eva issango and another vs institute of tax administration 2021 tzhc 6714 19 october 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISC. CIVIL CAUSE NO. 11 OF 2021 EVA ISSANGO 1st APPLICANT PAUL MAMBO 2nd APPLICANT VERSUS THE INSTITUTE OF TAX ADMINISTRATION...... 1st RESPONDENT THE ATTORNEY GENERAL 2nd RESPONDENT RULING 21/09/2021 & 19/10/2021 Masoud, J. The applicants were Bachelor of Customs and Tax Management students at the Institute of Tax Administration. They were aggrieved by the decision of the first respondent of 07/05/2020 which discontinued them from their studies. The said decision was made by the Governing Council of the first respondent pursuant to regulation 18(b) of Part V of the Institute of Tax Administration Examination Regulations (hereinafter the ITA Examination Regulations). In accordance with the said decision, the applicants were found guilty of examination irregularities involving submission of field reports copied from each other contrary to regulation 14(a) of Part V of the ITA Examination Regulations. The applicants were served with letters informing them of the said decision. The letters read thus: RE: DISCONTINUA TION FROM STUDIES The heading above refers On 18.12.2019 during viva voce you submitted a field report that was copied from your fellow student l ...... which is against paragraph 14(a) o f Part 1/ o f ITA Examination Regulations. On 24h March 2020 you were summoned before irregularities Committee to explain on why you should not be punished for academic dishonest. Based on these facts, you were found guilty and Governing Council during its 132nd meeting decided to discontinue you from studies as per paragraph 18(b) o f Part V o f ITA Examination Regulations. Please be guided accordingly. Sgd Dr Lewis Ishemoi For Rector Copies of the said letters were annexed to the joint affidavit of the applicants. The joint affidavit verified the statement of facts supporting the application preferred in this court under section 17(2), 18(1) of the Law Reform (fatal Accidents and Miscellaneous Provisions) Act, cap. 310 R.E 2019 and rules 4, 8(l)(a),(b),(2),(3),(5) and rule 15(a) of the Law Reform (Fatal Accidents and Miscellaneous Provisions (Judicial Review Procedure and Fees) Rules, GN No. 324 of 2014. The application, as a whole, invited the court to grant orders of certiorari to quash the impugned decision, and mandamus to compel the first respondent to allow the applicants to proceed with the second semester of their last year of their studies. The applicants alleged that there were neither formal charges laid against the applicants, nor notices informing them of the allegation that led to their discontinuation prior to their appearance before the Examination Irregularity Committee for the purported hearing. It was also alleged that the applicants only received a phone call from one, Mr Augustino Kessy (Deputy Head of Examinations Affairs), which informed them that they had to appear in his office on 24/03/2020. Upon such appearance on 24/3/2020, the applicants were told to appear before the Examination Irregularity Committee in Room F12 at 14.30. It was upon such appearance that the Committee told them that they had committed examination 2 irregularity and were required to defend themselves against such allegations. It was then that the Committee told them the particulars of the accusation, orally, that on 18/12/2019 they submitted a field report which was copied from one another contrary to regulation 14(a) of Part V of the ITA Examination Regulations. The applicants' joint affidavit underlined that they appeared before the committee without being duly served with a formal charge and without being afforded an opportunity to prepare their defence against the accusations levelled against them. In the joint affidavit, the applicants further told the court that upon being discontinued, and being aggrieved by the impugned decision, they unsuccessfully preferred an appeal against the decision before the Rector of the Institute of Tax Administration on 18/05/2020, before seeking a review of the decision by the said Rector on 15/07/2020 in vain. Copies of the appeal and review were shown in the joint affidavit of the applicants. Still determined, the applicants sought and obtained leave in this court to challenge the impugned decision by way of judicial review. In view of the foregoing, the applicants grounded their application for certiorari and mandamus on the following: Firstly, violation of principle of natural justice and fair trial by the first respondent contrary to regulation 17(a)(b) and (d) of Part V of the ITA Examination Regulations, as the applicants were neither notified of and served with the charges laid against them nor were they accorded sufficient time to defend themselves against the charges before the ITA Examination Irregularity Committee. Secondly, the penalty imposed was excessive as they ought to be charged with plagiarism contrary to regulation 22(h) of the ITA Examination Regulations. It was pointed out that pursuant to such regulation they ought to have been considered to have failed the project. And thirdly, denial of their right of appeal. The respondents opposed the application. They filed counter affidavit deposed by Prof. Isaya Jairo, the Rector of the first respondent, and a statement in reply duly signed by the said Rector. With such opposition, the respondents maintained that all procedural requirements were complied with before the applicants were discontinued, having copied from one another in their field reports, and the 3 originality of the reports doubted by the viva voce panel. They, among other things, added that, the applicants were properly charged, and notified of the charges on 07/03/2020, and were afforded opportunity to prepare for their defence against the charges prior to their appearance before the Examination Irregularity Committee on 24/03/2020. A copy of the letter which notified