RULING George Kihiyo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO 16292 OF 2024 CASE REF NO 202407091000016292 BETWEEN. D. 6372 EX D/CPL GEORGE KIHIYO..................................... 1st APPLICANT G.1059 EX D/C BENJAMIN JACKSON alias BENJAMIN JACKSON MKOMWA....................................2nd APPLICANT VERSUS THE INSPECTOR GENERAL OF POLICE.............................. 1st RESPONDENT THE HON. ATTORNEY GENERAL GENERAL............................................................................2nd RESPONDENT RULING 19th Oct. & 11th Nov 2024. KIREKIANO, J: The applicants herein were police officers. On 14th May 2012, the applicants and four other persons were charged with two counts under regulation XLVII of the Police Force Service Regulation (PFSR) of 1995. The offences were Conspiracy to Commit an Offence and the other offence was committing an Act contrary to regulation XLVII of the Police Force Service Regulation (PFSR) of 1995 (releasing arrested persons found with stolen goods). The presiding officer, SSP. R Mlasani acquitted 1 the Applicants on the first count and found them guilty on the second count. The hearing of the proceeding before SSP. R Mlasani culminated in the applicant's dismissal from the force by the Temeke Regional Police Commander. Dissatisfied with the judgment on their dismissal, the Applicants preferred an appeal against that decision to the Inspector General of Police (1st Respondent), who, on 27th August 2013, confirmed the Applicants' dismissal from their employment. The dismissal aggrieved the applicants, and they were desirous of challenging it through judicial review. The appellant had first to apply and obtain leave as it is mandatorily required under rule 5 (1) of the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. Since they are out of time, they have preferred this application and are seeking the following orders. 1. That the Honourable Court be pleased to extend the time to the Applicants within which to apply for leave to file a judicial review against the decision of the Inspector General of Police dated 27th August 2013, confirming the termination of the Applicants from their employment and discharge from the Tanzania Police Force. 2. That the Respondent bear the costs of this Application. 2 3. Any other order deemed fit and just The application is supported by a joint affidavit deponed by the applicants. In substance, the applicants have given a single shot of illegality, urging this court to find the same as good cause to merit the application. On their part, the respondent contested the application and filed a counter affidavit deponed by ASP Richard Makoti. When this application came for hearing, the applicants were represented by Mr. Martin Sangira, a learned advocate, while Mr. Urso Luoga, a learned state attorney, represented the respondents. In his submission, Mr Sangira asked this court to consider that the first respondent's decision was tainted with illegality in two aspects: the first respondent confirmed the Applicants' termination by failing to reach a finding that the applicants were charged and convicted of a different offence, and there was a lack of jurisdiction. The applicant's complaint about illegality is stated in paragraph 4 of the affidavit thus. 4.2. That the decision of the first Respondent confirming the termination of the Applicants incriminated the Applicants for an offence for which they were acquitted in the judgment of R. Mlasani, SSP. 3 4.3. That the first Respondent seriously errored in law for confirming the decision and order of Temeke Regional Police Commander to terminate and discharge the Applicants from The Tanzania Police Force without jurisdiction Mr Sangira cited the decision in Ngao Godwin Losero vs Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 302 (18 October 2016), citing The Principal Secretary Ministry of Defence and National Service vs Devram Valambia [1991] TLR 387, to the effect that, 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 is established, to take appropriate measures to put the matter and the record straight. According to him, the appellant was acquitted in the first count. However, in a letter communicating the first respondent's decision, the first made reference to the first count, in which the applicant was acquitted. He argued that this court should allow the application and find that there is no contending affidavit the respondent would suffer if the application is granted. He cited the decision in African Banking Corporation vs George Williamson Limited (Civil Application No 349, 01 of 2018) [2019] TZCA 641 (17 May 2019) that the other 4 factor for consideration by the Court is the degree of prejudice to the respondent if the application for extension of time is granted. On his part, Mr Orso Luoga adopted the contents of the counter affidavit. He argued that the contents in paragraphs 4:1, 4:2, and 4:3 of the applicant's affidavit show no complaint about the presiding officer SSP Mlasani's decision. As such, the applicant preferred to appeal to the 1st respondent. Illegalities alleged are not apparent on the face of the record; he cited decisions in Ngao Godwin Losero vs Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 302 (18 October 2016) and Joyce Joram Lemanya vs Patricia Patrick Lemanya and Another (Civil Application 430 of 2021) [2023] TZCA 235 (10 May 2023) where in the later case Justice Kente J A. at page 9 held that; Where an application for an extension of time is based on the allegation of illegality, the Court is not expected to laboriously scan through the entire record of the lower courts for possible illegality. Illegality must be visible on the face of the record. Mr Luoga argued that the applicant has yet to demonstrate illegality in this application, which is on the face of the record. In paragraph 4:1 of the affidavit on the complaint on the jurisdiction, the decision of the IGP is nowhere disputed. As such, in paragraph 4 of the applicant's 5 affidavit, the same alleges illegality; however, there is no complaint about the procedure and how the decision was reached; he cited the decision in Charles Richard Kombe vs Kinondoni Municipal Council (Civil Reference No. 13 of 2019) [2023] TZCA 137 (23 March 2023) In Chunila Dahyabhai v. Dharamshi Nanji and Others, AIR 1969 Guj 213 (1969) GLR 734, which 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' does not cover either error 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". Mr Luoga also pointed out that the affidavit needs to explain why this