19981002 TZHC Dar es Salaam

IN THE UIGH COU:11' OJt TANZ!'.NIA, AT DAR BS 8/1..LAA.M ------•~.:..tu·--;,,;;-• CHRI31'0PHER T,\NGI2I .. o • o o o • • o. •. o • o • • APPLICANT 1. PRINCIPAL S?_,GD/~'.r~,RY I-HNL-::11:RY OF fIN!\NCE .. 2. TH"E AT'lt.HmEY Ci-ENBRAL .... •. • • • •• o ~ • • •RESPONDENTS ... ------ RULING This is an applic1tion for enlar,zernent of time within which· to apply for leave to apply for· the p:rerog;:·~bre on:}2r of ~~o_E~r_:i. ~Chere are I prelimins.ry matters i"\Thich must be disposed of first before the application is considered. The prelimin2..ry matters arc in tii.-'} form of obj8ctions., The respondents, have re,ised one preminary objection. 'l'hey contend thnt the_ a-pplica,tion is hoelessly time barred and trat the applic.~tion for extent ion of time is. incompetent i.11 trv,t the applic,<;tion has mise1·ably faiJ.~d to advanced s_ufficfont reasons for the inordinate delay so occasionedo The honourable the Attorney Goneral did: not file written Slibmissions to arg,ue the preliminary objections .. . That notwithstanding the law is cle:':lr that the court has jurisdiction to cons:tder the issue of liniUr:.tion since, if _established, it is a sufficient ttround upon which ;)_ civil action must be dismissed. The applicdioh is supported by the evidence of. Christopher Tangira, the applican.t.o Mr. Hye-ra; learned advocate, is the appli-wnt•-s counsel.- He:, as directed by the order it•f t:·.tis court, filed writted arguments in respect of theapplicat.ion for exte11,5ion Evidence on record r:;hoim t1F1.t the applicant was employed by the Government a:=; a Finance Hana;:;oment Officer Grede III,_ rising to Finance Management Off :i.cer Grade II. 'l'he.t follo,-1i11r;; his employer's deci.sion to reduce the civU s,.')J:'Vice l1e w,9..s one of t:iosG who were retcenched. The applicant swears t1.1at the .retrenchment ex,:ii·cise 1-1as not carried out fairly and the it w:::i.s · done in 6.brogation cf criteJ:>ia thr1t hnd been agreed upon. u l,, t 2 , So he aver.s that he 1rt.";.S one of those civil servants who were removed from E;mployment contrary to law. He desires to challenge the retrenchment by way 0f certiorari. For that he needs leave of tl';is court to apply for the prerogative order., He concedes th&t time is not on his side, hence this applia1.tiGn. According to paragraph 8 of his affid,3.vit the, applicant swears that he could not file the ap-rlicat ion fer le,we in tirrie because he had to travel to songea to attend to his sick father. This he did in October,.1996. He has attached phot'J.static copies of bus fnn, tick:,ts as Annexture i1Ei 1 to his affidavit., J\.ccordine; to t~Jose tickets, he travelled fro;n Dar es salaam ~o Songea on 3rd October, 1999 on board an omnibus entitled llJ(iswele Investment"• T'nc second bus fare ticket is .for a journey undertaken from Iringa to Dar e.s so.J.aam on 25th M·Tch 9 . 1996. No ,widence h?..s been given why he had to travel from Iringa a.nd not from Songe&o More documentary ev~.dence is constituted by medical chits bearing the - ... nc1.me of ·charles w. Mbelle. The o.pplicant 's name i~ 1 by his pleadings, Christopher Tc111gira@ Christopher Francis Massawe Tangira:. No evidence has been adduced to show that the applic;:rnt and Charles William Mbelle have· a filial and. beolOgical rel:~t ionship as sworn by the applicant. Mr. Hyera's submissions are, by and lc:1rge, a reflection of the contents :i:n the applicant's afficbvito It is at page three of his submissions that he addresses the issue of the preliminary cbj cctions. 1 He concedes that 71 the applicant could not file the ,::i.ppJ.ication in tinie. He contends, however, th:J.t the applicant ·could not act in time becau/3e his fri.ther \vas ill at the time. Tho.t the applicant is the only -male adult issu;:J who had to attend to the sick man. According to learned counsel .,_ person has wh.'.lt he refers to as n~eli6ible negligence if he fails to act in time. He therefore prays that the medical chit be sufficient evi.dence o;f the applicant's father's ill health. May be the sitw:i.tion is as Mr Hyera .ha.s put it. I have pointed out, however, that m2dical -2vidence relc1teLs to a person who does not: appeaF- to be the applicant's f11ther 0 () 3 Anothe~· anomaly is borne out by th•:- bus far~ Uckets. The one- is for a journey from De.r es salaam ~b Songea :::i.nd th,~ other is for a journey from Irir:.ga to· Dar _essa.laam. · There is no evidence when the applican,t left ScngGa and hm.,r niuch tim1:? he dayed in Iringao The appJ,.icant -has a duty to strict_ly account for his tj_r,,0 in 211 application like this one. He has failed to do so. Medical evidence shows th2t Charles William Mbelle was attended to at Litembo Hospital \.,rhere he was aclmitted from 20.th Narcn, 1995 to 3rd April, 1995. 'A copy ·· the letter· hy which the applicant was retrenched, Annexture :ic;, is dated 15th June, 1996. The ill health of Chc1.rles . .. William Mb~le, even if it was esbblisht~d th:i.t is his father, has no relati- onship with the applicant's failure tc file his application· ~-time; that . ,,-!is effective from June, i996, 11hen he was retrenched. 0!'.dinarily, applications for prerogative ordc1rs are. made where no other relief :i,.s available to the applicant. In the instant case the applicant can seek a remedy in damaB'es for breach-of contract if he can prove th2i.t -the breach was wrong. In these circumstances the applica1:-t does not, therefore, sh.nd any reasone.ble chance of success ia an ap-plication for -certiorario ~-Tk; .. In that· circumstance leave would not be granted. The-case being as it. is, an applic.:;tion now ·bdol'e me, is entem,'lble. Up·on the above -consider1:-:.tion:s application for extention of time within 71 . dismissed. .There will be no order for costs. --- which to filean application for leave to apply for certiorari fails and is Delivered,. - JUDGE 2/10/1998 Mr. Hyera, Adv: For Applicant ( Absent) Mr. S.:uula, SoSoA: For Respondents I.