Baraka Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION No. 13216 OF 2024 (Arising from the withdrawal order in Misc, Labour Application No.6025 of 2024High Court of Tanzania Mwanza) BARAKA CHACHA BINA ………….……….……..……………………..……. APPLICANT

VERSUS THE CHIEF SECRETARY, PRESIDENT OFFICE ………….……..… 1ST RESPONDENT THE PUBLIC SERVICE COMMISSION …………….……….……… 2ND RESPONDENT UKEREWE DISTRICT COUNCIL ……………………………….…… 3RD RESPONDENT THE ATTORNEY GENERAL ……..……………….…………………… 4TH RESPONDENT

RULING 14th November & 17th December, 2024 CHUMA, J. This is an application for an extension of time within which to allow the applicant to apply for leave to seek the prerogative orders of certiorari and mandamus. The application is preferred under section 14 (1) of the Law of Limitation Act, Cap. 89 R.E 2019. This application was disposed of through written submission filed by Mr. Akram Adam advocate for the applicant and Ms. Sabina Yongo State Attorney for the respondents. According to the applicant via Mr. Adam's advocate, illness is among the reasons for his delay in applying timely. After receiving the decision of the 1st respondent on 10th October, 2023 to 27th November, 2023, he fell sick 1 as reflected in paragraphs 5,6,7, and 8 and its proof is as per annexture BCB4. Hence in all that period, he was unable to do anything. The second reason is a technical delay. It was his submission that on 19th March, 2024, the applicant applied for application No. 6025 of 2024 which was withdrawn on the technical ground for being filed in a wrong forum. The period of 51 days was spent in court. He invited this court to a case of Fortunatus Masha Vs. William Shija & Another [1997] TLR 154 arguing that the time spent in court has to be excused. He also stated that after that withdrawal the applicant filed another application to the High Court of Tanzania Dodoma registry where it was

rejected and directed to file the same at the High Court Mwanza sub-registry where he spent about five days to re-draft and file it. The applicant also raised the issue of illegality. It was his submission that the applicant was punished twice for the same offence. That the 1st respondent did confirm the dismissal of the applicant from his employment over the allegation led by the 3rd respondent who had already instituted the dispute with another disciplinary authority. He finally concluded his submission that the application meets the criteria to warrant this court grant the sought relief as the delay is not in 2 ordinate, the applicant accounted for each day of delay, the delay has not been caused by negligence, apathy, or sloppiness and illegality concern on the decision by the 1st respondent to be determined. On the other hand, the respondent via Ms. Sabina Yongo State Attorney vehemently challenged the applicant's submission. Ms. Sabina Yongo contended that the time spent by the applicant pursuing application No. 6025 of 2024 can not amount to sufficient cause for delay as the applicant was negligent in pursuing his right for wrongly filling the said application for a wrong remedy which cannot amount to a technical delay. She reinforced her stance by citing the case of Dominic Ishengoma Vs. Geita Gold Mining Ltd Civil Application No.146 of 2020 where it was held that:

- “However, I don’t think that the rule in Omary Ally Namalege and in many other cases where the court was faced with a situation similar to the present one, intended to cover any one of the following situations: one where the possibilities of delaying by the applicant tactics like here, were not ruled out two, a party who approaches a wrong forum or proper forum but for a wrong remedy, in any cases unreasonably.” 3 As to the allegation that the applicant applied to the Dodoma High Court registry, the respondent strongly challenged it for want of proof. And that in the absence of tangible proof on the filling of the application to the High Court Dodoma registry then the applicant has failed to account for 18 days of delay from 8th May, 2024 to 27th day of May, 2024 when this application was submitted online on the High Court Mwanza sub-registry. As to the illegality concern, the respondent argued that for the illegality reason to be considered the same must be apparent on the face of the record and not be identified through a long-drawn argument as was held in the case of Lyamuya. And that the said illegality sought to be challenged by the applicant is not tainted with illegality because the applicant was afforded the right to be heard. She finally argued this court dismissed this application for want of merit. Having carefully examined the submissions from both parties as

well as the affidavits for and against the application, it is apposite to state at the outset that according to section 14(1) of the Law of Limitation Act, the court has powers to grant an extension of time for the institution of an application upon the applicant showing reasonable or sufficient cause. Such power is not only discretionary and unfettered but must be exercised judiciously in 4 line with the rules of reason and justice not according to private opinion or arbitrary. The overriding consideration is that there must be "sufficient cause" for so doing. There are numerous authorities on this, for instance, the cases of Tanga Cement Co. Ltd Vs. Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004) TanzLII, and Frady Tajiri Chawe (As Administrator of the Estate of the Late Donatus Chawe Sanga) & 443 Others Vs. TANESCO, Civil Application No. 505/18 OF 2019, to mention a few. For the foregoing, the issue is whether the applicant managed to establish sufficient reasons to warrant this court granting the sought order. Parties are not in dispute that the applicant’s employment was terminated by the 3rd respondent on 12.5.20211 and his efforts to challenge that decision by way of appeal failed after confirmation of the dismissal decision by the 1st and 2nd respondents. It is further not in dispute that after the 3rd respondent’s decision, the

