20130215 TZCA Dar es Salaam

'; IN THE COURT OF APPEAL OF TANZANIA -~.- .,,,....---..., .., AT DAR ES SALAAM (CORAM: OTHMAN, C.J., MSOFFE, J.A., And MJASIRI, J.A. CIVIL APPLICATION NO. 13 OF 2011 1. CLEOPHAS M. MOTIBA } .......................................... APPLICANTS 2. STEPHENE NSHEMETSE -· VERSUS 1. THE PRINCIPAL SECRETARY, } MINISTRY OF FINANCE . 2. THE ATTORNEY GENERAL ........................ RESPONDENTS 3. TANZANIA REVENUE AUTHORITY (Application for Review of the Judgment of the Court of Appeal of Tanzania, at Dar es Salaam) (Munuo, J.A., Othman, J.A., And Mjasiri, J.A.) dated the 30 th day of December, 2010 • in Civil Appeal No. 27 of 2010 RULING OF THE COURT 11 th February & 4 th March, 2013 OTHMAN, C.J.: Under Rule 66(1)(a) of the Court of Appeal Rules, 2009 the Applicants, Cleophas M. Motiba and Stephen Nsemetse seek a review of the judgment of the Court in Civil Appeal No. 27 of 2010 delivered on 30/12/2010. Therein the Court had affirmed the decision of the High Court in Civil Case No. 361 of 1999 (Mihayo, J.) rendered on 15/9/2009 which held that the Applicants were employees of the Ministry of Finance (M.O.F) and had been properly removed in public interest by the President under section 19(3) of the Civil Service Act, No. 16 of 1989. 1 At the hearing of the application, on 11/04/2013, the Applicants st were represented by Mr. Richard Rweyongeza, learned Counsel; the 1 and 2nd Respondents were represented by Mr. Michael Luwena, learned Principal State Attorney and the 3 rd Respondent was represented by Mr. Juma Beleko, learned Counsel. Mr. Rweyongeza's principal contention was that there had been a manifest error on the face .of the record resulting in a miscarriage of justice in that the list of names of the persons that were to be removed in public interest, which was attached to the DOKEZO SABILI (Exhibit P.5), which had set in motion the whole matter, was not produced in evidence by the Respondents to show whether or not the Applicants were among the 606 employees whose names were included in it as those recommended to the President fbr removal in public interest. With the absence of that evidence, there Yifas no evidential link between the DOKEZO SABILI (Exhibit P.-S) and the letters by which the Applicants were officially notified of their removal in public interest (Exhibit P.2). The Court, he forcefully urged, had not considered the effec.t of the omission of the list of names in the evidence, in reaching its decision. He relied on Muhidin Ally @ Muddy, Mzamili Athumani a~d Murdin Ally V. Republic, Criminal Application No. 2 of 2006 (CAT, unreported). He invited the Court to declare the letters (Exhibit P.2) null and void and to hold that the Applicants continued to be employees of the M.O.F. 2 Opposed, Mr. Luena relying on Chandrakant Joshubhai Patel V. - i~ :: ' Republic (2004) TLR 218 submitted that the absence of the list of (') names in the evidence could:not amount to a manifest error on the face of the record resulting in a miscarriage of justice. What the Applicants were asking for, he stressed, was another reassessment of the evidence by the Court. An appreciation of the evidence whether or not the Applicants· were on the list of names attached to the DOKEZO SABILI is not a proper matter for review. He pointed out that the Applicants had even agreed in their notice of motion that they were on that list. Referring to Peter Ng'homango V. Gerson M. K. Mwanga and The :Attorney General, Civil Application No. 33 of 2002 (CAT, unreported) where the Court stated that dissatisfaction with the Court's decision, however strongly that the party may feel, is not a sufficient ground for invoking the Courts' review jurisdiction, Mr. Luena submitted that if the omitted list was a material issue, the Applicants should have raised it at the trial court or on appeal. They had not. Mr. Luena conceded that the DOKEZO SABILI (Exhibit P.5) was part of the process which set in motion the Applicants' removal in public interest. However, he submitted that as the recommendations in the DOKEZO SABILI were non-binding to the President, the Applicants cannot build a sound case for review based on the absence of the list of names. He invited the Court to dismiss the application with costs. 