RULING LEAVE FOR TP DR CHARLES COSMAS MKALAWA VS TPRB FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 11800 OF 2024 TP DR. CHARLES COSMAS MKALAWA…………..………..APPLICANT VERSUS THE TOWN PLANNERS REGISTRATION BOARD….1ST RESPONDENT THE ATTORNEY GENERAL………………………….….2ND RESPONDENT RULING 29th August & 5thSept., 2024 KAGOMBA, J. This is a ruling on the applicant’s application for leave to apply, by way of judicial review, for orders of certiorari and mandamus against the decision of the 1st respondent to deregister him from the Register of Town Planners. The applicant impugns that decision for being ultra vires, contrary to rules of natural justice and embarrassing to him and wants it quashed and set aside by Court’s order of certiorari. Subject to obtaining leave, the applicant also intends to seek an order of mandamus to compel the 1st respondent to restore his registration as a Fully Registered Town Planner. He also seeks an order for costs and any other orders the Court may deem just to grant. 1 The application, which is supported by affidavit of the applicant, is made under the provisions of section 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 RE 2019] and Rule 5(1), 5(2) (b) (c) and (d) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. Briefly, the applicant has been working with the National Land Use Commission as a Town Planner for over 15 years. In 2023 he applied for registration as a Town Planner. Having been interviewed twice, he passed and was eventually registered as a Fully Registered Town Planner with Registration No. TP/0593/T0323. However, on 17/11/2023, he received a notice from the 1st respondent cancelling his registration. The above decision has aggrieved applicant. He intends to initiate judicial review starting with this leave application. On their side, the respondents filed a joint counter affidavit sworn by Martha John Mkupasi, which was replied to by the applicant. The respondents also filed a reply statement opposing the application. 2 At hearing, Mr. Freddy Kalonga, learned Advocate, and Ms. Agnes Makubha, learned State Attorney, represented the applicant and the respondents, respectively. Having sought to adopt the affidavit of the applicant to be part of his submission, Mr. Kalonga gave a brief background to the dispute as captured above. He added that after the applicant was served with the notice of cancellation of his registration on 17/11/2023, he appealed to the 1st respondent who, vide her letter dated 23/01/2024, rejected the appeal and confirmed the cancellation. The learned Counsel argued that the cancellation, which was based on the reason that the applicant does not hold a first degree in Town planning, was erroneously reached. He maintains that the applicant was eligible for registration as the law prescribes. According to Mr. Kalonga, his client was never charged so as to be afforded a right to defend himself before the cancellation of his registration was done. In his opinion, if the applicant was given that right to be heard, the impugned decision would not remain the same. The Counsel asserted that his client has all the qualifications listed under section 11 of the Town Planners Registration Act, 2007 and surplus. 3 The learned Counsel cited the decision of the Court of Appeal in the case of Emma Bayo Vs Minister for Labour and Youths and 2 Others, Civil Appeal No. 79 of 2012 CAT at Arusha, to argue that the applicant has made out a prima facie case, he has sufficient interest in the matter and therefore has met the conditions to be granted leave. In her reply, Ms. Agnes Makubha, learned State Attorney, was quick to put record clear that the applicant had never appealed to the 1st respondent as submitted by her counterpart. She clarified that the 1st respondent made the decision to cancel the registration thereby aggrieving the applicant but there has never been any appeal from the applicant to the 1st respondent. Having adopted the contents of the joint counter affidavit to be part of her submissions, Ms. Makubha vehemently defended the cancellation decision. She cited the provision of Section 11(1) (a) of the Town Planners Registration Act, No. 7 of 2007 to argue that the law requires a Town Planner to have a first degree in relevant discipline. She added that the words relevant qualification used in the cited provision means a degree in Town Planning. She asserted that the applicant lacked such a degree, hence disqualified. She also referred to the Town Planners Recognition Manual of 4 2021 for specific courses to be studied by a student who wished to be eligible for registration as a Town Planners. Justifying the decision to deregister the applicant, the learned state Attorney explained that the 1st respondent had to do so after realizing that the applicant was mistakenly registered, as he had no first degree in Town Planning. That, the 1st respondent proceeded to invoke cancelation powers under section 15(2) of the Town Planners Registration Act, 2007 after serving the applicant with notice of cancellation dated 17/11/2023. According to the learned State Attorney, the cancellation followed the law. Turning to the criteria for grant of leave, Ms. Makubha submitted that the applicant has to fulfil the conditions for leave stated in Nanadhra Engineering and Construction Co. Ltd vs Minister of Constitution and Legal Affairs and Attorney General, Misc. Cause No. 8968 of 2024, High Court Main Registry. She argued that the applicant has not established an arguable case for him to qualify for grant of leave. She made this assertion based on the argument that the applicant does not have a first degree in Town Planning as required by the law. She despised the applicant’s 15 years working experience arguing that it does confer him requisite qualifications. 5 Ms. Makubha further opposed the grant of leave on ground of lack of good faith on part of the applicant. She clarified that this condition for grant of leave requires the applicant to make a full and frank disclosure of all material facts. In this connection, she argued that the applicant knows that he does not have the required first degree in Town Planning, hence not eligible for registration as a Fully Registered Town Planner. In her last point of opposition, and apparently not the least, the learned Attorney submitted that the applicant has an alternative remedy to exhaust under Section 20 of the Town Planners Registration Act, 2007. She clarified that the cited provision allows the applicant to appeal to the High Court and not to apply for judicial review, if he is aggrieved by the decision of the 1st respondent. Based on the above reasons, she prayed for the application to be dismissed. In his rejoinder Mr. Kalonga, by and large, reiterated his submission in Chief. He added that the qualifications listed under section 11(1) (a) to (e) of the Act, should not be read in isolation. To him, the applicant’s Master’s degree and PhD in the relevant field ought to be taken into consideration. 