RULING EXTENSION OF TIME ABRAHAM MWANDAMILA KASWA VS TPRB FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCILLANEOUS CIVIL APPLICATION NO. 12679/2024 ABRAHAM MWANDAMILA KASWA............................... APPLICANT VERSUS TOWN PLANNERS REGISTRATION BOARD (TPRB).... RESPONDENT RULING 16 & 31/07/2024 KAGOMBA, J The applicant is seeking extension of time to appeal to this Court against the decision of the respondent dated 27th December, 2023 which saw him deregistered from the Register of Town Planners. He also prays for costs of the application to be in the cause as he craves for any other remedies this Court may deem it fit to grant. The application is brought by way of a chamber summons made under section 14(1) of the Law of Limitation Act, [Cap 89 R. E 2019] and is supported by affidavit sworn by the applicant. In opposition, the respondent has filed a counter affidavit sworn by Lucas A. Mwaisaka, the Registrar of Town Planners. i During hearing, Dr. Chacha Murungu, learned Counsel, represented the applicant while Mr. Omary Ngatanda, learned State Attorney, appeared for the respondent. In his oral submission in chief, Dr. Murungu strongly urged the Court to grant the application. He relied upon the following main grounds: Firstly, that, in making the impugned decision, the respondent did not issue sufficient notice to the applicant to appear and defend himself before the committee of inquiry of the respondent, in breach of natural justice. He argued that such was a denial of his client's right to be heard, constituting an illegality. He cited the Ruling of the Court of Appeal in Charles Richard Kombe vs Kinondoni Municipal Council, (Civil Reference No. 13 of 2019)[2023]TZCA 137(23 March 2023) in which reference was made to an India case of Chunila Dahyabhai vs Dharamshi Nanji & Others, All IR [1969] Gujarat 213, on how to determine illegality. Secondly, that in making the impugned decision the respondent took onboard matters outside her jurisdiction, that is, allegation concerning acquisition of land by the applicant, hence the resultant decision is tainted with illegality. To support this contention, he cited the decisions of the Court of Appeal in Attorney General vs Emmanuel Marangakisi (As 2 Attorney of Anastansious Anagnostou), Civil Application No. 138 of 2019; Principal Secretary Ministry of Defence vs Devram Valambhia [1992] T.L.R 185 and Moh'd Bakari Ramadhan vs Haji Kheri Kondo (Legal representative of Kondo Juma Haji), Civil Application No. 107/15 of 2019 CAT at Zanzibar. In expounding the first contention above, Dr. Murungu referred to the sworn facts in the applicant's affidavit to argue that the respondent issued a notice to the applicant of only 15 days to appear before the committee of inquiry contrary to regulation 14 (2) of The Town Planners (Registration) Regulations, 2018 (Hereinafter "T.P Regulations") which requires a notice of not less than 21 days to be issued. He deems such failure to give sufficient notice an illegality as it affected the applicant's right to be heard. Expounding on the second contention above, learned Counsel argued that the respondent deregistered the applicant on a different reason apart from the allegations for which the notice to show cause was all about. Thirdly, that, while the T.P Regulations mandatorily requires the respondent to issue a notice of intention to cancel registration under regulation 27(1) (c) by using a prescribed from TPR-9 and to use TPR-10 for cancellation of registration, the use of these forms was not observed by the 3 respondent in deregistering the applicant. Hence, the decision is impugned for failure to comply with the law. The learned Counsel argued that all the illegalities cited above are apparent on the face of the record, hence meeting the threshold established in the case of Lyamuya Construction Ltd. (supra). Fourthly, that the applicant was not involved in the inquiry which led to the impugned decision, and that he was not availed with a copy of the inquiry report, in contravention of the law. For this contention, the Counsel cited the decision of the Court of Appeal in Kiboberry Limited vs John Van Der Voort, Civil Appeal No. 248 of 2021, CAT at Moshi, and the previous decision of the Court of Appeal in Severo Mutegeki and Another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019 (Unreported). The learned Counsel further cited the case of Enza Zaden Africa Limited vs. Edwin Kasena, Civil Appeal No. 427 of 2021, CAT at Arusha, on the importance of availing the report of investigation to the employee facing disciplinary charge triggered by such a report. 