3 In a brief reply, Mr. Beleko submitted that as no manifest error on -() the face of the record resulting in a miscarriage of justice in respect of C) the 3rd Respondent had been shown by the Applicants, they should pay costs for dragging it on this Application. We have carefully considered the material before us and the submissions by the parties. On the law governing review, in Chandrakant JoshubhaiPatel's case (supra) the Court held that one of the instances where it can exercise its review jurisdiction is. "where there is a manifest error on the record, which must be obvious and self evident, and which resulted in a miscarriage of justice" (Emphasi~ added). Said in a slightly different manner, in the words of the Court in Peter Ng'homango's case(supra), it must be shown that "the errors are obvious and patent'~~. It is common ground that the President has powers to remove a civil servant in public interest under section 19(3) of the Civil Service Act. On this application, the Applicants did not dispute the Court's finding that at the materia'I time they were employees of the Ministry of Finance, thus civil servants. It is on record that while the DOKEZO SABILI, which among other matters, contained recommendations to the President on the civil 4 servants to be removed :oin: .public interest was tendered in evidence -•-·n j! t (Exhibit P.5), the list of persons affected that was attached to it was not. 1 0 1 The prime question that arises i~ wheth~r or not the omission of this list of names in the basket-:of evidencJ ~n record before the Court constitutes a manifest error,-con the f)Ce of the record resulting in a ) . I miscarriage of justice, in the terms sugg~sted by the Applicants. Having given the matter deserved ~onsideration, we are not a shed 11 I persuaded. that a sufficient::showing has been made for the. Court to ~ . invoke its review jurisdictiorb With resp;ect, our first observation is this. . . j i Much as Mr. Rweyongeza·submitted that with the apsence of the list of - . I . names In the evidence, -it ,was not knovJn whether or not the Applicants . I . i' were included in it, a mere:look at the 4pplicants' notice of motion, their !, affidavit and written submissions reveal! that they themselves claim that ! their names were included ,therein as~ among the 400 employees, of unquestionable integrity, who were sup~sed to be retrenched and not 11 among the 606 employees of questionable integrity, who were I recommended for removab·-in public iriterest. The fact of the matter I - remains that the attached· Hst. of names ~attached to the DOK~ZO SABI LI i was not tendered in evidence by the Res;pondents. We would agree w-ith. Mr. Luena j1that the omission to tender in evidence the list of na11_1es.-and its sigrlificance to the whole case was I mostly an evidentiary matter; -.and if matierial, ought to have been raised ~ 5 I l l ; '• I . by the Applicants at the trial or even on appeal and not belatedly, on review. The DOKEZO SABILI was sufficiently addressed to at trial by the parties and the High Court. In fact, on 19/11/2008, Mr Barnaba Luguwa, learned Counsel for the Applicants had even cross-examined DW1 (Leonard Mchauru) on it On:appeal, similarly, the parties and the Court made direct references to it. Mr. Luguwa had also submitted that the Applicants' screening process involving the DOKEZO SABILI had been done by the 3rd Respondent and not the M.O.F. No explanation was offered, let alone a reasonable one, why occasion was not taken to raise this evidentiary omission when several opportunities arose. That apart, what the Applicants are challenging is part of the process represented by DOKEZO SABILI, which set · in motion their removal in public interest.. As correctly submitted by Mr. Luena, the recommendations contained·. in the DOKEZO SABILI were non binding to the President. The effect of the absence of the list of names in evidence is significantly watered down when account is also taken that the President has clear authority ·and this was not disputed by the Applicants, to remove a civil servant in public interest under section 19(3) of the Civil Service Act. It is on recordthat he exercised that power on 19/4/1996 (Exhibit P.5), which decision was duly communicated to the Applicants on 25/6/1966, with reasons (Exhibit P.2). On the process, what we can safely say is that in a fit case, one may perhaps build an arguable case 6 'for judicial review by impeaching the procedure resulting in removal in public interest under section 19(3) of the Civil Service Act. It is a trite proposition of law that the Court's appellate jurisdiction is not to be confused with its review powers and its review powers are not to be mixed up with judicial review of administrative action. Considering the matter further, with respect, we are of the settled view that on its facts, Muhidin Ally's case (supra) relied