Court name
Court of Appeal of Tanzania

Small Simba Sports Club vs Miembeni Sports Club () [1988] TZCA 1 (01 January 1988);

Law report citations
1988 TLR 1 (TZCA)
Media neutral citation
[1988] TZCA 1
Coram
Makame, J.A.
Kisanga, J.A.
Omar, J.A.

Makame, Kisanga and Omar, JJ.A.: This eventful appeal is about football. Public   B interest in it was conspicuously evident and the urgency with which the appeal had to be disposed of was impressed upon us in court. It was heard during the court vacation and when two members of the court were on their annual leave.
The parties are two sports clubs in Zanzibar. For facility of brevity they will hereinafter be   C referred to simply as Small Simba and Miembeni, respectively. During the 1987 League Football season in Zanzibar they were matched against each other twice, in accordance with the rules. The first match was won by Miembeni and this was on 11th April 1987. On 23rd June 1987 when the two teams clashed again the tables were turned. Small Simba won that match and Miembeni filed a complaint with Zanzibar Football   D Association, hereinafter referred to as Z.F.A., the body charged with the duty of superintending the game of football in Zanzibar. Among other things, Miembeni alleged that Small Simba had illegally fielded a player called Shaaban Mussa whom they had   E acquired from Simba Football Club in Dar es Salaam without complying with the necessary transfer formalities obtaining in Zanzibar. ZFA found substance in the allegation and therefore declared Miembeni the winners of that controverted match. In turn Small Simba, being dissatisfied with that decision, appealed to the Zanzibar Sports Council,   F also known as Baraza la Michezo Zanzibar, or BMZ for short, created by the Zanzibar Sports Council Act, Act No. 8 of 1983. BMZ reversed the decision made by ZFA and declared Small Simba, who had won the match on the field, the winners of that game. The present appeal before us is by Small Simba, now from the decision of the High   G Court of Zanzibar, wherein Ramadhani C.J., on appeal by Miembeni, quashed the decision by BMZ, making a number of findings, one of them being that at the material time when the BMZ decision was purportedly made, the said BMZ was itself non-existent. This seems to us the crux of the matter.
  H Before us Small Simba were represented by Mr. Maira, learned advocate, while Miembeni were advocated for by Mr. Muccadam, learned counsel. Both learned advocates fervently and strenously argued the appeal and we are thankful to them for their useful assistance. We wish also to place on record our grateful thanks to both   I Counsel for putting at our disposal the various documents they deemed useful for our consideration.

MAKAME JJA, KISANGA JJA AND OMAR JJA
Mr. Maira for the appellants advanced five grounds against the learned Chief Justice's  A decision and these may be grouped into three:
   1.   That the matter was not properly before the High Court for adjudication as it was not preceeded by certain formalities of procedure. B
      We incidentally note here, with satisfaction, that learned Counsel did not pursue the stand adopted by BMZ in the High Court that in any event the C High Court was devoid of power to hear the matter because it was provided that BMZ decisions are final. The learned Chief Justice correctly construed Regulation 17 of GN 155 of 1985 to mean that such decisions can only be final within certain limits and limitations, beyond which the High Court's D power to enquire into such decisions is not ousted.
   2.   That the learned Chief Justice applied inappropriate Football Regulations and was wrong to sustain the ZFA decision, and
   3.   That the learned Chief Justice should have directed that the matter be heard by a properly constituted BMZ. E
For the purpose of determining this appeal we think there was a good deal of chaff from which we must separate the grain. The two really relevant and important issues we have to consider and decide upon are whether the matter was properly before the High Court, in terms of procedure that is, as already indicated; and secondly, whether or not we can  F sustain the learned Chief Justice's holding that "Hivyo ninakubaliana kabisa na uamuzi wa Z.F.A. na nitatofautiana na ule wa Baraza AMBALO KWA KWELI HALIKUWA LA HALALI." (Capital Letters employed for the sake of emphasis).  G
Mr. Muccadam urged that the procedure adopted to reach the High Court was quite proper in the circumstances and further submitted that the learned Chief Justice's finding that there was not in existence a BMZ to which Small Simba could have appealed was quite justified.  H
According to Mr. Maira the respondents should have sought to have the matter removed into the High Court by way of originating summons and obtain leave to apply for an order of certiorari: They should not have come by way of Chamber Summons and proceeded the way they did. During the learned exchanges in court, however, Mr. Maira conceded  I that certiorari was not the only remedy in such

