EX G 2917 PC DAVID HATSON MWASHAMBWA NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISC. CIVIL APPLICATION N0.27732 OF 2024 In the matter of Application for Extension of time to apply for leave to Apply for Orders of Mandamus BETWEEN EX. G. 2917 PC DAVID HATSON MWASHAMBWA...................I st APPLICANT EX. G. 3731 HAJI SAID MSIRA...................................................2NDAPPLICANT VERSUS INSPECTOR GENERAL OF POLICE........................................... 1st RESPONDENT THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA.................................................................................. 2nd RESPONDENT RULING 27.02.2025 & 21.03.2025 U. E MADEHA. 3: The applicants here in filed an extension of time to seek leave to file a mandamus order compelling the Inspector General of Police to provide the Regional Police Commander's decision, the charges, and the related proceedings to the applicants. The application was made under Rule 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2024, Section 95 of the Civil Procedure l Code [Cap 33 R.E IG19], Section 14 of the Law of Limitation Act Cap 89 (R.E. 2019), and Section 2(1) of the Judicature and Application of Laws Act 358 (R.E. 2019). Notably, the application is supported by the affidavits of two applicants, namely EX. G. 2917 PC David Hatson Mwashambwa and EX. G. 3731 PC Haji Said Msira. The applicants are seeking the court to grant the following reliefs: - 1. That, the Honourable Court be pleased to extend tim e fo r the applicants to apply fo r leave to file an Application fo r an Order o f Mandamus to com pel the Inspector General o f Police to provide the Regional Police Commander decision, the charge and the proceedings to the applicants. 2. That, the Honourable Court be pleased to grant any other relief(s) that it m ay deem ju s t and fit to grant When the application was called on for a hearing, the applicants were presented by Ms. Sophia George Gabriel, the learned advocate, whereas the respondents had the services of Mr. Erasto Baluwa, the learned state attorney. On taking the floor, Ms. Sophia Gabriel requested to adopt the applicants' affidavits. Further, she argued that despite numerous requests, the Inspector General of Police has not provided the applicants with the Regional Police Commander's decision, the charges, or the related proceedings since 2017. This failure to disclose the IGP's 2 proceedings is the main reason for the delay in filing the judicial review. The application if granted intends to challenge the legality of the proceedings, citing violations of the Police Force Prison Service Commission Act, under Sections 7(6)(b) and 8(l)(c) which requires an inquiry before taking disciplinary action. The affidavit also states that no preliminary investigation was conducted, which constitutes a legal irregularity. Furthermore, the applicant claims they were not given a chance to defend themselves or respond to the charges, and their detention was unlawful under the Police Force and Auxiliary Services Act. Additionally, the applicant asserts that their punishment was not suspended during the appeal process, violating Police Force Service Regulations. The advocate references the case of Lyamuya Construction Company LTD vs. Board of Registered Trustees of the Young Woman's Christian Association of Tanzania, Civil Application No.2 of 2010 which set forth the grounds upon wh’ch the court has to consider when extending time. On the way forward, the applicant's advocate requests an extension of time to file a mandamus application to compel the Inspector General of Police to provide the necessary proceedings to allow the applicant to proceed with a judicial review of the decisions made by the Regional Police Commander and the Inspector General of Police. On his side, Mr. Erasto Barua prayed for the adoption of the respondents' counter-affidavit. He further submitted that the court must consider every day of delay when granting an extension of time. He noted that while the applicants received the judgment in 2017, they only applied for an extension in 2024 and failed to account for delays between 2017 and 2020. This failure to justify each day of delay, according to the respondents, is a fundamental requirement established by Tanzanian case law, including Bruno Wenceslaus Nyalifa vs. Permanent Secretary, Ministry of Home Affairs, Civil Appeal No. 82 of 2017, which underscores the necessity of accounting for every day of delay. Furthermore, Mr. Barua referenced the Lyamuya Construction LTD case (Supra), which sets key principles for granting extensions of time. These include accounting for the entire period of delay, ensuring the delay is not excessive, demonstrating diligence rather than negligence, and proving a legal irregularity of sufficient importance. The respondents argued that the applinnts failed to meet these criteria, as they did not sufficiently demonstrate any illegality in their affidavit. Instead, their submissions focused on the merits of their case rather than the justification for an extension of time. The respondents further cited The Board of Trustees of the Free Pentecostal Church of Tanzania vs. Asha Selemani Chambanda, Civil Application No. 63/07 of 2023, where the court held that dissatisfaction with a decision does not necessarily establish an apparent illegality warranting an extension of time. In this case, the respondents contended that the applicants' claim of illegality was merely a pretext to justify their delay. Mr. Barua then concluded his submission by arguing that, the applicants were not diligent in pursuing their case and that their request for an extension of time lacked merit. He urged the court to dismiss the application, asserting that leniency should not be granted to parties who fail to act within the prescribed timelines. In her rejoinder, Ms. Sophia Gabriel maintained her earlier submissions and sought to distinguish Bruno's case from