4 Having dwelt on illegality of the impugned decisions, the Counsel turned to the reasons for delay. Referring to the applicant's affidavit, he submitted the reasons for delay as follows: One, that, despite making the decision to deregister the applicant on 7th November, 2023, the respondent didn’t provide the applicant with a copy of the decision until 28th March, 2024 while he was in Mpanda, Katavi region. Two, that, the decision was served upon the applicant at a time when he was not settled as he was attending an inquiry at Prevention and Combating of Corruption Bureau (PCCB) as well as disciplinary hearing conducted by his employer which culminated into his dismissal from employment. Three, following his dismissal from employment, on the same allegations as those which led to his deregistration, the applicant started efforts to appeal to the Public Service Commission. The contents of paragraphs 7 and 8 of the applicant's affidavit were adopted to explain his hassles which led to delay to appeal in time. The learned Council referred to such delay as a technical one, not caused by negligence but by circumstances beyond the applicant's control. He referred to the case of Alphone Maziku Masele v Access Bank Tanzania Limited, Misc. Civil 5 Application No. 20 of 2022, High Court at Mwanza and EX.F-8347 D/C Magnus Machona Nkomola vs The Inspector General of Police and the Attorney General, Civil Case No. 440 of 2024. He prayed the Court to be guided by the cited decisions to grant this application. The application was vehemently opposed by Mr. Omary Ngatanda, learned State Attorney for the respondents. In his reply submissions, despite conceding that illegality is given paramountcy by Courts in deciding applications for extension of time, he was not oblivious of the fact that that ground has been galvanized to narrow down its applicability. Citing the case of Aplhonce Maziko Masele vs Access Bank Tanzania Limited, (supra); Tanzania Cigarette Company (TCC) vs Hassan Marua, Civil Appeal No. 49/01 of 2018; Charles Richard Kombe vs Kinondoni Municipal Council, (supra), and Rosemary Katunzi vs Oscar Mhagama & Another, Civil Application No 43/17 of 2022, the learned Counsel submitted that illegality as aground for extension of time has to be apparent on the face of records, but is also restricted to concerns of jurisdiction, denial of right to be heard or where the matter is time barred. He argued that a mere error of law in the exercise of jurisdiction is not enough to extend time. Hence, he urged the Court to be vigilant in considering arguments raised by the applicant's Counsel. 6 Replying to the specific arguments raised by his counterpart, the learned State Attorney started by denying the allegation that the applicant was not heard by the respondent. Referring to both the affidavit and counter affidavit filed in Court, he was emphatic that the applicant was heard by the respondent. Citing regulation 14(1) and 15 of the T.P Regulations, the learned State Attorneys submitted that the Board is empowered to inquire into the professional conduct of a registered Town Planner itself or may delegate such inquiry to a subcommittee. He added that in the instant case, the committee gave the applicant the right to be heard, while the Board only made the decision. He referred to annexure A2 in the applicant's affidavit, being a letter which required the applicant to give explanation with regard to the allegation facing him, and he complied. That the committee called the applicant again on 20/09/2023 to provide defence before it. The Attorney also referred to annexure OSG-3 in the Counter affidavit, which is a list of people who attended the inquiry, showing that the applicant attended as No. 2 on the list, hence the applicant was accorded his right to be heard. So, he argued that the argument that the right to be heard was breached lacks basis because the applicant was given that right. The learned State Attorney 7 referred to the case of Rosemary Katunzi (supra) for a principle that the issue of illegality must be apparent on face of record. As regards the allegation that the respondent dwelt on irrelevant matters of ownership of land to make the impugned decision, the learned Attorney submitted that the allegation does not have what it takes to constitute an illegality, because it addresses the finding of the Board which are on mixed matters of law and evidence. In his view, determination of such matters would entail a long process of reasoning, hence contrary to the principle established in Marry Katunzi'a case. On the issue of 21days' notice, the learned State Attorney replied that annexure A3 to the affidavit constitutes the notice, which was issued on 20th September, 2023 for the applicant to appear before the committee of inquiry on 13th October, 2023, hence it complied with regulation 14(2) of the T.P Regulations. As for the assertion that the applicant received the notice on 28th September, 2023 