hamisi h mfinanga vs rombo district council and others 2020 tzhc 2229 7 august 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI MISCELLANEOUS CIVIL CAUSE NO. 11 OF 2019 In the Matter of an Application for Leave to apply for an order of Certiorari AND In the Matter of the president of the United Republic of Tanzania in making a decision in an appeal against the decision of the Teachers' Service Commission under section 13 (3) of the Teachers' Service Act, 2015 and regulations 30 and 31 of the Teachers' Service Commission Regulations, 2016 AND In the matter of the decision of the Teachers' Service Commission in exercising of its appellate power of appeal against the decision of the Teachers' Service Department Mkuu - Rombo under section 5 (E) of the Teachers' Service Commissions Act, 2015 (Act No. 25 of 2015) AND In the matter of the Teachers' Service Commission Mkuu - Rombo formerly known as Teachers' Service Department Mkuu - Rombo exercising its disciplinary authority AND In the matter of Rombo District Council being the employer under the Public Service Act, 2002 (CAP 8 R.E. 2002) and Public Service Regulations, 2003 (G.N. No. 168 of 2003) BETWEEN HAMISI H. MFINANGA................................................................... APPLICANT AND ROMBO DISTRICT COUNCIL Ist RESPONDENT TEACHERS' SERVICE COMMISSION MKUU - ROMBO FORMERLY KNOWN AS TEACHERS' SERVICE DEPARTMENT MKUU - ROMBO 2nd RESPONDENT TEACHERS' SERVICE COMMMISSION 3rd RESPONDENT THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA 4th RESPONDENT THE HONOURABLE ATTORNEY GENERAL 'SPONDENT Page 1 of 9 24th June, 2020 & 7th August, 2020 RULING MKAPA, J: This is an application for leave to apply for orders of Certiorari, brought under section 2 (1) of the Judicature and Application of Laws Act, Cap 358, R.E. 2002, section 17 (2) and 19 (2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provision) Act, Cap 310, R.E. 2002, Rules 4, 5 (1) (2) (a) - (d) of the Law Reform (Fatal Accidents and Miscellaneous Provision) (Judicial Review and Procedures and Fees) Rules, 2014 (GN No. 324 of 2014), Order XXXVII, Rule 1 (a), 2 (1), section 95 of the Civil Procedure Code, Cap 33 R.E. 2002, section 94 (1) (f) (i) of the Employment and Labour Relations Act, 2004 and Rules 24 (1) (2) (a) (b) (c) (d) (e) (f), (3) (a) (b) (c) (d) of the Labour Court Rules, 2007 (GN No. 106 of 2007). The application is supported by applicant's sworn affidavit which respondents disputed and raised a preliminary objection on point of laws as follows; 1. That, the application is time barred. Page 2 of 9 2. That, the affidavit in support of the application is datally defective for contravening Order XIX Rule 3 of the Civil Procedure Code, Cap 33 R.E. 2002. 3. That the application is incompetent for being supported with an affidavit with a defective jurat of attestation. Both parties consented and the court ordered the objection be heard by way of written submissions. The applicant was represented by Mr. Yona Lucas learned advocate while the respondent was represented by Ms. Jacqueline also Kinyasi learned state attorney. In supporting the first point of objection, Ms. Kinyasi for the respondent submitted that rule 6 of GN No. 324 of 2014 provides that an application for leave shall be made within six months after the date of the proceedings, act or omission to which the application for leave relates. She argued that, the President of the United Republic of Tanzania's decision was given on 26th February, 2019 but application for leave to file for orders of Certiorari was filed on 5th November, 2019. She added that the applicant was supposed to file this application on or before 26th August 2018 thus the application is hopelessly time barred. To support this contention, Ms. Kinyasi cited the case of Hezron M. Nyachiya V Tanzania Union of Industrial and Commercial workers & Anor, Civil Appeal No. 79 of 2001, Page 3 of 9 CAT at Dsm (unreported) and prayed that since the application is time barred the be dismissed with costs. On the second objection Ms. Kinyasi explained that it is a trite principle that affidavit, being a substitute to oral evidence in court, should contain statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information to which he believes to be true. She cited Order XIX Rule 3 (1) of the Civil Procedure Code and the case of Uganda V Commissioner of Prisons Ex Parte Matovu,1966 E.A 514 which laid the above principle. She went on arguing that applicant's affidavit contains arguments and legal issues contrary to the requirement of the law thus the same should be struck out with costs. Regarding the 3rd objection, Ms. Kinyasi argued that the applicant's jurat of attestation in not dated contrary to section 8 of the Notaries Public and Commissioner for Oath Act, Cap 12, R.E. 2019. She also cited the case of Jackson Kihili Luhinda and Anor V The Republic, Criminal Application No. 10 of 2010, CAT at Dsm (unreported) where the Court declared the application incompetent for noncompliance with Cap 12. Finally, Ms. Kinyasi contended that the affidavit also contravenes section 10 of the Oath and Statutory Declaration Act, Cap Page 4 of 9 34 R.E. 2002 which requires the Commissioner for oath to state whether he knows the deponent