Mathew Antony Mlewa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA MISCELLANEOUS CAUSE NO. 1 OF 2023 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS IN THE MATTER OF THE DECISION OF THE PERMANENT SECRETARY OF THE MINISTRY OF HOME AFFAIRS BETWEEN EX. F. 6673 PC MATHEW ANTHONY MLEWA........................... APPLICANT AND PERMANENT SECRETARY MINISTRY OF HOME AFFAIRS................................... 1st RESPONDENT THE ATTORNEY GENERAL........................................... 2nd RESPONDENT RULING Date of last Order: 20/2/2024 Date of Ruling: 2/5/2024 KHALFAN, J. The above-named applicant filed this application under section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [CAP 310 R.E 2019] Rules 4 and 8 of the Law Reform (Fatal Accidents and i Miscellaneous Provisions) Judicial Review Procedure and Fees Rules GN 324 of 2014 (hereinafter referred to as the rules) seeking for the following reliefs namely: 1. That this honourable court be pleased to grant an order for certiorari and mandamus against the decision of the Permanent Secretary of the Ministry of Home Affairs issued on 12/3/2020. 2. That this honourable court be pleased to grant any other reHef(s) that it may deem just and fit to grant. The application is supported by an affidavit and statement on which leave was granted. On the other hand, the respondents lodged joint counter affidavit and statement in reply to contest the application. The application was disposed of by way of written submission in which the applicant was represented by Mr. Constantino Gwivaha, learned advocate, while the respondents' submissions were drawn and filed by Ms. Jenipher Kaaya, learned senior state attorney. Briefly, as it could be gathered from the both the submission and affidavit in support of the application is that, the applicant was employed by the Ministry of Home Affairs effectively from 30/8/2004 as police constable. 2 According to the record, on 3/2/2016, the applicant was assigned a duty along Dodoma-Morogoro highway accompanied with three other police officers tasked with the inspection of motor vehicles. While carrying out the said task, the applicant claimed to have stopped business passenger bus christened as IMO express. The driver of the said bus was driving at high speed. The applicant therefore called his fellow police officers and the driver of the said bus was fined instantly. While continuing with his duties, the applicant claimed that he was required by one police officer to go to the police station located at Buigiri. Upon arriving at the said police station, he found his fellow police officers whom he was working with at the highway under arrest. The record reveals that search was conducted in the applicant's car and some money was found therein. On 16/2/2016, the applicant and three other police officers were charged and they were both found guilty by the Regional Police Commander of Dodoma (hereinafter referred to as the RPC) on 11/6/2016 and subsequently the applicant's employment was terminated. He appealed against such termination before the Inspector General of Police 3 (hereinafter referred to as the IGP) but his appeal was rejected, hence the decision by RPC was confirmed. The applicant argued that after the decision of the IGP, he filed review against such decision before the same authority, but the application was rejected since it raised similar complaint as it was in the appeal. Following the decision by the IGP, the applicant filed an appeal to the Minister responsible for home affairs but on 12/3/2020, he was informed by the first respondent vide a letter that his appeal was dismissed hence the decision terminating his employment was upheld. According to the learned advocate for the applicant, the whole process of terminating the applicant's employment is tainted with irregularities such as failure to give receipts of the alleged motor vehicles and failure to submit collected fine which was not strictly proved. The learned advocate argued that there was no reasonable inquiry conducted against the applicant as required under section 51 of the Police Force and Auxiliary Services Act [CAP 322 R.E 2002], (hereinafter referred to as the Act). He submitted that going through the whole proceedings of inquiry, no single independent witness was called to prove the allegation of corruption against the applicant. In further submission, the learned advocate pointed out that the applicant was charged without citing the law alleged to be contravened. He pointed out that the 3rd count on which the applicant was charged and convicted namely failure to submit collected fines, is unknown offence under the law. He argued that the applicant was charged without being informed properly the particulars of the charge. The learned advocate argued that there was misjoinder of the applicant on the second count since the witnesses who testified show that the applicant was far away from his fellow police officers. The