by email and the hard copy of the same was received on 22nd January, 2024, the learned Attorney pressed for evidence in terms of section 110 of the Evidence Act, [Cap 6 R.E 2024], as none was attached to the applicant's affidavit. He argued further that even if there were such proof 8 attached, the argument would not constitute an illegality in the eyes of the decision in Marry Katunzi's case. Concerning non utilization of Form TPR 9 and TPR10, the learned Attorney replied that such forms are used for minor disciplinary misconduct and not for grave misconducts which lead to inquiries. In his views, failure to issue a notice to show cause cannot be an illegality since the applicant was charged with a misconduct that required an inquiry against him. Regarding non-issuance of the investigation report to the applicant as per Enza Zaden Africa Ltd vs Edwin Kasena (supra), the learned State Attorney finds no provision in the Regulations requiring the committee of the Board to issue him such report. He distinguished the decision in Enza Zaden Africa Ltd and the instant case on an argument that the requirement to serve investigation report to the person investigated is based on rule 13(1) of the Code of Good Practice, which is a labour law, while the instant matter is about misconduct by a Town Planner under the T.P Regulations. Winding up his reply on issues of illegality, the learned State Attorney was categorical that the grounds of illegality raised by Dr. Murungu do not fit the bill, hence the application should not be granted based on such grounds. 9 Looking at the other side of the coin, the learned State Attorney submitted that, even if it were assumed that there are illegalities, the present application should not be granted for the reason that it was not filed in time. He cited the decision in the case of Ramadhan Rashid Kitime vs Anna Ally Senyangwa, Misc. Land Application No. 3 of 2023, High Court at Morogoro, which held to the effect that even where illegality is pleaded as a ground for extension of time, that ground must be raised timely if litigations were to have an end. He added that the period of 123 days spent by the applicant to institute this application, is a very long one. Hence, the application has been filed out of time. On allegation that the applicant was unsettled for being subjected to PCCB inquiry and his employer's disciplinary proceedings, the learned State Attorney finds nothing, in applicant's affidavit, which impeded him from filing his appeal. To him, the applicant opted to sleep on his own right. On the applicant's delay being dubbed technical delay by his Counsel, the learned Attorney referred to the case of Rosemary Katunzi, to contend that technical delay refers to a failure to take an action timely due to the time spent in prosecuting a matter before the Court. He saw nothing of the sort being related to the applicant's delay. 10 Basing on these reply submissions, he prayed for the dismissal of the application for want of good cause. Rejoining, Dr. Murungu was on the same page as his counterpart regarding the principle of law that an illegality must be manifest on the face of record. He argued that while Section 27(1) (c) of the Town planners Registration Act, mandatorily provides a requirement for notification of the person whose registration is intended to be cancelled to be done in the manner set out in Form TPR-9 of the Fourth Schedule, and even para (b) of section 27 provides such a requirement as a legal standard to be complied with, the respondent has not stated in his counter affidavit that he complied with those requirements. He submitted that such a failure to observe the legal requirements is an error apparent on the face of record. He added that the respondent did not observe the cancellation procedures too, an error which goes to affect the decision reached. He was emphatic that the applicant intends to appeal so as to give the Court an opportunity to correct the errors. Citing section 18(5) of Town Planners (Registration) Act, the learned Counsel rejoined that it was a legal requirement that the Board should notify the applicant in not less than 21 days prior to the date of the inquiry, but 11 such requirement was not observed. He rejoined that the applicant wants to appeal so that the Court can satisfy itself on the legality of the notice issued. Citing regulation 14(2) of T.P Regulations, the Counsel clarified that there were two different notices; the first one requiring the person suspected to violate the Act to show cause why the Board should not hold an inquiry onto him. And, the second one being the notice to appear before the committee of inquiry. He argued that none of the two were complied with by the respondent and the counter affidavit of the respondent does