personally or is identified to him by a third party. She argued that applicant's affidavit lack the required information hence the same should be struck out with cost. Contesting the objection, Mr. Yona Lucas submitted against the 1st objection to the effect that the matter at hand is a labour dispute not supposed to be filed at the normal High Court registry. That, the chamber summons shows the application was signed by Court Registrar in October although the decision intended to be challenged was delivered on 26th February, 2019 and served to the applicant on 23rd April, 2019 thus the application is not time barred. On the 2nd objection on defective affidavit, Mr. Yona argued that, this being a labour matter the law applicable are labour laws specifically Rule 24 (3) of the Labour Court Rules, 2007, and not Civil Procedure Code, thus the affidavit is different from those filed in normal civil cases. Lastly on the issue of undated affidavit, Mr. Yona argued that applicant's affidavit is dated. He however, conceded the fact that the jurat of attestation did not state whether the applicant was known personally or identified by a third party and it was Mr, Yona's view that the same is not fatal as is curable by amendment. He prayed for the objection Page 5 of 9 to be dismissed and each party to bear own costs. He also added that this being a labour matter there was uncertainty as to which registry this application was to be filed and prayed for necessary court order. In her brief rejoinder, Ms. Kinyasi maintained her submission in chief and reiterated that the application is time barred and the applicant's affidavit is incurably defective. On the uncertainty on which Registry to file the application Ms. Kinyasi argued that under section 17 of Cap 310, application for judicial review is filed in the High Court. Having considered parties arguments for and against the objections raised I think the only question for consideration is whether the objections raised are tenable in law. On the first objection to effect that the application is time barred, Rule 6 of G.N No 324 of 2014 is categorical on time limit for judicial review as hereunder:- "The /eave to apply for Judicial review shall not be granted unless the application for leave is made within six months after the date of the proceeding, act or omission to which the application for leave relates." The same has been complimented by section 19 (3) of Cap 310 R.E. 2019 which reads, d1 Page 6 of 9 "(3) In the case of an application for an order to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed under any Act, and where the proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the Court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired." In the instant matter it is on record that his Excellence the President of the United Republic of Tanzania's decision was made on 26th February, 2019 while this application was filed in this court on 5th November, 2019 (nine months later. Disputing the time frame the applicant had argued that he received the President's decision on 24th April 2019 and the application was admitted by the Registrar in October. However, my perusal of the records has not revealed the fact that the Registrar did admit this application in October. Even if the applicant was to be given benefit of doubt that he did receive the President's decision on 24th April, 2019 still was Page 7 of 9 time barred in filing this application as the same was filed and admitted in this court on 5th November, 2019 (six months later) In Hezron M. Nyachiya V TUICO (supra) the court faced with similar situation had this to say:- "In an instant case, the time limit for instituting proceedings under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance is six months as provided under section 17 A (3) of the Ordinance. But the Ordinance does not prescribe the consequence when such proceedings are instituted out of time without leave of the court. The law of Limitation has a provision for the consequence where a proceeding is instituted out of time without leave of the court. It is section 3. Under that provision, that is, section 3, the consequence is that, such proceeding shall be dismissed whether or not limitation has been set up as a defence. Since under section 46 where a period of Limitation for any proceeding is prescribed by any other written law, the provision of this Act shall apply, it is our considered view that, Section 3 of the Law of Limitation applies also in respect of proceedings instituted under the (Fatal Accidentsapd Page 8 of 9 Miscellaneous Provisions) Ordinance. Thus, the appellant's application which was instituted out of time without leave of the Court, deserved to be dismissed." I fully subscribe to the position elucidated in the above authority as the applicant first had to seek for extension of time to be granted leave to file application out of time. Therefore the first objection has merit. In my view the finding on the first objection alone suffices to dispose of this application. Consequently, I sustain the first preliminary objection and the application sanctioned to a dismissal with costs. It is so ordered. Dated and Delivered at Moshi this 7th day of August, 2020. JUDGE 07/08/2020 Page 9 of 9