6 On the right to be heard, the learned Counsel rejoined that the 1st respondent’s notice dated 17/11/ 2023 was a notice to cancel and not a notice of intention to cancel the applicant’s registration. In his views, the powers to cancel registration under section 15 cannot be invoked automatically, but requires the applicant to be heard first. According to the learned Counsel, since the decision was based on a wrong premise, the only way is to seek judicial review so that the same can be quashed and the respondent can be ordered to act in accordance with the law. As to whether an arguable case has been established, it is the learned Counsel’s view that from the above submissions, there are arguments as to whether the qualifications listed under section 11(1) of the Town Planners Registration Act, 2007 can be interpreted in isolation or not, and whether section 15 on cancellation of registration can be invoked automatically? The above rival submissions give raise to one main issue; whether the applicant has met the legal requirements for granting of leave to file his application for judicial review? 7 In my opinion, this issue is rather straight forward in view of the fact that there are established parameters which need to be considered in granting leave. The criteria have been stated in both cases cited to me by the learned minds. I refer to the case of Emma Bayo vs Minister for Labour and Youths and 2 Others, and the case of Nanadhra Engineering and Construction Co. Ltd vs Minister of Constitution and Legal Affairs and Attorney General (supra). In the latter case, all the criteria currently being applied by this Court in considering leave applications, including those stated in Emma Bayo, have been mentioned and deliberated upon. The criteria are as follow: “1. There must be prima facie or arguable or case; 2. The applicant has sufficient interest in the matter; 3. The matter must have been brought within time limit of six months. 4. There must be a decision over the matter made by a public body; 5. There must be exhaustion of remedies; 6. That the Application must be made in good faith”. I shall not look further than the above tests to determine this application. 8 Regarding the first condition which requires a prima facie or an arguable case to be established, I agree with Mr. Kalonga that the applicant has passed this criterion. There are questions put forth which constitute an arguable case. These include the question whether the applicant had requisite qualification for registration as a Town Planner? Whether he was entitled to the right to be heard before an adverse decision was made to his detriment? Or as coined by Mr. Kalonga, whether the powers of cancellation of registration under section 15 can be invoked automatically? And, whether the qualifications listed under section 11(1) (a) to (e) of Town Planners Registration Act, 2007 can be interpreted in isolation. With these questions, it is my finding that the applicant has established an arguable case. As for the applicant’s interest in the matter, there is no doubt that the applicant being the person whose registration has been cancelled by the 1st respondent to his detriment and who can no longer practice as a Fully Registered Town Planner, obviously has interest in this matter which he filed. Besides, there has been no argument to suggesting his lack of interest. Likewise, there has been no argument to suggest that the application has been filed out time. The impugned decision is dated 17/11/2023 and 9 according to the case management system, the application was filed in this Court on 22/5/2024. I can therefore confirm that the application was filed within the statutory period of six month. In the same vein, I can also confirm that there is in place a decision of the 1st respondent, a public body, which cancelled the applicant’s registration as a Fully Registered Town Planner. Hence, the third and fourth criteria in the above list have been satisfied by the applicant. As for the fifth criterion that requires exhaustion of available remedies, Ms. Makubha contended that leave of the Court cannot not be granted if the applicant has not exhausted the remedy available under section 20 of the Town Planners Registration Act, 2007. This section provides: “20. Any person who is aggrieved by a decision of the Board to refuse to register his name, or to delete his name from the Register, or to refuse to restore his name or to suspend the effect of registration may appeal to the High Court”. [Emphasis added] In his rejoinder on the above argument, Mr. Kalonga appeared to express the view that since the impugned decision was based on a wrong 10 premise, the only way is for the applicant to seek judicial review so that the decision can be quashed and the respondent can be ordered to act in accordance with the law. I am afraid this is not the way to go. Where the law has clearly provided for appeal as a remedy to the aggrieved party, this Court cannot open another door in contradiction with the law. It is understood that judicial review which is aimed at obtaining prerogative orders and an appeal are two different legal procedures. The difference has been explained by B.D. Chipeta, Administrative Law in Tanzania (A Digest of Cases) Mkuki na Nyota, Redesigned New Edition, Dar es Salaam, 2008, at page 121 as follows: “In applications for prerogative orders, the court investigates the legality of an action or decision of an inferior tribunal or authority but in an appeal the court considers the merits of the action or decision”. [Emphasis added] Any further rationale for the legislature to require a person aggrieved by the decision of the 1st respondent to file an appeal instead of seeking prerogative orders may not be fathomed by this Court. In any case, it is outside the mandate of this Court to inquire about the reasons thereof. It is 11 trite law that that when a statutory provision is unambiguous, no interpretation will be required but to follow the will of the Parliament as expressed in that provision of the law. Based on the above reason, I agree with Ms. Makubha that since there is a remedy of an appeal to this Court which is available to the applicant, leave to file for judicial review cannot issue. The applicant ought to pursue that remedy by filing an appeal to this Court instead of seeking leave to apply for prerogative orders. Accordingly, the application is dismissed for non-exhaustion of alternative remedy. No order as to costs. Dated at Dodoma this 5th day of September, 2024. A. S. KAGOMBA JUDGE 12