not state the specific dates on which she served the applicant. He reiterated that the applicant received a notice of 7days to show cause and 15 days to appear to the inquiry committee. The learned Counsel emphasized on the threshold applicable to this Court at the leave determination stage, that the Court shall desist from discussing the merit of the case. As for the position of the Evidence Act that he who alleges must prove, the learned Counsel rejoined that affidavit is evidence on oath, hence, there is sufficient evidence to demonstrate all what the applicant has averred. As regard the delay to file the appeal, Counsel reiterated the reasons stated in paragraphs 7 and 8 of the affidavit and asked the Court to use its discretion, citing the case of Marangakis, where CAT granted extension for the delay of 12 years. Regarding the distinction made between the case at hand and the cases of Kibobarry and Enza Zaden Africa Limited, the learned Counsel argued that what matters is the principle of law, that a person who is supposed to be investigated by a committee of inquiry, should be given copy of the report for the fair hearing guarantees not to be affected. As for the decision in Ramadhani Rashid Kitime, he argued that it recognizes illegality as a good cause for extension of time. The Counsel, however, could not buy the position took by the Court therein that illegality must be raised timeously. He argued that such a position defeats the logic since an application for extension of time has no time limit as stated by the Court of Appeal in Kiboberry Limited. He urged this Court to be bound by the decisions of the Court of Appeal. Having so rejoined, the learned Counsel prayed the Court to grant this application. I have carefully read and considered the rival submissions above in light of the position of the law regarding matters to be considered in granting extension of time. As intimated in the very beginning, this application has 13 been preferred under the provision of section 14(1) of the Law of Limitation Act, [Cap 89 R.E 2019] which provides: "14--(1) Notwithstanding the provisions o f this Act, the Court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution o f a decree, and an application for such extension may be made either before or after the expiry o f the period o f limitation prescribed for such appeal or application." [Emphasis added] Reading this provision of the law in light of the rival submissions made by the learned Counsel for both parties, it follows that the issue for determination is whether the applicant has adduced reasonable or sufficient cause for extension of time to be granted. In his submissions to this Court, Dr. Murungu, the learned Counsel for the applicant heavily dwelt on the grounds of illegality, in and around the impugned decision of the respondent, to secure the much-sought extension of time. Indeed, it is common knowledge that one of the grounds which the Court may consider as constituting reasonable or sufficient cause for granting time extension is allegation of illegality in the decision intended to be challenged. This position, which stands as a guiding principle across the jurisdiction, was enunciated by the Court of Appeal in Principal Secretary, 14 Ministry of Defence and National Service vs Devram Valambhia (1992) T.L.R 182, when it stated; "In our view when the point at issue is one alleging illegality o f the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right". The above principle has thenceforth been restated in a multitude of decisions of the Court of Appeal including Kalunga & Co. Advocates vs NBC Ltd (2006) T.L.R 235; Victoria Real Estate Development Ltd vs TIB and 3 Others, Civil Application No. 255 of 2014, CAT (Unreported); Mohamed Salum Nahdi vs Elizabeth Jeremiah, Civil Reference No. 14 of 2017 CAT at DSM; Juto Ally vs Lucas Komba & Another, Civil Application No. 484/17 of 2019 CAT at DSM and Lyamuya's case (supra). In the instant application, Counsels for both parties are fully aware that illegality constitutes a good cause for grant of extension of time. They also seem to agree on the position that not every allegation of illegality shall be entertained by Court in granting time extension, as there are some minimum standards required to be met. For example, in Lyamuya's case, the Court of Appeal clarified that the illegality has to be manifest on the face of the 15 record, and should be of sufficient importance to the matter under consideration. Other conditions have been stated in other cases above cited. Applying those principles to gauge the points of illegality raised by Dr. Murungu in his submission, I have no hesitations to knock off a couple of them for failure to be manifest on the face of the record, even though they may be seen to be