learned advocate further faulted the decision terminating the applicant's employment since there was no independent witness who witnessed the search conducted in the applicant's motor vehicle. He therefore pointed out that the applicant's conviction was based on the applicant's weakness rather than strength of the prosecution's evidence. He therefore maintained that all those factors constitute procedural impropriety, irregularity and the illegalities which the first respondent failed to take into account. As to the conditions for granting the writ of certiorari, the learned advocate referred to the case of Republic vs. Electricity Commissioners [1924] 1 KB 171 in which several conditions were expounded such as the judicial or quasi-judicial body must have legal authority in determining questions affecting the rights of the subjects, it must have duty to act judiciously and the authority must have acted in excess of its authority. The learned advocate argued that the first respondent had the duty of entertaining the application by the applicant but he acted in excess of his authority. He argued that the first respondent issued a decision against the applicant while denying him the right to be heard and explain the irregularities pointed before. He submitted that as to the writ of mandamus, reference was made to the case of John Mwombeki Byombalirwa vs. The Regional Commissioner and another [1986] TLR 73 in which it was stated that for that writ to be issued, the applicant must have demanded performance 6 and the respondent must have refused to perform. Reference was also made to the case of Abadiah Selehe vs. Dodoma Wine Company Limited [1990] TLR 113. The learned advocate argued that granting the writ of mandamus depends on the determination of the first writ of certiorari. He therefore urged the court to grant the prayers sought. In reply, the learned state attorney argued that, the applicant herein being a police officer with the rank of constable (below the rank of assistant inspector or non-commissioned officer also known as rank and file) the disciplinary machinery is provided for under regulations C.7 of the Police Force Service Regulation of 1998 (hereinafter referred to as the regulations) read together with the Act. He argued that the referred provisions elaborate that the applicant and other officers below the rank of the assistant inspector when committing an offence, may be arrested, inquired, charged and convicted with disciplinary offences. She argued that the officer of the rank referred to above if aggrieved with any decision of the tribunal or commanding officer, may appeal to the IGP whose decision is final. The learned state attorney therefore argued that since the applicant was aggrieved with the decision of the RPC, he ought to have appealed against such decision to the IGP whereby the latter's decision issued on 6/3/2017 was final. She contended that applicant's further review to the IGP and an appeal to the first respondent were procedures unknown in law. To buttress her arguments, the learned state attorney referred to the case of F.3329 CPL Buberwa Leonard Magayane and another vs. Minister for Home Affairs and 2 others Civil Appeal No. 119 of 2020 (unreported). The learned state attorney argued that the application at hand is incompetent as there is no valid decision to be challenged by way of judicial review. She argued that the applicant did not implead the IGP amongst the persons who made the decision. She submitted that the grounds for judicial review were expounded in the case of Sanai Murumbe vs. Mhere Chacha [1990] TLR 54. She argued that all the grounds set by the applicant do not qualify to the grounds set in the said decision as they reflect the matter of evidence which is contrary to the authority in Sanai Murumbe vs. Mhere Chacha (supra). 8 Reference was also made to the case of Michael David Nungu vs. The institute of Finance Management Misc. Civil Application No. 16 of 2019 (unreported) in which it was observed that: "The above grounds are therefore found to be irrelevant in this application. This is so because they are not only unverified by the affidavit of the applicant but also, they invite this court to review the evidence contrary to its powers in judicial review as restated by the Court of Appeal in Sanai Murumbe vs. Mhere Chacha [1990] TLR 54." The learned state attorney argued that even if the grounds argued by the applicant had merits, still, the decision was arrived at by disciplinary authority namely the RPC after inquiry, was made. As to the allegations that there was no witness summoned to testify on the corruption charges, the learned state attorney argued that the applicant and his fellow three officers were charged with three counts but none of them was corruption offence. As to the allegation that there was irregularity in convicting the applicant by not citing any provision of the law which he contravened, the 9 learned state