MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS CIVIL APPLICATION NO. 00005890 OF 2024 REFERENCE NO. 202403191000005890 IN THE MATTER OF AN APPLICATION FOR LEAVE PREROGATIVE ORDERS OF CERTIORARI AND MANDAMUS BY EX. F. 8347 D/C MAGNUS MACHONA NKOMOLA AND IN THE MATTER OF DISMISSAL OF EMPLOYMENT OF APPLICANT AS A POLICE OFFICER BY THE DISCIPLINARY AUTHORITY OF TANZANIA POUCE FORCE (REGIONAL POLICE COMMANDER) AND IN THE MATTER OF CONFIRMATION OF THE ORDER DISCIPLINARY AUTHORITY OF TANZANIA POLICE FORCE BY THE INSPECTOR GENERAL OF POLICE ON APPEAL DATED 24/08/2020. EX - F - 8347 D/C MAGNUS MACHONA NKOMOLA.......................... APPLICANT VERSUS THE INSPECTOR GENERAL OF POLICE TANZANIA................ 1st RESPONDENT THF ATTORNEY GENERAL OF TANZANIA............................. 2nd RESPONDENT RULING 01st & 23rd July, 2024 M, L, KOMBA, 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 Page 1 of 10 been preferred by way of chamber summons made under Section 17 (2) the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [R.E 2019] and Rule 4 and 5(1)(2) of Law Reform (Fatal Accidents and Miscellaneous Provisions) (The Judicial Review Procedure and Fees ) 2014 GN No. 324 of 2014 (the Rules) and section 2 (3) of Judicature and Application of Laws Act, CAP 358 R.E 2019, Article 108 (2) of The Constitution of United Republic of Tanzania as amended from time to time. And it is accompanied by an affidavit sworn by the applicant EX-F 8347 D/C MAGNUS MACHONA NKOMOLA and has statement of fact. The background story leading to this application is that the said applicant was an employee in the Ministry of Home Affairs as the Police Officer holding a rank of Police Constable with Force Number 8347. He was accused of soliciting bribe, aiding a prisoner to escape and truancy. He then, on 04/08/2016 was dismissed from employment followed by criminal charge at Musoma District Court on 05/08/2016 with an offence of aiding prisoner to escape via Criminal Case No. 124 of 2016. After full trial applicant was acquitted. Following dissatisfaction of dismissal from employment he appealed to IGP who ordered trial denovo. However, upon re- hearing the appellant was dismissed from employment. Page 2 of 10 The sought application for leave (if granted), is intended to file an application for Judicial Review on the following grounds; i. That the applicant was charged before a disciplinary in the police force after he had been dismissed as a police officer ii. The applicant was charged before a disciplinary tribunal in the police force for the offence of aiding a prisoner to escape of which he was already charged with and acquitted in the District Court of Musoma in Criminal Case No. 124 of 2016 iii. The decision of the 1st respondent dated 24h August, 2020 did not address the applicant's grounds of appeal dated l&h August, 2018, the applicant enlisted 13 grounds of appeal but none of them was addressed which contravened Regulation C. 18 (4) of Police Force Service Regulations, 1995. iv. That, the purported inquiry into the charges against the applicant by the disciplinary authority contravened sections 7(6) and 8(2) of the Police Force and Prisons Service Commission Act, Cap 241 of the laws and Police Force Service Regulations, 1995. v. The proceedings of the disciplinary authority contravened P.G.O No. 106(4), (5) (28) of the Police General Order of2006. vi. That, the reviewed decision of the disciplinary authority delivered on ldh July 2018 and confirmed by the Regional Police Commander of Mara Region on dh August, 2018 and the proceedings thereof conducted from May 2018 to ldh July, 2018. vii. That, the disciplinary authority improperly received, accepted and relied upon the witness statement which was not known its source. Page 3 of 10 If granted, applicant intends to apply for order of certiorari quashing the expunged order of the Disciplinary Authority of Tanzania Police Force for dismissing him from employment and to file application for mandamus to compelling the 1st respondent to reinstate the applicant's employment and payment of all his entitlement. The application was disposed through oral submission whereby the applicant appeared in person without representation while the respondents were defended by Ms. Neema Mwaipyana, Senior State Attorney. After the prayer that his affidavit and statement be adopted by this court, applicant was very brief in his submission that he was employed by the Police Force but decision of the IGP affected him, the proceedings is tinted with illegalities as listed under para 16 and 17 of his affidavit and therefore he applies this court to grant him leave to file judicial review. He takes refuge in Engelbert Lucas Chelele vs Police Force, Immigration and Prison Service Commission and others, Misc Civil Cause No. 11 of 2022 where this court noted conditions to be met in application of this nature. He then prayed his application to succeed. Page 4 of 10 Ms. Mwaipyana reminds this court that the application by the applicant is court discretion in which there are conditions which govern this court as listed in F. 3329 CpI Buberwa Magayane and Another vs Ministry of Home Affairs, IPG and AG, Civil Appeal No. 119 of 2020 CAT that, first; applicant should say he has prima fade case to apply, second, the application for leave to be done within 6 six months and applicant must show he has interest in that case. It was her stance that applicant did not meet the test as provided. Analyzing conditions, on the first condition, State Attorney submitted that the applicant was junior officer below the rank of Assistant Inspector where under part IV of the Police Force Service Regulation, Item C4 the disciplinary Authority is RPC then final is IGP. She went on submitting that the applicant was sued by RPC as his disciplinary authority whereby all procedures as in Regulation C7, C8 and C18 were adhered as applicant was charged and inquiry was conducted and finally was convicted in all three offences It was her further submission that the applicant was given right to be heard, and alleged illegality