COURT DISMISSES PETITION AGAINST GPA

By FAUSTINE KAPAMA-Judiciary

THE High Court, Main Registry, has dismissed the constitutional petition lodged by a citizen, Ms Pili Kisenga, to challenge some provisions under the Government Proceedings Act (GPA), which regulate execution of courts decrees against the Government.

Judges Benhajj Masoud, Steven Magoiga and Edwin Kakolaki ruled in favour of the Attorney General, the respondent, after holding that the citizen, the petitioner, failed to provide sufficient evidence to prove her constitutional claims.

“(……...) we are constrained to dismiss this petition with costs as we do herein. We so hold because the matter was not instigated for public interest but rather for personal interests. It is so ordered,” they declared.

In her petition, the petitioner had challenged the provisions of section 6A, 16(3) of the Government Proceedings Act and section 16(4) as amended by section 26 of the Written Laws (Miscellaneous Amendment) Act, No. 1 of 2020.

She sought for declaration that such provisions are unconstitutional for offending the provisions of section 13(4), (5) and (6) (a) of the Constitution of the United Republic of Tanzania 1977 and be expunged from the statute immediately without giving the Government time to amend them.

According to the Government Proceedings Act, a person obtaining a decree against the Government is required to have a certification from the Registrar of the High court on the decretal amount to be paid before executing such court orders.

In the unanimous judgment delivered recently, the judges were increasingly of the settled finding that the petition was devoid of any useful merits and the arguments and cited cases by the counsel for petitioner were respectively misplaced and distinguishable.

They gave nine reasons to cement their position, saying that as rightly submitted for the respondent, the issue of execution against the Government in Tanzania is an exception to the general rule of execution, which was well captured in the Civil Procedure Code under Order XXI Rule 2A since 1968 by G.N. 376.

According to such law, the judges said, it was not in doubt that it is for public interest, as stated in the counter affidavit of the respondent, that the execution against the Government is treated as an exception process to the general rule of execution.

“The exception underlines the nature of the Government as the custodian of Government properties which operates on allocated and approved budgets in accordance with the Budget Act on yearly basis,” they said.

The judges pointed out that much as the petitioner pegged her claims on article 30(3) which allows individuals to petition for their person interest as opposed to article 26(2) which is for public interest, she would have provided evidence, showing the laid down legal procedure are ineffective.

They said that the petitioner would have proved she could not realize fruits of justice under the available legal procedure and that was personally affected, as mere allegations that the procedure are unconstitutional without providing any evidence was not sufficient.

“We hold view that there was no evidence tendered to show that the petitioner's failure to get the certificate was due to unconstitutionality of the impugned provisions. (Her) affidavit left this court with nothing to consider on allegations that the impugned provisions are unconstitutional,” the judges said.

They insisted that the provisions of article 30(3) are to be read together with the provision of article 30(2) (a), (b) (c) and (f) of the Constitution, which give factors that must be considered when a personal guarantee is at issue versus public interest.

It was further findings of the court that the petitioner’s arguments that public interest is not relevant in the matter does not hold water, as if such view was to be upheld a decree holder against the Government may one day execute his decree in a manner that will paralyze the entire Government machinery.

The judges also held that the available procedure does not deny a decree holder's right to be heard, neither does it discriminate her, rather the procedure enhanced the protection of public interest in the execution of a decree against the Government.

They said that section 6A of the Government Proceeding Act deals with the Attorney General's powers of intervention in a suit against the Government without affecting its standing or merits in the absence of 90 days statutory notice as provided in the proviso to sub section 2 of section 6A.

“As there is no evidence from the petitioner albeit on the balance of probability or on the lower scale between beyond reasonable doubt and balance of probability, this court cannot make a finding as to how such intervention affects or is likely to infringe the rights of the petitioner,” the judges said.

They pointed out further that the provision of section 16(3) deals with protection of individual officers of the Government from any harassment in the process of execution of a decree and said so because such harassment may equally disturb the operations of the Government.

“Our understanding of section 16(4) of the law, as amended by section 26 of the Written Laws (Miscellaneous Amendments) Act No. l of 2020 is that, it does not infringe the rights of the petitioner,” the judges said in their well-researched judgment.

They so said because the 2020 amendment defined the word "Government" and its institutions, but the petitioner failed to show how such definition infringes her rights.

Furthermore, the judges noted, upon receipt of the certificate for payments from the High Court Registrar, the Paymaster General or accounting officer concerned has no room for discussion or otherwise but to honour the certificate in accordance budget allocated and approved.

“It means that denial of right to be heard as alleged does not arise in the circumstances. It is worthwhile to note that the petitioner did not lead evidence that she obtained and lodged a certificate but she was denied payment. So, the question of denial of right to be heard does not arise here,” they said.

The petitioner is a decree holder vide Civil Case No. 140 of 2012 against the Ministry of Works and the Attorney General, the Government. However, the execution has been halted by the provisions of section 6A, 16(3) of the Government Proceedings Act and section 16(4) as amended by Act No. l of 2020.

She alleged such laws are unconstitutional by having a double standard, discriminatory, un-practicable, and unfair in an execution court decree against the Government, hence, offends the provisions of articles 13(4) (5) and (6) (a) of the constitution which ensure equality of all before the law. 

High Court building in Dar es Salaam.

Court Hammer.