the applicants of the charges laid against them, and that they were required to appear before the committee to answer the charges was shown. The reads thus and I hereby quote: RE: CALL FOR EXAMINATION IRREGULARITY HEARING Please refer to above captioned subject You will recall that you attended a viva voce examination for field practicum on 18th December 2019. During the viva voce examination session, the viva voce panel doubted the originality o f your field practicum report that amounts to examination irregularity as per the Institute's Examination Regulations. With this in mind, this letter serves as an invitation for you to come and give explanations regarding the said examination irregularity. The IT A's Examination Irregularity Committee will convene in Room FI 2 on 24h March, 2020 at 2.00 PM. You are therefore urged to appear before the Irregularity committee without failure. Sgd Dr Lewis Ishemoi For Rector In their further opposition, it was stated that there was no appeal which was lodged by the applicants before the Rector. It was also contended that the Rector did not uphold the decision of the Governing Council. Rather, the Rector informed the applicants that the Council's decision of discontinuing them from their studies had already been made. As to the application for review, it was contended that the applicants having written to the Rector on 15/07/2020 in relation to the purported review, the Rector declined to review the decision of the Governing Council which had already been made and communicated to them. 4 With the leave of the court, the matter was heard by filing written submissions. While the applicants were advocated by Mr Cleophace James, learned Advocate, the respondents were represented by Ms Narindwa Sekimanga, learned State Attorney. The learned counsel filed rival written submissions for the applicants and respondents respectively. Arising from the rival submissions was whether the applicants made a case for judicial review of the impugned decision. Arguing in support of the application, the learned Advocate for the applicant adopted the affidavit supporting the application and went further to expounding on the contents of the affidavit. Fortifying his arguments on the failure to afford the applicants their natural justices contrary to the requirements of regulation 17(a),(b), and (d) of Part V of the ITA Examination Regulations, the learned advocate cited the decision of the Court of Appeal of Tanzania in Sanai Murumbe vs Mhere Chacha [1990] TLR 54. In this decision, the Court of Appeal laid down guiding principles upon which an order of certiorari can issue against a decision of a subordinate court, or a tribunal or a public authority. The established guiding principles in accordance with Sanai Murumbe are; taking into account matters, which ought not to have taken into account; not taking into account matters which ought to have taken into account; lack or excess of jurisdiction; conclusion arrived at is so unreasonable that no reasonable authority could ever come to it; rules of natural justice have been violated; and illegality of procedure or decision. Specifically, on the failure of the first respondent to serve the applicants with notice and formal charges that were levelled against them, the court was referred to the case of Mahona vs University of Dar es salaam [1981]TLR 55 where it was held that failure to summon a person against whom the decision needs to be revised by the Minister results into miscarriage of justice; the case of Ngorongoro Conservation Area Authority vs Daniel Ole Moti, Revision Application No. 116 of 2018 HC in relation to defects in the notice purporting to notify the respondent to appear for disciplinary hearing and the holding that the deficiencies meant that the 5 respondent was not afforded sufficient opportunity to make his defence. The other cases were Simeon Manyaki vs IFM [1984] TLR 304, Exaud Abraham Tuni vs The National Institute of Transport and Another, Misc. Civil Cause No. 20 of 2020; and M/s Olam (T) Ltd vs Leonard Magesa and Others, Misc Civil Application No. 06 of 2019. I was told in particular that the latter had it that non­ affording the parties the right to be heard is a clear violation not only of the principle of natural justice but also the constitutional right enshrined under article 13(6)(a) of the Constitution of the United Republic of Tanzania. I was in the end asked to find merit in the application and grant the orders sought in the chamber summons. Arguing against the application on the basis of the matters stated in the counter affidavit, Ms Narindwa Sekimanga, learned State Attorney, also invoked the case of Sanai Murumbe (supra) saying that the applicants did not establish any ground that is compatible with the guiding principles enunciated in the authority. As such, the applicants did not, in her view, establish violation of their natural justices to warrant this court to exercise its discretion in the favour of granting the orders sought. Alongside Sanai Murumbe (supra), the learned State Attorney reinforced her submissions by citing George Lugga Maliyamkono vs Principal Secretary of the Ministry of Science, Technology and High Education and Others [2000] TLR 44, and Ally Linus and Others vs THA and Another [1998] TLR 5 which equally restated the guiding principles setting grounds upon which prerogative orders may issue. It is worth noting that at the heart of the rival submissions, there were rival arguments in relation to the application of regulation 14(a) of the ITA Examination Regulations, which the applicants were alleged to have violated by, allegedly, cheating by copying from each other's report; regulation 17 which provides for procedures for hearing entailing, fair and equal treatment, the opportunity to enter the plea of guilty, or not guilty, right of a suspect to appear and to defend himself/herself, the requirement to inform the suspect of his/her