attorney argued that the applicant was convicted for contravening section 50 (l)(d) of the Act. As to the allegation of misjoinder in the second count, the learned state attorney was of the view that the applicant was properly charged with other three police officers. As to the second, third and fourth allegations, the learned state attorney argued that the fact that there was no independent witness brought is not a requirement of any disciplinary law. As to the allegation that the termination of the applicant's employment was improper, the learned state attorney argued that since the termination of the applicant's employment was done by the RPC and then approved by the IGP who is the final authority, there is no any procedural impropriety. The learned state attorney argued further that for the writ of certiorari to be granted, the decision sought to be reviewed must have been procured by illegality, excess of jurisdiction and violation of principles of natural justice. Reference was made to the case of Kervin Peter Makaranga vs. the Police Force Immigration and Prison Service Commission and two others Misc. Civil Cause No. 7 of 2021 (unreported). Therefore, the learned state attorney urged the court to dismiss the application. The applicant did not file any rejoinder. Having gone through the parties' arguments, the issue for my determination is whether the application has merits. I will start my deliberation with the argument regarding whether it was proper for the applicant to file an appeal to the first respondent. In this, I subscribe to the arguments by the learned state attorney that given the rank of the applicant, having been charged and convicted by the RPC, an appeal thereto was to be lodged to the IGP whose decision is final. Therefore, the applicant's further application for review to the IGP and an appeal to the first respondent were uncalled for. To this, I would like to refer to the case of F.3329 CPL Buberwa Leonard Magayane and another vs. Minister for Home Affairs and 2 others (supra) in which it was observed thus; n "It is on record that the appellant were junior officers or rather non- commissioned officers below the rank of assistant inspector and the respective disciplinary authority, procedure, punishment and appeal are regulated by regulations C 7, C 8 and C 18 of the Police Force Service Regulations. While the commanding officer is the disciplinary authority the inspector General of Police is the appellate Authority who shall have final decision on the disciplinary matter. Therefore, the appellants appeal to the minister was uncalled for." Guided by the above authority, I am of the settled view that in the instant application, the applicant is seeking for an order to quash the decision of the first respondent. Since an appeal by the applicant before the first respondent was uncalled for, then it is the same as there is no decision at all for this court to quash. Rightly as argued by the learned state attorney, the IGP whose decision was final, ought to have been joined in this application as a necessary party. Such failure on the party of the applicant to join the IGP was a fatal irregularity. That said and done, this matter would have been laid to rest with the above analysis. However, I find it appropriate to determine other grounds 12 as alleged by the applicant. In the case of Sanai Murumbe and Another vs. Muhere Chacha (supra), the Court of Appeal expounded the grounds of judicial review as follows: "...aj taking into account matters which it ought not to have taken into account; (b) not taking into account matters which it ought to have taken into account; (c) lack or excess of jurisdiction; (d) conclusion arrived at is so unreasonable that no reasonable authority could ever come to it; (e) rules of natural justice have been violated; (f) illegality of procedure or decision." I have keenly gone through the grounds as alleged by the applicant in paragraph 21 of the affidavit, whereby the applicant claims that the offence of failure to issue receipts, failure to charge motor vehicle, receipt of bribe; were not proved is a matter of evidence. Equally, the allegation that there was no independent witness present when the applicant's motor vehicle was searched is also a matter of evidence. The allegation that case against the applicant was determined basing on his weakness is also a matter of evidence. I therefore, find all the complaints raised by the applicant in paragraph 21 of his affidavit not 13 within the grounds expounded in Sanai Murumbe and Another vs. Muhere Chacha (supra). It is without doubt that the applicant intends this court to exercise appellate jurisdiction against the decision complained of. This is not the purpose of the judicial review. That said and done, I find the application lacking in merits and the same is dismissed with no order as to costs. It is so ordered. Dated and Delivered at Dodoma this 2nd day of May, 2024. F. R. Khalfan JUDGE 14