and Licens- ing Agency (BRELA), who was the respondent into the matter.
In the grounds of objec- tions, the respondent had stated that the petition is bad in law for being overtaken by the event and that was brought in court by a non ex- isting body.
The respondent stated fur- ther that the petition was bad in law for contravening Rule 10 (10), of the High Court (Commercial Division), Pro- cedure Rules, GN No. 250 of 2012.
Furthermore, the respon- dent stated that the petitioner has no cause of action against him and that the petition was bad in law for suing a non ex- isting body.
In his ruling, the High Court judge agreed with the counsel for the respondent that the arguments presented had merits. In the petition, the petitioner was requesting the court for declaratory order that she is entitled to alter its provisions contained its memorandum and Articles of the Association in law.
She further requested for an order directing Brela to approve, accept and confirm the alteration made through a resolution of Board of its Memorandum and Articles of Association which have al- ready been filed to the office of the respondent in which fees have already been paid.
The petitioner had charged that the act by the respondent to refuse to alter the provi- sions in her Memarts would lead to being struck off from the Register as per Written Laws (Miscellaneous Amend- ments No. 3), Act 2019, thus, leading to suffer pecuniary loss for being inactive.It is the second time Change Tanzania Limited is losing legal battle over amendments of the laws.
The first case related to constitu- tionality of amendments of some provisions under the Companies Act, the Non- Governmental Organisation Act and the Societies Act. Change Tanzania Limited as well as Centre for Strategic Litigation had teamed up to oppose the amendments to the relevant Act, which con- sisted of, among other things, provision of new interpreta- tion of the words “Company” and “Organisation” in the rel- evant Act.
Such amendments also required all corporations reg- istered under the Companies Act that had no commercial purpose to register under the relevant Act and if they failed to do so within two months would be deemed to have been canceled.
In their judgment, how- ever, Justices Lameck Mlacha, Yose Mlyambina and Steven Magoiga ruled against the two NGOs, holding that the petitioners failed to prove their claims beyond reasonable doubts as required to constitutional cases.
“Despite the instant peti- tion preferred as a public liti- gation, but this is one of the most frivolous and vexations petitions that cannot escape an order without costs. In the fine this petition is dismissed with costs.
Order according- ly,” the judged declared. In their judgment, the judges had to determine whether the petitioners dis- charged their burden and standard of proof required in constitution petitions. Having revisiting the joint affidavit filed to support the petition, the judges found no such proof.
“The petitioners have ut- terly failed to discharge the legal duty of proving the im- pugned provisions are uncon- stitutional.
On reading the af- fidavit, one cannot get details of the breach as required by law. It is evident that the peti- tioners have failed to meet the required standard of proof,” they ruled.
According to the judges, it was very unfortunate on the part of counsel for the peti- tioners that the principle that constitutional petitions should be proved beyond reason- able doubt was pronounced in 1995, now over 25 years, but deliberately missed such obvious requirement to have successful petition.
They pointed out further that allegations alone, how- ever, serious may be, could not be basis for the court to declare a provision of law unconstitutional.
The judges noted that the petition was premised on fears with peti- tioner coming to court with mere assertions without prov- ing what happened.