right to appeal, and consistency in punishment; and regulation 18(b) of the said Regulations under which the applicants were discontinued from studies and regulation 22(h) of the 6 Regulations which the applicants contended that it should have been used to impose the punishment of marking their reports as failed. I have had time to ponder on the rival submissions as they relate to the application. I have no doubt that regulation 17 sets out procedural requirements which ought to be complied with in any hearing conducted by the ITA Examination Irregularity Committee. This provision was not in dispute as to its existence, its import, and as to the requirements that it sets out. The dispute was on whether or not it was strictly speaking adhered to in the proceedings that led to the discontinuation of the applicants from their studies based on the allegation that they copied from one another in their field report. I must also point out that the regulation 17 of the Regulations is about rules of natural justice. In accordance with the authorities cited herein above, prerogative orders would in this application issue in the favour of the applicants, if any of the rules is proved to have been violated by the first respondent. The starting point is the question whether the applicants were notified of their charges and hearing of the allegations in respect of the charges that were levelled against them. The applicants maintained that they were only on 23//3/2020 informed through a phone call by Mr Augustino Kessy (Deputy Head of Examination Affairs) that they had to appear in his office on 24/03/2020. It was further the position of the applicants that having met the said officer on 24/03/2020 and without being formally charged and duly served with the charge, they were just told by him to enter Room F12 at 14.30PM to appear before the Examination Irregularity Committee and defend themselves. It was their position that, having so appeared, they were told by such committee that they committed examination irregularity involving copying field reports from each other, contrary to regulation 14(a) of Part V of the ITA Examination Regulations. As to the respondents, their position is that the applicants were duly charged and notified of the hearing in respect of the charges before the Examination Irregularity Committee. The phone call by the said officer of the first respondent (i.e Mr Augustino Kessy) to the applicants was, according to the respondents, only meant to 7 remind the applicants of the hearing which was due to take place on 24/03/2020. In this respect, reliance was drawn by the respondents on the letters dated 07/03/2020 issued to the applicants. However, there was nothing, let alone an affidavit of the said officer (Mr Augustino Kessy), substantiating the assertion by the respondents as to what the officer communicated to the applicants by phone. The applicants told the court that they were not formally charged and notified of the hearing but through the phone call only a day before the hearing requiring the applicants to appear before the so called Mr Augustino Kessy (Deputy Head of Examination Affairs) in his office. Having the applicants done so, the respondents were bound to satisfy the court that the applicants were indeed formally charged, served with the charge, and accordingly notified of the hearing before the Examination Irregularity Committee. The respondents produced the letters in their counter affidavit in respect of which the applicants were allegedly formally charged and notified of the hearing in relation to the charges levelled against them. The issue is whether the letters were a formal charge, and whether they sufficiently notified the applicants of the charges. In my scrutiny, the letters not only fall short of a formal charge, but also fall short of adequate notice of the case that the applicants had to face. They nonetheless lacked proof of service to the applicants as rightly argued by the applicants' learned counsel. If I were to add, there was nothing in the counter affidavit as to when and how the applicants were served with the letters and acknowledged the receipt. Going by the contents of the letters reproduced herein above and as already indicated hereinabove, I do not hesitate to say that even if it were shown that the applicants were duly served with the letters on 07/03/2020 as alleged, I would still find that the contents of the letters were so insufficient that they could not amount into a formal charge levelled against the applicants or adequate notice of the charge levelled against the applicants. Needless to mention, the contents of the said letters, whose letterhead was not of the first respondent, but the Tanzania Revenue Authority which is not a party to the present matter, did not specify any regulation that the applicants were alleged to have violated. Indeed, if one were to compare the contents of such letters with the contents of the letters notifying the applicants of their discontinuation from studies on the ground of being found guilty of copying from one another, he would clearly see that the latter had particulars which were missing in the former. Precisely, the latter notified the applicants the specific regulation which they violated, namely, regulation 14(a) of Part V of ITA Examination Regulations, and regulation 18(b) of Part V of the ITA Examination Regulations which was invoked in discontinuing the applicants from their studies. Essentially, the contents of the two letters presupposed that the applicants had already been formally charged and notified of the scheduled hearing in writing. On the contrary, there was nothing showing that the applicants were formally charged and notified in writing of the scheduled hearing in which they were entitled to defend themselves against the charges, if I were to go by the respondents' counter affidavit. I was shown a handwritten statement dated 24/03/2020, allegedly, made