CIVIL APPLICATION BONIPHACE J

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CIVIL APPLICATION NO. 000017348 OF 2024 REFERENCE NO. 202407191000017348 IN THE MATTER OF DISMISSAL FROM EMPLOYMENT OF EX. B. 5980 CPL BONIPHACE J. ALEX BY COMMISSIONER GENERAL OF PRISON AND THE DECISION BY THE POLICE FORCE AND PRISONS SERVICE COMMISSION BETWEEN EX. B. 5980 CPL BONIPHACE J. ALEX..... ................... APPLICANT VERU5 COMMISSIONER GENERAL OF PRISON................................ 1st RESPONDENT ATTORNEY GENERAL....................... 2nd RESPONDENT RULING 25™ & 26™ September, 2024 M, L. KO MBA. J.: This is ruling resulted from an application for leave to file an application for Judicial Review for orders of certiorari and mandamus. The application has been preferred by way of chamber summons made under Section 18(1), (2) (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 [R.E 2019] and Rule 5(1)(2) and (3) of Law Reform (Fatal Page 1 of 7 Accidents and Miscellaneous Provisions) (The Judicial Review Procedure and Fees ) 2004 (GN No. 324 of 2014) (the Rules) and Section 95 of the Civil Procedure Code, Cap 33 [R.E 2019]. The application is accompanied by an affidavit sworn by the applicant EX. B. 5980 CPL BONIPHACE J. ALEX which has statement of fact. Previous applicant was an employee in the Ministry of Home Affairs as the Warder and by the year 2019 he was CPL. at the prison department holding a rank of Police Constable. He was accused of attacking his supervisor, unlawful firing arms without reasons and abscond from duties (kumshambulia kiongozi wake, kulipua risasi bila sababu na kuacha Undo). He then, on 31/05/2019 was dismissed from employment after a disciplinary charge. Aggrieved by the said dismissal, he filed a civil suit No. 06 of 2022 where it was ordered that applicant has to exhaust local remedy as he did not appeal to the Commission for Police, Prison, Fire and Immigration. His appeal bounced and he filed this application as exhausted other remedy before this option. If granted, applicant intends to apply for order of certiorari quashing the expunged order of the 1st respondent (CGP) for dismissing him from Page 2 of 7 employment, orders for certiorari to quash the decision of the Commission and to file application for mandamus to compelling the 1st respondent to reinstate the applicant's employment and payment of all his entitlements. Upon filling of the same, Ms. Neema Mwaipyana Senior State Attorney for respondents raised a preliminary objection and prayed it to be heard on the date scheduled for hearing of Application that; 'This application is unmaintainable for being time barred' The application was disposed through oral submission whereby the applicant appeared in person without representation while the respondents were represented by Mr. Kitia Turoke, Senior State Attorney. I decided to entertain PO first. See Abubakar Athumani vs Daudi Lyakugile TA D.C Aluminium & Another, Civil Appeal NO. 86 of 2018. In his submission, Senior State Attorney submitted that under Rule 6 of Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, application of this nature has to be filed within six (6) months from the date which decision was issued. He went on submitting that decision which is intended to be challenged by the applicant was issued on 31/05/2019 by the Commissioner General of Prison Page 3 of 7 (CGP) as reflected at paragraph 3 of the affidavit. He said if the decision was issued on 31/5/2029 that means application for review was supposed to be filed by December 2019. He went on submitting that the cited rules do not prescribe the consequences for the application which is filed out of time and urges this court to utilize section 46 of the Law of Limitation Act, Cap 89 R. E 2019 when the limitation of time does not provide in any written law then Cap 89 shall apply as if such period of limitation had been prescribed by Cap 89. He went further submitting that under section 3(1) of Cap 89 where the proceedings is instituted out of prescribed time and without leave of court the remedy is dismissal. He prayed this court to find the matter is filed out of time and be dismissed without costs as it originates from employment disputes Applicant on his side believe his application is within time. He confirmed that he was dismissed on 31/5/2019 by the CGP. Following that dismissal, he filed civil suit No. 06 of 2022 in the High Court where he was informed that he has to exhaust local remedied before coming to court. Following that decision, he submitted that he appealed to the Commission and on 21/06/2024 he received a letter form the commission with position of the Page 4 of 7 appeal. After he was satisfied that he completeed internal process he filed this application. It was his further submission that counting from the date he received the letter from the Commission to when he filed this application he is within time as provide under rule 6 which demand application to be filed within six months. He received a letter from Commission in June 2024 and immediately he filed this application. He insisted that he has to abide to the law by exhausting other remedies before filing his application and prayed this court use wisdom to allow his application and informed this court that it was the same State Attorney who introduced the issue of local remedy in Civil Suit and he was wondering why again he said he is out of time. During rejoinder Mr. Kitia noted that applicant had a Civil Suit which was ordered him to exhaust other remedies. But he pointed that what the applicant challenging here in court must be very clear, to him the applicant is challenging the decision of the CGP which was done in May 2019 and not Commission decision which was delivered 21/6/2024. He insisted that the computation has to be made from May 2019. He went on clarifying that the fact applicant was in court has no room in the current application, however, that fact would have considered if applicant was applying for time to file Page 5 of 7 application for leave out of time due to technical delay. So far as he is challenging the decision issued on 31/5/2019, he maintained that the application has been filed out of time. I have carefully made a close follow up of submission by parties, my task is to decide where PO has merit. First of all, there is no doubt that applicants are applying for leave of this court to file judicial review, application which is guided by Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN No. 324 of 2014 and in rule 6 the time to file is within six months. I further agree with submission by Senior State Attorney that when the law does not provide time limitation, Cap 89 shall come into play via section 46 and section 43. When was the matter was filed. Or the other way does the application filed within time as per dictates of the law? In order to answer this question I have to know what applicant intends to challenge. I have read affidavit specifically at paragraph 3, 6 and 7 applicant explain he intend to challenge decision of the CGP. The said decision as per affidavit and oral submission in court was issued on 31/05/2019. The wordings of rule 6 of the rules requires application to be filed within six months from the date when the decision was issued. This court is of the position that decision was Page 6 of 7 delivered in May 2019 and the computation was supposed to start from that date. The fact that applicant was in court, as argued by Senior State Attorney could be the base for application for extension of time but not otherwise. Applicant was supposed to apply for extension of time before he lodged his application. Without many words, the current application is filed out of time and under section 3 of Cap 89 the remedy is dismissal as I hereby do. It is so ordered. DATED a $QMA this 26th Day of September, 2024 M. L. KOMBA Judge Page 7 of 7