application was not brought timely; he cited this court decision in Ramadhani Rashidi Kitime vs Anna Ally Senyangwa (Misc. Land Aplication No. 3 of 2023) [2023] TZHCLD 1208 (10 March 2023) Malata J held, The ground of illegality; it is a trite law that, illegality being one use for extension of time must be raised timely. One cannot have a long period without pursuing his right to the 6 grant at his own time since there is illegality in the decision. Equally, illegality must also be raised timeously; otherwise, there will be no end to litigation. He thus argues this court to consider the decisions that illegality should not be noted from a long argument. As such it was Mr Luoga submission that the case of African Banking Cooperation, on how the respondent is prejudiced is distinguishable because no illegality was raised. In his rejoinder submission, Mr Sangira argued that the illegality indicated in paragraphs 4 and 5 of the affidavits merit the application. He argued that the decision in African Cooperation is still the valid authority on the need to ascertain the extent of prejudice on the part of the respondent. On my part, it has been held several times that, in applications of this nature, this court will be prepared to allow it if an applicant exhibits good cause to warrant this court's exercise of its discretion to extend time. It is also settled law that an application for an extension of time must be filed as soon as an applicant becomes aware of the need to do so, and he is obliged to account for each day of delay within the prescribed period. This is the reasoning in cases to mention a few: Board of Trustees of The Free Pentecostal Church of Tanzania vs Asha Selemani 7 Chambada and Another (Civil Application 63 of 2023) [2023] TZCA 147 (28 March 2023)., Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) and Finca (T) Limited and Another v. Boniface Mwalukisa, Civil Application No. 587/12 of 2018 [2019] TZCA (15 May 2019). The Court of appeal in Lyamuya Construction v. Board of Registered Trustees, Civil Application No. 2 of 2010, the Court provided the following guidelines that may be considered in ascertaining whether there is a good cause: a) The applicant must account for all the period of delay; b) The delay should not be inordinate; c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take and d) If the Court feels that there are other sufficient reasons, such as the existence of a point of law for sufficient importance; such as the illegality of the decision sought to be challenged. In this application, the impugned decision was issued on 27.8.2013. The applicant had six months to apply for leave, ending February 2014. Thus, it has been about ten (10) years since 2014. What is clear is that 8 this period of delay has not been accounted for, and the applicants rely on illegality as the sole basis supporting their application. This court is aware that an allegation of illegality suffices for an extension of time, and it does not matter whether the applicant has accounted for each delay see Attorney General Zanzibar vs Laemthong Rice Company Limited & Another (Civil Application No. 729/15 of 2023) [2024] TZCA 306 (7 May 2024). In the case of VIP Engineering and Marketing Limited & Three Others v. Citibank Tanzania Limited, Consolidated Civil Reference Nos. 6, 7 and 8 of 2006 (unreported), the Court of Appeal stated thus: "It is, therefore, settled law that a claim of the illegality of the challenged decision constitutes sufficient reason for the extension of time under rule 8 (now rule 10), regardless of whether or not a reasonable explanation has been given by the The issue is whether the applicants have raised a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. The applicant's grounds of illegality are in paragraphs 4:1, 4:2, and 4:3. That is to say, the first respondent confirmed the termination of the applicants by finding that they were charged and convicted of a different 9 offence and that the decision and order of Temeke Regional Police Commander to terminate and discharge the Applicants from the Tanzania Police Force without jurisdiction were confirmed. The applicants' affidavit states in paragraph 3.2 that in the said judgment, the presiding officer acquitted the Applicants on the first count and found them guilty on the second count. This appears to be in the attention of the first respondent, as stated in the annexure in paragraph 3.3 of the affidavit: Afisa msikilizaji aliwatia hatiani kwa kosa la pili na kosa la kwanza aliwaachia huru kulingana na ushahidi ulikuwepo. Kufuatia kutiwa hatiani huko kamanda wa Polisi mkoa wa Kipolisi Temeke akawakufukuza kazi. That is; The presiding officer convicted them of the second offense and acquitted them of the first offense based on the evidence present. Following the conviction, the police commander of the Temeke region dismissed them. I have considered the complaint on the illegality that the first respondent confirmed the decision of dismissal by incriminating the applicant on the offence of which they were acquitted. This deposition was countered by stating that there are no illegalities, which the applicants have shown 10 being apparent on the face of records rather, it is through long drawn arguments Having noted on the face of it as indicated above that the first respondent was well aware of the decision which he was confirming, whether he reached such decision considering the other offence or otherwise, is as argued by Mr Luoga, a long-drawn argument. It is in this I find the relevance of the cited decisions in Ngao Godwin Losero (supra) that the Court is not expected to scan through the entire record laboriously. On the issue of jurisdiction, the applicant merely mentions the want of jurisdiction without details. The respondent's counter-affidavit indicates that it is within the power of the 1st Respondent to confirm such a decision; there was no replying affidavit at this point to clarify the said error of law. I thus find that without such details in the affidavit, as much as I note that jurisdiction is vital, the applicant can not just mention the same without such details. Based on the foregoing, I am not persuaded that the alleged illegality in this application met the threshold, which is apparent on the face of the record. Ultimately, this application fails, and it is dismissed with costs. 11 A J KIREKIANO JUDGE 11.11.2024 COURT Ruling delivered in the presence of the first applicant and Mr Urso Luoga, the state attorney for the respondent. A J KIREKIANO JUDGE 11.11.2024 12