upon by the Applicants is distinguishable to the instant case. In the former, the Court had not considered the .contradictory identification evidence of the key prosecution witnesses (PW2, PW4), which went to the root of the identification evidence on which the 3rd Appellant was convicted and sentenced for the . offence of armed robbery. With the pertinent· contradictory evidence pointed out on review, the Court relying on Waziri Amani V.R. (1980) TLR 250 found the identification evidence, neither water-tight nor free from mistaken identification. It reviewed its judgment and quashed the·conviction and sentence. In the instant case, the President was not bound under section 19(3) of the Civil Service Act by the recommendations contained in the DOKEZO SABILI (Exhibit P.5). Moreover, it was not the Applicants' case that the list of names was not placed before the President for him to duly exercise his powers under section 19(3) of the Civil Service Act. There is nothing in the record to suggest that the President completely overlooked the list of names. 7 Giving the matter additional consideration, we are also not satisfied "'() that the alleged error is obvious, self evident or one that does not (1 involve an elaborate process of reasoning or complex counter arguments to amount to a manifest error on the face of the record. Answers to both questions of fact and·::law, which may arise out of the DOKEZO SABILI and its non attached list of names, include whether or not the Applicants were of doubtful integrity or as they themselves claim to be, of unquestionable integrity and what entitlements and benefits they were paid and received and under which laws, cannot reasonably be responded to without a lotof eminent opposing debate. As held by the Supreme Court of India in Sow Chandra Kanta and Another V. Sheik Habib (1975) 3 SCR 933: '~ · review of a judgment is a serious step and reluctant resort to it is proper only were a glaring omission or a patent mistake or like grave error has crept in earlier by judicial fail/ability" (see also, Col Avtar Singh Sekhon V. Union of India, AIR 1980 SC 2041). Undeterred, it was the Applicants' further contention that the letters by which they were removed in public interest (Exhibit P.2) under section 19(3) of the Civil Service Act were bad in law for being ultra vires with the DOKEZO SABILI. 8 . .. " Mr. Luena cogently :submitted that the letters (Exhibit P.2) were valid as their author, the Principal Secretary, M.O.F. only communicated the decision of the President.to remove the Applicants in public interest. That the DOKEZO SABILI wasnot a law for the allegation of ultra viresto stand. Moreover, the decision by the President cannot be termed ultra vires with the DOKEZO SABILI, a document containing recommendations made by the Principal Secretary, M.O.F.,· an appointee of the President. With respect, the Applicants' argument is untenable. The DOKEZO SABILI had no authority conferred upon it in law in removing a civil servant in public interest for .the letters (Exhibit P.2) to fall within the •.limits of any power express or implied, granted to the former. By analogy, if one were to refer to an Enabling or a Parent Act, it is section .19(3) of the Civil Servant Act which empowers the President to remove a civil servant (i.e. the Applicants) in public interest, a decision he took on 19/4/1996 (Exhibit P.5). That power was not contested. It was the Court's finding on appeal that' that authority was not delegated to the 1st Respondent, as the Applicants had strenuously argued. Furthermore, the Court had agreed with the Respondents' views that the letters (Exhibit P.2), which specially referred:to section 19(3) of the Civil Service Act only consisted of a communication of the decision of the President. There is no complaint against these findings on this application. All considered, it is crystal clear, therefore, that the letters (Exhibit P.2) yielded to the 9 terms of the President's decision and did not in any way violate its limits for the doctrine of ultra vires to be attracted ·or for letters to be rendered null and void. In the final analysis· and the above alleged manifest error on the record considered, with respect, we do not find any which justify the exercise by the Court of its review jurisdiction. The application, devoid of merit, is hereby dismissed with costs. DATED at DAR ES SALAAM this 15th day of Februc;1ry, 2013. M.C. OTHMAN CHIEF JUSTICE J.H. MSOFFE JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. --~kWizu --- .!- UTY REG.ISTRAR COURT OF APPEAL lD