DOMINIC WANNAH

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

AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 3474 OF 2025 DOMINIC ADAM WANNAH……………………………………………… APPLICANT

VERSUS THE POLICE FORCE, IMMIGRATION AND PRISONS SERVICE COMMISSION……………………… 1ST RESPONDENT

THE PERMANENT SECRETARY MINISTRY OF HOME AFFAIRS……………………………….... 2ND RESPONDENT THE COMMISSIONER GENERAL OF IMMIGRATION……… 3RD RESPONDENT THE HONOURABLE ATTORNEY GENERAL…………………… 4TH RESPONDENT

RULING 28/03/2025 & 11/04/2025 ROBERT, J: This is an application for extension of time to apply for leave to seek judicial review against the decision of the Police Force, Immigration and Prisons Service Commission, 1st Respondent, terminating the applicant’s employment. The application has been filed under a certificate of urgency and is preferred through the legal services of Mr. Octavian Jovin Kamugisha, learned Advocate. It has been brought by way of chamber summons and is supported by an affidavit duly sworn by the applicant setting out the background facts leading to this application. 1 The respondents, through their representative Ms. Tusajigwe Gibbonsi Bukuku, learned State Attorney, filed a joint counter-affidavit opposing the application. Pursuant to the order of this Court, the matter was argued by way of written submissions, which were duly filed by both parties. In support of the application, learned counsel for the applicant submitted that the application is primarily based on the ground of illegality, asserting that the 1st Respondent acted ultra vires in terminating the applicant’s employment. Counsel argued that a claim of illegality amounts to sufficient cause to warrant extension of time, relying on the well-established principle in the case of VIP Engineering and Marketing Limited & Two Others v. Citibank Tanzania Limited, Consolidated Civil Reference No. 6,

7 & 8 of 2006, where the Court of Appeal stated: “It is therefore settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time... regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay.” Further, counsel cited the Indian decision in Keshardeo Chamria v. Radha Kissen Chamria & Others, AIR 1953 SC 23, to reinforce the 2 understanding that illegality relates not merely to the correctness of the decision, but to the procedure and jurisdiction by which it was reached. Additionally, reliance was placed on Josephat Joseph Mushi & Two Others v. Tanzania Postal Bank & Two Others, Civil Appeal No. 86 of 2022, where it was held that a claim of illegality must be apparent on the face of the record, without requiring elaborate arguments. It was contended that Regulation 40(1) of the Police Force, Immigration and Prisons Service Regulations, GN No. 473 of 2018, vests the authority to initiate disciplinary proceedings against officers of the rank of Assistant Inspector in the Commissioner General. The applicant argued that this procedure was not followed, and instead, the 1st Respondent improperly exercised original disciplinary jurisdiction, thereby rendering the termination unlawful. In response, the learned State Attorney submitted that the power of the Court to

extend time is discretionary and must be exercised judiciously and upon sufficient cause, citing Masato Manyama v. Lushamba Village Council, Civil Application No. 274/08 of 2024. Reference was also made to Lyamuya Construction Co. Ltd v. Board of Trustees of YWCA of Tanzania, Civil Application No. 2 of 2010, where the Court laid down the conditions for extension of time, 3 including: Accounting for all the period of delay; delay should not be inordinate; applicant must demonstrate diligence and absence of negligence; and existence of sufficient reason, including illegality. It was the respondents’ view that the applicant failed to account for the five-year delay and had not demonstrated diligence. On the issue of illegality, counsel submitted that the procedure adopted in the applicant’s termination was lawful. The 1st Respondent was vested with jurisdiction under section 7(3) of the Police Force and Prisons Service Commission Act, Cap 241 R.E. 2002, which grants disciplinary authority over officers of the rank of Assistant Inspector to the Commission. Furthermore, the Commission may delegate such powers under subsection (4). In rejoinder, Mr. Kamugisha reiterated that the illegality raised is jurisdictional in nature. He submitted that the 1st Respondent acted contrary to section 7(3) of Cap 241 and Regulations 27(2), 43(7), and 46(6)(b) of GN No. 473 of 2018, which place

initial disciplinary authority in the Commissioner General, in consultation with the Chief Permanent Secretary, and vest appellate powers in the Commission. He emphasized that by acting as the original disciplinary authority, the 1st Respondent usurped powers lawfully placed in other authorities, 4 which constitutes a fundamental violation of the law and the applicant's right to be heard, contrary to principles of natural justice. Having carefully considered the affidavits and rival submissions by learned counsel, the main issue for determination is whether the applicant has shown sufficient cause to warrant the exercise of this Court’s discretion to grant extension of time. Section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019, empowers this Court to extend time for sufficient cause. The applicant has grounded his prayer on illegality in the decision-making process leading to his termination. From the submissions, the alleged illegality arises from the purported assumption of original disciplinary jurisdiction by the 1st Respondent, contrary to the regulatory framework under Cap 241 and GN No. 473 of 2018. This raises a point of jurisdiction, which, if proved, would go to the root of the matter. The Court of Appeal has repeatedly emphasized that even a mere prima facie case of illegality is sufficient to warrant extension of time (see VIP Engineering, (supra); and

Principal Secretary, Ministry of Defence and National Service v. Devram Valambia [1992] TLR 185). 5 In the present case, the applicant has demonstrated that the alleged irregularity relates to procedural impropriety and jurisdictional usurpation, which are matters that merit judicial consideration. Guided by the settled principles and having found that the applicant has raised a serious point of illegality apparent on the face of the record, I am satisfied that sufficient cause has been shown. Accordingly, the application for extension of time is hereby granted. The applicant is ordered to file the intended application for leave to seek judicial review within fourteen (14) days from the date of delivery of this ruling. No order as to costs. It is so ordered. K.N. ROBERT

JUDGE 11.04.2025 6