by the first applicant on the day the applicants appeared before the Examination Irregularity Committee. The statement is disputed by the applicants. In as much as the statement related to the allegations against the applicants, it does not establish that the applicants were formerly charged and sufficiently appraised of the particulars of the prejudicial allegations that were levelled against them prior to the scheduled hearing on 24/03/2021. This is, particularly so, because the purported statement was written on the same day of the scheduled hearing. One would wonder as to why the charges laid against the applicants, and the notice of the scheduled hearing of the charges were not shown along with the hand written statement, allegedly, written by the first applicant, if at all the applicants were duly charged and notified ahead of the scheduled hearing before the Examination Irregularity Committee. 9 There was yet another claim that the originality of the field reports of the applicants was doubted by the viva voce panel. The claim, according to the respondents, amounted to examination irregularity as per the ITA Examination Regulations. This claim was disputed by the applicants who, thereafter, went on to reiterate how they were called by phone, how they were made to appear before the Examination Irregularity Committee without being charged and being afforded time to prepare for their defence. Even if it were true that the viva voce doubted the originality of the applicants' field reports, the doubts entertained by the panel would under no circumstances constitute formal charges laid against the applicants or adequate notice of the case they had to meet. In any event, there were no proceedings of the panel which were shown as part of the counter affidavit. There was also no indication that the deponent of the counter affidavit was amongst the undisclosed members of the viva voce panel who had first-hand information of what transpired in the viva voce. In the circumstances, I am of the finding that the applicants were neither formally charged of the offence relating to copying from one another in their field reports, nor were they sufficiently notified of the hearing date in good time to enable them to prepare for their defence hearing. It would, in the circumstances, also follow that the applicants were truly not afforded sufficient opportunity to prepare for their defence, prior to their appearance before the Examination Irregularity committee. In so far as the provisions on the basis of which the proceedings were commenced against the applicants were not brought into their attention prior to their appearance before the Examination Irregularity Committee, the applicants were taken by surprise as they could not have prepared for their defence ahead of the hearing due to lack of statement of the applicable regulations and particulars of the offence with which they were purportedly charged. I am in this finding inspired and guided by the statement of principle of this court in Simeon Manyaki's case to the effect that and I hereby quote: The applicant, whose rights and legitimate expectations stood to be so adversely affected by the inquiry had the right to have an adequate opportunity o f knowing the 10 case he had to meet; o f answering it, o f putting forward his own case, and o f being fairly, and impartially treated, In other words, he had the right, first, o f being sufficiently appraised o f the particulars o f the prejudicial allegations that were to be made or had been made against him, so that he could effectively prepare his answer and collect evidence necessary to rebut the case against him ... o f being accorded sufficient opportunity o f controverting or commenting on the materials that had been tendered or were to be tendered against him; presenting his own case; and....being given a reasonable and fair deal. In line with what I have found herein above, I find merit in the first ground in respect of which the orders of certiorari and mandamus were sought by the applicants. The same, as is clear from the foregoing, has to do with breach by the first respondent of the principles of natural justice and fair trial contrary to the requirements of regulation 17(a),(b), and (d) of Part V of the ITA Examination Regulations. I am at this juncture not inclined to labour on the other ground in any detail as the findings in the first ground suffices to dispose of the matter. Consequently, I am satisfied on the basis of the findings that the applicants have made a case for certiorari to issue against the impugned decision, which order I am herein prepared to issue to quash the impugned decision which discontinued the applicants from their studies. Having found that the applicants can benefit from the prerogative order of certiorari, it is important to determine whether the applicants have laid out a basis for a grant of the prerogative order of mandamus. It is common place that an order of mandamus is a weapon in the hands of an applicant, when a public authority fails to carry out its duties in relation to the applicant. I am of the opinion that an order of mandamus can issue in the present instances. In the circumstances, therefore, I am prepared to grant an order of mandamus as sought in the chamber summons in so far as I am herein also prepared to quash the impugned decision by issuance of the order of certiorari. 11 In the final results, and for the reasons stated herein above, the application is meritorious. The applicants have made out their case for the prerogative orders sought in the chamber summons. Accordingly, I grant the order of certiorari to quash the decision of the first respondent that discontinued the applicants from their studies. Equally, the order of mandamus is issued as sought in the chamber summons. The applicants will have the costs of the application. I order accordingly. Dated at Dar es Salaam this 19th day of October, 2021 12