MAKAME JJA, KISANGA JJA AND OMAR JJA
  A a situation. Instead of obtaining leave to apply for that order a party could reach High Court, for example by way of review or by way of a suit. Under section 3(1) of the High Court Act, 1985, the High Court of Zanzibar has unlimited jurisdiction and we do not agree with Mr. Maira's suggestion that Miembeni could only have gone there by way of   B originating summons. This was in effect a suit brought in substantial compliance with the Civil Procedure Decree.
On the second vital issue the learned Chief Justice had this to say:
C    Ni dhahiri kwangu pia kuwa muda wa miaka miwili wa hawa wajumbe umekwisha. Kwa niaba ya Miembeni imeelezewa kuwa Baraza lilianza kazi tarehe 1 Julai 1984. Tarehe hiyo haikukanushwa kwa niaba ya Baraza na wala haikutolewa tarehe yeyote. Hivyo nachukulia   D kuwa tarehe ni hiyo ya Julai 1, 1984.
Computing two years from July 1, 1984 we find that the life span of the BMZ ended on 30th June, 1986. The purported BMZ decision was made on 28th July 1987. We do not   E wish to spend argument on the position of ex officio members in the BMZ, how many of these were on the Executive Committee which made the purported BMZ decision etc., because these matters would be relevant only if we were satisfied that there was at the material time a BMZ in existence. The evidence available establishes that the learned Chief Justice was correct in holding that BMZ was non-existent at the material time. If   F there was any doubt over this, and we are satisfied there was none, it was removed by a Government Press Release made available one day after the High Court judgment was delivered. The High Court judgment was delivered on 19/8/87, the Press Release was on the morrow. According to the Press Release, a now BMZ was consituted on that day,   G 19/8/87, to take over from the previous one which had lapsed the previous February 12th, that is 12/2/87. So that even by this reckoning there was now BMZ in existence when the purported BMZ decision was made on 28th July, 1987. If, as Mr. Maira says,   H the old BMZ was filling a vacuum before the new appointment, we only wish to say that however well-meaning they might have been they were incapax, they simply had no authority to stand in for an institution which had ceased to exist. Mr. Maira conceeded that to extend the life span of BMZ is not one of the powers conferred on the Minister   I responsible for Sports and, in any event, the Minister did not pretend to have such powers. As

there was no BMZ in existence, Mr. Maira cannot rely on the authority of Hemedi  A Marijani v Festo Ngowi [1975] LRT No. 66 for the proposition that Ramadhani Chief Justice should have remitted the matter back to a properly constituted BMZ. There was none in existence at the material time and the learned Chief Justice had of course no  B powers to order the formation of a BMZ. It would have been futile for the High Court to make orders it had no power to follow up. In Marijani v Ngowi there was already the Rent Tribunal in existence.
The position is now therefore that because there was no BMZ in existence at the material  C time there was no BMZ decision. The so-called BMZ decision upsetting the ZFA decision declaring Miembeni the winners is therefore null and void. The ZFA decision therefore stands. There can be no appeal directly from ZFA to the High Court. Appeal from a ZFA decision lies to a properly  constituted BMZ.  D
This appeal by Small Simba is without merit and is hereby dismissed with costs.
By way of postscript and hopefully without stepping on anybody's toes, we wish to associate ourselves with the suggestion made by the learned Chief Justice that BMZ  E would do well to avail itself of legal guidance. We wish to add that we were practically bewildered by the labyrinth of almost perennial crops of Regulations and Addenda issuing from ZFA which is an institution under BMZ.
Appeal dismissed.  F

G