exd 4658 cpl francis herod muba vs inspector general of police another 2009 tzhc 95 12 march 2009

IN THE HIGH COURT OF TANZANIA AT SONCEA (DC) MISCT CIVIL APPLICATION NO. 2 OF 2007 EXD. 4658 CPL. FRANCIS HEROD MUBA.......................... APPLICANT VERSUS: 1. THE INSPECTOR CENERAL OF POLICE RESPONDENT 2. THE ATTORNEY CENERAL 11/12/2008 - HEARINC CONCLUDED 12/3/2009 - RULING DELIVERED RULING L.M.K. UZIA, J. in this application for leave to apply for orders of Madams, Certiorari and prohibition against the inspector General of Police. The applicant, EX. D.4658 CpI. Francis Herold Muba, was an employee of the 1st respondent since 1985 as a Police constable, and up to July 2005, he climbed to a rank of Corporal, by then he had already served the force for 20 years. On 20m/7/2005 he was dismissed from service without being paid any fringe benefits what so ever for the whole period of service. Before hearing of the i application an 15th/7/2008, Mr. Mwavanda, learned State Attorney for^the Republic, raised a preliminary objection, notice of which had,been filed earlier, in that r 4 preliminary objection, Mr. Mwavanda raised two grounds of objection, namely: (1) The affidavit of the Applicant is incurably ■ Defective. (2)* The application has prematurely filed before this honourable court. Arguing the first ground of objection, Mr. Mwavanda contended that the applicants affidavit supporting the notice of motion does not show where the oaths was taken, in short requirements under section 8 of the Notary Republic and commissioner for oaths Cap. 12. (read) were not complied. He also supported his argument by citing the case of Simplius Felix Kijuu isaka v. NBC Limited, no. 24/2003 CA (unreported). Arguing the second ground of objection, Mr. Mwavanda contended that, the applicant lodged his application prematurely, he was supposed to exhaust local remedies as per section 56 of Police Act and Auxiliary service Act, Cap. 322 of 2002. That the applicant was required to file reasons for failure to exhaust local remedies before filing the case in court. 2 On his part, the applicant contended that, the oath was taken at scyrgea and witnessed by the rubber stamp of the commissioner for oaths before whom the oath r 4 was made, and that commissioner for oaths knew him by his name on 2nd/5/2008. He cited Morgans law of pleading 14th edition, on page 407, which provides as follows-"where a write of petition is based on affidavit which is not properly verified it is not necessary to dismiss the petition on that ground without first giving the petitioner on opportunity to file duly verified affidavit.” On the second point of objection, the applicant contended that, the applicant exhausted all remedies before filing the application to court. For instance, he appealed to the inspector General of Police who in turn refused his appeal. Being the final and conclusive tribunal he had no place to go except to the court, that is by virtue of section c 18 (3) of Police service Regulations, 1995. in my ruling I will start with the second ground of objection, that is whether the applicant brought the application for mandamus certiorari and prohibition prematurely. The law is as clear as day follows night that the igp (inspector General of Police is a final and 3 conclusive Authority in respect of the disciplinary action against the apgHcant. There is no any other relevant law which gives a different view that being the position, r the second ground of objection is overruled. As far as the first ground of objection is concerned, that is to say, the defect in the applicant's affidavit; It is true that .the law provides under section 8 of the Notaries Public and Commissioner for oaths ordinance Cap. 12. that the affidavit must be stamped with a rubber stamp of the Commissioner for oaths before whom the oath was made; Apart from that the affidavit must show the place where the oath was taken, in this case it was Songea. secondly, the affidavit does not show whether the commissioner for oaths, Mr. Mbogoro, advocate knew the applicant personally or whether the applicant was identified to him by somebody whom the commissioner for oaths knew him personally. This is contrary to the requirement of section 10 of the oaths (Judicial Proceedings) and statutory Declarations Act. No. 59 of 1966. This being the case, it is evident that the applicant’s affidavit in support of the notice of motion is defective. I therefore hold that, a defective affidavit in support of a notice of motion renders the applications 4 incompetents It leaves the application without legs on which to stands' <"• l therefore struck it .out, and sustain the first r i ground of objection. . --- : J7> L.M.K. uzia ^ JUDGE. 11 / 12/2008 12/3/2009 Coram: Hon. L.M.K. Uzia, J. For the Applicant: Present Respondent: Absent c/c: S. Ndunguru Mr. waryuba for the applicant Ruling delivered in chambers before the applicant alone. LMKU/ESY 5