applicant failed to pursue her application for leave to apply for Judicial Review within six months dictated under section 19(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [CAP. 310 R.E. 2019]. 5 As stated above the applicant advanced three main reasons for his delay to lodge an application for judicial review timely namely, illness, technical delay, and illegality. To start with the issue of health, it was the submission of the applicant that after receiving the decision of the 1st respondent on 10th October, 2023 to 27th November, 2023, he fell sick as reflected in paragraphs 5, 6, 7 and 8 and its proof is as per annexture BCB4. This fact was not responded to by Ms. Sabina Yongo State Attorney for the respondents for unknown reasons. Be that as it may, reasons for ill health being among the supervening event may amount or fall within the realm of good cause if it is well substantiated by the applicant say by justifying it via tangible evidence such as medical chits which in this matter the applicant managed to submit. On technical delay, it was the applicant’s submission that from 19th March, 2024 to 8th May, 2024 when application no. 6025 of 2024 was withdrawn on the technical ground for being filed in the wrong forum the applicant was in courts’ corrido seeking legal redress. This fact was challenged by Ms. Sabina Yongo State Attorney that

the alleged application was wrongly filed in court by seeking an extension of time 6 to file labour complaint for unfair termination instead of an extension of time to file for judicial review. In her view pursuing such a matter in a wrong forum does not constitute sufficient reasons based on technical delay reinforcing her stance by citing the case of Dominic Ishengoma (supra). I am in agreement with the respondent’s Attorney on one hand that the applicant failed to justify his allegation that he at one time filed the application at the High Court Dodoma Registry and was rejected. However, on the other hand I distance myself from the respondent's submission that pursuing a matter in a wrong forum does not amount to a technical delay once withdrawn. This is because unless there is evidence that the mistake was made deliberately to get an advantage out of it. In this application, I don’t see any. This stance is supported by the case of Okech Boaz Othiambo and Another Vs. Salama Idi Kanyorota Civil Application No.900/15 of 2021 where it was held that: - “With respect to the counsel for the respondent, I don’t share the view that if an application is withdrawn on some legal shortcomings, that should be branded as negligence on the counsel for the applicant which is not excusable... I don’t see such a situation here but a technical delay.” 7 From the record and the cited authority,

it is evident that for all that time till when the application was withdrawn, the applicant was pursuing his case in court. The applicant narrated a chain of events explaining what transpired since filling out the application to the date when it was withdrawn. Besides, the facts gathered from the affidavit suggest that the delay was not of the applicant’s own making. He has shown sufficiently in my view that he was diligently pursuing the matter. It is this court's findings that the applicant managed to justify the reasons for the delay to be none other than technical delay which is explicable and excusable. This stance was held in several cases including the case of Salvand K.A. Rwegasira Vs. China Henan International Group Co. Ltd Civil Reference No. 18 of 2006 and that of Fortunatus Masha Vs. William Shija & Another [1997] TLR 154. Next issue for consideration, the applicant is moving the court to grant the application on the ground that there are illegalities in the decision of the 3rd respondent to terminate her employment. The learned advocate for the applicant submitted his client suffered double punishment for the same offence. The 1st respondent did confirm the dismissal of the applicant from 8 his employment over the allegation led by the 3rd respondent who had already instituted the dispute with other disciplinary authority. This fact however contested by the

respondents on the ground that, an illegality reason to be considered the same must be apparent on the face of the record and not can be identified through long drawn argument as it was held in the case of Lyamuya. And that the said illegality sought to be challenged by the applicant is not tainted with illegality because the applicant was afforded the right to be heard. The law on illegalities as a ground for extension of time is settled that whenever it is raised and relied upon by the applicant, it suffices to constitute sufficient reason for extending time. In Principle Secretary, Ministry of Defence & National Service Vs. Devram Valambhia [1993] TLR. 91, the Court had an opportunity to consider the issue of illegality and held thus: “When the point at issue is one alleging illegality of 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” 9 It is again settled law that illegality must be apparent on the face of the record of the decision sought to be challenged and that not any error on a point of law constitutes an illegality. This was cemented in Charles Richard Kombe Vs. Kinondoni Municipal Council, Civil Reference No. 13 of 2019) [2023] TZCA 137 (23 March 2023) TanzLII that: - “…it

is our conclusion that for a decision to be attacked on ground of illegality/ one has to successfully argue that the court acted illegally for want of jurisdiction, or for denial of right to be heard or that the matter was time barred. In Chunila Dahyabhai v. Dharamshi Nanji and Others, AIR 1969 Guj 213 (1969) GLR 734, which we find persuasive, the following paragraph was quoted from the decision of the Supreme Court of India in AIR 1953 SC 23:- "„.the words Illegally' and 'material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not errors of either law or fact after the formalities which the law prescribes have been complied with…” Guided by the above pronouncements. The applicant is faulting the 3rd respondent for confirming his dismissal from his employment by the 1st and 10 2nd respondent while there were ready ongoing disciplinary proceedings against him hence the applicant has curtailed the right to be heard. Despite being contested by the respondent, In my opinion, those arguments are not only apparent and attractive but also tenable. Since it is not within my mandate to determine the allegation I hesitate to dwell much on it, but because even the respondent does not contest the applicant being tried twice

only that he was accorded with the right to be heard, I therefore find that the points of illegalities raised in affidavit, and expounded on in the rival submissions constitute good cause to extend time. All said the application is granted. The applicant is ordered to lodge the application for leave to apply for Judicial Review within thirty days from the date of the delivery of this ruling. Each party shall bear its own costs in this application. It is so ordered. DATED at MWANZA this 17th day of December, 2024. W.M. CHUMA

JUDGE 11 Ruling delivered virtually in attendance of Mr. Akram Adam learned counsel for the applicant and Ms. Subira Mwandambo SA for the respondents this 17th day of December, 2024. J. MUSAROCHE

DEPUTY REGISTRAR 12