the present matter. She clarified that the applicants had not repeatedly refiled the judicial review application. Additionally, the applicants provided evidence in paragraph 18 of their affidavit, proving they were awaiting proceedings, which the respondents had not ri’sputed. She further argued that illegality is a fundamental reason for granting an extension of time. The respondents, while acknowledging this, failed to address the illegalities raised or provide evidence disproving them. They did not demonstrate whether copies of the proceedings were provided to the applicants. Ms. Gabriel emphasized that if no illegalities existed, the respondents should have produced the relevant records. Since they failed to do so, the applicants' claim of illegality stands. Given these circumstances, she urged the court to grant the extension of time to allow the applicants to obtain proceedings from the Inspector General of Police and proceed with their prayers for certiorari and mandamus. Having gone through the parties' Affidavits and submission for and against this Application, the main issue for consideration and determination is whether or not good cause has been established, thus allowing this court to exercise its discretionary powers to grant an extension of time within which to file leave for an order for mandamus to this court. It is a well-established legal principle that the power to grant an extension of time lies within the discretion of the court. In the case of Mumello v. Bank of Tanzania [2006] E.A 227 it was held: "It is trite law that an application fo r extension o f tim e is entirely in the discretion o f the Court to grant o r refuse it, and that extension o f tim e m ay only be granted where it has been sufficiently established that the delay was with su fficien t cause." 6 However, this discretion can only be exercised if a good cause is convincingly demonstrated to the court's satisfaction. Likewise, since the term good cause lacks a universally accepted definition, its determination requires an assessment of various factors. As rightly pointed out by both counsels, the Court of Appeal has set forth dear principles and a definitive test for the proper exercise of judicial discretion in granting extensions of time. "ITiese principles were articulated in the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra). For clarity, I will restate the guiding principle as follows: a. The Applicant is to account for the delay. b. The delay is not inordinate. c. The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action he intends to take. d. If the court feels there are other sufficient reasons such as the existence of a point c r law of sufficient importance; such as the illegality of the decision sought to be challenged. In addition, the case of Meek Daudi Kasane vs. Amos Goimang'ombe, Misc Civi! Application No. 3181 of 2024, underscored the importance of providing a justifiable explanation for any delay. The delay in applying for leave to seek judicial review was attributed to the Inspector General of Police’s failure to release the Regional Police Commander's decision, the charges, and the related proceedings from 2017 to 2024, as outlined in paragraphs (15) and (16) of the affidavit. In the same affidavit, the Applicant raised the issue of illegality, which is addressed in paragraph 19. The alleged illegality is twofold: firstly, the failure to conduct a preliminary investigation; and secondly, the denial of the right to be heard, as the Applicants contend, they were not allowed to defend themselves or respond to the charges which rendered the process unfair and reinforces their claim that the entire procedure was both procedurally flawed and legally dubious. Paragraph 19 further enumerates several factors related to the handling of the Applicants' termination from their roles as police officers. According to the Applicant's counsel, these factors constitute clear illegality. The Respondent's attorney argued that the stated reasons do not constitute illegalities, c,s they do not meet the criteria of being apparent on the record. Consequently, the applicants cannot rely on them as a valid ground for an extension of time. The counsel further argued that the applicants' claim of illegality was merely a pretext to justify their delay and urged the court to dismiss it. With due respect to the learned State Attorney, while his argument may appear compelling, at this stage, the court is not in a position to determine whether the applicant was afforded the right to be heard. Such an assessment can only be made during the adjudication of the intended judicial review. By deciding that matter now, I would risk preempting the judicial review and thereby encroaching upon the jurisdiction of the judicial review court. Moreover, the applicants should not be penalized for delays caused by circumstances beyond their control. Denying the extension would unjustly hinder them from pursuing their legal rights. Having discussed as above, I am of the considered view that in their application for an extension of time to seek leave to file an order for mandamus, the Applicants met the first and fourth test as was enumerated in the case of Lyamuya Construction Company Ltd vs. Board of Registered Trustee of Young Women’s and Christian Association of Tanzania (supra). They have therefore substantiated good cause and sufficient reason for this court to grant them an extension of time to file a leave for mandamus order. It is for that reason that, I grant the Application. Consequently, I grant the applicants ten (10) days from the date of this ruling to file leave to apply for orders for mandamus. No order as to costs. DATED and DELIVERED at Dodoma this 21st day of March 2025. 21 / 03/2025 COURT: Ruling was delivered on 21st day of March 2025 in the presence of the applicants, and Ms. Sophia Gabriel the learned advocate for applicants and Ms. Agness Makubha State Attorney for the respondents.