of sufficient importance to his client's case. In so doing, I agree entirely with Mr. Ngatanda, learned State Attorney, that the following points of alleged illegality do not qualify as illegality in the eyes of the law: Firstly; the allegation that the applicant was not heard by the respondent. In light of the reply submissions by Mr. Ngatanda that the applicant was given right to be heard, the issue whether or not the applicant was heard now may require a long-drawn argument since there is hearing by the Board and Committee of inquiry of the Board. Under such circumstances, the applicant will necessarily have to make long argument to justify that he was not heard, thereby disqualifying his contention as an illegality in light of the cases above cited. Secondly; the allegation that the respondent considered irrelevant matters of ownership of land to make the impugned decision. This allegation would necessarily mixes up facts and law, hence not an acceptable point of illegality. 16 Thirdly; the allegation that the respondent did not issue the investigation report to the applicant as per Enza Zaden Africa Ltd vs Edwin Kasena (supra). This is a matter of evidence and is not on the face of the record. Hence, it cannot stand as an illegality. Apart from the above alleged illegality, the other allegations in the category of illegality as submitted by the applicant's Counsel are, in my humble view, purely matters of law and have been significantly placed on the face of record as allegation of illegality. Those which have attracted my mind, include the following: Firstly; the question whether or not the respondent complied with mandatory provision of Section 27(1) (c) of the Town Planners (Registration) Act, by notifying the applicant in the manner set out in Form TPR-9 of the Fourth Schedule. This matter may require to further attention of the Court during appeal. The same applies to non-utilization of Form TPR-10 and its legal consequences. When replying regarding this allegation, Mr. Ngatanda stated that such forms are used for minor disciplinary misconducts and not for grave misconducts which lead to inquiries. He expressed his view that failure to issue a notice to show cause cannot be an illegality since the applicant was charged with a misconduct that required an inquiry against him. With 17 respect, such views require an independent eye of the Court to see whether that is what the law intended, and whether there are no breaches of the law which are prejudicial to the rights of the applicant. Secondly, the issue whether the respondent observed the mandatory requirement under section 18(5) of the Town Planners (Registration) Act and regulation 14(2) of T.P. Regulations to give a 21days' notice to the applicant to appear before the Board and similar notice to appear before the Committee of inquiry. The applicant alleges that in both situations, there was no compliance by the respondent. In my view, the issue of sufficient notice is a matter of legal compliance. The notice is on the face of the record, and it does not require a long-drawn argument to establish number of days in the notice issued, if any. To ascertain such an issue, it is the duty of the Court during determination of the appeal. As for the significance of the cited potential illegalities, there is no doubt that the same have significant bearing to the right to be effectively heard, and the same were pleaded by the applicant in the affidavit as can be gleaned in paragraphs 6(i) & (ii) and 7 of the affidavit supporting the application. With the above illegality being alleged, it follows therefore that the principle of law stated in Principal Secretary, Ministry of Defence and 18 National Service vs Devram Valambhia (supra) stands. The Court has a duty to pave way for such illegality to be ascertained so that, if the same is established, appropriate correctional measures be invoked, accordingly. Guided by the decision of the Court of Appeal in Regional Manager TANROADS-Lindi vs D. B. Shaprya & Co Ltd, Civil Application No. 29 of 2012, I am fully aware that, at this stage, this Court is not supposed to consider the in-depth of the alleged claims of illegality nor would it confirm any allegation made by the applicant to be true. Those are matters to be considered during the intended appeal to this Court. In the above premises, therefore, I hold that sufficient reason has been shown by the applicant for this application to be granted. Since illegality is considered a sufficient reason to grant extension of time, the need to analyze each of the rest of the arguments does not arise. In the upshot, I grant the application with costs. The applicant has thirty (30) days to lodge his intended appeal. Dated at Dodoma this 31th day of July, 2024. A. S. KAGOMBA JUDGE 19