is imagination as he (applicant) was charged as per Regulation 21(1) and (2) of police Force Service Regulation which Page 5 of 10 provides that the dismissal or acquittal in criminal case cannot operate as a bar in disciplinary proceedings and therefore, she submitted that the charge by RPC was not illegal. » She went on submitting that the appeal was heard as per regulation C18 when read together section 7(5) of Act No. 9 of 1998 where the appeal is not the forum for receiving evidence neither the applicant to appear rather it is for IGP to determine. Ms. Mwaipyana went on submitting that the offence committed by the applicant was disciplinary and it was right for him to be dismissed from employment. According to her analysis she said there was no excessive power by disciplinary authority and she finds applicant has failed to establish prima facie case for him to be allowed to file judicial review. The second condition on whether the applicant has interest, basing on Registered trustee of Sunny Muslim vs Registrar of Society and AG, she said the applicant has failed to move this court to grant what he is seeking as he failed to show his interest in intended suit. State Attorney did not dispute about the last condition that application must be filed within (6) six months as he has extension of time. She prayed counter affidavit and reply to statement be adopted by this court and this application be dismissed with costs. Page 6 of 10 When given the second chance, rejoinder, the applicant explained that he was employee in the Police Force as paragraph 3 of affidavit show, he was dismissed from employment and given certificate of discharge as per paragraph 7 of his affidavit, he faced criminal charge and was acquitted. He said he has interest over the matter as was acquitted but his employer insisted on dismissal. Further, he complained that he was not charged, there was no inquiry and he was not heard on appeal contrary to regulation C18(4) which demand his presence when appeal is heard by IGP. He finally prayed for leave to file judicial review. Having heard the submissions from both parties, the question remains, as submitted by both parties, has the applicant demonstrated three basic conditions which must exist before granting leave? See F. 3329 CpI Buberwa Magayane and Another vs Ministry of Home Affairs, IPG and AG (supra) and Engelbert Lucas Chelele vs Police force, Immigration and Prison Service Commission and Others (supra). About the time within which the application has to be filed, the applicant sought and obtain extension of time via Civil Case No. 440 of 2024. The first condition is met. On the interest of the suit, applicant was employed by the 1st respondent and dismissed from his employment as deponed at Page 7 of 10 paragraph 7 and annexture M-02.1 find he has interest as he was former employee and was dissatisfied by decision of the 1st respondent. The last condition is whether applicant has prima facie case. In his affidavit at Paragraph 16 applicant listed seven issues blaming the proceedings and decision of the 1st respondent. Among them is dismissal after acquittal in criminal case at Musoma District Court. As submitted by State Attorney that regulation C21 (2) acquittal in criminal case is not a bar to disciplinary proceedings. I find this is not arguable issue worth to grant as the law is clear. Another issue is Appeal as he complained it was heard contrary to regulation C18(4). The said regulation compels the 1st respondent to call appellant if receive new evidence in appeal. From the record, no new evidence was entertained at the appeal level. About adherence of section 7(6) and 8(2) of the Police Force and Prison Service Act, the cited section is about charging the defaulter, inquiry and the right to answer the charge. From paragraph 12 of the affidavit, the applicant deponed that he was charged and the tribunal recommended for his dismissal whereby he annexed the proceedings. I had time to read proceedings and found the Page 8 of 10 charge was read over him who pleaded not guilty and hearing was conducted on 25/05/2018, 02/06/2018, 06/06/2018, 13/06/2018 and 20/06/2018, 27/06 2018 up to 06/08/2018 when hearing was concluded and the proposed punishment was forwarded to Reginal Commander for his approval. I find the cited regulation were adhered. PGO 106(4) (5) and (28) is about preliminary Inquiry. It is insisted before charging the defaulter there must be preliminary inquiry conducted and the report must be prepared to ascertain allegation and then forwarded to higher Authority. Applicant complain the orders were contravened. In the statement in reply, respondent was brief that PGO 106 was not contravened as all procedures were followed without further elaboration nor attachment while they are silent in counter affidavit. It is not certain whether the inquiry was conducted. I find this is arguable issue. Further he complained about witness statement of unknown person. He did not elaborate further on this point and the respondents were silent. Lastly, applicant complain that he was charged in police tribunal after he was dismissed from employment. From paragraph 7 and annexture M-02 the '■ < . ‘3 .• * c record shows applicant was dismissed on 04/08/2016 and was charged in Page 9 of 10 ' police tribunal from 18/05/2018 onwards. By the year 2018 was the applicant a policeman? I am aware that application for leave is the process intends to enable court to eliminate and exclude frivolous or vexatious application which would appear to be an abuse of court process. It is only granted when applicant has a fit case for consideration. I am further aware that at this stage while exercising its discretion in determining issue of leave, this court is not expected to considering the main application as that will amount to over stepping. I find there is an arguable point in the application and I hereby grant it. Applicant to exercise this order within 21 days from the date of this ruling. It is so ordered. DATED at MUSOMA this 23rd day of July, 2024 M. L. KOMBA Judge Page 10 of 10